President Bush's selection of Gen. Michael Hayden to replace CIA Director Porter Goss has stirred controversy even among Republicans, but the choice may be more savvy than politically risky.
From 1999-2005, Hayden headed up the National Security Agency, and much of the opposition to his nomination will likely come from critics of the NSA's secret surveillance program, which targeted communications between known terrorists overseas and persons in the United States.
When The New York Times revealed the existence of the program several months ago, Democrats -- and a handful of Republicans -- were quick to question the president's authority to order such intercepts without first obtaining search warrants from a special federal court, the Foreign Intelligence Surveillance Act (FISA) court. The most outspoken critics suggested impeachment might be justified by the president's action. But the furor has largely died down, and re-focusing on the issue might actually help the president, not hurt him.
From the beginning, the public seemed unconvinced that the warrantless eavesdropping was a gross violation of civil liberties. Most Americans, who clamored for better intelligence in the wake of the 9/11 attacks, didn't buy arguments that the president had no authority in wartime to listen in on conversations or intercept e-mails between known terrorists and their agents in the U.S. without seeking permission from a FISA court. But some members of Congress have pushed ahead to try to rein in the program nonetheless.
Last month, Democrats in the House failed to attach amendments to the 2007 Intelligence Authorization bill to restrict the NSA program. And Senate Judiciary Committee Chairman Arlen Specter, R-Pa., continues to push for more operational details on the program. He has held four hearings so far and, on Sunday, warned that he might use confirmation hearings as "leverage" to get more information.
Specter told The Washington Post that "this gives us an opportunity to ask these questions and insist on some answers if the Senate is of a mind to deny confirmation," but the White House doesn't seem especially worried.
Hayden has been the administration's point man in explaining the necessity of the program. Since he's not an attorney, no one expected him to make the legal arguments for the president's inherent or explicit authority to order surveillance without first obtaining warrants -- a more difficult job that fell to Attorney General Alberto Gonzales.
For the most part, the legal issues were debated more on the opinion pages of the newspaper than they were around kitchen tables, where the reflexive attitude was, maybe if we'd been doing this all along, 9/11 might not have happened. Confirmation hearings won't change that dynamic. Hayden will still be speaking of the necessity and effectiveness of the program and can't be expected to answer arcane legal arguments about presidential authority.
Even though the president's poll numbers continue to slip, with USA Today's most recent survey showing him at only 31 percent approval, the one area in which Bush continues to show strength is fighting terrorism. In the USA Today/Gallup poll taken April 28-30, Americans were almost evenly split on whether the president was doing a decent job on terrorism. With congressional elections just months away -- and prospects for the GOP not looking particularly cheery -- the White House should be trying to play to its strengths, and Gen. Hayden's nomination does just that.
Of course it would be good if Congress fulfilled its obligation to advise and consent by actually voting based on the nominee's qualifications for the job. But in a bitterly partisan Congress, and among an equally divided public, merit doesn't carry the weight it should. It's all about politics.
In this instance, however, the politics line up favorably for the president. Gen. Hayden is likely to get a tough grilling, but the Democrats have shown no stomach for a real fight on the NSA program, and the Republicans can hardly lead the charge against an extraordinarily well-qualified presidential pick. The general may have to give up his stars to take the job, despite ample precedent for an active-duty military head of intelligence, but the president will win the day.