Monday, May 08, 2006

Hayden Nomination To Head CIA Sparks Controversy, Opposition

General Michael V. Hayden
Originally uploaded by MatthewBradley.
Hayden named as Bush CIA choice

US President George W Bush has nominated Air Force General Michael Hayden as the new head of the CIA.

Mr Bush described Gen Hayden, the former head of the National Security Agency (NSA), as "the right man to lead the CIA at a critical moment".

Lawmakers have expressed concern at putting a military man in charge of a civilian agency, and civil rights groups are also raising objections.

Porter Goss unexpectedly resigned as head of the CIA on Friday.

His successor must face Senate confirmation hearings.

The American Civil Liberties Union has urged the Senate to question Gen Hayden vigorously about the NSA's programme of domestic surveillance without warrants when he was in charge.

"Hayden's approval of warrantless surveillance on Americans raises serious questions about whether the CIA would be further unleashed on the American public," ACLU Executive Director Anthony Romero said in a statement.

He called on the Senate to use the Hayden confirmation hearing to investigate other allegations against the US intelligence community, including the reported use of secret prisons and extraordinary rendition of terror suspects.

Some members of Congress - including some Republicans - have baulked at the prospect of a general leading the CIA, saying it could give the Pentagon too much influence in intelligence gathering.

The BBC's Justin Webb says it is a measure of how enfeebled the Bush administration has become that even before the formal announcement, the decision on a new CIA director was already the subject of heated debate.

Presidential praise

The president praised Gen Hayden, pointing to a long career in the US military and intelligence community, including time spent working as deputy to the current director of national intelligence, John Negroponte.

"Mike knows our intelligence community from the ground up. He has been both a provider and a consumer of
intelligence," Mr Bush said.

"He has demonstrated an ability to adapt our intelligence services to the new challenges of the war on terror."

Mr Negroponte also commended Gen Hayden, calling him "a very, very independent-minded person".

He said Gen Hayden was well qualified for the position.

Accepting the nomination, Gen Hayden struck a positive note.

"In the confirmation process I look forward to meeting with leaders of the Congress, better understanding their concerns and working with them to move the American intelligence community forward," he said.

"This is simply too important not to get absolutely right."

Earlier, National Security Adviser Stephen Hadley appeared on US breakfast television shows to defend Gen Hayden's expected nomination.

"The question is not military versus civilian. The question is the best person to do the job," he told CBS.

Bipartisan worries

The choice of Gen Hayden - who oversaw the controversial warrantless eavesdropping programme after 9/11 - has drawn some strong criticism among legislators.

"I do believe [Gen Hayden] is the wrong person, in the wrong place, at the wrong time," senior Republican Peter Hoekstra said.

Mr Hoekstra, chairman of the House Intelligence Committee, said there were already "ongoing tensions" between the CIA and the Pentagon.

His views were echoed by Democrat Senator Joe Biden who said the appointment could leave agents with the impression the CIA has been "just gobbled up by the defence department".

Porter Goss's resignation after less than two years as director, in which he was given the job of reforming the agency after a series of intelligence failures, came as a surprise.

He declined to comment on his departure,
telling CNN that "it's one of those mysteries".

The White House denied as "categorically
untrue" US media reports that the president had lost confidence Mr Goss.

Story from BBC NEWS:
Published: 2006/05/08 16:26:58 GMT

Hayden could face trouble ahead

By Adam Brookes
BBC News, Washington

President Bush has nominated an Air Force general, Michael Hayden, to be the next director of the CIA.

The position came vacant at the end of last week, when Porter Goss resigned unexpectedly after less than two years in the role.

President Bush was effusive as he nominated Lieutenant General Michael Hayden to be the top man at the CIA.

"Mike has more than 20 years of experience in the intelligence field. He served for six years as director of the National Security Agency, and thus brings vast experience leading a major intelligence agency to his new assignment," he said.

Gen Hayden's experience is beyond question. His whole career has been spent in intelligence - as an air force officer, as a military attache in Bulgaria and as head of the super-secret National Security Agency (NSA).

Most recently he has acted as number two in the Office of the Director of National Intelligence. His role - to effect reform of the intelligence community and how its 15-member agencies interact. He is an espiocrat, par excellence.

But you can read Gen Hayden's resume from start to finish and still know very little about the man. Secrecy renders opaque most of his life and work.

As he accepted the nomination, the master spy spoke only briefly.

But Michael Hayden is in fact known as an engaging, slightly unconventional character.

And Washington insiders say he has impressed the Bush administration as a man adept at bridging the treacherous bureaucratic waters that lie between the spies, the military and the politicians.

But when the general comes to be questioned by the Senate - as he must if he is to be confirmed as head of the CIA the picture becomes political, and murky.

Surveillance scandal

When he was at the NSA, Gen Hayden oversaw a highly controversial surveillance programme.

The NSA listened to the international telephone calls of Americans without obtaining the normal permissions from a secret court. There was a scandal.

Gen Hayden faced tough public questions about the programme's legality. He defended himself and the surveillance programme robustly.

If senators choose to grill him about the NSA's domestic surveillance programme, his confirmation hearings could turn bloody.

"The odds still would suggest that Hayden will be confirmed in this position," said Norman Orenstein, of the American Enterprise Institute.

"But to get there, the president is going to have to use a very significant amount of political capital at a time when his capital bank is at its lowest ebb."

Republican concerns

Senators from the opposition Democratic Party may smell political advantage in opposing the president's candidate, and in publicly revisiting the NSA surveillance.

But they may also feel that opposing Gen Hayden makes them look weak or obstructionist on national security - a traditional point of vulnerability for the Democrats.

Perhaps the greater threat to Gen Hayden comes from the fact some Republicans have already expressed publicly doubts over his candidacy - not because of the surveillance programme, but because he is a serving officer.

They are concerned that the military should not lead a civilian agency.

Republican Senator Saxby Chambliss said Hayden's military background would be a "major problem".

The background to these concerns is complex. The Pentagon, say intelligence community sources, has over the last few years expanded its intelligence gathering, particularly in the field of human intelligence, or HUMINT.

HUMINT - the actual business of running agents - is traditionally the work of the CIA.

But Pentagon officials have, we're told, sought to expand the remit of Special Operations Command and the Defense Intelligence Agency to include more HUMINT operations.

These officials feel a need for faster, more relevant operational intelligence for America's 'war on terrorism'.

Morale low

The Pentagon's expansion has led to unease in other areas of the intelligence community.

And, say intelligence sources, maintaining a working equilibrium between the various agencies has been difficult for John Negroponte, the Director of National Intelligence and his deputy, Michael Hayden.

And if the general is confirmed to the CIA, his problems could be just beginning.

The Washington whisper is that morale at the agency is very low.

The failure to stop 911; the flawed intelligence in Iraq; these have left the CIA the butt of jokes - especially in the military.

One admiral recently told me: "If I'm looking for knowledge, I don't look to the CIA."

Story from BBC NEWS:
Published: 2006/05/09 00:26:26 GMT

Outcry as Bush Nominates Illegal Spying Advocate for CIA

The Progress Report

Posted on May 8, 2006

On Friday, Porter Goss unexpectedly resigned as head of the CIA, leaving behind an "utterly irresponsible" 18-month tenure at the agency and unanswered questions about his hurried departure. Today, the White House nominated deputy director of national intelligence Lt. Gen. Michael Hayden as Goss's successor. "Bottom line, I believe he's the wrong person, the wrong place, at the wrong time. We should not have a military person leading a civilian agency at this time," said House Intelligence Committee Chairman Peter Hoekstra (R-MI) yesterday on Fox News Sunday, voicing the bipartisan concerns of lawmakers.

Hayden has demonstrated a fundamental misunderstanding of the Constitution and has misled Congress under oath. His close ties to Vice Presidency Cheney, Director of National Intelligence John Negroponte, and the Department of Defense have led many members of Congress to conclude he is wrong man to gain the trust of the intelligence community and clean up the CIA after the "chaos" left by Goss.

'Under the sway' of Rumsfeld

Over the weekend, a bipartisan group of lawmakers spoke out opposing the nomination of a military officer to a civilian agency. If Hayden is confirmed, "military officers would run all the major spy agencies, from the ultra-secret National Security Agency to the Defense Intelligence Agency." One former intelligence official said, "It seems to me the Pentagon grows even stronger now.... Every time there's a change, it moves in that direction." "I think...putting a general in charge is going to send the wrong signal through the agency here in Washington, but also to our agents in the field around the world," said Hoekstra yesterday, who also added that there will "be the perception in the CIA" that Hayden would be under the sway of Defense Secretary Donald Rumsfeld.

One of Goss's largest challenges at the CIA was gaining the trust of career officers, who resented that he brought in a group of his unqualified aides -- called "the Gosslings" by CIA insiders -- and appointed them to top positions. Even if Hayden retires from the military, he is unlikely to be trusted as the committed independent advocate that the CIA needs. "Now, just resigning commission and moving on, putting on a striped suit, a pinstriped suit versus an air force uniform, I don't think makes much difference," said Sen. Saxby Chambliss (R-GA). Senate Intelligence Committee Pat Roberts (R-KS), who in 2005 called Hayden "outstanding," yesterday refused to offer his endorsement of the administration's nominee: "I'm not in a position to say that I am for General Hayden and will vote for him."

Hayden unfamiliar with the Fourth Amendment

Hayden has demonstrated an "astounding lack of knowledge" about his job as an intelligence official, fundamentally misunderstanding constitutional protections. In a speech on Jan. 23, Hayden boasted that he was knowledgeable on the Fourth Amendment: "[B]elieve me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth."

But in a question at that same speech, Knight-Ridder reporter Jonathan Landay noted that Hayden "repeatedly referred to the Fourth Amendment's search standard of 'reasonableness' without mentioning that it also demands 'probable cause'"; Hayden continued to deny that the amendment contained any such clause. When Landay asked Hayden if the amendment contains the phrase "probable cause," Hayden bluntly replied, "No."

Lying to Congress

In January, Karl Rove promised to make the midterm elections focus on wiretapping. Hayden -- as one of the administration's "most forceful" defenders of President Bush's warrantless domestic eavesdropping and director of the National Security Agency (NSA) when the program was implemented in 2002 -- will likely bring that issue to the forefront. "We have no concerns about a public debate over the terrorist surveillance program," said a senior White House official. Hayden misled Congress and the public about the administration's domestic spying. In his Oct. 17, 2002 testimony, Hayden told a congressional committee that any surveillance of persons in the United States was done consistent with the Foreign Intelligence Surveillance Act, which required a court-approved warrant for wiretapping. As American Progress Senior Fellow Morton Halperin pointed out, "At the time of his statements, Hayden was fully aware of the presidential order to conduct warrantless domestic spying issued the previous year," making Hayden's misleading statements to Congress illegal.

An Agency in Turmoil

Goss's chaotic departure encapsulated his chaotic tenure.
"A 'reform' that was supposed to improve coordination and coherence among our intelligence agencies has had the opposite effect," said Robert L. Hutchings, former National Intelligence Council chairman, about Goss's term. While the Bush administration has tried to spin Goss's resignation as a lost turf battle with Negroponte, there has been little indication that Goss ever fought hard against the administration for his turf.

In reality, Goss's tenure was noted for "bleeding talent" away from the struggling agency: "At least a dozen senior officials -- several of whom were promoted under Goss -- have resigned, retired early or requested reassignment. The directorate's second-in-command walked out of Langley last month and then told senators in a closed-door hearing that he had lost confidence in Goss's leadership." Now the agency has been drawn into a federal criminal investigation over Kyle "Dusty" Foggo, the CIA's third-ranking official, handpicked by Goss.

The CIA Inspector General has opened an investigation into Foggo's contacts with defense contractors accused of bribing lawmakers. Foggo has admitted that he attended poker games -- where prostitutes may have been present -- set up by Brent Wilkes, who is implicated in the bribery of former Rep. Randy "Duke" Cunningham. Additionally, Frank Bassett, a CIA agent identified as "Nine Fingers," was also at the poker parties and was a former Goss aide. "Supposedly the [Cunningham] scandal was the last straw [in deciding that Goss should resign].... This administration may be on the verge of a major scandal," said a congressional source involved in oversight of U.S. spy agencies.

2006 Independent Media Institute. All rights reserved.
View this story online at:

Potential Evidence Surfaces of Bush's Illegal Spying

By Onnesha Roychoudhuri, AlterNet
May 8, 2006

Five months after news of the NSA's warrantless spying program broke, and after we've learned numerous details of the program's extent, a Portland, Ore., attorney may have finally obtained hard evidence of illegal wiretaps by the government.

Thomas Nelson has been practicing administrative law for most of his professional life, but after Sept. 11 he first began offering pro bono work for immigrants detained in broad FBI terrorism sweeps. He is currently leading a little-discussed case that may contain the first documented evidence of an illegal wiretap and believes that, as a result, he himself has been subjected to warrantless -- and therefore illegal -- wiretaps and physical searches, the kind of clandestine operation that Nixon referred to as "black bag jobs." And as a result of extreme carelessness by the FBI, Nelson may have his hands on the only solid evidence of these searches.

The story begins in February 2004, when the Office of Foreign Assets Control froze all funds of the Oregon branch of the Saudi Arabian charity Al-Haramain. Attorneys Asim Ghafoor and Wendell Belew defended the charity against the government's allegations that Al-Haramain Oregon was taking part in terrorist activities.

In August 2004, as a routine court procedure, the FBI provided the lawyers and defendants with documents relating to the trial. The FBI's lawyers accidentally released a document that showed the government had used logs of conversations between the lawyers and their clients, Soliman al-Buthi and the organization, to categorize Al-Haramain as a terrorist group. The catch is that the logs were obtained without a warrant.

Ghafoor and Belew initially assumed that the document was obtained through the Foreign Intelligence Surveillance Act (FISA) -- which allows for warrantless wiretaps as long as a warrant is obtained within 72 hours. But they grew suspicious when the FBI requested the return of that document. The lawyers immediately complied, but the FBI failed to contact both Al-Buthi and Seda, both now living overseas, to get their copies back.

When the New York Times broke the news of the NSA spy program last December, Belew and Ghafoor realized that the logs obtained of their attorney-client communications were probably a result of the program. That's when they contacted Thomas Nelson, an attorney representing al-Buthi in a separate case.

Another missed 'slam dunk'

On May 6, 2004, Nelson's close friend, 37-year-old civil and immigration lawyer Brandon Mayfield, was arrested as a material witness in the Madrid train bombings. The linchpin in the case against Mayfield was a low-quality fingerprint from a bag in Spain that contained detonation devices.

Though Mayfield hadn't traveled abroad in nearly a decade, and although the Spanish authorities continually asserted their doubts regarding the print match, the Department of Justice held him for two weeks while they tried to compile evidence in the case.

While Nelson helped Mayfield put together a defense, he observed firsthand the lengths to which the government went to to justify Mayfield's detainment. After the fingerprint was mistakenly tied to Mayfield, Nelson says the FBI started following him to try to find any evidence against him.

As the Portland Oregonian reports:
Initially, Portland's squad of investigators had just a few pieces of information about Mayfield. They knew his birthday and Social Security Number, and that he'd served in the military from 1985 to 1994. Analysts checked FBI databases to see if Mayfield was the subject of any investigations. He wasn't, but a deeper search circumstantially connected Mayfield to "other suspected terrorists." Court records showed that less than two years earlier, Mayfield had represented Jeffrey Leon Battle in a custody dispute. Battle was a member of the Portland Seven, a group arrested in 2002 for plotting to fight with the Taliban against U.S. soldiers.

Mayfield's legal files were seized by the government, and he had to fight to have them reviewed by a third party that could provide sufficient protections of the privileged material. An Oregon judge agreed to this and, finding nothing suspicious, ordered the government to release them.

Even as Spanish officials questioned the fingerprint match, FBI officials in Washington urged Portland prosecutors to disregard them. An e-mail from an FBI counterterrorism supervisor reads, "I spoke with the lab this morning, and they are absolutely confident that they have a match on the print. -- No doubt about it!!!!"

These kind of "slam-dunk" pronouncements have a way of backfiring: On May 19, Spanish authorities conclusively determined that the print belonged to Ouhnane Daoud, an Algerian citizen. On May 20, Mayfield was released, and the judge in the case refused the government's request to continue monitoring Mayfield's communications.

Nelson's experience with Mayfield's case gave him a better sense of what was happening to him when he took on Soliman al-Buthi's case at the end of 2004. Soliman, remember, while currently overseas, is one of the few who was provided with a copy of the conversation logs accidentally released by the FBI. And while the FBI did not attempt to make contact with al-Buthi, he is, according to OFAC, a "specially designated global terrorist."

If they were looking for al-Buthi, he wouldn't be hard to find. Just this past month, the Washington Post covered the work al-Buthi is doing in Saudi Arabia: "Sulaiman al-Buthi, a Riyadh-based spokesman for the International Committee for the Defense of the Final Prophet, says this religious but peaceful activism could put an end to violence and drive groups like al-Qaida out of business."

When he isn't publicly speaking against al-Qaida, he is working as an assistant director of beautification in the city of Riyadh. "Basically, he's the flower guy," Nelson told Amy Goodman in an interview, "He is responsible for the second annual Riyadh Flower Festival."

Though the FBI knew that an alleged "terrorist" possessed a document containing information about the NSA program, they did not try to find al-Buthi, or contact his lawyer, Thomas Nelson -- at least not directly.

The black bag jobs begin

Nelson officially started representing al-Buthi in September 2004; soon after, the FBI document was inadvertently released. A few months later, Nelson observed inconsistencies when he came to his office: His computer would be left on, disks still in the drive, materials shifted. Fellow lawyers from the office, working late, noticed someone on at least three occasions posing as a member of the janitorial crew, trying to get into the office.

The Oregonian reported that attorney Jonathan Norling "was sleeping on a couch at their practice early one morning last May, when a man dressed as a custodian tried to enter Nelson's office. Norling startled the man twice one night in July, when he caught the man trying to enter the locked office." The man in question had what appeared to be a valid badge for the building. But Norling notes, "This person wasn't a cleaning crew. I know the cleaning crew. I've worked here seven years, and I've worked a lot of nights, and I never experienced anything like that until Tom was working (on this case)."

Though Nelson approached the security people at the building, they wouldn't talk to him. "They were very blunt," he told AlterNet in a phone interview. He then took his concerns to the building manager. "It was all very disconcerting and inconclusive," says Nelson. "There was no direct denial. At the end, I said, 'You probably couldn't tell me if something was going on anyway.' He said, 'That's probably right.'"

After these incidents, Nelson brought the al-Buthi files to his house. That's when he and his wife experienced lapses in his home alarm that the company monitors refused to explain. "They basically stonewalled us," says Nelson. "We kept calling people and they kept referring us around and saying 'We'll call you back,' but no one would ever call back."

Sensing that he may be experiencing the same kinds of searches as the FBI performed in Brandon Mayfield's case, Nelson wrote a letter to Karin Immergut, U.S. attorney for Oregon in September 2005, requesting she "look into the matter and to inform me if representatives … have engaged in these searches." Immergut said she was not aware of any warrantless searches. After the New York Times broke the NSA story, Nelson wrote Immergut again, stating that, based upon the report, he may be the target of searches outside of the scope of FISA. Immergut responded, "I was completely unaware of any NSA surveillance program until I read about it in the media," and suggested Nelson contact the NSA directly.

Which is exactly what Nelson did. But the only response he received reads like pure bureaucratic satire:
Rest assured that safeguards are in place to protect the civil liberties of U.S. citizens. However, because of the highly classified nature of the program, we can neither confirm nor deny the existence of records responsive to your request. The fact of the existence or non-existence of responsive records is a currently and properly classified matter in accordance with Executive Order 12598, as amended. Moreover, the third exemption to FOIA provides for the withholding of information specifically protected from disclosure by statute. Thus, your request is also denied because the fact of the existence or non-existence of the information is exempted from disclosure pursuant to the third exemption.

Nelson believes the clandestine searches of his home and office have ended. But he still feels a lingering sense of discomfort: "Every time I think about the possibility that they were in my home, I get very angry … My office is one thing, my home is something else. I don't want a bunch of spooks showing up there."

The fact that most frustrates Nelson is that no one ever tried to contact him or al-Buthi personally; rather, they resorted to what Nelson thinks must be illegal searches. "In retrospect," Nelson says, "I think they were trying to get the [leaked FBI] document back. If the searches were pursuant to FISA, it would be interesting to find out what they told the judge to get a warrant -- 'We've been conducting this illegal wiretapping program, we've embarrassed ourselves, there's this document out there that Nelson has, will you give us a warrant to get it back?'"

This is the circular logic that lies at the root of the debacle: In order to hide evidence of an illegal search program, the government is taking part in illegal searches.

Nelson has been cautious since he took on Asim Ghafoor and Wendell Belew's case against the NSA. Having intimately experienced the violation of law the government is willing to take part in to keep the NSA program under wraps, Nelson elected to put the classified document in the hands of the judge. Filing it under seal, Nelson hopes to keep the document safe and the case alive.

The formal legal complaint, filed in February, states clearly that Ghafoor and Belew's communications with their Al-Haramain charity clients were recorded without a warrant outside FISA: "Defendant National Security Agency did not obtain a court order authorizing such electronic surveillance, nor did it otherwise follow the procedures mandated by FISA."

Though the evidence is promising, the battle is far from won. The Department of Justice is fighting hard to get the classified document back under its control. Nelson and his co-counsel Steve Goldberg raised an objection -- pointing out to the judge that it might not be wise to hand evidence over to a defendant in the case, which led to this tense exchange:

U.S. District Judge Garr King: What if I say I will not deliver it (the document) to the FBI, Mr. Coppolino?

DoJ Attorney Anthony Coppolino: Well, your honor, we obviously don't want to have any kind of a confrontation with you; we want to work this out, but it has to be secured in a proper fashion. And I respect the court's, you know, authority, but on the other hand, I also would have to reiterate that it has to be secured properly.

Nelson fully expects the DoJ lawyers to pull out all the stops in order to justify the executive power behind the NSA program and for the president's right to keep the program from the public. The DoJ already filed a request explaining why the document, and hence the case, should never be made public. That explanation was unsurprisingly filed under seal, proving that even explaining why something should be classified has been deemed a classified matter. But despite the powers he's fighting against, Nelson believes that the fact that the document has seen the light of day means the fight will eventually be won.

The continued obfuscation of inquiries into the NSA program illustrates that the president's lawyers blur the distinction between protecting our national security and protecting the president's transgressions of the law from scrutiny.

There are a handful of individuals and organizations enduring intensive intimidation campaigns and spearheading legislation against the president and the NSA to put a stop to a program that is slowly undermining the basic tenets of our legal system.

Simply electing to represent someone designated a "terrorist" requires attorneys to obtain a license from OFAC or risk jail. As Nelson explained, "The purpose of OFAC is to keep an eye on 'terrorists' and, by extension, their attorneys … Frankly, I don't think this process could pass constitutional muster, but that's a fight for another day."

While the legal ins and outs of the NSA spy program may at times be complex, the essence of what Thomas Nelson is fighting for is simple: upholding the judicial tenet of "innocent until proven guilty" and the separation of powers laid out in the Constitution.

In the coming weeks, the government must file a response to Thomas Nelson's complaint. While the DoJ will inevitably try to push it from the courts, and from public attention, it is only a matter of time before the simplicity of what is at stake takes root. As Nelson explained, "It's a question of whether one man can, as commander in chief, ride roughshod over all the protections in the Constitution.
If this is our response to 9/11, we've lost. If this kind of practice can occur because of 9/11, Osama won."

Onnesha Roychoudhuri is an assistant editor at AlterNet.

2006 Independent Media Institute. All rights reserved.
View this story online at:


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