May 25, 2006
Let me start by saying that General Hayden is extremely well qualified for this position. Having previously served as head of the National Security Agency and as Deputy Director of National Intelligence under John Negroponte, he has thirty years of experience in intelligence and national security matters. And he was nearly universally praised during his confirmation to deputy DNI.
Unfortunately, General Hayden is being nominated under troubling circumstances as the architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight. This is a program that is still accountable to no one and no law.
Now, there is no one in this Congress who doesn't want President Bush to have every tool at his disposal to prevent terrorist attacks - including the use of a surveillance program. Every single American - Democrat and Republican -- who remembers the images of falling towers and needless death would gladly support increased surveillance to prevent another attack.
But over the last six months, Americans have learned that the National Security Agency has been spying on Americans without judicial approval. We learned about this not from the Administration, but from the New York Times and USA Today. Every time a revelation came out, President Bush refused to answer questions from Congress.
This is part of a general stance by this Administration that it can operate with no restraints. President Bush is interpreting Article II of the Constitution as giving him authority with no bounds. The Attorney General and a hand full of scholars agree with this view, and I don't doubt the sincerity with which the President and his lawyers believe this constitutional interpretation. However, the overwhelming weight of legal authority is against the President on his unbounded authority without any checks or balances. This is not how our Constitution is designed.
We don't expect the President to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government - Congress and the Judiciary - to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much.
Unfortunately, we were never given the chance to make that examination. Time and again, President Bush has refused to come clean to Congress. Why was it that 14 of 16 members of the Intelligence Committee were kept in the dark for four and a half years? The only reason that some Senators are now being briefed is because the story was made public. Without that information it is impossible to make the decisions that allow us to balance the need to fight terrorism while still upholding the rule of law and privacy protections that make this country great.
Every democracy is tested when it is faced with a serious threat. As a nation, we have to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power. What protects us, and what distinguishes us, are the procedures we put in place to protect that balance, namely judicial warrants and congressional review. These aren't arbitrary ideas. These are the concrete safeguards that make sure that surveillance hasn't gone too far. That someone is watching the watchers.
The exact details of these safeguards are not etched in stone. They can be reevaluated from time to time. The last time we had a major overhaul of the intelligence apparatus was 30 years ago in the aftermath of Watergate. After those dark days, the White House worked in a collaborative way with Congress through the Church Committee to study the issue, revise intelligence laws and set up a system of checks and balances. It worked then and it could work now. But unfortunately, this Administration has made no effort to reach out to Congress and tailor FISA.
I have no doubt that General Hayden will be confirmed. But I am going to reluctantly vote against him to send a signal to this Administration that even in these circumstances President Bush is not above the law. I am voting against Hayden in the hope that he will be more humble before the great weight of responsibility that he has, not only to protect our lives, but to protect our democracy.
Americans fought a Revolution in part over the right to be free from unreasonable searches - to ensure that our government couldn't come knocking in the middle of the night for no reason. We need to find a way forward to make sure that we can stop terrorists while protecting the privacy, and liberty, of innocent Americans. We have to find a way to give the President the power he needs to protect us, while making sure he doesn't abuse that power. It is possible to do that. We have done it before, we could do it again.