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.
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
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
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.