BECAUSE PRESIDENT Bush's nominee to head the Central Intelligence Agency, Air Force General Michael Hayden, ran the National Security Agency's warrantless eavesdropping on Americans and has publicly defended that evasion of the Foreign Intelligence Surveillance Act, he carries a heavy burden entering Senate confirmation hearings.
Some have voiced concern about Hayden's military background. But this should be less of a hindrance than his cavalier disregard for the law. Other military officers have headed the CIA without compromising that civilian agency's independence from the Pentagon.
Hayden has demonstrated his own readiness to stand up to Defense Secretary Donald Rumsfeld in the most telling way. In 2004, when Congress was creating the Office of National Intelligence to oversee 16 intelligence agencies, Hayden testified that the branch of military intelligence he led, the NSA, should report to the new director of national intelligence rather than the Defense Department. In the give-no-quarter world of Washington power struggles, this amounted to a secessionist rebellion against the secretary of defense by the chief of an agency that commands a major share of the intelligence budget. And Rumsfeld made his displeasure known to Hayden.
Even if they are satisfied that Hayden will not make the CIA just one more branch of a Pentagon that controls 80 percent of the intelligence budget, senators do need to come down hard on his responsibility for wiretapping Americans without obtaining a warrant from a judge on the special Foreign Intelligence Surveillance court. Those judges hardly ever refuse to issue such a warrant, and if intelligence officials feel they must intercept a phone conversation or an e-mail immediately, under the law they may do so -- provided only that they obtain a warrant after 72 hours.
It is not enough for Hayden to say, as he has in the past, that the NSA's warrantless taps on Americans are not the result of indiscriminate data-mining but are strictly ''targeted and focused" on terrorist suspects. He must explain why the 72-hour grace period is not sufficient, why he thought the NSA could simply ignore the law, and why he did not ask Bush to ask Congress to change the law if it hindered efforts to prevent another Sept. 11.
A CIA director should be someone who will obey the law, will not turn the powers of his foreign intelligence agency on Americans, and will resist any temptation to tailor the intelligence ''product" to suit the policy preferences of a president, a powerful vice president, or any other policy maker.
Integrity in the leader of the CIA means, above all, having the backbone to resist pressure from the White House to politicize intelligence. Bush and Vice President Dick Cheney are not the only occupants of the White House who have wanted the CIA director to produce intelligence that suit their policy intentions. But they have taken the practice to an extreme.
Indeed, the CIA's reduced role in the past couple of years is traceable less to any failure to foresee Sept. 11 than to the enmity of neoconservatives who have long resented the refusal of agency analysts to verify the neoconservatives' notions about an active nuclear weapons program in Saddam Hussein's Iraq or operational collaboration between Hussein and Al Qaeda. Because of that resentment, many CIA veterans have been nudged into retirement and the president's crucial daily intelligence briefing is no longer given to him by the CIA director but by the national intelligence director, John Negroponte.
Bush has now nominated Negroponte's deputy director of national intelligence to run the CIA. The Senate must not let the agency, which has already lost its roles as chief provider of analysis and coordinator of cooperation with foreign intelligence services, also lose its very independence. The new CIA director should be independent of policy makers who want their intelligence cut to suit the fashion of the day, but must not be independent of laws passed by Congress.