Hayden and his law student relatives have reversed that presumption. He told the senators that only reasonableness, not a warrant, is necessary to intercept our private communications. Hayden said the NSA uses a probable cause standard. But the Supreme Court has consistently declared that a judge must determine whether probable cause exists.

    When confronted with USA Today's report that the NSA is collecting data on tens of millions of Americans, monitoring the calls we make and receive, Hayden refused to confirm or deny it.

    Two of the long-distance companies named in that article, Verizon Communications and BellSouth, both facing lawsuits for invasion of privacy, have denied giving the government these records. AT&T has refused comment.

    Interestingly, Bush issued an executive order on May 5 that allows Director of Intelligence John Negroponte - Michael Hayden's boss - to authorize a company to conceal activities related to "national security." Thus, we cannot trust the denials by Verizon and BellSouth.

    Like Bush's warrantless eavesdropping on calls where one party is abroad, the NSA's massive data collection is illegal.

    Both of these programs violate the Foreign Intelligence Surveillance Act, or FISA, which clearly requires a warrant issued by a FISA court judge.

    It is illegal for the NSA to collect phone numbers from phone companies unless the FISA court authorizes it.

    Telephone records that show what numbers have called a specific telephone are captured by a "trap and trace" device. A "pen register" shows what number a specific telephone has called.

    The law on pen registers and trap and trace devices requires that a court order be obtained either under FISA or Title III, the criminal wiretap law.

    In order to intercept communications, the NSA would have to demonstrate to the court that the person whose calls are being targeted is an agent of a foreign power or that the information is relevant to an ongoing terrorism investigation.

    The Patriot Act allows the FBI to use a national security letter - a kind of administrative subpoena - to obtain these records. But Congress specifically withheld this subpoena power from the NSA, which must convince the FISA court that the information is relevant.

    There is no evidence that NSA has obtained court orders before obtaining the phone records of millions of Americans.

    There is evidence, however, that the FBI is using national security letters to go after journalists critical of the administration. Brian Ross from ABC News told Amy Goodman on Democracy Now! that the government's methods are changing the way he operates. It makes his work "very, very difficult," he said. "And, you know, you sort of have to start thinking, I guess, like some sort of Mafia capo," Ross noted. "You make your phone calls with bags of quarters at pay phones, if you can find them anymore. It's chilling to say the least." So much for a free press.

    Last year, the FBI issued a total of 9,254 national security letters, targeting 3,500 citizens and legal residents.

    In October 2002, while serving as NSA director, Hayden misled Congress about the extent of the NSA's warrantless domestic surveillance. Senator Ron Wyden (D-Ore.) told Hayden at the hearing, "I now have a difficult time with your credibility."

    Earlier this year, Hayden made more misleading statements in an appearance before the National Press Club. He said, "The intrusion into privacy is also limited: only international calls." In fact, the NSA is collecting data on millions of purely domestic calls.

    Hayden ducked several questions, deferring his answers to the closed session that followed the public hearing on Thursday. Senators who hear his secret testimony are forbidden to publicize it. Hayden refused to publicly answer seven questions posed by Senator Dianne Feinstein (D-Calif.) about whether the NSA has sought FISA warrants for pen register and trap and trace devices; whether terror suspects in secret CIA prisons are likely to remain incommunicado until the war on terror ends; whether there is periodic review of what useful intelligence can be gathered by interrogations of terrorists held for years with no contact with Al Qaeda; whether "water boarding," recently classified as torture by the UN, is acceptable; whether the CIA will obey laws and treaties in light of the Detainee Treatment Act; whether Hayden agreed with the CIA inspector general's conclusion that certain interrogation techniques constitute cruel, inhuman or degrading treatment prohibited by the Convention Against Torture; whether Hayden agreed with estimates that Iran is some years away from nuclear weapons capability; and whether the CIA has received new guidance from the Justice Department about acceptable interrogation techniques since the passage of the Detainee Treatment Act.

    Although Hayden pledged objectivity in his opening statement, he let slip his real intention under questioning by Levin. Hayden said the war on terror "is fundamentally a war of ideas. And we have to skew our intelligence to support the other elements of national power as well." Hayden admitted he will skew the intelligence to fit Bush's agenda.

    During the hearing, Wyden nailed it. He asked Hayden, "Where is the independent check, General, the independent check that can be verified on these programs that the newspapers are reporting on?"

    James Madison wrote in 1822: "A popular Government without popular information or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or perhaps both. Knowledge will forever govern ignorance. And a people who mean to be their own Governors must arm themselves with the power which knowledge gives."

    General Michael Hayden as CIA director will see to it that we continue to be kept in the dark about how our liberties are swiftly vanishing. The future of our democracy is at stake. [(Subtitle and/or emphasis added by Wolf Britain.)]

    Marjorie Cohn is a professor at Thomas Jefferson School of Law, President-elect of the National Lawyers Guild, and the US representative to the executive committee of the American Association of Jurists. She writes a weekly column for the great and powerful t r u t h o u t website.

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