Former NSA head and prospective CIA director General Michael Hayden testified yesterday before the Senate Intelligence Committee that when he set up the various secret communications monitoring schemes he "consulted both his lawyers and his conscience when starting the program in October 2001." When asked how the program avoided abusing the civil liberties and privacy of citizens, he replied, "We have a very strict oversight regime." Oversight by whom? A federal court? Congressional committees? Not really. The "oversight" was apparently exercised by the yes-men at the NSA and the Justice Department.
In a therapeutic sense I'm happy for General Hayden that his conscience allows him to sleep well at night, but that's not enough for the rest of us and it shouldn't be for the U.S. Congress. The protection of the rights of U.S. citizens is not supposed to depend on the clean consciences of officials, but on the rule of law. Congress should pass whatever explicit legislation is needed to outlaw such secret surveillance or barring that, at least require that any such schemes pass constitutional muster in a Federal court and be overseen by appropriate full committees in the Senate and the House. General Hayden's clear conscience is simply insufficient.