General Hayden as CIA head: Is that legal? (Updated)

(Please see the update section.)

Over on The Next Hurrah, a reader named joejoejoe (not yours truly!) found something interesting in federal law:

This is excerpted from the US Code Title 10, Subtitle A, Part II, Ch. 49:

§ 973 Duties: officers on active duty; performance of civil functions restricted

(a) No officer of an armed force on active duty may accept employment if that employment requires him to be separated from his organization, branch, or unit, or interferes with the performance of his military duties.
(b)
(1) This subsection applies—
(A) to a regular officer of an armed force on the active-duty list (and a regular officer of the Coast Guard on the active duty promotion list);

(2)
(A) Except as otherwise authorized by law, an officer to whom this subsection applies may not hold, or exercise the functions of, a civil office in the Government of the United States—
(i) that is an elective office;
(ii) that requires an appointment by the President by and with the advice and consent of the Senate; or
(iii) that is a position in the Executive Schedule under sections 5312 through 5317 of title 5.

(Emphasis added.) Obviously, CIA Director is a civil office requiring Senate approval.

"But what about Admiral Stansfield Turner?" some of you may be asking. Turner was retired from the military when he took over at CIA. Same story with Vice Admiral William Raborn.

However, two serving officers did once function as DCIs -- at the very beginning. The first Director of the Central Intelligence Agency was Rear Admiral Roscoe H. Hillenkoetter (1947-1950). His successor was General Walter Bedell Smith (1950-1953).

How did they get away with it? I'm not sure. Perhaps Title 10 read quite differently in the years 1947-1953. Anyone out there happen to have an old copy of the U.S. Code...?

At any rate, the history of the law really doesn't really matter. The law is the way it is now.

Note: In recent posts, I've used the term DCI (Director of Central Intelligence) to refer to Goss' old position and Hayden's hoped-for new job. Technically, that title no longer exists. Hayden will be Director of the CIA -- D/CIA. But old habits die hard, and you may yet catch me slipping into the old nomenclature.

UPDATE: Thanks to an anonymous reader who, fortunately, was not too abusive, I have discovered that I may have written too hastily.

Here is the relevant portion of the National Security Act of 1947, the law which gave us the CIA -- and keep in mind that the wording is the same in the Central Intelligence Agency Act of 1949:

SEC. 102. [50 U.S.C. 403] (a) DIRECTOR of CENTRAL INTELLIGENCE. - There is a Director of Central Intelligence who shall be appointed by the President, by and with the advice and consent of the Senate....

Yada yada yada...then we get to this part:

(c) MILITARY STATUS OF DIRECTOR AND DEPUTY DIRECTORS. -(1)(A) Not more than one of the individuals serving in the positions specified in subparagraph (B) may be a commissioned officer of the Armed Forces, whether in active or retired status.

(B) The positions referred to in subparagraph (A) are the following:

(i) The Director of Central Intelligence.

(ii) The Deputy Director of Central Intelligence.

(iii) The Deputy Director of Central Intelligence for Community Management.

(Emphasis added.) So, that seems pretty clear-cut. Title 10 does allow for exceptions "authorized by law," and the 1947 and 1949 laws specify a couple of exceptions. Clearly, I was wrong. But (he said in his best Peter Falk imitation) there is still one small detail...

This section of the National Security Act refers to the position of DCI. Which no longer exists.

As orginally conceived, the DCI did two jobs: He ran the CIA, and he coordinated data from the entire intelligence community. (Lack of coordination had caused problems during World War II.) Now that job belongs to the DNI (Director of National Intelligence), John Negroponte. The Intelligence Reform and Terrorism Prevention Act of 2004 redefined the role of the CIA Director: His sole duty now is to run a civilian agency.

One can argue that the Intelligence Reform and Terrorism Prevention Act of 2004 is sloppily written, because it does not address paragraph (c) above. (That's the bit about military status.) Go here to see how the 2004 act rewrote the 1949 CIA law. You can find the original law here. Read carefully. None of this rewrites or expunges the relevant section of the 1949 act, which is here. The "military exception" refers only to the now-defunct position of DCI.

Am I engaging in legal hair-splitting? No. As is often the case, an argument over details of the law actually forces us to face fundamental and profound questions.

Title 10, which we quoted at the start, reads the way it does for good reason. History teaches us that freedom erodes when the military encroaches on civilian authority.

The "DCI exception," as written in the 1947 and 1949 acts, also existed for good reason. The DCI ran a civilian agency -- the CIA -- yet he was also supposed to handle military intelligence. For that reason, congress struck a balance: Either the DCI or his deputy -- but not both -- could have a military background. This arrangement insured that the overseers of the intelligence community understood how the military worked, yet the military did not run the show.

Since the office of DCI is abolished, and since the 2004 act does not rewrite the key paragraph, the spirit and intent of Title 10 must -- in my view -- impact the choice of CIA Director, who now operates entirely within the civilian sphere. That's why the choice of General Hayden strikes so many people as dangerous. Even Republicans feel queasy.

True, the situation is not so clear-cut as I presumed when I first wrote this post. But I still maintain that Title 10 applies. General Hayden may not legally head the CIA.