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Senators Press CIA Nominee on Legality of Surveillance Efforts

May 18, 2006 at 6:44 PM EDT

JIM LEHRER: The man who would run the CIA. NewsHour congressional correspondent Kwame Holman begins our coverage.

KWAME HOLMAN: Air Force General Michael Hayden could expect two lines of questions from members of the Senate Intelligence Committee. One, what he would do, if confirmed as CIA director, to rebuild the agency’s network of human, on-the-ground intelligence, to repair the damage done by the exodus of experienced analysts from the agency, and to restore agency morale.

The general also knew there would be questions about his tenure as head of the National Security Agency, during which the NSA reportedly expanded its mission of conducting international surveillance to include some domestic communications, such as telephone calls and e-mails.

The secrecy debate made public

Reports of that expanded mission, last December by the New York Times and last week by USA Today, were attributed to unnamed sources, and condemned today by Intelligence Committee Chairman Pat Roberts.

SEN. PAT ROBERTS (R-KS), Chairman of Intelligence Committee: This business of continued leaks, making it possible for terrorists to understand classified information about how we are preventing their attacks, is endangering our country and intelligence sources and methods and lives.

I believe the great majority of American people understand this. I think they get it. Al-Qaida is at war with the United States. Terrorists are planning attacks as we hold this hearing.

Through very effective and highly classified intelligence efforts, we have stopped attacks. The fact we have not had another tragedy like 9/11 is no accident. But today in Congress, and throughout Washington, leaks and misinformation are endangering our efforts. Bin Laden, Zarqawi and their followers must be rejoicing.

We cannot get to the point where we are unilaterally disarming ourselves in the war against terror. If we do, it will be game, set, match, al-Qaida.

KWAME HOLMAN: Michigan Democrat Carl Levin picked up on the chairman's complaint to note that the Bush administration and its supporters have responded to the leaks.

SEN. CARL LEVIN (D), Michigan: Stephen Hadley, the president's national security adviser, after talking about what the USA Today article did not claim, said the following, quote, "It's really about calling records, if you read the story. Who was called when, and how long did they talk?"

"And these are business records that have been held by the courts not to be protected by a right of privacy. And there are a variety of ways in which these records lawfully can be provided to the government. It's hard to find the privacy issue here," Mr. Hadley said.

Majority Leader Frist has publicly stated that the "program is voluntary." And a member of this committee has said, quote, "The president's program uses information collected from phone companies. The phone companies keep their records. They have a record, and it shows what telephone number called what other telephone number."

So the leaks are producing piecemeal disclosures, although the program remains highly classified. Disclosing parts of the program that might be the most palatable and acceptable to the American people, while maintaining secrecy until they're leaked about parts that may be troubling to the public, is not acceptable.

Hayden's goals for the CIA

KWAME HOLMAN: General Hayden did not comment on the leaks at that point. Instead, once sworn in, he delivered a statement designed to assure committee members he was ready to accept the many challenges of running the CIA. For instance, he spoke of recent intelligence reforms which now place the CIA under the authority of John Negroponte, director of national intelligence.

GEN. MICHAEL HAYDEN, CIA Director-Designate: ... it's true the director of central intelligence, the DCI, no longer sits on that seventh floor of the old headquarters building at Langley, as both the head of the intelligence community and the CIA, but it's also true that no other agency has the connective tissue to the other parts of the intelligence community that CIA has.

CIA's role as the community leader in human intelligence, as an enabler for technical access in all-source analysis, in elements of research and development, not to mention its worldwide infrastructure, underscore the interdependence between CIA and the rest of the community.

KWAME HOLMAN: Hayden said his first action would be to improve human intelligence.

GEN. MICHAEL HAYDEN: If confirmed as director, I'd reaffirm CIA's proud culture of risk-taking and excellence, particularly through the increased use of non-traditional operational platforms, a greater focus on the development of language skills, and the inculcation of what I'll call for a shorthand an expeditionary mentality.

We our weight on our front foot, not on our back foot. We need to be field-centric, not headquarters-centric. Now, I strongly believe that the men and women of CIA already want to take risks to collect the intelligence we need to keep America safe.

KWAME HOLMAN: Hayden said the CIA would deliver intelligence analysis independent of outside pressures.

GEN. MICHAEL HAYDEN: I would emphasize simply getting it right more often, but with a tolerance for ambiguity and dissent manifested in a real clarity about our judgments, especially clarity in our confidence in our judgments. We must be transparent in what we know, what we assess to be true, and, frankly, what we just don't know.

KWAME HOLMAN: Finally, General Hayden told members of the committee he would do his best to keep the CIA off the front pages of newspapers.

GEN. MICHAEL HAYDEN: Respectfully, senators, I believe that the American intelligence business has too much become the football in American political discourse.

Over the past few years, the intelligence community and the CIA have taken an inordinate number of hits, some of them fair, many of them not. There have been failures, but there have also been many great successes.

Now, I promise you we'll do our lessons learned studies, and I will keep you, I will keep this committee and your counterpart in the House fully informed on what we learn. But I also believe it's time to move past what seems to me to be an endless picking apart of the archeology of every past intelligence success or failure.

CIA officers, dedicated as they are to serving their country honorably and well, deserve recognition of their efforts, and they also deserve not to have every action analyzed, second-guessed and criticized on the front pages of their morning paper.

Accountability is one thing, and a very valuable thing, and we will have it, but true accountability is not served by inaccurate, harmful or illegal public disclosures.

I will draw a clear line between what we owe the American public, by way of openness, and what must remain secret, in order for us to continue to do our job. CIA needs to get out of the news, as source or subject, and focus on protecting the American people by acquiring secrets and providing high-quality all-source analysis.

The surveillance questions

KWAME HOLMAN: It was Missouri Republican Kit Bond who opened a series of exchanges on the domestic surveillance program, which the NSA began under General Hayden's direction.

SEN. KIT BOND (R), Missouri: ... program, so let's just get this on the record so everybody will understand. Are you a lawyer?


SEN. KIT BOND: Congratulations. Did your lawyers at the NSA tell you the program was legal? Do they still maintain it's legal?

GEN. MICHAEL HAYDEN: Yes, sir, they did, and they still do.

SEN. KIT BOND: How about the Department of Justice lawyers, the White House legal guidance, the program was legal?

GEN. MICHAEL HAYDEN: Yes, sir. All of that was consistent.

SEN. KIT BOND: Did you ever personally believe the program was illegal?


SEN. KIT BOND: Did you believe that your primary responsibility as director of NSA was to execute a program that your NSA lawyers, the Justice Department lawyers, and White House officials all told you was legal, and that you were ordered to carry it out by the president of the United States?

GEN. MICHAEL HAYDEN: Sir, when I had to make this personal decision in early October 2001 -- and it was a personal decision -- the math was pretty straight forward. I could not not do this.

SEN. KIT BOND: I think, for the record, could you tell how this program is controlled to make sure it stays within the boundaries that the president outlined, the Constitution and the statutes require?

GEN. MICHAEL HAYDEN: Yes, sir. And, in fact, the way you've framed it is the way I think about it. There are kind of three pillars that need to be in place for this to be appropriate.

One is it has to be inherently lawful. And, as you suggested, others are far more expert than I. The second is that it's done in a way that it's effective. And the third that it's done just the way it's been authorized.

KWAME HOLMAN: Democrat Levin asked General Hayden to elaborate on his role in establishing the NSA program.

SEN. CARL LEVIN: General, in answer to one of the pre-hearing questions of the committee, you indicated that your role in developing the NSA's program that we've discussed here was to explain what was technically possible in a surveillance program.

And my question is this: After you explained, presumably to the administration, what was technically possible, did you design the specific program or was the specific program designed elsewhere and delivered to you?

GEN. MICHAEL HAYDEN: Senator, it's going to take a minute to explain, but I think you'd want a complete answer on this. Let me give you the narrative as to what was happening at that time.

As I briefed the committee in closed session, I took certain actions right after the attack within my authority as director, and I informed Director Tenet, I informed this committee, and I informed the House committee, as well. And after a discussion with the administration, Director Tenet came back to me and said, "Is there anything more you can do?" And I said, "Not within my current authorities."

And he invited me to come down and talk to the administration about what more could be done. And the three ovals of the Venn diagram, as I described it, were: what was technologically possible; what was operationally relevant; and what would be lawful. And where we would work would be in that space where all three of those ovals intersected.

As I said to Senator Bond, my role was, "Here's technologically possible, and if we can pull that off, here's where I think the operational relevance would be." And there then followed a discussion as to why or how we could make that possible. I was issued an order on the 4th of October that laid out the underpinnings for what I described.

SEN. CARL LEVIN: So you participated in the design of the specific program?

GEN. MICHAEL HAYDEN: Yes, I think that's fair, Senator, yes. I think that's right.

Confronting doubts

KWAME HOLMAN: Going into these hearings, Oregon Democrat Ron Wyden had been the most outspoken critic of General Hayden, particularly as respects keeping the Congress informed on intelligence matters.

SEN. RON WYDEN (D), Oregon: Now, in return for keeping most of the vital work of this committee secret, federal law, the National Security Act of 1947 stipulates -- and I quote here -- you "keep the congressional intelligence committees fully and currently informed of all intelligence activities other than a covert action."

It is with regret that I conclude that you and the Bush administration have not done so. Despite yesterday's last-minute briefing, for years -- years, general -- you and the Bush administration have not kept the committee fully and currently informed of all appropriate intelligence activities.

Until just yesterday, for example, for some time now, only two Democratic senators -- present this morning -- were allowed by the Bush administration to be briefed on all of these matters that are all over our newspapers. These failures, in my view, have put the American people in a difficult spot.

Because the committee hasn't been kept informed, because of these revelations in the newspapers, now we have many of our citizens, law-abiding, patriotic Americans who want to strike the balance between fighting terrorism and protecting liberty. Now they're questioning their government's word.

KWAME HOLMAN: Wyden went on to cite what he charged were several contradictory statements General Hayden had made about NSA wiretapping.

SEN. RON WYDEN: Now, General, having evaluated your words, I now have a difficult time with your credibility. What's to say that, if you're confirmed to head the CIA, we won't go through exactly this kind of drill with you over there?

GEN. MICHAEL HAYDEN: Well, Senator, you're going to have to make a judgment on my character. If anyone in the U.S. government should be empathetic to the dilemma of someone in the position I was in, it should be members of this committee, who have classified knowledge flitting around their left and right lobes every time they go out to make a public statement.

You cannot avoid in your responsibilities talking about Iran, or talking about Iraq, or talking about terrorist surveillance, but you have classified knowledge. And your challenge and your responsibility is to give your audience at that moment the fullest, most complete, most honest rendition you can give them, knowing that you are prevented by law from telling them everything you know.

KWAME HOLMAN: At that point, Chairman Roberts stepped in to defend how Hayden and the Bush administration kept at least selected members of the Congress informed about the NSA's activities.

SEN. PAT ROBERTS: I would like to make it very clear that I was briefed on all 13 occasions, along with the vice chairman and the leadership of the Congress.

You might think we're not independent; I am independent. And I asked very tough questions, and they were answered to my satisfaction by the general and other members of the briefing team. Others did, as well.

It is my recollection, of the 13 briefings with the very independent leadership, in a bipartisan way, after asking tough questions, that nobody ever left the room that did not have an opportunity to ask further questions, and to have the general follow up with an individual briefing, if they so desired.

KWAME HOLMAN: But Roberts' statement didn't satisfy the concerns of his Republican colleague from Maine, Olympia Snowe.

SEN. OLYMPIA SNOWE (R), Maine: I happen to believe that, with the programs in question, that the Congress was really never really consulted or informed in the manner that we could truly perform our oversight role as co-equal branches of government, not to mention -- I happen to believe -- required by law.

And, frankly, if it was good enough yesterday to be briefed as the Senate Intelligence Committee as a full committee and the House Intelligence Committee, then why wasn't it good enough to brief the full committees five years ago?

In this time in the global war on terror, the executive and the legislative branches must work together if we're going to engender confidence, otherwise -- and really and to ensure that the real checks and balances exist. To do otherwise I think breeds corrosive mistrust and distrust; it does not serve the interests of the people.

KWAME HOLMAN: There were other questions for the general. For instance, California Democrat Dianne Feinstein asked about Iran's nuclear capabilities.

SEN. DIANNE FEINSTEIN (D), California: Given the problems with estimates of Iraqi weapons of mass destruction, how can the American public be confident of the accuracy of estimates regarding Iranian plans and programs?

GEN. MICHAEL HAYDEN: The Iraq WMD estimate was essentially worked in a WMD channel. It was absent a regional or cultural context. We are not doing that now.

It was looked at almost square-cornered-wise mathematically, ma'am, in terms of precursor chemicals or not, precursor equipment or not, absent, I think, a sufficient filter through Iraqi society and what we knew of it. We're not doing that on Iran.

KWAME HOLMAN: And it was Georgia Republican Saxby Chambliss who asked the question that came up immediately when President Bush nominated General Hayden.

SEN. SAXBY CHAMBLISS (R), Georgia: And I just simply want to ask the question and give you the opportunity publicly to tell the American people how you're going to go from 35 years of this military intelligence mindset to heading up an agency, the CIA, that has a different role and function, a role primarily of gathering intelligence from a human intelligence standpoint, abroad or outside the United States?

GEN. MICHAEL HAYDEN: I won't be so arrogant to say, you know, my career has guided me to this job, and not at all. But I don't think I'm badly prepared for this.

Running a national agency responsive to the DCI, broad experience in the intelligence community, and answering not tactical military questions throughout my career, but a fair mix of both strategic, operational and tactical.

KWAME HOLMAN: After six-and-a-half hours of public testimony by General Hayden, Chairman Roberts ordered all cameras and recording devices out of the hearing room. The committee then went into a closed session so that members could ask questions that might require answers with classified information.