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Former NSA Head Michael Hayden Prepares for Confirmation Hearings to Run the CIA

May 17, 2006 at 6:20 PM EDT

KWAME HOLMAN: Sixty-one-year-old Air Force General Michael Hayden is no stranger to the Senate Intelligence Committee, having testified there dozens of times during his six-year tenure as director of the National Security Agency and more recently in his current role as deputy to National Intelligence Director John Negroponte.

But last week’s USA Today report that the NSA, under Hayden’s direction, built a database of millions of domestic telephone records has prompted some committee members from both parties to cast a skeptical eye at his nomination to be director of central intelligence.

Nebraska Republican Chuck Hagel.

SEN. CHUCK HAGEL (R), Nebraska: There’s no question that his confirmation is going to depend upon the answers he gives regarding activities of NSA.

KWAME HOLMAN: California Democrat Dianne Feinstein.

SEN. DIANNE FEINSTEIN (D), California: I think this is also going to present a growing impediment to the confirmation of General Hayden, and I think that is very regretted.

KWAME HOLMAN: Hayden was nominated by President Bush to replace Porter Goss, who was forced from the CIA post after 19 tumultuous months marked by an exodus of top officials and reports of low morale. The general was making courtesy calls at the Capitol when the USA Today story broke, putting him on the defensive.

GEN. MICHAEL HAYDEN, CIA Director-Designate: Let me say once again, though, that everything that the agency has done has been lawful. It’s been briefed to the appropriate members of Congress, that the only purpose of the agency’s activities is to preserve the security and the liberty of the American people, and I think we’ve done that.

Not a stranger to scrutiny

KWAME HOLMAN: It wasn't the first time Hayden had to defend his work at the NSA. Late last year, the New York Times revealed that President Bush had approved spying by the NSA on suspected terrorists' phone calls to and from the U.S. without court approval. It was a report Hayden tried to dissuade the Times from printing.

Once it was public, Hayden gave a vigorous defense of the program, asserting that one end of any intercepted call always was on foreign soil, never purely domestic surveillance.

GEN. MICHAEL HAYDEN: The intrusion into privacy is also limited, only international calls and only those we have a reasonable basis to believe involve al-Qaida or one of its affiliates.

KWAME HOLMAN: But Intelligence Committee Democrat Ron Wyden of Oregon said he's been unable to reconcile the general's previous statements on the narrow scope of the eavesdropping with the latest reports about the mass collection of domestic telephone records.

SEN. RON WYDEN (D), Oregon: I have substantial questions about his credibility at this point. You look at the fact that he said on a number of occasions that this program involved calls that came from overseas to the United States. That was the focus of the program. No mention of any kind of domestic database.

KWAME HOLMAN: On Wyden's mind and others' tomorrow will be the fact that General Hayden was the principal architect of the administration's plan to intercept calls, implemented in the weeks after 9/11. President Bush has recounted publicly a conversation with Hayden at the time.

GEORGE W. BUSH, President of the United States: After September the 11th, I spoke to a variety of folks on the front line of protecting us. And I said, "Is there anything more we could be doing, given the current laws?" And General Mike Hayden at the NSA said there is.

KWAME HOLMAN: Hayden reportedly told the president, vice president and others that the NSA's enormous technological capabilities could be enhanced by loosening restrictions on the agency's operations inside the United States.

GEORGE W. BUSH: And so he designed a program that will enable us to listen from a known al-Qaida or suspected al-Qaida person and/or affiliate from making a phone call outside the United States in or inside the United States out, with the idea of being able to pick up quickly information for which to be able to respond in this -- in this environment that we're in.

Questions of the program's legality

KWAME HOLMAN: And so, for the first time since 1978, when the Foreign Intelligence Surveillance Act began requiring court approval for all domestic eavesdropping, the NSA began doing it without a warrant.

Members of Congress from both parties expressed their concern that spying on callers within the United States without a warrant violated their constitutional rights.

SEN. ARLEN SPECTER (R), Pennsylvania: On this date of the record, we do not know whether it's constitutional or not.

KWAME HOLMAN: But the Intelligence Committee will have to grapple with the fact that, by its nature, intelligence-gathering often isn't necessarily constitutional or legal, according to former CIA analyst Mark Lowenthal.

MARK LOWENTHAL, Former CIA Analyst: In the Intelligence Community, you do things overseas that are blatantly illegal where you're doing them. You know, sending spies into another country is illegal; plotting to destabilize an unfriendly regime is illegal; listening to other people's communications overseas is illegal.

And so, by the nature of what they do in operations, they're already transgressing somebody's legal limits. We have fairly firm legal limits about what they can do in this country.

Now, several, you know, lawyers from various agencies looked over this program, defined the program in a way that they felt it comported with legality. Now, there's going to be disagreements as to whether or not they're interpreting the law right. But that's part of the -- somebody once said the Constitution is an invitation to struggle; this is part of the invitation to struggle, interpreting the law.

KWAME HOLMAN: Democrat Wyden said he will question Hayden about his interpretation of the law and why the Qwest phone company, one of four reportedly approached, deemed the NSA's surveillance program unlawful and refused to participate.

SEN. RON WYDEN: A number of people in the administration will say that the general's not a lawyer, he was advised by lawyers to handle it, in a specific sort of way. And I will say, for example, if on the phone database issue, if the people at Qwest found this so troubling, what did the general do about it?

KWAME HOLMAN: But some Republicans already have dismissed those concerns. Alabama's Jeff Sessions.

SEN. JEFF SESSIONS (R), Alabama: And I don't think this action is nearly as troublesome as it is being made out here, because they're not taping our phones and getting our conversations. They're merely maintaining these numbers from which they have some system, apparently, to utilize those to match up with international phone calls connected to al-Qaida.

Military vs. civilian

KWAME HOLMAN: Beyond the surveillance issue, some members question whether this is the right time for an active-duty military officer to lead the government's civilian intelligence operation.

Since just after 9/11, Defense Secretary Rumsfeld has been expanding the military's intelligence-gathering operations into territory that traditionally has fallen under the CIA's jurisdiction. House leaders, including Speaker Dennis Hastert, and Georgia Republican Saxby Chambliss in the Senate fear a military man at the CIA would further that trend and damage the agency's credibility.

SEN. SAXBY CHAMBLISS (R), Georgia: I think the fact that he is a part of the military today would be the major problem. Now, just resigning commission and moving on, putting on a pinstripe suit versus an Air Force uniform I don't think makes much difference.

KWAME HOLMAN: But throughout his 30-year intelligence career, General Michael Hayden has proved to be a reformer and an independent thinker, willing to buck the military brass, according to analyst Mark Lowenthal.

MARK LOWENTHAL: In Mike Hayden's case, there's a couple of things that you have to look at. Number one, he's a four-star general. He's not bucking for another promotion. This is it. He's not worried about, you know, padding his career or safeguarding his career.

He understands where he is and why he's being asked to take over this job. It's not to run it for DOD.

And also we know from his past record that, when he's had a position at variance with Secretary Rumsfeld, he has stated it. This was an issue in the hearings creating the DNI legislation. And he said -- he took a position that Rumsfeld wasn't happy with. So he is willing to stand up. So I just don't think it's an issue in this case.

High praises across the aisle

KWAME HOLMAN: Hayden's many trips to Capitol Hill and his highly regarded intelligence briefings have made him a popular figure to members from both parties.

SEN. MITCH MCCONNELL (R), Kentucky: ... that I'm thoroughly impressed by this nomination and have every intention of supporting it.

SEN. HARRY REID (D-NV), Senate Minority Leader: General Hayden has always proven to be person of intellect and a person that's independent. We realize that he has been nominated to this job by the president, but he understands the intelligence world very well.

KWAME HOLMAN: But many Republicans still predict that Democrats, regardless of their personal feelings toward Hayden, will use tomorrow's forum to attack the administration's counterterrorism policies.