By Charles Babington
Washington Post Staff Writer
Thursday, May 11, 2006
President Bush's choice to head the CIA told senators yesterday that he would consider retiring from the military and bringing a controversial surveillance program "under federal law," senators and aides said.
Air Force Gen. Michael V. Hayden continued to meet privately with senators, including some on the intelligence committee, which will begin confirmation hearings on his nomination May 18. Several asked Hayden, who once headed the National Security Agency, about the agency's program that eavesdrops on Americans without obtaining warrants.
Bush has said the program wiretaps international communications involving at least one person in the United States when one party is considered a possible terrorism suspect. Some Democratic and Republican lawmakers have asked why the program bypasses the 1978 Foreign Intelligence Surveillance Act, which established a system for seeking warrants from a secret court.
The administration lobbied to avert full-blown congressional investigations into the program earlier this year. However, one pending Senate bill would bring it under the auspices of the FISA court, while another, sponsored by Sen. Mike DeWine (R-Ohio), would allow the warrantless wiretaps to continue only if the administration explains its reasoning to a small group of lawmakers.
After meeting yesterday with Hayden, Sen. Richard J. Durbin (D-Ill.) told reporters that the general said "that with all the publicity that's been surrounding this program, [Hayden] may be closer to the possibility of asking for a change" in its oversight. Durbin paraphrased Hayden as saying, "I'm willing to consider trying to bring the NSA wiretap program, as it exists now, under federal law."
It was unclear whether Hayden meant the FISA law or some other, perhaps new, statute, aides to Durbin said.
White House spokeswoman Dana Perino played down the significance of Hayden's reported remarks. "We've said before we are open to legislative ideas," she said. "We said the DeWine bill is generally sound and something we can work with." Asked about the rival bill to pull the NSA program into FISA's orbit, Perino replied, "We've been having conversations" with its sponsor, Sen. Arlen Specter (R-Pa.).
Several senators said Hayden told them he is open to the possibility of retiring from the Air Force. Some lawmakers, especially in the House, have objected to having an active-duty military officer head the CIA at a time of tensions between the Pentagon and the civilian intelligence community.
Meanwhile yesterday, the Justice Department's Office of Professional Responsibility told Rep. Maurice D. Hinchey (D-N.Y.) that it is ending an investigation into the role department lawyers played in the surveillance program "because OPR has been denied security clearances for access to information about the NSA program."
"Without these clearances, we cannot investigate this matter and therefore have closed our investigation," OPR counsel H. Marshall Jarrett wrote to Hinchey, who had requested the investigation five months ago.