Lawmakers Reexamine Hayden

Gen. Michael V. Hayden, who took over the National Security Agency in 1999, pitched the eavesdropping program after the Sept. 11, 2001, attacks.
Gen. Michael V. Hayden, who took over the National Security Agency in 1999, pitched the eavesdropping program after the Sept. 11, 2001, attacks. (By Chip Somodevilla -- Getty Images)
By Dafna Linzer and Charles Babington
Washington Post Staff Writers
Thursday, May 18, 2006

In hearings today on President Bush's choice to head the CIA, senators will face an array of questions, loose ends and seeming contradictions about the administration's domestic surveillance techniques. The first mystery they must unravel, however, is the nominee himself, Air Force Gen. Michael V. Hayden, who pitched the eavesdropping program after the Sept. 11, 2001, attacks and has become its most forceful defender.

When Hayden took over the National Security Agency in 1999, he did something many intelligence chiefs would consider unthinkable: He invited groups of journalists to his home at Fort Meade to discuss Fourth Amendment protections against unreasonable searches and seizures. Serving California wine by his living room fireplace, the 61-year-old Pittsburgh native told his guests that he and the NSA were dedicated to protecting Americans' privacy.

Hayden's message and independence made him a favorite on Capitol Hill, where he was viewed as a champion of national security, privacy rights and press freedoms. But recent revelations about the nature of Hayden's highly classified world -- in the Air Force, at the NSA and most recently in the office of the director of national intelligence -- are forcing lawmakers to reexamine a man many of them have known for years.

Their questions are driven largely by what appear to be inconsistencies between the scale of the surveillance program and administration assertions about its limits. In what the White House describes as an effort to thwart potential terrorists, NSA analysts have secretly eavesdropped on overseas calls and intercepted e-mails of thousands of Americans without seeking warrants, and have gathered phone records for perhaps millions of residents.

At each phase of the program, from its inception to its disclosure, Hayden has been at the center of what the president later termed a "terrorist surveillance program." When asked in December to explain the origins of the NSA effort, Bush said Hayden had suggested it immediately after Sept. 11 as a way to "connect the dots" to potential al-Qaeda cells operating in the country.

"He came forward with this program," Bush said. "In other words, it wasn't designed in the White House; it was designed where you expect it to be designed, in the NSA."

Bush and Hayden have defended the program as legal -- the White House has said eavesdropping involved only international communications by people with known links to al-Qaeda and its allies -- and said the attorney general reauthorizes it every 90 days. But twice since its inception, the program was stopped after the chief judge of the Foreign Intelligence Surveillance Court and a senior Justice Department lawyer raised concerns about its legality.

An internal Justice Department investigation tried to determine whether lawyers who authorized the program may have acted improperly. But Attorney General Alberto R. Gonzales suggested yesterday that secrecy concerns shut down the inquiry. The department's Office of Professional Responsibility notified lawmakers last week that it was forced to end its investigation because the office was denied security clearances to access information on the NSA program. Gonzales defended that decision yesterday and suggested that the probe was unnecessary because Justice issued a legal analysis supporting the effort.

"It's a very important program to the United States, and so certain decisions are made in terms of . . . how much information should be shared throughout the federal government," Gonzales told reporters at a news conference. "We don't want to be talking so much about the program that we compromise the effectiveness." Gonzales declined to discuss who denied security clearances to OPR investigators or whether he was consulted on the issue.

Eight senators and House members were aware of the program before it was publicly disclosed last December. But they were not allowed to discuss it with anyone, including their colleagues on the intelligence committees, and it is unclear whether they knew of the legal questions being raised internally.

Yesterday, ahead of Hayden's hearing, the White House briefed additional lawmakers on the program. But much of what they have learned about it has been from news reports, leading them to complain that Hayden, Bush and others have been unwilling to share even basic information so Congress can carry out its oversight role.

"What do I know, I'm just on the intelligence committee," Sen. Ron Wyden (D-Ore.) is fond of saying, ruefully noting that most of what he knows about the surveillance program has come from newspapers.

Hayden's hearing is likely to last one day, and he could be confirmed as the 20th director of the CIA as early as next week. He would take over the agency from Porter J. Goss, a former Republican congressman from Florida, who was forced to resign earlier this month and plans to leave the CIA on May 26.

The hearings will be split into two sessions today: A public, televised session is likely to focus as much on Hayden's vision for repairing an embattled CIA and improving intelligence-gathering on Iran and North Korea, as it is on the White House's handling of the surveillance program. But during the closed-door session, senatorswill be free to discuss the classified surveillance effort in detail, and several said they would push Hayden to explain how a widespread data-mining effort is consistent with privacy protections and how it has prevented attacks.

"Our intelligence activities strictly target al-Qaeda and their known affiliates," Bush said last Thursday in response to reports in USA Today that the NSA was collecting the phone records -- but not listening to the calls -- of millions of U.S. residents and businesses. But the nature of the technology suggests the NSA cast a wide net from the moment it began the enhanced surveillance efforts. The Washington Post reported in February that intelligence officers who have eavesdropped on thousands of Americans in overseas calls, without obtaining warrants, have dismissed nearly all as potential terrorism suspects.

The liberal group Americans United is running an ad on cable television stations that criticizes the programs and urges viewers to "tell the president to go after the terrorists, not innocent Americans."

From what is known about the program, "we're talking about an investigation that examines far more people than there are al-Qaeda suspects," said Patrick Radden Keefe, author of "Chatter: Dispatches From the Secret World of Global Eavesdropping."

Others worry that government officials who collect extensive databases of Americans' phone calls could be tempted to use the information for nefarious purposes. "The Fourth Amendment is not just constitutional law," said Jim Harper, director of information policy studies for the libertarian Cato Institute. "It's also good policy."

Staff writers Thomas E. Ricks and Dan Eggen and researcher Julie Tate contributed to this report.

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