Hayden Urges CIA Critics to Refrain

Sen. Russell Feingold (D-Wis.) asked Hayden "whether people that were not associated with al-Qaeda have been trapped in this sort of thing," Hayden replied that if someone is targeted and then dropped, it "doesn't mean that the first decision was wrong. It just means this was not a lucrative target for communications intelligence."

Senators questioned the nominee closely and at length on the constitutionality of the program, which some legal scholars have challenged.

Hayden said the White House's legal basis is rooted in the opinion that Article II of the Constitution gives the president expansive authorities in a time of war to conduct domestic surveillance. Hayden said he never personally reviewed the legal opinion that was drawn up in support of the program, but "when they came to me and we discussed its lawfulness, our discussion anchored itself on Article II."

He said the administration did not attempt to rest its case on a congressional war resolution passed in the days after the al-Qaeda attacks, as Attorney General Alberto R. Gonzales said after the program was disclosed.

Among other subjects, Hayden said the intelligence community "had to win back the trust of the American people" after failing to accurately assess Iraq's weapons programs, and that it was working hard to avoid such mistakes when judging the threat posed by Iran's nuclear program.

He took particular aim at the intelligence-gathering being done at the Pentagon at the time under Feith, who promoted connections between Saddam Hussein and al-Qaeda. "I wasn't comfortable," Hayden said. "And I wasn't aware of a lot of the activity going on, you know, when it was contemporaneous with running up to the war."

But he sidestepped other questions in the public session, declining to embrace or distance himself from the Bush administration's policies on treatment of al-Qaeda suspects. When Sen. Dianne Feinstein (D-Calif.) asked if he thought "individuals may be secretly detained for decades," Hayden said he would be "happy to answer" in the closed session.

He gave the same answer when Feinstein asked if he condoned the interrogation practice of "waterboarding," in which a detainee is made to feel he is on the verge of drowning. Hayden defended the administration's policy of allowing the CIA to treat detainees more harshly than the military may treat prisoners of war, but said civilian agencies such as the CIA were legally obligated to refrain from "cruel, inhuman and degrading" treatment.

The committee's nine Republicans and seven Democrats signaled that Hayden's confirmation by the Senate is likely. Several congratulated him in advance. "You're going to be one of America's best CIA directors," said Sen. Chuck Hagel (R-Neb.), who has criticized the administration on some intelligence matters.

Last year, Hayden became deputy director for national intelligence, and was nominated to lead the CIA days after Porter J. Goss was forced out of the job earlier this month, ending a turbulent 18-month tenure.

Hayden honored Goss in his opening statement but repeatedly sought to assure the committee, and those inside the agency, that he plans to run the CIA differently.

Hayden, who has often won high marks on the Hill for his detailed briefings, maintained a calm demeanor through the hours of questioning, although he bristled slightly when Sen. Ron Wyden (D-Ore.) said, "General, having evaluated your words, I now have a difficult time with your credibility."

"Well, Senator," Hayden said, "you're going to have to make a judgment on my character."

Wyden said Hayden had used speeches and congressional testimony to suggest that the NSA's surveillance techniques are narrowly focused, a claim that he said does not comport with news accounts. "So with all due respect, General, I can't tell now if you've simply said one thing and done another, or whether you have just parsed your words like a lawyer to intentionally mislead the public," Wyden said.

Hayden, citing his Jan. 23 speech at the National Press Club, said: "I chose my words very carefully because I knew that some day I would be having this conversation."