By Dafna Linzer and Charles Babington
Washington Post Staff Writers
Friday, May 19, 2006
Gen. Michael V. Hayden, President Bush's choice to lead the CIA, strongly defended the administration's policies on domestic surveillance and the treatment of detainees during his confirmation hearing yesterday, and urged senators to suspend debate about CIA failures and give the agency a chance to rebound.
"It's time to move past what seems to me to be an endless picking apart of the archaeology of every past intelligence success or failure," Hayden said. "CIA officers . . . deserve recognition of their efforts, and they also deserve not to have every action analyzed, second-guessed and criticized on the front pages of the morning paper."
Although accountability is important, he said the "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."
Hayden vowed to remake the CIA into the premier intelligence agency, in part by encouraging officers to take risks and to admit uncertainties even when top officials press for definitive findings. He promised to "speak truth to power," and said that he and the intelligence community had learned the lessons of Iraq.
"While the bulk of the agency's work must, in order to be effective, remain secret, fighting this long war on the terrorists who seek to do us harm requires that the American people and you, their elected representatives, know that the CIA is protecting them effectively and in a way consistent with the core values of our nation," Hayden said.
In more than six hours of testimony before the Senate intelligence committee, Hayden, a four-star Air Force general, offered assurances in some areas, saying he is committed to safeguarding privacy, to working effectively with other intelligence agencies and to improving the CIA's record of accomplishment. He also acknowledged serious disagreements with Defense Secretary Donald H. Rumsfeld and Douglas J. Feith, the former No. 3 official in the Pentagon who is considered an architect of the Iraq invasion.
But Hayden deflected specific questions on sensitive subjects, including interrogation methods involving terrorism detainees and the scope of the National Security Agency's warrantless eavesdropping operation, telling senators he would respond only during the closed-door portion of the hearing.
Hayden, 61, designed the administration's eavesdropping program in the immediate days after the Sept. 11, 2001, attacks, when he ran the National Security Agency. He defended the effort as helpful in the hunt for al-Qaeda though he provided no specific example of the program's success. Under the program, revealed in December, the NSA eavesdropped, without obtaining warrants, on overseas telephone calls by Americans that involved people the government considered terrorism suspects. Earlier this month, USA Today reported that the NSA had obtained phone records of millions of U.S. residents and businesses.
Hayden shed some new light on the program's inception, noting that he was asked by then-CIA Director George J. Tenet to provide a list of NSA's capabilities after the al-Qaeda attacks, even those that Hayden believed would not be permissible under the law. Hayden suggested the scope of the program may go beyond what is publicly known, but he said there was no White House push for eavesdropping on calls in which both parties were in the United States, and that every measure was taken to protect the privacy of Americans whose overseas calls were monitored.
"I understand there are privacy concerns involved in all of this. There's privacy concerns involved in the routine activities of NSA," he said. He said the warrantless eavesdropping was carefully targeted against al-Qaeda suspects.
"No one has said that there has been a targeting decision made that wasn't well-founded in a probable-cause standard," Hayden said.
Some Democrats questioned the claim, noting that thousands of Americans' calls have reportedly been intercepted.
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."