Hearing on the Nomination of Gen. Michael Hayden to be Director of the CIA

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Thursday, May 18, 2006; 11:41 AM
























ROBERTS: The committee will come to order.

The committee meets today to receive testimony of the president's nomination for the director of the Central Intelligence Agency. Our witness today is the president's nominee, General Michael B. Hayden.

Obviously, given his more than 35 years of service to our country, his tenure as director of the National Security Agency and his current position as the principal deputy director of national intelligence, why, General Hayden is no stranger to this committee and he needs no introduction to our members. In other words, we know him well.

So, General, the committee welcomes you and your guests and your family.

Your nomination comes before the Senate at a crucial and important time, because the Central Intelligence Agency continues to need strong leadership in order to protect our national security.

Now, the public debate in regard to your nomination has been dominated not by your record as a manager or your qualifications, the needs of the CIA, its strengths and its weaknesses and its future, but rather the debate is focused almost entirely on the presidentially authorized activities of another agency.

The National Security Agency's terrorist surveillance program became public last December as a result of a grave breach of national security. A leak allowed our enemy to know that the president had authorized the NSA to intercept the international communications of people reasonably believed to be linked to Al Qaida -- people who have and who are still trying to kill Americans.

At that time, largely uninformed critics rushed to judgment, decrying the program as illegal and unconstitutional. I think in the interim that cooler heads have prevailed and there is now a consensus that we should not only be listening to Al Qaida communications, but we must be listening to them.

Last week, in the wake of another story, those same critics reprised their winter performance, again making denouncements and condemnations on subjects about which they know little or nothing.

Inevitably, all of the media -- all of America, for that matter -- looks to us for comment. More often than not, although very frustrating, we are literally unable to say anything.

ROBERTS: Anyone who has ever served on a congressional Intelligence Committee has struggled with the issue of secrecy. How do we as the elected representatives of the people assure the public that we are fully informed and conducting vigorous oversight of our nation's intelligence activities when we can say virtually nothing about what we know, even though we would like to set the record straight?

The result of this conundrum is that we quite often get accused of simply not doing our job. Such accusations by their very nature are uninformed and therefore are not accurate.

Unfortunately, I have found that ignorance is no impediment for some critics. I fully understand the desire to know; I'm a former newspaper man. But I also appreciate the absolute necessity of keeping some things secret in the interest of national security.

In this regard, I am truly concerned. This business of continued leaks, making it possible for terrorists to understand classified information about how we are preventing their attacks, is endangering our country and intelligence sources and methods and lives.

I believe the great majority of American people understand this. I think they get it.

Al Qaida is at war with the United States. Terrorists are planning attacks as we hold this hearing.

Through very effective and highly classified intelligence efforts, we have stopped attacks.

ROBERTS: The fact we have not had another tragedy like 9/11 is no accident.

But today in Congress and throughout Washington, leaks and misinformation are endangering our efforts. Bin Laden, Zarqawi and their followers must be rejoicing.

We cannot get to the point where we are unilaterally disarming ourselves in the war against terror. If we do, it will be game, set, match Al Qaida.

Remember Khobar Towers, Beirut, the USS Cole, embassy attacks, the two attacks on the World Trade Center and the Pentagon, 9/11, and attacks worldwide and more to come, if our efforts are compromised.

I am a strong supporter of the First Amendment, the Fourth Amendment and civil liberties. But you have no civil liberties if you are dead.

I have been to the NSA and seen how the terrorist surveillance works. I have never seen a program more tightly run and closely scrutinized.

When people asked on September 12th whether we were doing everything in our power to prevent another attack, the answer was no. Now, we are, and we need to keep doing it.

I have often said and I will say again, I trust the American people. They do have a right to know. I do not trust our enemies. Unfortunately, there is no way to inform the public without informing our adversaries.

So how can we ensure that our government is not acting outside the law if we cannot publicly scrutinize its actions? This institution's answer to that question was the creation of this committee.

ROBERTS: We are the people's representatives. We have been entrusted with a solemn responsibility. And each member of this committee takes it very seriously. We may have differences, but we take our obligations and responsibilities very seriously.

Because intelligence activities are necessarily secret, the conduct of our oversight is also secret. In my humble opinion, it doesn't make a whole lot of sense to telegraph to our adversaries how we intend to learn about their capabilities and their intentions.

Oversight of the terrorist surveillance program is necessarily conducted behind closed doors. The Senate Intelligence Committee has been and will continue to exercise its oversight and responsibilities related to the NSA.

Yesterday the entire committee joined our continuing oversight of the program. Each member will have the opportunity to reach their own conclusions. I have no doubt that they will. I encourage that.

As we continue our work, I want to assure the American people and all of my Senate colleagues, we will do our duty.

Now, with that said, I want to applaud the brave men and women of the intelligence community who are implementing this program.

Their single focus and one and only motivation is preventing the next attack. They are not interested in the private affairs of their fellow Americans. They are interested in one thing, finding and stopping terrorists.

America can be proud of them. They deserve our support and our thanks, not our suspicion.

ROBERTS: Since I became chairman of this committee, I have been privy to the details of this effective capability that has stopped, and if allowed to continue will again stop, terrorist attacks.

Now, while I cannot discuss the program's details, I can say without hesitation, I believe that the NSA terrorist surveillance program is legal, it is necessary, and without it the American people would be less safe. Of this I have no doubt.

Finally, I want to remind the public that this open hearing is only part of the confirmation process. When this hearing ends, this open hearing, and the cameras are turned off, the members of this committee will continue to meet with General Hayden.

It would be inaccurate to state, as one national news editorial did today, that due to the classified constraints, members will be limited in how much they can say at this confirmation proceeding.

In the following closed door and secure session, the elected representatives on this committee will have the ability to pursue additional lines of questioning and will be able to fully explore any topic that they wish.

It is my hope that during this open hearing we can at least focus to some degree on General Hayden's record as a manager, his qualifications as a leader, and the future of the Central Intelligence Agency; issues that should be equally as important to the public.

ROBERTS: With that said, again, I welcome you to the committee. I look forward to your testimony and your answers to our members' questions. I note that Vice Chairman Rockefeller sends his deep regrets as he is necessarily absent today. In his absence, I now recognize the distinguished senator from Michigan for the purpose of an opening statement.

Senator Levin?

LEVIN: Mr. Chairman, thank you. Thank you for finding a way also to involve all the members of this committee in the briefings about the surveillance program which there is so much concern and discussion about.

A few of us had been briefed, at least to some extent, partly into the program, but now because of your efforts, Mr. Chairman, and your decision, every member of this committee can now have that capability. And for that I think we should all be grateful and are grateful.

The nomination of a new director for the Central Intelligence Agency comes at a time when the agency is in disarray. Its current director has apparently been forced out and the previous director, George Tenet, left under a cloud after having compromised his own objectivity and independence, and of that his agency, by misusing Iraq intelligence to support the administration's policy agenda.

The next director must right this ship and restore the CIA to its critically important position.

LEVIN: To do so, the highest priority of the new director must be to ensure that intelligence which is provided to the president and to the Congress is, in the words of the new reform law, quote, "timely, objective and independent of political considerations."

That language described the role of the director of national intelligence. But as General Hayden himself has stated, that responsibility applies not only to the DNI and to the director of the CIA personally but to all intelligence produced by the intelligence community.

The need for objective, independent intelligence and analysis is surely as great now as it has ever been. The war on terrorism and the nuclear intentions and capabilities of Iran and North Korea could be life-and-death issues.

Heaven help us if we have more intelligence fiascoes similar to those before the Iraq war, when, in the words of the head of the British intelligence, the U.S. intelligence was being, quote, "fixed around the policy," close quote.

General Hayden has the background and credentials for the position of CIA director. But this job requires more than an impressive resume.

One major question for me is whether General Hayden will restore analytical independence and objectivity at the CIA and speak truth to power or whether he will shape intelligence to support administration policy and mislead Congress and the American people as Director Tenet did.

LEVIN: Another major question is General Hayden's views on a program of electronic surveillance of American citizens, a program which General Hayden administered for a long time. That is the program which has taken up a great deal of the public attention and concern in recent weeks.

The war on terrorism not only requires objective, independent intelligence analysis. It also requires us to strike a thoughtful balance between our liberty and our security.

Over the past six months, we have been engaged in a national debate about NSA's electronic surveillance program and the telephone records of American citizens. That debate has been hobbled because so much about the program remains classified.

Public accounts about it are mainly references by the administration, which are selective and incomplete, or the result of unverifiable leaks.

For example, the administration has repeatedly characterized the electronic surveillance program as applying only to international phone calls and not involving any domestic surveillance.

In January, the president said, quote, "The program focuses on calls coming from outside of the United States, but not domestic calls." In February, the vice president said, "Some of our critics call this a 'domestic surveillance program.' It is not domestic surveillance."

Ambassador Negroponte said, quote, "This is a program that was ordered by the president of the United States with respect to international telephone calls to or from suspected Al Qaida operatives and their affiliates. This was not about domestic surveillance."

Earlier this year, General Hayden appeared before the Press Club where he said of the program, quote, "The intrusion into privacy is also limited: only international calls."

LEVIN: Now, after listening to the administration's characterizations for many months, America woke up last Thursday to the USA Today headline, quote, "NSA Has Massive Database of Americans' Phone Calls," close quote.

The report said, quote, "The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans. The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans, most of whom aren't suspected of any crime," close quote.

The president says we need to know who Al Qaida is calling in America. And we surely do.

But the USA Today article describes a government program where the government keeps a database, a record, of the phone numbers that tens of millions of Americans, with no ties to Al Qaida, are calling.

And the May 12th New York Times article quotes, quote, "one senior government official" who, quote, "confirmed that the NSA had access to records of most telephone calls in the United States, " close quote.

We are not permitted, of course, to publicly assess the accuracy of these reports. But listen for a moment to what people who have been briefed on the program have been able to say publicly.

Stephen Hadley, the president's national security adviser, after talking about what the USA Today article did not claim said the following, quote, "It's really about calling records, if you read the story -- who was called when and how long did they talk. And these are business records that have been held by the courts not to be protected by a right of privacy. And there are a variety of ways in which these records lawfully can be provided to the government. It's hard to find the privacy issue here," Mr. Hadley said.

Majority Leader Frist has publicly stated that the program is voluntary. And a member of this committee has said, quote, "The president's program uses information collected from phone companies. The phone companies keep their records. They have a record. And it shows what telephone number called what other telephone number."

So the leaks are producing piecemeal disclosures, although the program remains highly classified.

LEVIN: Disclosing parts of the program that might be the most palatable and acceptable to the American people, while maintaining secrecy until they're leaked about parts that may be troubling to the public, is not acceptable.

Moreover, when Stephen Hadley, the president's national security adviser, says that it's hard to find a privacy issue here, I can't buy that.

It's not hard to see how Americans could feel that their privacy has been intruded upon if the government has, as USA Today reports, a database of phone numbers calling and being called by tens of millions of Americans who are not suspected of any wrongdoing.

It is hard to see, however, if the leaks about this program are accurate, how the only intrusions into Americans' privacy are related to international phone calls, as General Hayden said at the National Press Club.

And it's certainly not hard to see the potential for abuse and the need for an effective check in law on the government's use of that information.

I welcome General Hayden to this committee.

I thank you, General, for your decades of service to our nation. I look forward to hearing your views.

I also ask that a letter from Senator Rockefeller, sent to General Hayden yesterday, be made part of the record at this point.

And I just am delighted to report to each of us and to all of his colleagues and so many friends that Senator Rockefeller's recovery from his surgery is proceeding well, on schedule. And he is not only following these proceedings but he is participating to the extent that he can without actually being here.

And I thank you again, General, for your service.

And I thank you also, Mr. Chairman.

ROBERTS: Without objection, your request is approved.

ROBERTS: And we are delighted to hear of Senator Rockefeller's progress. And I know that, in talking with him, when he talks about the Atlanta Braves, that he's getting a lot better.


General Hayden, would you please rise and raise your right hand?

Do you, sir, solemnly swear that the testimony you are about to provide to the Select Committee on Intelligence of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God?


ROBERTS: General Hayden, you may proceed.

HAYDEN: Thank you, Chairman Roberts, Senator Levin, members of the committee.

Let me, first of all, thank the members of my family who are here with me here today: my wife, Jeanine, and our daughter, Margaret, my brother, Harry, and our nephew, Tony.

I want to thank them and the other members of the family yet again for agreeing to continue their sacrifices, and they know I can never repay them enough.

ROBERTS: General, if you would have them stand, why, the committee would appreciate it.


ROBERTS: Thank you for being here.

HAYDEN: And, Mr. Chairman, if it's not too much, can I also thank the people of the last agency I headed, National Security Agency?

NSA support while I was there and in the years since has been very much appreciated by me. I also deeply appreciate the care, patriotism and the rule of law that continues to govern the actions of the people at the National Security Agency.

Mr. Chairman, it's a privilege to be nominated by the president to serve as the director of the Central Intelligence Agency. It's a great responsibility. There's probably no agency more important in preserving our security and our values as a nation than the CIA.

I'm honored and, frankly, more than a little bit humbled to be nominated for this office, especially in light of the many distinguished Americans who have served their before me.

Before I talk about my vision for CIA, I'd like to say a few words about the agency's most recent director, Porter Goss.

Over the span of more than 40 years, Porter Goss has had a distinguished career serving the American people, most recently as director of the CIA, the organization where he started as a young case officer.

As director, Porter fostered a transformation that the agency must continue in the coming years.

HAYDEN: He started a significant expansion of the ranks of case officers and analysts in accord with the president's direction. He consistently pushed for a more aggressive and risk-taking attitude towards collection.

And he spoke from experience as a case officer and as a long-time member and then chairman of the House Permanent Select Committee on Intelligence.

It was Porter who was chairman of the HPSCI, supported and mentored me when I arrived back in Washington as director of NSA in 1999. More importantly, we developed a friendship that continues to this day. So I just want to thank Porter for both his service and his friendship.

CIA is unique among our nation's intelligence agencies. It's the organization that collects our top intelligence from human sources, or high-quality, all-source analysis is developed, where cutting-edge research and development for the nation's security is carried out. And as this committee well knows, these functions are absolutely critical to keeping America safe and strong.

The CIA remains, as Porter Goss has said, the gold standard for many key functions of American intelligence.

HAYDEN: And that's why I believe that the success or failure of this agency will largely define the success or failure of the entire American intelligence community.

The act you passed last year, the Intelligence Reform and Terrorism Prevention Act, gives CIA the opportunity and the responsibility to lead in ensuring the success of the director of national intelligence.

Let me elaborate on that last sentence. The reforms of the last two years have in many ways made CIA's role even more important. Now, it's true, the director of central intelligence, the DCI, no longer sits on that seventh floor of the old headquarters building at Langley as both the head of the intelligence community and the CIA.

But, it's also true that no other agency has the connective tissue to the other parts of the intelligence community that CIA has. The CIA's role as the community leader in human intelligence, as an enabler for technical access, in all-source analysis, in elements of research and development, not to mention its worldwide infrastructure, underscore the interdependence between CIA and the rest of the community.

And although the head of CIA no longer manages the entire intelligence community, the director continues to lead the community in many key respects.

Most notably, the director of CIA is the national HUMINT manager, responsible for leading human intelligence efforts by coordinating and setting standards across the entire community.

HAYDEN: In addition, the agency is -- and will remain -- the principal provider of analysis to the president and his senior advisers. It also leads the community's open-source activities through its open-source center, which is an invaluable effort to inform community analysis and help guide the activities of the rest of the I.C.

In a word, CIA remains, even after the Intelligence Reform Act, central to American intelligence. But this very centrality makes reforming CIA in light of new challenges and new structures an especially delicate and important task.

The agency must be transformed without slowing the high tempo under which it already operates to counter today's threats. CIA must continue to adapt to new intelligence targets, a process under way in large part to the leadership of George Tenet and John McLaughlin and Porter Goss.

And CIA must carefully adjust its operations, analysis and overall focus in relation to the rest of the community because of the new structure, while still keeping its eye on the ball: intelligence targets like proliferation and Iran and North Korea, not to mention the primary focus of disrupting Al Qaida and other terrorists.

The key to success for both the community -- the intelligence community -- and for CIA is an agency that is capable of executing its assigned tasks and cooperative with the rest of the intelligence community.

HAYDEN: CIA must pursue its objectives relentlessly and effectively, while also fitting in seamlessly with an integrated American intelligence community.

Picture CIA's role in the community like a tough player on a football team. Critical, yet part of an integrated whole that must function together if the team is going to win.

And as I've said elsewhere, even top players need to focus on the scoreboard, not on their individual achievements.

Now, Mr. Chairman, let me be more specific about the vision I would have for CIA if I am confirmed.

First, I will begin with the collection of human intelligence. If confirmed as director, I would reaffirm CIA's proud culture of risk taking and excellence, particularly through the increased use of nontraditional operational platforms, a greater focus on the development of language skills, and the inculcation of what I'll call, for shorthand, an expeditionary mentality.

We need our weight on our front foot, not on our back foot. We need to be field-centric, not headquarters-centric.

Now I strongly believe that the men and women of CIA already want to take risks to collect the intelligence we need to keep America safe. I view it as the director's job to ensure that those operators have the right incentives, the right support, the right top cover and the right leadership to take those risks.

My job, frankly, is to set the conditions for success.

HAYDEN: Now, if confirmed, I'd also focus significant attention on my responsibilities as national HUMINT manager.

Now, I've got some experience in this type of role. As director of NSA, I was the national SIGINT manager, the national manager for signals intelligence. And in that role, I often partnered with CIA to enable sensitive collection.

Now, as I did with SIGINT, signals intelligence, as director of NSA, I would use this important new authority, the national HUMINT manager, to enhance the standards of tradecraft in human intelligence collection across the community. CIA's skills in human intelligence collection makes it especially well suited to lead.

As director and as national HUMINT manager, I'd expect more from our human intelligence partners, those in the Department of Defense, the FBI and other agencies: more both in terms of their cooperation with one another and also in terms of the quality of their tradecraft.

Here again, we welcome additional players on the field, but they must work together as a team.

Now, second, and on par with human intelligence collection, CIA must remain the U.S. government's center of excellence for independent, all-source analysis.

If confirmed as director, I would set as a top priority working to reinforce the D.I.'s, the director of intelligence's, tradition of autonomy and objectivity, with a particular focus on developing hard- edged assessments.

HAYDEN: I would emphasize simply getting it right more often.

But with a tolerance for ambiguity and dissent, manifested in a real clarity about our judgments, especially clarity in our confidence in our judgments, we must be transparent in what we know, what we assess to be true and, frankly, what we just don't know.

Red cell alternative analysis, red cell alternative evaluations are a rich source of thought-provoking estimates and they should be an integral part of our analysis.

And -- and I believe this to be very important -- we must also set aside talent and energy to look at the long view and not just be chasing our version of the current news cycle.

Now, in this regard about analysis, I take very seriously the lessons from your joint inquiry with the House Intel Committee, your inquiry into the prewar intelligence on Iraq WMD, the 9/11 Commission, the Silberman-Robb Commission, as well as a whole bunch of internal intelligence community studies on what's worked and what's not worked in the past.

Ultimately, we have to get analysis right. For in the end, it's the analytic product that appears before the president, his senior advisers, military commanders and you.

Let me be very clear. Intelligence works at that nexus of policy making, that nexus between the world as it is and the world we are working to create.

HAYDEN: Now, many things can legitimately shape a policymaker's work, his views and his actions. Intelligence, however, must create the left and right hand boundaries that form the reality within which decisions must be made.

Let me make one final critical point about analysis. When it comes to that phrase we become familiar with, "Speaking truth to power," I will indeed lead CIA analysts by example. I will, as I expect every analyst will, always give our nation's leaders our best analytic judgment.

Now third, beyond CIA's human and analytic activities, CIA science and technology efforts already provide focused, flexible and high quality R&D across the intel spectrum. If I'm confirmed, I'd focus the Directorate of Science and Technology on research and development programs aimed at enhancing CIA core functions, collection and analysis.

I would also work to more tightly integrate the CIA's S&T into broader community efforts to increase payoffs from cooperative and integrated research and development.

Support also matters. As director of NSA, I experienced firsthand the operational costs of outdated and crumbling infrastructure.

Most specifically, I would dramatically upgrade the entire CIA information technology infrastructure to bring it in the line with the expectations we should have in the first decade of the 21st century.

Now in addition to those four areas -- which, I think the committee knows, Mr. Chairman, form the four major directorate out at the agency -- there are two cross-cutting functions on which I would also focus if confirmed.

HAYDEN: To begin, I'd focus significant attention, under the direction of Ambassador Negroponte, the DNI, on the handling of intelligence relationships with foreign partners.

As this committee well knows, these relationships are of the utmost importance for our security, especially in the context of the fight against those terrorists who seek to do us harm.

These sensitive relationships have to be handled with great care and attention, and I would, if confirmed, regard this responsibility as a top priority. International terrorism cannot be defeated without international cooperation. And let me repeat that prevailing in the war on terror is and will remain CIA's primary objective.

For the same reason I'd push for greater information sharing within the United States, among the intelligence community and with other federal, state, local and tribal entities. There are a lot of players out there on this one: the DNI, the program manager for the information sharing environment, the intel community's chief information officer, other agencies like FBI and the Department of Homeland Security.

The CIA has an important role to play in ensuring that intelligence information is shared with those who need it. When I was at NSA, I focused my efforts to make sure that all of our customers had the information they needed to make good decisions.

In fact, my mantra when I was at Fort Meade was that users should have access to information at the earliest possible moment and in the rawest possible form where value from its sharing could actually be obtained. That's exactly the approach I would use if confirmed at CIA.

In my view, both of these initiatives, working with foreign partners and information sharing within the U.S., require that we change our paradigm from one that operates on what I've called a transactional basis of exchange -- they ask; we provide -- in favor of a premise of common knowledge commonly shared, or information access.

HAYDEN: That would entail opening up more data and more databases to other intel community agencies as well as trusted foreign partners, restricting the use of what I think is an overused originator-controlled caveat, and fundamentally embracing more of a risk management approach to the sharing of information.

Finally, Mr. Chairman, everything I've said today matters little without the people, the great men and women of the CIA whom, if confirmed, I would happily join, but also the people of this great nation.

Respectfully, senators, I believe that the American intelligence business has too much become the football in American political discourse. Over the past few years, the intelligence community and the CIA have taken an inordinate number of hits -- some of them fair, many of them not. There have been failures but there have also been many great successes.

Now, I promise you we'll do our lessons learned studies, and I will keep you, I will keep this committee and your counterpart in the House fully informed on what we learn. But I also believe 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.

CIA officers, dedicated as they are to serving their country honorably and well, 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.

Accountability is one thing and a very valuable thing, and we will have it. But true accountability is not served by inaccurate, harmful or illegal public disclosures.

I will draw a clear line between what we owe the American public by way of openness and what must remain secret in order for us to continue to do our job.

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: Internally, I would regard it as a leading part of my job to affirm and strengthen the excellence and pride and the commitment of CIA's workforce.

And in return, I vow that if confirmed, we at CIA would dedicate ourselves to strengthening the American public's confidence and trust in the CIA and reestablishing the agency's social contract with the American people to whom we are ultimately accountable.

The best way to strengthen the trust of the American people is to earn it by obeying the law and by showing what is best about this country.

Now, as we do our work, we're going to have some really difficult choices to make. And I expect that not everyone will agree 100 percent of the time.

But I would redouble our efforts to act consistent with both the law and a broader sense of American ideals. And 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.

I did that at NSA and if confirmed will do that at the Central Intelligence Agency.

In that regard, I view it to be particularly important that the director of CIA have an open and honest relationship with congressional committees such as yours so that the American people will know that their elected representatives are conducting oversight effectively.

I would also look to the members of the committee who have been briefed and who have acknowledged the appropriateness of activities to say so when selected links, accusations and inaccuracies distort the public's picture of legitimate intelligence activities.

HAYDEN: We owe this to the American people and we owe it to the men and women of CIA.

Mr. Chairman, I hope that I've given the members of the committee a sense of where I would lead the agency if I am confirmed.

I thank you for your time. And dare I say I look forward to answering the questions I know the members have.

ROBERTS: I wish to inform the members that we have about two or three minutes left on a vote. We will have intermittent votes throughout the day.

We are going to have a very short recess. I urge members to return as soon as possible, and we will then proceed to questions.

The committee stands in recess subject to call of the chair.


ROBERTS: The committee will come to order.

The committee will now proceed to questions. Each member will be recognized in the order of their arrival. For the first round, each member will be granted 20 minutes. We will continue in open session as long as necessary.

Additionally, for the information of members and the nominee, we will endeavor to take a short lunch break at the appropriate time.

In addition, we are not going to have any further recesses. We will endeavor to keep the committee running. And I know all members have questions to ask and time is of the essence.

General, do you agree to appear before the committee here or in other venues when invited?

HAYDEN: Yes, sir.

ROBERTS: Do you agree to send Central Intelligence Agency officials to appear before the committee and designated staff when invited?

HAYDEN: Absolutely, yes, sir.

ROBERTS: Do you agree to provide documents or any material requested by the committee in order for it to carry out its oversight and its legislative responsibilities?

HAYDEN: Yes, sir.

ROBERTS: Will you ensure that the Central Intelligence Agency provide such material to the committee when requested?

HAYDEN: Yes, sir.

ROBERTS: General, there's an interesting commentary in your opening statement about the endless picking apart of the archaeology of past intelligence failures and that CIA officers deserve not to have every action analyzed, second-guessed and criticized in the newspapers.

And I agree that it is time to look forward, not in the rearview mirror, and I agree that the press is not the place to air these kind of grievances, whether those grievances originate from outside or inside the agency.

But it is important to be clear: Not having your actions second- guessed is something that is earned, not deserved.

ROBERTS: After the Iraq WMD failure, the inquiry that was conducted by this committee and approved with a 17-0 vote, that proved without question we had an egregious intelligence failure, this committee simply cannot intelligence assessments at face value.

We have learned -- and when I say we, I am talking about every member of this committee -- when we have hearings and when we have briefings, we ask the analysts or we ask whoever is testifying: What do you know? What don't you know? What is the difference? And, then, the extra kicker is: What do you think? And we scrub it.

Now, I believe it is necessary for the committee to rigorously examine the CIA's judgments about Iran, about North Korea, about China, about terrorism and proliferation as we work together to ensure there is not another failure like the Iraq WMD failure.

General, the Iraq WMD failure wasn't a failure only because the ultimate assessments were wrong. We both know that you can have a good analytical tradecraft and still get it wrong.

Nobody bats 1.000 in the intelligence world. But the Iraq WMD failure was due in large part to a terribly flawed tradecraft.

General, as CIA director, what steps will you take to improve the agency's analytical tradecraft?

HAYDEN: Senator, as I said in my opening statement, that's up there in the top rung. I mean, ultimately, everything that the CIA or any part of the intel community meets the rest of the world is in its analytic judgments.

HAYDEN: Collection and science and technology support are behind the screen with that analytic judgment. And so it is the pass-fail grade for CIA, for the D.I., for the intelligence community.

We've already begun to do some things, and here I think my role would be to make sure these changes are under way and then to reinforce success. Two or three quickly come to mind. One is something that you've already suggested. And that's almost -- that's vigorous transparency in what we know, what we assess and what we know we don't know; and to say that very, clearly so as not to give a policy-maker, or a military commander, any decision-maker a false confidence.

The second I think is a higher tolerance for ambiguity between ourselves and our customers. Now, this is going to require the customer to have a little higher tolerance for ambiguity as well. He or she is just going to have to be in a little less comfortable place when an analysis comes out that is truly transparent in terms of our confidence and different layers of confidence, levels of confidence and different parts of our judgment.

There's got to be a little more running room, too, for he said/she said inside the analysis; that dissenting views aren't, I guess, abstracted out of the piece; and, you know, we just kind of move it to the next level of abstraction; and underlying disagreements are hidden; and that dissenting views aren't hidden by a footnote or other kind of obfuscations. We really have begun to do that.

In my current job, I get to see the briefing that goes forward every day and there is a difference in its texture and a difference in its tenor.

HAYDEN: As I said before, Senator, that's the pass-fail grade. Everything else is designed to support that final analytic judgment.

ROBERTS: The CIA is clearly working, as you've indicated, to regain the trust of the policy-makers and its customers. And I'm not trying to perjure the dedication and the hard work that our men and women of the CIA do, risking their lives on behalf of our country.

The men and women in the field, I think, are doing an excellent job -- the rank and file.

The agency has made improvements, particularly in analysis. But the best way for the CIA to earn trust is to give analysts across the community the information they need to perform sound analysis and to encourage collectors to take any and all necessary risks so they can collect the needed information.

And I believe these actions are also the best way to restore the CIA's sense of pride: a goal that both you and I and, obviously, folks down at the CIA share.

General, in your assessment, is the CIA taking the risk necessary to get the analysts the intelligence they need to provide policy- makers with sound analysis?

HAYDEN: Senator, that's one of the areas, as I suggested in my opening statement, that I really want to take a very close look at. And I don't know how to answer your question. Is it doing enough? That's going to be some level of discovery learning for me.

But let me tell you what it is I think I do know about this.

HAYDEN: We had the same dilemma at NSA. There's always a risk. And the more transparent you are, the more you may reveal and thereby compromise sources and methods -- the same dynamic at Langley.

At NSA, it's a little easier, maybe, to start pushing against the shoulders of the envelope here and get a little bit more risk- embracing because, as you know, if NSA oversteps and got a little too bold in sharing, at the end of the day, what they lose is a frequency.

If CIA gets a little too bold in sharing, at the end of the day, there could be real personal tragedy involved.

And so, although the approaches will be similar, I do understand that the protection of human sources might be a bit different than the protection of signal intelligence sources.

All that said, Senator, I mean, I think the agency itself would admit that it is among the more conservative elements of the community in terms of sharing information.

There are good reasons for that, as I just suggested. But just as we did at NSA, when we held our premises up to the light, when we looked at things carefully, we found that we actually had a lot more freedom of action than perhaps our rote procedures would suggest.

That's the approach I'd take at the agency. It will be careful, but we'll be moving forward.

ROBERTS: The comment I would make in response to the first question that I asked you is that it appeared to most of us on the committee, certainly to the chairman, that the 2002 national intelligence estimate became more or less of an assumption train, in part based on what was known after the first Gulf War.

ROBERTS: I believe it was David Kay who indicated after the first Gulf War that Saddam Hussein was 18 months away of having a missile delivery capability that was nuclear, obviously within range of Israel. And everybody thought at that particular time and scratched their head, because that estimate was not 18 months, it was much longer than that, and said, "Well, we're certainly not going to let that happen again."

And so, the assumption was, of course we have to err on the side of national security and security of that region.

Now, having said that, most of the other intelligence agencies, if not all, around the world, were on the same assumption train. The inspectors came in, and the inspectors were asked or forced to leave.

Virtually everybody, members of Congress, people in the administration, other intelligence agencies all throughout the world, assumed that Saddam Hussein would reconstitute his weapons of mass destruction. I think he probably thought he had the weapons of mass destruction. Anybody that would go in to see him and tell him he didn't probably wouldn't go out.

I think many in the military thought, different generals, this particular unit of the Republican Guard had the WMD and this did not.

But as we saw upon closer inspection, as the committee worked through very diligently, interviewing over 250 analysts, we found out exactly what you said, that there were dissenting views, that there were caveats. And added together, it did provide a picture that was most troubling. And that's about the nicest way I can put it.

ROBERTS: So what I am asking you, again -- and you've already answered this -- will you put those dissenting views, those caveats, that frank discussion of, "Wait a minute; let's take a closer look," so that they are at least on the assumption train?

I don't know where they would be -- in the middle of the train, front of the train. You might want to put them at the front of the train -- not the caboose. Don't let the caboose go -- so we don't get into this kind of a failure, which we just simply could not afford.

Would you have any comment?

HAYDEN: Yes, sir. I couldn't agree with you more.

And you're right about the analysis. We just took too much for granted. We didn't challenge our basic assumptions.

Now, as you point out, there's historical reasons for that. In a sense, it's understandable. I'm not trying to excuse it. But there is a historical background to it. That should teach us an awful lot about taking assumptions for granted and letting them stand without challenge and without -- well, just simply looking and saying, "Can I put these pieces together in a different way?"

I think we're doing that. If we're not doing it enough, we'll certainly do more of it. That's precisely what it is we have to give to the nation's policy-makers.

Senator, one more thought, though. You know, all of this is shrouded in ambiguity. If these were known facts, you wouldn't be coming to us for them.

And so we'll do our best to tell you what we know and why we think it and where we're doubtful and where we don't know. But I think everyone has to understand the limits of the art here, the limits of the science.

Again, if this were all known, we wouldn't be having the discussion.

ROBERTS: I'm going to add one more question before I turn to Senator Bond. You made the comment in regards to information-sharing.

ROBERTS: Senator Rockefeller and I have been pushing a concept called information access; i.e., if you're into information-sharing, somebody owns it, then they make a decision as to whether they share it or not.

Now I'm not going back to the not-so-thrilling days of yesteryear where we looked at the intelligence community as basically a whole series of stovepipes of information with one agency very difficult to share information with another. And we just can't afford that.

And I think we've made great steps, more especially with the National Counterterrorism Threat Center. But you've indicated some concern in regards to sources, methods, and lives. Could you amplify a little bit on that, because we have been pushing information access -- full access to the entire intelligence community as we work together jointly now to protect America, as opposed to information- sharing.

HAYDEN: Yes, sir. And that's what I was trying to suggest in my opening statement, that we really have -- and I mean this -- on the transaction level: They ask; we respond within the American intelligence community. We're world class. I mean, we really are good at that.

And so when you go out and talk to someone about sharing, they can pull out these statistics about the number of requests and the speed of the response and so on.

And in a different world, that would probably be very satisfying news. But no matter how well you do that, that transactional basis, you're not going to get to the agility we need to fight the current war.

You can't be in an ask/respond mode. That simply will not work.

So we have to move to a world in which there is common information, commonly shared. Now that's a challenge, because there are no full-on tradecraft and sources and methods concerns.

HAYDEN: But I think the line we've got now is -- well, my premise is the line's too conservative and that'll be my attitude if confirmed and if I go to the agency.

ROBERTS: I appreciate that very much.

In the second round, I may touch upon that need for agility, i.e. hot pursuit, given the threats that we face today.

Senator Bond?

BOND: Thank you very much, Mr. Chairman.

And welcome, General Hayden.

There are many questions that should be asked of you about your views on where the CIA goes and your qualifications. But I think there's been enough discussion that perhaps we should clarify a few points based on your previous role with the president's terrorist surveillance program. So let's just get this on the record so everybody will understand.

Are you a lawyer?


HAYDEN: No, sir.

BOND: Congratulations.


Did your lawyers at the NSA tell you the program was legal? Do they still maintain it's legal?

HAYDEN: Yes, sir, they did and they still do.

BOND: How about the Department of Justice lawyers, the White House legal guidance...

HAYDEN: Yes, sir.

BOND: ... the program was legal?

HAYDEN: All that was consistent.

BOND: Did you ever personally believe the program was illegal?

HAYDEN: No, sir.

BOND: Did you believe that your primary responsibility as director of NSA was to execute a program that your NSA lawyers, that Justice Department lawyers and White House officials all told you was legal and that you were ordered to carry it out by the president of the United States?

HAYDEN: Sir, when I had to make this personal decision in early October of 2001, and it was a personal decision, the math was pretty straightforward. I could not, not do this.

BOND: It seems to me that if there are questions that people wish to raise about the legality of the program, or its structure, those would most appropriately be addressed to the attorney general or other representative of the legal staff of the executive branch.

The next question I think is very troubling, because of so many aspersions, assertions, characterizations and mischaracterizations. You addressed at the National Press Club the fact that the president has said this is designed to listen in on terrorist programs coming from overseas.

BOND: This is to intercept Al Qaida communications into or out of the United States.

Could you explain for us the controls that you have to make sure that somebody doesn't listen in on a domestic political opponent or listen in on a neighbor or listen in on a business rival or listen in on the media?

You've explained that, I think. For the record, could you tell how this program is controlled to make sure it stays within the boundaries that the president outlined, the Constitution, the statutes require?

HAYDEN: Yes, sir.

And, in fact, the way you framed it is the way I think about it. There are, kind of, three pillars that need to be in place for this appropriate.

One is it has to be inherently lawful. And as you suggested, others are far more expert than I.

The second is that it's done in a way that it's effective.

And the third, that it's done just the way it's been authorized.

And I think your question deals with that last pillar.

BOND: Right.

HAYDEN: What we did, we have a very strict oversight regime. The phrase we use for the phenomenon you were describing is called targeting.

The targeting decisions are made by the people in the U.S. government most knowledgeable about Al Qaida, Al Qaida communications, Al Qaida's tactics, techniques, procedures.

It's gotten close oversight. It has senior-level review. But it comes out of the expertise of the best folks in the National Security Agency.

I don't make those decisions. The director of SIGINT out there doesn't make those decisions. Those decisions are made at the program level and at the level of our counterterrorism officer.

They're targeting Al Qaida. There is a probable cause standard. Every targeting is documented. There is a literal target folder that explains the rationale and the answers to the questions on a very lengthy checklist as to why this particular number, we believe, to be associated with the enemy.

BOND: And these are reviewed by -- who reviews these; what's the review process?

HAYDEN: There have been several layers of review. There's obviously a management review just internal to the system. The NSA inspector general is well-read into the program and does routine inspections; I mean literally pulling folders, examining the logic train, talking to the analyst to see if the decisions were correct or warranted by the evidence in the folder.

That's also been conducted by the Department of Justice. They've done the same thing. They looked at the folders.

And to the best of my knowledge, the folks out there are batting 1.000. No one has said that there has been a targeting decision made that wasn't well-founded in a probable cause standard.

BOND: Is there a possibility that somebody could sneak in a request for something that isn't an Al Qaida communication?

HAYDEN: I don't know how that could survive in the culture of the National Security Agency, Senator. It's a very disciplined workforce.

What if an analyst, or somebody who is engaged in -- directly engaged at the lowest level decided to pick up some information on somebody who was out of favor, who they didn't like, how would that be caught?

HAYDEN: Senator, actually, I mean, I recognize the sensitivity of the program, what we're talking about here -- but, actually, that would be a problem in any activity of the National Security Agency.

BOND: So this is...


HAYDEN: ... an appropriate target.

BOND: This is not a program -- a problem, that is specific to the present program. Any time you have an NSA...

HAYDEN: Right. And any time you have...


HAYDEN: Of course.

BOND: And the question is: What do you do to make sure that everybody stays within the guidelines?

HAYDEN: The entire agency, its general counsel, its I.G. -- I mean, that's what it's built to do, to do that kind of oversight.

BOND: And what if they get out of line?

HAYDEN: Well, number one, no evidence whatsoever they've gotten out of line in this program.

In the history of the agency, there have been, you know, I'll say a small number of examples like that. Those are detected through normal processes, I.G. inspections and so on, and action is taken.

BOND: I was at the agency, and I saw the extensive oversight. I also heard on early morning radio somebody who had been employed at NSA for 20 or 25 years call in, and he was asked good questions by the morning show hosts. And I believe his reply was, when they asked him why he couldn't do that, he said because he didn't want to spend 10-15 years in prison.

Is this the kind of penalty that would ensue if somebody did that?

HAYDEN: Sir, I can remember the training and continued throughout my six years at the agency, and this training is recurring -- it must happen on a recurring basis for everyone there. And during the training, everyone is reminded, these are criminal, not civil, statutes.

BOND: So what would your response be to the general accusations that tens of millions of Americans are at risk from having their privacy exposed in these communications?

HAYDEN: Senator, the folks at NSA didn't need me to prod them on. But let me tell you what I told them when we launched the program. It was the morning of 6 October in our big conference room. About 80, 90 folks in there. And I was explaining what the president had authorized. And I end up by saying, "And we're going to do exactly what he said and not one photon or one electron more."

And I think that's what we've done.

BOND: You've mentioned briefly about the impact of leaks on this program and other classified programs. What has happened, in your view, to our intelligence capability as a result of the leaks and disclosure of our activities?

HAYDEN: Senator, it's difficult to quantify. I mean, there are so many variables that affect our ability to move against the enemy. But I can't give you a statistic, but I can't help but think that revelations like this have an effect on the enemy.

Now this program will continue to be successful, all right? But there will be an effect here. I mean, you can actually see this -- and now I'm speaking globally, about disclosures of our tactics, techniques, procedures, sources and methods.

It's almost Darwinian. The more we put out there, the more we're going to kill and capture dumb terrorists...

BOND: Because the smart ones will know...

HAYDEN: Yes, sir.

BOND: ... how to avoid it.

I think Porter Goss, in this room, in February he said the damage to our intelligence capability has been very severe. And is that a fact?

HAYDEN: Oh yes, sir. If you're talking to beyond NSA, beyond signals intelligence, there's a whole panoply.

HAYDEN: There is easily documented evidence as to...

BOND: Going back to the NSA, I gather that there are some folks who really would like to see this program shut down. They may be phrasing it in various terms, but I suspect that there are some who say it ought to be shut down.

What would happen to our ability to identify and disrupt a planned Al Qaida attack in the United States were that to happen?

HAYDEN: Sir, my personal view, and the reason I accepted this in October 2001, is my responsibility to help defend the nation. The folks who run this program I think believe, and correctly believe, they make a substantial contribution to the safety of the republic.

I went out to see them at the height of the first fur ball about this. And, you know, they're doing their jobs, but it was a difficult time. But the only emotion they expressed to me was they wanted to be able to continue to do their work. Their fear was not for themselves or they had done anything wrong, but that they wanted to be able to continue to do what it is they had been doing.

Now, that's a better judgment than mine. These are the folks who feel it, who have that tactile sense for what they do and what they affect.

BOND: Let me move on to the things that really should be the focus of this.

HUMINT is obviously the chief responsibility of CIA. You have been a SIGINT man for most of your career. What will be your priorities? How will you adjust to HUMINT? And what areas are the greatest need in our human intelligence-gathering capacities?

HAYDEN: Sir, just one clarification for the record. I've actually been a HUMINTer. I was an attache behind the Iron Curtain for a couple of years during the Cold War, and that's kind of in the center of the lane for human intelligence.

Actually have more HUMINT experience going to CIA than I have SIGINT experience before I arrived at NSA.

Now, with regard to looking forward, two games going on simultaneously, and both equally important. One is inside the agency, you know, dealing with CIA HUMINT, helping it become all that the nation needs it to be. And as I suggested earlier, more nontraditional cover, more nontraditional platforms, more risk-taking.

And, Senator, I need to be honest: This would be reinforcing efforts already under way.

The other game is over here in the broader community. And I think it's singularly significant that Ambassador Negroponte made the director of CIA the national HUMINT manager.

There are other folks out there on the field playing this game -- DOD, the FBI, other agencies -- and both of them are bulking up in terms of their capabilities. This is a real opportunity to do this really well, on a scale we've not been able to do before.

And so I think there's got to be an equal amount of effort in that community role as well.

BOND: Yesterday, at the defense appropriations hearing, Secretary Rumsfeld assured us that there's total, complete working interoperability and cooperation between the Department of Defense and the CIA and other agencies in human intelligence.

Has that been achieved or is that a work in process, a goal toward which we are working? And what do you think really about the relationships between the FBI, NSA, Department of Defense in the clandestine service?

HAYDEN: Yes, sir.

I think it's best described as a process that needs to be continually managed. You've got folks out there, quite legitimately, but for slightly different purposes. They should be using common tradecraft. They should be using common standards. They should be using the same standards to validate a source.

HAYDEN: They should be using the same language and the same formats when they make reports. Those are the things that the national unit manager should ensure.

I know there has been a great deal of comment and concern about recent DOD activity and how it might bump into traditional CIA activity.

I can tell you, in preparation for this, I have asked that question for the folks who were trying to get me ready for the hearing. Frankly, I got a better news story than I had anticipated.

BOND: We are most interested -- this committee is most interested in that. So please, tell us. What's the story?

HAYDEN: They talked about the MOU that had been signed between the DOD and the CIA in terms of how to coordinate and deconflict HUMINT activity. It's actually working. When there have been frictions, it's come about more out of inexperience than malice -- and that we need to continue to move along those lines.

I know this is an important question for the committee, an important for the members of the Senate.

BOND: We will pursue that later on this afternoon.

But can you -- in an unclassified discussion, what's the military desire to expand human intelligence and get into areas of covert action?

To the extent you can discuss it here, what is the proper responsibility between the Department of Defense human intelligence operations and Central Intelligence Agency human intelligence operations?

Is there a bright line?

HAYDEN: Actually, I think that's what it is we're trying to do is to create a bright line.

And I think, maybe, the reality is that what DOD is doing under Title 10 authorities and what CIA does under Title 50, actually where that line should be drawn, they get kind of merged so that the actions are actually on the ground, in reality indistinguishable, even though their are sources of tasking and sources of authority come from different places.

That's where we need to manage this. That's where this needs to be done well.

Let me explain this more in terms of opportunity than of danger, even though, you know, clearly we've got to do this right.

HAYDEN: I think a fair case can be made that in several theaters of war, right now -- Iraq, Afghanistan -- that the CIA has picked up a large burden and done it very well, a burden that is in many times in direct support of U.S. military forces.

To have DOD step up to those kinds of responsibilities doesn't seem to me to be a bad thing. And if that frees up CIA activities to go back toward the more traditional CIA realm of strategic intelligence, there's a happy marriage to be made here, Senator.

BOND: I recently read a book -- a novel -- a book on the CIA's role in Afghanistan. And according to the former CIA man who wrote it, the CIA was the one that did it and did all the important things, and the Department of Defense did not step up at the appropriate time.

Have you had an opportunity to review the general operations of the CIA in Afghanistan and the interaction with the Department of Defense there?

HAYDEN: No, sir, I have not looked at it in detail.

BOND: We'll talk about that later.

Probably the final question: There was some objection within the agency to the DNI sending two dozen CT analysts to the National Counterterrorism Center as part of the lanes in the road.

BOND: Do you think that the objections from within the agency were justified? And to what extent should the NCTC be engaged in the all-source terrorism analysis? To what extent should the CIA do the same?

HAYDEN: Sir, it's a complicated question. But the truth in lending, obviously I agree with you because that's what I was trying to do in my current job as Ambassador Negroponte's deputy.

This is actually what I was trying to refer to in my opening remarks when I talked about, you know, conforming the shape of the CIA to meet the new intelligence structure which you have all legislated, while still sustaining high OPSTEMPO current CIA operations. I mean, that's the dilemma right there.

Briefly, and perhaps in a later round or this afternoon, Senator, we can get into more detail but briefly, here is what I see the challenge is: Right now, in a really good, in a really powerful sense, a lot of the engines of American intelligence are attached to today's very successful operational activities.

And the fact that Director Goss and the president and others can say that some significant percentage -- and it's a big number -- of that organization that attacked us in 2001 has been killed or captured is a product of all of that focus.

But this is a long war. And it's not just going to be won with heat and blast and fragmentation. It is fundamentally a war of ideas. And we have to skew our intelligence to support the other elements of national power as well.

HAYDEN: That's the tough decision: how best to allocate our resources and then apportion it organizationally.

So you keep up this high OPSTEMPO that has Al Qaida on its back foot right now while still underpinning all of the other efforts of the U.S. government that over the long term -- over the long term -- cuts the production rate of those who want to kill us and those who hate us rather than simply dealing with those who already have that view.

BOND: Thank you very much, General.

ROBERTS: Senator Levin?

LEVIN: Thank you, Mr. Chairman.

General, an answer to one of the pre-hearing questions of the committee, you indicated that your role in developing the NSA's program that we've discussed here was to explain what was technically possible in a surveillance program.

And my question is this: After you explained presumably to the administration what was technically possible, did you design the specific program or was the specific program designed elsewhere and delivered to you?

HAYDEN: Senator, it's going to take a minute to explain, but I think you'd want a complete answer on this.

Let me give you the narrative as to what was happening at that time.

As I briefed the committee in closed session, I took certain actions right after the attack within my authority as director and I informed Director Tenet, I informed this committee and I informed the House committee as well.

And after a discussion with the administration, Director Tenet came back to me and said, "Is there anything more you can do?" And I said, "Not within my current authorities." And he invited me to come down and talk to the administration about what more could be done.

HAYDEN: And the three ovals of the Venn diagram as I described it were what was technologically possible, what was operationally relevant, and what would be lawful, and where we would work would be in that space where all there of those ovals intersected.

And as I said to Senator Bond, my role was, "Here's technologically possible, and if we could pull that off, here's what I think the operational relevance would be." And there then followed a discussion as to why or how we could make that possible.

I was issued an order on the 4th of October that laid out the underpinnings for what I described.

LEVIN: So you participated in the design of the specific program?

HAYDEN: Yes, I think that's fair, Senator. Yes. I think that's right.

LEVIN: Now, if press reports are true that phone calls of tens of millions of Americans who are not suspected of anything -- but nonetheless the records are maintained in a government database -- would you not agree that if that press report is accurate, that there is at least a privacy concern there whether or not one concludes that security interests outweigh the privacy concerns?

HAYDEN: Senator, I mean, from the very beginning we knew that this was a serious issue and that the steps we were taking, although convinced of their lawfulness -- we were taking them in a regime that was different from the regime that existed on 10 September.

HAYDEN: I actually told the workforce, not for the special program, but the NSA workforce on the 13th of September -- I gave an address to an empty room, but we beamed it throughout our entire enterprise -- about free peoples always having to decide to balance their security and their liberties, and that we, for our tradition, have always planted our banner way down here on the end of the spectrum toward security.

And then I told the workforce -- and this has actually been quoted elsewhere -- I told the workforce there are going to be a lot of pressures to push that banner down toward security. And our job at NSA was to keep America free by making Americans feel safe again. So this balance between security and liberty was foremost in our mind.

LEVIN: Does that mean your answer to my question is yes?

HAYDEN: Senator, I understand. There are privacy concerns involved in all of this. There's privacy concerns involved in the routine activities of NSA.

LEVIN: Would you say there are privacy concerns involved in this program?

HAYDEN: I can certainly understand why someone would be concerned about this.

LEVIN: But that's not my question, General. It's a direct question.


LEVIN: In your judgment, are there privacy...

HAYDEN: You want me to say yes or no.

LEVIN: I want you to say whatever you believe.

HAYDEN: Yes, sir. Here's what I believe. Clearly the privacy of American citizens is a concern, constantly. And it's a concern in this program, it's a concern in everything we've done.

LEVIN: That's a little different from the Press Club statement where basically you said the only privacy concern is involved in international phone calls.

HAYDEN: No, sir, I don't think it's different. I was very clear in what I said there, I was very careful with my language.

LEVIN: Is that the only privacy concern in this program, international phone calls?

HAYDEN: Senator, I don't know how to answer your question. I've just answered that there are privacy concerns with everything that we do, of course. We always balance privacy and security, and we do it within the law.

LEVIN: The only privacy concern, though, in this program relate to international phone calls?

HAYDEN: Senator, what I was talking about in January at the press club was what -- the program that the president had confirmed. It was the program...

LEVIN: That he had confirmed publicly?

HAYDEN: Yes, sir, that he confirmed publicly. And I said...

LEVIN: Is that the whole program?

HAYDEN: Senator, I'm not at liberty to talk about that in open session.

LEVIN: I'm not asking you what the program is, I'm just simply saying, is what the president described publicly the whole program.

HAYDEN: Senator, all I'm at liberty to say in this session is what I was talking about, and I literally, explicitly said this at the press club, I am talking about the program the president discussed in mid-December.

LEVIN: And you're not able to tell us whether what the president described is the whole program?

HAYDEN: No, sir, not in open session. I am delighted to go into great detail in closed session.

LEVIN: The NSA program that the New York Times on March 14th reported about said that NSA lawyers, while you were the director of the agency, opposed the vice president's efforts to authorize the NSA to, quote, "intercept purely domestic telephone calls." Is that story accurate?

HAYDEN: I could recognize a thin vein of my experience inside the story, but I would not characterize how you described the Times story as being accurate. I can give you a few more notes on that, Senator.

LEVIN: But were there differences between the...


LEVIN: ... NSA and the Vice President's Office about what the desirable scope of this program was?

HAYDEN: No, sir. There were discussions about what we could do. Our intent all along, in my discussions, was to do what it is the program does as described, one end of these calls always being foreign.

And as we went forward, we attempted to make it very clear that that's all we were doing and that's all we were authorized to do.

LEVIN: All right. So there were no differences of opinion between your office -- between the NSA and...

HAYDEN: There were no arguments, no pushback, no "We want to," no "We won't" -- none of that. No, sir.

LEVIN: Thank you, General.

What was the view of NSA lawyers on the argument that was made by the administration that the authorization for use of military force which was passed by the Congress authorized this program? Did your people agree with that?

HAYDEN: I'd ask you to ask them directly for the details.

LEVIN: Do you know whether they...

HAYDEN: No, sir. I'll continue -- there's more to be said.

But when I talked to the NSA lawyers, most of my personal dialogue with them, they were very comfortable with the Article II arguments and the president's inherent authorities.

LEVIN: Does that mean that they were not comfortable with the argument that...

HAYDEN: I wouldn't say that. But when they came to me and we discussed its lawfulness, our discussion anchored itself on Article II.

LEVIN: And they made no comment about the authority which was argued by some coming from the authorization of military force?

HAYDEN: Not strongly, one way or the another. It was Article II.

LEVIN: During the confirmation hearings of Porter Goss, I asked him whether or not he would correct the public statement of a policy- maker if that public statement went beyond the intelligence.

And here's what Mr. Goss said: "If I were confronted with that kind of a hypothetical where I felt that a policy-maker was getting beyond what the intelligence said, I think I would advise the person involved. I do believe that would be a case that would put me into action if I were confirmed. Yes, sir."

Do you agree with Porter Goss?

HAYDEN: Yes, sir, I think that's a pretty good statement.

LEVIN: An independent review for the CIA, conducted by a panel led by Richard Kerr, former deputy director of the CIA, said the following -- and this relates to the intelligence prior to the Iraq war -- "Requests for reporting and analysis of Iraq's links to Al Qaida were steady and heavy in the period leading up to the war, creating significant pressure on the intelligence community to find evidence that supported a connection."

Do you agree with Mr. Kerr?

HAYDEN: Sir, I -- as director of NSA, we did have a series of inquiries about this potential connection between Al Qaida and the Iraqi government. Yes, sir.

LEVIN: Now, prior to the war, the undersecretary of defense for policy, Mr. Feith, established an intelligence analysis cell within his policy office at the Defense Department.

LEVIN: While the intelligence community was consistently dubious about links between Iraq and Al Qaida, Mr. Feith produced an alternative analysis, asserting that there was a strong connection.

Were you comfortable with Mr. Feith's office's approach to intelligence analysis?

HAYDEN: No, sir, I wasn't. I wasn't aware of a lot of the activity going on, you know, when it was contemporaneous with running up to the war. No, sir, I wasn't comfortable.

LEVIN: In our meeting in our office, you indicated -- well, what were you uncomfortable about? Let me...

HAYDEN: Well, there were a couple of things. And thank you for the opportunity to elaborate, because these aren't simple issues.

As I tried to say in my statement, there are a lot of things that animate and inform a policy-maker's judgment, and intelligence is one of them, and, you know, world view, and there are a whole bunch of other things that are very legitimate.

The role of intelligence, I try to say it here by metaphor because it's the best way I can describe it, is you've got to draw the left- and the right-hand boundaries. The tether to your analysis can't be so long, so stretched that it gets out of those left- and right-hand boundaries.

Now, with regard to this particular case, it is possible, Senator, if you want to drill down on an issue and just get laser beam focused, and exhaust every possible -- every possible ounce of evidence, you can build up a pretty strong body of data, right? But you have to know what you're doing, all right?

I got three great kids, but if you tell me go out and find all the bad things they've done, Hayden, I can build you a pretty good dossier, and you'd think they were pretty bad people, because that was I was looking for and that's what I'd build up.

That would be very wrong. That would be inaccurate. That would be misleading.

It's one thing to drill down, and it's legitimate to drill down. And that was a real big and real important question. But at the end of the day, when you draw your analysis, you have to recognize that you've really laser beam focused on one particular data set. And you have to put that factor into the equation before you start drawing macro judgments.

LEVIN: You in my office discussed, I think, a very interesting approach, which is the difference between starting with a conclusion and trying to prove it and instead starting with digging into all the facts and seeing where they take you.

Would you just describe for us that difference and why you feel, I think, that that related to the difference between what intelligence should be and what some people were doing, including that Feith office.

HAYDEN: Yes, sir. And I actually think I prefaced that with both of these are legitimate forms of reasoning, that you've got deductive -- and the product of, you know, 18 years of Catholic education, I know a lot about deductive reasoning here.

HAYDEN: There's an approach to the world in which you begin with, first, principles and then you work your way down the specifics.

And then there's an inductive approach to the world in which you start out there with all the data and work yourself up to general principles. They are both legitimate. But the only one I'm allowed to do is induction.

LEVIN: Allowed to do as an intelligence...

HAYDEN: As an intelligence officer is induction.

And so, now, what happens when induction meets deduction, Senator? Well, that's my left- and right-hand boundaries metaphor.

LEVIN: Now, I believe that you actually placed a disclaimer on NSA reporting relative to any links between Al Qaida and Saddam Hussein. And it was apparently following the repeated inquiries from the Feith office. Would you just tell us what that disclaimer was?

HAYDEN: Yes, sir.

SIGINT neither confirms nor denies -- and let me stop at that point in the sentence so we can stay safely on the side of unclassified.

SIGINT neither confirms nor denies, and then we finished the sentence based upon the question that was asked. And then we provided the data, sir.

LEVIN: I think that you've commented on this before and I may have missed it and, if so, you can just rely on your previous comment.

But there's been press reports that you had some disagreements with Secretary Rumsfeld and Undersecretary Cambone with respect to the reform legislation that we were looking at relating to DNI and other intelligence-related matters.

LEVIN: Can you tell us whether or not that is accurate; there were disagreements between you and the defense secretary? Because some people say you're just going to be the instrument of the defense secretary. And if those reports are right, this would be an example where you disagree with the defense secretary, who -- after all, you wear a uniform and he is the secretary of defense. Are those reports accurate?

HAYDEN: Sir, let me recharacterize them.

The secretary and I did discuss this. I think it's what diplomats would call that frank and wide-ranging exchange of views. He treated me with respect.

A couple of footnotes just to put some texture to this. I then testified in closed session to the HPSCI on different aspects of the pending legislation. It was unclassified testimony, even though the session was closed.

DOD put my testimony on their Web site. NSA didn't. And so that to me was a pretty telling step, that this was an open exchange of views.

It's been a little bit mischaracterized, too. I did not say: Move those big three letter muscular agencies outside of DOD. My solution was something like the founding fathers: enumerated powers. Don't get bollixed around on writing a theory of federalism. Just write down what you what the federal government to do.

My view was you needed to write down what authorities the DNI had over NSA, NGA and NRO. The fact that they stayed inside the Department of Defense was actually pretty uninteresting -- as long as you had these enumerated powers that Ambassador Negroponte now has: money, tasking, policy, personnel, classification.

LEVIN: Is it fair to say that on some of those issues there were differences between you and Secretary Rumsfeld?

HAYDEN: Yes, sir.

LEVIN: General, there's been a great deal of debate over the treatment of detainees. Do we have one set of rules now that governs the interrogation of detainees, regardless of who is doing the interrogating and regardless of where the interrogations take place.

HAYDEN: Senator, I'll go into more detail on this this afternoon. But I do have some things I'd like to say in open session.

Obviously, we're going to follow the law, we're going to respect all of America's international responsibilities.

In the Detainee Treatment Act, the language is quite clear. It talks about all prisoners of war under the control of the Department of Defense being handled in a way consistent with the Army Field Manual, and then a separate section of the law that requires all agencies of the U.S. government to handle detainees wherever they may be located in a way that is not cruel, inhumane or degrading.

And that's the formula that we will follow.

LEVIN: And the CIA is bound by that formula?

HAYDEN: All agencies of the U.S. government are bound by that formula. Yes, sir.

LEVIN: Then by definition...

HAYDEN: Yes, sir. By definition, any agency.

LEVIN: ... the CIA is included in that?

HAYDEN: Yes, sir.

LEVIN: And so that means -- or let me ask you, rather than putting words in your mouth -- does that mean that the CIA and its personnel and contractors are required to comply at all times in all locations in the same manner as military personnel with the following laws or treaties: A, the Geneva Conventions?

HAYDEN: Senator, again, let me refer you to the language in the Detainee Treatment Act, which actually does make a distinction between prisoners of war under the effective control of the Department of Defense, and the second broader description that applies throughout the rest of the government about cruel, inhuman and degrading.

LEVIN: Are you unable, then, to answer that question?

HAYDEN: No, sir, I'm not.

LEVIN: Then what about the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment?

HAYDEN: Yes, sir. All parts, all agencies of the U.S. government will respect our international obligations.

LEVIN: Including that one?

HAYDEN: Yes, sir.

LEVIN: The Detainee Treatment Act of 2005 you just described?

HAYDEN: Right. Yes, sir. Absolutely consistent with that.

Sir, can I put a footnote on the previous one?

LEVIN: Sure.

HAYDEN: Obviously, with the reservations that have been stipulated by the U.S. government in the ratification of that treaty.

LEVIN: Finally, the Army Field Manual on Intelligence Interrogation?

HAYDEN: The Army Field Manual, as the Detainee Treatment Act clearly points out, specifically applies to prisoners under the effective control of the Department of Defense.

LEVIN: And therefore the CIA, you do not believe, is bound by that language?

HAYDEN: Again, the legislation does not explicitly or implicitly, I believe, bind anyone beyond the Department of Defense, Senator.

LEVIN: My time is up. Thank you very much.

HAYDEN: Thank you, Senator.

ROBERTS: Senator DeWine?

DEWINE: Mr. Chairman, thank you very much.

General, welcome.

HAYDEN: Thank you, sir.

DEWINE: Good to be with you today.

General, in 2002 the Senate and House issued a report on its joint inquiry into the intelligence community's activities before and after the terrorist attacks of September 11.

DEWINE: In that report, I had additional comments to the report. And I raised several issues that I believe, frankly, are still valid today. And I'd like to spend some time talking about those comments.

I want to ask you whether, as director of the CIA, you have plans to address them.

What I wrote in my additional comments -- what I wrote in those comments and what I still believe to be true today is that we are facing a broken corporate culture at the CIA.

Too many of our clandestine officers work under official cover, which is of limited use today in getting close to organizations like Al Qaida.

The CIA's directorate of operations has struggled to transform itself after the Cold War, including taking better advantage of non- official cover or NOC operations.

Often this is because the tradecraft required to support non- official cover operations is so much more difficult and elaborate than what it is required for official cover.

To the extent that the directorate of operations is engaging in non-official cover operations, these have been damaged, in my opinion, by halfhearted operational security measures and underutilization by CIA's management.

I believe that, to truly advance our intelligence-collection capabilities against the hard targets like terrorist groups, proliferation networks and rogue states, we need to make smarter and better use of non-official cover capabilities.

It may be that, to do this, we need to put these kinds of operations simply outside of the directorate of operations.

General, you're a former director of NSA. You've spent, now, a year as DNI's principal deputy and you are before us today to be confirmed as the next director of CIA.

DEWINE: You certainly know the issues as well as any person does.

I'd like to ask you a few questions. First, do you agree that we could make still better use of non-official cover operations? Do you agree that we need to be more creative and risk-taking in how we construct and use non-official cover?

And am I right to be concerned that non-official cover operations have not been given the resources and attention that they need to be given to truly be successful?

Are you prepared to give NOC operations the support and resources they need to truly succeed, even if that means further separation and perhaps -- perhaps, General -- even putting them into a new agency, separate from the mainstream of the director of operations?

HAYDEN: Senator, I remember your language in the 2002 report.

DEWINE: I'm glad you do. Very few people do. But I appreciate you do.

HAYDEN: Yes, sir.

On your first two questions, on the value of it and the need to invest more in it, absolutely yes on both accounts.

I think the record will show that the agency has done that. I take your point, and that's a challenge to the agency.

Clearly they have not done that third step, what you suggested. And you essentially I think concluded that the culture of the agency was such that this baby would be strangled in the crib by the traditional way of doing business under embassy cover.

I had to go find that out, because clearly we've not done what you suggested might be a course of action, which is a separate entity, a separate agency that I think according to your language would actually draw in non-official cover folks from beyond the NSA or beyond CIA into this new structure.

HAYDEN: That, clearly, has not been done.

Here's the dilemma -- we faced it with creating the National Security Branch inside the FBI; it's the same question: Can you do something that new, that different inside the existing culture or do you just have to make this clean break, which I think you'd admit would be disruptive? But are the facts such that you have to make that clean break?

Clearly, the folks who preceded me there haven't made that decision yet. Senator, I need to find out how well we're doing and come back and tell you.

DEWINE: General, I think you framed the issue perfectly. And I appreciate your response.

We trust, when you're in there, you're going to make that decision one way or the other. Because that is the question, whether it can be done that way or it has to be done and by breaking the mold and done an entirely different way. But it has to be done.

HAYDEN: Yes, sir.

DEWINE: And we have to move and we have to move quickly.

HAYDEN: That's right.

DEWINE: And so you have to be the agent of change. You have to move. You have to break the culture one way or the other.

In that light, let me ask a question. A lot has been written in the press about your plans to have Steve Kappas serve as your deputy director at the CIA.

Mr. Kappas, by all accounts, did a great job in the Directorate of Operations. But his successes there are really in the traditional mold. He was successful in working under official cover at running and managing traditional operations.

DEWINE: He was successful as a member and a leader of the traditional corporate culture at the CIA.

What does it tell us that you're putting him in this position? And can he move this agency or help you move this agency into new areas?

HAYDEN: Yes, sir.

I need to be careful here not to be presumptuous on...

DEWINE: We understand...

HAYDEN: ... confirmation and so on.

DEWINE: We understand.

HAYDEN: And I know Ambassador Negroponte did mention Steve's name at a press opportunity a week or so ago.

I know Steve pretty well. I have the highest regard for him. When I did the Rolodex check around the community about Steve when I first became aware that I may be coming to this job, which was not too long ago, Senator, they're almost universally positive. This is a guy who knows the business.

I don't know enough of Steve's personal history to refute some of your concerns, but let me offer a couple of additional thoughts, Senator.

DEWINE: Yes. And, you know, I'm very complimentary of him.

HAYDEN: I know, I know.

DEWINE: I mean, you know, you look at someone's background and you say, "Where have been his assets? And where are his strengths?" And it doesn't mean he can't move in a new direction.

HAYDEN: Right.

And let me tell you my thought process on that.

I did this at NSA. At NSA, I brought back a retiree, Bill Black. And I brought Bill back as a change agent. Imagine the antibody, Senator, for somebody like me.

HAYDEN: I mean, the phrase -- I don't know what it is at CIA, but the phrase at NSA when describing the guy in the eighth floor office is "the current director," all right?


You get a lot more authority when the workforce doesn't think it's amateur hour on the top floor. You get a lot more authority when you've got somebody welded to your hip whom everybody arguably respects as someone who knows the business.

My sense is, with someone like Steve at my side, the ability to make hard turns is increased, not decreased.

DEWINE: I respect your answer.

Let me ask you another question in this regard before I move on.

In your written statement, you talk about expecting more from HUMINT collectors at DOD and the FBI. But I don't think I saw in the written statement any mention about the CIA itself. I think you've already answered this, but I want to make sure it's on the record. Do you also expect more from the director of operations?

HAYDEN: Absolutely. I actually parsed it into two boxes in the statement, Senator.

One is internal: The CIA's got to actually get bigger and do more and do better. But there's also that other role where CIA -- the director of CIA has now been given responsibility for human intelligence across the government.

DEWINE: General, let's turn to the question about access of information.

Another concern I wrote about in 2002, and which I still have concern about, is the need to improve information access for analysts throughout the entire intelligence community. Information access -- that is making sure that the analysts across the community get access to all that data that they are clear to see.

DEWINE: It's really been a major focus of the chairman, a major focus of this committee.

In 2002, in my comments, I wrote that we needed to look at ways to do this, such as by using technology like multilevel security capabilities.

I believe we need to develop systems that allow analysts to get to information quickly, easily and with the confidence that they are seeing everything that they are permitted to see.

Technology should not be the obstacle to achieving this. And we have the technology today.

For example, the National Intelligence Center in Dayton, Ohio, has developed on its own, over the past few years, a multilevel access system called SAVANT which is used by their all-source analysts, analysts who hold different level of clearance, to gain appropriate access to information of varying classification levels in different databases.

NASIC develops their software with investments of a few million dollars. They developed their systems themselves and they did this in a short period of time so we would know that this type of technology is really feasible, we know that it can be done.

If you compare what NASIC has done with the situation at the National Counter-terrorism Center, it's a little scary. Our chairman likes to point out that when he visits the National Counter-Terrorism Center, he sees sitting under the desks of each of the analysts an amazing collection of eight or nine different computers, each with different connections back to the 28 different networks our intelligence community maintains.

The chairman calls this the baling wire approach to bringing together intelligence data. To me, it's more like we have duct-taped our systems together. Surely we can do better than this.

But the obstacle, I think, here is policy. Intelligence community policies continue to work against information access and protect more parochial interests of various agencies in the community, such as the CIA and NSA.

I saw that you talked about this issue in your written statement. I appreciate that. You wrote that you would strongly push for greater information-sharing.

I saw you cited some of your own work at NSA as proof of your commitment to this goal. So let me ask you if you could talk for a moment, in the time I have remaining, about your commitment to information access.

You are, of course, the former director NSA. You're about to be the next director of CIA.

These agencies, quite candidly, I don't believe, have a great record when it comes to implementing information access.

DEWINE: Now you're doing better, but I think we have a ways to go.

Talk to me a little bit about what NASIC has done, the SAVANT program. Where can the CIA go in this area? How can we change the thinking at the CIA? The technology, I think, is clearly there.

HAYDEN: Senator, you're right, it's not a question of technology. The impediments are by and large policy.

You're got to make sure that technology works, and you're got to hold it to a standard, and it's got to perform at the standard. But fundamentally these are questions of policy.

In the current post, with the DNI, we've actually taken some steps forward in this regard, and perhaps this afternoon I can elaborate on that a bit as to some things we have done.

But I can tell you in open session, you just have to will it. You're not going to get everyone saying, "Oh, yeah, this is good, and it's OK." You're not going to get everyone to agree.

In many ways, you just have to make the decision and move forward. And we've done that on two or three things I'd really be happy to share with you this afternoon.

Now, I need to be careful. As I said earlier, human intelligence sources are a bit more fragile -- I mean that literally -- than other kinds of sources, and that has to be respected.

But as we did at NSA, I think that the way ahead is, you hold all the premises up to the light.

Senator, there was an instance in NSA when we were trying to go forward and do something and someone said, "You can't do that. There are several policies against it."

And it took me a while getting those kinds of briefings to then say, "Whose policies?" They were mine. They were under my control. So they were changeable.

HAYDEN: They weren't, you know, handed down to us from Mount Sinai.

DEWINE: General, I appreciate your answer.

Just one final comment before I turn it back to the chairman.

This committee has spent a lot of time looking at what happened after September 11th. We've looked at a lot of problems and the challenges of the intelligence community.

It seems to me one of the biggest challenges is to make sure that every consumer, every person who needs to know, every analyst who needs to know information, gets that information in a timely manner.

It's so simple to state, but it's so hard, many times, to implement. And your dedication to making sure that that happens and we change the culture, we drive through that culture -- the technology is there, we just simply have to do it.

HAYDEN: Yes, sir.

DEWINE: I appreciate it. Thank you very much.

Thanks, Mr. Chairman.

ROBERTS: Senator Wyden?

WYDEN: Thank you, Mr. Chairman.

General, good morning...

HAYDEN: Good morning, Senator.

WYDEN: ... to you and your family.

And, Mrs. Hayden, you'll be interested to know, your husband went into considerable detail about how much you two loved to go to those Steelers games together...


... so I know you all are very devoted to family, and we're glad you're here.

General, like millions of Americans, I deeply respect the men and women who wear the uniform of the United States. Every day, our military risks life and limb to protect our freedom, demonstrating qualities like accepting personal responsibility. They are America at its best.

Here on the Senate Intelligence Committee, I've supported our national security in a time of war by voting to give you the tools needed to relentlessly fight the terrorists while maintaining vigilance over the rights of our citizens.

Those votes I've cast fund a number of top secret programs that have to be kept under wraps because America cannot vanquish its enemies by telegraphing our punches.

WYDEN: Now, in return for keeping most of the vital work of this committee secret, federal law, the National Security Act of 1947 stipulates -- and I quote here -- you "keep the Congressional Intelligence Committees fully and currently informed of all intelligence activities other than a covert action."

It is with regret that I conclude that you and the Bush administration have not done so.

Despite yesterday's last-minute briefing, for years -- years, General -- you and the Bush administration have not kept the committee fully and currently informed of all appropriate intelligence activities.

Until just yesterday, for example, for some time now only two Democratic senators present this morning were allowed by the Bush administration to be briefed on all these matters that are all over our newspapers.

These failures in my view have put the American people in a difficult spot. Because the committee hasn't been kept informed, because of these revelations in the newspapers, now we have many of our citizens -- law-abiding, patriotic Americans who want to strike the balance between fighting terrorism and protecting liberty, now they're questioning their government's word.

So let me turn to my questions.

In your opening statement, you said that under your leadership, the CIA would act according to American values. So we're not talking about a law here, but we're talking about values.

For me, values are about following the law and doing what you say you are going to do.

WYDEN: When it comes to values, credibility is at the top of my list.

Now, General, having evaluated your words, I now have a difficult time with your credibility. And let me be specific.

On the wiretapping program in 2001, you were told by the president's lawyers that you had authority to listen to Americans' phone calls. But a year later, in 2002, you testified that you had no authority to listen to Americans' phone calls in the United States unless you had enough evidence for a warrant. But you have since admitted you were wiretapping Americans.

Let me give you another example. After you admitted you were wiretapping Americans, you said on six separate occasions the program was limited to domestic-to-international calls. Now the press is reporting that the NSA has amassed this huge database -- that we've been discussing today -- of domestic calls.

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.

What's to say that if you're confirmed to head the CIA we won't go through exactly this kind of drill with you over there?

HAYDEN: Well, Senator, you're going to have to make a judgment on my character.

HAYDEN: Let me talk a little bit about the incidents that you brought up.

The first one, I believe, is testimony in front of the combined HPSCI and SSCI, the joint inquiry commission on the attacks of 9/11. And in my prepared remarks, I was trying to be very careful because we were talking not in closed session in front of the whole committee, but in front of the whole committee in totally open session.

I believe -- and I haven't looked at those remarks for a couple of months now -- I believe I began them by saying that I had been forthcoming in closed sessions with the committee.

Now, you may quibble that I've been forthcoming in closed sessions with some of my information with the leadership of the committee or with the entire committee, but that the language of the statute you referred to earlier does allow for limited briefings in certain circumstances. And I know there'll probably be questions on what are those legitimate circumstances?

If anyone in the U.S. government should be empathetic to the dilemma of someone in the position I was in, it should be members of this committee who have classified knowledge floating around their left and right lobes every time they go out to make a public statement.

You cannot avoid in your responsibilities talking about Iran, or talking about Iraq, or talking about terrorist surveillance. But you have classified knowledge. And your challenge and your responsibility is to give your audience at that moment the fullest, most complete, most honest rendition you can give them, knowing that you are prevented by law from telling them everything you know.

HAYDEN: That's what I did while I was speaking in front of the National Press Club. I chose my words very carefully because I knew that some day I would be having this conversations.

I chose my words very carefully because I wanted to be honest with the people I was addressing. And it wasn't that handful of folks downtown. It was looking into the cameras and talking to the American people.

I bounded my remarks by the program that the president has described in his December radio address. It was the program that was being publicly discussed.

And the key points in my remarks -- I pointedly and consciously down-shifted the language I was using.

When I was talking about a drift net over Lackawanna or Fremont or other cities, I switched from the word "communications" to the much more specific and unarguably accurate "conversations."

And I went on in the speech and later in my question-and-answer period to say: We do not use the content of communications to decide which communications we want to study the content of.

In other words, when we looked at the content of a communication, everything between "hello" and "goodbye," we had already established a probable cause standard -- to a probable cause standard, that we had reason to believe that that communication, one or both of those communicants were associated with Al Qaida.

HAYDEN: Senator, I was as full and open as I possibly could be.

In addition, my natural instincts, which I think all of you have seen, is to be as full and open as law and policy allow when I'm talking to you as well.

Anyone who's gotten a briefing on the terrorist surveillance program from me -- and up until yesterday that was everybody who had ever gotten a briefing on the terrorist surveillance program -- I would be shocked if they thought I was hiding anything.

There was only one purpose in my briefing, and that was to make sure that everyone who was getting that briefing fully understood what NSA was doing.

Now, Senator, I know you and other members of the committee have concerns that we've gone from two to five to seven to the full committee. I understand that. I told you in my opening remarks what my instincts were in terms of briefing the full committee. There's a very, very crude airman's metaphor that talks about, if you want people at the crash, you got to put them on the manifest.

WYDEN: General, let me...

HAYDEN: Let me make just one more remark, OK?

And so my personal commitment is to be as open as possible. I cannot commit, Senator, to resolving the inherent stresses between Article I and Article II of the Constitution that were intentionally put in there by the founding fathers.

WYDEN: General, I'm focused just on the public record. You know, I'm going to go out and try now to dissect what you have just said and compare it to those other...

HAYDEN: Yes, sir.

WYDEN: But let me give you a very quick example.


WYDEN: The Trailblazer program: As you know, I'm committed to being careful about discussing this in public -- sensitive information, technology program. But as you know, I asked you about this in open session...

HAYDEN: Yes, sir.

WYDEN: ... when you were up to be deputy DNI.

I went back and looked at the record, and you said, "Senator Wyden, we are overachieving on that program." Those were your words.

I opened up the Newsweek magazine this week. And there are quoted -- again, just out of a news report -- reports that there's $1 billion worth of software laying around, people who have decades of experience saying -- I think their quote was "a complete and abject failure."

And so I ask you again -- I'm concerned about a pattern where you say one thing in these open kind of hearings, and then I and others have got to get a good clipping service to try to figure out what independent people are saying and then to reconcile them.

So were you accurate when you came, in an open session, to say that the Trailblazer program was overachieving?

HAYDEN: Senator, the open session you're referring to, was that last year during the confirmation?


HAYDEN: OK, thanks.

Senator, I will promise you, I will go back and read my words. But what my memory tells me I said was that a lot of the failure in the Trailblazer program was in the fact we were trying to overachieve, we were throwing deep and we should have been throwing short passes -- if you want to use a metaphor -- and that a lot of the failure was we were trying to do too much all at once.

We should have been less grandiose, not gone for moon shots and been tighter in, more specific, looking at concrete results, closer in rather than overachieving by reaching too far.

My memory is that's what I was describing. I can't ever think of my saying we were overachieving in Trailblazer. That was a tough program, Senator.

WYDEN: Those were your words, General. And again, I question using your word -- open session -- whether we have gotten, on that particular program, the level of forthcoming statements that is warranted.

WYDEN: And to me, this is a pattern and something that has made me ask these questions about credibility.

Now, to move on to the next area, for 200 years, our government has operated on the proposition that the people must have some sort of independent check on the government. Americans want to trust their leaders, but they also want checks and balances to ensure, in this area, in particular, we fight terrorism and protect liberty.

I think Ronald Reagan got it right. He said, "We've got to verify as well as trust."

Where is the independent check, General, the independent check that can be verified on these programs that the newspapers are reporting on?

HAYDEN: The verification regime, as I said earlier, Senator, was very tight. And, admittedly, an awful lot of the hands-on verification was from close in. It was the general counsel at NSA. It was the inspector general at NSA.

WYDEN: Is that independent oversight, when the general counsel at NSA is what passes judgment? All of these people here, and most of us were kept completely in the dark until yesterday, have election certificates, General. That, it seems to me, is at least some kind of independent force.

And I'd like you to tell me what is the independent verification of these programs that I see in the newspapers.

HAYDEN: Yes, sir.

And, beyond that, there was the over-the-shoulder performed over the NSA oversight regime by the Department of Justice.

HAYDEN: Beyond that, within weeks of the program starting, we began a series of briefings to the senior leadership of the Senate Select Committee and the House Permanent Select Committee on Intelligence -- I think the first briefing occurred with a couple of weeks of the launching of the program and within two months of the launching of the program, we had our second briefing -- so that the leadership of the committee understood what we were doing.

And those briefings were as forthcoming as I could possibly make them. And there were no restrictions. Let me make that very clear. I mean, no one was telling me what of the program I can share with the leadership of the committee. That was entirely within my control.

In fact, when we gave the briefings, the other people in the room saw the slides for the first time when the chairman and the senior member were seeing the slides for the first time.

And my only purpose, Senator, was to make sure that this second branch of government knew what it was we were doing.

I actually told the folks who were putting the briefing together for me to make it in-your-face. I don't want anyone coming out of this one, two, or even five years later, to say, "Oh, I got some sort of briefing, but I had no idea."

And so I was, frankly, personally, very aggressive in making sure this branch of government knew what we were doing.

WYDEN: General, what you're talking about, what you've described, is essentially in-house verification, unilateral verification. You've talked about how NSA counsels give you advice and the Justice Department gives you advice.

You say you told a handful of people on this committee. The fact is the 1947 law that says all of us to know about non-covert activities wasn't complied with. And I don't think that's independent verification.

Now, in 2002, General, you said to the joint 9/11 inquiry, and I'll quote here, "We as a country readdressed the standards under which surveillances are conducted, the type of data NSA is permitted to collect and the rules under which NSA retains and disseminates information."

WYDEN: You said, and I quote, "We need to get it right." You said, and I quote, "We have to find the right balance."

Now, I've looked very hard, General, and, respectfully, I can't locate any "we" that was involved in any of these efforts that you've suggested. Certainly there wasn't any "we" that worked together on the ground rules for the program that the USA Today says you set up.

So it seems to me, whatever you and the administration have done with respect to these programs -- and as you know, I can't even talk about what I learned yesterday -- whatever was done, you did it unilaterally. And as far as I'm aware, we as a country weren't part of any effort to set the standards in these programs. And most of the members of this committee were kept in the dark and weren't part of any informed debate about these programs.

So, General, who is the "we" that you have been citing?

HAYDEN: Senator, again, I briefed the leadership of this committee and the House committee. I briefed the chief judge of the relevant federal court.

The passage you're referring to I remember very, very clearly. It was an exchange I had with Senator DeWine, and we were talking about the balance between security and liberty. And I probably got a little too feisty and something along the lines of: Senator, I don't need to be reminded how many more Arabic linguists we need at NSA. I got that. What I really need is to understand, and for you to help me understand where the American people would draw the line between liberty and security.

Senator, I believed that then. I believe it now. I used all the tools I had available to me to inform the other two branches of government exactly what NSA was doing. I believed in its lawfulness. And after these briefings, which I think numbered 13 up to the time of the New York Times story came out in December, I never left the room thinking I had to do anything differently.

Senator, these are hard issues. Senator Levin asked me, Are there privacy concerns? I said, Of course there are privacy concerns.

But I'm fairly -- I'm very comfortable with what the agency did and what I did personally to inform those people responsible for oversight.

WYDEN: I want to stick to the public record.

A handful of senators were informed. They weren't even allowed to talk to other senators. One of the senators who was informed raised questions about it. That doesn't strike me as a we, inclusive, discussion of where we're going in this country.

General, if we had not read about the warrantless wiretapping program in the New York Times last December, would 14 of the 16 members of this Senate Intelligence Committee ever heard about this program in a way consistent with national security?

HAYDEN: Senator, I simply have no way of answering that question.

I don't know.

WYDEN: Let me ask you about a couple of other areas. I believe I have a few remaining moments.

ROBERTS: Actually, the senator is incorrect. His time has expired.

But you're certainly free to pursue them in a second round.

I would like to make it very clear that I was briefed on all 13 occasions, along with the vice chairman and the leadership of the Congress.

You might think we're not independent. I am independent and I asked very tough questions. And they were answered to my satisfaction by the general and other members of the briefing team. Others did as well.

If you'll hold just for a moment.

It is my recollection of the 13 briefings with the very independent leadership in a bipartisan way, after asking tough questions, that nobody ever left the room that did not have an opportunity to ask further questions and to have the general follow up with an individual briefing if they so desired, and indicated at that time that they were -- if not comfortable, thought the program was legal, very impressed with the program and thanked the Lord that we had the program to prevent any further terrorist attack.

That precedent started with President Carter, President Reagan, President Bush, President Clinton and the current president, based on two members of the Intelligence Committee and two members of the Intelligence Committee on the other side of the Hill, basically, and the leadership.

ROBERTS: That was held closely. There's always a tug and pull by statute and otherwise, according to the 1947 National Security Act, in regard to the obligation of the executive to inform the legislative.

The worry, of course, was in regard to, if that briefing is expanded to a great many members, about the possibility of leaks. I personally do not believe, in my own judgment, that members leak that much, although I know when some leak happens, always staff is blamed.

But having said that, in this particular instance, I want to tell the senator from Oregon that I felt that I was acting independently, asked tough questions and they were answered to my satisfaction.

I obviously cannot speak for the other members, but it is my recollection that that was the case.

We then moved from two to five, and then from five to seven, because of my belief that the more people that were read into the operations of the program, the more supportive they would be, for very obvious reasons. We have a program -- a capability, as I like to say it -- to stop terrorist attacks when terrorist attacks are being planned.

I think that is so obvious that it hardly bears repeating.

And now we have the full committee. And so the independent check on what you are doing in regard to this whole capability is us.

ROBERTS: Now it took a while for us to get here from here. But during those days, under previous presidents, we did not have this kind of threat -- which is unique, very unique -- and we did not have this capability.

So things have changed. Rightly so. So now the full committee will be the independent check in regards to what you're doing.


WYDEN: Mr. Chairman, since you have launched this extensive discussion, can I have about 30 seconds to respond?

ROBERTS: You have 30 seconds precisely.

WYDEN: I have enormous respect for you, as you know. I'm only concerned...

ROBERTS: Did all this happen because Pittsburgh beat Seattle in the Super Bowl or what?


WYDEN: I'm only concerned that the 1947 law that stipulates that the congressional intelligence committees be fully informed, as it was done even back in the Cold War, be followed.

And, General, just so you'll know, on a little bit of humor, in my morning newspaper, a gentleman named Abraham Wagner, who is a former National Security Council staffer said -- and he issued a strong statement of support for you -- he said, "Our committee, they ought to smack him with a frying pan over the head and make sure he won't do it again," with respect to these limited briefings in terms of this committee and making sure we're following the 1947 law.

Thank you, Mr. Chairman.

ROBERTS: Well, the law also provides a limited briefing in regards to the judgment of the president in regards to national security matters and, obviously, anything that would endanger sources and methods and lives.

I think we have exhausted this issue to the satisfaction of the committee, or at least I hope so.

Senator -- where are we here -- Senator Feinstein?

FEINSTEIN: Thank you...

ROBERTS: I might add, if we have a vote, we're going to break for lunch. And then if we do not have a vote, it is my intent -- oh, I beg your pardon, it's Senator Snowe. This is the second time that I have made an error.

Senator Snowe, I owe you my deepest apology. You were here before this hearing opened up. And so you are now recognized.

Senator Feinstein, I apologize to you. It was the chair's mistake.

Senator Snowe is recognized.

SNOWE: Thank you Mr. Chairman. And I want to welcome you, General Hayden, to the committee and congratulate you on your nomination as director of the CIA. And I also want to extend my appreciation to you for your more than 30 years of service to this country.

HAYDEN: Thank you.

SNOWE: You've certainly been a person of the highest integrity and you've had a distinguished career.

In thinking about all the issues that we're confronting today with respect to the agency that you've been nominated for, that you'll be leaving an agency that has been, as you mentioned in your opening statement, plagued by problems at the very same time that our nation is confronting a great set of challenges, you'll be taking the reins at the CIA not only for a tumultuous time for this country, but also for the CIA itself.

And your leadership is going to be so essential in reasserting the role of the agency in becoming a preeminent authority in intelligence-gathering and -analysis and as the overall intelligence capability is solidified as we did under the law.

Your confirmation comes at a time when we would be doing far more than just simply filling a position. Because the CIA is now central not only to our national security, but ever more so in the post- September 11th environment in identifying shadowy and elusive threats.

And so your leadership will require changing the status quo in order to avoid the intelligence failures of the past.

Also, as you mentioned in your opening statement about facing the multiple challenges, not only restructuring and reestablishing the agency's core mission, but also in restoring the morale -- low morale among the dedicated CIA personnel, but also in synchronizing the gears of our nation's human intelligence collection capability.

Moreover, the CIA is also facing not only the major internal reorganizations, but also facing territorial turf grabs from the Department of Defense in areas that has and continues to be a congressionally mandated domain for the CIA.

SNOWE: And that concerns me, the encroachment by the department, because not only does it present potential conflicts but it also is potentially going to divert resources from the CIA's ability to craft its overall strategic mission for developing the strategic intelligence that's so essential to anticipating and deterring the threats of the future.

So, General Hayden, I think it's going to be critical, as you look forward, to explain to this committee why -- how you intend to implement your reforms, what your vision is going to be, and particularly in grappling with the encroachments and the bureaucratic expansion by the Department of Defense, which obviously is going to be problematic. It already has.

In addition, I also would like to have you address some of the issues regarding the NSA and the wiretapping program and the phone data collection that was initially conducted during your tenure. It obviously has raised some fundamental concerns.

I sought to serve on this committee because of my 10 years, previously, in serving in the House of Representatives as ranking member of the subcommittee that oversaw terrorism.

And I vigorously fought for anti-terrorism measures. In fact, I got the first information-sharing measure passed, following the first World Trade Center bombing in 1993.

I don't think anybody disputes the urgency of the ultimate goal of fighting terrorism. I think there is no dispute about it. There is no contest on that very question.

I think the real issue is how we can best accomplish that goal -- together, within the constitutional framework of the constitutional rights of privacy and freedom.

And this is the major challenge, as we heard the debate here earlier with the chairman and Senator Wyden. The goal cannot be accomplished without ensuring that we uphold the systems of checks of balances, to be absolutely sure that they are respected, upheld and applied. The founding of our country was predicated on these principles.

I happen to believe that, with the programs in question, that the Congress was really never really consulted or informed in a manner that we could truly perform our oversight role as co-equal branches of government, not to mention, I happen to believe, required by law.

SNOWE: And, frankly, if it was good enough yesterday to be briefed as the Senate Intelligence Committee as the full committee and the House Intelligence Committee, then why wasn't it good enough to brief the full committees five years ago?

The essence is what we have in responsibilities, is having a vigorous checks and balance system. And I know that you mentioned the gang of eight, but the gang of eight was not in the position to have staff, to hold hearings to examine the issues. It was really a one- way briefing. There was nothing more that they could do with the information, other than objecting to each other or to the administration -- to you, to the president, whatever.

And I think that in and of itself I think undermines our ability to perform the roles that we're required to do. In this time, in the global war on terror, the executive and the legislative branches must work together if we're going to engender confidence, really and to ensure that the reals checks and balances exist.

To do otherwise, I think breeds corrosive mistrust and distrust. It does not serve the interests of the people.

And so, if there was a time about marshalling our forces across the branches of government and across the political aisle, it is now. And I think the time is to be able to work together on those issues that imperil our nation.

And so, with that, I would like to ask you about the notification to the gang of eight, because this is central to the issues that you will be facing, if confirmed as the director of CIA, because you'll still have opportunities and decisions to be made within the agency on whom to brief, whether it's a limited group that is basically handcuffed in its ability to do and perform the checks and balances.

SNOWE: It's not enough for the executive branch to agree among themselves, among all agencies. There has to be a give and take in this process. And that's, in essence, what it's all about.

And so the notification to a very limited group that could do nothing much with that information essentially is not the kind of checks and balances that I think our founding fathers had in mind.

So I would like to ask you what was your disposition about the whole notification process at that point when this program was created and designed by you as the director?

Did you advocate to notify the full House and Senate committees?

And what will be your disposition in the future if confirmed as director about notifying full committees or more limited groups with respect to these issues? Because there are other programs that obviously -- that you'll be in a position to determine who should be notified.

HAYDEN: Yes, ma'am.

Really important question and critical issues.

Without getting into what should be privileged communications, let me describe the view September, October 2001. As you recall, technologically feasible, operationally relevant, what would be lawful. One of the contributions that I gave to the conversation was congressional notification.

When we were discussing this, I literally said in our small group, look, I've got a workforce out there that remembers the mid- 1970s. And forgive me for a poor sports metaphor here, but the line I used is since about 1975, this agency has had a permanent one ball, two strike count against it and we don't take many close pitches.

And so it was important to me that we brief the oversight bodies. I was delighted that the decision was made to do that almost before we got the program under way.

HAYDEN: I've forgotten the specific dates, but the first briefing was in September -- I'm sorry, that's not right -- was in October of 2001. And the program didn't get under way until October 6.

And we had a second briefing with the leadership of the HPSCI and SSCI before -- I think it was by the 2nd of November -- within about 30 days.

So I was very, very pleased that that had been done.

Ma'am, I don't claim to be a constitutional lawyer, and I made a quick reference to the inherent tensions between Article I and Article II. But, again, it was very important for me that we briefed the leadership.

If there was to be a dialogue beyond that as to who should be briefed and so on, my view certainly was, I could be open to anyone after a decision was made to conduct that briefing. And I know many of you have seen these briefings, and I will still stand by I have been very open.

SNOWE: I don't have any doubt about that. I think it's important that we don't utilize this as a common practice. Because it's my understanding about the gang of eight that it's generally a rare, extraordinary circumstance. It's obviously in the instances of covert operations...

HAYDEN: Right. Right. To which it is specifically applied by statute.

SNOWE: Yes. And I just think it's very important, because I think it's unfortunate where we are today, you know, whether we're discussing the legalities, you know, and illegalities about the program, what it's all about.

In essence, it undermines all of our authority. And, you know, we have a collective wisdom and experience on the House and Senate Intelligence Committee of more than 150 years of experience.

It seems to me that we could build upon and enhance our capabilities in working together as legislative and executive branches to do what is all of in our interest in the indisputable ultimate goal of fighting terrorism. I don't think that there's any question about that. It's how you best do it.

We know the president has power. It's how that's exercised and the checks and balances that he utilize. And that's where we come in, in performing vigorous oversight, not just a one-way street here. And I just want to encourage you, because the days ahead are going to be challenging.

HAYDEN: Oh, yes.

SNOWE: And certainly with this agency and the reorganization.

And I make that point because I think it's fundamentally important.

SNOWE: There's so much that each member -- and in this branch of government, we're not adversaries, we're allies in the war on terror. And we should be able to make that work. We might have differences, but that's not the issue.

The issue is: How do we build a stronger platform from which to make sure America is safe? And that should be bipartisan. That should be a both-branches-of-the-government endeavor.

HAYDEN: I understand.

SNOWE: And so I hope that we can accomplish that.

I would like to go on to the whole issue of DOD and CIA coordination, because I think it's a fundamental issue.

And I know there are many issues there. And I'd like to get your thoughts on how you're going to exhibit the kind of independent leadership with particularly the Department of Defense -- because as they further expand and encroach in areas, expanding their clandestine forces, paying informants, gathering deeper and deeper into human intelligence, I think that this is going to be a serious -- potentially -- contest if the CIA does not regain its ground and reclaim its lost territory.

Now, I know you have said that it's a blurring of functions. The Pentagon has said, "Well, we had to fill in the vacuum where the CIA could not."

I would like you to tell the committee, General Hayden, as to how you think you will go about exhibiting and demonstrating the kind of leadership that's going to be essential to regaining the core missions of the CIA.

HAYDEN: Yes, ma'am.

And if I could, I'd like to put a few more details on my answer in the afternoon session, where I can make some increased distinctions. But I think I can discuss it at some length right now.

First of all, you know, you welcome more players on the team. That's good news. Now, the players have to play as a team and they've got to know how to play the sport.

Those are the responsibilities of the national HUMINT manager. There's an MOU in place. The word I get from the current leadership at CIA is it's working pretty well and the trend lines are positive. But that has to -- as I've told before, that's a process to be nurtured, not a solution to be made and put on the shelf. That's got to be managed constantly over time.

Here's where the rub comes, ma'am.

HAYDEN: DOD, operating from Title 10 authorities, in what the secretary will quite legitimately call inherent military activities -- and you'll see Dr. Cambone describing it that way, all right -- conducts activities that to the naked eye don't look any different than what a case officer in CIA would be doing under authorities that come out of Title 50 of the U.S. code.

And, frankly, you probably shouldn't worry about that distinction, and certainly the environment in which we're working isn't going to make the distinction that, "Oh, these are Title 10 guys and these are Title 50."

And so one thing that we have to do is, number one, be witting to everything that is going on, deconflict everything that is going on, and when there is confliction, elevate it to the appropriate level almost immediately so that it's resolved.

And then when the activity is known and deconflicted and coordinated, that the activity, no matter what its legal roots -- Title 10 or Title 50 -- is conducted according to standards, standards of tradescraft and standards of law.

I don't see that responsibility falling on anyone accept the national HUMINT manager. So whether it's being done by FBI, whether it's being done by combatant command, whether it's being done by the defense HUMINT service or by CIA, it's got to be done well and right.

SNOWE: Well, will that memorandum -- would your memorandum of agreement between DOD on this question and outlining the issues? I mean, is it going to be a clear delineation?

HAYDEN: The responsibilities are quite clear. As I suggested earlier, we run into trouble when people don't follow it. And more often than not, that's out of ignorance rather than malice. So there's still work to be done.

SNOWE: I know you mentioned that it would be done on a step-by- step basis. And I'm concerned about the incrementalism of that, as the DOD is very aggressive in filling the void or the vacuum in developing this parallel intelligence structure.

HAYDEN: Yes, ma'am, there's an analogue to that in SIGINT.

There are signals intelligence activities inside the Army, inside the Navy, inside the Air Force. As director of NSA, I had responsibility that those were done legally and done well.

I think there's a parallel here, that, you know, we don't have to refuse the additional assistance, but that there's a role to be played so it's done lawfully and orderly and it's deconflicted.

SNOWE: Well, you were mentioning the undersecretary of defense for intelligence, Dr. Cambone. And I understand the DOD issued a directive last fall regarding requiring the concurrence from Dr. Cambone before any personnel could be transferred...

HAYDEN: Between...

SNOWE: ... between the Department of Defense into any of the integration centers, for example, or any other joint efforts under the Office of the Director of National Intelligence.

HAYDEN: Yes, ma'am. Your staff's done good homework.

And our view at the Office of the Director of National Intelligence is that those people who are on NIP -- National Intelligence Program -- billets are effectively under the control of the director of national intelligence. And your legislation allowed the DNI to move -- what? -- up to 100 billets in the first year of a new center.

Now, we can do that with healthy regard to the DOD personnel system.

HAYDEN: But I think the ambassador intended to exercise his authorities.

SNOW: You even acknowledge that there are discrepancies by saying there's genuine overlap regarding the authorization of personnel moves that will have to be resolved one step at a time.

Director Negroponte noted before Congress that there had been an open conflict with the Pentagon over at least one issue. And that was personnel.

He went on to raise the issue with Congress by subtly saying: I don't mean to invite help, but one area that the intelligence community's working on now is the area of personnel.

I think what is even more disconcerting is that the director indicated and characterized the situation by saying we look at those people as intelligence people and Secretary Rumsfeld certainly looks at those as DOD folks.

So I find it troubling, at a time which the department is really moving very aggressively and pursuing a parallel track and a parallel operation when it comes to intelligence, and you describe it as a genuine overlap.

How do you intend to resolve this overlap?

HAYDEN: Actually, that wasn't the ambassador saying that. That was me.

SNOWE: That was you?

HAYDEN: Yes, ma'am. And as I said earlier when we talked about the law, rather than sitting in Philadelphia and articulating a theory of federalism, the folks just wrote down the powers they wanted the federal government to have. That's what you did for the DNI.

And so I think this is just a question of exercising those powers. And I think the ambassador's view -- certainly, my view is that billets, individuals funded in the national intelligence program, are first and foremost under the DNI. For those things, you're giving the DNI control.

SNOWE: Finally, in the New York Times recently, there was an article that, I think, has captured the essence of my concerns and others as well about how the CIA hasn't been able to develop the strategic intelligence, which is a crucial issue.

SNOWE: Because obviously we need -- you know, and obviously -- you mention in your own remarks about having to be governed by the daily news in responding to those issues rather than having a chance to see the forest through the trees and looking at the big picture and anticipating the threats of the future.

I mean, that's what this is all about. And how do you intend to reposition the CIA in that respect? Because I think that, that is a very essential and significant capability that must be vested within the CIA. We need to have it geared toward that goal.

HAYDEN: Yes, ma'am.

And there are some pernicious influences out there right now. I mean, just the public news cycle, the CNN cycle puts pressure on the community not to allow decision-makers to be surprised.

We're in a war. And the OPSTEMPO of the war in Afghanistan, in Iraq, global war on terrorism, I mean, just sucks energy into doing something in the here and now.

It will require a great deal of discipline to pull resources and psychic energy away from that and focus it on something that's important but not urgent, and that's why I put that comment in my remarks.

And it actually came into the draft late after some folks looked at it and said, you need to make that commitment as well, that you need to pull some people off for the long view, for the deep view. Otherwise, we will appear to be successful, but we'll be endlessly surprised.

SNOWE: Thank you, General Hayden.

ROBERTS: The senator's time has expired.

SNOWE: Thank you, General Hayden.

Thank you, Mr. Chairman.

ROBERTS: Senator Feinstein?

And let me announce at this particular time that following Senator Feinstein's questions, we will break for lunch. We will resume the committee hearing at 1:30. That should give people approximately 40 minutes for lunch. And the order will be Senator Hatch, Senator Warner, Senator Hagel, Senator Feingold, Senator Chambliss, Senator Mikulski, Senator Lott, and Senator Bayh.

Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

I'd just like to say at the onset that I very much agree with Senator Snowe's opening comment, and I'm very pleased that she made them.

I'd like to note that I drafted and proposed for inclusion in the intelligence authorization bill an amendment which would amend the National Security Act's requirements to increase reporting requirements to Congress. Staff from all our members have this proposal. And I intend to move it wherever I can to get it done.

Essentially, it would state that briefing the committee means all members of the committee, which is the current intent, we believe, and that in the very rare cases where only certain members are briefed, all members get a summary, so that at the very least, everyone can assess the legality and advisability of the action, and carry out our oversight responsibility, and that an intelligence activity is not considered authorized until this briefing takes place.

So I'd like to ask you to take a look at that, if I might.

General, I was very impressed with your opening statement. I think you have the vision thing, as they say, right.

I think what you want to do for the agency is the correct thing to do. So that's all good.

I want to just ask you this one question about it: Would you make a commitment to this committee that all of the top officers of this agency will be intelligence professionals?

HAYDEN: Ma'am, obviously the answer is yes. I'm just parceling off the question to make sure I understand all of the ramifications because, frankly, at NSA, one of the things we did and had some success was to bring some folks in from the outside to do things that weren't inherently intelligence.

But I understand...

FEINSTEIN: I think you understand what I'm saying.

HAYDEN: Yes. Within that confine...

FEINSTEIN: I appreciate that commitment.

Now, I also believe that Americans want to be protected. I know there are no citizens in any major city that want to see another attack. And I happen to believe that there are people that want to do is grievous injury, if not kill us.

So the only tool there really is to stop something is intelligence. And that's where, I think, the issues become very thorny. And in my questions, I want to try to sort a few of them out.

What was your role in the initiation of the program at issue, the terrorist surveillance program?

HAYDEN: Sure, ma'am. I had done some things, as I briefed the committee, told this committee, the House counterpart, told Director Tenet. I was asked by Director Tenet, "Could you do more?"

I said, "Not within current law."

He says, "Well, what could you do more?"

And I put it together with, as I said, technologically possible, operationally relevant, now the question of lawfulness.

So I described where we had stopped our expansion of activities because of the current legal structure under which we were operating.

FEINSTEIN: Did individuals in the White House push for a broader and further-reaching surveillance program, including purely domestic calls without warrant...

HAYDEN: No, ma'am...

FEINSTEIN: ... as was reported in last Sunday's New York Times?

HAYDEN: Yes, I understand. And I will give you just a touch more granularity in the closed session. But in open session, these were all discussions. Our views were -- NSA views -- were highly regarded, and there was never an argument over that issue.

FEINSTEIN: Thank you.

What legal guidance did you seek and review before initiating the surveillance program? If this committee doesn't have copies -- and we don't -- of the legal opinions, may we receive them please?

HAYDEN: Ma'am, I'll take your question. I have not read the Justice legal opinion as well.

But what I was assured by the signature of the attorney general on the first order, and by the opinion of the White House counsel, and the judgment from the Office of Legal Counsel in Justice, was that this was lawful and was within the president's authorities.

I then brought the question to NSA lawyers, three guys whose judgment I trust, three guys who advise me and who have told me not to do things in the past, and laid out the question. And they came back with a real comfort level that this was within the president's authorities.

FEINSTEIN: Did they put anything in writing?

HAYDEN: No. And I did not ask for it. I asked them to look at the authorization, then come back and tell me.

But in our discussion -- I think Senator Levin asked this earlier -- in our discussion, although they didn't rule out other underpinnings for the president's authorization, they talked to me about Article II.

FEINSTEIN: Has the administration sought -- or NSA sought Title 1 warrants from the FISA Court for the collection of telephone content? And has it sought pen register trap-and-trace device approval from the court for the collection of telephone records or transmittal information?

HAYDEN: Ma'am, let me give you that answer in closed session. Just a slight discomfort. But I'll be happy to give it to you as soon as we get to closed session.

FEINSTEIN: All right. I will ask it. I think it's an important question.

HAYDEN: Yes, ma'am. Of course.

FEINSTEIN: It is my belief that FISA should remain the exclusive authority for all domestic surveillance in the United States. It needs some updating because of the particular situation we're in and the enormous increases in technology since 1978.

As you know, I have asked NSA for suggested improvements both by letter and in person, and I have not received a response. I'm in the process of drafting a bill, and I would appreciate a response on the technical improvements that can be made to FISA.

HAYDEN: Yes, ma'am. I understand. I've discussed this with General Alexander. NSA has crafted some views and some language. They have given that to the Department of Justice, because -- I mean, in addition to the technology, there are issues of law involved here, as well. And that dialogue is ongoing, but I have been assured that it is moving forward.

And I will take the urgency of your message back, ma'am. I understand.

FEINSTEIN: Because as you know, bills are being...

HAYDEN: Yes, ma'am.

FEINSTEIN: ... marked up in the Judiciary Committee, and so there is a time element to this.

HAYDEN: Yes, ma'am. And I know there are multiple bills out there each trying to move this forward and craft that balance between liberty and security.

FEINSTEIN: Thank you.

I want to ask you some questions about the Fourth Amendment. And I know I don't need to read it for you, but just for the record, let me quote it. "The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized," end quote.

Do you believe the Fourth Amendment contains a probable cause standard?

HAYDEN: It clearly contains a probable clause standard for warrants to conduct searches. There's the broader phraseology. And I've actually talked to some of my relatives who are in law school at the moment about the construction of the amendment, which talks in a broad sense about reasonableness, and then, after the comma, talks about the probable cause standards for warrants.

The approach we've taken at NSA is certainly not discounting at all, ma'am, the probable cause standard and need for probable cause for a warrant. But the standard that is most applicable to the operations of NSA is the standard of reasonableness -- you know, is this reasonable?

And I can elaborate a little bit more in closed session, but for example -- for example, if we have a technology that protects American privacy up to point X in the conduct of our normal foreign intelligence mission, it is reasonable, and therefore we are compelled, to use that technology.

HAYDEN: When technology changes and we can actually protect privacy even more so with the new technology, "reasonable" just changed and we must go to the better technology for the protection of privacy. It's that reasonableness debate that informs our judgment.

FEINSTEIN: Let me ask you: that "reasonable" standard is your standard. It's not necessarily the law because the Fourth Amendment very specifically states, in Judiciary, we had former FISA judges come before us. They said, in effect, in their court, the probable cause standard was really a reasonable suspicion standard.

Now you're creating a different standard which is just, as I understand it, just "reasonableness."

HAYDEN: No, ma'am. I don't mean to do that. And Lord knows, I don't want to get deeply into this because, I mean, there are serious questions of law with people far more expert than I.

To give an example, purely illustrative and hypothetical, NSA, in the conduct of its foreign intelligence work, in the conduct of its foreign intelligence work, intercepts a communication from a known terrorist, let's say, in the Middle East. And the other end of that communication is in the United States.

One end of that communication involves a protected person. Everything NSA is doing is legal up to that point. It is targeting the foreign end. It has a legitimate reason for targeting it and so on.

But now, suddenly, we have bumped into the privacy rights of a protected person. Now, no warrant is involved. We don't go to a court.

HAYDEN: Through procedures that have been approved by this committee, we must apply a standard to protecting the privacy of that individual.

And so there we -- we've touched the privacy of a protected person. But there are clear regulations held up to the reasonable standard of the Fourth Amendment, but not the warrant requirement in the amendment, ma'am.

FEINSTEIN: Well, I'd like to debate that with you this afternoon, if I might.


FEINSTEIN: Let me move to detention, interrogation and rendition.

I'm very concerned that the practices -- these practices create enormous long-term problems for our country. They cast shadows on our morality, our dedication to human rights and they disrupt our relations with key friends and allies.

The administration has stated that when it renders an individual to a third country for detention or interrogation, it obtains diplomatic assurances from that country that the suspect will not be tortured.

What steps does the administration take to verify compliance with such assurances after a detainee is rendered or transferred?

HAYDEN: Yes, ma'am. By law, we're required to make a judgment on the treatment that someone who is transferred to another sovereign power would get. In the legislative history of the law, which we're following here, the requirement is a judgment that torture is less rather than more likely in the case involved.

Clearly, if we received evidence, indications and so on that, that had happened, that would impose additional responsibilities on us.

FEINSTEIN: Well, what United States government officials visit those sites to see if there is such evidence?

HAYDEN: Ma'am, the true answer is I don't know.

And I'd be reluctant to try to speculate. I don't know.

FEINSTEIN: In an interview with Time magazine published on April 12th, Director of National Intelligence John Negroponte said "the terrorist suspects held by the CIA in secret prisons are likely to remain incommunicado detention for as long as the war on terror continues," end quote.

As principal deputy to the DNI, is it your policy that individuals may be secretly detained for decades?

HAYDEN: Ma'am, I know there's been some broad discussion about this publicly.

I know Secretary Rice has talked about our responsibilities under both U.S. and international law.

HAYDEN: Let me give you a full answer, ma'am, and let me give it to you in the closed session, but I would really be happy to answer your question.

The transcript continues in Part II.

© 2006 The Washington Post Company

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