Hayden Insists NSA Surveillance Is Legal

CIA director nominee Michael Hayden testifies on Capitol Hill, Thursday, May 18, 2006 at his confirmation hearing before the Senate Intelligence Committee. Hayden acknowledged concerns about civil liberties even as he vigorously defended the Bush administration's warrantless eavesdropping program as a legal spy tool needed to ensnare terrorists. (AP Photo/Dennis Cook) (Dennis Cook - AP)

Sen. Russ Feingold, D-Wis., said he was convinced the program was illegal and questioned whether the phone calls of Americans not linked to al-Qaida were ever captured. Hayden didn't answer directly.

"If you're using a 'probable cause' standard as opposed to absolute certitude," he said, "sometimes you may not be right."

If confirmed, Hayden would take over a struggling CIA, groping to define its role after the 2004 overhaul of the spy community in response to the mistakes on Sept. 11, 2001, and the prewar Iraq intelligence. Hayden, who frequently uses sports metaphors, said he believes U.S. spy agencies have become "the football in American political discourse."

"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," he said.

Hayden pledged to reform the agency by focusing on traditional spycraft and the quality of intelligence analysis. He also said he'd give policy-makers the unvarnished truth, a reference to criticisms of the spy agencies in the run-up to Iraq.

"When it comes to speaking truth to power, I will lead CIA analysts by example," he said. "I will _ as I expect every analyst will _ always give our nation's leaders the best analytic judgment."

Some lawmakers questioned whether Bush should choose a military officer to run the civilian spies at the CIA, in an era when the Defense Department is increasingly involved in intelligence.

Hayden, a 37-year Air Force officer, tried to show he could disagree with Defense Secretary Donald H. Rumsfeld. Hayden said he wasn't comfortable with a special Pentagon office set up to study the Iraq intelligence because of the analysis cell's tight focus on what Iraq did wrong, rather than looking at the full picture. The intelligence committee is investigating the office's impact.

Hayden said his concern was whether his uniform would prevent him from bonding with CIA officers. If it gets in the way, he said, "I'll make the right decision."

On the world's hot spots, Hayden acknowledged a series of intelligence failures in the run-up to the U.S. decision to invade Iraq in March 2003, and he promised to take steps to guard against a repeat of such errors.

"We just took too much for granted. We didn't challenge our basic assumptions," he said. The Iraq estimate also focused on weapons of mass destruction and ignored regional or cultural context, he said.

"We're not doing that on Iran," he said. "Besides the technical intelligence, there's a much more complex and harder to develop field of intelligence that has to be applied as well: How are decisions made in that country?"