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

Part II of II

Continues from Gen. Hayden's comments.  To view the beginning of the transcript, click here.

FEINSTEIN: Is there a periodic review of what useful and actionable intelligence can be gathered through interrogations and debriefings of terrorists that have been held with no contact with Al Qaida or other groups for years?

HAYDEN: Again, a more detailed in response in closed session. Let me just hold it for closed, ma'am. And I think...

FEINSTEIN: You can't say whether there's a periodic review?

HAYDEN: Ma'am, obviously we would do things for a purpose, and therefore the intelligence value of any activity we undertake would be a very important factor.

But, again, I don't want to state or imply things that I should not in open session. So let me just hold it, and I will give you a very detailed answer in the closed session.

FEINSTEIN: On March 17th, 2005, Director Porter Goss stated to the Senate Armed Service Committee that waterboarding fell into, quote, "an area of what I will call professional interrogation techniques," end quote.

Do you agree with that assessment? Do you agree with Mr. Goss's statement that waterboarding may be acceptable?

If not, what steps have been taken or do you plan to take to correct the impression that may have been left with agency employees by Mr. Goss' remarks?

HAYDEN: Yes, ma'am. Again, let me defer that to closed session, and I would be happy to discuss it in some detail.

FEINSTEIN: Do you believe that the CIA is legally bound by the federal anti-torture statute and the Detainee Treatment Act adopted last year?

HAYDEN: Yes, ma'am.

FEINSTEIN: Does the president's signing statement affect CIA's compliance with this law?

HAYDEN: Again, ma'am, I don't want to get between Article I and Article II and the inherent tensions between those. But let me answer the question as the potential director of the Central Intelligence Agency.

HAYDEN: The CIA will obey the laws of the United States and will respond to our treaty obligations.

FEINSTEIN: Has the agency received new guidance from the Department of Justice concerning acceptable interrogation techniques since the passage of the Detainee Treatment Act?

HAYDEN: Let me answer that in closed session, ma'am. But, again, I will be delighted to answer it for you.

FEINSTEIN: The New York Times reported on November 9th, 2005, that in 2004, the CIA inspector general concluded that certain interrogation practices approved after the September 11th attacks did constitute cruel, inhuman, and degrading treatment as prohibited by the Convention Against Torture.

Do you agree with the I.G.'s conclusion? And what corrective measures, in any, have been instituted in response to the I.G.'s findings?

HAYDEN: Ma'am, again: More detailing in closed session. I would have to learn more about the I.G.'s findings.

In addition, again, the definitive statement as to what constitutes U.S. law and whether behavior comports or does not comport with U.S. law, I would look to the Department of Justice for guidance.

FEINSTEIN: Ambassador Negroponte and other intelligence officials have estimated that Iran is some years away from a nuclear weapons capability. How confident are you of these estimates?

HAYDEN: Again, I would be happy to give additional detail in closed session. But I do want to say more about this with an open. Iran is a difficult problem. We call it a hard target. But I think it unfair to compare what it is we believe we know about Iran with what it is we prove to know or not know about Iraq.

HAYDEN: We have got a great deal of intelligence focus on the target. I would say that that judgment was given somewhere between medium and high confidence, ma'am.

FEINSTEIN: Given the problems with estimates of Iraqi weapons of mass destruction, how can the American public being confident of the accuracy of estimates regarding Iranian plans and programs?

HAYDEN: Yes, ma'am, fair question.

And we've got to earn confidence by our performance. We have to earn confidence by our performance.

We have learned a lot of lessons on the Iraq WMD study. Many of the lessons you've documented for us.

One key one that I wanted to mention when the chairman was talking about it: The Iraq WMD estimate was essentially worked in a WMD channel. It was absent a regional or cultural context. We are not doing that now.

It was looked at, almost, square-cornered-wise, mathematically, ma'am, in terms of precursor chemicals or not, precursor equipment or not, absent, I think, a sufficient filter through Iraqi society and what we knew of it.

We're not doing that on Iran. 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? Who are making those decisions? What are their real objectives?

FEINSTEIN: One of the questions your answered in writing -- number eight, to be specific -- asked what you thought are the greatest threats to our national security. And your response essentially restated Ambassador Negroponte's testimony before this committee in February.

FEINSTEIN: I mean, I don't agree with the ambassador's statement, but do you have any independent or differing views on the threats we face?

HAYDEN: Well, in one sense, your legislation made it very clear that the ambassador sets the priorities, and so on the face of it I don't recoil that my priorities look a lot like his.

Five things come to mind: CT, number one, counterterrorism; counterproliferation; Iran; East Asia, Korea; and one that overarches all of them: We can't be surprised again.

FEINSTEIN: OK.

Now, let me go to an issue, many members of Congress are concerned that...

ROBERTS: Senator, I hate to do this, but there is a vote under way, and you will have ample time on a second round if we can do that.

FEINSTEIN: Do I have time remaining?

ROBERTS: Yes -- well, no.

But if you can wrap it up in 30 seconds or something like that, that would be helpful.

FEINSTEIN: Can I just do it quickly?

HAYDEN: Yes, ma'am.

FEINSTEIN: This is the uniform...

HAYDEN: Yes, I understand.

FEINSTEIN: ... the active-duty presence.

Have you thought about that? And could you share with us your decision?

HAYDEN: Sure. My current thinking.

The concern that my being in uniform affects my thinking: My life affects my thinking. The fact I have to decide what tie to put on in the morning doesn't change who I am, one.

Two, chain of command issues: nonexistent. I'm not in the chain of command now. I won't be in the chain of command there. I respond to Ambassador John Negroponte.

Third, more important, how does my being an active-duty military officer affect my relationship with the CIA workforce? For want of a better term, since we're rushing here, ma'am, can I bond, and can they bond with me? That's the one that I think is actually a serious consideration. If I find that this gets in the way of that, I'll make the right decision.

FEINSTEIN: Thank you.

Thank you very much. Appreciate it.

WYDEN: Mr. Chairman, did you say 1:30?

ROBERTS: The committee will stand in recess subject to call of the chair. And we will resume the hearing at 1:30. There is a vote right now, and we will take that time for lunch. And so would encourage all members to come back at 1:30.

HAYDEN: Thank you, Mr. Chairman.

(RECESS)

ROBERTS: The committee will come to order.

The committee will proceed with members and their questions on a 20-minute time frame. And the next senator to be recognized is Senator Hatch.

Senator Hatch?

HATCH: Well, General Hayden, there's been some commentary about the fact that you continue to wear the uniform that you have so proudly distinguished over your long, I think 35-year career. Certainly, you're not the first director of central intelligence to wear it.

But let me just ask you directly, because I think this needs to be on the record. Let's say that you step out from your office for a moment, and then you return, there are two messages for you. They're marked exactly the same time, these two messages. One is from Ambassador Negroponte and the other one is from Secretary Rumsfeld. Whose call are you going to return first?

HAYDEN: Sir, that's pretty straightforward.

HATCH: That's straightforward, yes.

HAYDEN: Yes, sir. I work for the ambassador, and so I would return his call.

HATCH: That's right. You're going to report to Ambassador Negroponte.

HAYDEN: Yes, sir.

HATCH: Now, let me add the chairman of the Intelligence Committee.

(LAUGHTER)

HAYDEN: Sir, I would set up a conference call.

(LAUGHTER)

HATCH: And a more serious question, what does your military experience bring to this position should you be confirmed?

HAYDEN: Yes, sir.

I mean, as you said, I'm proud of my military experience. It actually has been fairly broad. But if you stop and do the math, there's a big chunk of time -- I actually stopped and did this over the weekend -- more than 20 years in intelligence.

And if you look at the career in another way, there's an awful lot of it with an interface to the civilian world. Four years as an ROTC instructor. Two years on the National Security Council staff. Two years in an embassy behind the Iron Curtain.

So I think, frankly, it's given me a pretty good background in terms of the military aspect, has to do with leadership and management, the intelligence aspect, lots of experience. And working in a civilian environment is not going to be something that's foreign or alien to me.

HATCH: Thank you. There aren't too many people who can match you. In fact, I don't know of anybody really. There are some pretty good people out there.

I just got this letter that was directed to Speaker Denny Hastert as of yesterday's date, signed by Mr. Negroponte, Director Negroponte. Now, this letter says, "I am responding on behalf of National Security Adviser Stephen Hadley to Ms. Pelosi's May 2nd, 2006, inquiry regarding the classification of the dates, locations and names of members of Congress who attended briefings on the terrorist surveillance program."

HATCH: "Upon closer review of this request, it has been determined that this information can be made available in an unclassified format.

"The briefings typically occurred at the White House prior to December 17th, 2005. After December 17th, briefings occurred at the Capitol, NSA or at the White House. A copy of the list is enclosed."

You remember those briefings.

HAYDEN: Yes, sir.

HATCH: You were there.

HAYDEN: Yes, sir.

HATCH: Well, it just said, on 25th of October '01 the members of Congress who were briefed at that time were Porter Goss, Nancy Pelosi, Bob Graham and Richard Shelby.

HAYDEN: Yes, sir.

HATCH: Those were the chair and vice chair of the Senate Intelligence Committee. And of course, Nancy Pelosi was the ranking minority member over there and Porter Goss was then the chair.

HAYDEN: Yes, sir.

HATCH: On November 14th, the same four were briefed again. Is that correct?

HAYDEN: That's right.

HATCH: On December 4th not only were the members of the Intelligence Committee leadership briefed, but the chair of the Senate Appropriations Committee, Daniel K. Inouye, Senator Inouye, and the ranking minority member Senator Ted Stevens were briefed, is that correct?

HAYDEN: Yes, sir.

HATCH: On March 5th, you again briefed Porter J. Goss and Nancy Pelosi and Richard Shelby -- in other words, the people who were the leaders of the...

HAYDEN: Senator Graham couldn't make that meeting, so we swept him up a week or two later.

HATCH: Yes, you did. On April 10th, Bob Graham got briefed on the same materials, I take it.

Then on June 12th Porter Goss and Nancy Pelosi, the chair and the ranking member over the House, were briefed again, right?

HAYDEN: Yes, sir.

HATCH: On the 8th of July of '02, the chair and the ranking member, Bob Graham and Richard Shelby, were briefed?

HAYDEN: Yes, sir.

HATCH: OK.

On January 29th, '03, again, the leaders of the two intelligence committees were briefed, Porter J. Goss, Jane Harman, Pat Roberts and John D.J. Rockefeller IV?

HAYDEN: Yes, sir.

HATCH: OK.

Then on July 17th, '03, Porter Goss, Jane Harman, who was then ranking member, Pat Roberts and Jay Rockefeller were again briefed, is that correct?

HAYDEN: Yes, sir. That's right.

HATCH: Then on March 10th, '04, you briefed the speaker of the House, Denny Hastert, the majority leader of the Senate, William Frist, Bill Frist, the minority leader of the Senate, Tom Daschle, the minority leader of the House, Nancy Pelosi, the chair and ranking member of the House and the chair and ranking member of the Senate Intelligence Committee, is that correct?

HAYDEN: Yes, sir.

HATCH: Then on the 11th of March, '04...

HAYDEN: Sir, the next day.

HATCH: Yes, the very next day you briefed the majority leader of the House. This is all on the warrantless surveillance program, right?

HAYDEN: Yes, sir.

HATCH: OK.

Then on the 23rd of September, '04, you briefed Peter Hoekstra, who's now the chairman of the House Intelligence Committee.

HAYDEN: Right.

HATCH: Then on 3rd of February, '05, you briefed Pete Hoekstra, Jane Harman, Pat Roberts, Jay Rockefeller, the leaders of the respective intelligence committees, right?

HAYDEN: Yes, sir.

HATCH: And then on the 2nd of March, '05, you briefed Harry Reid, the minority leader of the Senate, right?

HAYDEN: Yes, sir.

HATCH: And on the 14th of September, again, the leaders of both Intelligence Committees -- Hoekstra, Harman, Roberts and Rockefeller, right?

HAYDEN: Yes, sir.

HATCH: And I just thought I'd get this all on the record, because I don't think people realize the extent to which you and the administration have gone to try and inform Congress, even though you've followed the past history where -- since Jimmy Carter -- where you did it this way, right?

HAYDEN: Sure.

HATCH: On the 11th of January, again, the members of the Intelligence Committees of both the House and Senate and Speaker Hastert, right?

HAYDEN: Yes, sir, and -- yes, sir, that's right.

HATCH: And on the 20th of January, Harry Reid and Nancy Pelosi, Pat Roberts and Jane Harman, right?

HAYDEN: Yes, sir.

HATCH: On the 11th of February, '06, Pat Roberts, our current chairman.

On the 16th of February, Denny Hastert and Pete Hoekstra, right?

HAYDEN: Yes, sir.

HATCH: On the 28th of February, you briefed the chairman of the House Appropriations Committee and the Defense Subcommittee, Bill Young. You briefed the ranking minority member, House Appropriations Committee -- of the Defense Subcommittee, John Murtha.

HAYDEN: Yes, sir.

HATCH: Right?

HAYDEN: Yes, sir.

HATCH: On March the 3rd, '06, you then briefed Jay Rockefeller individually, right?

HAYDEN: Yes, sir.

HATCH: OK.

Then on March 9th, you briefed the seven members of this subcommittee that was formed.

HAYDEN: That's right.

HATCH: OK. And that included me.

HAYDEN: Sure.

HATCH: OK. So the names were Roberts, Rockefeller, Hatch, DeWine, Feinstein, Levin and Bond.

Then on the 10th of March you briefed Senator Bond by himself.

HATCH: Then, on the 13th of March, you briefed Pat Roberts, Dianne Feinstein and Orrin Hatch, right?

HAYDEN: Yes.

HATCH: OK.

On the 14th of March, Mike DeWine, Senator DeWine.

On the 27th of March, Carl Levin. Is that correct?

HAYDEN: Sir, I believe these latter ones now include visits to NSA, where they visited the agency...

HATCH: That's right.

HAYDEN: ... and had extended...

HATCH: In other words, all these people had familiarity with...

HAYDEN: Yes, sir.

HATCH: ... the warrantless surveillance program. And you made yourself available to answer questions and to make any comments that they desired for you to make that were accurate.

HAYDEN: Yes, sir.

ROBERTS: Excuse me, Senator, on that last one, you may have missed, but the general indicated, that was a trip out to the NSA so we could actually see how the program worked.

HATCH: Sure. OK.

And then on March 29th, my gosh, you briefed Pete Hoekstra, Jane Harman, John McHugh, Mike Rogers, Mac Thornberry, Heather Wilson, Jo Ann Davis, Rush Holt, Robert E. (Bud) Cramer, Anna Eshoo and Leonard Boswell, all members of the HPSCI in the House, the Intelligence Committee in the House. Right?

HAYDEN: Yes, sir.

HATCH: And then on the 7th of April, or the 6th, you briefed Hoekstra, McHugh, Rogers, Thornberry, Wilson and Holt again.

HAYDEN: Yes, sir. I believe that that was actually a field trip to NSA for them.

HATCH: Well, that's fine, but my point is you were briefing them on this warrantless surveillance program.

HAYDEN: Yes, sir, that was the subject.

HATCH: And then on the 28th of April, you briefed Jane Harman, Heather Wilson and Anna Eshoo. Right?

HAYDEN: Yes, sir. Again, a trip to NSA.

HATCH: And then, finally, on May 11th, and you've had some briefings since, but this is the last I've got -- May 11th you briefed Bill Young and John Murtha who are both on the House Appropriations Committee.

HAYDEN: That's right.

HATCH: That sounds to me like you've made a real effort to try and help members of Congress to be aware of what was going on.

HAYDEN: Sir, my purpose in the briefing was to be as complete and as accurate as possible.

HATCH: What's your purpose of this warrantless surveillance program? My gosh, are you just doing this because you just want to pry into people's lives?

HATCH: What's the purpose, if you can succinctly (inaudible)?

HAYDEN: No, sir. It's not for the heck of it.

We are narrowly focused and drilled down on protecting the nation against Al Qaida and those organizations who are affiliated with Al Qaida.

HATCH: You wanted to protect American citizens from terrorists all over the world?

HAYDEN: Yes, sir. Yes, sir. Exactly.

And under this program, we can only touch the information that is provided under this program if we can show the Al Qaida or affiliate connection. That's the only purpose for which it's used.

HATCH: And instead of saying you monitored the calls, what you did is you -- this program only applied to foreign calls into the country or calls to known Al Qaida or suspected Al Qaida people outside of the country?

HAYDEN: Sir, in terms of listening or eavesdropping or whatever phrase is used in the public domain, what we call intercepting the call, we call the content of the call, the only calls that are touched by this program are those we already believe, a probable cause standard, are affiliated with Al Qaida and one end of which is outside the United States.

HATCH: But isn't it true that the president had to reauthorize this program every 45 days?

HAYDEN: On average. It varied depending on schedules and his travel and so on. But on average, about 45-day centers, yes, sir.

HATCH: How would you describe the classification of the warrantless surveillance program?

HAYDEN: It was very closely held. It was, for all practical purposes, a special access program. We had to read people into the program specifically. We have documentation...

HATCH: Do you consider it one of the most serious classified programs in the history of the nation?

HAYDEN: Yes, sir. I mean, that is fencing it off -- I mean, everyone refers to my old agency as the super-secret NSA.

HAYDEN: This was walled off inside NSA. That's the compartment that it was in.

HATCH: So this just wasn't monitoring calls of domestic people. This was monitoring calls into the country and out of the country to or from suspected affiliates of Al Qaida.

HAYDEN: That's accurate. That's precisely accurate.

HATCH: Now, if we had this program, let's say a year before 9/11, what effect would it have been on 9/11, do you believe?

HAYDEN: I've said publicly -- and I can demonstrate in closed session, how the physics and the math would work, Senator -- that had this been in place prior to the attacks, the two hijackers who were in San Diego, Khalid Almihdhar and Nawaf Alhazmi, almost certainly would have been identified as who they were, what they were and, most importantly, where they were.

HATCH: Now, the media -- Senator Levin said it's phone calls, but the media has made that sound like you were intercepting phone calls. The fact of the matter is is that -- well, maybe I can't ask that question.

Well, you said you always balance privacy rights and security rights.

HAYDEN: Yes, sir.

HATCH: But your major goal here was to protect the American people.

HAYDEN: Oh, sir, the only goal.

I mean, let me narrow it down so it's very, very clear.

This activity wasn't even used for any other legitimate foreign intelligence purpose. I mean, there were lots of reasons, lots of things that we need to protect the nation against. This extraordinary authority given to us by the president...

HATCH: Right.

HAYDEN: ... didn't look left or didn't look right.

HATCH: And you had...

HAYDEN: Al Qaida and affiliates.

I'm sorry, sir.

HATCH: And you had specific rules and specific restraints, specific guards.

HAYDEN: Yes, sir.

HATCH: OK.

Now, the distinguished senator from Oregon said that you admitted you were wiretapping Americans. That's a pretty broad statement.

HAYDEN: Yes, sir.

HATCH: It certainly isn't true.

HAYDEN: Sir, we were intercepting the international calls entering or exiting the United States which we had reason to believe were associated with Al Qaida, is how I would describe it.

HATCH: And if I understand it correctly, when you could, you went to FISA and got warrants...

HAYDEN: There were other circumstances in which clearly you wanted more than coverage of international communications. And under this authorization, you would have to go to the FISA Court in order to get a warrant for any additional converge beyond what this authorization...

HATCH: And FISA was enacted over 30 years ago.

HAYDEN: Yes, sir.

HATCH: And so FISA did not apply to some of the work you were doing.

HAYDEN: Well, the way I would describe it, Senator, is that a lot of things had changed since the FISA act was crafted. It was carefully crafted in '78. But it reflects the technology and -- I need to add -- and the threat as we knew it to be in 1978.

The technology had changed. The threat had changed.

The way I describe it, Senator, is I had two lawful programs in front of me, one authorized by the president, the other one would have been conducted under FISA as currently crafted and implemented. This one gave me this operational capability, this one gave me this operational capability.

HATCH: You would have no objection if we could find a way of amending FISA so it would accommodate this type of protection for the American people.

HAYDEN: Of course not, sir.

Again, we've made it clear throughout, though, that we would work to do it in a way that didn't unnecessarily reveal what it was we were doing to our enemies.

HATCH: Well, knowing what I know about it, I want to commend you, because I think you have really protected the American people.

When was the last time we had a major terrorist incident in this country?

HAYDEN: Well, sir, I'd go back four and a half years.

HATCH: There's no way we can absolutely guarantee that we won't have another one.

HAYDEN: No, sir.

HATCH: But you're certainly doing everything you know how to do it.

HAYDEN: Well, sir, that was the commitment: everything under law.

I said earlier in the morning, we knew what this was about. Senator Levin asked me earlier if there were privacy concerns, and I said there were privacy concerns with regard to everything the National Security Agency does.

I said to the workforce, I'll repeat, we're going to keep America free by making Americans feel safe again.

HATCH: So as I've asked the question about Senator Wyden's comments, you really weren't wiretapping Americans unless it was essential to the national security interests of this country?

HAYDEN: Sir -- and, again, it was international calls, and we had already established a predicate that that call would reveal information about Al Qaida.

HATCH: And you have always been able to monitor foreign calls?

HAYDEN: Oh, yes, sir.

HATCH: And there's never been any question.

HAYDEN: Foreign-to-foreign. And even in many circumstances, I suggested earlier this morning, a targeted foreign number that would happen to call the United States is incidental collection. There are clear rules that are created and approved by this committee that tell us what it is we do with that information.

HATCH: Now, as I understand it, you were not monitoring domestic-to-domestic calls?

HAYDEN: No, sir.

HATCH: That was not your purpose?

HAYDEN: No.

HATCH: And that was an explicit direction by you and others to not do that.

HAYDEN: Oh, yes, sir. When we had the original conversations as to what NSA could do further, certainly that's what we talked about.

HATCH: OK, now, General Hayden, one of the responsibilities of the DNI, as required by the Intelligence Reform and Terrorism Protection Act of 2004, was to set guidelines for the protection of sources and methods.

HATCH: Now, did you participate in the requirement of the DNI?

HAYDEN: Oh, yes, sir, we did.

HATCH: OK. Are these new guidelines in effect for the community and for the CIA?

HAYDEN: I do not know if they have been published yet. I'll have to get an answer for you.

HATCH: All right.

What new approaches will you bring to protecting against illegal public disclosures from the CIA?

HAYDEN: Sir, I said in my opening comments that we need to get the agency out of the news as source or subject, and both of those are very important.

Let me tell you the really negative effects of it. I mean, obviously there are sources and methods effects, impacts.

But you all asked me this morning about analysis and hard-edged analysis.

Do you know how hard it is to stop an analysis from pulling his punches if he expects or fears that his work is going to show up in unauthorized, unwarranted public discourse in a couple of days or a week?

HATCH: That's right.

HAYDEN: You keep the hard edge by keeping it private.

HATCH: Let me just ask you one last question here. I've got a lot of others, but I think you've answered all of my questions well.

General Hayden, you've spent enough time in the military to deeply appreciate that the military is a learning organization. When soldiers, marines, air men, sailors, Coast Guardsmen are not in combat, they are in training. Even in combat, every engagement is followed by a lessons-learned exercise.

When not in combat, the military is constantly studying and training. The military, in short, is a learning organization.

Now, do you believe that the CIA is a learning organization? Should it be? How often should officers be exposed to training and studies? What are the institutions of learning in the CIA? And do you foresee changing them?

HAYDEN: Yes, sir, a couple of aspects to that.

Number one, my experience in DOD has been a blessing, because DOD actually has a rotation base and allows folks who are not actually out forward in operations to be put into a training curriculum.

HAYDEN: And that almost feeds a demand for lessons learned.

Frankly, the intelligence community isn't in that model firmly yet. And we have got to look at the armed forces and see how they do lessons learned and embed that in our processes for improvement.

HATCH: Let me interrupt you for just a second and as you just another one before my time runs out. In several parts of your testimony, you allow that, quote, "lessons learned," unquote, exercises are distracting or demoralizing, quote, "archaeology of picking apart every past intelligence study or success," unquote.

Why would the CIA be any different from the military in the sense that you suggest?

HAYDEN: Oh no, I'm sorry to interrupt, but I didn't mean we wouldn't do lessons learned. That's absolutely essential.

HATCH: I understand. I'm just giving you a chance to make a...

HAYDEN: Yes, sir. But, as I said in my opening remarks, there's a downside to being so prominent, so much in the news, and I even allege -- from time to time -- we're the political football. And I would ask everyone involved in this committee and others to allow us to focus on the important work and not overdo the retrospectives.

HATCH: Thank you so much.

Mr. Chairman, I would ask that this letter from Director Negroponte and all of these listed briefings be placed in the record.

ROBERTS: Without objection.

(CROSSTALK)

ROBERTS: Senator Warner, with your indulgence and my colleagues' indulgence, I spoke earlier -- I'd like to set the record straight if I might. I think I indicated that I had been present during the briefing since the inception of the program. Obviously, that is not accurate. I was not chairman until three years ago. I'd like that to be corrected.

But the thought occurs to me, as you go down the list of people who were briefed -- and I'm just going to mention a few here: Ted Stevens, Dennis Hastert, Nancy Pelosi, Bob Graham, Dick Shelby, Jay Rockefeller, John Murtha, Harry Reid -- these are not shrinking violets.

ROBERTS: These are pretty independent people. And they say what is on their mind.

So my question to you is: Basically, when you were doing the briefings, did anybody -- it's my recollection, at least, that this did not happen, but I want to rely on yours because there were some there during the earlier times of this program.

And I want to ask you this question: Did anybody express real opposition to this program?

HAYDEN: Sir, again, I don't want to get into private conversations, but the generalized questions asked and answered, concerns raised and addressed -- and I can tell you, in my heart of hearts, Senator, I never left those sessions thinking I had to change anything.

ROBERTS: Well, did anybody say, at any particular time that the program ought to be terminated?

HAYDEN: No, sir.

ROBERTS: That it was illegal?

HAYDEN: No, sir.

ROBERTS: There was, as I recall, a conversation unto the necessity of, perhaps, to fix FISA -- if that's not an oxymoron -- to improve FISA, to reform FISA. And that is an ongoing discussion in this committee and in the Judiciary Committee.

And my memory is that it was members of Congress who gave you advice not to do that. Is that correct?

HAYDEN: Sir, that was in the large group in March of 2004. And there were discussions. FISA was considered to be one of the ways ahead. And my memory of the conversation is that there were concerns, I would say, almost universally raised, that it would be very difficult to do that and maintain the secrecy which was one of the advantages of the program.

ROBERTS: There was in fact, during these briefings, pretty much a unanimous expression of support. Is that correct?

HAYDEN: Sir, again, I'm reluctant to characterize members. But, again, the issues raised, any concerns answered, questions answered -- we all left knowing we had our jobs to do. And I came away with no course corrections.

ROBERTS: Now, these are the private conversations that went on with the briefings?

HAYDEN: Yes, sir.

ROBERTS: Were you surprised at the public statements expressing concern and opposition and other adjectives and adverbs that I won't get into?

HAYDEN: Sir, I was -- I'm reluctant to comment, Senator.

ROBERTS: Seems like there's a little bit of disingenuous double- talk going on here for some reason, and I'll just leave it at that.

Senator Warner?

WARNER: Thank you, Mr. Chairman.

May I say I think this has been an excellent hearing thus far, and the chair and others should be commended.

General, I have the privilege of knowing you for so many years, have worked with you. You have my strongest support. And I wish you an your family well. I know how important the family support is to our U.S. military, but the people in uniform across this country, both those now serving and those retired, take great pride in seeing one of their own selected to this important post.

HAYDEN: Thank you.

WARNER: The fact that you will continue in uniform certainly doesn't in any way, I think, denigrate from your ability -- if anything it enhances it -- as you continue your work.

WARNER: People who say that the intelligence should be headed by a civilian are reminded that the DNI is a civilian.

HAYDEN: Yes, sir.

WARNER: General, I awakened this morning, as others, to listen to the early, early reports on this proceeding. And there was a gent on there, I think he was with the 9/11 Commission, talking about how the morale at the agency has just hit rock bottom.

Well, I'm proud to say that in my 28 years here in the Senate, and five years before that in the Pentagon, now over 30 years of public service working with the CIA -- and I visit regularly. I've been twice this month, briefings on Afghanistan, Iraq, meeting with Director Goss. I don't find that morale rock bottom.

Do you have any assessment of it?

HAYDEN: Sir, I would say it's been a difficult time for the agency. Just, you know, go back through the headlines of the past week, month or three months.

I do find that the folks in the field very highly motivated, operationally focused. And in a way we unfortunately can't describe to the public, some great successes going on.

WARNER: No question about it.

And having had this long association with them, it is clearly one of the most remarkable collection of professionals, dedicated professionals to be found anywhere in government service.

But are there some steps you feel you're going to have to take when you hopefully cross the threshold here in a matter of days?

HAYDEN: Yes, sir.

I mentioned some things with regard to analysis and collection and S&T this morning. I think most important is to just get the agency on an even keel, just settle things down.

With all the events, Lord knows, of the past several weeks, it can't be a pleasant experience for the folks out there despite, as you point out, their continued dedication.

So I actually think, if I'm confirmed and I go out there, I would intend to spend an awful lot of my waking moments for some period of time just getting around and seeing and being seen.

WARNER: I commend you on that. Stick with that even keel. For an Air Force general, to use a naval term...

HAYDEN: Yes, sir.

WARNER: I like the idea of getting around. When I was privy to serve in the Department of Defense, I used to take a little time almost every week to go to the remote offices in the Pentagon where the Navy and Marine Corps personnel were. And it paid off great dividends.

I agree with you. The morale is strong and they are going their job, and they'll continue to do it. And you provide that strong leadership.

That brings me to the next question. It's a little tough. But our national security, as it relates to the executive branch, of course, as the president and his team, the secretaries of state and defense, homeland security, the Department of Justice, and then there's the department, now the department of DNI, Negroponte's outfit, of which you will be a part.

And I really think your opening statement was very well done. You paid respect to Porter Goss, which I think was highly deserving. We've all known him, worked with him through the years. The chairman served with him in the House.

He and I set up a commission about a dozen years ago, at a time when the Congress was looking at possibly abolishing the CIA. And that commission I think successfully rediverted that action, and we're where we are today with a strong CIA.

And you said, in a word, the CIA remains, even after the Intelligence Reform Act, central to American intelligence. And other statements in here which I was very pleased to read.

But we cannot lose sight of the fact that -- I was visited by Director Goss in the month of April, by Director Negroponte, just talking general things with him -- and then we awakened one morning to this resignation, at a time when this country is at war, and one of the major pillars of our security team, now the director stepping down.

WARNER: What can you tell us about -- I'm not going into all of the perhaps differences in management style and so forth. But was there something that the DNI and yourself -- you were the deputy; presumably he shared with you -- felt that wasn't going right? And what steps are you going to take to correct that?

I read through your opening statement about all the things you intend to do. But I go to the narrower question, there had to be some actions which said (OFF-MIKE). And the president had to step in and make his decisions.

HAYDEN: Yes, sir.

WARNER: What is it, when you hit that deck, are you going to do that was not being done, in your judgment, either according to law or otherwise?

HAYDEN: Well, Senator, I mean, Director Goss had a tremendous challenge. He had transformation that everyone's talked about within an agency, and then he had to adjust that agency's relationship with the broader intelligence community. That's really heavy lifting.

He was moving along both tracks. And I'm not privy to decisions that were made a few weeks ago and announcements that were made and so on, but was asked by the president would I be willing to serve as director.

The next Monday the president made that announcement in the Oval Office, and I said a few words at that time along the lines of standing on the shoulders of those who went before me.

I mean, I'm not Porter, I'm different from him. I'll probably end up doing some things differently. But I'm not going out there repudiating him or what he was trying to do.

Frankly, I just want to look forward. I'll assess the situation and move on.

WARNER: We need not be concerned because, under the Constitution, we are acting, on the president's request, your nomination to fill that vacancy.

And we want to rest assured, when we do fill that vacancy, whatever omissions -- omissions or otherwise -- were taking place to justify this, are corrected.

And you'll assure us that that will be done.

HAYDEN: Yes, sir.

WARNER: Perhaps in closed session, you can...

HAYDEN: OK.

WARNER: ... amplify on that.

The distinguished chairman of the House Armed Services Committee said the following the other day with regard to Iran. And it really caught my eye.

And he'd said there -- the question was, "How close is Iran to actually developing a nuclear weapon?"

"I'd say we really don't know. We're getting lots of mixed messages."

Obviously, we're getting lots of different messages from their leadership, the stuff they say in public.

Then he went on to say: Hey, sometimes it's better to be honest and to say there's a whole lot we don't know about Iran that I wish we did know. As we and the public policy-makers need to know what that -- as we're moving forward and as decisions are being made on Iran, we don't have all the information that we'd like to have.

Now, I'm not asking you to agree or disagree, but that's a very forceful public statement and acknowledgment.

Yesterday, a group of us had a chance to speak to the DNI. And that question was addressed by the DNI. But America's greatly worried about Iran. It poses, in my judgment, the single greatest risk, not just to this country but to a whole region and indeed much of the free world.

What can you tell us, in open, will be some of your initial step to strengthen that collection of intelligence as it relates to Iran?

HAYDEN: Yes, sir, and you chose the right word. It's strengthening, rather than some sharp departure. The ambassador has appointed a mission manager for Iran, Leslie Ireland. Leslie has that task as her full-time job.

And what she's doing is not just inventorying what we're doing as a community but actually redirecting our emphasis as a community.

And in closed session, I'll give you a few more details. But she's narrowed it down from everything there is to know to four key areas that will best inform American policy.

And we're moving additional resources into those areas.

ROBERTS: Fine. I just wanted to have the public hear that you're going to put that down as your top priority on this. Of course, Hoekstra is the chairman of the House Select Committee on Intelligence there.

Let's turn to another issue. And that is: Do you plan to have any significant large numbers of transferred personnel from CIA to the DNI?

HAYDEN: Sir, the only thing that's on the table -- and thank you for asking this, because there are a few urban legends out there...

WARNER: Yes.

HAYDEN: ... that need to be scotched.

The only thing on the table is a redistribution of our analytic effort with regard to terrorism. So the stories out there that the D.I. is going to be dismantled or the D.I. is going to be moved, there are no thoughts, let alone plans, to do that.

And the amount of movement within the counterterrorism, analytical forest is going to be measured in doubled digits, no triple digits.

WARNER: In other words, less than 100 people.

HAYDEN: Oh, yes, sir.

WARNER: Well, you said in your opening statement that "CIA must remain he U.S. government's center of excellence for the independent all-source analysis," end quote, and I agree with that.

Now, my understanding that our distinguished colleague and former colleague, Mr. Goss, Porter Goss, was endeavoring to retain a strong counterterrorism analysis capability internally to the CIA. Do you intend to continue that initiative?

HAYDEN: Yes, sir. But, frankly, that's the friction point that generated your previous question. How much...

WARNER: The question being his resignation.

HAYDEN: No, sir. No, not that. With regard to the...

WARNER: Because I know it was an issue.

HAYDEN: ... moving analysts.

Yes, sir -- an issue. It's something we have to resolve.

Right now, in the counterterrorism center at CIA, you have a wonderful group of people performing magnificently. By legislation and, I think, by logic, the National Counter-Terrorism Center, however, has been given the task of strategic analysis with regard to terrorism.

What we're trying to do is shift our weight -- and this is not going to be a mass migration -- but shift our weight of some analysts from CIA's CTC and some other points around the community so that the NCTC, the National Counter-Terrorism Center, can do its mandated tasks and do that without in any way cracking the magnificent synergy we now have between D.O. and D.I. inside the CIA, with analysts in direct support of operations.

That's the problem, Senator.

WARNER: That's a very helpful clarification.

And in that context, do you have, I think, only one reporting chain, and that's the DNI? Is that correct?

HAYDEN: Yes, sir, that is correct.

WARNER: No other reporting chains directed to the White House?

HAYDEN: No other -- I'm sorry?

WARNER: No other reporting chains directed to the White House?

HAYDEN: Sir, there is a little bit with regard to the additional activities in the legislation. In terms of all the intelligence functions, unarguably through Ambassador Negroponte. With a few other things, it's with Ambassador Negroponte. Porter, for example, would be there at the White House with the ambassador explaining things. It's a comfortable relationship. I don't think there will be any problems.

WARNER: So there is some -- you have a direct chain to Negroponte, and at times you work in conjunction with him?

HAYDEN: Yes, sir, that's how I would describe it.

WARNER: And that's a workable situation?

HAYDEN: Yes, sir. Yes, sir.

WARNER: On the question of the chiefs of stations, they're are remarkable individuals all over the world. And I think most of us who travel make a point of visiting with the chiefs of station on our various trips.

WARNER: Are the chiefs of station in our embassies abroad representatives of the DNI or the director of central intelligence?

HAYDEN: Senator, all of the above. We have initiation...

WARNER: Do they have a dual reporting chain?

HAYDEN: They do. For community functions, they report to the DNI. For agency functions, they report to the director of CIA.

WARNER: And that won't pose any problems for you?

HAYDEN: It should not, no, sir.

WARNER: We hope that will be the case.

Now, the relations with the Federal Bureau.

How many times, Mr. Chairman, did we sit in this room at the time we were working on this new law and addressing this issue?

Now, the Silberman-Robb report, which is a very good report. And I've gone through it, and they have a whole section in here relating to ending the turf war between the bureau, FBI, and the CIA.

Can you bring us up to date on where you are in assessing that issue?

HAYDEN: Number one, we've created the National Security Branch inside the FBI. And the funding and the tasking for that come from the DNI, come from Ambassador Negroponte. So that's one reality that's different since the publishing of the report.

Secondly, the ambassador has assigned to the director of CIA the function of national HUMINT manager. So with regard to training and standards and deconfliction and coordination, the national HUMINT manager does have a role to play with human intelligence as conducted by the FBI and as conducted by the Department of Defense.

WARNER: Do you have a liaison from the bureau in your office out at the agency?

HAYDEN: Senator, I am a little unclear whether he is there or is about to get there, but the deputy...

WARNER: But it is being done.

HAYDEN: ... of the community HUMINT office, the senior there is a Marine two-star, the former head of the Defense HUMINT Service. And the expectation is, if it's not the reality, his deputy will be from the bureau.

WARNER: I recommended that, because I think that they should have access, a free flow of that information.

Now, there was a memorandum entered into in 2005 by Director Goss.

WARNER: Are you familiar with that memorandum?

HAYDEN: Yes, sir.

Is this the one with the bureau or the one with the department?

WARNER: Bureau.

HAYDEN: With the bureau, yes, sir.

WARNER: You intend to continue that?

HAYDEN: Yes, sir.

WARNER: That covers that subject.

On the question of the national HUMINT manager, now, look here, we had a discussion earlier today about the Army Field Manual. And I and Senator McCain and Senator Graham and others have worked on that issue for some time. We're continuing to work on a regular basis with the Department of Defense as to the promulgation, the procedures and so forth.

But there's a question of how the agency intends to presumably continue its interrogation process, and indeed perhaps get into detainees.

Now, if I understand it, earlier in this testimony you said that you fully intend -- that is the agency -- to comply with the basic standard of not involving in any cruel or inhuman or degrading -- fine -- treatment. I understand that.

But there's a whole manual out here guiding the men and women in uniform. Should there not be a companion manual guiding the civilians who will be performing much of this task?

HAYDEN: Senator, speaking in generalities now and perhaps more detail in a closed session, absolutely.

I mean, one of the key things that -- I use the line in this report about creating the conditions for success in my opening statement.

That's one of the conditions for success: that anything the agency does -- let me put it that way -- anything the agency does that the people of the agency understand what is expected of them, that the guidelines are clear, that they meet those standards and that, obviously, there are consequences if any of them were unable to meet those standards.

WARNER: That's clear.

HAYDEN: So it's got to be clear, specific, written for all the activities.

WARNER: Understood.

But will there be any differences in how these interrogations are...

HAYDEN: Yes, sir. I don't want to...

WARNER: Either uniform side or the civilian side.

HAYDEN: Yes, sir.

I don't want to go into any great detail here in open session, but just say that even in the detainee treatment act itself, it talks about the Army Field Manual applying to DOD personnel with regard to detainees under DOD control.

HAYDEN: The "cruel, inhuman, degrading" parts of the statute apply to any agency of the government.

So I think even the statute envisions that there may be differences.

WARNER: All right. Well, we'll be looking at that very carefully, because we'll have to explain to our constituents and others if, in fact, there is a significant difference, the basis for it.

I happen to be a great champion of the science and technology. I think few people realize that you have a magnificent setup out there that are devising all types of devices to not only do the work of your agency, but they have parallel uses by other departments and agencies. Indeed, some of it may be incorporated in the advancements we're going to take in the border security.

So tell us about the emphasis that you'll put on that. I look upon that as one of the four stools of the agency.

HAYDEN: Yes, sir. Absolutely.

A remarkable record of success, maybe enabled by legislation that gives the CIA a bit more freedom of action when it comes to these kinds of things, not quite -- I don't want to say rule-bound, but let's say administrative-burden-bound.

And I need to learn more about it, and what their current focus might be. I said in my opening comments, though, job one is that S&T activity supporting two of the other key pillars of the agency: the human collection and the analysis.

WARNER: All right. Well, I'm delighted to hear you'll put emphasis on that.

Lastly, in your statement you said, quote, "We must set aside the talent and energy to take the long view and not just chase our version of the current news cycle," end quote. I agree with that.

What steps will you do to impress on the agency they need that? You see how these people have followed a course of action which was extraordinary for many years throughout the history, and you've got to change, I suppose, some of the old, entrenched beliefs and work styles. And this is one of them.

HAYDEN: Yes, sir.

In fact, I actually think it might be worse now than it has been historically; that this is a particular problem with the current age. I mentioned the CNN effect this morning, where our customers seem to want us to have the same kind of pace that you get on Headline News.

HAYDEN: The other aspect is, we're engaged in war in several major theaters. And that's just pulling energy into current operations. And it's understandable. It's legitimate.

So I think left to itself, there will be so much gravitational pull to the close term that you'll really have to expend energy to push the field of view out. And that's what's going to be required.

WARNER: Good luck.

HAYDEN: Thank you, sir.

WARNER: Take care of those people out there.

HAYDEN: Yes, sir.

WARNER: Or I'll be knocking on your door.

HAYDEN: Yes, sir, I know.

WARNER: Thank you very much.

ROBERTS: Senator Hagel?

HAGEL: Mr. Chairman, thank you.

General Hayden, welcome. We are most grateful to you and your family for your almost 40 years of distinguished service to this country. And we look forward to many more years of this same quality of service. And we are not unmindful of the toll it takes on a family.

So thank you. And thank you for your family being here today.

I was impressed with your opening statement, General Hayden, because I think it reflects clearly the kind of world that we live in today. It is a world of grand transformations.

As you have catalogued, not only your priorities -- and I'd like to explore some of these points that you made in a little more detail, as has been done already for the past few hours here today.

But I think it encompasses and frames the larger picture of what you will be dealing with as the new CIA director. But also it pulls, like all of us, from our experiences and our conditioning and our molding and shaping and the product that we have before us in a four- star Air Force general who is the preeminent intelligence officer in our government.

And that accumulation of experience and knowledge and mistakes in judgment has brought you to this point.

It has been my belief, and I think it's reflected in the polls -- people read the political polls sometimes with only the politics in mind. But the polls today in America say to me, General Hayden, that Americans have essentially lost confidence in their government.

HAGEL: They've lost confidence in us, those who govern, those who have the privilege and responsibility.

When the president's poll numbers are as low as they are, when the Congress' approval ratings are lower than the president's -- I don't know if that comforts the president or not -- but nonetheless it is beyond politics, because politics is the avenue that we use to arrive at leaders and the shaping of policy and therefore the direction of a country.

And that's what these poll numbers are telling us: that America has lost confidence in the leadership of this country. We all have some responsibility, Democrats, Republicans, the White House, all of us.

So I was particularly struck by one of your points in your testimony about emphasis on trust. And you and I had a very good conversation in my office last Friday about this issue and others.

And at a time when I believe we are still reeling from what happened on September 11th, 2001, trying to find that new center of gravity, technology, 21st-century threats have overtaken all of our laws. They've overtaken institutions and structures. That's not unusual; it is that way every 50 or 60 years in the world, a dynamic world.

So our task here as policy-makers -- your task as the new leader of the premier intelligence agency in the world -- will be to address these 21st-century threats with 21st-century structures and solutions.

And that was, to me, very clear in your testimony this morning. And I'm particularly grateful for that, because we do tend to get lost in the morass of the underbrush and the technicalities of leaks and who said what to whom and all the details that actually veer us away from the center of purposefulness, some consensus of purpose that we strive for all the time here -- or we should -- to try to govern.

HAGEL: But more to your point, you have a very clear center of purpose in your job, in the intelligence agency, and when you, in response to some of the questions here, talked about -- if I have it about right -- "We will not defeat international terrorism without a very clear relationship with our international partners" -- something to that extent.

So let me begin there, because I happen to believe that it is not a matter of how many Marines and infantrymen we can place around the world that will defeat extremism and terrorism and these threats of the 21st century -- proliferation, which I will get to in a moment.

But the core of this, the hub of this is what you are about and what the intelligence community in our country and the world is about: a seamless network that you mentioned, not only within our community here in the United States, but that same kind of seamless network with our international relationships, to stop these things before they occur, to start picking them off where it counts, really counts.

And then, of course, you get into the next, outer circle of that, which you all have some responsibility for, too, but can't find solutions to all of it, and that is what causes these kinds of things, what is the underlying cause -- not simple, complicated -- despair, poverty, endemic health issues. We know how those accumulate to bring us to the point we are today.

If you could enlarge upon your comments and your testimony in some of the answers you gave here on what you intend to do as the new CIA chief to, in fact, address a closer relationship with our friends and our allies in knitting together those seamless intelligence networks, as well, as you noted in your testimony, within the intelligence community.

HAYDEN: I think the first requirement is just a sense of focus, I mean, just paying attention to it.

I learned in my job at NSA -- and have friends around the world -- you pay attention, you spend some time, you understand. There are a lot of allies out there who are not only looking to assist us in the global war on terrorism, in some ways they're looking for -- and I don't want to overstate this because it sounds too arrogant, but they're looking for some sense of leadership, some sense of direction -- some sense of direction around which they can organize their own sovereign efforts.

HAYDEN: I think you just plain have to pay attention to them, listen to them and understand, and although in most cases there will be great disparities of resources and power, to afford them the treatment as an equal in some respect.

So I think that can be done. I think that's absolutely valuable. And I think our friends and allies would enthusiastically welcome that. And so I'll just try to reinforce what we already have.

Inside, inside our government, we've probably got two concentric circles to worry about. One is the intel community itself. And I actually think we've made some good progress there, but as I think Senator DeWine mentioned earlier this morning about sharing and technology and it's really policy, and, frankly, I think I responded you just have to get on with it.

So that's the second.

And then the larger concentric circle is between the intel community and the other parts of the U.S. security establishment, DOD, especially Homeland Security, the law enforcement aspects of the FBI and so on.

I kept using sports metaphors in my prepared comments, but I really do mean it: You have to play team ball here. And that requires everyone to play position and not crowd the ball. You know, the ball will come to you directly, just play your position. And then focus on the scoreboard, not on individual achievement, an individual agency or Cabinet-level department.

Sorry, Senator, that sounded more like a sermon than a work plan, but that's the approach.

HAYDEN: And I think a lot of it is attitudinal.

HAGEL: I happen to believe everything is about attitude.

You might recall that when you were before this committee when we held a confirmation hearing for the current job that you have, the deputy director of national intelligence, I asked you about your plans for bolstering the energy, strength, teamwork and culture of excellence in the organizations that make up the intelligence community.

And I want you to address that, if you will. And I know you have alluded to it in your answers to some of the questions today, but specifically, the culture of excellence that -- you have used that term; I happen to agree with that term -- within our intelligence community, within the CIA, how do you, not necessarily resurrect that; I don't think we've lost that, but I think it's been tarnished. And there is a corrosive dynamic, and you've alluded to that. It's as a result of many things.

But I want you to also focus on the next generation. What will you particularly be going to focus on this next generation of CIA leaders that this country and the world is going to need?

HAYDEN: Yes, sir.

We really have an opportunity here; in fact, so much of an opportunity that it's a real challenge.

We have so many folks at the agency who have fewer than four years service. They now make up a significant portion of the population.

So here's a group -- if we pay attention to the lessons-learned studies and your WMD review and all the other things, these are folks who are not going to have to unlearn something. They'll be coming into this with a tested approach, one that's been improved.

So there's the opportunity.

HAYDEN: Now here's the bad news: For every individual -- and I'll use the agency's analytic force and I'll just have to use comparisons rather than absolute numbers because of classification. For every 10 individuals we have in the analytic force with one to four years service, we only have one with 10 to 14 years of service.

We don't have any shop stewards or foremen. We got senior leaders and we got workers, but that middle layer of management is very, very thin.

MIKULSKI: Mr. Chairman, excuse me, could the general repeat those numbers? I had a hard time hearing those numbers.

HAYDEN: Yes, ma'am.

Again, I can't get into the specific numbers because at CIA, unlike NSA, they're classified population numbers.

But for every -- I'm talking about the analysts, all right. For every 10 analysts with fewer than four years service, we only have one experienced analyst between 10 and 14 years of service.

So what you end up with, again, is you don't have any shop stewards that should be doing the coaching and mentoring. And so here we have this great opportunity, new population, lessons learned, but the demographics are all wrong. And that's just going to take a lot of work and a lot of energy to turn the advantage into true advantage with this new population.

It's very interesting. This is the youngest analytic workforce in the history of the Central Intelligence Agency. Put in more disappointing language, this is the least experienced analytic workforce in the history of CIA.

HAGEL: But what a marvelous opportunity, as you note, at a time when the world has changed, is shifting at an incalculable rate.

HAGEL: And we're all trying to not just catch up, but stay even. And to have that kind of opportunity to shape and mold these bright new young leaders is, to use your point, a big advantage.

HAYDEN: Yes, sir.

HAGEL: A huge advantage, and we must not squander that.

HAYDEN: Sir, if I could just add the point: We weren't able to create that demographic at NSA until after 2001. And although that's a real challenge, it's a lot better than the other challenge, which is you don't have many folks coming through the front door.

HAGEL: Let me ask a question on -- in fact, you were responding to one of Senator Warner's questions about this. The National Counterproliferation Center: In light of, for example, the agreement that the president signed with India -- and I was just in India last month and spent some time, as well as Pakistan, with the government leaders and private industry leaders.

Explain to this committee, in your view, how this center will impact and help shape future arrangements, not just using the India- U.S. agreement. But proliferation of weapons of mass destruction, I don't have to tell you, no one has to tell you that that represents really the greatest threat to mankind in the 21st century. So how are we going to use the center?

HAYDEN: Here are a couple of thoughts I'd share with you that I think will really put this into context.

First of all, let me tell you what it's not: It's not NCTC, National Counter-Terrorism Center, which has its own analytic function and so it's a workforce numbered in the hundreds.

These guys are numbered at about 60, 65. They're not a source of independent analysis. They're the mission manager. They're the guys on the bridge, and not the folks shoveling coal.

And so what you've got there with a very experienced senior leadership team is the ability to shape the efforts of the community in a more coherent way, back to that team ball metaphor, than we've had in the past.

One other additional thought -- we've got four mission managers right now.

HAYDEN: Two are topical, two are geographic: Counterterrorism, counterproliferation; Korea, Iran.

Well, you quickly do the math, you're going to have some intersections. And so who's the final word on Iranian WMD? Who's in charge, the Iranian mission manager or the NCPC, the counterproliferation mission manager?

Because of what this committee has -- in addition to other sources have told us about the Iraq analysis, which was, I will say, perhaps culturally deficient and technologically heavy -- that's a cartoon, and probably unfair to a lot of people, but there's an element of truth in there.

Because of what we learned there at those intersections, it's the area mission manager that gets the final call.

That's kind of the dynamic that we've set in place for NCPC, Senator.

HAGEL: Thank you.

Let me get to a point, I believe in a response to a question that Senator Wyden asked, if I have this about right. You said, quote, "Help me understand where to draw the line between liberty and security." And this was in the broader framework line of questioning that we've heard a lot about today, important, as you have recognized many times.

And I appreciated that statement for many reasons. The chairman just talked a little bit about rewriting the FISA law. I don't think there's anyone who questions that. We do need to give the intelligence community a new framework to work within, assuring that what you and all the professionals are doing, you don't have to go to the attorneys every hour -- "Is this legal or not legal, can we do it, can we not do it?" -- but let you do your jobs.

That's our responsibility as policy-makers, to give you that new framework. We're going to need input from you...

HAYDEN: Right.

HAGEL: ... as to how we best do that, doing exactly what you said, that constant balance of protecting constitutional rights of Americans, as well as protecting security interests of this country. We've done it pretty well for over 200 years.

I think it's one of the most significant policy challenges we have here in this Congress, with the president, this year. It has to be done. And we are paying attention to it.

But we're going to need some guidance from you. Here's an opportunity, General Hayden, to lay some of that out, if you care to give us some of your thoughts on how do we rewrite a law that does what you need to do and protects the interest of our country as well.

HAYDEN: Yes, sir. Let me not get into specifics. If we need to, we can share some ideas in closed session.

A couple of, let me just say, factors bearing on the problem -- and there are two. One is nature of the enemy. When FISA was first crafted, it was Cold War.

And if you look at the legislative, as I've looked at sometimes and my lawyers at NSA have told me, an awful lot of the language for FISA was drawn from the criminal side of the U.S. code.

So we need to just reassess what is it we're trying to achieve here in a foreign intelligence way against what kind of threats.

And so that would be one approach. The other one is technology. I've actually said publicly, and I'll just repeat it here, that the reach of FISA, the impact of FISA, is well beyond what any of its original crafters could have possibly intended because they could not possibly have known the dramatic changes in technology.

Again, Senator, just a factor bearing on the problem, not an ironclad solution.

It may be that the best way to craft FISA is in terms of not trying to predict all the changes, possibly, in technology over time but setting up processes by which those changes can be accommodated to a fully constant standard of what constitutes privacy so that, when communications change from going out of the air to going into the ground that all of a sudden the impact of the law is completely different without any context as to how that affected privacy.

So that's a little obscure, but...

HAGEL: No, I get it. And we're going to, obviously, be calling upon you and your colleagues for more detail.

But let me ask one last question while I've got a couple of seconds. There's been some reference made today, and you referenced it, what happened with intelligence and why and how it was used, misused, leading up to Iraq.

HAGEL: And we're not here to replay all that. But here's what I would like to hear -- because we had some gaps; let's put it that way.

And by the way, I'm not one who blames the intelligence community for the decisions to go to war in Iraq. That's an easy way out, as far I'm concerned. And there was other contradictory alternative analysis out there. It was within our own government.

Those who chose to make the decisions they did based on their own selective reading of it -- that's not what you said; it's what I said.

I say that because I'd like to hear from you what your ideas are about alternative sources of intelligence analysis so that we don't get ourselves back into invading Iran, not knowing what we're doing or not paying attention to consequences or whatever else what may be down the road here with options for policy-makers and the president.

HAYDEN: Yes, sir. The approach of alternative analysis, obviously, has great value. We've done that; it's under way. We do see that.

Here's the magic spot: How do you institutionalize that without destroying it?

I mean, once you institutionalize thinking outside the box, you know, it turns to dust in your hand. I think it's more about process than structure. It's more about insisting on considering alternative views rather than boxing off -- this is my "alternative view" office. It's just simply demanding that.

HAYDEN: Look, Senator, this is four-square in our mind now, everybody in the community. We understand. We know when we're good; we know when we're not so good.

Those lessons will have a tendency to wear off as we age off from the WMD, national intelligence estimate and so on.

The challenge for leadership is not to let that happen, is to keep that focus on this enriching and challenging aspect of our analysis.

HAGEL: You're going to be one of America's best CIA directors, General. Thank you.

Mr. Chairman, thank you.

ROBERTS: Senator Feingold?

FEINGOLD: Thank you, Mr. Chairman.

First, General, congratulations on your nomination, on your obvious abilities, your tremendous experience and distinguished career of public service, and also on your manner. I want to say as one senator that I find it very easy to work with you and talk with you.

HAYDEN: Thank you.

FEINGOLD: And I admire some of the remarks you've made today in candor with regard to Iraq and some of the comparisons that one might make as we look at the Iran situation, that maybe we'd now want to handle it in the same way, so I appreciate all of that.

Before I turn to you, let me just say generally, yesterday, four and a half years after the president authorized a program to wiretap Americans without a warrant and almost five months after the program was revealed in the press, the administration finally began describing the program to this committee.

This long overdue briefing, hastily arranged on the eve of this nomination, in my view does not provide enough assurance that the administration's general contempt for congressional oversight has diminished.

But Mr. Chairman, it is nonetheless welcome. And I look for more.

Mr. Chairman, I came away from that briefing yesterday, more convinced than ever, first, that the program is illegal, and second that the president misled the country in 2004 before the revelations about this program became public, when he said that wiretapping of Americans in this country requires a warrant.

And third, that there was absolutely no reason that the administration could not have told the full committee about the program four and a half years ago, as is required by law.

FEINGOLD: Now, the question before us today is the nomination for the director of the CIA of General Hayden who directed and vigorously defended this illegal program.

Again, General Hayden is highly experienced and I have enormous respect for his many years of service.

But it is our responsibility to ask: What kind of CIA director would he be? Will General Hayden follow the law, not the law except when the president says otherwise? And will General Hayden respect Congress' statutory and constitutional oversight role and not just when the president deems it politically convenient?

Let me be very clear, and I don't think there's any distance between me and General Hayden on this: Al Qaida and its affiliates seek to destroy us. We must fight back and we must join this fight together as a nation.

But when the administration ignores the law and refuses to involve Congress, I think it actually distracts us from our enemies and weakens us and weakens what the general and everybody else is trying to do.

Our greatest strength as a nation lies in a few basic principles: that no one is above the law and that no one may operate outside of our constitutional system of checks and balances.

So, General, there are many intelligence matters that cannot be discussed publicly.

FEINGOLD: But I think the American people have a right to know that what they are told publicly is in fact neither inaccurate nor misleading.

And Senator Wyden was referring to a couple of statements that you've made in the past that may bear on this.

On October 17, 2002, you told the joint inquiry into the terrorist attacks of September 11, 2001, that persons inside the United States, quote, "would have protections as what the law defines as a U.S. person and I would have no authorities to pursue it," unquote.

Given that the president had authorized the NSA to wiretap U.S. persons without a FISA warrant, how do you explain this statement?

HAYDEN: Senator, let's go back and look at the context in which I offered it. It is very clear to me, though, even under the president's authorization, that considerable legal protections would accrue to a, quote/unquote, "target in the United States affiliated with Al Qaida that would affect the ability of the NSA to track that target, compared to that target being in any other place on earth outside the United States."

I also said that -- and that was in a totally open session, as I recall -- and I prefaced my remarks that day by pointing out that I had briefed the committee in more detail and that my remarks that day were necessarily limited.

FEINGOLD: Well, General, I respect what you just said. But you specifically referred in that session -- I have the transcript here -- to U.S. persons in the context of FISA.

In other words, you weren't talking about a different program. You weren't talking about some of the other protections that might be there.

And to the American people and to members of Congress, when they're talking about FISA, that means a warrant. So I'm wondering how you can reconcile that with...

HAYDEN: Again, Senator, I knew in my own heart and mind that we were not talking about domestic to domestic.

HAYDEN: If my language could have been more precise, I apologize. But it was not an intent to mislead; it was to describe the limitations under which the agency worked and continued to work inside the United States.

I think that was the speech where I talked about Osama bin Laden crossing from Niagara Falls, Ontario to Niagara Falls, New York, and saying all of a sudden, U.S. law kicks in, and my freedom of action against him is suddenly very limited, so that even though the president's program would, as we all now know, allow me to catch Osama when he called back to Waziristan, I couldn't catch the call from Buffalo to Pittsburgh.

FEINGOLD: And I appreciate that example. And I take you at your word that you did not intentionally mislead. But it was misleading. And I think when you say you had no authority to pursue the target, the average person who knows enough about this would have concluded otherwise.

But let me move on.

As you know, there is now a vast body of legal scholarship that says that the warrantless surveillance of Americans violates the FISA law. And of course you said that your lawyers told you it was legal. But you are an intelligence professional with many years of experience conducting surveillance within FISA. Then one day, you're told that FISA doesn't apply -- and by the way, don't tell the full Intelligence Committee.

Forget for the moment, General, what the lawyers said. Have you ever had any doubts that when this change in approach was made, that there may be a concern about not following FISA?

HAYDEN: Senator, obviously, there were concerns. I mean, I had an agency that for decades, well, since the mid-1970s, had frankly played a bit back from the line, so as not to be close to anything that got the agency's fingers burned in the Church-Pike era.

And so, this wasn't done lightly, and it wasn't done automatically.

FEINGOLD: But did you have any doubts about the legality of doing this?

HAYDEN: Personally, no, I did not. And that was submitted with my conversation with the lawyers I knew best, the lawyers at NSA. It probably would have presented me with a bit of a dilemma if the NSA lawyers had said, "No, we don't think so," but they didn't.

HAYDEN: And there was no pressure on me. It was, "I need to know what you think."

FEINGOLD: So were you frustrated prior to 9/11 that this kind of authority, which I take it you believe derives from Article II, the president's powers, was not being used; that only FISA was being followed? Did you think that was endangering American national security?

HAYDEN: Well, actually, there was an interesting article today -- yes, it was today, in the Baltimore Sun, that talked about some NSA activities. And without getting into the fine print of the article and confirming or denying anything about it, it talked about discussions at my agency on the millennium weekend as to what we could or could not do inside the United States when we thought we were under great threat.

And, according to the article, and just staying within the context of that, Senator, I made some decisions there that made some of our operators unhappy, in order to stay within the confines of statutes, because I had no other legal recourse to do something other than the FISA statute and Executive Order 12333, neither of which...

FEINGOLD: Article II of the Constitution was in place at that time.

HAYDEN: It was...

FEINGOLD: So why didn't you have legal recourse to that?

HAYDEN: Because the president had not exercised any of his Article II authorities to authorize the agency to do that kind of activity.

FEINGOLD: Did you urge him to do so?

HAYDEN: No, we did not at the time, no, sir. This happened very quickly.

FEINGOLD: Well, of course my concern here, naturally, is: What is the limit to this Article II power and where does it leave the role of Congress in this area? And I was struck by your comments that you had had a conversation with Senator DeWine where you talked about -- earlier, not today, but an earlier occasion where you talked about the tension between liberty and security and what do the American people want?

What I would submit to you, General, is that the American people have expressed what they want through the laws that are on the books now. And there can be helpful discussions, such as the one Senator Hagel just conducted with you about whether it should change.

FEINGOLD: But at this point, it's the law. And you know as well as I do that no one, and not even the president, is above the law.

And I want to remind you with all respect, General, because I have great respect for you, that no one can force you to break the law.

HAYDEN: Doctor, I'm well aware of that. And our Uniform Code of Military Justice talks very clearly about the lawfulness of orders in order for the orders to be effective.

FEINGOLD: Thank you, General.

General, if you're confirmed, there will likely come a moment when the president turns to you and asks whether there is more the CIA can do under the constitutional authority that he has asserted under Article II. What would you tell him? Is there more?

HAYDEN: Well, obviously a hypothetical, but let me just imagine the hypothetical in which not unlike the NSA situation, there are additional things that could be done.

Senator, I'd consult my lawyers and my conscience just as I did in 2001. In this particular case, Senator, to be very clear, all right, the White House counsel, the attorney general, the Department of Justice's lawyers and my own lawyers at NSA ruled this to be a lawful use of the president's authority.

FEINGOLD: You're referring back to the wiretapping.

HAYDEN: Yes, sir.

FEINGOLD: I'm asking you whether there are additional things you'd like to see -- you just indicated to me in a helpful response that prior to 9/11 you thought some things maybe should have been done pursuant to Article II, even though they were not permitted by FISA or perhaps some other statute.

Are there other things that you believe now we should be doing that are not covered by statute that would fall under this category?

HAYDEN: No, sir. None that I'm aware of.

FEINGOLD: Take another example in this area.

The law states that the director of the Central Intelligence Agency shall have no police subpoena or law enforcement powers or internal security functions. If the president told you that he felt he had power under Article II to override that, would you be bound by the statute or would you follow the president?

HAYDEN: Again, Senator, it's a hypothetical. But the statute is clear, and unless there was a compelling legal argument as to why that was a legitimate exercise of presidential authority, of course not.

FEINGOLD: Under this theory, could the CIA conduct covert action inside the United States?

HAYDEN: Again, Senator, a hypothetical, and I wouldn't even know how to begin to address that.

I mean...

FEINGOLD: Just trying to figure out what it is that would limit the president from saying that to you and if he gave that order, or he made that statement, based on your answers it seems to me you believe he has that inherent power to do it...

HAYDEN: No, no, sir.

And what I believe is important but not decisive. There has to be a body of law from people whose responsibility it is to interpret the law for someone like the position I was in at NSA, or if confirmed, at CIA who would say that this, indeed, is lawful and a lawful exercise of authority.

HAYDEN: And like I recommended and was quickly granted in the case in October 2001, we informed our oversight bodies.

FEINGOLD: I appreciate that answer very much. And I just have to say, for the record, that the body of law that supports this wiretapping program, I think, is exceptionally weak compared to the other authorities that have been discussed. But you and I have been back and forth on that. But I think it's terribly important to realize, because you are acknowledging that you would have an independent obligation to look at whether that law's sufficient to justify the president's claim under Article II.

HAYDEN: Again, Senator, it's a hypothetical. But, you know, four and a half years ago it was very important to me that the lawyers I knew best personally, that I trusted, and who knew best the National Security Agency were in agreement.

FEINGOLD: Why wasn't the president's warrantless surveillance program briefed to the full congressional intelligence committees until yesterday?

HAYDEN: It was not my decision. I briefed fully to whatever audience was in front of me. And I wouldn't attempt to explain the administration's decision, but it was the decision of the administration.

FEINGOLD: You weren't given any explanation of why the decision was made not to allow it?

HAYDEN: There were discussions...

FEINGOLD: What were you told?

HAYDEN: ... in terms of -- I believe it's Section 502 and 501 within the phrase "with due regard" in both of those sections. The one that has to do with general intelligence activities and the one that has to do with covert action in both cases, the paragraph (inaudible) with "due regard to the protection of sources and methods."

Beyond that, sir, I...

FEINGOLD: So it was the sources and methods the point that was made...

HAYDEN: There was, I believe, a strong desire to keep this program as close-holed as possible because of its value...

FEINGOLD: Fair enough...

HAYDEN: ... while at the same time informing those who needed to be informed.

FEINGOLD: Fair enough. On that point, and on the sources and methods justification, the National Security Act states that, quote, "Nothing" -- nothing -- "in this act shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information to the congressional intelligence committee would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods," unquote.

General Hayden, the congressional intelligence committees handle sensitive sources and methods every day.

HAYDEN: Yes, sir.

FEINGOLD: What was it about this program that was different, other than the administration knew that it would be politically and legally contentious?

HAYDEN: Senator, I wouldn't attempt to describe the background to it. I know what the decision was. I was heartened that I was able to brief the senior leadership of both intel committees and the senior leadership of the Congress.

And I was heartened that I was able to do it multiple times.

FEINGOLD: Well, in fairness to you, I got the feeling that you probably did want to tell more people. So I want to be fair about that.

I got that feeling, but -- do you see the distinction between sensitive sources and methods which are part of a known program and an entirely new surveillance program whose existence would likely surprise, if not outrage, many members of Congress?

I mean, isn't there a distinction, as we look forward, in that regard?

HAYDEN: Sir, I apologize. I don't see the distinction in law. And I do know that practice has been, for activities, for example, like covert action, that only the senior member and the chairman are briefed.

FEINGOLD: General, in January, you stated that you would, quote, "take no view on the political step of going to Congress for an amendment of the FISA Act," unquote.

But the question of seeking a statutory basis for conducting surveillance in this country, in my view, is not a political question. It's fundamental to our constitutional system of government.

General, if you saw that our country's statutes did not provide the authority you thought was necessary to combat terrorist organizations, would you seek that authority from Congress?

HAYDEN: If I had no lawful authority to conduct something that I believe needed to be done to protect the nation, of course, I would.

But in this case, Senator, just to make sure I'm not misleading by half by not being complete, in this case, I believe I did have a lawful authority.

FEINGOLD: Can you explain to me why it is that we even need to pass laws in Congress in this area that relates to Article 2, given the claims that are being made by this administration of its power in this area?

HAYDEN: Senator, again, if you look at the three pillars on which this program was based -- its lawfulness, its effectiveness and then the care with which it was carried out -- I'm, kind of (inaudible) for two and three, its effectiveness and the care with which it was carried out.

And I think I suggested earlier today, the founding fathers intentionally put tensions between Article 1 and Article 2. And I don't think I can solve those.

FEINGOLD: Senator Bond asked you whether, under the warrantless surveillance program, any Americans had been targeted who were not associated with Al Qaida.

And you replied only that you didn't see how that could occur within the NSA's culture.

The question remains: Has it happened?

HAYDEN: In each case, when NSA has targeted a number under this program, there has been a probable cause standard met, in the judgment of our analysis and those who oversee them, that there is reason to believe -- a reasonable person with all the facts available to him or her at the time has cause to believe that this communicant is associated with Al Qaida.

FEINGOLD: But that's not my question. And that wasn't Senator Bond's question.

It's whether it's ever happened that any Americans have been targeted who weren't associated with Al Qaida. As a matter of fact, has it happened, despite the cautions...

HAYDEN: Sir, I'll give you a detail in closed session, all right?

Clearly, I think logic would dictate that if you're using a probable cause standard as opposed to absolute certitude, sometimes you may not be right.

FEINGOLD: Has there been a thorough and ongoing view of this question?

HAYDEN: Oh, yes, sir. Yes, sir.

FEINGOLD: And will these reviews be submitted to this committee?

HAYDEN: Sir, I think they're available to this committee during your visits at the agency and in response to the questions that you've asked.

I think by review you mean what's been targeted, what have been the results, how long...

FEINGOLD: Are there documents and will they offer us the answer to my earlier question relating to whether people that were not associated with Al Qaida have been trapped in this sort of thing?

HAYDEN: Well, how long targeting has gone on, why targeting is ceased.

Senator, let me make something very clear, though. Speaking in the abstract a bit, OK, to put someone on targeting under NSA anywhere in the world -- obviously we're talking about this program -- and then at some point end targeting doesn't mean that the first decision was wrong. It just means this was not a lucrative target for communications intelligence.

FEINGOLD: I respect that, but you know, this is exactly why, it seems to me, that FISA had it right by having some oversight of this under a court. And you obviously are doing everything you can to avoid any mistakes in this area.

HAYDEN: Yes, sir.

FEINGOLD: But if the FISA Court were involved, we wouldn't have to be discussing this.

And based on the comments of Senator Feinstein and others, I still believe that this could be done within that construct, within that statute.

As you know, General, the law allows for congressional notifications to be limited to the so-called gang of eight, only in cases of covert action.

Even in those cases, the president must determine that it is essential to meet extraordinary circumstances affecting vital interests to the United States.

In your view, what kind of circumstances would justify failing to notify the full congressional Intelligence Committees of covert action?

HAYDEN: Senator, I'm sorry, could you just say the last part again?

FEINGOLD: Yes. An example of a situation that would somehow take the administration or you out of the responsibility of informing the full committee.

HAYDEN: That was not a covert action?

FEINGOLD: What kinds of circumstances would justify failing to notify the full congressional Intelligence Committee of covert action?

HAYDEN: Senator, I apologize, that's a very difficult question for me to answer. And as I said in my opening comments, all right, this is a long war, and it's going to require broad political support over a long period of time.

FEINGOLD: You can't give me a hypothetical, something that might fit that category, so I can imagine what it would be?

HAYDEN: Senator, I'm sorry. I just really can't.

FEINGOLD: OK.

HAYDEN: It's a bit beyond my experience level.

FEINGOLD: Will you notify the full committee after the covert action has begun?

HAYDEN: Senator, I'd have to refer myself to the laws in terms of who gets notified and when.

I do know that there is a requirement for speedy notification, and we, of course, would do that.

FEINGOLD: Will you provide to the full committee information on all past intelligence activities, including covert action that has been previously provided only to the gang of eight?

HAYDEN: Senator, I'm sorry, I'm just not familiar with what the requirements under the law for that.

FEINGOLD: Mr. Chairman, I would simply ask that you review that question, if you would. And I do request, unless you have...

ROBERTS: We'll be happy to review it.

FEINGOLD: ... an objection, that that be provided.

Thank you, Mr. Chairman.

ROBERTS: You bet.

Senator Chambliss?

Let me say that we are expecting votes at 4;15, two or three stacked votes. We still have four members under the 20-minute rule. It may well be that we'll have to go back to regular order in terms of the time frame for a follow-up on members that wish to continue questioning the general during an open session. I would like to get to a closed session as soon as we can, and I know the general would as well. And I think a lot of members have questions that can be better answered in regards to a closed session.

Senator Chambliss?

CHAMBLISS: Thank you very much, Mr. Chairman.

General Hayden, having had the privilege of working with you for about the last six years or so in your position at NSA, as well as more recently as the deputy at DNI, I want to congratulate you on this appointment as you enter this next phase of your intelligence career.

CHAMBLISS: And I know, 35 years ago or so when you joined the military, it was a commitment not just to Mike Hayden but of his family. And I'm very pleased to see your family here today continuing in that great support of you as you make your presentation here today.

Now it's truly a great country we live in when we can have differences of opinion, particularly public differences of opinion relative to something as sensitive as intelligence and whether programs conducted by intelligence agencies are right or wrong.

I happen to have a significantly different opinion than some of my colleagues that have expressed disappointment or made statements regarding the programs that have been under your leadership.

I happen to think that you've done a very good job, a very professional job, of carrying out your duty as director of the National Security administration. And I think that I am very comfortable in saying -- and I want to be careful how I say this -- but the programs that have been carried out by the professionals that worked under you for the last several years have been carried out very professionally.

And it's because of the folks at your agency, as well as other folks in the intelligence community, that we have not had another domestic attack since September 11th. And it's because of your leadership and the folks under you, as well as the intelligence community team, General Hayden, that American lives have been saved, both domestically as well as abroad.

CHAMBLISS: And I suspect that knowing the way this town is about leaking things, that maybe some of the good things that are happening will get leaked out too one of these days.

And it's unfortunate that it seems to be just the sensational and negative things that get leaked.

Now, as you know, General, you and I have discussed your nomination privately on several different occasions, and I have had some concerns relative to your nomination that have absolutely nothing to do with your qualifications.

I went back and I looked at a lot of the history regarding the director of central intelligence and whether or not that individual ought to come from the civilian side or whether they ought to come from the military side.

And as you know, this is one major concern that I have had from day one regarding your nomination by the president.

In the original 1947 act, it was pretty clear that Congress intended that this be a civilian agency. But there was no limitation on whether or not the individual as director ought to come from the military side or from the civilian side.

But in the act that we passed in 2005, we set up the director of national intelligence, we also set up a principal deputy position. And we specifically stated in that legislation that not more than one of the individuals serving in the position specified in this paragraph "may be a commissioned officer of the armed forces in active status."

CHAMBLISS: That means either you in your position as the deputy or the position of the DNI, both of them could not be coming from the military side.

And so there was a lot of discussion about that issue, as to whether or not they ought to be military civilian. That's my point there.

In the bill that we passed out of this committee last year, the report language under Section 421 reads as follows: "The considerations that encourage appointment of a military officer to the position of DNI or PDNI" -- principal deputy -- "no not apply to the leadership of the CIA."

Indeed, given the CIA's establishment in 1947 as an independent civilian agency with no direct military or law enforcement responsibilities, the committee -- this committee -- does not believe that a similar construct of military leadership is appropriate at the agency. And accordingly, the committee recommends that both the director and the deputy director of the CIA should be appointed from civilian life.

Now that is the problem that I have been wrestling with, General, and the issue that you and I have had extensive conversations in private about. I also went back and looked just to see what the statute said regarding the differences in the role and mission in the intelligence community on the military side versus the civilian side.

And under the 1947 act, it's not real specific as to the responsibilities except that it does say, in the act of 1947, that the National Security Agency is primarily responsible for the conduct of signals intelligence activities.

CHAMBLISS: However, under Executive Order Number 12333, it specifically states that the National Security Agency, whose responsibilities shall include establishment and operation of an effective, unified organization for signals intelligence activities -- and it goes on to talk about that.

And the issue relative to the responsibility of the Defense Intelligence Agency is also set forth in Executive Order Number 12333. And it says, as follows: that the DIA, whose responsibilities shall include collection, production, through tasking and coordination, provision of military and military-related intelligence for the secretary of Defense, the Joint Chiefs and other Defense components.

Now, that's what creates my problem, General. And I just simply want to ask the question and give you the opportunity, publicly, to tell the American people how you're going to go from 35 years of this military intelligence mindset to heading up an agency, the CIA, that has a different role and function, a role primarily of gathering intelligence from a human intelligence standpoint abroad, or outside the United States.

HAYDEN: Sir, I guess it's, kind of, a four-corner matrix here. Let me take each pair.

I think the first issue is national and DOD.

CHAMBLISS: All right.

HAYDEN: I mean, the CIA is a national intelligence organization. And you make the point quite correctly that DIA is a Defense intelligence organization.

Now, those lines get blurred -- I mean, clearly -- DIA actually does a lot of things for Ambassador Negroponte right now. And I already said earlier today, the CIA's doing an awful lot of tactical things for the Department of Defense. But fundamentally, one's a national agency; one's a Defense agency

Senator, NSA is a national agency. It's on the same line as CIA in terms of its functioning. I know it resides inside the Department of Defense. But its tasking, even under the old law, came from the DCI, not the secretary.

HAYDEN: And under the new law, you've strengthened Ambassador Negroponte even more in terms of his direct control over NSA.

Defense, when I was the director of NSA, Defense was our biggest customer, but it wasn't our only customer and it wasn't our most important customer. I feel like I was running a national agency, and that that experience should be able to translate, if I'm confirmed, to my ability to do something at Langley, at CIA.

The other aspect you bring up, Senator, the other pair in this matrix is human intelligence and signals intelligence. And I understand that -- I've spent a lot of time at NSA, six years, but I do have HUMINT experience.

I was attache. I went through language training for a year in preparation for being an attache. I've crawled in the mud to take pictures of MIG 23s taking off from Bulgarian airfields, so I could understand what type of model it was.

Had sources, as an overt collector, not a covert collector, but had sources, asked questions, made reports.

So I do think I have a sense of that.

And at the NSA job, as Director Tenet, as George, was very fond of pointing out, there was a convergence between the science and art of SIGINT and the science and art of HUMINT. They were getting very close to one another.

HAYDEN: So I actually think I'm not badly prepared. I wouldn't be so arrogant to say my career has guided me to this job. Not at all. But I don't think I'm badly prepared for this.

Running a national agency, responsive to the DCI, broad experience in the intelligence community, and answering not tactical military questions throughout my career, but a fair mix of both strategic, operational and tactical.

CHAMBLISS: The focus at the CIA has got to be on improving on HUMINT collection.

HAYDEN: Yes, sir.

CHAMBLISS: And you feel comfortable with your intelligence background that you have that you're ready to focus almost purely on HUMINT collection at this point?

HAYDEN: Yes, sir. I would add, not meant to correct, but just to be inclusive, the HUMINT collection and the analysis. I think they both have to be dealt with.

But in terms of CIA as a collection agency, yes, sir, it's HUMINT collection.

CHAMBLISS: OK. And let's talk about the analysis just a minute, because the CIA was always intended to be an independent agency. And even under the new structure within the framework of the new organization that we have, all of the agencies still have to be somewhat independent.

And you have been the number two guy under the DNI, Director Negroponte. You now are being asked to move over to an agency that sometimes is going to come into conflict with what the DNI may think about the intelligence world.

Now, we've already talked about your relationship with Secretary Rumsfeld, and knowing you like I do and having worked with you, I know that you can be a very independent individual, and that's good. I think you have to be. You're going to have to be even more independent in this position.

Now, I don't know all the ins and outs of what happened, but I do know, just because of what you have said and what I know previously from conversations with folks within the community over the last couple of weeks, that there was some independence expressed by Director Goss relative to the removal of certain analytic capability out of the CIA, over to NCTC.

Now, when those things happen, are you prepared to face conflicts with the DNI when the situation arises, to sort of stand your ground for the CIA?

HAYDEN: Yes, sir. That's a lot better question than the G.I. heritage and how it'll affect things, because I have a great deal of respect and admiration and good friendship with Ambassador Negroponte.

HAYDEN: But the answer to your question: Of course. I mean, there is no right and wrong in these kinds of scrums. And you're right, there was a bit of a scrum over counterterrorism analysis, and I went into detail about that an hour or two ago.

You clearly need to represent the interests of your agency because you've got your lane and you've got to perform well in your lane, but you also have to understand -- and those doesn't have anything to do with the fact that I'm working for the ambassador now; you can do it when I was director of NSA -- at the end of the day, though, you've got to accept the decision that's best for the community.

After having major points of view, as long as that boss knows the cost he's imposing on you for your peculiar, unique function, as long as he understands that and has come to the conclusion, "Yes, but this decision is better for the overall functioning of the community as a whole," and then it's time, I think, to get on and do it and do it well.

CHAMBLISS: Well, let me tell you why this issue particularly concerns me. I felt all along that the position of DNI -- and I still feel that person does not need to be an expert in intelligence. And Ambassador Negroponte is not an expert in intelligence. He has good people around him that are. And you're one of those people. You are an expert in intelligence.

And when it comes to knowing what's best for the community, I trust your judgment impeccably, and I certainly hope that the does. But I know that there are going to be times when the conflict is going to occur. And we're going to know that.

HAYDEN: Yes, sir.

CHAMBLISS: From an oversight capacity, it's our responsibility to know that. And we expect you, General, to stand up for what you think is the correct thing to do for the Central Intelligence Agency because it's at a critical juncture right now.

HAYDEN: Yes, sir.

CHAMBLISS: It's an agency that's always been a very stable agency. And here we are with our third director in the last two years. We're coming off of two major intelligence failures that happened on the watch of one of those directors. And we can't afford for that to happen again.

So I know you're independent, I know you can and I assume you will stand up every day for what's right for the agency.

HAYDEN: Yes, sir.

CHAMBLISS: But know that we're going to be making sure you do.

There's also another issue that we have discussed within this committee any number of times, and we've seen some recent activity at the agency regarding how the directors dealt with leaks and individuals who may or may not be responsible for leaks at the agency.

CHAMBLISS: You've had some experience at NSA. You've had experience as the deputy for the DNI. What is your -- what is going to be your approach to leaks and those responsible for the leaks at CIA?

HAYDEN: Yes, sir.

Senator, obviously I know how we all abhor leaks. And there's the usual mantra: It puts at risk sources and methods and so on. But beyond that, it really has a corrosive effect on the integrity of the community.

You can't expect people to make tough decisions and hard-edged assessments and then have that pushed into public debate in ways it was never intended.

And so this is a (inaudible) problem, and I meant what I said in the opening statement -- CIA out of the news as source or subject so we can get back to business, back to basics and do what the nation expects us to do.

I admire Director Goss for the action he took with regard to this last round of unauthorized disclosures. That is not to say that all circumstances in the future would demand the same kind of response. But you have the same kind of commitment from me that I know you had from him in terms of taking all appropriate and effective action to not leak classified information to those who are not authorized to receive it.

CHAMBLISS: General, one point that I have continuously made over the last several years regarding intelligence community and particularly after September 11th was our failure to share information properly. We've made great strides in the sharing of information, but we are still a long ways away from where we need to be.

One thing that was very positive that Director Goss did was, frankly, eliminating some people in positions who tended to encourage information to be held within the agency so the agency could get the so-called credit for the takedown or whatever it may be.

CHAMBLISS: We've got to get away from that mentality. And I think he's moved us a long ways in the right direction. Same way with Director Mueller at the FBI.

Can you tell us what thoughts you have or what ideas you have about how to improve the information sharing between the folks in the community?

HAYDEN: Yes, sir. Sorry. You bring up a great point. I mean, the bottom line are results, not credit. And so we should view ourselves as contributing to an overall national effort.

And there are legitimate reasons for making some kinds of information close-hold. Lord knows, we've talked about that this afternoon.

But they have to be legitimate reasons. And those reasons have to be examined and re-examined almost constantly, because you just can't get in the cultural habits of: We haven't shared this, therefore we will not in the future share this.

Senator, I experienced it six years at NSA. It's a constant struggle. But progress can be made.

And the most intriguing and satisfying aspect is after you've made what seems like this dramatic break from the past, two or three months later, this new state of being you're in, where you're sharing at a different level, seems like it's been that way for 50 years. We just have to keep moving that line.

CHAMBLISS: Lastly, General, Senator Warner is right. As we travel around the world, one of the things we do is to try to visit with as many government agents as we can in the field, including our CIA personnel.

And every time I do, it's interesting to hear the reaction of folks. But particularly over the last six months it's been interesting, because there's almost been a 180 degree change in attitude that I have seen out there.

CHAMBLISS: And it's because Director Goss came in and immediately mandated that agents in the field be risk-takers versus being risk-averse.

And they had a tendency to be risk-averse over the last decade. And that's part of the problem that we have talked about publicly and privately relative to our HUMINT capability.

And folks joined the agency because they're excited about getting in that world. They certainly don't come into the agency to make a lot of money. But they enjoy what they're doing. And the more risks they're asked to take, the better they like it.

Director Goss is moving in that direction. And I hope you will continue to encourage and mandate to our agents in the field to be risk-takers as they gather intelligence.

HAYDEN: Yes, sir. That would be my intent. Can I add an additional thought to that, Senator?

CHAMBLISS: Yes.

HAYDEN: We talked about two things today that, as a practical matter, it's going to be a challenge to get inside the same box. Everyone has recommended risk-taking.

And we've also talked and had a healthy dialogue about accountability. And you need both. And clearly, you must hold people accountable for wrongdoing.

But do you see the leadership challenge, in terms of a culture of risk-taking and a culture of accountability into the same place?

There was just a phrase in my opening remarks that said something about top cover for people in order to enable them to be more free to take risks.

We'll have both, Senator. But we'll probably have long dialogues with the members of the community (ph) to balance two things that we both desperately need.

CHAMBLISS: It's interesting you mentioned that. I didn't write it down, but three things you said -- and one of them was the right top cover, which is critically important.

Thank you, General. Thanks, Mr. Chairman.

WARNER: Senator Mikulski?

MIKULSKI: Thank you, Mr. Chairman and General Hayden. I want to echo the remarks of my colleagues to welcome not only you but, of course, your family, to Mrs. Hayden and your children who are here and those who aren't.

We know that you couldn't do what you've done for the last 35 years without the support of your wife and your children. And we need to express that appreciation to them.

MIKULSKI: I've known you for more than five years, as the director of the National Security Agency and then as the deputy director of the DNI, and know, like all, that you've really distinguished yourself over these 35 years and your background is impressive.

You bring those old-fashioned blue collar values of being a Duquesne man, forgiving you for being a fan of the Steelers...

(LAUGHTER)

... things along those lines; but also, as you said, willing to be in the mud in Bulgaria, to being at the National Security Council.

So today, as we listen to your testimony, know that as I sit here to render my independent judgment, when I have to choose in voting for you or not, here and on the floor, I'm going to use five criteria -- my questions -- and I use them for everyone.

Number one: Are you competent? Number two: Do you bring personal integrity? Are you independent? Third, a commitment to the Constitution -- not to a president, but to the Constitution, and a commitment to the core mission of the department that you are asked to lead.

Clearly, you bring competence -- everything about your background. I think we would agree, you're a brainy guy, you've had years of experience in the field of intelligence.

I do believe you're a man of personal integrity, and know that the work that you've done, that you've transformed an analog agency to a digital one, you've concentrated on changing the NSA being really a big help to having the DNI set up this new agency and so on.

In terms of the independence is one of the areas that I'm going to be asking, because I've known you since 1999, and I've known you as a candid reformer. What I'm concerned about, though, is that the history of when one goes to the CIA, they go from being reformers to being cheerleaders, often, for an agency.

MIKULSKI: One of our questions, of course, as we've looked at the warrantless surveillance program, the data-mining and others, is in your presentations, are you still the candid reformer or have you moved to cheerleader? And these are no-fault, but these are there.

And then, the other is: Given the pressures of being at the CIA, how do we retain an independent voice?

As I said to you in our private conversations, there are issues that are going to be asked of you in the committee, as Senator Chambliss and others have said, that had nothing to do with you personally. But we've watched what's happened to CIA.

I go back to the Clinton years. We had that revolving door with the fiasco of Woolsey and the disaster of Deutsch. Then in comes George Tenet, who we thought had it together. We had the Cole incident. We had the World Trade Center, number one, didn't follow on that. World Trade Center, number two. Slam dunk, Mr. President.

And then we get Porter Goss. I don't share what's been said here about what a great guy Porter Goss was. I think he brought in a partisan ax and nearly destroyed the agency.

And it's not about saving his face; I worry about saving the nation.

So to all who are watching this on C-SPAN, including the bad guys, we want them to know we want to get it right, so that this next director of the CIA is the best we have to offer to be able to protect the nation.

So that's why this very grueling hearing, and we thank you. I know you must be exhausted. We want to acknowledge that.

But I want you to know why we're all so obsessed, because we've watched in two administrations what happens to our directors of CIA.

So this then, takes me to following on with what Senator Chambliss raised about the military. In my private conversation with you, I raised even my own concerns about a military person heading it. It's not -- I have great respect for the military and they have a unique role. But should that person head up the CIA?

So let me ask a couple very specific questions: If you are confirmed as head of the CIA and remain an active duty officer in the United States armed services, what will be your chain of command and who is your supervisor?

HAYDEN: Ma'am, unarguably, I report directly to Ambassador Negroponte, the director of national intelligence. And that's the only chain of command there is.

MIKULSKI: And then, is Ambassador Negroponte or whomever is head of the DNI, will continue to be, quote, "your supervisor"...

HAYDEN: Absolutely.

MIKULSKI: ... in that sense.

HAYDEN: Yes, ma'am.

MIKULSKI: Will there be statutory necessity for change? Senator Chambliss cited all kinds of laws, 1947 this...

HAYDEN: Ma'am, I don't believe there's any requirement for changes in statute if I were to remain...

MIKULSKI: For you to remain independent.

HAYDEN: I don't believe so. No, ma'am.

MIKULSKI: Because, as you know, we worry about this power grab coming out of DOD. And this has nothing to do with you, but a lot of us think there's an intel power grab coming out of DOD. And we know you got to be a team player, but we also don't think you should be subsumed.

Second, given your military career and current position as the deputy at DNI, can you assure the committee that you will remain appropriately independent of both DOD and the Office of DNI, meaning the speaking to truth to power?

HAYDEN: Yes, ma'am.

MIKULSKI: It's what I call the ga-ga factor in the Oval Office.

So it's not the most precise term, but it's where through being mesmerized, wanting to serve a president, whatever, we get this so- called, "Yes, sir, Mr. Slam-Dunk President," rather than speaking the truth to power, even when it is difficult.

HAYDEN: Yes, ma'am. You've got my assurances to the best of my earthly and human ability, that's exactly what I'll do.

I talked a bit in my opening comments about that nexus of policy- making. And the purpose of intelligence is to draw those left- and right-hand boundaries of the discussion.

MIKULSKI: Well, I appreciate those answers.

Now, let's go out to the CIA. Let's create a past scenario. I talked about the, "Slamdunk, Mr. President," but there was something else that happened when this government took one of the most esteemed men in the world and put him before the United Nations and had him make the case for going to a preemptive war in Iraq.

MIKULSKI: Obviously, General Powell, then secretary of state, gave flawed testimony that he himself feels is now a blight on his career.

Something terrible happened out there. This is not the forum to dig in or drill down in that.

But my question to you: If you were getting General Powell ready to go before the U.N., what would you have done differently so whatever he did or whatever he said was accurate and truthful and spoke to the world?

HAYDEN: Yes, ma'am.

Right now in the current job, clearly, you know, White House speeches are cleared for language -- and, frankly, I'm the one. I'm the funnel through which all intelligence community comments go.

So it is something not just for Secretary Powell's speech, but for all statements by our public officials that you can feel and sense this absolute commitment to accuracy and clarity in the language. It is really present and, frankly, I think what we need to do now is just sustain that; don't let that effect wear off as we go forward in time.

We have to be absolutely precise.

MIKULSKI: Well, being precise is one thing, and I would agree with that. But here this man came out, he met with the CIA. They showed him all kinds of pictures, gave him all kinds of stuff. Obviously, some of it was enormously selective.

Would you have intervened and said: Number one, "I don't think we ought to go to the U.N.," number two, "If we go to the U.N., these pictures are blurred and they're from 1989"? I'm making it up, I don't quite remember what the pictures were. But they were flawed.

HAYDEN: Well, clearly, the conclusions were flawed. I mean, there were items of fact in there. And what went wrong was how we latched the items of fact together.

You may recall, we played three intercepts, three communications intercepts from Iraqi military officers during Secretary Powell's presentation.

Now, those are all correct. But what we didn't do was to put all those pieces together. The macro analysis didn't get to the right conclusion. As I suggested earlier, it was almost certainly because we took the data and leaned it against our known assumptions rather than using other or all data and challenging the assumptions that we had.

HAYDEN: It was a mistake. We've learned from that.

MIKULSKI: Let's go to your staff. How will you ensure that CIA analysts provide unvarnished intelligence assessments? And will you personally ensure that CIA analysts, that whatever analysis CIA presents to policymakers is independent of political considerations or the policy preferences of the customer?

HAYDEN: Sure. I'm going to say something that's going to sound a little bit foolish, ma'am, but hear me out. I actually think that task is going to be easy.

The analytical function, getting the analysis right, that's challenging, that's tradecraft; that takes a lot of time. But I think the other task, the honesty in the assessment that you talk about, that's where they are. That's where all analysts are.

The job of the director is to make sure nothing gets in the way of that, nothing prevents that from blossoming and presenting itself in their final analyses.

So I think that's a natural state. What a director has to do is make sure nothing interferes with that natural state.

MIKULSKI: I know -- and I appreciate that answer -- I know in your testimony in answer to your questions, you talk about red teams to be sure that there is alternative analysis...

HAYDEN: Right.

MIKULSKI: ... which we didn't have, for example, in the National Intelligence Estimate going into the war in Iraq.

But in addition to that, for your employees at CIA, will you have some kind of dissent channel -- in other words, were there employees who really feel strongly and want to offer dissent, that they have a channel to you?

MIKULSKI: I'm concerned that some of these leaks came out of frustration and temper tantrums. I don't know where those leaks are. I'm sorry about those leaks. I'm sorry about the damage caused by those leaks.

But what about, essentially, having both, one, something you might need to hear or a real safety valve for employees?

HAYDEN: Sure. I believe there are those channels now. Obviously, I need to make sure of that. And if there are, I just need to reinforce that they are to be used; if they aren't, to set them up.

Ma'am, from the NSA experience, we had a pretty free-wheeling, open e-mail policy to the director. And that's something that, I think, worked at Fort Meade and is an approach that I would follow at Langley if I'm confirmed.

MIKULSKI: Well, I look forward to ongoing conversations. I raised this with the DNI, even for the DNI. And I know that's under way.

My last question: Others have asked about data mining and the surveillance. We'll talk more about that in closed.

But in the five years that we've known each other and have talked about privacy versus security and the inhering tension, why didn't you come and ask for reform, either to any member of the committee or the committee and say, this, stabbing from what you've said -- and I don't want to put words in your mouth -- but FISA, in some ways, is dated. It's klutzy; it has choke points; technology has changed; the threat has changed.

Why didn't we get a request for reform...

HAYDEN: Sure, I'll be happy to answer.

MIKULSKI: ... with all these investigations and commissions that went on?

HAYDEN: Right. To be very candid, ma'am, when it began, I did not believe -- still don't believe -- that I was acting unlawfully. I was acting under a lawful authorization.

And you recall, when I gave -- well, actually, when Keith gave the briefing yesterday...

MIKULSKI: I know you believe it was lawful. And you cited examples, with the five different legal opinions.

HAYDEN: Right.

MIKULSKI: But then you've consistently said that one of the ways you operated -- and even in your famous Press Club speech, in the Q&A, you indicated a frustration with some aspects of FISA.

HAYDEN: Right.

MIKULSKI: And again, along the line that I've said -- klutzy, choke points...

HAYDEN: The phrase I...

MIKULSKI: Those are my words.

HAYDEN: The phrase I used, "FISA, as currently crafted and currently implemented, gives a certain level of operational effectiveness. And here's where we were with the president's authorization."

Number one, beyond the belief that we were doing something that was lawful; secondly, an attempt to change the legislation was a decision that could not be made by the National Security Agency alone.

Clearly, that had to be made more broadly by the administration, including the Department of Justice.

There were clear concerns, in which frankly, I shared, that attempts to change FISA would reveal important aspects of the program, eliminating key secrets that enabled us to do the kinds of things we were doing to an enemy whom I'm certain felt that this space was a safe haven for him.

HAYDEN: And, finally, in that March 2004 meeting that the chairman and Senator Hatch had mentioned where we had the senior leadership of the Congress there in addition to the leadership of the two intelligence committees, there was discussion about changes to FISA.

And without getting into the details of the conversations, ma'am, there was a powerful and general consensus that an attempt to change the legislation would lead to revelations about the nature of the program, and thereby hurt its operational effectiveness.

MIKULSKI: Well, I'd like to talk more about that when we're in the closed hearing...

HAYDEN: Sure.

MIKULSKI: ... particularly what I'll call the klutzy part, the chokepoint part, et cetera.

Mr. Chairman, in the interest of time, I yield back what time I might have, and look forward to further discussions in the closed.

ROBERTS: I thank the senator.

Senator Bayh?

BAYH: Thank you, Mr. Chairman.

General, thank you. I'm grateful for your patience today. We've been at this for slightly more than six hours now.

HAYDEN: It's flown by, Senator.

(LAUGHTER)

BAYH: You have a different sense of time than I do. I admire your cheerfulness in the face of great scrutiny.

I also appreciate your service to our country. You've had a very distinguished career. And we've personally had a good relationship. And I've been grateful to you for being forthcoming and responding to my inquiries from time to time.

I'd like to follow up on two or three lines of inquiry. And let me begin with something that you've said in your opening statement about the need to strike the right balance between America's security interests but also our interests in the liberty, the freedoms of this country.

BAYH: Let's start with the security aspect of that. You had addressed in response to one other senator's question the following: that if this program had been in place before 9/11, in all likelihood two of the hijackers would have been identified. Is that correct?

HAYDEN: That's right.

BAYH: Since this program has become operational, have we identified any individuals or networks attempting to attack America that we would not have known about otherwise, without this program?

HAYDEN: I can guarantee you -- would not have known otherwise. The attempting to attack, I will not make the claim, Senator, that we intervened with the sniper on the roof with the round in the chamber kind of thing. But we have located, identified and taken action against people affiliated with Al Qaida working against the United States and moving in the direction to threaten the United States.

BAYH: Well, that takes care of the security part of the balance. I don't think there's a member of this panel who would disagree that if we have a program that could have identified two of the 9/11 hijackers or other individuals who are malevolent, and at some point in the process of attempting to harm this country and our citizens, that we shouldn't be intercepting their conversations and doing what we can to stop them. I think we have unanimous agreement on that.

So let me shift to the liberty side, which is where I think most of the point of emphasis has been here today, and how we go about striking that right balance and giving the American people confidence that we have done so.

You've spoken to this a couple of times, too. And I apologize, it's tough being the last questioner after six hours and not being somewhat redundant. So I give you my apologies for that.

But you've spoken a couple of times about the burden of proof, if that's the right term, required before we can access communications, conversations. And you've used the phrase "probable cause." And then I think it's equivalent to what a responsible person would conclude was that they had reason to believe that the subject was affiliated with Al Qaida in some way. Is that, my understanding, correct?

HAYDEN: Yes, sir.

BAYH: Let me ask you this question then, General. Isn't that also the same standard that would apply under FISA?

HAYDEN: Yes, sir.

BAYH: So why not use FISA then?

HAYDEN: I can get into...

BAYH: Don't you have to meet the same burden of proof no matter what?

HAYDEN: Yes, sir. I can get into more detail in closed session and point out some additional difficulties.

But that decision is made by someone operationally involved in the problem. And the movement from that decision to coverage is measured -- and a carefully considered decision, and one that meets the standard, one that has its own kind of oversight -- the movement from that decision to coverage is measured in minutes.

END

Source: CQ Transcriptions © 2006, Congressional Quarterly Inc., All Rights Reserved