Hayden defends NSA record to make his case

Senators pressed the nominee for CIA director Thursday.

In confirmation hearings Thursday, senators pressed Gen. Michael Hayden not only on his plans for the Central Intelligence Agency, but also on his past role in warrantless domestic surveillance and data-mining of tens of millions of American phone records.

At stake is not only leadership of the CIA, but also public support for an agency battered by leaks and intelligence failures, internal rifts, and constant overhaul. If confirmed, General Hayden will be the fourth CIA director since 9/11, after George Tenet, John McLaughlin, and Porter Goss, who on May 5 was forced to step down.

But the activities of another agency - the supersecretive National Security Agency - are what dominated the senators' questioning Thursday. General Hayden directed the NSA from 1999 to 2005, and has been deputy director of national intelligence under John Negroponte since April 2005.

"Disclosing parts of the [NSA] program that might be the most palatable and acceptable to the American people, while maintaining secrecy about parts that may be troubling to the public until they are leaked, is unacceptable," said Sen. Carl Levin of Michigan, the ranking Democrat on the Senate intelligence panel, at the opening of Thursday's hearing.

He and other Democrats cited previous comments by Hayden and other members of the Bush administration that intrusion into privacy is limited to international calls and does not include domestic surveillance.

"I chose my words very carefully," Hayden said, referring to an appearance before the National Press Club earlier this year where he described the NSA program as limited to "only international calls." "I was as full and open as I was allowed to be."

"We always balance privacy with security, and we always do so within the law," he added.

Anticipating such questioning, Sen. Pat Roberts (R) of Kansas, who chairs the panel, called press accounts of the NSA programs - and the leaks on which they were based - "a grave breach of national security."

"A leak allowed our enemy to know that the president had authorized the NSA to intercept the international communications of people reasonably believed to be linked to Al Qaeda - people who have and are trying to kill Americans," he said. "At that time, largely uninformed critics rushed to judgment, decrying the program as illegal and unconstitutional."

In the runup to Thursday's hearing, all members of the House and Senate intelligence panels were briefed - most of them for the first time - on the NSA's warrantless domestic surveillance program. Last week, USA Today reported that the NSA has also been secretly collecting phone-call records of tens of millions of Americans.

In hearings, in part conducted behind closed doors, Hayden said he would reaffirm the CIA's "proud culture of risk-taking and excellence."

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

Despite controversy over NSA surveillance, Hayden has a strong reputation on Capitol Hill as a top intelligence expert who is more at ease with lawmakers and the press than most in his line of work. Many senators say they expect him to hold his own in any intelligence disputes with Defense Secretary Donald Rumsfeld.

"He's not somebody anyone can push around," says Sen. Orrin Hatch (R) of Utah, a member of the Senate intelligence panel and the Judiciary Committee, which is preparing legislation on NSA spying.

When Bush first named Hayden, some senators worried that putting an active-duty military officer at the CIA's helm might undermine the agency's independence. To assuage that concern, the White House moved to suspend Mr. Rumsfeld's authority over Hayden while he serves as CIA director.

That concern is overblown, says Stansfield Turner, who served two of his four years as CIA director during the Carter administration while still in active military service. "Calling the CIA a civilian agency is misleading," he says. "It's one of the key intelligence agencies of our government, with provision that it can be directed by a civilian or an active or a retired military person."

But, he adds, "the ... key question is why General Hayden believes that it's legal to tap American telephones without a warrant." Congress enacted the 1978 Foreign Intelligence Surveillance Act "while I was in office," he says. "To me, the law is clear: You need a warrant to tap telephones."

The Bush administration claims that the Constitution gives the chief executive powers to bypass laws of Congress during emergencies. Pressed on this at the hearing, Hayden said: "I cannot commit to resolving the inherent stresses between Article I and Article II of the Constitution."

"I'm very comfortable with what the agency did and what I did ... to inform those responsible for oversight," he added.

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