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Hayden Insists NSA Surveillance Is Legal
CIA nominee Gen. Michael Hayden insisted on Thursday that the Bush administration's warrantless surveillance program was legal and that it was designed to ensnare terrorists _ not spy on ordinary people.
"Clearly the privacy of American citizens is a concern constantly," the four-star Air Force general told the Senate Intelligence Committee at his confirmation hearing. "We always balance privacy and security."
Hayden was peppered by as many questions about the National Security Agency, the super-secret agency that he headed from 1999-2005, as about his visions for the CIA.
Senators grilled him on the NSA's eavesdropping without warrants on conversations and e-mails believed by the government to involve terrorism suspects, and reports of the tracking of millions of phone calls made and received by ordinary Americans.
After the attacks of Sept. 11, 2001, President Bush decided that more anti-terrorism surveillance was necessary than the NSA had been doing, said Hayden.
Hayden said he decided to go ahead with the then-covert surveillance program, which has been confirmed by Bush, believing it to be legal and necessary.
"When I had to make this personal decision in October 2001 ... the math was pretty straightforward. I could not not do this," Hayden said.
He said the surveillance program used a "probable cause" standard that made it unlikely that information about average Americans would be scrutinized.
But he declined to openly discuss reports that the NSA was engaged in even broader surveillance, including a story in USA Today that the NSA has been secretly collecting phone-call records of tens of millions of U.S. citizens.
Under questioning from Democratic Sen. Carl Levin of Michigan, Hayden said he would only talk about the part of the program the president had confirmed.
"Is that the whole program?" asked Levin.
"I'm not at liberty to talk about that in open session," Hayden said. A closed-door session was planned for later in the day.
Hayden was asked about reported friction between him and Defense Secretary Donald H. Rumsfeld over how the NSA and other intelligence agencies would work with the Pentagon, which has the lion's share of intelligence dollars.
Had they disagreed, he was asked by Levin? "Yes sir," said Hayden.
Some critics have suggested that Hayden, 61, who remains an active general, is too closely aligned with the Pentagon to objectively run the civilian CIA.
Hayden acknowledged a series of intelligence failures in the run-up to the U.S. decision to invade Iraq and promised to take steps to guard against a repeat of such errors.
"We just took too much for granted. We didn't challenge our basic assumptions," he told the Senate Intelligence Committee at his confirmation hearing.
He said that since launching the program a month after the terror attacks, targeting decisions have been made by NSA experts on al- Qaida.
Asked by Sen. Kit Bond, R-Mo., whether a NSA analyst could look at information not directly related to suspected terrorist activity, Hayden said, "I don't know how that could survive."
Committee Chairman Sen. Pat Roberts of Kansas complained about the CIA's performance on Iraq. While "nobody bats 1,000 in the intelligence world," Roberts cited "a terribly flawed trade craft" in the CIA's intelligence suggesting the presence of weapons of mass destruction there.
At the same time, Roberts complained that the discussion among lawmakers had not been over Hayden's long intelligence-services resume "but rather the debate is focused almost entirely" on controversy over NSA surveillance and eavesdropping programs.
Hayden, as expected, drew the most fire from Democratic members. "I now have a difficult time with your credibility," said Sen. Ron Wyden, D-Ore.
In an opening statement, Hayden said that intelligence-gathering has become "the football in American political discourse" since the terror attacks of Sept. 11.
He said the embattled agency "must be transformed, without slowing the high tempo under which it already operates, to counter today's threats."
"Yes, there have been failures, but there have also been many great successes," Hayden said.
If confirmed, "I would reaffirm the CIA's proud culture of risk- taking," said Hayden, who was selected by President Bush to succeed Porter Goss, who was forced out after serving for 18 months.
Hayden's hearing before the Intelligence Committee was much different than a year ago, when the panel approved him unanimously to be the nation's first principal deputy director of national intelligence.
Bush chose Hayden as CIA director-nominee after consultation with Hayden's current boss, National Intelligence Director John Negroponte. Goss announced his retirement earlier this month after disputes with Hayden and Negroponte about the CIA's direction.