Hayden insists warrantless surveillance is legal

updated 8:39 p.m. ET May 18, 2006

WASHINGTON - 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.

Sidestepping phone controversy
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.

Military ties questioned
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.

Asked whether he is considering retiring from the military to take the CIA post, Hayden, dressed in his Air Force uniform bearing a host of medals, told the panel: “The fact that I have to decide what tie to put on in the morning doesn’t change who I am.”

He said a more important issue was whether he could “bond” with those at the CIA. If the uniform “gets in the way of that, I’ll make the right decision.”

Asked about U.S. intelligence on Iran, Hayden said, “Iran is a difficult problem.”

He suggested U.S. intelligence-gathering on Iran’s weapons program was more complex and detailed than that done on Iraq.

Hayden said questions raised included, “How are decisions made in that country? Who are making those decisions? What are their real objectives?

Quizzed on interrogation limits
Hayden declined to answer a string of questions by Sen. Dianne Feinstein, D-Calif., saying he would answer them later in a closed-door session.

They included whether he believed that “waterboarding,” in which prisoners are strapped to a plank and dunked in water until nearly drowning, was an acceptable form of interrogation. He also declined to say publicly how long he believed the United States could hold terror suspects without a trial.

“He didn’t answer any of them,” Feinstein said into an open mike as the hearing recessed for lunch.

Meanwhile, White House spokesman Tony Snow expressed the president’s full confidence in Hayden. “The guy’s got a record of trying to take on big reform tasks and carrying them out,” Snow told reporters.

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