The Largest Security-Cleared Career Network for Defense and Intelligence Jobs - JOIN NOW



THURSDAY, MAY 18, 2006


SEN. 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.

SEN. ORRIN HATCH (R-UT): 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 -- but let me just ask you directly, because I think this needs to be on the record.

Let's say that you've stepped 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?

GEN. HAYDEN: Yes, sir, that's pretty straightforward.

SEN. HATCH: That's straightforward.

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

SEN. HATCH: That's right, you're going to report to Ambassador Negroponte.

GEN. HAYDEN: Yes, sir.

SEN. HATCH: Now let me add the chairman of the Intelligence Committee -- (laughter) --

GEN. HAYDEN: Yes sir, I would set up a conference call. (Laughter.)

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

GEN. HAYDEN: Yes, sir. I mean, as you said, I'm proud of my military experience. Actually it's 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 that 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.

SEN. 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 Advisor 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. 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 17, 2005. After December 17th, briefings occurred at the Capital, NSA or the White House. A copy of the list is enclosed.

You remember those briefings?

GEN. HAYDEN: Yes, sir.

SEN. HATCH: You were there.

GEN. HAYDEN: Yes, sir.

SEN. 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.

GEN. HAYDEN: Yes, sir.

SEN. HATCH: Those are 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.

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir. That's right.

SEN. HATCH: On December 4th, not only were the members of the Intelligence Committee leadership briefed, by 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?

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir.

SEN. HATCH: -- leaders of the intelligence --

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

SEN. HATCH: Okay. Well, yeah 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 in the House were briefed again, right?

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir.


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

GEN. HAYDEN: Yes, sir.

SEN. HATCH: Is that correct?

GEN. HAYDEN: That's right.

SEN. 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 --


SEN. HATCH: -- the chair and ranking member of the House and the chair and ranking member of the Senate Intelligence Committee, is that correct?

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Next day.

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

GEN. HAYDEN: Yes, sir.

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


SEN. 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?

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir.

SEN. HATCH: And on the 14th of September, again, the leaders of both intelligence committees, Hoekstra, Harman, Roberts and Rockefeller, right?

GEN. HAYDEN: Yes, sir.

SEN. HATCH: I'd 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?

GEN. HAYDEN: Yes, sir.

SEN. HATCH: On the 11th of January, again, the members of the intelligence committees of both the House and Senate and Speaker Hastert, right?

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

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

GEN. HAYDEN: Yes, sir.

SEN. HATCH: On the 11th of February '06, Pat Roberts, our current chairman. On the 16th of February, Denny Hastert and Pete Hoekstra, right?

GEN. HAYDEN: Yes, sir.

SEN. 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.

GEN. HAYDEN: Yes, sir.

SEN. HATCH: Right?

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: That's right.

SEN. HATCH: Okay. And that included me?

GEN. HAYDEN: Yes, sir.

SEN. HATCH: Okay. And so the names were Roberts, Rockefeller, Hatch, DeWine, Feinstein, Levin and Bond.

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

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


SEN. HATCH: Okay. On the 14th of March, Mike DeWine, Senator DeWine; on the 27th of March, Carl Levin. Is that correct?

GEN. HAYDEN: Yes, sir.

Sir, I believe these latter ones now include visits to NSA where they --

SEN. HATCH: That's right.

GEN. HAYDEN: -- they visited the agency and had --

SEN. HATCH: In other words, all these people had --

GEN. HAYDEN: -- extensive periods of time --

SEN. HATCH: -- familiarity with --

GEN. HAYDEN: Yes, sir.

SEN. 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 --

GEN. HAYDEN: Yes, sir.

SEN. HATCH: -- that were accurate. Okay.

SEN. ROBERTS: Excuse me, Senator, on that last one you may have missed, but the general indicated, that was a trip out to the NSA --

SEN. HATCH: Well, sure.

SEN. ROBERTS: -- so we could actually see how the program worked.

SEN. HATCH: Okay. 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?

GEN. HAYDEN: Yes, sir.

SEN. HATCH: Then on the 7th of April '06, you briefed Hoekstra, McHugh, Rogers, Thornberry, Wilson and Holt again.

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

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

GEN. HAYDEN: Yes, sir, that was the subject.

SEN. HATCH: Then on the 28th of April, you briefed Jane Harman, Heather Wilson, and Anna Eshoo, right?

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

SEN. 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 were both on the House Appropriations Committee.

GEN. HAYDEN: That's right.

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

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

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

GEN. HAYDEN: No, sir.

SEN. HATCH: What's the purpose, if you can succinctly tell me that.

GEN. HAYDEN: It's not for the heck of it. We are narrowly focused and drilled on on protecting the nation against al Qaeda and those organizations who are affiliated with al Qaeda.

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

GEN. 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 Qaeda or affiliate connection.

SEN. HATCH: That's right.

GEN. HAYDEN: It's the only purpose for which it's used.

SEN. HATCH: And instead of saying you monitored the calls, what you did -- this program only applied to foreign calls into the country or calls to --

GEN. HAYDEN: In terms --

SEN. HATCH: -- known al Qaeda or suspected al Qaeda people outside of the --

GEN. HAYDEN: Sir in terms of listening or eavesdropping or whatever phrase is used in the public domain -- what we call intercepting the call --

SEN. HATCH: Right.

GEN. HAYDEN: -- what 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 Qaeda and one end of which is outside the United States.

SEN. HATCH: Isn't it true that the president had to reauthorize this program every 45 days?

GEN. HAYDEN: On average. It varied depending on schedules and his travel and so on; but on average, about 45 days, yes, sir.

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

GEN. 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 that --

SEN. HATCH: Do you consider it one of the most serious classified programs --

GEN. HAYDEN: Oh, yes, sir.

SEN. HATCH: -- in the history of the nation?

GEN. HAYDEN: That is fencing it off. I mean, everyone refers to my old agency as the super-secret NSA. This was walled off inside NSA; that's the compartment that it was in.

SEN. HATCH: Okay. So this wasn't just monitoring calls of domestic people; this was monitoring into the country and out of the country to or from suspected affiliates of al Qaeda?

GEN. HAYDEN: That's accurate. That's precisely accurate, Senator.

SEN. 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?

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

SEN. HATCH: Now the media -- Senator Levin said 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.

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Oh, sir, the only goal -- 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 are lots of reasons, lots of things that we need to protect the nation against.

SEN. HATCH: And you have --

GEN. HAYDEN: This extraordinary authority given to us by the president --

SEN. HATCH: Right.

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

SEN. HATCH: And you had --

GEN. HAYDEN: Al Qaeda and affiliates.

I'm sorry.

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

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir.

SEN. HATCH: -- but it certainly isn't true.

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

SEN. HATCH: If I understand it correctly, when you could, you went to FISA and got the warrants --

GEN. HAYDEN: There were other circumstances in which clearly you wanted more than the 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 coverage beyond what this authorization --

SEN. HATCH: And FISA was enacted over 30 years ago.

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Well, the way I would describe it, Senator, is that a lot of things have changed since the FISA act was crafted. It was carefully crafted in '78 --

SEN. HATCH: I'm not criticizing.

GEN. HAYDEN: -- 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.

SEN. 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.

GEN. HAYDEN: No, of course not, sir. And 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.

SEN. 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?

GEN. HAYDEN: Well, sir, I would go back four and a half years.

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

GEN. HAYDEN: No, sir.

SEN. HATCH: -- but you're certainly doing everything you know how to do.

GEN. 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 are privacy concerns with regard to everything the National Security Agency does. I said to the work force, I'll repeat: We're going to keep America free by making Americans feel safe again.

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

GEN. HAYDEN: Sir, and again, it was international calls and we had already established a predicate that that call would reveal information about al Qaeda.

SEN. HATCH: And you have always been able to monitor foreign --

GEN. HAYDEN: Oh yes, sir.

SEN. HATCH: -- calls? There's never been any question?

GEN. HAYDEN: No. 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.

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

GEN. HAYDEN: No, sir.

SEN. HATCH: That was not your purpose?


SEN. HATCH: And that was an explicit direction by you and others --

GEN. HAYDEN: Oh yes, sir.

SEN. HATCH: -- not to do that.

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


Now, General Hayden, one of the responsibilities of the DNI, as required by the Intelligent Reform and Terrorist and Protection Act of 2004, was to set guidelines for the protection of sources and methods. Now, did you participate in the requirement of the DNI?

GEN. HAYDEN: Oh, yes, sir. We did.

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

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

SEN. HATCH: All right.

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

GEN. 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, but -- impacts. But you all asked me this morning about analysis and hard- edged analysis. Do you know how hard it is to stop an analyst from pulling his punches if he expects or fears that his work is going to show up in unauthorized, unwanted public discourse in a couple of days or a week?

SEN. HATCH: That's right.

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

SEN. 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, airmen, 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?

GEN. 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. 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.

SEN. HATCH: Let me interrupt you for just a second, because in - - and ask you just another one before my time runs out.

In several parts of you testimony you allow that, quote, "lessons-learned," unquote, exercises are distracting or demoralizing, quote, "archeology of picking apart every past intelligence study and success," unquote. Why would the CIA be any different from the military in the sense that you suggest? GEN. HAYDEN: Oh, no, sir. I'm sorry to interrupt, but I didn't mean we wouldn't do lessons-learned. That is absolutely essential.

SEN. HATCH: No, no, I understand. I'm just giving you a chance to make a --

GEN. HAYDEN: 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 -- this committee and others -- to allow us to focus on the important work and not overdo the retrospectives.

SEN. 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.

SEN. ROBERTS: Without objection.

SEN. ROBERTS: Senator Warner, with your indulgence and my colleagues' intelligence: I misspoke 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 -- 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. 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?

GEN. HAYDEN: Sir, again, I don't want to get into private conversations, but to generalize questions asked and answers, 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.

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

GEN. HAYDEN: No, sir.

SEN. ROBERTS: That it was illegal?

GEN. HAYDEN: No, sir.

SEN. ROBERTS: There was, as I recall, a conversation onto the necessity, 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 fair?

GEN. 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 is one of the advantages of the program.

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

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

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

GEN. HAYDEN: Yes, sir.

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

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

SEN. ROBERTS: It 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.

SEN. JOHN WARNER (R-VA): Thank you, Mr. Chairman.

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

General, I have the privilege of knowing you for so many years and worked with you. You have my strongest support and I wish you and your family well. I know how important 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.

GEN. HAYDEN: Thank you.

SEN. WARNER: The fact that you will continue in uniform certainly doesn't in any way, I think, denigrate from your ability. I think it enhances it as you continue your work. People who say that the intelligence should be headed by a civilian are reminded that the DNI is a civilian.

GEN. HAYDEN: Yes, sir.

SEN. WARNER: General, I wakened this morning, as others, listening 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?

GEN. 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.

SEN. 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 manner of days?

GEN. 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, over 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 --

SEN. WARNER: That's -- I commend you that.

GEN. HAYDEN: -- and be seen.

SEN. WARNER: Stick with that even keel -- for an Air Force general to use that able term.

GEN. HAYDEN: (Laughs.) Yes, sir.

SEN. WARNER: I like the idea of getting around. When I was privileged to serve in the Department of Defense, I used to take a little time almost every week to go to the remote offices --

GEN. HAYDEN: Yes, sir.

SEN. WARNER: -- where the Navy and Marine Corps personnel were and it paid off great dividends. Well, I agree with you. The morale's strong and they're doing their job and they'll continue to do it and you'll 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, is the president and his team: the secretaries of State and Defense, Homeland Security, Department of Justice. And then there's the department -- now Department -- 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 the time when the Congress was looking at possibly abolishing the CIA. And that commission, I think, successfully re- diverted 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 awaken one morning to this resignation at a time when this country's at war, and one of the major pillars of our security team -- now the director stepping down.

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?

GEN. HAYDEN: Sir, I mean --

SEN. WARNER: I read through your opening statement about all the things you intend to do, but I go to the narrow question: It had to be some actions which said -- (inaudible) -- and the president had to step in and make his decisions.


SEN. 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, otherwise?

GEN. 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 the 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 that 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, you know, there repudiating him or what he was trying to do.

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

SEN. WARNER: All right. 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 assure us that that will be done?

GEN. HAYDEN: Yes, sir.

SEN. WARNER: Perhaps in closed session you can amplify on that.


SEN. WARNER: 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 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 policymakers need to know what that -- as we are 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 steps to strengthen that collection of intelligence as it relates to Iran?

GEN. 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.

SEN. WARNER: Fine. I just wanted to have the public hear that you're going to put that down as your top priority.


SEN. WARNER: I misspoke. Of course, Hoekstra is the chairman of the --

GEN. HAYDEN: Oh, yes.

SEN. WARNER: -- House Select Committee on Intelligence.

GEN. HAYDEN: Yes, sir.

SEN. WARNER: Let's turn to another issue, and that is, do you plan to have any significant large numbers of transfer personnel from CIA to the DNI?

GEN. HAYDEN: Sir, the only thing that's on the table -- and I thank you for asking this, because there are a few urban legends out there 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 DI's going to be dismantled or the DI's going to be moved -- there are not thoughts, let alone plans, to do that. And the amount of movement within the counterterrorism- analytical force is going to be measured in double digits, not triple digits.

SEN. WARNER: In other words, less than 100 people.

GEN. HAYDEN: Oh, yes, sir.

SEN. WARNER: Thank you.

Well, you said in your opening statement, "The CIA must remain the 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, 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?

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

SEN. WARNER: This question being his resignation?

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

SEN. WARNER: But I know it was an issue.

GEN. HAYDEN: -- moving analysts. Yes, sir, I mean, 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 Counterterrorism 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 Counterterrorism Center, can do its mandated task and do that without in any way cracking the magnificent synergy we now have between DO and DI inside CIA, with analysts in direct support of operations.

That's the problem, Senator.

SEN. 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?

GEN. HAYDEN: Yes, sir, that is correct.

SEN. WARNER: No other reporting chains to the White House?

GEN. HAYDEN: No other -- I'm sorry?

SEN. WARNER: No other reporting chains directly to the White House.

GEN. HAYDEN: Sir, there is a little bit with regard to the additional activities in the legislation, in terms of all the intelligence functions, is 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.

SEN. WARNER: So there is some -- you have a direct chain through Negroponte?

GEN. HAYDEN: Yes, sir.

SEN. WARNER: And at times you work in conjunction with him.

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

SEN. WARNER: And that's a workable situation?

GEN. HAYDEN: Yes, sir. Yes, sir.

SEN. WARNER: On the question of the chiefs of stations, they're 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.

Are the chiefs of station in our embassies abroad representative of the DNI or the director of Central Intelligence?

GEN. HAYDEN: Senator, all the above. We have -- with initiation --

SEN. WARNER: Do they have a dual reporting chain?

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

SEN. WARNER: Now that won't pose any problems?

GEN. HAYDEN: It should not; no, sir.

SEN. 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 --

GEN. HAYDEN: Yes, sir.

SEN. WARNER: -- in addressing that issue?

GEN. 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 de-confliction 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.

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

GEN. HAYDEN: Senator, I'm a little unclear whether he is there or is about to get there as the deputy of the community HUMINT office. The senior there is a Marine two-star, former head of the defense HUMINT service, and the expectation is, if it's not the reality, his deputy will be from the bureau.

SEN. 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. Are you familiar with that memorandum?

GEN. HAYDEN: Yes, sir. Is this the one with the bureau or the one with the department?

SEN. WARNER: The bureau.

GEN. HAYDEN: With the bureau, yes, sir.

SEN. WARNER: Do you intend to continue that?

GEN. HAYDEN: Yes, sir.

SEN. 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 had 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 of procedures and so forth.

But there is 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 inhumane or degrading treatment; I understand that. But there is 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 the task?

GEN. HAYDEN: Senator, speaking in generalities now, and perhaps --


GEN. HAYDEN: -- in 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.

SEN. WARNER: That's clear, but --

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

SEN. WARNER: Understood, but will there be any differences in how these interrogations are --

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

SEN. WARNER: -- on the uniform side and the civilian side?

GEN. 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. The cruel, inhumane, degrading parts of the statute apply to any agency of the government.

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

SEN. WARNER: All right. Well, we'll be looking at that very carefully, because we will have to explain to our constituents and others --

GEN. HAYDEN: Yes, sir.

SEN. WARNER: -- if in fact there is a significant difference, 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 will put on that. I look upon that as one of the four stools of the agency.

GEN. 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 as -- 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.

SEN. WARNER: All right. Well, I think you -- I'm delighted to hear you'd 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 the need that? Because you know, these people have followed a course of action which is 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.

GEN. 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.

The other aspect is, we're engaged in war in several major theaters, and that's just pulling energy into current operations. I mean, 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.

SEN. WARNER: Good luck.

GEN. HAYDEN: Thank you, sir.

SEN. WARNER: Take care of those people out there.

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Yes, sir.

SEN. WARNER: Thank you very much.

SEN. ROBERTS: Senator Hagel.

SEN. CHUCK HAGEL (R-NE): 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 cataloged, not only your priorities -- and I'd like to explore some of these points that you made in a little more details 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 our 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 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. 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 the policy and therefore the direction of a country.

And that's what these poll numbers are telling us, that American 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 an 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 in 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 policymakers, 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.

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 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 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 and 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.

GEN. HAYDEN: Yes, sir.

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 we 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 are looking for -- 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.

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 treatment as an equal, some -- some respect. So I think that can be done, I think that's absolutely valuable, and I think our -- 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 it was 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, then, 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 that 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 -- just play your position. And then focus on the scoreboard, not on individual achievement and individual agency or Cabinet-level department.

Sir, I -- Senator, that sounded more like a sermon than a work plan, but -- and that's the approach, and I think a lot of it is -- is attitudinal.

SEN. HAGEL: Well, 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.


SEN. HAGEL: But I think it's been tarnished, and there is a corrosive dynamic, and you've alluded to that as a result of many things.

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

GEN. 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 make up -- 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, you know -- 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 is the opportunity.

Now, here's the bad news. For every individual in -- 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' 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.

SEN. BARBARA MIKULSKI (D-MD): Mr. Chairman? Excuse me. Could the general repeat those numbers? I had a hard time hearing those numbers to which --

GEN. HAYDEN: Yes, ma'am. Again, I can't get into the specific numbers because at CIA, unlike NSA, they're classified population numbers.

SEN. MIKULSKI: Sir, could you pull it closer --

GEN. HAYDEN: 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.

SEN. MIKULSKI: Got it. Got it.

GEN. HAYDEN: And so here we have this great opportunity -- a 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. It put more - - in more disappointing language, this is the least experienced analytic workforce in the history of CIA.

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

GEN. HAYDEN: Yes, sir.

SEN. HAGEL: -- a huge advantage, and we must not squander that.

GEN. HAYDEN: Sir, if I could just add a 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.

SEN. 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 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?

GEN. 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 Counterterrorism Center, which has its own analytic function and so it's a workforce numbered in the hundreds. These guys are numbered in about 60, 65. They are not a source of independent analysis. They're the mission manager. They're the guys -- Senator, 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. 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, who's the final word on Iranian WMD? Who's in charge? The Iranian mission manager or the NCPC, counterproliferation mission manager?

Because of what this committee has -- in addition to other sources -- told us about the Iraq analysis, which was, I would say, perhaps culturally deficient and technologically heavy, we've met -- 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. So now that's kind of the dynamic that we've set in place for NCPC, Senator.

SEN. HAGEL: Thank you.

Let me get to a point, I believe in a response to a question that Senator Wyden asked you, if I have this about right. You said, quote, "Help me understand where to draw the one between liberty and security." And this was in the broader framework of a 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 policymakers to give you that new framework. We're going to need input from you --


SEN. 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 the 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. And it has to be done. And we are paying attention to it, but we're going to need some guidance from you.

Here is 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 interests of our country as well?

GEN. 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. There are two. One is the nature of the enemy, all right? When FISA was first crafted, it was Cold War. And if you look at the legislative history, 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 of 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 possible in technology over time, but setting up processes by which those changes can be accommodated to a fairly constant standard of what constitutes privacy, so that when communications change from going out of the air to going into the ground, then all of a sudden the impact of the law is completely different, without any context as to how that affected privacy.

Sorry, that's a little obscure, but --

SEN. 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. 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 as 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 may be down the road here with options for policy makers and the president.

GEN. 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 -- here's the magic spot: how do you institutionalize that without destroying it? I mean, once you institutionalize thinking outside the box, it turns to dust in your hand. I think it's more about process and 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.

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, you know, we age off from the WMD National Intelligence Estimate and so on. The challenge for leadership is not to let that happen, is to -- is to keep that focus on this enriching and challenging aspect of our analysis.

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

Mr. Chairman, thank you.

GEN. HAYDEN: Thank you, Senator.

SEN. ROBERTS: Senator Feingold.

SEN. RUSSELL D. FEINGOLD (D-WI): 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.

GEN. HAYDEN: Thank you.

SEN. 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 will not 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 prove 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.

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 -- except -- when the president says otherwise? And will General Hayden respect Congress's 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 Qaeda 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, 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 11th, 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?

GEN. HAYDEN: Sir, I'd have to 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 Qaeda," 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 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.

SEN. 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 --

GEN. HAYDEN: Again, Senator, I mean, I knew in my own heart and mind that we were not talking about domestic-to-domestic. If my language could have been more precise, I apologize, but the -- 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 a speech where I talked about Osama bin Laden crossing from Niagara Falls, Ontario to Niagara Falls, New York, and saying in -- 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.

SEN. FEINGOLD: Now, I appreciate that example, but, General -- 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 that 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 intelligent 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 a 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?

GEN. HAYDEN: Senator, obviously there were concerns. I mean, I had an agency that, you know, for decades -- well, since the mid-1970s -- had, frankly, played a bit back from the line so as not to get 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.

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

GEN. HAYDEN: Personally, no, I did not. And that was submitted with the conversation with the lawyers I knew best, the lawyers at NSA. It probably would have presented me with a -- with a bit of a dilemma if the NSA lawyers had said, no, we don't think so. But they didn't. And there was no pressure on me. It was, I need to know what you think.

SEN. 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? Do you think that was endangering American national security?

GEN. HAYDEN: Well, actually there was an interesting article today -- yeah, where was it 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 felt we were under great, 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 statute because I had no other legal recourse to do something other than the FISA statute and Executive Order 12333 --

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

GEN. HAYDEN: It was, but --

SEN. FEINGOLD: -- so why didn't you have legal recourse to that? GEN. HAYDEN: Because the president has not exercised any of his Article II authorities to authorize the agency to do that kind of activity.

SEN. FEINGOLD: Did you urge him to do so?

GEN. HAYDEN: No. We did not at the time. No, sir.

SEN. FEINGOLD: Well, you know --

GEN. HAYDEN: This happened -- this happened very quickly, and --

SEN. FEINGOLD: Well, of course my concern here, naturally, is what is the limit of 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 case 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. 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.

GEN. HAYDEN: Sir, 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.

SEN. 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's asserted under Article II. What would tell him? Is there more?

GEN. 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, I mean, 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.

SEN. FEINGOLD: You're referring back to the wiretapping.

GEN. HAYDEN: Yes, sir. Yes, sir.

SEN. 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 into this category?

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

SEN. 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?

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

SEN. FEINGOLD: Under this theory, could the CIA conduct convert action inside the United States?

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

SEN. FEINGOLD: I'm 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 --

GEN. HAYDEN: Oh, no, no, sir. And what I believe is important, but not decisive. There has to be a body of law when people whose responsibility it is to interpret the law for someone, like the position I was in in NSA or, if confirmed, at CIA, who would say that this, indeed, is lawful and a lawful exercise of authority. And like I recommended and was quickly granted in the case in September, October 2001, we informed our oversight body.

SEN. FEINGOLD: I appreciate that answer very much. And I just have to say for the record that the body of law that supports the -- what supports this wiretapping program I think is exceptionally weak compared to the other authorities that have been discussed. But you and I have been --

GEN. HAYDEN: Yes, sir.

SEN. FEINGOLD: -- 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 is sufficient to justify the president's claim under Article II.

GEN. HAYDEN: And 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.

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

GEN. HAYDEN: Sir, that 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 wasn't the decision --

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

GEN. HAYDEN: There were discussions in terms --

SEN. FEINGOLD: What were you told?

GEN. HAYDEN: -- in terms of I believe it's Section 502 and 503 and the phrase "with due regard." And 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 paragraphs talked "with due regard to the protection of sources and methods." Beyond that, sir, I --

SEN. FEINGOLD: So it was the sources and methods part that was - -

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

SEN. FEINGOLD: Fair enough.

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

SEN. FEINGOLD: Fair enough.

On that point, 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 committees would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods." Unquote.

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

GEN. HAYDEN: Yes, sir.

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

GEN. HAYDEN: Sir, 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.

SEN. FEINGOLD: Well, in fairness to you, I got the feeling that you probably did want to tell more people, so I'm going to -- 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?

GEN. 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.

SEN. 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?

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

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

SEN. 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 II, given the claims that are being made by this administration of its power in this area?

GEN. 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 crew chief for two and three, you know, 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 I and Article II, and I don't think I can solve those.

SEN. FEINGOLD: Senator Bond asked you whether under the warrantless surveillance program any Americans had been targeted who were not associated with al Qaeda. And you replied only that you didn't see how that could occur within the NSA's culture.

The question remains: Has it happened?

GEN. 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 analysts 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 Qaeda.

SEN. FEINGOLD: That's not my question, and that wasn't Senator Bond's question.


SEN. FEINGOLD: It's whether it's every happened that any Americans have been targeted who were not associated with al Qaeda, as a matter of fact, has it happened, despite the cautions --

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

SEN. FEINGOLD: Has there been a thorough and ongoing review of this question?

GEN. HAYDEN: Yes -- oh, yes, sir. Yes, sir.

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

GEN. HAYDEN: Sir, I think they're available to the committee during your visits at the agency 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 is --

SEN. FEINGOLD: Is there -- are there documents that would lay out for us the answer to my earlier question relating to whether people that were not associated with al Qaeda have been trapped in this thing?

GEN. HAYDEN: Well, how long targeting has gone one, why targeting has ceased.

Senator, let me make something very clear, though. Speaking in the abstract a bit, okay? To put someone on targeting under NSA anywhere in the world -- but obviously we're talking about this program -- and 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.

SEN. 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.

GEN. HAYDEN: Yes, sir.

SEN. 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 notification 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 the vital interests of the United States. In your view, what kind of circumstances would justify failing to notify the full congressional intelligence committees of covert action?

GEN. HAYDEN: Senator, that's -- I'm sorry, could you just say the last part again?

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

GEN. HAYDEN: That was not a covert action?

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

GEN. 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.

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

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


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

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

GEN. 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.

SEN. 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?

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

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

SEN. ROBERTS: We'll be happy to review it.

SEN. FEINGOLD: -- strong objection, that that be provided.

Thank you, Mr. Chairman.

SEN. ROBERTS: You bet.

Senator Chambliss?

Let me say that we're expecting votes at 4:15, two or three stacked votes. We still have four members under the 20-minute role. 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?

SEN. SAXBY CHAMBLISS (R-GA): 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 and as you enter this next phase of your intelligence career. And I know 35 years ago or so when you joined the military, it was a commitment not just of 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 the programs conducted by intelligence agencies are right or wrong, I happen to have a significantly different opinion than some of my colleagues who 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 Agency. 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 11. 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. 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. But that'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 -- 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 positions specified in this paragraph may be a commissioned officer of the armed forces in active status. That means either you or your position as the deputy, or in your -- the position of the DNI not -- both of them could not be coming from the military side.

In the -- so there was a lot of discussion about that issue, as to whether or not they ought to be a military or a civilian is 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, do 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.

However, under Executive Order Number 12333, it specifically states that the National Security Agency, whose responsibility 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's 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.

GEN. HAYDEN: Yes, sir.

I guess there is kind of a four-corner matrix here, and let me take each pair.

I think the first issue is national and DOD, all right? 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, clearly.

I mean DIA actually does a lot of things for Ambassador Negroponte right now. And I already said earlier today CIA is 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. 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. You know, 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 the 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 spent a lot of time at NSA -- six years. But I do have HUMINT experience. All right? I was an 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 and model it was. Had sources. Now, it's an overt collector, not a covert collecter -- but had sources, asked questions, made reports. So I do have a -- I do think I have a sense of that.

And at the NSA job, as Director Tenet -- as George was very fond to point 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.

So I actually think I'm not badly prepared. I wouldn't be so arrogant to say, you know, 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.

SEN. CHAMBLISS: The focus at the CIA has got to be on improving our human collection.

GEN. HAYDEN: Yes, sir.

SEN. 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?

GEN. HAYDEN: Yes, sir. I would add -- not meant to correct, but just to be inclusive -- the human 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 human collection.

SEN. CHAMBLISS: Okay. 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 analytical capability out of the CIA over to the 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?

GEN. HAYDEN: Yes, sir. Sir, that's a lot better question than the GI heritage and how it will affect things, because I have a great of respect and admiration and a good friendship with Ambassador Negroponte.

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 this 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 made your 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 function of the community as a whole," and then it's time, I think, to get on and do it, and do it well.

SEN. 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 he does.

But I know that there are going to be times when that -- the conflict is going to occur, and we're going to know that. From an oversight capacity, it's our responsibility to know that.

GEN. HAYDEN: Yes, sir.

SEN. CHAMBLISS: 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.

GEN. HAYDEN: Yes, sir.

SEN. 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, 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 director has dealt with leaks and individuals who may or may not be responsible for leaks at the agency. 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 the CIA?

GEN. HAYDEN: Yes, senator, I -- 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 affect 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 had 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.

SEN. CHAMBLISS: General, one point that I have continuously made over the last several years regarding the intelligence community and particularly after September 11 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 take down or whatever it may be. We got to get away from that mentality, and I think he's moved us a long ways in the right direction; the 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 --

GEN. HAYDEN: Sure. And you --

SEN. CHAMBLISS: -- between the folks in the community.

GEN. HAYDEN: Yes, sir. Sorry. You bring up a great point. I mean, the bottom line are results, not credit, and so -- and we wish you to view ourselves as contributing to an overall national effort. And there are legitimate reasons for make 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 reexamined almost constantly because you just can't get in the culture habits of: We haven't shared this; therefore, we will not in the future share this.

Senator -- the experience of 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, it seems like it's been that way for 50 years.

You just have to keep moving that line.

SEN. CHAMBLISS: Lastly, General, Senator Warner is right; as we travel around the world, one of things we do is to try to visit with as many government agents as we can in the field, including 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, and it's because Director Goss came in and immediately mandated that agents in the field be risk- takers versus being risk-averse. There has been 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 join the agency because they're excited about getting in that world. They certainly don't come in the agency to make a lot of money, but they enjoy what they're doing, and the more risk 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 our agents in the field to be risk-takers as they gather intelligence.

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

We talked about two things today that as a practical matter is going to be a challenge to get inside the same box. Everyone has recommended risk-taking, and we've also talked in 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 getting both a culture of risk-taking and a culture of accountability in 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 dialogue with the members of the committee as to how best to balance two things that we both desperately need.

SEN. CHAMBLISS: It's interesting you mention that. I didn't write 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.

SEN. ROBERTS: Senator Mikulski.

SEN. BARBARA MIKULSKI (D-MD): 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 want to express our appreciation to them.

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, things along those lines, but also from, 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 on 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 what -- your work that you've done, that you've transformed an analog agency to a digital one, you've done certain -- 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 becomes -- goes to the CIA, they go from being reformers to being cheerleaders, often for an agency. 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 to 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 have 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 Woolsley and the disaster of Deutsch, and 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." Oh.

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 partisan hacks 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 to know why we're all so obsessed, because we watched in two administrations this -- what happens to our directors of CIA. So this, then, takes me to follow on 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 of 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?

GEN. 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.

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

GEN. HAYDEN: Absolutely. Yes, ma'am.

SEN. MIKULSKI: -- in that sense. Are there -- is -- will there be statutory necessity for change? Senator Chambliss cited all kinds of laws: 1947 this, and all --

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

SEN. MIKULSKI: For you to remain independent.

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

SEN. 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've 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 truth to power?

GEN. HAYDEN: Yes, ma'am.

SEN. MIKULSKI: It's what I call the ga-ga factor in the Oval Office. So, it's not most precise term, but it's where you will be 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.

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

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

SEN. MIKULSKI: And what -- well, I appreciate those answers.

Now, let's go out to the CIA. Let's create a past scenario. I've talked about the slam dunk, 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. 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 and whatever he said was accurate and truthful and spoke to the world?

GEN. HAYDEN: Yes, ma'am. Right now, in the current job, clearly, you know, White House speeches are cleared for language and, frankly, I'm 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. You can feel and sense this absolute commitment to accuracy and clarity in the language. It is -- 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.

SEN. MIKULSKI: But being precise is one thing, and I would agree with that. But here this man came out and 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, you know, 1989? I'm making it up - - I don't quite remember what the pictures were -- but they were flawed.

GEN. HAYDEN: Well, clearly the conclusions were flawed. I mean, there were items of fact in there, and what went wrong was how we lashed 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 were 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 -- 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. It was a mistake. We've learned from that.

SEN. 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 presented to -- that whatever analysis CIA presents to policymakers is independent of political considerations or the policy preferences of the customers?

GEN. 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. Now, the analytical function -- the 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 to make sure nothing interferes with that natural state.

SEN. MIKULSKI: I know -- and I appreciate that answer -- I know in your testimony and answer to your questions you talked about red teams, to be sure that there is alternative analysis, 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, where there are employees who really feel strongly and want to offer dissent, that they have a channel to you? 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 those leaks. But what about essentially having both, one, something you might need to hear, or a real safety valve for employees?

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

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

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

My last question. Others have asked about data mining and the surveillance. We'll talk more about that in closed. But the five years that we've known each other and have talked about privacy versus security and the inherent tension, why didn't you come and ask for reform, either to any member of the committee or the committee, and say this -- gathering 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 -- why didn't we get a request for reform --

GEN. HAYDEN: Sure, happy to answer.

SEN. MIKULSKI: -- when all these investigations and commissions went on?

GEN. HAYDEN: Right. To be very candid, ma'am, when it began -- I mean, I did not believe -- still don't believe -- that I was acting unlawfully. I was acting under a lawful authorization. You recall when I gave -- well, actually, when Keith gave the briefing yesterday --

SEN. MIKULSKI: Well, I know you believe it was lawful, and you cited examples with the five different legal opinions. But then you've consistently said that one of the ways you've operated -- and even in your famous Press Club speech, in the Q&A you indicated a frustration with some aspects of FISA.

GEN. HAYDEN: Right, right.

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

GEN. HAYDEN: The phrase I used --

SEN. MIKULSKI: Those are my words.

GEN. 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 we were doing that was lawful.

Secondly, there were -- 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 -- 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.

And finally, in that March 2004 meeting that the chairman and Senator Hatch had mentioned, when 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.

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

GEN. HAYDEN: Sure, sire.

SEN. MIKULSKI: -- particularly what I'll call the klutzy part, the choke point part, et cetera.


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

SEN. ROBERTS: I thank the senator.

Senator Bayh.

SEN. EVAN BAYH (D-IN): Thank you, Mr. Chairman.

General, thank you.


SEN. BAYH: I'm grateful for your patience today. We've been at this for slightly more than six hours now.

GEN. HAYDEN: It's flown by, Senator. (Laughter.)

SEN. BAYH: (Laughs.) You have a different sense of time than I do, but 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 said in your opening statement about the need to strike the right balance between America's security interests, but also our interests in liberty, the freedoms of this country.

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?

GEN. HAYDEN: That's right.

SEN. 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?

GEN. HAYDEN: I can guarantee you the would not have known otherwise -- the attempting to attack -- I will not make the claim, Senator, that, you know, 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 Qaeda, working against the United States, and moving in the direction to threaten the United States.

SEN. 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 were 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 --

GEN. HAYDEN: Yes, sir.

SEN. BAYH: -- 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 again, 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 reasonable person would conclude was that they had reason to believe that the subject was affiliated with al Qaeda in some way.

GEN. HAYDEN: Yes,sir.

SEN. BAYH: Is that -- my understanding --

GEN. HAYDEN: That's correct.

SEN. BAYH: Correct.

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

GEN. HAYDEN: Yes, sir.

SEN. BAYH: So why not use FISA, then?

GEN. HAYDEN: I can get into --

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

GEN. 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 in 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, and that is not what happens in --

SEN. BAYH: Can you say that again, General? Which decision is measured in minutes?

GEN. HAYDEN: That the analyst has come to a conclusion, has gone to the appropriate levels of oversight --

SEN. BAYH: There is probable cause to acting on that probable cause. GEN. HAYDEN: -- and having probable cause, from that decision to coverage is measured in minutes. That is not what happens in the -- let me just say -- FISA as currently crafted and currently implemented.

SEN. BAYH: So it's a question of timeliness and, therefore, efficacy?

GEN. HAYDEN: I would -- I would use efficacy, and there are other aspects that undergird the efficacy point, but I prefer to talk about a bit in closed.

SEN. BAYH: Well, let me get into that a bit without getting into the specifics that would have to be raised in a closed setting. Senator Mikulski was asking about the need to update the FISA statute. And you've responded that that would be difficult to do without revealing the nature of the program and, therefore, undermining the reason that we would be pursuing those anyway.

GEN. HAYDEN: A position I held very firmly back in March of 2004, Senator. But, you know, things have changed.

SEN. BAYH: Couldn't that have been said when the original FISA statute was drafted as well? I mean, any time we're going to write a law in the criminal justice area, particularly when we get into this, we're sort of saying in some ways what we're doing.

GEN. HAYDEN: I think you're right, but if you look at the world of both threat and technology in which FISA was crafted, the impact of that revelation, I think, is dramatically different when your objective is not a long-term law enforcement or a long-term foreign intelligence stare, but when your objective is merely to detect and prevent actual physical attack.

SEN. BAYH: Well, let me -- I've asked -- well, at some point, General, we're going to need to update this statute. And at some point we're going to need to try and write into law -- and it's going to be for the whole world to see at that point -- where the parameters are and how we're trying to strike the balance, and with all that's been revealed to date.

Here's the point I want to make.

GEN. HAYDEN: I take your point about all that's been revealed. Yes, sir.

SEN. BAYH: Well, yeah, I know. And here's the point I want to make. The nature of this city, in particular -- and our society, to a certain extent -- is that eventually things tend to come out. Hopefully not the things that, you know, will imperil lives and that sort of thing, but eventually, in broad parameters, things are revealed.

And you and I have discussed this a little bit in private, and I just want to get your on-the-record assessment here for everybody to hear. It's my conviction that it's in your best interest and the agency that you are about to head that -- their best interest -- and this administration's best interest as much as possible to bring this under the operation of a specific statute that the American people can look at and have some confidence that it's being carried out appropriately. The whole Article II authority, which I gather is the -- and I take your statements at absolute face value, that you believed you were operating legally and you were advised that way by all the lawyers.

And I assume that the basis for that was the Article II powers, the inherent powers of the president to protect the country in time of danger and war.

GEN. HAYDEN: Yes, sir, commander in chief powers.

SEN. BAYH: That power is so nebulous and so broad. One of my colleagues tiptoed up to asking you, and I guess I'll just go ahead and ask it, one of the advantages you bring to his is perhaps that you're not a lawyer.

GEN. HAYDEN: (Chuckles.)

SEN. BAYH: But you are, because of the legal implications of all this, in close consultation with them. So one of my colleagues - - I think it may have been Senator Feingold -- was on the cusp of asking, that power is so broad and general, what would not be authorized under Article II power?

GEN. HAYDEN: Senator, you've correctly characterized me as not being a lawyer. But clearly, clearly Article II does not empower the president to move against -- to do those things that are constitutionally prohibited. And now -- I will punt here very quickly -- but as you then step back down into statute, I know very well arguments are made with regard to statutes and their ability to constrain the president, and do those statutes in and of themselves conflict with the president's inherent authority. And I'll stop there because I know that's where the field of conflict is in terms of limiting or delimiting the president's authorities.

SEN. BAYH: Well, and I don't want to get you off into the legal weeds here. But by definition, the Constitution can't authorize what is unconstitutional.

GEN. HAYDEN: Right. Yes, sir, that's right.

SEN. BAYH: So in this case, the question is did the Constitution authorize the president and the executive branch to do things that a statute, the FISA statute, did not authorize? And the legal advice you got was yes, yes it did. So if --

GEN. HAYDEN: Sir, I need to make very clear, that's an argument that's wholly based in the Article II portion of the argument. In the AUMF -- to use military force -- there's a whole separate series of line of reasoning that I know the attorney general has talked to the Congress about.

SEN. BAYH: Well, what worries a lot of people about this is the whole slippery slope argument, and that while in the present case perhaps it's been reasonably applied, what kind of precedent it is setting for the future, and if the asserted Article II powers can justify activities that would not be authorized under statute. I go back to my question -- and I don't ask you to answer it again -- what -- here's the concern: What would it not authorize? Does it authorize the president to do anything that in his discretion and in the judgment of the people who work for the president is necessary? And then that gets to the whole checks and balances question, and the social contract that you referred to, and your desire -- which I think is understandable -- to keep the agency out of the press. And the problem with that is that when there's not a perceived -- a perception that there is a robust check and balance, well that's when the contract begins to fray, and that's when you end up on the front page. And so it's in your best interest to be as forthcoming as possible.

And then this gets me into the second thing I'd like to explore here. Ordinarily in our society you'd accomplish that check and balance by being as transparent as possible. But in your line of work, that's kind of hard to do. So we make up for that by having judiciary oversight under FISA, or congressional oversight under the authorization of this committee and Congress. And so there's someone else serving as a check and balance because the public themself can't fulfill that role.

And so I get back to the question I was, you know, attempting to ask. I mean, is it your belief that eventually it would be helpful, in your best interest, to try and bring this under an amended FISA statute of some kind so you wouldn't have to rely on as general authority, which leads to all the suspicions, because some people are just going to assume the worst, and it's not in your best interest to have them doing that.

GEN. HAYDEN: Yes, sir. And as I pointed out earlier, there are already actions under way. I know that members here have asked NSA for their technical views, and those views have been exchanged with the Department of Justice. The president's already stated he's willing to discuss bringing this under FISA.

And again, you know, let me just stay agnostic to the legal discussion you and I had with regard to the lawfulness of the president's authority.

As I stated in my opening statement here, this is going to be a long war. And this war -- our activities in this war have to be sustained by a broad national consensus. Anything that would add to that consensus would be of value, Senator.

SEN. BAYH: Let me shift, General, if I could, to something else you said about your belief that the CIA is the gold standard of intelligence and we want it to be exactly that, best the world has to offer. And I'd like to ask you a couple things about what we need to do -- and some of this has been touched upon before - - to improve the quality and the reliability of the intelligence that we've been getting.

And I think Senator Hagel touched upon this, and you said at least one thing in response to him, but I'd like to kind of put it up here once again. And perhaps Senator Mikulski touched upon this, as well.

What specifically can we do to try and prevent the kind of mistakes that were made with regard to the assessments of weapons of mass destruction in Iraq? Do you have anything specifically that we can do? I know we're red-teaming things now. You talked about that a little bit with Senator Hagel. But it's such a tragic thing when you have a war. Senator Mikulski mentioned the secretary of State going before the U.N. and relying upon information that just turns out to not be so.

GEN. HAYDEN: Senator, let me offer this not for in any way of excuse, but maybe just modest mitigation. This is almost a perfect storm. You had a regime that was very secretive, a regime that had cheated and lied before, a regime that had kicked out U.N. inspectors, a regime in which, someone suggested earlier this morning, we had low- balled the estimate with regard to weapons of mass destruction, a regime that was busting sanctions left and right and bringing in dual- use equipment for whatever purposes, and a regime that wanted to act as if it had weapons of mass destruction in order to keep its head held high in the neighborhood. That's a real tough problem. Now, I say that's not an excuse, just modest mitigation.

But the way to do it is challenge assumptions, red-teaming, tolerance for ambiguity, tolerance for dissenting views. Let me give you one more thought that I haven't shared earlier. But I saw it out at NSA, and I'm going to look for it out at CIA if I'm confirmed and go out there.

When we first got into the grand national debate, "Did he or didn't he?" and when we didn't find the weapons after the invasion and the occupation, I brought our analysts in, NSA. Now, they're not all source, they just do SIGINT. And I said, "Come on, we got five things out there, chem/bio, nukes, missiles and UAVs, give me your confidence level on each one. And they gave me a number. And actually the numbers were pretty high. Nuke was pretty low, about a 3, but the other ones were 5 and above in terms of they thought he had them. As we went further into this -- I had them back them in a month or two later -- their whole tone and demeanor had changed.

There was a lack of confidence. Everything was being marshmallowed to me, a lot of possibles and could haves and maybes and so on. We don't need that, either. We -- you know, there's a sweet spot there. We have put all the rigor in you need to put in. But you're not afraid to call the ball and strike on the black of the plate, on the outside corner, that you actually do make the call. And then it's -- it's a challenge for leadership.

SEN. BAYH: Well, let me address that, too, and I -- it's a question I asked your predecessor in this post -- and here's the question I have. I asked him, and I'll ask you: compared to the quality of the assessments, the reliability of the assessments with regard to weapons of mass destruction in Iraq, how would you clarify our assessments and understanding of the nuclear program in Iran?

GEN. HAYDEN: Yes, sir.

SEN. BAYH: And before you answer that, I then asked him -- and I want you to answer that -- but then I asked -- and he kind of perked up. I said, "Are they more reliable, less reliable or about the same?" And he perked up and he said, "Oh, they're much more reliable." And I said, "Well, really?" I was kind of encouraged by that initially. I said, "Really?" And he said, "Oh, yes." He said, "We're now admitting what we don't know."

GEN. HAYDEN: Yes, sir.

SEN. BAYH: And I paused and I said, "Well, then what you're saying to me is that our assessments are more reliable, but no more illuminating?" And he said, "Well, yes, that's exactly right."

Well, that, as you know, is ultimately not the place we need to be.

GEN. HAYDEN: Also -- also true.

SEN. BAYH: So those two questions --


SEN. BAYH: -- compare the quality and the accuracy of WMD in Iraq to what we know in Iran, and then what do we need to do to make them actually more illuminating in the long run and not just admitting what we don't know?

GEN. HAYDEN: Yes, sir.

I think -- in open session, let me just say I think our data is better; not night and day better, but our data is better, and our judgments are far more clear. And that's -- I wouldn't throw that one away, that clarity to judgment -- what we know, what we assess, what we don't know is very important -- but a lot more to be done in terms of getting information to be, like you describe, illuminating as well as honest.

SEN. BAYH: One final thing, General.

Some people have suggested -- and I want to ask you about the relationship, at least as you perceive it, between the Central Intelligence Agency and the FBI -- we're working well together and that kind of thing. And then, I'd like to ask you this: Almost every other Western nation has the equivalent of what the British have, MI5. Why are we different?

GEN. HAYDEN: (Laughs.) Yes, sir, I -- in fact, in my --

SEN. BAYH: And should we be different?

GEN. HAYDEN: I don't know that one. In my current job, I actually have a chance to talk about this because creating that National Security Branch inside FBI is one of the very major muscle movements in the new intelligence structure that you all legislated and the ambassador is attempting to carry out. And my usual stump speech goes along the lines of: "And look, that's a domestic intelligence function, but that's okay. There are a lot of really good functioning democracies out there that have this. You've got CSIS in Canada. You've got BSS or MI5 in Great Britain." Then, I'll usually pause and say, "But we're the only ones who try to put it inside our federal law enforcement agency." That was a decision made -- made by the Congress. I think the decision was that, not unlike the dilemma Senator DeWine brought up this morning, about putting knocks in a -- nonofficial cover folks in a separate agency. That may be theoretically pure, but it is incredibly disruptive.

And so, the decision was made: Let's give this a shot, putting it inside -- put it inside the FBI. That gives you stability. That allows you to borrow from things that already exist, but it also gives you what I would call cultural challenges, making sure this baby gets a chance to grow up to full manhood inside an agency that has been historically somewhat different. That's a -- I won't undercut that at all. That's a challenge. But I have in the current job visited FBI field offices, spent a day at the office in Pittsburgh, spent another day at the office in San Antonio. There's a lot of enthusiasm out there for this mission. I was really heartened to see that. I think CIA has a lot to offer the bureau, in terms of tradecraft and standards and training and so on. And that would certainly be something I would move to effect. I was very heartened that after the president's announcement one of the first persons to call me was Director Mueller.

SEN. BAYH: My final comment, General, is just to revisit what I had said previously. I would encourage you and those that you're working with, as soon as you can, without feeling like you're jeopardizing the efficacy of our efforts to protect the country, try and propose some specific revisions to statute.

GEN. HAYDEN: Sure, yes sir.

SEN. BAYH: I think, too, since this is an area where we can't be terribly transparent, at least then we'll have the judicial oversight function. And also to encourage you to as much as possible have more robust briefings for the committee, as we had last night. You've heard that from some of my other colleagues as well.

GEN. HAYDEN: Oh, yes, sir.

SEN. BAYH: And the reason for that, again, is just finally -- it's in your best interest and the administration's best interest and the country's best interest to not have people feel as if this is being handled, you know, by surprise or by leak or, in some cases -- and I'm not referring to you or the more senior members of this committee, but too often, it's a game of hide and seek by the administration, sharing as little as possible. And then it's a -- you don't want people assuming the worst. And that too often happens when the oversight -- judicial or congressional -- is not as robust as it might otherwise be. That is what will retain that contract that you care about.


SEN. BAYH: And keep you out of the front pages, which I know you'd really love.

GEN. HAYDEN: Thank you.

SEN. BAYH: Thank you, General.

SEN. ROBERTS: We will now go to record of order for a second round, and by record of order, I mean five minutes. I apologize in that I had already said each person would have 20, but we have scheduled votes, and I would like to at least have an opportunity for ample time for a closed session after those votes, and perhaps even before them, to get started. So we can see how that goes.

We have five: Senator Bond, Senator Levin, Senator Wyden, and Senator Snow. I don't know about Senator DeWine. And so consequently, we will start with Senator Bond.

SEN. WYDEN: Mr. Chairman, parliamentary inquiry.


SEN. WYDEN: So we're -- many of us thought we were going to have 40 more minutes because that's what we were told last night, that we would have three 20-minute sessions. Now, we're going to have five minutes and that will be it?

SEN. ROBERTS: If the gentleman wishes another five minutes and another five minutes, I will stay with him, and I know the general will, but we will have stacked votes sometime --

SEN. WYDEN: Thank you.

SEN. ROBERTS: -- between 4 and 4:15.

SEN. WYDEN: Very good.

SEN. ROBERTS: And so, consequently, to come after that, the closed session is going to go into about 7:00 or 8:00 tonight, and I don't think -- I think the witness has spent seven hours, and I think if we can be more concise -- if the senator wishes to have an additional five, additional five, I will certainly honor that.

SEN. WYDEN: Very good.

SEN. ROBERTS: Senator Bond.

SEN. CHRISTOPHER S. BOND (R-MO): Thank you very much, Mr. Chairman.

And my sincere thanks to you, General Hayden. You show unbelievable perseverance in staying with it. I support the chairman's idea that we move quickly to get into the closed session because many very important questions have been raised that can be answered only in the closed session.

I want to hit very quickly on the question of whether the CIA should rid itself of community coordinating functions, function and focus solely on clandestine human collection analysis, maybe even the director of operations out of Washington. Can you explain what you believe the proper role should be for the CIA and what you believe are fallacies in the position of those who want to trim down the CIA and make it solely operation-centric?

GEN. HAYDEN: Yes, sir, senator. I've heard the stories out there. In fact, I've been warned that it's caused a bit of nervousness out at Langley that even further drastic changes will be forthcoming. I think the structure out there right now is just fine, you know. And in a theoretical universe, you want to draw boxes in a different way; that's up to anybody to do. But in the practical world, this is what we have. It's functioning, and we ought to take advantage of it, and there's no reason we can't use it the way it's currently constructed. One idea out there is to somehow pull the director of intelligence out of the CIA and just leave the clandestine service behind and tuck the director of intelligence up under the DNI -- all right? -- because he's the one obviously representing the community in the morning intelligence briefings.

As soon as we do that, Senator, we have just created the DCI. We have just gone to a world in which the guy who is running the community is also now going to be responsible for running a large agency. I just don't see the wisdom in that. So I think the structure is about right.

I didn't quite understand one of your earlier comments. I think you were talking about the CIA having some community functions. And on behalf of the DNI, it does have that that national HUMINT manager function, which I think is very critical, and that's the right spot.

SEN. BOND: But I think as one who has sought to give the DNI more power, while I appreciate your willingness to stand up to the DNI and present your views, the question is when the DNI, for example, brings more analysts in to do the community function in the NCTC, things like that is what I believe the DNI should do, if we're to have ,-


SEN. BOND: --effective coordination. And I, for one, would look for you to present your viewpoints, but ,-

GEN. HAYDEN: Oh, yes.

SEN. BOND: -- but we have had in the past, to be honest, instances where the CIA has been less than forthcoming in dealing with other agencies on areas of mutual interest, and I trust that you will break that down, but the DNI will see that that will happen. I have a couple of administrative things I just want to bring to your attention ,-

GEN. HAYDEN: Yes, sir.

SEN. BOND: -- very briefly, three areas. First, I've heard, as I've talked to CIA people around the world, that the less-thanlaudable efforts in recruiting and clearing ethnic personnel. In other words, we have to -- when we're sending somebody against a target, it's helpful to have somebody who has a background in that target. And we're not doing -- we may not be doing a good enough job. And I've heard of problems about the administrative support the agency provides its officers.

And finally, the one thing that bedevils all of us -- I have spoken about this with the DNI, I believe when you were there -- the tremendous time lag in getting security clearances. Often when somebody is into and back out of the agency or perhaps even a confidential or a classified contractor who is doing IT work, for example, from one agency, to another agency, another agency, may have to wait six to nine months for new clearances each time. Those are -- these are administrative problems, but I think are a significant problem. I just want to know if you've got any --

GEN. HAYDEN: I've heard all three of them, Senator, and I have - -

SEN. BOND: And I assume that you will -- we can help you work on those.

GEN. HAYDEN: You bet. They're all hard, but they all have to be addressed.

SEN. BOND: They are. None of them are easy. Thank you very much, General Hayden.

Thank you, Mr. Chairman.

GEN. HAYDEN: Senator.

SEN. ROBERTS: Senator Levin.

SENATOR CARL LEVIN (D-MI): Thank you, Mr. Chairman.

General, I want to follow up on the Army Field Manual question that I asked you this morning or that Senator Warner asked you recently, and that had to do with whether or not the -- under the Detainee Treatment Act, there's a requirement to follow the Army Field Manual that applies beyond DOD personnel, and I think your answer was it applies only to DOD personnel.

GEN. HAYDEN: My understanding of the legislation, Senator, is that it explicitly applies to the treatment of personnel under DOD control.

SEN. LEVIN: The language says that it will apply to treatment or technique of interrogation under the effective control of the Department of Defense or under detention in a Department of Defense facility.

GEN. HAYDEN: That's correct. Yes, sir.

SEN. LEVIN: That is your -

GEN. HAYDEN: That's my understanding.

SEN. LEVIN: So it could be CIA interrogation at a Defense Department facility.

GEN. HAYDEN: But the language is very, very explicit. If it's in a DOD facility or under -- I think I said under effective DOD -- SEN. LEVIN: I just want to clarify that.

GEN. HAYDEN: Yes, sir. You're correct.

SEN. LEVIN: On February 5th, you said on Fox News that, quote, "When NSA goes after the content of a communication under this authorization from the president, the NSA has already established its reasons for being interested in that specific communication."

GEN. HAYDEN: Yes, sir.

SEN. LEVIN: That's the probable cause -

GEN. HAYDEN: Yes, sir. And sir, as you pointed out, I was careful to use the word "content."

SEN. LEVIN: Right, and that's what I want to ask you about. Do you use the word "content" in that interview in the way that FISA defines content?

GEN. HAYDEN: No, sir, I do not. I use "content" in the normal usage, in normal discourse -- the conversation itself, everything between "hello" and "goodbye."

SEN. LEVIN: So you don't use the FISA definition -

GEN. HAYDEN: I was not -- in that context, I was not using the FISA definition of content. No, sir.

SEN. LEVIN: And how long does it, on the average, does it take your -- the staff at NSA to reach that point after they get the lead, let's say? In other words, does that normally take a week, two weeks, three weeks for that whole process to get to the point where you say, hey, we think we -- we have probable cause"?

GEN. HAYDEN: Yes, sir. It varies, and -

SEN. LEVIN: What's the range?

GEN. HAYDEN: It's kind of in the range as you just decided -- just discussed. It could be as quick -- and I -- in closed session, I will give you -

SEN. LEVIN: All right.

GEN. HAYDEN: -- specific examples of how quick it is, and that's -

SEN. LEVIN: I'll give you that point.

GEN. HAYDEN: -- in 90 minutes. And in other times it does take a considerable period of time because -- you've been out there and visited, Senator -- there's a lot of due diligence. This is not done randomly.

GEN. HAYDEN: Yes, sir.

SEN. LEVIN: Well --

GEN. HAYDEN: It varies.

SEN. LEVIN: What's the range?

GEN. HAYDEN: It's kind of in the range that you just decided -- just discussed. It could be as quick -- and I -- in closed session, I will give you specific examples of how quick it is.

SEN. LEVIN: All right.

GEN. HAYDEN: And that's 90 minutes -- in 90 minutes.

SEN. LEVIN: Get to that point --

GEN. HAYDEN: And other times it does take a considerable period of time, because -- you've been out there and visited, Senator - - there's a lot of due diligence. This is not done randomly.

SEN. LEVIN: So it could take two, three, four weeks.

GEN. HAYDEN: In some cases, that could --

SEN. LEVIN: Or it could take an hour and a half.

GEN. HAYDEN: Yes, sir. That's right.

SEN. LEVIN: All right. Now, when we chatted in the office, I believe you indicated that in the current circumstances, that there are more terrorists, apparently, being created than are being eliminated. I thought that was a very interesting observation. I wonder if you would just expand that.

GEN. HAYDEN: Yes, sir. I gave a speech in Texas two or three weeks back, when I was very steady in my old job and before all this started to happen. And what I tried to point out -- and this actually ties in to the discussion we just had earlier with Senator Bond about shifting our analytic weight from CTC to NCTC -- an awful lot of our analytic firepower right now is tied up in current operations to kill or capture those who are going to do us harm. And that's wonderful, and there really is a wonderful record of success that the American people will learn about some day.

But this is a broader war -- I actually said in the speech "a war of ideas" -- and the war has got to be fought with all elements of American power. And therefore this shift in weight from CTC and direct support to the DO to NCTC and broader support across the U.S. government and all elements of U.S. power is designed to win the war in the long term.

SEN. LEVIN: But you also indicated to me that at the moment, at least, that you believe there are more terrorists being created than are being eliminated. Is that a fair --

GEN. HAYDEN: Yeah, I would -- I mean, I couldn't pull statistics out and say one is X and the other is Y.

SEN. LEVIN: But just in your judgment --

GEN. HAYDEN: But if you look at the global terrorist threat, in number, it looks as if there are more; in capability, much reduced.

SEN. LEVIN: The executive order governing declassifying national security information establishes a uniform system. It's Executive Order 13292. And it says that an exceptional case -- in some exceptional cases, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases, the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.

Are you familiar with that language?

GEN. HAYDEN: Senator, I've not read the EO, but what you've described is a process I'm familiar with.

SEN. LEVIN: And how important would you say it is to follow that process?

GEN. HAYDEN: Senator, I -- you know, I understand the process. That was a process we used with Secretary Powell's speech. George had to call me to clear on the release of the three transcripts that he played in New York.

SEN. LEVIN: Because in a recent letter to me, the Office of DNI wrote that the CIA was not asked to review the classified material that was involved in Scooter Libby's disclosure until nine days after the president authorized that disclosure.

Did you -- were you involved in that?

GEN. HAYDEN: No, sir, I'm not.

SEN. LEVIN: That discussion at all?

GEN. HAYDEN: No. No, sir.

SEN. LEVIN: Do you know why that process of the executive order was not followed?

GEN. HAYDEN: Sir, I -- I'm sorry. I do not.

Senator, could I just add one footnote to this?


GEN. HAYDEN: With the new legislation, we believe that the law - - and this is not quite as clear as it might be -- gives the DNI authority to declassify. If you recall, the Zawahiri-Zarqawi letter that was made public last October, we believe that Ambassador Negroponte would have the authority to release that. But because of the executive order and lack of clarity, we did work with General Alexander and Mike Maples and the other heads of agencies to make sure we had everyone's concurrence.

SEN. LEVIN: My time is up on this round.

Thank you.

SEN. ROBERTS: Senator Wyden.

SEN. WYDEN: Thank you, Mr. Chairman.

General, I want to stay with the credibility issue again. This morning you said that you had never read the Department of Justice memo signing off on the warrantless wiretapping program. That was in response to Senator Feinstein.

GEN. HAYDEN: I do. Yes, sir.

SEN. WYDEN: Then, you also said your lawyers didn't give you anything in writing on the warrantless wiretapping program. I'm trying to square that with the statements you made at the Press Club that go on and on and on about all you did to make sure that there was a full effort to nail down that this was a legal program. Tell me how you reconcile those two.


SEN. WYDEN: I mean, nearly everybody I know reads, like, a memo, I mean, at least to try to get started on it, and you said you didn't read a memo. And I compare that to this speech.

So reconcile those two for me.

GEN. HAYDEN: Sure, happily. What I believe I said at the Press Club was that I had an order, you know, signed by the president, passed through the secretary of Defense whose lawfulness was averred to by the attorney general. I knew from personal discussion that the White House Counsel also agreed to its lawfulness, and I also knew that there was an opinion, which I had not seen, that was crafted in the Department of Justice, I believe by OLC at the time, the Office of Legal Counsel, that underpinned the attorney general's opinion.

I then posed the question to NSA lawyers, and, Senator, I -- it's a long time ago -- we may have exchanged paper. I don't have a record of that. But they looked at it and came back serially -- I did it to three, and I did it to three independently -- and they all came back independently believing, telling me, based on their understanding of the statute, of the Constitution, that this was lawful.

SEN. WYDEN: Now, let me just move on. I have many more examples. I mean, this past winter you were the public relations point man, in effect, for the warrantless wiretapping program; today you say you want to keep the CIA out of the news. I'm going to go through more of those examples in closed session. But let's see if we can get something on the record that will give you, if confirmed, a chance to get off to a strong start in terms of accountability.

Senator Roberts and I, as you know, have pushed for, and that is, to make public, the report done by the inspector general on the activities of the CIA prior to 9/11. I've read it. Obviously I can't go into it here. I think it's very much relevant to making the kinds of changes that deal with a post -- a dangerous post-9/11 world. Will you work with us, if confirmed, to make any appropriate redactions if, you know, necessary, and finally get that report out to the American people and to the families who saw their loved ones murdered?

GEN. HAYDEN: Senator, I absolutely commit to working with you. But let me -- truth in lending here -- talk just for a moment about factors bearing on the problem. It is classified. A declassification of it I think would not be fair without an equal declassification of the rebuttals that were made to the report.

I, frankly, am not all that familiar with it. I have reviewed the section that talked about the DCI's relationship with NSA. And in closed session I can give you my views on that.

And then finally, Senator, I would need to have an honest dialogue with you and the chairman to see, frankly, what effect we're attempting to create by making this public.

SEN. WYDEN: In your testimony today you said, and I quote, "I will draw a clear line between what we owe the American people by way of openness and what must remain secret in order for us to continue to do our jobs as charged." With all due respect, General, who gives you the exclusive authority to make that judgment? Do you mean to say I, in conjunction with this committee, working in a bipartisan way -- and maybe you'd like to amplify it. But the way it's stated is "I will draw a clear line."

GEN. HAYDEN: Senator, could you just read the sentence to me again?

SEN. WYDEN: I'll read it to you. I don't have the exact page in front of me: "I will draw a clear line" ...

GEN. HAYDEN: I have it: "I will draw a clear line between what we owe the American public by way of openness and what must remain secret in order for us to continue doing our jobs as charged." Senator, you and the committee are not on that page. This is a discussion between what was to remain and what could be made public, not unlike what Senator Levin just referred to in Executive Order 13292. Agency heads have an important role to play.

When I went to NSA, NSA didn't say anything about anything. And I found that to be a very unsatisfying place.

And so I moved to try to make more public the agency's activities, putting a more human face on the agency. There is no intent in that sentence, and I don't think it's even implicit, that I'm drawing a line in terms of the dialogue I would have with this committee.

SEN. WYDEN: I would hope not. When you read it, though, it certainly, again, doesn't strike me as something that brings the Congress into a discussion; it sounds like something -- you've arrogated to yourself to make the --

GEN. HAYDEN: No, sir, I didn't mean that at all.

SEN. WYDEN: One last question. I'm pleased to hear that, General. One last question. I see my light is on.

General, I think you know, Senator Lott and I have worked on this in a bipartisan way, that I happen to think there's a huge problem with over-classification of government documents. Both political parties do it. I think it is more for political security than for national security, and I think we need an overhaul, an overhaul of the way government documents are classified. There have been some flagrant abuses. I mean, alcoholic beverage preferences of some, you know, politician or something gets, you know, classified. What is your sense with respect to whether this is a significant concern?

GEN. HAYDEN: Senator, I might argue with you with regard to the cause; you know, political sensitivity and so on. I don't see that. I do think we overclassify, and I think it's because we got bad habits. We're just in a routine that just elevates information to a higher level.

Senator, can I -- and I know you want to ask me more questions in closed session, but I do want to set the record straight. You quoted me as talking last year during my confirmation hearings as saying, "a personal view now, looking backward, we overachieved," which is a quote you had for me with regard to the Trailblazer program.

In the context of the statement, though, what I was saying was, "We made the strategic decision, with your support, and I think correctly, we'd get out of the mode of building things ourselves." "We're America's information age organization during America's industrial age, but we're not in America's industrial age anymore. We could and should go outside and engage industry in doing this. We could and should go outside and engage industry in doing this. A personal view now, looking back, we overachieved."

And what I was referring to there is we moved too much of this business line out to private industry. We defined our relationship with industry as simply the definition of requirements and then expected industry to come back and deliver something. We learned within Trailblazer, and I go on to say that didn't work.

All right? So when I said we overachieved, believe me, it wasn't about the Trailblazer program. It was in the strategy to rely too fully on industry to come up with a solution on their own, and that didn't work.

SEN. WYDEN: General, my time is up. I'm only going to tell you that I'm looking at it, and when you said then a personal view, now looking back we overachieved, that is wildly different, wildly different than what Newsweek reports in their magazine this week. And of course I can't get into it. And that's why I'm concerned about it. And that is important to this senator because you've described this as one of your signature, you know, issues with respect to information technology.

GEN. HAYDEN: Senator, I repeat: I overachieved -- a phrase I used to say went far too much with industry on this one; we should have had more government participation. I was explaining the failure of Trailblazer. And I get down to the bottom of that page and I would say it's about 60-40, that 60 percent of the difficulty in the program was just the raw difficulty of the challenge; the other 40 percent were things that were within our control.

SEN. WYDEN: I think the gap between what Newsweek reports this week on the general signature issue and the statement that we overachieved is something, again, that I'm concerned about. And we'll have more to discuss in closed session.

SEN. ROBERTS: Well, maybe we have the good fortune of having a Newsweek reporter in the audience.

Senator Levin.

SEN. CARL LEVIN (D-MI): Thank you, Mr. Chairman.

General, you made reference to a level of confidence assessment that you had asked for from staff at NSA around the time we attacked Iraq in five areas, I believe: nuclear weapons, chemical, biological, UAV and missiles.

GEN. HAYDEN: Yes, sir.

SEN. LEVIN: And then prior -- excuse me. I believe you said that the WMD one got a three and everyone else got a --

GEN. HAYDEN: No, the nuke, nuke.

SEN. LEVIN: -- the nukes got a three and the other ones got a five on a --

GEN. HAYDEN: Right. Five -- yeah, no, above five; sevens, eights -- the --

SEN. LEVIN: -- 10 being --

GEN. HAYDEN: -- the missile one got a 10.

SEN. LEVIN: -- 10 being the most confident in your level of assessment?

GEN. HAYDEN: Yes, sir. Here's the sort of --

SEN. LEVIN: Was -- were these assessments, these levels of confidence asked for before that particular occasion, like back in October during the NIE assessment, where they were --

GEN. HAYDEN: Yes, sir. And let me just -- 45 seconds on the process.

What I asked the folks -- and these are young folks, these are analysts -- I say, "On SIGINT alone -- on SIGINT alone, zero to 10, how confident were you -- on the day we kicked off the war - - how confident were you that he had --" okay?

Nukes was lowest at three, missiles was highest at 10, everything else was five, seven and eight, all right?

SEN. LEVIN: Okay. Had that kind of an assessment been requested during the October NIE or prior to the war?

GEN. HAYDEN: Sir, we -- these were the body of folks that prepared me to go to the National Intelligence Board that George -- NFIB at that time, National Foreign Intelligence Board. I'm the one who raised my hand and voted for the NIE. And frankly -- SEN. LEVIN: I know those are the same folks. But had they given you that kind of a --

GEN. HAYDEN: -- did I have those numbers? No, I did not have those confidence numbers then.

What I had was a body of SIGINT -- a body of SIGINT that ran in this range, Senator: in terms of the conclusions in the NIE, the SIGINT I had ranged from ambiguous to confirmatory.

SEN. LEVIN: I understand. And was there a request of that type made for the assessment about the -- any link between Saddam and al Qaeda?

GEN. HAYDEN: No, sir, because we didn't sign up to that in the estimate or any estimate.

SEN. LEVIN: There have been two public statements -- I want to ask whether you agree with.

One is by -- both by senators that have been briefed on the program. One is by Senator Frist, that the program itself is anonymous in the sense that identifiers, in terms of protecting your privacy, are stripped off. And as you know, the program is voluntary. The participants in that program -- that was public statement number one. Do you agree with that statement of the senator?

GEN. HAYDEN: Senator, I'll be delighted to answer that a little bit later in closed session.

SEN. LEVIN: You won't answer it -- or can't answer it?

GEN. HAYDEN: No, sir. I don't want to answer it in an open session, sir.

SEN. LEVIN: Why is that?

GEN. HAYDEN: I am not in a position to confirm or deny this story that appeared in USA Today.

SEN. LEVIN: No, that's -- I'm talking about Senator Frist's comments on CNN.

GEN. HAYDEN: Yes, sir. But you're asking me to comment on Senator Frist, which would then --

SEN. LEVIN: No, on a statement --

GEN. HAYDEN: I understand. And I'll --

SEN. LEVIN: -- okay. The second one, as a member of this committee said, the president's program uses information collected from phone companies. Are you able to say whether you agree with that?

GEN. HAYDEN: No, sir, I'm not. Not in open session.

SEN. LEVIN: Same reason?

GEN. HAYDEN: Yes, sir.

SEN. LEVIN: The -- are you familiar with the second Bybee memo?

GEN. HAYDEN: Yes, sir.

SEN. LEVIN: You and I have talked about that.

GEN. HAYDEN: Yes, sir, we have.

SEN. LEVIN: Have you read the memo?

GEN. HAYDEN: I went through it over the past several days, sir.

SEN. LEVIN: Okay. Is it your understanding that the second Bybee memo remains operative?

GEN. HAYDEN: I'll get into further detail in the closed session. But in general -- no, let me just take it in closed session, so I can be --

SEN. LEVIN: Even on that question? Even as to whether it remains operative or not?

GEN. HAYDEN: There are additional legal opinions that are offered, and -- but again, to give you the import of those, I would prefer to do that in closed session.

SEN. LEVIN: And we've been denied access -- all the members of the committee, at least -- apparently the leadership -- I take it back. I believe all but perhaps two of us have been denied access to that memo. Do you know whose decision it was to deny us access?

GEN. HAYDEN: Sir, I'm sorry. I really don't know. But I am aware of the circumstances.

SEN. LEVIN: Finally, you've made the statement again here today that your -- in your personal view, had the president's warrantless surveillance program been in operation prior to 9/11, that two of the hijackers -- referring to Midhar and Hazmi -- would have been detected. Now, that's speculation, in my judgment, but nonetheless, that's your speculation.

I have to take -- I have got to point out the following: that the CIA knew that Midhar and Hazmi left Malaysia in January of 2000, with U.S. visas; the CIA knew in March of 2000 that Hazmi was in the United States, soon after leaving Malaysia; those two were never watch list as al Qaeda operatives, although the CIA knew they were operatives; the CIA failed to share critical information about them with the FBI, although asked by the FBI in June of 2001, when the meeting took place between the FBI and the CIA in New York City.

So -- and that's all been set forth in a document which is part of the appendix to the joint inquiry of this committee and the House committee.

So the CIA knew these two guys were here in the United States. It wasn't something you have to speculate about whether or not the technology or whatever would find them.

GEN. HAYDEN: No, no. Yeah --

SEN. LEVIN: Would you agree that there was a significant failure --

GEN. HAYDEN: Oh, yes.

SEN. LEVIN: -- on the part of the CIA to track these --

GEN. HAYDEN: Sir, the record's clear, and we lost lock on these two individuals. All I'm saying is, if this program had been in place, I almost near 1.0 in my confidence that the National Security Agency would have raised its hand and said, "Hey, these two guys are in San Diego."

SEN. LEVIN: The CIA did not raise its hand, although it knew.

GEN. HAYDEN: That's -- sir, I --

SEN. LEVIN: Is that correct? You've read the history.

GEN. HAYDEN: I have read the history. I'm not familiar with what you just said, though, about their being there.

SEN. LEVIN: Well, then I would ask, then, that this be made part of the record and that the general be asked to comment on this for the record. I would also ask for the record, Mr. Chairman, that the letter from the Office of the Director of National Intelligence to me that I referred to in my question to the general, the date being April 27th, 2006, also be made part of the record.

SEN. ROBERTS: Without objection.

SEN. LEVIN: Thank you. And those are my last questions. Thank you.

SEN. ROBERTS: Senator Wyden, do you wish another round?


Senator Feingold's here. I think he was ahead of me.

SEN. ROBERTS: I'm sorry. I'm going to --

SEN. FEINGOLD: Mr. Chairman --

SEN. WYDEN: I'm here -- (inaudible). Why don't you go ahead?

SEN. FEINGOLD: Go ahead, if you've got a quick one.

SEN. ROBERTS: No, no, no, no. We're going to go to Feingold.

SEN. FEINGOLD: All right. Thank you, Mr. Chairman. I don't have a lot, but General, thank you.

Several times this morning you've said that warrantless surveillance program could have prevented the 9/11 attack. Did you ever say this in open or closed session to the joint committee or the 9/11 Commission?

GEN. HAYDEN: No, sir. And I need to clarify. I wouldn't have said that. I -- what I -- and if I had, boy, that's badly misspeaking.

What I said was, it would have identified two individuals we knew to be al Qaeda, would have identified them as such, and would have identified them inside the United States.

SEN. FEINGOLD: Did you tell that --

GEN. HAYDEN: Now, what that leaves --

SEN. FEINGOLD: -- did you tell that to either the joint committee or the 9/11 Commission?

GEN. HAYDEN: The four members of the joint committee were aware of the program and its capabilities. I did not brief anyone else or staff and did not brief it to the 9/11 commission at all.


GEN. HAYDEN: Because the program was heavily compartmented, and I was not at liberty to discuss it with the committee. I would point out, though, that both committees honed in on this lack of an ability to connect external and internal communications as one of the key failures prior to 9/11.

SEN. FEINGOLD: General Hayden, I want to follow up on your statement to Senator Snowe that DOD takes actions that don't look much different from CIA activities.

What are the respective roles of the DOD and the CIA?

GEN. HAYDEN: Yes, sir, and I'll -- I'm going to speak in just -- slightly in general terms and I can go in more detail later. What we're talking about here is what the Department of Defense calls Operational Preparation of the Environment, OPE. It's the ability of Defense to get into an area and know it prior to the conduct of military operations. An awful lot of those activities -- getting to know an area, preparing the area for future operations -- are, you know, when you're watching them happening, are not, in terms of trade craft or other aspects, recognizably different than collecting human intelligence for a foreign intelligence purpose.

The legal bloodline, though, for this one goes back to Title 10 in inherent military activities. The bloodline for this goes back to Title 50, foreign intelligence activities. But here, in this melee here, they look very much the same. Different authorities; somewhat different purposes; mostly indistinguishable activities. My view is that, as the National HUMINT manager, the director of CIA should strap on the responsibility to make sure that this thing down here, that walks and quacks and talks, like human intelligence, is conducted to the same standards as human intelligence without questioning the secretary's authority to do it or the legal authority under which that authority is drawn.

SEN. FEINGOLD: Does the comparative roles of DOD and CIA vary by country? Does it depend?

GEN. HAYDEN: I guess it would depend, and I mentioned earlier that because of the press of the war -- and this is recent learning for me by talking to the folks at the agency -- they're doing things that are an awful lot more tactical than they have traditionally done. And so in that sense, DOD's stepping up and doing these inherently tactical things. That's good news. It just has to be synchronized.

SEN. FEINGOLD: Well, in terms of this idea of sort of doing this on a case-by-case basis, I mean, it concerns me. I mean, isn't it better to clarify these functions somehow now? In other words, why should our personnel out in the field have to operate under overlapping authorities? And why not try to resolve this now, rather than wait until some critical mission is potentially paralyzed by some kind of interagency conflict?

GEN. HAYDEN: Yes, sir. And that was the purpose of the MOU between Defense and CIA -- oh boy -- late last summer, early last fall. And now we're in the process of implementing that, making sure it's implemented in all cases. And I said -- and I've talked to the folks at the agency; they actually put a fairly happy face on this. They think this is going well. And they point out that when there are issues, it's largely attributed to inexperience rather than ill intent.

SEN. FEINGOLD: Well, I wish you well with it, because, obviously, rather than -- we don't want people, rather than fighting al Qaeda, to be fighting each other in these situations. I know you want that as much as anybody. And that seems to me to be one of the most important things going forward.

Mr. Chairman, thank you.

And thank you, Senator Wyden.

GEN. HAYDEN: Thank you, Senator.

SEN. ROBERTS: Senator Wyden.

SEN. WYDEN: Thank you, Mr. Chairman.

General, to wrap up --

GEN. HAYDEN: Yes, sir.

SEN. WYDEN: -- my assessment of this is that people in this country see fighting terrorism and protecting privacy as not mutually exclusive; they feel that we can do both. Right now the American people cannot find the checks and balances; they don't know what the truth is, and they're very concerned about what's next.

Tell me, for purposes of my closing up in this public session, what can be done to break this cycle? You know, what we have is an announcement from the government about a program that sounds limited, sounds like it strikes a balance, and then people wait for the next shoe to drop and there are all these revelations in the newspaper.

What, in your view, can be done to break the cycle?

GEN. HAYDEN: Senator, more broadly, without, you know, confining my comments to the terrorist surveillance program, and particularly without commenting or verifying anything that's been in the press --

SEN. WYDEN: General, with -- I only -- I only interrupt you to be humorous. If you want to say "we can be more forthcoming," then we can wrap the topic. (Laughter.)

GEN. HAYDEN: Senator, as I said in my opening comments, all right, it is my belief that I will be as open as possible with this committee. I'll make the caveat, I'm not going to solve the polynomial equation created in Philadelphia in terms of inherent tension between Article I and Article II authority. But my belief is that the way we get the comfort of the American people is by the dialogue I can have with members of this committee, albeit in certain circumstances with the leadership, in other circumstances with the broader committee.

SEN. WYDEN: I will tell you, General, in wrapping up -- because this is really how I want to close -- for months and months, as a member of this committee, I have gotten most of my information about the key program from the newspapers. I don't think that complies with the 1947 statute. I don't think that's what we need to have bipartisanship in intelligence. I don't think that's what we need to really prepare this country for dealing with a dangerous post-9/11 world.

I joke all the time, "I'm only on the Intelligence Committee, what do I know?" And unfortunately -- and this has been the case for, you know, years -- most of this committee has not been privy to getting the information that's so critical.

Senator Hatch, for example, read from that memo a variety of names, and went on for a considerable time. Before that New York Times story came out, as far as I can tell, only eight leadership, you know, positions and two others knew anything at all about what came out in The New York Times. So, I will tell you, when you say you're going to come to the leadership of the committee, I will say for years and years -- and this is a matter of public record -- most of this committee has not been able to get the sensitive information, the information that our constituents ask. And I think that is not how we're going to get effective intelligence oversight for our country.

Thank you for the extra time, Mr. Chairman.

SEN. ROBERTS: (Gavels.) The open part of this hearing is now concluded, and we will move immediately to the closed session. General, thank you for your patience.

GEN. HAYDEN: Yes, sir.


Join the mailing list