[Senate Hearing 109-808]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-808
 
                             NOMINATION OF
                    GENERAL MICHAEL V. HAYDEN, USAF
                                 TO BE
                            DIRECTOR OF THE
                      CENTRAL INTELLIGENCE AGENCY
=======================================================================

                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 18, 2006

                               __________

      Printed for the use of the Select Committee on Intelligence


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate




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                    SELECT COMMITTEE ON INTELLIGENCE

           [Established by S. Res. 400, 94th Cong., 2d Sess.]
                     PAT ROBERTS, Kansas, Chairman
          JOHN D. ROCKEFELLER IV, West Virginia, Vice Chairman
ORRIN G. HATCH, Utah                 CARL LEVIN, Michigan
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
CHRISTOPHER S. BOND, Missouri        RON WYDEN, Oregon
TRENT LOTT, Mississippi              EVAN BAYH, Indiana
OLYMPIA J. SNOWE, Maine              BARBARA A. MIKULSKI, Maryland
CHUCK HAGEL, Nebraska                RUSSELL D. FEINGOLD, Wisconsin
SAXBY CHAMBLISS, Georgia
                   BILL FRIST, Tennessee, Ex Officio
                     HARRY REID, Nevada, Ex Officio
                  JOHN W. WARNER, Virginia, Ex Officio
                              ----------                              
             Bill Duhnke, Staff Director and Chief Counsel
               Andrew W. Johnson, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk

                            C O N T E N T S

                              ----------                              
                                                                   Page

                              MAY 18, 2006
                           OPENING STATEMENTS

Roberts, Hon. Pat, Chairman, a U.S. Senator from the State of 
  Kansas.........................................................     1
Levin, Hon. Carl, a U.S. Senator from the State of Michigan......     4

                               WITNESSES

    Hayden, General Michael V., USAF.............................    12

                         SUPPLEMENTAL MATERIALS

    Letter dated May 17, 2006 from Senator John D. Rockefeller IV 
      to General Michael V. Hayden...............................     7
    Letter dated May 17, 2006 from Director John D. Negroponte to 
      Hon. J. Dennis Hastert with attachment showing dates and 
      names of Congress Members who attended briefings on the 
      Terrorist Surveillance Program.............................    70
    CIA/FBI failures in regard to two September 11 hijackers, the 
      Phoenix Electronic Communication, and the Moussaoui 
      Investigation (based on chart presented by Senator Carl 
      Levin at October 17, 2002 joint inquiry hearing)...........   122
    Letter dated April 27, 2006 from Darlene M. Connelly, 
      Director of Legislative Affairs, Office of the DNI to 
      Senator Carl Levin.........................................   123


                             NOMINATION OF



                    GENERAL MICHAEL V. HAYDEN, USAF



                                 TO BE



                            DIRECTOR OF THE



                      CENTRAL INTELLIGENCE AGENCY

                              ----------                              


                         THURSDAY, MAY 18, 2006

                               U.S. Senate,
                  Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:33 a.m., in 
room SH-216, Hart Senate Office Building, the Honorable Pat 
Roberts (Chairman of the Committee) presiding.
    Present: Senators Roberts, Hatch, DeWine, Bond, Lott, 
Snowe, Hagel, Chambliss, Warner, Levin, Feinstein, Wyden, Bayh, 
Mikulski and Feingold.

       OPENING STATEMENT OF HON. PAT ROBERTS, CHAIRMAN, 
                   A U.S. SENATOR FROM KANSAS

    Chairman Roberts. The Committee will come to order.
    The Committee meets today to receive testimony of the 
President's nomination for the Director of the Central 
Intelligence Agency. Our witness today is the President's 
nominee, General Michael V. Hayden.
    Obviously, given his more than 35 years of service to our 
country, his tenure as Director of the National Security 
Agency, and his current position as the Principal Deputy 
Director of National Intelligence, why, General Hayden is no 
stranger to this Committee and he needs no introduction to our 
Members. In other words, we know him well.
    So, General, the Committee welcomes you and your guests and 
your family.
    Your nomination comes before the Senate at a crucial and 
important time, because the Central Intelligence Agency 
continues to need strong leadership in order to protect our 
national security.
    The public debate in regard to your nomination has been 
dominated not by your record as a manager or your 
qualifications, the needs of the CIA, its strengths and its 
weaknesses and its future, but rather the debate is focused 
almost entirely on the Presidentially authorized activities of 
another agency.
    The National Security Agency's terrorist surveillance 
program became public last December as a result of a grave 
breach of national security. A leak allowed our enemy to know 
that the President had authorized the NSA to intercept the 
international communications of people reasonably believed to 
be linked to al-Qa'ida--people who have and who are still 
trying to kill Americans.
    At that time, largely uninformed critics rushed to 
judgment, decrying the program as illegal and unconstitutional. 
I think in the interim that cooler heads have prevailed and 
there is now a consensus that we must be listening to al-Qa'ida 
communications. Last week, in the wake of another story, those 
same critics reprised their winter performance, again making 
denouncements and condemnations on subjects about which they 
know little or nothing.
    Inevitably, all of the media--all of America, for that 
matter--looks to us for comment. More often than not, although 
very frustrating, we are literally unable to say anything. 
Anyone who has ever served on a congressional Intelligence 
Committee has struggled with the issue of secrecy. How do we, 
as the elected representatives of the people, assure the public 
that we are fully informed and conducting vigorous oversight of 
our Nation's intelligence activities when we can say virtually 
nothing about what we know, even though we would like to set 
the record straight?
    The result of this conundrum is that we quite often get 
accused of simply not doing our job. Such accusations by their 
very nature are uninformed and therefore are not accurate. 
Unfortunately, I have found that ignorance is no impediment for 
some critics. I fully understand the desire to know; I'm a 
former newspaper man. But I also appreciate the absolute 
necessity of keeping some things secret in the interest of 
national security.
    In this regard, I am truly concerned. This business of 
continued leaks, making it possible for terrorists to 
understand classified information about how we are preventing 
their attacks, is endangering our country and intelligence 
sources and methods and lives. I believe the great majority of 
American people understand this. I think they get it.
    Al-Qa'ida is at war with the United States. Terrorists are 
planning attacks as we hold this hearing.
    Through very effective and highly classified intelligence 
efforts, we have stopped attacks. The fact we have not had 
another tragedy like 9/11 is no accident. But today in Congress 
and throughout Washington, leaks and misinformation are 
endangering our efforts. Bin Ladin, Zarqawi and their followers 
must be rejoicing.
    We cannot get to the point where we are unilaterally 
disarming ourselves in the war against terror. If we do, it 
will be game, set, match al-Qa'ida.
    Remember Khobar Towers, Beirut, the USS COLE, embassy 
attacks, the two attacks on the World Trade Center and the 
Pentagon, 9/11, and attacks worldwide and more to come, if our 
efforts are compromised.
    I am a strong supporter of the First Amendment, the Fourth 
Amendment and civil liberties. But you have no civil liberties 
if you are dead.
    I have been to the NSA and seen how the terrorist 
surveillance works. I have never seen a program more tightly 
run and closely scrutinized.
    When people asked on September 12 whether we were doing 
everything in our power to prevent another attack, the answer 
was no. Now, we are, and we need to keep doing it.
    I have often said and I will say again, I trust the 
American people. They do have a right to know. I do not trust 
our enemies. Unfortunately, there is no way to inform the 
public without informing our adversaries.
    So how can we ensure that our Government is not acting 
outside the law if we cannot publicly scrutinize its actions? 
This institution's answer to that question was the creation of 
this Committee. We are the people's representatives. We have 
been entrusted with a solemn responsibility. And each Member of 
this Committee takes it very seriously. We may have 
differences, but we take our obligations and responsibilities 
very seriously.
    Because intelligence activities are necessarily secret, the 
conduct of our oversight is also secret. In my humble opinion, 
it doesn't make a whole lot of sense to telegraph to our 
adversaries how we intend to learn about their capabilities and 
their intentions.
    Oversight of the terrorist surveillance program is 
necessarily conducted behind closed doors. The Senate 
Intelligence Committee has been and will continue to exercise 
its oversight and responsibilities related to the NSA. 
Yesterday the entire Committee joined our continuing oversight 
of the program. Each Member will have the opportunity to reach 
their own conclusions. I have no doubt that they will. I 
encourage that.
    As we continue our work, I want to assure the American 
people and all of my Senate colleagues, we will do our duty.
    Now, with that said, I want to applaud the brave men and 
women of the intelligence community who are implementing this 
program. Their single focus and one and only motivation is 
preventing the next attack. They are not interested in the 
private affairs of their fellow Americans. They are interested 
in one thing, finding and stopping terrorists. America can be 
proud of them. They deserve our support and our thanks, not our 
suspicion.
    Since I became Chairman of this Committee, I have been 
privy to the details of this effective capability that has 
stopped and, if allowed to continue will again stop, terrorist 
attacks.
    Now, while I cannot discuss the program's details, I can 
say without hesitation, I believe that the NSA terrorist 
surveillance program is legal, it is necessary, and without it 
the American people would be less safe. Of this I have no 
doubt.
    Finally, I want to remind the public that this open hearing 
is only part of the confirmation process. When this hearing 
ends, this open hearing, and the cameras are turned off, the 
Members of this Committee will continue to meet with General 
Hayden.
    It would be inaccurate to state, as one national news 
editorial did today, that due to the classified constraints, 
Members will be limited in how much they can say at this 
confirmation proceeding.
    In the following closed door and secure session, the 
elected representatives on this Committee will have the ability 
to pursue additional lines of questioning and will be able to 
fully explore any topic that they wish.
    It is my hope that during this open hearing we can at least 
focus to some degree on General Hayden's record as a manager, 
his qualifications as a leader, and the future of the Central 
Intelligence Agency--issues that should be equally as important 
to the public.
    With that said, again I welcome you to the Committee. I 
look forward to your testimony and your answers to our Members' 
questions. I note that Vice Chairman Rockefeller sends his deep 
regrets, as he is necessarily absent today. In his absence, I 
now recognize the distinguished Senator from Michigan for the 
purpose of an opening statement.
    Senator Levin.

             OPENING STATEMENT OF HON. CARL LEVIN, 
                  A U.S. SENATOR FROM MICHIGAN

    Senator Levin. Mr. Chairman, thank you. Thank you for 
finding a way also to involve all the Members of this Committee 
in the briefings about the surveillance program which there is 
so much concern and discussion about.
    A few of us had been briefed, at least to some extent, 
partly into the program, but now because of your efforts, Mr. 
Chairman, and your decision, every member of this Committee can 
now have that capability. And for that I think we should all be 
grateful and are grateful.
    The nomination of a new Director for the Central 
Intelligence Agency comes at a time when the Agency is in 
disarray. Its current Director has apparently been forced out 
and the previous Director, George Tenet, left under a cloud 
after having compromised his own objectivity and independence, 
and that of his Agency, by misusing Iraq intelligence to 
support the Administration's policy agenda.
    The next Director must right this ship and restore the CIA 
to its critically important position. To do so, the highest 
priority of the new Director must be to ensure that 
intelligence which is provided to the President and to the 
Congress is, in the words of the new reform law, ``timely, 
objective and independent of political considerations.''
    That language described the role of the Director of 
National Intelligence. But, as General Hayden himself has 
stated, that responsibility applies not only to the DNI and to 
the Director of the CIA personally, but to all intelligence 
produced by the intelligence community.
    The need for objective, independent intelligence and 
analysis is surely as great now as it has ever been. The war on 
terrorism and the nuclear intentions and capabilities of Iran 
and North Korea could be life-and-death issues. Heaven help us 
if we have more intelligence fiascoes similar to those before 
the Iraq war, when, in the words of the head of the British 
intelligence, the U.S. intelligence was being ``fixed around 
the policy.''
    General Hayden has the background and credentials for the 
position of CIA Director. But this job requires more than an 
impressive resume.
    One major question for me is whether General Hayden will 
restore analytical independence and objectivity at the CIA and 
speak truth to power or whether he will shape intelligence to 
support Administration policy and mislead Congress and the 
American people as Director Tenet did.
    Another major question is General Hayden's views on a 
program of electronic surveillance of American citizens, a 
program which General Hayden administered for a long time. That 
is the program which has taken up a great deal of the public 
attention and concern in recent weeks.
    The war on terrorism not only requires objective, 
independent intelligence analysis. It also requires us to 
strike a thoughtful balance between our liberty and our 
security. Over the past 6 months, we have been engaged in a 
national debate about NSA's electronic surveillance program and 
the telephone records of American citizens. That debate has 
been hobbled because so much about the program remains 
classified.
    Public accounts about it are mainly references by the 
Administration, which are selective and incomplete, or the 
result of unverifiable leaks. For example, the Administration 
has repeatedly characterized the electronic surveillance 
program as applying only to international phone calls and not 
involving any domestic surveillance.
    In January, the President said, ``The program focuses on 
calls coming from outside of the United States, but not 
domestic calls.'' In February, the Vice President said, ``Some 
of our critics call this a `domestic surveillance program.' It 
is not domestic surveillance.''
    Ambassador Negroponte said, ``This is a program that was 
ordered by the President of the United States with respect to 
international telephone calls to or from suspected al-Qa'ida 
operatives and their affiliates. This was not about domestic 
surveillance.''
    Earlier this year, General Hayden appeared before the Press 
Club where he said of the program, ``The intrusion into privacy 
is also limited--only international calls.''
    Now, after listening to the Administration's 
characterizations for many months, America woke up last 
Thursday to the USA Today headline, ``NSA Has Massive Database 
of Americans' Phone Calls.''
    The report said, ``The National Security Agency has been 
secretly collecting the phone call records of tens of millions 
of Americans. The NSA program reaches into homes and businesses 
across the Nation by amassing information about the calls of 
ordinary Americans, most of whom aren't suspected of any 
crime.''
    The President says we need to know who al-Qa'ida is calling 
in America. And we surely do. But the USA Today article 
describes a Government program where the Government keeps a 
data base, a record of the phone numbers that tens of millions 
of Americans with no ties to al-Qa'ida, are calling.
    And the May 12th New York Times article quotes, ``One 
senior government official'' who ``confirmed that the NSA had 
access to records of most telephone calls in the United 
States.''
    We are not permitted, of course, to publicly assess the 
accuracy of these reports. But listen for a moment to what 
people who have been briefed on the program have been able to 
say publicly.
    Stephen Hadley, the President's National Security Adviser, 
after talking about what the USA Today article did not claim 
said the following, ``It's really about calling records, if you 
read the story--who was called when and how long did they talk. 
And these are business records that have been held by the 
courts not to be protected by a right of privacy. And there are 
a variety of ways in which these records lawfully can be 
provided to the Government. It's hard to find the privacy issue 
here,'' Mr. Hadley said.
    Majority Leader Frist has publicly stated that the program 
is voluntary. And a Member of this Committee has said, ``The 
President's program uses information collected from phone 
companies. The phone companies keep their records. They have a 
record. And it shows what telephone number called what other 
telephone number.''
    So the leaks are producing piecemeal disclosures, although 
the program remains highly classified. Disclosing parts of the 
program that might be the most palatable and acceptable to the 
American people, while maintaining secrecy, until they're 
leaked, about parts that may be troubling to the public, is not 
acceptable.
    Moreover, when Stephen Hadley, the President's National 
Security Adviser, says that it's hard to find a privacy issue 
here, I can't buy that. It's not hard to see how Americans 
could feel that their privacy has been intruded upon if the 
Government has, as USA Today reports, a database of phone 
numbers calling and being called by tens of millions of 
Americans who are not suspected of any wrongdoing.
    It is hard to see, however, if the leaks about this program 
are accurate, how the only intrusions into Americans' privacy 
are related to international phone calls, as General Hayden 
said at the National Press Club. And it's certainly not hard to 
see the potential for abuse and the need for an effective check 
in law on the Government's use of that information.
    I welcome General Hayden to this Committee. I thank you, 
General, for your decades of service to our Nation. I look 
forward to hearing your views.
    I also ask that a letter from Senator Rockefeller, sent to 
General Hayden yesterday, be made part of the record at this 
point.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 31314.001
    
    [GRAPHIC] [TIFF OMITTED] 31314.002
    
    [GRAPHIC] [TIFF OMITTED] 31314.003
    
    [GRAPHIC] [TIFF OMITTED] 31314.004
    
    [GRAPHIC] [TIFF OMITTED] 31314.005
    
    Senator Levin. And I just am delighted to report to each of 
us and to all of his colleagues and so many friends that 
Senator Rockefeller's recovery from his surgery is proceeding 
well, on schedule. And he is not only following these 
proceedings, but he is participating, to the extent that he 
can, without actually being here.
    I thank you again, General, for your service.
    And I thank you also, Mr. Chairman.
    Chairman Roberts. Without objection, your request is 
approved.
    And we are delighted to hear of Senator Rockefeller's 
progress. And I know that, in talking with him, when he talks 
about the Atlanta Braves, that he's getting a lot better.
    [Laughter.]
    Chairman Roberts. General Hayden, would you please rise and 
raise your right hand?
    Do you, sir, solemnly swear that the testimony you are 
about to provide to the Select Committee on Intelligence of the 
U.S. Senate will be the truth, the whole truth and nothing but 
the truth, so help you God?
    General Hayden. I do.
    Chairman Roberts. General Hayden, you may proceed.

    TESTIMONY OF GENERAL MICHAEL V. HAYDEN, USAF, DIRECTOR-
             DESIGNATE, CENTRAL INTELLIGENCE AGENCY

    General Hayden. Thank you, Chairman Roberts, Senator Levin, 
Members of the Committee.
    Let me, first of all, thank the members of my family who 
are here with me today--my wife, Jeanine, and our daughter, 
Margaret; my brother, Harry; and our nephew, Tony. I want to 
thank them and the other members of the family, yet again, for 
agreeing to continue their sacrifices, and they know I can 
never repay them enough.
    Chairman Roberts. General, if you would have them stand, 
why, the Committee would appreciate it.
    General Hayden. Sure.
    Chairman Roberts. Thank you for being here.
    General Hayden. And, Mr. Chairman, if it's not too much, 
can I also thank the people of the last agency I headed, 
National Security Agency?
    NSA's support while I was there and in the years since has 
been very much appreciated by me. I also deeply appreciate the 
care, patriotism, and the rule of law that continues to govern 
the actions of the people at the National Security Agency.
    Mr. Chairman, it's a privilege to be nominated by the 
President to serve as the Director of the Central Intelligence 
Agency. It's a great responsibility. There's probably no agency 
more important in preserving our security and our values as a 
Nation than the CIA. I'm honored and, frankly, more than a 
little bit humbled to be nominated for this office, especially 
in light of the many distinguished Americans who have served 
there before me.
    Before I talk about my vision for CIA, I'd like to say a 
few words about the Agency's most recent Director, Porter Goss. 
Over the span of more than 40 years, Porter Goss has had a 
distinguished career serving the American people, most recently 
as Director of the CIA, the organization where he started as a 
young case officer.
    As Director, Porter fostered a transformation that the 
Agency must continue in the coming years. He started a 
significant expansion of the ranks of case officers and 
analysts in accord with the President's direction. He 
consistently pushed for a more aggressive and risk-taking 
attitude toward collection.
    And he spoke from experience as a case officer and as a 
long-time member and then Chairman of the House Permanent 
Select Committee on Intelligence.
    It was Porter who, as Chairman of the HPSCI, supported and 
mentored me when I arrived back in Washington as Director of 
NSA in 1999. More importantly, we developed a friendship that 
continues to this day. So I just want to thank Porter for both 
his service and his friendship.
    The CIA is unique among our Nation's intelligence agencies. 
It's the organization that collects our top intelligence from 
human sources, where high-quality, all-source analysis is 
developed, where cutting-edge research and development for the 
Nation's security is carried out. And as this Committee well 
knows, these functions are absolutely critical to keeping 
America safe and strong.
    The CIA remains, as Porter Goss has said, ``the gold 
standard for many key functions of American intelligence.'' And 
that's why I believe that the success or failure of this agency 
will largely define the success or failure of the entire 
American intelligence community.
    The act you passed last year, the Intelligence Reform and 
Terrorism Prevention Act, gives CIA the opportunity and the 
responsibility to lead in ensuring the success of the Director 
of National Intelligence.
    Let me elaborate on that last sentence. The reforms of the 
last 2 years have in many ways made the CIA's role even more 
important. Now, it's true, the Director of Central 
Intelligence, the DCI, no longer sits on the seventh floor of 
the old headquarters building at Langley as both the head of 
the intelligence community and the CIA.
    But, it's also true that no other agency has the connective 
tissue to the other parts of the intelligence community that 
CIA has. The CIA's role as the community leader in human 
intelligence, as an enabler for technical access, in all-source 
analysis, in elements of research and development, not to 
mention its worldwide infrastructure, underscore the 
interdependence between CIA and the rest of the community.
    And although the head of CIA no longer manages the entire 
intelligence community, the Director continues to lead the 
community in many key respects. Most notably, the Director of 
CIA is the national HUMINT manager, responsible for leading 
human intelligence efforts by coordinating and setting 
standards across the entire community.
    In addition, the Agency is--and will remain--the principal 
provider of analysis to the President and his senior advisers. 
It also leads the community's open-source activities through 
its open-source center, which is an invaluable effort to inform 
community analysis and help guide the activities of the rest of 
the IC.
    In a word, the CIA remains, even after the Intelligence 
Reform Act, central to American intelligence. But this very 
centrality makes reforming the CIA, in light of new challenges 
and new structures, an especially delicate and important task.
    The Agency must be transformed without slowing the high 
tempo under which it already operates to counter today's 
threats. The CIA must continue to adapt to new intelligence 
targets, a process under way in large part to the leadership of 
George Tenet and John McLaughlin and Porter Goss.
    And the CIA must carefully adjust its operations, analysis 
and overall focus in relation to the rest of the community 
because of the new structure, while still keeping its eye on 
the ball--intelligence targets like proliferation and Iran and 
North Korea, not to mention the primary focus of disrupting al-
Qa'ida and other terrorists.
    The key to success for both the community--the intelligence 
community--and for the CIA is an agency that is capable of 
executing its assigned tasks and cooperating with the rest of 
the intelligence community. CIA must pursue its objectives 
relentlessly and effectively, while also fitting in seamlessly 
with an integrated American intelligence community.
    Picture the CIA's role in the community like a top player 
on a football team--critical, yet part of an integrated whole 
that must function together if the team is going to win. And as 
I've said elsewhere, even top players need to focus on the 
scoreboard, not on their individual achievements.
    Now, Mr. Chairman, let me be more specific about the vision 
I would have for the CIA if I am confirmed.
    First, I will begin with the collection of human 
intelligence. If confirmed as Director, I would reaffirm the 
CIA's proud culture of risk-taking and excellence, particularly 
through the increased use of nontraditional operational 
platforms, a greater focus on the development of language 
skills, and the inculcation of what I'll call, for shorthand, 
an expeditionary mentality.
    We need our weight on our front foot, not on our back foot. 
We need to be field-centric, not headquarters-centric.
    Now I strongly believe the men and women of the CIA already 
want to take risks to collect the intelligence we need to keep 
America safe. I view it as the Director's job to ensure that 
those operators have the right incentives, the right support, 
the right top cover and the right leadership to take those 
risks. My job, frankly, is to set the conditions for success.
    Now, if confirmed, I'd also focus significant attention on 
my responsibilities as national HUMINT manager. I've got some 
experience in this type of role. As Director of NSA, I was the 
national SIGINT manager, the national manager for signals 
intelligence. And in that role, I often partnered with the CIA 
to enable sensitive collection.
    As I did with SIGINT, signals intelligence, as Director of 
NSA, I would use this important new authority, the national 
HUMINT manager, to enhance the standards of tradecraft in human 
intelligence collection across the community. The CIA's skills 
in human intelligence collection makes it especially well 
suited to lead.
    As Director and as national HUMINT manager, I'd expect more 
from our human intelligence partners, those in the Department 
of Defense, the FBI and other agencies--more both in terms of 
their cooperation with one another and also in terms of the 
quality of their tradecraft. Here again, we welcome additional 
players on the field, but they must work together as a team.
    Now, second, and on par with human intelligence collection, 
CIA must remain the U.S. Government's center of excellence for 
independent, all-source analysis. If confirmed as Director, I 
would set as a top priority working to reinforce the DI's, the 
Directorate of intelligence's, tradition of autonomy and 
objectivity, with a particular focus on developing hard-edged 
assessments. I would emphasize simply getting it right more 
often, but with a tolerance for ambiguity and dissent, 
manifested in a real clarity about our judgments, especially 
clarity in our confidence in our judgments. We must be 
transparent in what we know, what we assess to be true and, 
frankly, what we just don't know.
    Red cell alternative analysis, red cell alternative 
evaluations are a rich source of thought-provoking estimates, 
and they should be an integral part of our analysis.
    And--and I believe this to be very important--we must also 
set aside talent and energy to look at the long view and not 
just be chasing our version of the current news cycle.
    Now, in this regard about analysis, I take very seriously 
the lessons from your joint inquiry with the House Intelligence 
Committee, your inquiry into the prewar intelligence on Iraq 
WMD, the 9/11 Commission, the Silberman-Robb Commission, as 
well as a whole bunch of internal intelligence community 
studies on what has worked and what has not worked in the past.
    Ultimately, we have to get analysis right. For in the end, 
it's the analytic product that appears before the President, 
his senior advisers, military commanders and you.
    Let me be very clear. Intelligence works at that nexus of 
policymaking, that nexus between the world as it is and the 
world we are working to create. Now, many things can 
legitimately shape a policymaker's work, his views and his 
actions. Intelligence, however, must create the left- and 
right-hand boundaries that form the reality within which 
decisions must be made.
    Let me make one final critical point about analysis. When 
it comes to that phrase we become familiar with, ``Speaking 
truth to power,'' I will indeed lead CIA analysts by example. I 
will, as I expect every analyst will, always give our Nation's 
leaders our best analytic judgment.
    Now third, beyond CIA's human and analytic activities, CIA 
science and technology efforts already provide focused, 
flexible and high quality R&D across the intel spectrum. If I'm 
confirmed, I'd focus the Directorate of Science and Technology 
on research and development programs aimed at enhancing CIA 
core functions--collection and analysis. I would also work to 
more tightly integrate the CIA's S&T into broader community 
efforts to increase payoffs from cooperative and integrated 
research and development.
    Support also matters. As Director of NSA, I experienced 
firsthand the operational costs of outdated and crumbling 
infrastructure. Most specifically, I would dramatically upgrade 
the entire CIA information technology infrastructure to bring 
into line with the expectations we should have in the first 
decade of the 21st century.
    Now in addition to those four areas--which, I think the 
Committee knows, Mr. Chairman, form the four major Directorates 
out at the Agency--there are two cross-cutting functions on 
which I would also focus if confirmed.
    To begin, I'd focus significant attention, under the 
direction of Ambassador Negroponte, the DNI, on the handling of 
intelligence relationships with foreign partners. As this 
Committee well knows, these relationships are of the utmost 
importance for our security, especially in the context of the 
fight against those terrorists who seek to do us harm.
    These sensitive relationships have to be handled with great 
care and attention, and I would, if confirmed, regard this 
responsibility as a top priority. International terrorism 
cannot be defeated without international cooperation. And let 
me repeat that prevailing in the war on terror is and will 
remain CIA's primary objective.
    For the same reason I'd push for greater information 
sharing within the United States, among the intelligence 
community and with other Federal, state, local and tribal 
entities. There are a lot of players out there on this one--the 
DNI, the program manager for the information sharing 
environment, the intelligence community's chief information 
officer, other agencies like FBI and the Department of Homeland 
Security.
    The CIA has an important role to play in ensuring that 
intelligence information is shared with those who need it. When 
I was at NSA, I focused my efforts to make sure that all of our 
customers had the information they needed to make good 
decisions.
    In fact, my mantra when I was at Fort Meade was that users 
should have access to information at the earliest possible 
moment and in the rawest possible form where value from its 
sharing could actually be obtained. That's exactly the approach 
I would use if confirmed at CIA.
    In my view, both of these initiatives, working with foreign 
partners and information sharing within the United States, 
require that we change our paradigm from one that operates on 
what I've called a transactional basis of exchange--they ask; 
we provide--in favor of a premise of common knowledge commonly 
shared, or information access.
    That would entail opening up more data and more databases 
to other intelligence community agencies, as well as trusted 
foreign partners, restricting the use of what I think is an 
overused originator-controlled caveat, and fundamentally 
embracing more of a risk management approach to the sharing of 
information.
    Finally, Mr. Chairman, everything I've said today matters 
little without the people, the great men and women of the CIA 
whom, if confirmed, I would happily join, but also the people 
of this great Nation.
    Respectfully, Senators, I believe that the American 
intelligence business has too much become the football in 
American political discourse. Over the past few years, the 
intelligence community and the CIA have taken an inordinate 
number of hits--some of them fair, many of them not. There have 
been failures, but there have also been many great successes.
    Now, I promise you we'll do our lessons-learned studies, 
and I will keep you, I will keep this Committee and your 
counterpart in the House fully informed on what we learn. But I 
also believe it's time to move past what seems to me to be an 
endless picking apart of the archaeology of every past 
intelligence success or failure.
    CIA officers, dedicated as they are to serving their 
country honorably and well, deserve recognition of their 
efforts, and they also deserve not to have every action 
analyzed, second-guessed and criticized on the front pages of 
the morning paper.
    Accountability is one thing and a very valuable thing, and 
we will have it. But true accountability is not served by 
inaccurate, harmful or illegal public disclosures.
    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 to do our job. The CIA needs to get out of 
the news as source or subject and focus on protecting the 
American people by acquiring secrets and providing high-quality 
all-source analysis.
    Internally, I would regard it as a leading part of my job 
to affirm and strengthen the excellence and pride and the 
commitment of the CIA's workforce. And in return, I vow that, 
if confirmed, we at CIA will dedicate ourselves to 
strengthening the American public's confidence and trust in the 
CIA and reestablishing the Agency's social contract with the 
American people to whom we are ultimately accountable.
    The best way to strengthen the trust of the American people 
is to earn it by obeying the law and by showing what is best 
about this country.
    Now, as we do our work, we're going to have some really 
difficult choices to make. And I expect that not everyone will 
agree 100 percent of the time. But I would redouble our efforts 
to act consistent with both the law and a broader sense of 
American ideals. And while the bulk of the Agency's work must, 
in order to be effective, remain secret, fighting this long war 
on the terrorists who seek to do us harm requires that the 
American people and you, their elected representatives, know 
that the CIA is protecting them effectively and in a way 
consistent with the core values of our Nation.
    I did that at NSA and if confirmed, will do that at the 
Central Intelligence Agency.
    In that regard, I view it to be particularly important that 
the Director of CIA have an open and honest relationship with 
congressional Committees such as yours, so that the American 
people will know that their elected representatives are 
conducting oversight effectively.
    I would also look to the Members of the Committee who have 
been briefed and who have acknowledged the appropriateness of 
activities to say so when selected leaks, accusations and 
inaccuracies distort the public's picture of legitimate 
intelligence activities. We owe this to the American people and 
we owe it to the men and women of the CIA.
    Mr. Chairman, I hope that I've given the Members of the 
Committee a sense of where I would lead the Agency if I am 
confirmed.
    I thank you for your time. And dare I say I look forward to 
answering the questions I know the Members have.
    Chairman Roberts. I wish to inform the Members that we have 
about 2 or 3 minutes left on a vote. We will have intermittent 
votes throughout the day.
    We are going to have a very short recess. I urge Members to 
return as soon as possible, and we will then proceed to 
questions.
    The Committee stands in recess subject to call of the 
Chair.
    [A brief recess was taken.]
    Chairman Roberts. The Committee will come to order.
    The Committee will now proceed to questions. Each Member 
will be recognized in the order of their arrival. For the first 
round, each Member will be granted 20 minutes. We will continue 
in open session as long as necessary.
    Additionally, for the information of Members and the 
nominee, we will endeavor to take a short lunch break at the 
appropriate time. In addition, we are not going to have any 
further recesses. We will endeavor to keep the Committee 
running. I know all Members have questions to ask and time is 
of the essence.
    General, do you agree to appear before the Committee here 
or in other venues when invited?
    General Hayden. Yes, sir.
    Chairman Roberts. Do you agree to send Central Intelligence 
Agency officials to appear before the Committee and designated 
staff when invited?
    General Hayden. Absolutely, yes, sir.
    Chairman Roberts. Do you agree to provide documents or any 
material requested by the Committee in order for it to carry 
out its oversight and its legislative responsibilities?
    General Hayden. Yes, sir.
    Chairman Roberts. Will you ensure that the Central 
Intelligence Agency provides such material to the Committee 
when requested?
    General Hayden. Yes, sir.
    Chairman Roberts. General, there's an interesting 
commentary in your opening statement about the endless picking 
apart of the archaeology of past intelligence failures and that 
CIA officers deserve not to have every action analyzed, second-
guessed and criticized in the newspapers. And I agree that it 
is time to look forward, not in the rearview mirror, and I 
agree that the press is not the place to air these kinds of 
grievances, whether those grievances originate from outside or 
inside the Agency.
    But it is important to be clear: Not having your actions 
second- guessed is something that is earned, not deserved.
    After the Iraq WMD failure, the inquiry that was conducted 
by this Committee and approved with a 17-0 vote that proved 
without question we had an egregious intelligence failure, this 
Committee simply cannot take intelligence assessments at face 
value.
    We have learned--and when I say we, I am talking about 
every Member of this Committee--when we have hearings and when 
we have briefings, we ask the analysts or we ask whoever is 
testifying: What do you know? What don't you know? What is the 
difference? And, then, the extra kicker is: What do you think? 
And we scrub it.
    Now, I believe it is necessary for the Committee to 
rigorously examine the CIA's judgments about Iran, about North 
Korea, about China, about terrorism and proliferation as we 
work together to ensure there is not another failure like the 
Iraq WMD failure.
    General, the Iraq WMD failure wasn't a failure only because 
the ultimate assessments were wrong. We both know that you can 
have a good analytical tradecraft and still get it wrong. 
Nobody bats 1.000 in the intelligence world. But the Iraq WMD 
failure was due in large part to a terribly flawed tradecraft.
    General, as CIA Director, what steps will you take to 
improve the Agency's analytical tradecraft?
    General Hayden. Senator, as I said in my opening statement, 
that's up there on the top rung. I mean, ultimately, everything 
that the CIA or any part of the intelligence community meets 
the rest of the world is in its analytic judgments.
    Collection and science and technology support are behind 
the screen with that analytic judgment. And so it is the pass-
fail grade for CIA, for the DI, for the intelligence community.
    We've already begun to do some things, and here I think my 
role would be to make sure these changes are under way and then 
to reinforce success. Two or three quickly come to mind. One is 
something that you've already suggested. And that's vigorous 
transparency in what we know, what we assess, and what we know 
we don't know; and to say that very clearly so as not to give a 
policymaker, or a military commander, any decisionmaker a false 
confidence.
    The second, I think, is a higher tolerance for ambiguity 
between ourselves and between ourselves and our customers. Now, 
this is going to require the customer to have a little higher 
tolerance for ambiguity as well. He or she is just going to 
have to be in a little less comfortable place when an analysis 
comes out that is truly transparent in terms of our confidence 
and different layers of confidence, in different parts of our 
judgment.
    There's got to be a little more running room, too, for he 
said/she said inside the analysis, that dissenting views 
aren't, I guess, abstracted out of the piece; and, you know, we 
just kind of move it to the next level of abstraction and 
underlying disagreements are hidden, and that dissenting views 
aren't hidden by a footnote or other kind of obfuscations. We 
really have begun to do that.
    In my current job, I get to see the briefing that goes 
forward every day and there is a difference in its texture and 
a difference in its tenor.
    As I said before, Senator, that's the pass-fail grade. 
Everything else is designed to support that final analytic 
judgment.
    Chairman Roberts. The CIA is clearly working, as you've 
indicated, to regain the trust of the policymakers and its 
customers. And I'm not trying to perjure the dedication and the 
hard work that our men and women of the CIA do, risking their 
lives on behalf of our country. The men and women in the field, 
I think, are doing an excellent job--the rank and file.
    The Agency has made improvements, particularly in analysis. 
But the best way for the CIA to earn trust is to give analysts 
across the community the information they need to perform sound 
analysis and to encourage collectors to take any and all 
necessary risks so they can collect the needed information.
    And I believe these actions are also the best way to 
restore the CIA's sense of pride--a goal that both you and I 
and, obviously, folks down at the CIA share.
    General, in your assessment, is the CIA taking the risk 
necessary to get the analysts the intelligence they need to 
provide policymakers with sound analysis?
    General Hayden. Senator, that's one of the areas, as I 
suggested in my opening statement, that I really want to take a 
very close look at. And I don't know how to answer your 
question. Is it doing enough? That's going to be some level of 
discovery learning for me.
    But let me tell you what it is I think I do know about 
this.
    We had the same dilemma at NSA. There's always a risk. And 
the more transparent you are, the more you may reveal and 
thereby compromise sources and methods--the same dynamic at 
Langley. At NSA, it's a little easier, maybe, to start pushing 
against the shoulders of the envelope here and get a little bit 
more risk-embracing because, as you know, if NSA oversteps and 
got a little too bold in sharing, at the end of the day, what 
they lose is a frequency.
    If CIA gets a little too bold in sharing, at the end of the 
day, there could be real personal tragedy involved.
    And so, although the approaches will be similar, I do 
understand that the protection of human sources might be a bit 
different than the protection of signal intelligence sources.
    All that said, Senator, I mean, I think the Agency itself 
would admit that it is among the more conservative elements of 
the community in terms of sharing information. There are good 
reasons for that, as I just suggested. But just as we did at 
NSA, when we held our premises up to the light, when we looked 
at things carefully, we found that we actually had a lot more 
freedom of action than perhaps our rote procedures would 
suggest.
    That's the approach I'd take at the Agency. It will be 
careful, but we'll be moving forward.
    Chairman Roberts. The comment I would make in response to 
the first question that I asked you is that it appeared to most 
of us on the Committee, certainly to the Chairman, that the 
2002 National Intelligence Estimate became more or less of an 
assumption train, in part based on what was known after the 
first Gulf War.
    I believe it was David Kay who indicated after the first 
Gulf War that Saddam Hussein was 18 months away from having a 
missile delivery capability that was nuclear, obviously within 
range of Israel. And everybody thought at that particular time 
and scratched their head, because that estimate was not 18 
months, it was much longer than that, and said, ``Well, we're 
certainly not going to let that happen again.''
    And so, the assumption was, of course we have to err on the 
side of national security and security of that region.
    Now, having said that, most of the other intelligence 
agencies, if not all, around the world, were on the same 
assumption train. The inspectors came in, and the inspectors 
were asked or forced to leave.
    Virtually everybody, Members of Congress, people in the 
Administration, other intelligence agencies all throughout the 
world, assumed that Saddam Hussein would reconstitute his 
weapons of mass destruction. I think he probably thought he had 
the weapons of mass destruction. Anybody that would go in to 
see him and tell him he didn't probably wouldn't go out.
    I think many in the military thought, different generals, 
this particular unit of the Republican Guard had the WMD and 
this did not.
    But as we saw upon closer inspection, as the Committee 
worked through very diligently, interviewing over 250 analysts, 
we found out exactly what you said, that there were dissenting 
views, that there were caveats. And added together, it did 
provide a picture that was most troubling. And that's about the 
nicest way I can put it.
    So what I am asking you, again--and you've already answered 
this--will you put those dissenting views, those caveats, that 
frank discussion of, ``Wait a minute; let's take a closer 
look,'' so that they are at least on the assumption train?
    I don't know where they would be--in the middle of the 
train, front of the train. You might want to put them at the 
front of the train--not the caboose. Don't let the caboose go--
so we don't get into this kind of a failure, which we just 
simply could not afford.
    Would you have any comment?
    General Hayden. Yes, sir. I couldn't agree with you more.
    And you're right about the analysis. We just took too much 
for granted. We didn't challenge our basic assumptions.
    Now, as you point out, there's historical reasons for that. 
In a sense, it's understandable. I'm not trying to excuse it. 
But there is a historical background to it. That should teach 
us an awful lot about taking assumptions for granted and 
letting them stand without challenge and without just simply 
looking and saying, ``Can I put these pieces together in a 
different way?''
    I think we're doing that. If we're not doing it enough, 
we'll certainly do more of it. That's precisely what it is we 
have to give to the Nation's policymakers.
    Senator, one more thought, though. You know, all of this is 
shrouded in ambiguity. If these were known facts, you wouldn't 
be coming to us for them. And so we'll do our best to tell you 
what we know and why we think it and where we're doubtful and 
where we don't know. But I think everyone has to understand the 
limits of the art here, the limits of the science.
    Again, if this were all known, we wouldn't be having the 
discussion.
    Chairman Roberts. I'm going to add one more question before 
I turn to Senator Bond. You made the comment in regards to 
information-sharing.
    Senator Rockefeller and I have been pushing a concept 
called information access--if you're into information-sharing, 
somebody owns it, then they make a decision as to whether they 
share it or not.
    Now I'm not going back to the not-so-thrilling days of 
yesteryear where we looked at the intelligence community as 
basically a whole series of stovepipes of information with one 
agency very difficult to share information with another. And we 
just can't afford that.
    And I think we've made great steps, more especially with 
the National Counterterrorism Threat Center. But you've 
indicated some concern in regards to sources, methods, and 
lives. Could you amplify a little bit on that, because we have 
been pushing information access--full access--to the entire 
intelligence community as we work together jointly now to 
protect America, as opposed to information-sharing.
    General Hayden. Yes, sir. And that's what I was trying to 
suggest in my opening statement, that we really have--and I 
mean this--on the transaction level--they ask; we respond--
within the American intelligence community. We're world class. 
I mean, we really are good at that.
    And so when you go out and talk to someone about sharing, 
they can pull out these statistics about the number of requests 
and the speed of the response and so on.
    And in a different world, that would probably be very 
satisfying news. But no matter how well you do that, that 
transactional basis, you're not going to get to the agility we 
need to fight the current war. You can't be in an ask/respond 
mode. That simply will not work.
    So we have to move to a world in which there is common 
information, commonly shared. Now that's a challenge, because 
there are full-on tradecraft and sources and methods concerns.
    But I think the line we've got now is--well, my premise is 
the line's too conservative and that'll be my attitude if 
confirmed and if I go to the Agency.
    Chairman Roberts. I appreciate that very much.
    In the second round, I may touch upon that need for 
agility--i.e. hot pursuit--given the threats that we face 
today.
    Senator Bond.
    Senator Bond. Thank you very much, Mr. Chairman.
    And welcome, General Hayden.
    There are many questions that should be asked of you about 
your views on where the CIA goes and your qualifications. But I 
think there's been enough discussion that perhaps we should 
clarify a few points based on your previous role with the 
President's terrorist surveillance program. So let's just get 
this on the record so everybody will understand.
    Are you a lawyer?
    [Laughter.]
    General Hayden. No, sir.
    Senator Bond. Congratulations.
    Did your lawyers at the NSA tell you the program was legal? 
Do they still maintain it's legal?
    General Hayden. Yes, sir, they did, and they still do.
    Senator Bond. How about the Department of Justice lawyers, 
the White House legal guidance that the program was legal?
    General Hayden. Yes, sir. All that was consistent.
    Senator Bond. Did you ever personally believe the program 
was illegal?
    General Hayden. No, sir.
    Senator Bond. Did you believe that your primary 
responsibility as Director of NSA was to execute a program that 
your NSA lawyers, that Justice Department lawyers and White 
House officials all told you was legal and that you were 
ordered to carry it out by the President of the United States?
    General Hayden. Sir, when I had to make this personal 
decision in early October of 2001--and it was a personal 
decision--the math was pretty straightforward. I could not, not 
do this.
    Senator Bond. It seems to me that if there are questions 
that people wish to raise about the legality of the program, or 
its structure, those would most appropriately be addressed to 
the Attorney General or other representative of the legal staff 
of the Executive branch.
    The next question I think is very troubling, because of so 
many aspersions, assertions, characterizations and 
mischaracterizations. You addressed at the National Press Club 
the fact that the President has said this is designed to listen 
in on terrorist programs coming from overseas. This is to 
intercept al-Qa'ida communications into or out of the United 
States.
    Could you explain for us the controls that you have to make 
sure that somebody doesn't listen in on a domestic political 
opponent or listen in on a neighbor or listen in on a business 
rival or listen in on the media?
    You've explained that, I think. For the record, could you 
tell how this program is controlled to make sure it stays 
within the boundaries that the President outlined and the 
Constitution and the statutes require?
    General Hayden. Yes, sir.
    And, in fact, the way you framed it is the way I think 
about it. There are, kind of, three pillars that need to be in 
place for this appropriate.
    One is it has to be inherently lawful, and, as you 
suggested, others are far more expert than I.
    The second is that it's done in a way that it's effective.
    And the third, that it's done just the way it's been 
authorized.
    And I think your question deals with that last pillar.
    Senator Bond. Right.
    General Hayden. What we did, we have a very strict 
oversight regime. The phrase we use for the phenomenon you were 
describing is called targeting.
    The targeting decisions are made by the people in the U.S. 
Government most knowledgeable about al-Qa'ida--al-Qa'ida 
communications, al-Qa'ida's tactics, techniques, procedures.
    It's gotten close oversight. It has senior-level review. 
But it comes out of the expertise of the best folks in the 
National Security Agency. I don't make those decisions. The 
Director of SIGINT out there doesn't make those decisions. 
Those decisions are made at the program level and at the level 
of our counterterrorism officer.
    They're targeting al-Qa'ida. There is a probable cause 
standard. Every targeting is documented. There is a literal 
target folder that explains the rationale and the answers to 
the questions on a very lengthy checklist as to why this 
particular number, we believe, to be associated with the enemy.
    Senator Bond. And these are reviewed by--who reviews these; 
what's the review process?
    General Hayden. There are several layers of review. There's 
obviously a management review just internal to the system. The 
NSA inspector general is well-read into the program and does 
routine inspections--I mean literally pulling folders, 
examining the logic train, talking to the analyst to see if the 
decisions were correct or warranted by the evidence in the 
folder.
    That's also been conducted by the Department of Justice. 
They've done the same thing. They looked at the folders.
    And to the best of my knowledge, the folks out there are 
batting 1.000. No one has said that there has been a targeting 
decision made that wasn't well-founded in a probable cause 
standard.
    Senator Bond. Is there a possibility that somebody could 
sneak in a request for something that isn't an al-Qa'ida 
communication?
    General Hayden. I don't know how that could survive in the 
culture of the National Security Agency, Senator. It's a very 
disciplined workforce.
    Senator Bond. What if an analyst, or somebody who is 
directly engaged at the lowest level decided to pick up some 
information on somebody who was out of favor, who they didn't 
like, how would that be caught?
    General Hayden. Senator, I recognize the sensitivity of the 
program, what we're talking about here, but, actually, that 
would be a problem in any activity of the National Security 
Agency.
    Senator Bond. So this is not a problem that is specific to 
the present program. Any time you have an NSA, you have the 
ability----
    General Hayden. Of course.
    Senator Bond. And the question is what do you do to make 
sure that everybody stays within the guidelines?
    General Hayden. The entire Agency, its general counsel, its 
IG--I mean, that's what it's built to do, to do that kind of 
oversight.
    Senator Bond. And what if they get out of line?
    General Hayden. Well, No. 1, no evidence whatsoever that 
they've gotten out of line in this program.
    In the history of the Agency, there have been, you know, 
I'll say a small number of examples like that. Those are 
detected through normal processes, IG inspections and so on, 
and action is taken.
    Senator Bond. I was at the Agency, and I saw the extensive 
oversight. I also heard on early morning radio somebody who had 
been employed at NSA for 20 or 25 years call in, and he was 
asked good questions by the morning show hosts. And I believe 
his reply was, when they asked him why he couldn't do that, he 
said because he didn't want to spend 10-15 years in prison.
    Is this the kind of penalty that would ensue if somebody 
did that?
    General Hayden. Sir, I can remember the training I got 
there and continued throughout my 6 years at the Agency, and 
this training is recurring--it must happen on a recurring basis 
for everyone there. And during the training, everyone is 
reminded, these are criminal, not civil, statutes.
    Senator Bond. So what would your response be to the general 
accusations that tens of millions of Americans are at risk from 
having their privacy exposed in these communications?
    General Hayden. Senator, the folks at NSA didn't need me to 
prod them on. But let me tell you what I told them when we 
launched the program. It was the morning of 6 October in our 
big conference room. About 80, 90 folks in there. And I was 
explaining what the President had authorized. And I end up by 
saying, ``And we're going to do exactly what he said and not 
one photon or one electron more.''
    And I think that's what we've done.
    Senator Bond. You've mentioned briefly about the impact of 
leaks on this program and other classified programs. What has 
happened, in your view, to our intelligence capability as a 
result of the leaks and disclosure of our activities?
    General Hayden. Senator, it's difficult to quantify. I 
mean, there are so many variables that affect our ability to 
move against the enemy. So I can't give you a statistic, but I 
can't help but think that revelations like this have an effect 
on the enemy.
    Now this program will continue to be successful, all right? 
But there will be an effect here. I mean, you can actually see 
this--and now I'm speaking globally, about disclosures of our 
tactics, techniques, procedures, sources and methods.
    It's almost Darwinian. The more we put out there, the more 
we're going to kill and capture dumb terrorists.
    Senator Bond. Because the smart ones will know how to avoid 
it.
    General Hayden. Yes, sir.
    Senator Bond. I think Porter Goss, in this room, in 
February, said the damage to our intelligence capability has 
been very severe. And is that a fact?
    General Hayden. Oh yes, sir. If you're talking to beyond 
NSA, beyond signals intelligence, there's a whole panoply. 
There is easily documented evidence as to that.
    Senator Bond. Going back to the NSA, I gather that there 
are some folks who really would like to see this program shut 
down. They may be phrasing it in various terms, but I suspect 
that there are some who say it ought to be shut down.
    What would happen to our ability to identify and disrupt a 
planned al-Qa'ida attack in the United States were that to 
happen?
    General Hayden. Sir, my personal view, and the reason I 
accepted this in October 2001, is my responsibility to help 
defend the Nation. The folks who run this program I think 
believe, and correctly believe, they make a substantial 
contribution to the safety of the republic.
    I went out to see them at the height of the first fur ball 
about this. And, you know, they're doing their jobs, but it was 
a difficult time. But the only emotion they expressed to me was 
they wanted to be able to continue to do their work. Their fear 
was not for themselves or they had done anything wrong, but 
that they wanted to be able to continue to do what it is they 
had been doing.
    Now, that's a better judgment than mine. These are the 
folks who feel it, who have that tactile sense for what they do 
and what they affect.
    Senator Bond. Let me move on to the things that really 
should be the focus of this hearing.
    HUMINT is obviously the chief responsibility of CIA. You 
have been a SIGINT man for most of your career. What will be 
your priorities? How will you adjust to HUMINT? And what areas 
are the greatest need in our human intelligence-gathering 
capacities?
    General Hayden. Sir, just one clarification for the record. 
I've actually been a HUMINTer. I was an attache behind the Iron 
Curtain for a couple of years during the cold war, and that's 
kind of in the center of the lane for human intelligence.
    Actually I have more HUMINT experience going to CIA than I 
had SIGINT experience before I arrived at NSA.
    Now, with regard to looking forward, two games going on 
simultaneously, and both equally important. One is inside the 
Agency, you know, dealing with CIA HUMINT, helping it become 
all that the Nation needs it to be. And as I suggested earlier, 
more nontraditional cover, more nontraditional platforms, more 
risk-taking.
    And, Senator, I need to be honest. This would be 
reinforcing efforts already under way.
    The other game is over here in the broader community. And I 
think it's singularly significant that Ambassador Negroponte 
made the Director of CIA the national HUMINT manager. There are 
other folks out there on the field playing this game--DOD, the 
FBI, other agencies--and both of them are bulking up in terms 
of their capabilities. This is a real opportunity to do this 
really well, on a scale we've not been able to do before.
    And so I think there's got to be an equal amount of effort 
in that community role as well.
    Senator Bond. Yesterday, at the Defense Appropriations 
hearing, Secretary Rumsfeld assured us that there's total, 
complete working interoperability and cooperation between the 
Department of Defense and the CIA and other agencies in human 
intelligence.
    Has that been achieved or is that a work in process, a goal 
toward which we are working? And what do you think really about 
the relationships between the FBI, NSA, Department of Defense 
in the clandestine service?
    General Hayden. Yes, sir.
    I think it's best described as a process that needs to be 
continually managed. You've got folks out there, quite 
legitimately, but for slightly different purposes. They should 
be using common tradecraft. They should be using common 
standards. They should be using the same standards to validate 
a source.
    They should be using the same language and the same formats 
when they make reports. Those are the things that the national 
HUMINT manager should ensure.
    I know there has been a great deal of comment and concern 
about recent DOD activity and how it might bump into 
traditional CIA activity. I can tell you, in preparation for 
this, I have asked that question for the folks who were trying 
to get me ready for the hearing. Frankly, I got a better news 
story than I had anticipated.
    Senator Bond. This Committee is most interested in that. So 
please, tell us. What's the story?
    General Hayden. They talked about the MOU that had been 
signed between the DOD and the CIA in terms of how to 
coordinate and deconflict HUMINT activity. It's actually 
working. When there have been frictions, it's come about more 
out of inexperience than malice--and that we need to continue 
to move along those lines.
    I know this is an important question for the Committee, an 
important question for the Members of the Senate.
    Senator Bond. We will pursue that later on this afternoon.
    On the military desire to expand human intelligence and get 
into areas of covert action, to the extent you can discuss it 
here, what is the proper responsibility between the Department 
of Defense human intelligence operations and Central 
Intelligence Agency human intelligence operations? Is there a 
bright line?
    General Hayden. Actually, I think that's what it is we're 
trying to do, is to create a bright line.
    And I think, maybe, the reality is that what DOD is doing 
under title 10 authorities and what CIA does under title 50, 
actually where that line should be drawn, they get kind of 
merged so that the actions are actually on the ground, in 
reality indistinguishable, even though their are sources of 
tasking and sources of authority come from different places.
    That's where we need to manage this. That's where this 
needs to be done well.
    Let me explain this more in terms of opportunity than of 
danger, even though, you know, clearly we've got to do this 
right.
    I think a fair case can be made that in several theaters of 
war, right now--Iraq, Afghanistan--that the CIA has picked up a 
large burden and done it very well, a burden that is in many 
times in direct support of U.S. military forces.
    To have DOD step up to those kinds of responsibilities 
doesn't seem to me to be a bad thing. And if that frees up CIA 
activities to go back toward the more traditional CIA realm of 
strategic intelligence, there's a happy marriage to be made 
here, Senator.
    Senator Bond. I recently read a book--a novel--a book on 
the CIA's role in Afghanistan. And according to the former CIA 
man who wrote it, the CIA was the one that did it and did all 
the important things, and the Department of Defense did not 
step up at the appropriate time.
    Have you had an opportunity to review the general 
operations of the CIA in Afghanistan and the interaction with 
the Department of Defense there?
    General Hayden. No, sir, I have not looked at it in detail.
    Senator Bond. We'll talk about that later.
    Probably the final question: There was some objection 
within the Agency to the DNI sending two dozen CT analysts to 
the National Counterterrorism Center as part of the lanes in 
the road.
    Do you think that the objections from within the Agency 
were justified? And to what extent should the NCTC be engaged 
in the all-source terrorism analysis? To what extent should the 
CIA do the same?
    General Hayden. Sir, it's a complicated question. But the 
truth in lending, obviously I agree with you because that's 
what I was trying to do in my current job as Ambassador 
Negroponte's deputy.
    This is actually what I was trying to refer to in my 
opening remarks when I talked about conforming the shape of the 
CIA to meet the new intelligence structure which you have all 
legislated, while still sustaining high OPSTEMPO current CIA 
operations. I mean, that's the dilemma right there.
    Briefly, and perhaps in a later round or this afternoon, 
Senator, we can get into more detail but briefly, here is what 
I see the challenge is. Right now, in a really good, in a 
really powerful sense, a lot of the engines of American 
intelligence are attached to today's very successful 
operational activities.
    And the fact that Director Goss and the President and 
others can say that some significant percentage--and it's a big 
number--of that organization that attacked us in 2001 has been 
killed or captured is a product of all of that focus.
    But this is a long war. And it's not just going to be won 
with heat and blast and fragmentation. It is fundamentally a 
war of ideas. And we have to skew our intelligence to support 
the other elements of national power as well. That's the tough 
decision--how best to allocate our resources and then apportion 
it organizationally.
    So you keep up this high OPSTEMPO that has al-Qa'ida on its 
back foot right now while still underpinning all of the other 
efforts of the U.S. Government that over the long term--over 
the long term--cuts the production rate of those who want to 
kill us and those who hate us rather than simply dealing with 
those who already have that view.
    Senator Bond. Thank you very much, General.
    Chairman Roberts. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    General, an answer to one of the pre-hearing questions of 
the Committee, you indicated that your role in developing the 
NSA's program that we've discussed here was to explain what was 
technically possible in a surveillance program.
    And my question is this: After you explained, presumably to 
the Administration, what was technically possible, did you 
design the specific program or was the specific program 
designed elsewhere and delivered to you?
    General Hayden. Senator, it's going to take a minute to 
explain, but I think you'd want a complete answer on this. Let 
me give you the narrative as to what was happening at that 
time.
    As I briefed the Committee in closed session, I took 
certain actions right after the attack within my authority as 
Director and I informed Director Tenet, I informed this 
Committee and I informed the House Committee as well.
    And after a discussion with the Administration, Director 
Tenet came back to me and said, ``Is there anything more you 
can do?'' And I said, ``Not within my current authorities.'' 
And he invited me to come down and talk to the Administration 
about what more could be done.
    And the three ovals of the Venn diagram as I described it 
were what was technologically possible, what was operationally 
relevant, and what would be lawful, and where we would work 
would be in that space where all there of those ovals 
intersected.
    And as I said to Senator Bond, my role was, ``Here's what's 
technologically possible, and if we could pull that off, here's 
what I think the operational relevance would be.'' And there 
then followed a discussion as to why or how we could make that 
possible.
    I was issued an order on the 4th of October that laid out 
the underpinnings for what I described.
    Senator Levin. So you participated in the design of the 
specific program?
    General Hayden. Yes, I think that's fair, Senator. Yes. I 
think that's right.
    Senator Levin. Now, if press reports are true that phone 
calls of tens of millions of Americans who are not suspected of 
anything--but nonetheless the records are maintained in a 
government database--would you not agree that if that press 
report is accurate, that there is at least a privacy concern 
there, whether or not one concludes that security interests 
outweigh the privacy concerns?
    General Hayden. Senator, from the very beginning we knew 
that this was a serious issue and that the steps we were 
taking, although convinced of their lawfulness--we were taking 
them in a regime that was different from the regime that 
existed on 10 September.
    I actually told the workforce, not for the special program, 
but the NSA workforce on the 13th of September--I gave an 
address to an empty room, but we beamed it throughout our 
entire enterprise--about free peoples always having to decide 
to balance their security and their liberties, and that we, for 
our tradition, have always planted our banner way down here on 
the end of the spectrum toward security.
    And then I told the workforce--and this has actually been 
quoted elsewhere--I told the workforce there are going to be a 
lot of pressures to push that banner down toward security. And 
our job at NSA was to keep America free by making Americans 
feel safe again. So this balance between security and liberty 
was foremost in our mind.
    Senator Levin. Does that mean your answer to my question is 
yes?
    General Hayden. Senator, I understand. There are privacy 
concerns involved in all of this. There's privacy concerns 
involved in the routine activities of NSA.
    Senator Levin. Would you say there are privacy concerns 
involved in this program?
    General Hayden. I can certainly understand why someone 
would be concerned about this.
    Senator Levin. But that's not my question, General. It's a 
direct question.
    General Hayden. Sure.
    Senator Levin. In your judgment, are there privacy----
    General Hayden. You want me to say yes or no.
    Senator Levin. I want you to say whatever you believe.
    General Hayden. Yes, sir. Here's what I believe. Clearly 
the privacy of American citizens is a concern, constantly. And 
it's a concern in this program, it's a concern in everything 
we've done.
    Senator Levin. That's a little different from the Press 
Club statement where basically you said the only privacy 
concern is involved in international phone calls.
    General Hayden. No, sir, I don't think it's different. I 
was very clear in what I said there, I was very careful with my 
language.
    Senator Levin. Is that the only privacy concern in this 
program, international phone calls?
    General Hayden. Senator, I don't know how to answer your 
question. I've just answered that there are privacy concerns 
with everything that we do, of course. We always balance 
privacy and security, and we do it within the law.
    Senator Levin. The only privacy concerns, though, in this 
program relate to international phone calls?
    General Hayden. Senator, what I was talking about in 
January at the press club was what--the program that the 
President had confirmed. It was the program----
    Senator Levin. That he had confirmed publicly?
    General Hayden. Yes, sir, that he confirmed publicly.
    Senator Levin. Is that the whole program?
    General Hayden. Senator, I'm not at liberty to talk about 
that in open session.
    Senator Levin. I'm not asking you what the program is, I'm 
just simply saying, is what the President described publicly 
the whole program.
    General Hayden. Senator, all I'm at liberty to say in this 
session is what I was talking about, and I literally, 
explicitly said this at the press club, I am talking about the 
program the President discussed in mid-December.
    Senator Levin. You're not able to tell us whether what the 
President described is the whole program?
    General Hayden. No, sir, not in open session. I am 
delighted to go into great detail in closed session.
    Senator Levin. The NSA program that the New York Times on 
March 14th reported about said that NSA lawyers, while you were 
the Director of the Agency, opposed the Vice President's 
efforts to authorize the NSA to ``intercept purely domestic 
telephone calls.'' Is that story accurate?
    General Hayden. I could recognize a thin vein of my 
experience inside the story, but I would not characterize how 
you described the Times story as being accurate. I can give you 
a few more notes on that, Senator.
    Senator Levin. But were there differences between the NSA 
and the Vice President's Office about what the desirable scope 
of this program was?
    General Hayden. No, sir. There were discussions about what 
we could do. Our intent all along, in my discussions, was to do 
what it is the program does as described, one end of these 
calls always being foreign.
    And as we went forward, we attempted to make it very clear 
that that's all we were doing and that's all we were authorized 
to do.
    Senator Levin. All right. So there were no differences of 
opinion between your office--between the NSA and----
    General Hayden. There were no arguments, no pushback, no 
``We want to,'' no ``We won't''--none of that. No, sir.
    Senator Levin. Thank you, General.
    What was the view of NSA lawyers on the argument that was 
made by the Administration that the authorization for use of 
military force which was passed by the Congress authorized this 
program? Did your people agree with that?
    General Hayden. I'd ask you to ask them directly for the 
details.
    Senator Levin. Do you know whether they----
    General Hayden. No, sir. I'll continue--there's more to be 
said.
    When I talked to the NSA lawyers, most of my personal 
dialog with them, they were very comfortable with the Article 
II arguments and the President's inherent authorities.
    Senator Levin. Does that mean that they were not 
comfortable with the argument that----
    General Hayden. I wouldn't say that. But when they came to 
me and we discussed its lawfulness, our discussion anchored 
itself on Article II.
    Senator Levin. And they made no comment about the authority 
which was argued by some coming from the authorization of 
military force?
    General Hayden. Not strongly, one way or the another. It 
was Article II.
    Senator Levin. During the confirmation hearings of Porter 
Goss, I asked him whether or not he would correct the public 
statement of a policymaker if that public statement went beyond 
the intelligence.
    And here's what Mr. Goss said: ``If I were confronted with 
that kind of a hypothetical where I felt that a policymaker was 
getting beyond what the intelligence said, I think I would 
advise the person involved. I do believe that would be a case 
that would put me into action if I were confirmed. Yes, sir.''
    Do you agree with Porter Goss?
    General Hayden. Yes, sir, I think that's a pretty good 
statement.
    Senator Levin. An independent review for the CIA, conducted 
by a panel led by Richard Kerr, former Deputy Director of the 
CIA, said the following--and this relates to the intelligence 
prior to the Iraq war--``Requests for reporting and analysis of 
Iraq's links to al-Qa'ida were steady and heavy in the period 
leading up to the war, creating significant pressure on the 
intelligence community to find evidence that supported a 
connection.''
    Do you agree with Mr. Kerr?
    General Hayden. Sir, as Director of NSA, we did have a 
series of inquiries about this potential connection between al-
Qa'ida and the Iraqi government. Yes, sir.
    Senator Levin. Now, prior to the war, the Under Secretary 
of Defense for Policy, Mr. Feith, established an intelligence 
analysis cell within his policy office at the Defense 
Department.
    While the intelligence community was consistently dubious 
about links between Iraq and al-Qa'ida, Mr. Feith produced an 
alternative analysis, asserting that there was a strong 
connection.
    Were you comfortable with Mr. Feith's office's approach to 
intelligence analysis?
    General Hayden. No, sir, I wasn't. I wasn't aware of a lot 
of the activity going on when it was contemporaneous with 
running up to the war. No, sir, I wasn't comfortable.
    Senator Levin. In our meeting in our office, you 
indicated--well, what were you uncomfortable about?
    General Hayden. Well, there were a couple of things. And 
thank you for the opportunity to elaborate, because these 
aren't simple issues.
    As I tried to say in my statement, there are a lot of 
things that animate and inform a policymaker's judgment, and 
intelligence is one of them, and world view, and there are a 
whole bunch of other things that are very legitimate.
    The role of intelligence--I try to say it here by metaphor 
because it's the best way I can describe it--is you've got to 
draw the left- and the right-hand boundaries. The tether to 
your analysis can't be so long, so stretched that it gets out 
of those left- and right-hand boundaries.
    Now, with regard to this particular case, it is possible, 
Senator, if you want to drill down on an issue and just get 
laser beam focused, and exhaust every possible--every possible 
ounce of evidence, you can buildup a pretty strong body of 
data, right? But you have to know what you're doing, all right?
    I have three great kids, but if you tell me to go out and 
find all the bad things they've done, Hayden, I can build you a 
pretty good dossier, and you'd think they were pretty bad 
people, because that was what I was looking for and that's what 
I'd buildup.
    That would be very wrong. That would be inaccurate. That 
would be misleading.
    It's one thing to drill down, and it's legitimate to drill 
down. And that is a real big and real important question. But 
at the end of the day, when you draw your analysis, you have to 
recognize that you've really laser-beam focused on one 
particular data set. And you have to put that factor into the 
equation before you start drawing macro judgments.
    Senator Levin. You in my office discussed, I think, a very 
interesting approach, which is the difference between starting 
with a conclusion and trying to prove it and instead starting 
with digging into all the facts and seeing where they take you.
    Would you just describe for us that difference and why you 
feel, I think, that that related to the difference between what 
intelligence should be and what some people were doing, 
including that Feith office.
    General Hayden. Yes, sir. And I actually think I prefaced 
that with both of these are legitimate forms of reasoning, that 
you've got deductive--and the product of, you know, 18 years of 
Catholic education, I know a lot about deductive reasoning 
here.
    There's an approach to the world in which you begin with, 
first, principles and then you work your way down the 
specifics.
    And then there's an inductive approach to the world in 
which you start out there with all the data and work yourself 
up to general principles. They are both legitimate. But the 
only one I'm allowed to do is induction.
    Senator Levin. Allowed to do as an intelligence----
    General Hayden. As an intelligence officer is induction.
    And so, now, what happens when induction meets deduction, 
Senator? Well, that's my left- and right-hand boundaries 
metaphor.
    Senator Levin. Now, I believe that you actually placed a 
disclaimer on NSA reporting relative to any links between al-
Qa'ida and Saddam Hussein. And it was apparently following the 
repeated inquiries from the Feith office. Would you just tell 
us what that disclaimer was?
    General Hayden. Yes, sir.
    SIGINT neither confirms nor denies--and let me stop at that 
point in the sentence so we can stay safely on the side of 
unclassified.
    SIGINT neither confirms nor denies, and then we finished 
the sentence based upon the question that was asked. And then 
we provided the data, sir.
    Senator Levin. I think that you've commented on this before 
and I may have missed it and, if so, you can just rely on your 
previous comment.
    But there have been press reports that you had some 
disagreements with Secretary Rumsfeld and Under Secretary 
Cambone with respect to the reform legislation that we were 
looking at relating to DNI and other intelligence-related 
matters.
    Can you tell us whether or not that is accurate; there were 
disagreements between you and the Defense Secretary? Because 
some people say you're just going to be the instrument of the 
Defense Secretary. And if those reports are right, this would 
be an example where you disagree with the Defense Secretary, 
who--after all, you wear a uniform and he is the Secretary of 
Defense. Are those reports accurate?
    General Hayden. Sir, let me recharacterize them.
    The Secretary and I did discuss this. I think it's what 
diplomats would call that frank and wide-ranging exchange of 
views. He treated me with respect.
    A couple of footnotes just to put some texture to this. I 
then testified in closed session to the HPSCI on different 
aspects of the pending legislation. It was unclassified 
testimony, even though the session was closed.
    DOD put my testimony on their Web site. NSA didn't. And so 
that to me was a pretty telling step, that this was an open 
exchange of views.
    It's been a little bit mischaracterized, too. I did not say 
move those big three letter muscular agencies outside of DOD. 
My solution was something like the founding fathers--enumerated 
powers. Don't get bollixed around on writing a theory of 
federalism. Just write down what you want the Federal 
Government to do.
    My view was you needed to write down what authorities the 
DNI had over NSA, NGA and NRO. The fact that they stayed inside 
the Department of Defense was actually pretty uninteresting--as 
long as you had these enumerated powers that Ambassador 
Negroponte now has--money, tasking, policy, personnel, 
classification.
    Senator Levin. Is it fair to say that on some of those 
issues there were differences between you and Secretary 
Rumsfeld?
    General Hayden. Yes, sir.
    Senator Levin. General, there's been a great deal of debate 
over the treatment of detainees. Do we have one set of rules 
now that governs the interrogation of detainees, regardless of 
who is doing the interrogating and regardless of where the 
interrogations take place.
    General Hayden. Senator, I'll go into more detail on this 
this afternoon. But I do have some things I'd like to say in 
open session.
    Obviously, we're going to follow the law, we're going to 
respect all of America's international responsibilities.
    In the Detainee Treatment Act, the language is quite clear. 
It talks about all prisoners of war under the control of the 
Department of Defense being handled in a way consistent with 
the Army Field Manual, and then a separate section of the law 
that requires all agencies of the U.S. Government to handle 
detainees wherever they may be located in a way that is not 
cruel, inhumane or degrading.
    And that's the formula that we will follow.
    Senator Levin. And the CIA is bound by that formula?
    General Hayden. All agencies of the U.S. Government are 
bound by that formula. Yes, sir.
    Senator Levin. Then by definition----
    General Hayden. Yes, sir. By definition, any agency.
    Senator Levin [continuing]. The CIA is included in that?
    General Hayden. Yes, sir.
    Senator Levin. And so that means--or let me ask you, rather 
than putting words in your mouth--does that mean that the CIA 
and its personnel and contractors are required to comply at all 
times in all locations in the same manner as military personnel 
with the following laws or treaties: A, the Geneva Conventions?
    General Hayden. Senator, again, let me refer you to the 
language in the Detainee Treatment Act, which actually does 
make a distinction between prisoners of war under the effective 
control of the Department of Defense, and the second broader 
description that applies throughout the rest of the Government 
about cruel, inhuman and degrading.
    Senator Levin. Are you unable, then, to answer that 
question?
    General Hayden. No, sir, I'm not.
    Senator Levin. Then what about the Convention Against 
Torture and Other Cruel, Inhuman and Degrading Treatment?
    General Hayden. Yes, sir. All parts, all agencies of the 
U.S. Government will respect our international obligations.
    Senator Levin. Including that one?
    General Hayden. Yes, sir.
    Senator Levin. The Detainee Treatment Act of 2005 you just 
described?
    General Hayden. Right. Yes, sir. Absolutely consistent with 
that.
    Sir, can I put a footnote on the previous one?
    Senator Levin. Sure.
    General Hayden. Obviously, with the reservations that have 
been stipulated by the U.S. Government in the ratification of 
that treaty.
    Senator Levin. Finally, the Army Field Manual on 
Intelligence Interrogation?
    General Hayden. The Army Field Manual, as the Detainee 
Treatment Act clearly points out, specifically applies to 
prisoners under the effective control of the Department of 
Defense.
    Senator Levin. And therefore the CIA, you do not believe, 
is bound by that language?
    General Hayden. Again, the legislation does not explicitly 
or implicitly, I believe, bind anyone beyond the Department of 
Defense, Senator.
    Senator Levin. My time is up. Thank you very much.
    General Hayden. Thank you, Senator.
    Chairman Roberts. Senator DeWine.
    Senator DeWINE. Mr. Chairman, thank you very much.
    General, welcome.
    General Hayden. Thank you, sir.
    Senator DeWine. Good to be with you today.
    General, in 2002 the Senate and House issued a report on 
its joint inquiry into the intelligence community's activities 
before and after the terrorist attacks of September 11.
    In that report, I had additional comments to the report. 
And I raised several issues that I believe, frankly, are still 
valid today. And I'd like to spend some time talking about 
those comments. I want to ask you whether, as Director of the 
CIA, you have plans to address them.
    What I wrote in my additional comments, what I wrote in 
those comments and what I still believe to be true today is 
that we are facing a broken corporate culture at the CIA.
    Too many of our clandestine officers work under official 
cover, which is of limited use today in getting close to 
organizations like al-Qa'ida. The CIA's Directorate of 
Operations has struggled to transform itself after the cold 
war, including taking better advantage of non-official cover or 
NOC operations.
    Often this is because the tradecraft required to support 
nonofficial cover operations is so much more difficult and 
elaborate than what it is required for official cover.
    To the extent that the Directorate of Operations is 
engaging in nonofficial cover operations, these have been 
damaged, in my opinion, by halfhearted operational security 
measures and underutilization by CIA's management.
    I believe that, to truly advance our intelligence 
collection capabilities against the hard targets like terrorist 
groups, proliferation networks and rogue States, we need to 
make smarter and better use of nonofficial cover capabilities. 
It may be that, to do this, we need to put these kinds of 
operations simply outside of the Directorate of Operations.
    General, you're a former Director of NSA. You've spent, 
now, a year as DNI's principal deputy and you are before us 
today to be confirmed as the next Director of CIA. You 
certainly know the issues as well as any person does.
    I'd like to ask you a few questions. First, do you agree 
that we could make still better use of nonofficial cover 
operations? Do you agree that we need to be more creative and 
risk-taking in how we construct and use nonofficial cover?
    And am I right to be concerned that nonofficial cover 
operations have not been given the resources and attention that 
they need to be given to truly be successful?
    Are you prepared to give NOC operations the support and 
resources they need to truly succeed, even if that means 
further separation and perhaps--perhaps, General--even putting 
them into a new agency, separate from the mainstream of the 
Directorate of Operations?
    General Hayden. Senator, I remember your language in the 
2002 report.
    Senator DeWine. I'm glad you do. Very few people do. But I 
appreciate you do.
    General Hayden. Yes, sir.
    On your first two questions, on the value of it and the 
need to invest more in it, absolutely yes on both accounts. I 
think the record will show that the Agency has done that. I 
take your point, and that's a challenge to the Agency.
    Clearly they have not done that third step, what you 
suggested. And you essentially, I think, concluded that the 
culture of the Agency was such that this baby would be 
strangled in the crib by the traditional way of doing business 
under embassy cover.
    I had to go find that out, because clearly we've not done 
what you suggested might be a course of action, which is a 
separate entity, a separate agency that I think, according to 
your language, would actually draw in nonofficial cover folks 
from beyond the NSA or beyond CIA into this new structure.
    That, clearly, has not been done.
    Here's the dilemma. We faced it with creating the National 
Security Branch inside the FBI; it's the same question. Can you 
do something that new, that different, inside the existing 
culture, or do you just have to make this clean break, which I 
think you'd admit would be disruptive? But are the facts such 
that you have to make that clean break?
    Clearly, the folks who preceded me there haven't made that 
decision yet. Senator, I need to find out how well we're doing 
and come back and tell you.
    Senator DeWine. General, I think you framed the issue 
perfectly. And I appreciate your response.
    We trust, when you're in there, you're going to make that 
decision one way or the other. Because that is the question, 
whether it can be done that way or it has to be done and by 
breaking the mold and done an entirely different way. But it 
has to be done.
    General Hayden. Yes, sir.
    Senator DeWine. And we have to move and we have to move 
quickly.
    General Hayden. That's right.
    Senator DeWine. And so you have to be the agent of change. 
You have to move. You have to break the culture one way or the 
other.
    In that light, let me ask a question. A lot has been 
written in the press about your plans to have Steve Kappes 
serve as your Deputy Director at the CIA.
    Mr. Kappes, by all accounts, did a great job in the 
Directorate of Operations. But his successes there are really 
in the traditional mold. He was successful in working under 
official cover at running and managing traditional operations. 
He was successful as a member and a leader of the traditional 
corporate culture at the CIA.
    What does it tell us that you're putting him in this 
position? And can he move this agency or help you move this 
agency into new areas?
    General Hayden. Yes, sir.
    I need to be careful here not to be presumptuous on 
confirmation and so on.
    Senator DeWine. We understand.
    General Hayden. And I know Ambassador Negroponte did 
mention Steve's name at a press opportunity a week or so ago.
    I know Steve pretty well. I have the highest regard for 
him. When I did the Rolodex check around the community about 
Steve when I first became aware that I may be coming to this 
job, which was not too long ago, Senator, they're almost 
universally positive. This is a guy who knows the business.
    I don't know enough of Steve's personal history to refute 
some of your concerns, but let me offer a couple of additional 
thoughts, Senator.
    Senator DeWine. Yes. And, you know, I'm very complimentary 
of him.
    General Hayden. I know, I know.
    Senator DeWine. I mean, you know, you look at someone's 
background and you say, ``What have been his assets? And where 
are his strengths?'' And it doesn't mean he can't move in a new 
direction.
    General Hayden. Right. And let me tell you my thought 
process on that. I did this at NSA. At NSA, I brought back a 
retiree, Bill Black. And I brought Bill back as a change agent. 
Imagine the antibody, Senator, for somebody like me.
    I mean, the phrase--I don't know what it is at CIA, but the 
phrase at NSA when describing the guy in the eighth floor 
office is ``the current Director,'' all right?
    [Laughter.]
    General Hayden. You get a lot more authority when the 
workforce doesn't think it's amateur hour on the top floor. You 
get a lot more authority when you've got somebody welded to 
your hip whom everybody unarguably respects as someone who 
knows the business.
    My sense is, with someone like Steve at my side, the 
ability to make hard turns is increased, not decreased.
    Senator DeWine. I respect your answer.
    Let me ask you another question in this regard before I 
move on. In your written statement, you talk about expecting 
more from HUMINT collectors at DOD and the FBI. But I don't 
think I saw in the written statement any mention about the CIA 
itself. I think you've already answered this, but I want to 
make sure it's on the record. Do you also expect more from the 
Directorate of Operations?
    General Hayden. Absolutely. I actually parsed it into two 
boxes in the statement, Senator.
    One is internal. The CIA's got to actually get bigger and 
do more and do better. But there's also that other role where 
CIA--the Director of CIA has now been given responsibility for 
human intelligence across the Government.
    Senator DeWine. General, let's turn to the question about 
access to information.
    Another concern I wrote about in 2002, and which I still 
have concern about, is the need to improve information access 
for analysts throughout the entire intelligence community. 
Information access--that is making sure that the analysts 
across the community get access to all that data that they are 
clear to see. It's really been a major focus of the Chairman, a 
major focus of this Committee.
    In 2002, in my comments, I wrote that we needed to look at 
ways to do this, such as by using technology like multilevel 
security capabilities. I believe we need to develop systems 
that allow analysts to get to information quickly, easily and 
with the confidence that they are seeing everything that they 
are permitted to see.
    Technology should not be the obstacle to achieving this. 
And we have the technology today.
    For example, the National Air and Space Intelligence Center 
in Dayton, Ohio, has developed on its own, over the past few 
years, a multilevel access system called SAVANT which is used 
by their all-source analysts, analysts who hold different level 
of clearance, to gain appropriate access to information of 
varying classification levels in different data bases.
    NASIC developed their software with investments of a few 
million dollars. They developed their systems themselves and 
they did this in a short period of time. So we would know that 
this type of technology is really feasible, we know that it can 
be done.
    If you compare what NASIC has done with the situation at 
the National Counterterrorism Center, it's a little scary. Our 
Chairman likes to point out that when he visits the National 
Counterterrorism Center, he sees sitting under the desks of 
each of the analysts an amazing collection of eight or nine 
different computers, each with different connections back to 
the 28 different networks our intelligence community maintains.
    The Chairman calls this the baling wire approach to 
bringing together intelligence data. To me, it's more like we 
have duct-taped our systems together. Surely we can do better 
than this.
    But the obstacle, I think, here is policy. Intelligence 
community policies continue to work against information access 
and protect more parochial interests of various agencies in the 
community, such as the CIA and NSA.
    I saw that you talked about this issue in your written 
statement. I appreciate that. You wrote that you would strongly 
push for greater information-sharing.
    I saw you cited some of your own work at NSA as proof of 
your commitment to this goal. So let me ask you if you could 
talk for a moment, in the time I have remaining, about your 
commitment to information access.
    You are, of course, the former Director NSA. You're about 
to be the next Director of CIA. These agencies, quite candidly, 
I don't believe, have a great record when it comes to 
implementing information access. Now you're doing better, but I 
think we have a ways to go.
    Talk to me a little bit about what NASIC has done, the 
SAVANT program. Where can the CIA go in this area? How can we 
change the thinking at the CIA? The technology, I think, is 
clearly there.
    General Hayden. Senator, you're right, it's not a question 
of technology. The impediments are, by and large, policy.
    You've got to make sure that technology works, and you've 
got to hold it to a standard, and it's got to perform at the 
standard. But fundamentally these are questions of policy. In 
the current post, with the DNI, we've actually taken some steps 
forward in this regard, and perhaps this afternoon I can 
elaborate on that a bit as to some things we have done.
    But I can tell you in open session, you just have to will 
it. You're not going to get everyone saying, ``Oh, yeah, this 
is good, and it's OK.'' You're not going to get everyone to 
agree.
    In many ways, you just have to make the decision and move 
forward. And we've done that on two or three things I'd really 
be happy to share with you this afternoon.
    Now, I need to be careful. As I said earlier, human 
intelligence sources are a bit more fragile--I mean that 
literally--than other kinds of sources, and that has to be 
respected. But as we did at NSA, I think that the way ahead is, 
you hold all the premises up to the light.
    Senator, there was an instance in NSA when we were trying 
to go forward and do something and someone said, ``You can't do 
that. There are several policies against it.'' And it took me a 
while getting those kinds of briefings to then say, ``Whose 
policies?'' They were mine. They were under my control. So they 
were changeable. They weren't, you know, handed down to us from 
Mount Sinai.
    Senator DeWine. General, I appreciate your answer.
    Just one final comment before I turn it back to the 
Chairman. This Committee has spent a lot of time looking at 
what happened after September 11th. We've looked at a lot of 
problems and the challenges of the intelligence community.
    It seems to me one of the biggest challenges is to make 
sure that every consumer, every person who needs to know, every 
analyst who needs to know information, gets that information in 
a timely manner.
    It's so simple to state, but it's so hard, many times, to 
implement. And your dedication to making sure that that happens 
and we change the culture, we drive through that culture--the 
technology is there, we just simply have to do it.
    General Hayden. Yes, sir.
    Senator DeWine. I appreciate it. Thank you very much.
    Thanks, Mr. Chairman.
    Chairman Roberts. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    General, good morning to you and your family. And, Mrs. 
Hayden, you'll be interested to know, your husband went into 
considerable detail about how much you two loved to go to those 
Steelers games together, so I know you all are very devoted to 
family, and we're glad you're here.
    General, like millions of Americans, I deeply respect the 
men and women who wear the uniform of the United States. Every 
day, our military risks life and limb to protect our freedom, 
demonstrating qualities like accepting personal responsibility. 
They are America at its best.
    Here on the Senate Intelligence Committee, I've supported 
our national security in a time of war by voting to give you 
the tools needed to relentlessly fight the terrorists while 
maintaining vigilance over the rights of our citizens. Those 
votes I've cast fund a number of top secret programs that have 
to be kept under wraps because America cannot vanquish its 
enemies by telegraphing our punches.
    Now, in return for keeping most of the vital work of this 
Committee secret, Federal law, the National Security Act of 
1947, stipulates--and I quote here--you ``keep the 
Congressional Intelligence Committees fully and currently 
informed of all intelligence activities other than a covert 
action.''
    It is with regret that I conclude that you and the Bush 
administration have not done so. Despite yesterday's last-
minute briefing, for years--years, General--you and the Bush 
administration have not kept the Committee fully and currently 
informed of all appropriate intelligence activities.
    Until just yesterday, for example, for some time now only 
two Democratic Senators present this morning were allowed by 
the Bush administration to be briefed on all these matters that 
are all over our newspapers.
    These failures in my view have put the American people in a 
difficult spot. Because the Committee hasn't been kept 
informed, because of these revelations in the newspapers, now 
we have many of our citizens--law-abiding, patriotic Americans 
who want to strike the balance between fighting terrorism and 
protecting liberty--now they're questioning their Government's 
word.
    So let me turn to my questions.
    In your opening statement, you said that under your 
leadership, the CIA would act according to American values. So 
we're not talking about a law here, but we're talking about 
values. For me, values are about following the law and doing 
what you say you are going to do. When it comes to values, 
credibility is at the top of my list.
    Now, General, having evaluated your words, I now have a 
difficult time with your credibility. And let me be specific.
    On the wiretapping program in 2001, you were told by the 
President's lawyers that you had authority to listen to 
Americans' phone calls. But a year later, in 2002, you 
testified that you had no authority to listen to Americans' 
phone calls in the United States unless you had enough evidence 
for a warrant. But you have since admitted you were wiretapping 
Americans.
    Let me give you another example. After you admitted you 
were wiretapping Americans, you said on six separate occasions 
the program was limited to domestic-to-international calls. Now 
the press is reporting that the NSA has amassed this huge data 
base--that we've been discussing today--of domestic calls.
    So with all due respect, General, I can't tell now if 
you've simply said one thing and done another, or whether you 
have just parsed your words like a lawyer to intentionally 
mislead the public.
    What's to say that if you're confirmed to head the CIA we 
won't go through exactly this kind of drill with you over 
there?
    General Hayden. Well, Senator, you're going to have to make 
a judgment on my character.
    Let me talk a little bit about the incidents that you 
brought up.
    The first one, I believe, is testimony in front of the 
combined HPSCI and SSCI, the joint inquiry commission on the 
attacks of 9/11. And in my prepared remarks, I was trying to be 
very careful because we were talking not in closed session in 
front of the whole Committee, but in front of the whole 
Committee in totally open session.
    I believe--and I haven't looked at those remarks for a 
couple of months now--I believe I began them by saying that I 
had been forthcoming in closed sessions with the Committee.
    Now, you may quibble that I've been forthcoming in closed 
sessions with some of my information with the leadership of the 
Committee or with the entire Committee, but that the language 
of the statute you referred to earlier does allow for limited 
briefings in certain circumstances. And I know there'll 
probably be questions on what are those legitimate 
circumstances.
    If anyone in the U.S. Government should be empathetic to 
the dilemma of someone in the position I was in, it should be 
Members of this Committee who have classified knowledge 
floating around their left and right lobes every time they go 
out to make a public statement.
    You cannot avoid in your responsibilities talking about 
Iran, or talking about Iraq, or talking about terrorist 
surveillance. But you have classified knowledge. And your 
challenge and your responsibility is to give your audience at 
that moment the fullest, most complete, most honest rendition 
you can give them, knowing that you are prevented by law from 
telling them everything you know.
    That's what I did while I was speaking in front of the 
National Press Club. I chose my words very carefully because I 
knew that some day I would be having this conversation.
    I chose my words very carefully because I wanted to be 
honest with the people I was addressing. And it wasn't that 
handful of folks downtown. It was looking into the cameras and 
talking to the American people.
    I bounded my remarks by the program that the President had 
described in his December radio address. It was the program 
that was being publicly discussed. And at key points in my 
remarks I pointedly and consciously down-shifted the language I 
was using.
    When I was talking about a drift net over Lackawanna or 
Fremont or other cities, I switched from the word 
``communications'' to the much more specific and unarguably 
accurate ``conversations.''
    And I went on in the speech and later in my question-and- 
answer period to say we do not use the content of 
communications to decide which communications we want to study 
the content of.
    In other words, when we looked at the content of a 
communication, everything between ``hello'' and ``goodbye,'' we 
had already established to a probable cause standard that we 
had reason to believe that that communication, one or both of 
those communicants were associated with al-Qa'ida.
    Senator, I was as full and open as I possibly could be.
    In addition, my natural instincts, which I think all of you 
have seen, is to be as full and open as law and policy allow 
when I'm talking to you as well.
    Anyone who's gotten a briefing on the terrorist 
surveillance program from me--and up until yesterday that was 
everybody who had ever gotten a briefing on the terrorist 
surveillance program--I would be shocked if they thought I was 
hiding anything.
    There was only one purpose in my briefing, and that was to 
make sure that everyone who was getting that briefing fully 
understood what NSA was doing.
    Now, Senator, I know you and other Members of the Committee 
have concerns that we've gone from two to five to seven to the 
full Committee. I understand that. I told you in my opening 
remarks what my instincts were in terms of briefing the full 
Committee. There's a very, very crude airman's metaphor that 
talks about, if you want people at the crash, you got to put 
them on the manifest.
    Senator Wyden. General, let me----
    General Hayden. Let me make just one more remark, OK?
    And so my personal commitment is to be as open as possible. 
I cannot commit, Senator, to resolving the inherent stresses 
between Article I and Article II of the Constitution that were 
intentionally put in there by the founding fathers.
    Senator Wyden. General, I'm focused just on the public 
record. You know, I'm going to go out and try now to dissect 
what you have just said and compare it to those others.
    General Hayden. Yes, sir.
    Senator Wyden. But let me give you a very quick example.
    General Hayden. OK
    Senator Wyden. The Trailblazer program. As you know, I'm 
committed to being careful about discussing this in public--a 
sensitive information technology program. But as you know, I 
asked you about this in open session----
    General Hayden. Yes, sir.
    Senator Wyden [continuing]. When you were up to be deputy 
DNI.
    I went back and looked at the record, and you said, 
``Senator Wyden, we are overachieving on that program.'' Those 
were your words.
    I opened up the Newsweek magazine this week. And there are 
quoted--again, just out of a news report--reports that there's 
$1 billion worth of software laying around, people who have 
decades of experience saying--I think their quote was--``A 
complete and abject failure.''
    And so I ask you again. I'm concerned about a pattern where 
you say one thing in these open kind of hearings, and then I 
and others have got to get a good clipping service to try to 
figure out what independent people are saying and then to 
reconcile them.
    So were you accurate when you came, in an open session, to 
say that the Trailblazer program was overachieving?
    General Hayden. Senator, the open session you're referring 
to, was that last year during the confirmation?
    Senator Wyden. Yes.
    General Hayden. OK, thanks.
    Senator, I will promise you, I will go back and read my 
words. But what my memory tells me I said was that a lot of the 
failure in the Trailblazer program was in the fact that we were 
trying to overachieve, we were throwing deep and we should have 
been throwing short passes--if you want to use a metaphor--and 
that a lot of the failure was we were trying to do too much all 
at once.
    We should have been less grandiose, not gone for moon shots 
and been tighter in, more specific, looking at concrete 
results, closer in rather than overachieving by reaching too 
far.
    My memory is that's what I was describing. I can't ever 
think of my saying we were overachieving in Trailblazer. That 
was a tough program, Senator.
    Senator Wyden. Those were your words, General. And again, I 
question using your word--open session--whether we have gotten, 
on that particular program, the level of forthcoming statements 
that is warranted.
    And to me, this is a pattern and something that has made me 
ask these questions about credibility.
    Now, to move on to the next area, for 200 years, our 
government has operated on the proposition that the people must 
have some sort of independent check on the government. 
Americans want to trust their leaders, but they also want 
checks and balances to ensure, in this area, in particular, we 
fight terrorism and protect liberty. I think Ronald Reagan got 
it right. He said we've got to verify as well as trust.
    Where is the independent check, General, the independent 
check that can be verified on these programs that the 
newspapers are reporting on?
    General Hayden. The verification regime, as I said earlier, 
Senator, was very tight. And, admittedly, an awful lot of the 
hands-on verification was from close in. It was the general 
counsel at NSA. It was the inspector general at NSA.
    Senator Wyden. Is that independent oversight, when the 
general counsel at NSA is what passes judgment? All of these 
people here--and most of us were kept completely in the dark 
until yesterday--have election certificates, General. That, it 
seems to me, is at least some kind of independent force.
    And I'd like you to tell me what is the independent 
verification of these programs that I see in the newspapers.
    General Hayden. Yes, sir.
    And, beyond that, there was the over-the-shoulder performed 
over the NSA oversight regime by the Department of Justice.
    Beyond that, within weeks of the program starting, we began 
a series of briefings to the senior leadership of the Senate 
Select Committee and the House Permanent Select Committee on 
Intelligence. I think the first briefing occurred with a couple 
of weeks of the launching of the program and within 2 months of 
the launching of the program, we had our second briefing--so 
that the leadership of the Committee understood what we were 
doing.
    And those briefings were as forthcoming as I could possibly 
make them. And there were no restrictions. Let me make that 
very clear. I mean, no one was telling me what of the program I 
can share with the leadership of the Committee. That was 
entirely within my control.
    In fact, when we gave the briefings, the other people in 
the room saw the slides for the first time when the Chairman 
and the senior member were seeing the slides for the first 
time. And my only purpose, Senator, was to make sure that this 
second branch of government knew what it was we were doing.
    I actually told the folks who were putting the briefing 
together for me to make it in-your-face. I don't want anyone 
coming out of this 1, 2, or even 5 years later, to say, ``Oh, I 
got some sort of briefing, but I had no idea.''
    And so I was, frankly, personally, very aggressive in 
making sure this branch of government knew what we were doing.
    Senator Wyden. General, what you're talking about, what 
you've described, is essentially in-house verification, 
unilateral verification. You've talked about how NSA counsels 
give you advice and the Justice Department gives you advice.
    You say you told a handful of people on this Committee. The 
fact is the 1947 law that says all of us are to know about non-
covert activities wasn't complied with. And I don't think 
that's independent verification.
    Now, in 2002, General, you said to the joint 9/11 inquiry, 
and I'll quote here, ``We as a country readdressed the 
standards under which surveillances are conducted, the type of 
data NSA is permitted to collect and the rules under which NSA 
retains and disseminates information.''
    You said, ``We need to get it right.'' You said, ``We have 
to find the right balance.''
    Now, I've looked very hard, General, and, respectfully, I 
can't locate any ``we'' that was involved in any of these 
efforts that you've suggested. Certainly there wasn't any 
``we'' that worked together on the ground rules for the program 
that the USA Today says you set up.
    So it seems to me, whatever you and the Administration have 
done with respect to these programs--and as you know, I can't 
even talk about what I learned yesterday--whatever was done, 
you did it unilaterally. And as far as I'm aware, we as a 
country weren't part of any effort to set the standards in 
these programs. And most of the Members of this Committee were 
kept in the dark and weren't part of any informed debate about 
these programs.
    So, General, who is the ``we'' that you have been citing?
    General Hayden. Senator, again, I briefed the leadership of 
this Committee and the House Committee. I briefed the chief 
judge of the relevant Federal court.
    The passage you're referring to I remember very, very 
clearly. It was an exchange I had with Senator DeWine, and we 
were talking about the balance between security and liberty. 
And I probably got a little too feisty and said something along 
the lines of, ``Senator, I don't need to be reminded how many 
more Arabic linguists we need at NSA. I got that. What I really 
need is to understand, and for you to help me understand, where 
the American people would draw the line between liberty and 
security.''
    Senator, I believed that then. I believe it now. I used all 
the tools I had available to me to inform the other two 
branches of government exactly what NSA was doing. I believed 
in its lawfulness. And after these briefings, which I think 
numbered 13 up to the time the New York Times story came out in 
December, I never left the room thinking I had to do anything 
differently.
    Senator, these are hard issues. Senator Levin asked me, 
``Are there privacy concerns?'' I said, ``Of course there are 
privacy concerns.''
    But I'm fairly--I'm very comfortable with what the Agency 
did and what I did personally to inform those people 
responsible for oversight.
    Senator Wyden. I want to stick to the public record.
    A handful of Senators were informed. They weren't even 
allowed to talk to other Senators. One of the Senators who was 
informed raised questions about it. That doesn't strike me as a 
we, inclusive, discussion of where we're going in this country.
    General, if we had not read about the warrantless 
wiretapping program in the New York Times last December, would 
14 of the 16 Members of this Senate Intelligence Committee ever 
heard about this program in a way consistent with national 
security?
    General Hayden. Senator, I simply have no way of answering 
that question. I don't know.
    Senator Wyden. Let me ask you about a couple of other 
areas. I believe I have a few remaining moments.
    Chairman Roberts. Actually, the Senator is incorrect. His 
time has expired. But you're certainly free to pursue them in a 
second round.
    I would like to make it very clear that I was briefed on 
all 13 occasions, along with the Vice Chairman and the 
leadership of the Congress. You might think we're not 
independent. I am independent and I asked very tough questions. 
And they were answered to my satisfaction by the General and 
other members of the briefing team. Others did as well.
    If you'll hold just for a moment. It is my recollection of 
the 13 briefings with the very independent leadership, in a 
bipartisan way, after asking tough questions, that nobody ever 
left the room that did not have an opportunity to ask further 
questions and to have the general follow up with an individual 
briefing if they so desired, and indicated at that time that 
they were--if not comfortable, thought the program was legal, 
very impressed with the program and thanked the Lord that we 
had the program to prevent any further terrorist attack.
    That precedent started with President Carter, President 
Reagan, President Bush, President Clinton and the current 
President, based on two Members of the Intelligence Committee 
and two members of the Intelligence Committee on the other side 
of the Hill, basically, and the leadership.
    That was held closely. There's always a tug and pull by 
statute and otherwise, according to the 1947 National Security 
Act, in regard to the obligation of the executive to inform the 
legislative.
    The worry, of course, was in regard to, if that briefing is 
expanded to a great many Members, about the possibility of 
leaks. I personally do not believe, in my own judgment, that 
Members leak that much, although I know when some leak happens, 
always staff is blamed.
    But having said that, in this particular instance, I want 
to tell the Senator from Oregon that I felt that I was acting 
independently, asked tough questions and they were answered to 
my satisfaction. I obviously cannot speak for the other 
Members, but it is my recollection that that was the case.
    We then moved from two to five, and then from five to 
seven, because of my belief that the more people that were read 
into the operations of the program, the more supportive they 
would be, for very obvious reasons. We have a program--a 
capability, as I like to say it--to stop terrorist attacks when 
terrorist attacks are being planned.
    I think that is so obvious that it hardly bears repeating.
    And now we have the full Committee. And so the independent 
check on what you are doing in regard to this whole capability 
is us. Now it took a while for us to get here from there. But 
during those days, under previous Presidents, we did not have 
this kind of threat--which is unique, very unique--and we did 
not have this capability.
    So things have changed. Rightly so. So now the full 
Committee will be the independent check in regards to what 
you're doing.
    Senator Wyden. Mr. Chairman, since you have launched this 
extensive discussion, can I have about 30 seconds to respond?
    Chairman Roberts. You have 30 seconds precisely.
    Senator Wyden. I have enormous respect for you, as you 
know. I'm only concerned----
    Chairman Roberts. Did all this happen because Pittsburgh 
beat Seattle in the Super Bowl or what?
    [Laughter.]
    Senator Wyden. I'm only concerned that the 1947 law that 
stipulates that the congressional intelligence Committees be 
fully informed, as it was done even back in the cold war, be 
followed.
    And, General, just so you'll know, on a little bit of 
humor, in my morning newspaper, a gentleman named Abraham 
Wagner, who is a former National Security Council staffer 
said--and he issued a strong statement of support for you--he 
said, ``Our Committee, they ought to smack him with a frying 
pan over the head and make sure he won't do it again,'' with 
respect to these limited briefings in terms of this Committee 
and making sure we're following the 1947 law.
    Thank you, Mr. Chairman.
    Chairman Roberts. Well, the law also provides a limited 
briefing in regards to the judgment of the President in regard 
to national security matters and, obviously, anything that 
would endanger sources and methods and lives.
    I think we have exhausted this issue to the satisfaction of 
the Committee, or at least I hope so.
    Senator--where are we here--Senator Feinstein.
    Senator Feinstein. Thank you.
    Chairman Roberts. I might add, if we have a vote, we're 
going to break for lunch. And then if we do not have a vote, it 
is my intent--oh, I beg your pardon, it's Senator Snowe. This 
is the second time that I have made an error.
    Senator Snowe, I owe you my deepest apology. You were here 
before this hearing opened up. And so you are now recognized.
    Senator Feinstein, I apologize to you. It was the Chair's 
mistake.
    Senator Snowe is recognized.
    Senator Snowe. Thank you Mr. Chairman. And I want to 
welcome you, General Hayden, to the Committee and congratulate 
you on your nomination as Director of the CIA. And I also want 
to extend my appreciation to you for your more than 30 years of 
service to this country.
    General Hayden. Thank you.
    Senator Snowe. You've certainly been a person of the 
highest integrity and you've had a distinguished career.
    In thinking about all the issues that we're confronting 
today with respect to the agency that you've been nominated 
for, that you'll be leading an agency that has been, as you 
mentioned in your opening statement, plagued by problems at the 
very same time that our nation is confronting a great set of 
challenges, you'll be taking the reins at the CIA not only for 
a tumultuous time for this country, but also for the CIA 
itself.
    And your leadership is going to be so essential in 
reasserting the role of the Agency in becoming a preeminent 
authority in intelligence-gathering and analysis and as the 
overall intelligence capability is solidified as we did under 
the law.
    Your confirmation comes at a time when we would be doing 
far more than just simply filling a position. Because the CIA 
is now central not only to our national security, but ever more 
so in the post-September 11th environment in identifying 
shadowy and elusive threats.
    And so your leadership will require changing the status quo 
in order to avoid the intelligence failures of the past.
    Also, as you mentioned in your opening statement about 
facing the multiple challenges, not only restructuring and 
reestablishing the Agency's core mission, but also in restoring 
the morale--low morale among the dedicated CIA personnel--but 
also in synchronizing the gears of our Nation's human 
intelligence collection capability.
    Moreover, the CIA is also facing not only the major 
internal reorganizations, but also facing territorial turf 
grabs from the Department of Defense in areas that have and 
continue to be a congressionally mandated domain for the CIA.
    And that concerns me, the encroachment by the department, 
because not only does it present potential conflicts, but it 
also is potentially going to divert resources from the CIA's 
ability to craft its overall strategic mission for developing 
the strategic intelligence that's so essential to anticipating 
and deterring the threats of the future.
    So, General Hayden, I think it's going to be critical, as 
you look forward, to explain to this Committee how you intend 
to implement your reforms, what your vision is going to be, and 
particularly in grappling with the encroachments and the 
bureaucratic expansion by the Department of Defense, which 
obviously is going to be problematic. It already has.
    In addition, I also would like to have you address some of 
the issues regarding the NSA and the wiretapping program and 
the phone data collection that was initially conducted during 
your tenure. It obviously has raised some fundamental concerns.
    I sought to serve on this Committee because of my 10 years 
previously in serving in the House of Representatives as 
Ranking Member of the subCommittee that oversaw terrorism. And 
I vigorously fought for anti-terrorism measures. In fact, I got 
the first information-sharing measure passed, following the 
first World Trade Center bombing in 1993.
    I don't think anybody disputes the urgency of the ultimate 
goal of fighting terrorism. I think there is no dispute about 
it. There is no contest on that very question.
    I think the real issue is how we can best accomplish that 
goal together, within the constitutional framework of the 
constitutional rights of privacy and freedom.
    And this is the major challenge, as we heard the debate 
here earlier with the Chairman and Senator Wyden. The goal 
cannot be accomplished without ensuring that we uphold the 
systems of checks of balances, to be absolutely sure that they 
are respected, upheld and applied. The founding of our country 
was predicated on those principles.
    I happen to believe that, with the programs in question, 
that the Congress was really never really consulted or informed 
in a manner that we could truly perform our oversight role as 
co-equal branches of government, not to mention, I happen to 
believe, required by law.
    And, frankly, if it were good enough yesterday to be 
briefed as the Senate Intelligence Committee as the full 
Committee and the House Intelligence Committee, then why wasn't 
it good enough to brief the full Committees 5 years ago?
    The essence is what we have in responsibilities, is having 
a vigorous checks and balance system. And I know that you 
mentioned the gang of eight, but the gang of eight was not in 
the position to have staff, to hold hearings to examine the 
issues. It was really a one-way briefing. There was nothing 
more that they could do with the information, other than 
objecting to each other or to the Administration--to you, to 
the President, whatever.
    And I think that in and of itself undermines our ability to 
perform the roles that we're required to do. In this time, in 
the global war on terror, the executive and the legislative 
branches must work together if we're going to engender 
confidence, really and to ensure that the reals checks and 
balances exist. To do otherwise, I think breeds corrosive 
mistrust and distrust. It does not serve the interests of the 
people.
    And so, if there was a time about marshaling our forces 
across the branches of government and across the political 
aisle, it is now. And I think the time is to be able to work 
together on those issues that imperil our Nation.
    And so, with that, I would like to ask you about the 
notification to the gang of eight, because this is central to 
the issues that you will be facing, if confirmed as the 
Director of CIA, because you'll still have opportunities and 
decisions to be made within the Agency on whom to brief, 
whether it's a limited group that is basically handcuffed in 
its ability to do and perform the checks and balances.
    It's not enough for the executive branch to agree among 
themselves, among all agencies. There has to be a give and take 
in this process. And that's, in essence, what it's all about.
    And so the notification to a very limited group that could 
do nothing much with that information essentially is not the 
kind of checks and balances that I think our founding fathers 
had in mind.
    So I would like to ask you what was your disposition about 
the whole notification process at that point when this program 
was created and designed by you as the Director? Did you 
advocate to notify the full House and Senate Committees?
    And what will be your disposition in the future, if 
confirmed as Director, about notifying full Committees or more 
limited groups with respect to these issues? Because there are 
other programs that obviously you'll be in a position to 
determine who should be notified.
    General Hayden. Yes, ma'am.
    Really important question and critical issues.
    Without getting into what should be privileged 
communications, let me describe the view September-October 
2001. As you recall, technologically feasible, operationally 
relevant, what would be lawful. One of the contributions that I 
gave to the conversation was congressional notification.
    When we were discussing this, I literally said in our small 
group, ``Look, I've got a workforce out there that remembers 
the mid-1970s.'' And forgive me for a poor sports metaphor 
here, but the line I used is, ``Since about 1975, this Agency 
has had a permanent one ball, two strike count against it, and 
we don't take many close pitches.''
    And so it was important to me that we brief the oversight 
bodies. I was delighted that the decision was made to do that 
almost before we got the program under way.
    I've forgotten the specific dates, but the first briefing 
was in September--I'm sorry, that's not right--was in October 
of 2001. And the program didn't get under way until October 6.
    And we had a second briefing with the leadership of the 
HPSCI and SSCI before--I think it was by the 2nd of November--
within about 30 days.
    So I was very, very pleased that that had been done.
    Ma'am, I don't claim to be a constitutional lawyer, and I 
made a quick reference to the inherent tensions between Article 
I and Article II. But, again, it was very important for me that 
we briefed the leadership.
    If there was to be a dialog beyond that as to who should be 
briefed and so on, my view certainly was, I could be open to 
anyone after a decision was made to conduct that briefing. And 
I know many of you have seen these briefings, and I will still 
stand by I have been very open.
    Senator Snowe. I don't have any doubt about that. I think 
it's important that we don't utilize this as a common practice. 
Because it's my understanding about the gang of eight that it's 
generally a rare, extraordinary circumstance. It's obviously in 
the instances of covert operations----
    General Hayden. Right. Right. To which it is specifically 
applied by statute.
    Senator Snowe. Yes. And I just think it's very important, 
because I think it's unfortunate where we are today, you know, 
whether we're discussing the legalities and illegalities about 
the program, what it's all about.
    In essence, it undermines all of our authority. And, you 
know, we have a collective wisdom and experience on the House 
and Senate Intelligence Committee of more than 150 years of 
experience.
    It seems to me that we could build upon and enhance our 
capabilities in working together as legislative and executive 
branches to do what is in all of our interest in the 
indisputable ultimate goal of fighting terrorism. I don't think 
that there's any question about that. It's how you best do it.
    We know the President has power. It's how that's exercised 
and the checks and balances that he utilizes. And that's where 
we come in, in performing vigorous oversight, not just a one-
way street here. And I just want to encourage you, because the 
days ahead are going to be challenging.
    General Hayden. Oh, yes.
    Senator Snowe. And certainly with this Agency and the 
reorganization.
    And I make that point because I think it's fundamentally 
important. There's so much that each Member--and in this branch 
of government, we're not adversaries, we're allies in the war 
on terror. And we should be able to make that work. We might 
have differences, but that's not the issue.
    The issue is, how do we build a stronger platform from 
which to make sure America is safe? And that should be 
bipartisan. That should be a both-branches-of-the-government 
endeavor.
    General Hayden. I understand.
    Senator Snowe. And so I hope that we can accomplish that.
    I would like to go on to the whole issue of DOD and CIA 
coordination, because I think it's a fundamental issue. And I 
know there are many issues there. And I'd like to get your 
thoughts on how you're going to exhibit the kind of independent 
leadership with particularly the Department of Defense--because 
as they further expand and encroach in areas, expanding their 
clandestine forces, paying informants, gathering deeper and 
deeper into human intelligence, I think that this is going to 
be a serious--potentially--contest if the CIA does not regain 
its ground and reclaim its lost territory.
    Now, I know you have said that it's a blurring of 
functions. The Pentagon has said, ``Well, we had to fill in the 
vacuum where the CIA could not.'' I would like you to tell the 
Committee, General Hayden, as to how you think you will go 
about exhibiting and demonstrating the kind of leadership 
that's going to be essential to regaining the core missions of 
the CIA.
    General Hayden. Yes, ma'am.
    And if I could, I'd like to put a few more details on my 
answer in the afternoon session, where I can make some 
increased distinctions. But I think I can discuss it at some 
length right now.
    First of all, you welcome more players on the team. That's 
good news. Now, the players have to play as a team and they've 
got to know how to play the sport. Those are the 
responsibilities of the national HUMINT manager.
    There's an MOU in place. The word I get from the current 
leadership at CIA is it's working pretty well and the trend 
lines are positive. But that, as I've told before, that's a 
process to be nurtured, not a solution to be made and put on 
the shelf. That's got to be managed constantly over time.
    Here's where the rub comes, ma'am.
    DOD, operating from title 10 authorities, in what the 
Secretary will quite legitimately call inherent military 
activities--and you'll see Dr. Cambone describing it that way--
conducts activities that to the naked eye don't look any 
different than what a case officer in theCIA would be doing 
under authorities that come out of title 50 of the U.S. Code. 
And, frankly, you probably shouldn't worry about that 
distinction, and certainly the environment in which we're 
working isn't going to make the distinction that, ``Oh, these 
are title 10 guys and these are title 50.''
    And so one thing that we have to do is, No. 1, be witting 
to everything that is going on, deconflict everything that is 
going on, and when there is confliction, elevate it to the 
appropriate level almost immediately so that it's resolved.
    And then when the activity is known and deconflicted and 
coordinated, that the activity, no matter what its legal 
roots--title 10 or title 50--is conducted according to 
standards, standards of tradecraft and standards of law.
    I don't see that responsibility falling on anyone accept 
the national HUMINT manager. So whether it's being done by FBI, 
whether it's being done by combatant command, whether it's 
being done by the Defense HUMINT Service or by CIA, it's got to 
be done well and right.
    Senator Snowe. Well, would your memorandum of agreement 
between DOD on this question outline the issues? I mean, is it 
going to be a clear delineation?
    General Hayden. The responsibilities are quite clear. As I 
suggested earlier, we run into trouble when people don't follow 
it. And more often than not, that's out of ignorance rather 
than malice. So there's still work to be done.
    Senator Snowe. I know you mentioned that it would be done 
on a step-by-step basis. And I'm concerned about the 
incrementalism of that, as the DOD is very aggressive in 
filling the void or the vacuum in developing this parallel 
intelligence structure.
    General Hayden. Yes, ma'am, there's an analogue to that in 
SIGINT.
    There are signals intelligence activities inside the Army, 
inside the Navy, inside the Air Force. As Director of NSA, I 
had the responsibility to ensure that those were done legally 
and done well.
    I think there's a parallel here, that, we don't have to 
refuse the additional assistance, but that there's a role to be 
played so it's done lawfully and orderly and it's deconflicted.
    Senator Snowe. Well, you were mentioning the Under 
Secretary of Defense for Intelligence, Dr. Cambone. And I 
understand the DOD issued a directive last fall regarding 
requiring the concurrence from Dr. Cambone before any personnel 
could be transferred between the Department of Defense into any 
of the integration centers, for example, or any other joint 
efforts under the Office of the Director of National 
Intelligence.
    General Hayden. Yes, ma'am. Your staff's done good 
homework.
    And our view at the Office of the Director of National 
Intelligence is that those people who are on NIP--National 
Intelligence Program--billets are effectively under the control 
of the Director of National Intelligence. And your legislation 
allowed the DNI to move--what?--up to 100 billets in the first 
year of a new center.
    Now, we can do that with healthy regard to the DOD 
personnel system. But I think the Ambassador intends to 
exercise his authorities.
    Senator Snowe. You even acknowledge that there are 
discrepancies by saying there's genuine overlap regarding the 
authorization of personnel moves that will have to be resolved 
one step at a time.
    Director Negroponte noted before Congress that there had 
been an open conflict with the Pentagon over at least one 
issue. And that was personnel. He went on to raise the issue 
with Congress by subtly saying, I don't mean to invite help, 
but one area that the intelligence community's working on now 
is the area of personnel.
    I think what is even more disconcerting is that the 
Director indicated and characterized the situation by saying we 
look at those people as intelligence people and Secretary 
Rumsfeld certainly looks at those as DOD folks. So I find it 
troubling, at a time which the department is really moving very 
aggressively and pursuing a parallel track and a parallel 
operation when it comes to intelligence, and you describe it as 
a genuine overlap.
    How do you intend to resolve this overlap?
    General Hayden. Actually, that wasn't the Ambassador saying 
that. That was me.
    Senator Snowe. That was you?
    General Hayden. Yes, ma'am. And, as I said earlier when we 
talked about the law, rather than sitting in Philadelphia and 
articulating a theory of federalism, the folks just wrote down 
the powers they wanted the Federal Government to have. That's 
what you did for the DNI.
    And so I think this is just a question of exercising those 
powers. And I think the Ambassador's view--certainly, my view 
is that billets, individuals funded in the national 
intelligence program, are first and foremost under the DNI. For 
those things, you're giving the DNI control.
    Senator Snowe. Finally, in the New York Times recently, 
there was an article that, I think, has captured the essence of 
my concerns and others as well about how the CIA hasn't been 
able to develop the strategic intelligence, which is a crucial 
issue.
    Because obviously we need--and you mention in your own 
remarks about having to be governed by the daily news in 
responding to those issues rather than having a chance to see 
the forest through the trees and looking at the big picture and 
anticipating the threats of the future.
    I mean, that's what this is all about. And how do you 
intend to reposition the CIA in that respect? Because I think 
that that is a very essential and significant capability that 
must be vested within the CIA. We need to have it geared toward 
that goal.
    General Hayden. Yes, ma'am.
    And there are some pernicious influences out there right 
now. I mean, just the public news cycle, the CNN cycle, puts 
pressure on the community not to allow decisionmakers to be 
surprised.
    We're in a war. And the OPSTEMPO of the war in Afghanistan, 
in Iraq, global war on terrorism, I mean, just sucks energy 
into doing something in the here and now.
    It will require a great deal of discipline to pull 
resources and psychic energy away from that and focus it on 
something that's important but not urgent, and that's why I put 
that comment in my remarks.
    And it actually came into the draft late after some folks 
looked at it and said, you need to make that commitment as 
well, that you need to pull some people off for the long view, 
for the deep view. Otherwise, we will appear to be successful, 
but we'll be endlessly surprised.
    Senator Snowe. Thank you, General Hayden.
    Chairman Roberts. The Senator's time has expired.
    Senator Snowe. Thank you, General Hayden.
    Thank you, Mr. Chairman.
    Chairman Roberts. Senator Feinstein.
    And let me announce at this particular time that following 
Senator Feinstein's questions, we will break for lunch. We will 
resume the Committee hearing at 1:30. That should give people 
approximately 40 minutes for lunch. And the order will be 
Senator Hatch, Senator Warner, Senator Hagel, Senator Feingold, 
Senator Chambliss, Senator Mikulski, Senator Lott, and Senator 
Bayh.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    I'd just like to say at the onset that I very much agree 
with Senator Snowe's opening comments, and I'm very pleased 
that she made them.
    I'd like to note that I drafted and proposed for inclusion 
in the intelligence authorization bill an amendment which would 
amend the National Security Act's requirements to increase 
reporting requirements to Congress. Staff have this proposal. I 
intend to move it whenever I can.
    Essentially, it would state that briefing the Committee 
means all Members of the Committee, which is the current 
intent, we believe, and that in the very rare cases where only 
certain Members are briefed, all Members get a summary, so that 
at the very least, everyone can assess the legality and 
advisability of the action, and carry out our oversight 
responsibility. The amendment specifies that an intelligence 
activity is not considered authorized until this briefing takes 
place.
    So I'd like to ask you to take a look at that, if I might.
    General, I was very impressed with your opening statement. 
I think you have the ``vision thing,'' as they say, right. I 
think what you want to do for the Agency is the correct thing 
to do. So that's all good.
    I want to just ask you this one question about it. Would 
you make a commitment to this Committee that all of the top 
officers of this agency will be intelligence professionals?
    General Hayden. Ma'am, obviously the answer is yes. I'm 
just parsing off the question to make sure I understand all of 
the ramifications because, frankly, at NSA, one of the things 
we did and had some success was to bring some folks in from the 
outside to do things that weren't inherently intelligence.
    But I understand----
    Senator Feinstein. I think you understand what I'm saying.
    General Hayden. Yes. Within that confine, yes.
    Senator Feinstein. I appreciate that commitment.
    Now, I also believe that Americans want to be protected. I 
know there are no citizens in any major city that want to see 
another attack. And I happen to believe that there are people 
that want to do us grievous injury, if not kill us. So the only 
tool there really is to stop something is intelligence. And 
that's where, I think, the issues become very thorny. And in my 
questions, I want to try to sort a few of them out.
    What was your role in the initiation of the program at 
issue, the terrorist surveillance program?
    General Hayden. Sure, ma'am. I had done some things, as I 
briefed the Committee, told this Committee, the House 
counterpart, told Director Tenet. I was asked by Director 
Tenet, ``Could you do more?''
    I said, ``Not within current law.''
    He says, ``Well, what could you do more?''
    And I put it together with, as I said, technologically 
possible, operationally relevant, now the question of 
lawfulness.
    So I described where we had stopped our expansion of 
activities because of the current legal structure under which 
we were operating.
    Senator Feinstein. Did individuals in the White House push 
for a broader and further-reaching surveillance program, 
including purely domestic calls without warrant----
    General Hayden. No, ma'am.
    Senator Feinstein [continuing]. As was reported in last 
Sunday's New York Times?
    General Hayden. Yes, I understand. And I will give you just 
a touch more granularity in the closed session. But in open 
session, these were all discussions. Our views were--NSA 
views--were highly regarded, and there was never an argument 
over that issue.
    Senator Feinstein. Thank you.
    What legal guidance did you seek and review before 
initiating the surveillance program? If this Committee doesn't 
have copies--and we don't--of the legal opinions, may we 
receive them please?
    General Hayden. Ma'am, I'll take your question. I have not 
read the Justice legal opinion as well.
    But what I was assured by the signature of the Attorney 
General on the first order, and by the opinion of the White 
House counsel, and the judgment from the Office of Legal 
Counsel in Justice, was that this was lawful and was within the 
President's authorities.
    I then brought the question to NSA lawyers, three guys 
whose judgment I trust, three guys who advise me and who have 
told me not to do things in the past, and laid out the 
question. And they came back with a real comfort level that 
this was within the President's authorities.
    Senator Feinstein. Did they put anything in writing?
    General Hayden. No. And I did not ask for it. I asked them 
to look at the authorization, then come back and tell me.
    But in our discussion--I think Senator Levin asked this 
earlier--in our discussion, although they didn't rule out other 
underpinnings for the President's authorization, they talked to 
me about Article II.
    Senator Feinstein. Has the Administration sought--or has 
the NSA sought title I warrants from the FISA Court for the 
collection of telephone content? And has it sought pen register 
trap-and-trace device approval from the Court for the 
collection of telephone records or transmittal information?
    General Hayden. Ma'am, let me give you that answer in 
closed session--just a slight discomfort. But I'll be happy to 
give it to you as soon as we get to closed session.
    Senator Feinstein. All right. I will ask it. I think it's 
an important question.
    General Hayden. Yes, ma'am. Of course.
    Senator Feinstein. It is my belief that FISA should remain 
the exclusive authority for all domestic surveillance in the 
United States. It needs some updating because of the particular 
situation we're in and the enormous increases in technology 
since 1978.
    As you know, I have asked NSA for suggested improvements 
both by letter and in person, and I have not received a 
response. I'm in the process of drafting a bill, and I would 
appreciate a response on the technical improvements that can be 
made to FISA.
    General Hayden. Yes, ma'am. I understand. I've discussed 
this with General Alexander. NSA has crafted some views and 
some language. They have given that to the Department of 
Justice, because, in addition to the technology, there are 
issues of law involved here, as well. And that dialog is 
ongoing, but I have been assured that it is moving forward.
    And I will take the urgency of your message back, ma'am. I 
understand.
    Senator Feinstein. Because as you know, bills are being 
marked up in the Judiciary Committee, and so there is a time 
element to this.
    General Hayden. Yes, ma'am. And I know there are multiple 
bills out there each trying to move this forward and craft that 
balance between liberty and security.
    Senator Feinstein. Thank you.
    I want to ask you some questions about the Fourth 
Amendment. And I know I don't need to read it for you, but just 
for the record, let me quote it. ``The right of the people to 
be secure in their persons, houses, papers and effects against 
unreasonable searches and seizures shall not be violated, and 
no warrant shall issue but upon probable cause, supported by 
oath or affirmation, and particularly describing the place to 
be searched and the persons or things to be seized.''
    Do you believe the Fourth Amendment contains a probable 
cause standard?
    General Hayden. It clearly contains a probable clause 
standard for warrants to conduct searches. There's the broader 
phraseology. And I've actually talked to some of my relatives 
who are in law school at the moment about the construction of 
the amendment, which talks in a broad sense about 
reasonableness, and then, after the comma, talks about the 
probable cause standards for warrants.
    The approach we've taken at NSA is certainly not 
discounting at all, ma'am, the probable cause standard and need 
for probable cause for a warrant. But the standard that is most 
applicable to the operations of NSA is the standard of 
reasonableness--you know, is this reasonable?
    And I can elaborate a little bit more in closed session, 
but for example--for example--if we have a technology that 
protects American privacy up to point X in the conduct of our 
normal foreign intelligence mission, it is reasonable, and 
therefore we are compelled, to use that technology.
    When technology changes and we can actually protect privacy 
even more so with the new technology, ``reasonable'' just 
changed and we must go to the better technology for the 
protection of privacy. It's that reasonableness debate that 
informs our judgment.
    Senator Feinstein. Let me ask you, that ``reasonable'' 
standard is your standard. It's not necessarily the law because 
the Fourth Amendment very specifically states--in Judiciary, we 
had former FISA judges come before us. They said, in effect, in 
their court, the probable cause standard was really a 
reasonable suspicion standard.
    Now you're creating a different standard which is just, as 
I understand it, just ``reasonableness.''
    General Hayden. No, ma'am. I don't mean to do that. And 
Lord knows, I don't want to get deeply into this because, I 
mean, there are serious questions of law with people far more 
expert than I.
    To give an example, purely illustrative and hypothetical, 
NSA, in the conduct of its foreign intelligence work, 
intercepts a communication from a known terrorist, let's say, 
in the Middle East. And the other end of that communication is 
in the United States.
    One end of that communication involves a protected person. 
Everything NSA is doing is legal up to that point. It is 
targeting the foreign end. It has a legitimate reason for 
targeting it and so on.
    But now, suddenly, we have bumped into the privacy rights 
of a protected person. Now, no warrant is involved. We don't go 
to a court.
    Through procedures that have been approved by this 
Committee, we must apply a standard to protecting the privacy 
of that individual.
    And so we've touched the privacy of a protected person. But 
there are clear regulations held up to the reasonableness 
standard of the Fourth Amendment, but not the warrant 
requirement in the Amendment, ma'am.
    Senator Feinstein. Well, I'd like to debate that with you 
this afternoon, if I might.
    General Hayden. Sure.
    Senator Feinstein. Let me move to detention, interrogation 
and rendition.
    I'm very concerned that these practices create enormous 
long- term problems for our country. They cast shadows on our 
morality, our dedication to human rights and they disrupt our 
relations with key friends and allies.
    The Administration has stated that when it renders an 
individual to a third country for detention or interrogation, 
it obtains diplomatic assurances from that country that the 
suspect will not be tortured.
    What steps does the Administration take to verify 
compliance with such assurances after a detainee is rendered or 
transferred?
    General Hayden. Yes, ma'am. By law, we're required to make 
a judgment on the treatment that someone who is transferred to 
another sovereign power would get. In the legislative history 
of the law which we're following here, the requirement is a 
judgment that torture is less rather than more likely in the 
case involved.
    Clearly, if we received evidence, indications and so on 
that that had happened, that would impose additional 
responsibilities on us.
    Senator Feinstein. Well, what United States Government 
officials visit those sites to see if there is such evidence?
    General Hayden. Ma'am, the true answer is I don't know, and 
I'd be reluctant to try to speculate. I don't know.
    Senator Feinstein. In an interview with Time magazine 
published on April 12th, Director of National Intelligence John 
Negroponte said, ``The terrorist suspects held by the CIA in 
secret prisons are likely to remain incommunicado detention for 
as long as the war on terror continues.''
    As Principal Deputy to the DNI, is it your policy that 
individuals may be secretly detained for decades?
    General Hayden. Ma'am, I know there's been some broad 
discussion about this publicly. I know Secretary Rice has 
talked about our responsibilities under both U.S. and 
international law.
    Let me give you a full answer, ma'am, and let me give it to 
you in the closed session, but I would really be happy to 
answer your question.
    Senator Feinstein. Is there a periodic review of what 
useful and actionable intelligence can be gathered through 
interrogations and debriefings of terrorists that have been 
held with no contact with al-Qa'ida or other groups for years?
    General Hayden. Again, a more detailed response in closed 
session. Let me just hold it for closed, ma'am.
    Senator Feinstein. You can't say whether there's a periodic 
review?
    General Hayden. Ma'am, obviously we would do things for a 
purpose, and therefore the intelligence value of any activity 
we undertake would be a very important factor.
    But, again, I don't want to state or imply things that I 
should not in open session. So let me just hold it, and I will 
give you a very detailed answer in the closed session.
    Senator Feinstein. On March 17, 2005, Director Porter Goss 
stated to the Senate Armed Services Committee that 
waterboarding fell into ``an area of what I will call 
professional interrogation techniques.''
    Do you agree with that assessment? Do you agree with Mr. 
Goss's statement that waterboarding may be acceptable? If not, 
what steps have been taken or do you plan to take to correct 
the impression that may have been left with Agency employees by 
Mr. Goss' remarks?
    General Hayden. Yes, ma'am. Again, let me defer that to 
closed session, and I would be happy to discuss it in some 
detail.
    Senator Feinstein. Do you believe that the CIA is legally 
bound by the Federal anti-torture statute and the Detainee 
Treatment Act adopted last year?
    General Hayden. Yes, ma'am.
    Senator Feinstein. Does the President's signing statement 
affect CIA's compliance with this law?
    General Hayden. Again, ma'am, I don't want to get between 
Article I and Article II and the inherent tensions between 
those. But let me answer the question as the potential Director 
of the Central Intelligence Agency.
    The CIA will obey the laws of the United States and will 
respond to our treaty obligations.
    Senator Feinstein. Has the Agency received new guidance 
from the Department of Justice concerning acceptable 
interrogation techniques since the passage of the Detainee 
Treatment Act?
    General Hayden. Let me answer that in closed session, 
ma'am. But, again, I will be delighted to answer it for you.
    Senator Feinstein. The New York Times reported on November 
9, 2005, that in 2004 the CIA inspector general concluded that 
certain interrogation practices approved after the September 
11th attacks did constitute cruel, inhuman, and degrading 
treatment as prohibited by the Convention Against Torture.
    Do you agree with the IG's conclusion? And what corrective 
measures, in any, have been instituted in response to the IG's 
findings?
    General Hayden. Ma'am, again: More detailing in closed 
session. I would have to learn more about the IG's findings.
    In addition, again, the definitive statement as to what 
constitutes U.S. law and whether behavior comports or does not 
comport with U.S. law, I would look to the Department of 
Justice for guidance.
    Senator Feinstein. Ambassador Negroponte and other 
intelligence officials have estimated that Iran is some years 
away from a nuclear weapons capability. How confident are you 
of these estimates?
    General Hayden. Again, I would be happy to give additional 
detail in closed session. But I do want to say more about this 
in an open. Iran is a difficult problem. We call it a hard 
target. But I think it unfair to compare what it is we believe 
we know about Iran with what it is we proved to know or not 
know about Iraq. We have got a great deal of intelligence focus 
on the target. I would say that that judgment was given 
somewhere between medium and high confidence, ma'am.
    Senator Feinstein. Given the problems with estimates of 
Iraqi weapons of mass destruction, how can the American public 
being confident of the accuracy of estimates regarding Iranian 
plans and programs?
    General Hayden. Yes, ma'am, fair question. And we've got to 
earn confidence by our performance. We have to earn confidence 
by our performance. We have learned a lot of lessons from the 
Iraq WMD study. Many of the lessons you've documented for us.
    One key one that I wanted to mention when the Chairman was 
talking about it. The Iraq WMD estimate was essentially worked 
in a WMD channel. It was absent a regional or cultural context. 
We are not doing that now. It was looked at, almost, square-
cornered-wise, mathematically, ma'am, in terms of precursor 
chemicals or not, precursor equipment or not, absent, I think, 
a sufficient filter through Iraqi society and what we knew of 
it.
    We're not doing that on Iran. Besides the technical 
intelligence, there's a much more complex and harder to develop 
field of intelligence that has to be applied as well. How are 
decisions made in that country? Who are making those decisions? 
What are their real objectives?
    Senator Feinstein. One of the questions you answered in 
writing--No. 8, to be specific--asked what you thought are the 
greatest threats to our national security. And your response 
essentially restated Ambassador Negroponte's testimony before 
this Committee in February.
    I mean, I don't disagree with the Ambassador's statement, 
but do you have any independent or differing views on the 
threats we face?
    General Hayden. Well, in one sense, your legislation made 
it very clear that the Ambassador sets the priorities, and so 
on the face of it I don't recoil that my priorities look a lot 
like his.
    Five things come to mind--CT, No. 1, counterterrorism; 
counterproliferation; Iran; East Asia, Korea; and one that 
overarches all of them. We can't be surprised again.
    Senator Feinstein. OK
    Now, let me go to an issue, many Members of Congress are 
concerned----
    Chairman Roberts. Senator, I hate to do this, but there is 
a vote under way, and you will have ample time on a second 
round if we can do that.
    Senator Feinstein. Do I have time remaining?
    Chairman Roberts. Yes--well, no. But if you can wrap it up 
in 30 seconds or something like that, that would be helpful.
    Senator Feinstein. Can I just do it quickly?
    General Hayden. Yes, ma'am.
    Senator Feinstein. This is the uniformed active-duty 
presence. Have you thought about that? And could you share with 
us your decision?
    General Hayden. Sure--my current thinking.
    The concern that my being in uniform affects my thinking, 
my life affects my thinking. The fact I have to decide what tie 
to put on in the morning doesn't change who I am, one.
    Two, chain of command issues--nonexistent. I'm not in the 
chain of command now. I won't be in the chain of command there. 
I respond to Ambassador John Negroponte.
    Third, more important, how does my being an active-duty 
military officer affect my relationship with the CIA workforce? 
For want of a better term, since we're rushing here, ma'am, can 
I bond, and can they bond with me? That's the one that I think 
is actually a serious consideration. If I find that this gets 
in the way of that, I'll make the right decision.
    Senator Feinstein. Thank you.
    Thank you very much. Appreciate it.
    Senator Wyden. Mr. Chairman, did you say 1:30?
    Chairman Roberts. The Committee will stand in recess 
subject to call of the Chair. And we will resume the hearing at 
1:30. There is a vote right now, and we will take that time for 
lunch. And so would encourage all Members to come back at 1:30.
    General Hayden. Thank you, Mr. Chairman.
    [Whereupon, at 12:54 p.m., the Committee recessed, to 
reconvene at 1:30 p.m. the same day.]


                           AFTERNOON SESSION

                              [1:38 P.M.]

    Chairman Roberts. The Committee will come to order.
    The Committee will proceed with Members and their questions 
on a 20-minute timeframe. And the next Senator to be recognized 
is Senator Hatch.
    Senator Hatch.
    Senator Hatch. Well, General Hayden, there's been some 
commentary about the fact that you continue to wear the uniform 
that you have so proudly distinguished over your long, I think 
35-year career. Certainly, you're not the first Director of 
Central Intelligence to wear it.
    But let me just ask you directly, because I think this 
needs to be on the record. Let's say that you step out from 
your office for a moment, and then you return and 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?
    General Hayden. Yes, sir, that's pretty straightforward.
    Senator Hatch. That's straightforward, yes.
    General Hayden. Yes, sir. I work for the Ambassador, and so 
I would return his call.
    Senator Hatch. That's right. You're going to report to 
Ambassador Negroponte.
    General Hayden. Yes, sir.
    Senator Hatch. Now, let me add the Chairman of the 
Intelligence Committee.
    [Laughter.]
    General Hayden. Sir, I would set up a conference call.
    [Laughter.]
    Senator Hatch. And a more serious question--what does your 
military experience bring to this position should you be 
confirmed?
    General Hayden. Yes, sir.
    I mean, as you said, I'm proud of my military experience. 
It actually has been fairly broad. But if you stop and do the 
math, there's a big chunk of time--I actually stopped and did 
this over the weekend--more than 20 years in intelligence.
    And if you look at the career in another way, there's an 
awful lot of it with an interface to the civilian world--4 
years as an ROTC instructor, 2 years on the National Security 
Council staff, 2 years in an embassy behind the Iron Curtain.
    So I think, frankly, it's given me a pretty good 
background. In terms of the military aspect, has to do with 
leadership and management, the intelligence aspect, lots of 
experience. And working in a civilian environment is not going 
to be something that's foreign or alien to me.
    Senator Hatch. Thank you. There aren't too many people who 
can match you. In fact, I don't know of anybody really, and 
there are some pretty good people out there.
    I just got this letter that was directed to Speaker Denny 
Hastert as of yesterday's date, signed by Mr. Negroponte, 
Director Negroponte. Now, this letter says, ``I am responding 
on behalf of National Security Adviser Stephen Hadley to Ms. 
Pelosi's May 2, 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 Capitol, NSA or at the White House. A copy of the list 
is enclosed.''
    You remember those briefings.
    General Hayden. Yes, sir.
    Senator Hatch. You were there.
    General Hayden. Yes, sir.
    Senator Hatch. Well, it just said, on 25th of October 2001 
the Members of Congress who were briefed at that time were 
Porter Goss, Nancy Pelosi, Bob Graham and Richard Shelby.
    General Hayden. Yes, sir.
    Senator Hatch. Those were the Chair and Vice Chair of the 
Senate Intelligence Committee. And of course, Nancy Pelosi was 
the Ranking Minority Member over there and Porter Goss was then 
the Chair.
    General Hayden. Yes, sir.
    Senator Hatch. On November 14th, the same four were briefed 
again. Is that correct?
    General Hayden. That's right.
    Senator Hatch. On December 4th not only were the Members of 
the Intelligence Committee leadership briefed, but the Chair of 
the Senate Appropriations Committee, Daniel K. Inouye, Senator 
Inouye, and the Ranking Minority Member, Senator Ted Stevens 
were briefed, is that correct?
    General Hayden. Yes, sir.
    Senator Hatch. On March 5th, you again briefed Porter J. 
Goss and Nancy Pelosi and Richard Shelby--in other words, the 
people who were the leaders of the----
    General Hayden. Yes, sir. Senator Graham couldn't make that 
meeting, so we swept him up a week or two later.
    Senator Hatch. Yes, you did. On April 10th, Bob Graham got 
briefed on the same materials, I take it.
    Then on June 12th Porter Goss and Nancy Pelosi, the Chair 
and the Ranking Member over the House, were briefed again, 
right?
    General Hayden. Yes, sir.
    Senator Hatch. On the 8th of July 2002, the Chair and the 
Ranking Member, Bob Graham and Richard Shelby, were briefed?
    General Hayden. Yes, sir.
    Senator Hatch. OK. On January 29, 2003, again the leaders 
of the two intelligence Committees were briefed, Porter J. 
Goss, Jane Harman, Pat Roberts and John D. ``Jay'' Rockefeller 
IV?
    General Hayden. Yes, sir.
    Senator Hatch. OK. Then, on July 17, 2003, Porter Goss, 
Jane Harman, who was then Ranking Member, Pat Roberts and Jay 
Rockefeller were again briefed, is that correct?
    General Hayden. Yes, sir. That's right.
    Senator Hatch. Then on March 10, 2004, you briefed the 
speaker of the House, Denny Hastert, the Majority Leader of the 
Senate, William Frist, Bill Frist, the Minority Leader of the 
Senate, Tom Daschle, the Minority Leader of the House, Nancy 
Pelosi, the Chair and Ranking Member of the House and the Chair 
and Ranking Member of the Senate Intelligence Committee, is 
that correct?
    General Hayden. Yes, sir.
    Senator Hatch. Then on the 11th of March, 2004----
    General Hayden. Sir, the next day.
    Senator Hatch. Yes, the very next day you briefed the 
Majority Leader of the House. This is all on the warrantless 
surveillance program, right?
    General Hayden. Yes, sir.
    Senator Hatch. OK. Then on the 23rd of September, 2004, you 
briefed Peter Hoekstra, who's now the Chairman of the House 
Intelligence Committee.
    General Hayden. Right.
    Senator Hatch. Then on 3rd of February, 2005, you briefed 
Pete Hoekstra, Jane Harman, Pat Roberts, Jay Rockefeller, the 
leaders of the respective Intelligence Committees, right?
    General Hayden. Yes, sir.
    Senator Hatch. And then on the 2nd of March, 2005, you 
briefed Harry Reid, the Minority Leader of the Senate, right?
    General Hayden. Yes, sir.
    Senator Hatch. And on the 14th of September, again, the 
leaders of both Intelligence Committees--Hoekstra, Harman, 
Roberts and Rockefeller, right?
    General Hayden. Yes, sir.
    Senator Hatch. And I just thought I'd get this all on the 
record, because I don't think people realize the extent to 
which you and the Administration have gone to try and inform 
Congress, even though you've followed the past history where--
since Jimmy Carter--where you did it this way, right?
    General Hayden. Sure.
    Senator Hatch. On the 11th of January, again, the Members 
of the Intelligence Committees of both the House and Senate and 
Speaker Hastert, right?
    General Hayden. Yes, sir, and--yes, sir, that's right.
    Senator Hatch. And on the 20th of January, Harry Reid and 
Nancy Pelosi, Pat Roberts and Jane Harman, right?
    General Hayden. Yes, sir.
    Senator Hatch. On the 11th of February, 2006, Pat Roberts, 
our current Chairman.
    On the 16th of February, Denny Hastert and Pete Hoekstra, 
right?
    General Hayden. Yes, sir.
    Senator 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.
    General Hayden. Yes, sir.
    Senator Hatch. Right?
    General Hayden. Yes, sir.
    Senator Hatch. On March 3, 2006, you then briefed Jay 
Rockefeller individually, right?
    General Hayden. Yes, sir.
    Senator Hatch. OK. Then on March 9th, you briefed the seven 
members of this subCommittee that was formed.
    General Hayden. That's right.
    Senator Hatch. OK. And that included me.
    General Hayden. Yes, sir.
    Senator Hatch. OK. So the names were Roberts, Rockefeller, 
Hatch, DeWine, Feinstein, Levin and Bond.
    Then on the 10th of March you briefed Senator Bond by 
himself.
    Then, on the 13th of March, you briefed Pat Roberts, Dianne 
Feinstein and Orrin Hatch, right?
    General Hayden. Yes.
    Senator Hatch. OK.
    On the 14th of March, Mike DeWine, Senator DeWine.
    On the 27th of March, Carl Levin. Is that correct?
    General Hayden. Sir, I believe these latter ones now 
include visits to NSA, where they visited the Agency and had an 
extended period of time.
    Senator Hatch. That's right. In other words, all these 
people had familiarity with the warrantless surveillance 
program. And you made yourself available to answer questions 
and to make any comments that they desired for you to make that 
were accurate.
    General Hayden. Yes, sir.
    Chairman Roberts. Excuse me, Senator, on that last one, you 
may have missed, but the General indicated that was a trip out 
to the NSA so we could actually see how the program worked.
    Senator Hatch. Sure. OK.
    And then on March 29th, my gosh, you briefed Pete Hoekstra, 
Jane Harman, John McHugh, Mike Rogers, Mac Thornberry, Heather 
Wilson, Jo Ann Davis, Rush Holt, Robert E. ``Bud'' Cramer, Anna 
Eshoo and Leonard Boswell, all members of the HPSCI in the 
House, the Intelligence Committee in the House. Right?
    General Hayden. Yes, sir.
    Senator Hatch. And then on the 7th of April, 2006, you 
briefed Hoekstra, McHugh, Rogers, Thornberry, Wilson and Holt 
again.
    General Hayden. Yes, sir. I believe that that was actually 
a field trip to NSA for them.
    Senator Hatch. Well, that's fine, but my point is you were 
briefing them on this warrantless surveillance program.
    General Hayden. Yes, sir, that was the subject.
    Senator Hatch. And then on the 28th of April, you briefed 
Jane Harman, Heather Wilson and Anna Eshoo. Right?
    General Hayden. Yes, sir. Again, a trip to NSA.
    Senator Hatch. And then, finally, on May 11th, and you've 
had some briefings since, but this is the last I've got--May 
11th you briefed Bill Young and John Murtha who are both on the 
House Appropriations Committee.
    General Hayden. That's right.
    Senator Hatch. That sounds to me like you've made a real 
effort to try and help Members of Congress to be aware of what 
was going on.
    General Hayden. Sir, my purpose in the briefing was to be 
as complete and as accurate as possible.
    Senator Hatch. What's your purpose of this warrantless 
surveillance program? My gosh, are you just doing this because 
you just want to pry into people's lives?
    Senator Hatch. What's the purpose, if you can succinctly 
say?
    General Hayden. No, sir. It's not for the heck of it. We 
are narrowly focused and drilled down on protecting the Nation 
against al-Qa'ida and those organizations who are affiliated 
with al-Qa'ida.
    Senator Hatch. You wanted to protect American citizens from 
terrorists all over the world?
    General 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-
Qa'ida or affiliate connection. That's the only purpose for 
which it's used.
    Senator Hatch. And instead of saying you monitored the 
calls, what you did is you--this program only applied to 
foreign calls into the country or calls to known al-Qa'ida or 
suspected al-Qa'ida people outside of the country?
    General Hayden. Sir, in terms of listening or eavesdropping 
or whatever phrase is used in the public domain, what we call 
intercepting the call, 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-Qa'ida and one end of which is outside the United States.
    Senator Hatch. But isn't it true that the President had to 
reauthorize this program every 45 days?
    General Hayden. On average. It varied depending on 
schedules and his travel and so on. But on average, about 45 
days, yes, sir.
    Senator Hatch. How would you describe the classification of 
the warrantless surveillance program?
    General 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.
    Senator Hatch. Do you consider it one of the most serious 
classified programs in the history of the Nation?
    General Hayden. Yes, sir. I mean, 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.
    Senator Hatch. So this just wasn't monitoring calls of 
domestic people. This was monitoring calls into the country and 
out of the country to or from suspected affiliates of al-
Qa'ida.
    General Hayden. That's accurate. That's precisely accurate.
    Senator 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?
    General Hayden. I've said publicly--and I can demonstrate 
in closed session, how the physics and the math would work, 
Senator--that had this been in place prior to the attacks, the 
two hijackers who were in San Diego, Khalid 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.
    Senator Hatch. Now, the media--Senator Levin said it's 
phone calls, but the media has made that sound like you were 
intercepting phone calls. The fact of the matter is that--well, 
maybe I can't ask that question.
    Well, you said you always balance privacy rights and 
security rights.
    General Hayden. Yes, sir.
    Senator Hatch. But your major goal here was to protect the 
American people.
    General Hayden. Oh, sir, the only goal. I mean, let me 
narrow it down so it's very, very clear.
    This activity wasn't even used for any other legitimate 
foreign intelligence purpose. I mean, there are lots of 
reasons, lots of things that we need to protect the Nation 
against. This extraordinary authority given to us by the 
President didn't look left or didn't look right. It was al-
Qa'ida and affiliates.
    Senator Hatch. And you had specific rules and specific 
restraints, specific guards.
    General Hayden. Yes, sir.
    Senator Hatch. OK.
    Now, the distinguished Senator from Oregon said that you 
admitted you were wiretapping Americans. That's a pretty broad 
statement.
    General Hayden. Yes, sir.
    Senator Hatch. It certainly isn't true.
    General Hayden. Sir, we were intercepting the international 
calls entering or exiting the United States which we had reason 
to believe were associated with al-Qa'ida, is how I would 
describe it.
    Senator Hatch. And if I understand it correctly, when you 
could, you went to FISA and got warrants.
    General Hayden. There were other circumstances in which 
clearly you wanted more than coverage of international 
communications. And under this authorization, you would have to 
go to the FISA Court in order to get a warrant for any 
additional converge beyond what this authorization authorized.
    Senator Hatch. And FISA was enacted over 30 years ago.
    General Hayden. Yes, sir.
    Senator Hatch. And so FISA did not apply to some of the 
work you were doing.
    General 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 1978. But it reflects the 
technology and--- I need to add--and the threat as we knew it 
to be in 1978.
    The technology had changed. The threat had changed.
    The way I describe it, Senator, is I had two lawful 
programs in front of me, one authorized by the President, the 
other one would have been conducted under FISA as currently 
crafted and implemented. This one gave me this operational 
capability, this one gave me this operational capability.
    Senator 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.
    General Hayden. Of course not, sir. Again, we've made it 
clear throughout, though, that we would work to do it in a way 
that didn't unnecessarily reveal what it was we were doing to 
our enemies.
    Senator 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?
    General Hayden. Well, sir, I'd go back four and a half 
years.
    Senator Hatch. There's no way we can absolutely guarantee 
that we won't have another one.
    General Hayden. No, sir.
    Senator Hatch. But you're certainly doing everything you 
know how to do it.
    General 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 workforce, I'll repeat, we're going to keep 
America free by making Americans feel safe again.
    Senator Hatch. So as I've asked the question about Senator 
Wyden's comments, you really weren't wiretapping Americans 
unless it was essential to the national security interests of 
this country?
    General Hayden. Sir--and, again, it was international 
calls, and we had already established a predicate that that 
call would reveal information about al-Qa'ida.
    Senator Hatch. And you have always been able to monitor 
foreign calls?
    General Hayden. Oh, yes, sir.
    Senator Hatch. And there's never been any question.
    General Hayden. Foreign-to-foreign. And even in many 
circumstances, I suggested earlier this morning, a targeted 
foreign number that would happen to call the United States is 
incidental collection. There are clear rules that are created 
and approved by this Committee that tell us what it is we do 
with that information.
    Senator Hatch. Now, as I understand it, you were not 
monitoring domestic-to-domestic calls?
    General Hayden. No, sir.
    Senator Hatch. That was not your purpose?
    General Hayden. No.
    Senator Hatch. And that was an explicit direction by you 
and others to not do that.
    General Hayden. Oh, yes, sir. When we had the original 
conversations as to what NSA could do further, certainly that's 
what we talked about.
    Senator Hatch. OK. Now, General Hayden, one of the 
responsibilities of the DNI, as required by the Intelligence 
Reform and Terrorism Protection Act of 2004, was to set 
guidelines for the protection of sources and methods. Did you 
participate in the requirement of the DNI?
    General Hayden. Oh, yes, sir, we did.
    Senator Hatch. OK. Are these new guidelines in effect for 
the community and for the CIA?
    General Hayden. I do not know if they have been published 
yet. I'll have to get an answer for you.
    Senator Hatch. All right.
    What new approaches will you bring to protecting against 
illegal public disclosures from the CIA?
    General Hayden. Sir, I said in my opening comments that we 
need to get the Agency out of the news as source or subject, 
and both of those are very important.
    Let me tell you the really negative effects of it. I mean, 
obviously there are sources and methods effects, impacts. But 
you all asked me this morning about analysis and hard-edged 
analysis.
    Do you know how hard it is to stop an analyst from pulling 
his punches if he expects or fears that his work is going to 
show up in unauthorized, unwarranted public discourse in a 
couple of days or a week?
    Senator Hatch. That's right.
    General Hayden. You keep the hard edge by keeping it 
private.
    Senator Hatch. Let me just ask you one last question here. 
I've got a lot of others, but I think you've answered all of my 
questions well.
    General Hayden, you've spent enough time in the military to 
deeply appreciate that the military is a learning organization. 
When soldiers, marines, air men, sailors, Coast Guardsmen are 
not in combat, they are in training. Even in combat, every 
engagement is followed by a lessons-learned exercise. When not 
in combat, the military is constantly studying and training. 
The military, in short, is a learning organization.
    Now, do you believe that the CIA is a learning 
organization? Should it be? How often should officers be 
exposed to training and studies? What are the institutions of 
learning in the CIA? And do you foresee changing them?
    General Hayden. Yes, sir, a couple of aspects to that.
    No. 1, 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.
    Senator Hatch. Let me interrupt you for just a second and 
ask you just another one before my time runs out. In several 
parts of your testimony, you allow that ``lessons learned'' 
exercises are distracting or demoralizing, ``the archaeology of 
picking apart every past intelligence study or success.''
    Why would the CIA be any different from the military in the 
sense that you suggest?
    General Hayden. Oh no, I'm sorry to interrupt, but I didn't 
mean we wouldn't do lessons learned. That's absolutely 
essential.
    Senator Hatch. I understand. I'm just giving you a chance 
to make a comment.
    General Hayden. Yes, sir. As I said in my opening remarks, 
there's a downside to being so prominent, so much in the news, 
and I even allege--from time to time--we're the political 
football. And I would ask everyone involved in this Committee 
and others to allow us to focus on the important work and not 
overdo the retrospectives.
    Senator 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.
    Chairman Roberts. Without objection.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 31314.006
    

----------------------------------------------------------------------------------------------------------------
                                             Congressional Members
               Event date                           briefed                               Name
----------------------------------------------------------------------------------------------------------------
25-Oct-01...............................  Chair HPSCI................  Porter J. Goss.
                                          Ranking Minority Member      Nancy Pelosi.
                                           HPSCI.                      Bob Graham.
                                          Chair SSCI.................  Richard C. Shelby.
                                          Vice Chair SSCI............
14-Nov-01...............................  Chair HPSCI................  Porter J. Goss.
                                          Ranking Minority Member      Nancy Pelosi.
                                           HPSCI.                      Bob Graham.
                                          Chair SSCI.................  Richard C. Shelby.
                                          Vice Chair SSCI............
4-Dec-01................................  Chair Senate Appropriations  Daniel K. Inouye.
                                           Committee, Defense
                                           Subcommittee.
                                          Ranking Minority Member      Ted Stevens.
                                           Senate Appropriations
                                           Committee. Detense
                                           Subcommittee.
5-Mar-02................................  Chair HPSCI................  Porter J. Goss.
                                          Ranking Minority Member      Nancy Pelosi.
                                           HPSCI.                      Richard C. Shelby.
                                          Vice Chair SSCI............
10-Apr-02...............................  Chair SSCI.................  Bob Graham.
12-Jun-02...............................  Chair HPSCI................  Porter J. Goss.
                                          Ranking Minority Member      Nancy Pelosi.
                                           HPSCI.
8-Jul-02................................  Chair SSCI.................  Bob Graham.
                                          Ranking Minority Member      Richard C Shelby.
                                           SSCI.
29-Jan-03...............................  Chair HPSCI................  Porter J. Goss.
                                          Ranking Minority Member      Jane Harman.
                                           HPSCI.                      Pat Roberts.
                                          Chair SSCI.................  John D. ``Jay'' Rockefeller IV.
                                          Vice Chair SSCI............
17-Jul-03...............................  Chair HPSCI................  Porter J. Goss.
                                          Ranking Minority Member      Jane Harman.
                                           HPSCI.                      Pat Roberts.
                                          Chair SSCI.................  John D. ``Jay'' Rockefeller IV.
                                          Vice Chair SSCI............
10-Mar-04...............................  Speaker of the House.......  J. Dennis Hasten.
                                          Majority Leader of the       William H. Frist.
                                           Senate.                     Tom Daschle.
                                          Minority Leader of the       Nancy Petosl.
                                           Senate.                     Porter J. Goss.
                                          Minority Leader of the       Jane Harman.
                                           House.                      Pat Roberts.
                                          Chair HPSCI................  John D. ``Jay'' Rockefeller IV.
                                          Ranking Minority Member
                                           HPSCI.
                                          Chair SSCI.................
                                          Vice Chair SSCI............
11-Mar-04...............................  Majority Leader of the       Tom DeLay.
                                           House.
23-Sep-04...............................  Chair HPSCI................  Pete Hoekstra.
3-Feb-05................................  Chair HPSCI................  Pete Hoekstra.
                                          Ranking Minority Member      Jane Harman.
                                           HPSCI.                      Pat Roberts.
                                          Chair SSCI.................  John D ``Jay'' Rockefeller IV.
                                          Vice Chair SSCI............
2-Mar-05................................  Minority Leader of the       Harry Reid.
                                           Senate.
14-Sep-05...............................  Chair HPSCI................  Pete Hoekstra.
                                          Ranking Minority Member      Jane Harman.
                                           HPSCI.                      Pat Roberts.
                                          Chair SSCI.................  John D. ``Jay'' Rockefeller IV.
                                          Vice Chair SSCI............
11-Jan-06...............................  Speaker of the House.......  J. Dennis Hastert.
                                          Majority Leader of the       William H. Frist.
                                           Senate.                     Pete Hoekstra.
                                          Chair HPSCI................  Pat Roberts.
                                          Chair SSCI.................  John D. ``Jay'' Rockefeller IV.
                                          Vice Chair SSCI............
20-Jan-06...............................  Minority Leader of the       Harry Reid.
                                           Senate.                     Nancy Pelosi.
                                          Minority Leader of the       Pat Roberts.
                                           House.                      Jane Harman.
                                          Chair SSCI.................
                                          Ranking Minority Member
                                           HPSCI.
11-Feb-06...............................  Chair SSCI.................  Pat Roberts.
16-Feb-06...............................  Speaker of the House.......  J. Dennis Hastert.
                                          Chair HPSCI................  Pete Hoekstra.
28-Feb-06...............................  Chairman, House              C.W. Bill Young.
                                           Appropriations Committee,
                                           Defense Subcommittee.
                                          Ranking Minority Member,     John Murtha.
                                           House Appropriations
                                           Committee, Defense
                                           Subcommittee.
3-Mar-06................................  Vice Chair SSCI............  John O. ``Jay'' Rockefeller IV.
9-Mar-06................................  Chair SSCI TSP subcommittee  Pat Roberts.
                                          Vice Chair SSCI TSP          John D. ``Jay'' Rockefeller IV.
                                           subcommittee.               Orrin G. Hatch.
                                          Member SSCI TSP              Mike DeWine.
                                           subcommittee.               Dianne Feinstein.
                                          Member SSGI TSP              Carl Levin.
                                           subcommittee.               Christopher S. ``Kit'' Bond.
                                          Member SSCI TSP
                                           subcommittee.
                                          Member SSCI TSP
                                           subcommittee.
                                          Member SSCI TSP
                                           subcommittee.
10-Mar-06...............................  Member SSCI TSP              Christopher S. ``Kit'' Bond.
                                           subcommittee.
13-Mar-06...............................  Chair SSCI TSP subcommittee  Pat Roberts.
                                          Member SSCI TSP              (Dianne Feinstein.
                                           subcommittee.               Orrin G. Hatch.
                                          Member SSCI TSP
                                           subcommittee.
14-Mar-06...............................  Member SSCI TSP              Mike DeWine.
                                           subcommittee.
27-Mar-06...............................  Member SSCI TSP              Carl Levin.
                                           subcommittee.
29-Mar-06...............................  Chairman HPSCI TSP group...  Pete Hoekstra.
                                          Ranking Minority Member      Jane Harman.
                                           HPSCI TSP group.            John McHugh.
                                          Member HPSCI TSP group.....  Mike Rogers (MI).
                                          Member HPSCI TSP group.....  Mac Thomberry.
                                          Member HPSCI TSP group.....  Heather Wilson.
                                          Member HPSCI TSP group.....  Jo Ann Davis.
                                          Member HPSCI TSP group.....  Rush Holt.
                                          Member HPSCI TSP group.....  Robert E. ``Bud'' Cramer.
                                          Member HPSCI TSP group.....  Anna G. Eshoo.
                                          Member HPSCI TSP group.....  Leonard Boswell.
                                          Member HPSCI TSP group.....
7-Apr-06................................  Chairman HPSCI TSP group...  Pete Hoekstra.
                                          Member HPSCI TSP group.....  John McHugh.
                                          Member HPSCI TSP group.....  Mike Rogers (MI).
                                          Member HPSCI TSP group.....  Mac Thomberry.
                                          Member HPSCI TSP group.....  Heather Wilson.
                                          Member HPSCI TSP group.....  Rush Holt.
28-Apr-06...............................  Ranking Minority Member      Jane Harman.
                                           HPSCI TSP group.            Heather Wilson.
                                          Member HPSCI TSP group.....  Anna G. Eshoo.
                                          Member HPSCI TSP group.....
11-May-06...............................  Chairman, House              C.W. Young.
                                           Appropriations Committee,
                                           Defense Subcommittee.
                                          Ranking Minority Member,     John Murtha.
                                           House Appropriations
                                           Committee, Defense
                                           Subcommittee.
----------------------------------------------------------------------------------------------------------------

    Chairman Roberts. Senator Warner, with your indulgence and 
my colleagues' indulgence, I misspoke earlier and 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 3 years ago. I'd like that to be corrected.
    But the thought occurs to me, as you go down the list of 
people who were briefed--and I'm just going to mention a few 
here: Ted Stevens, Dennis Hastert, Nancy Pelosi, Bob Graham, 
Dick Shelby, Jay Rockefeller, John Murtha, Harry Reid--these 
are not shrinking violets.
    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?
    General Hayden. Sir, again, I don't want to get into 
private conversations, but, to generalize, questions asked and 
answered, concerns raised and addressed--and I can tell you, in 
my heart of hearts, Senator, I never left those sessions 
thinking I had to change anything.
    Chairman Roberts. Well, did anybody say, at any particular 
time, that the program ought to be terminated?
    General Hayden. No, sir.
    Chairman Roberts. That it was illegal?
    General Hayden. No, sir.
    Chairman Roberts. There was, as I recall, a conversation on 
the necessity of, perhaps, to fix FISA--if that's not an 
oxymoron--to improve FISA, to reform FISA. And that is an 
ongoing discussion in this Committee and in the Judiciary 
Committee.
    And my memory is that it was Members of Congress who gave 
you advice not to do that. Is that correct?
    General Hayden. Sir, that was in the large group in March 
of 2004. And there were discussions. FISA was considered to be 
one of the ways ahead. And my memory of the conversation is 
that there were concerns, I would say, almost universally 
raised, that it would be very difficult to do that and maintain 
the secrecy which was one of the advantages of the program.
    Chairman Roberts. There was in fact, during these 
briefings, pretty much a unanimous expression of support. Is 
that correct?
    General Hayden. Sir, again, I'm reluctant to characterize 
Members. But, again, the issues raised, any concerns answered, 
questions answered--we all left knowing we had our jobs to do. 
And I came away with no course corrections.
    Chairman Roberts. Now, these are the private conversations 
that went on with the briefings?
    General Hayden. Yes, sir.
    Chairman Roberts. Were you surprised at the public 
statements expressing concern and opposition and other 
adjectives and adverbs that I won't get into?
    General Hayden. Sir, I was--I'm reluctant to comment, 
Senator.
    Chairman Roberts. Seems like there's a little bit of 
disingenuous double-talk going on here for some reason, and 
I'll just leave it at that.
    Senator Warner.
    Senator Warner. Thank you, Mr. Chairman.
    May I say I think this has been an excellent hearing thus 
far, and the Chair and others should be commended.
    General, I have the privilege of knowing you for so many 
years, have worked with you. You have my strongest support. And 
I wish you an your family well. I know how important 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.
    General Hayden. Thank you.
    Senator Warner. The fact that you will continue in uniform 
certainly doesn't in any way, I think, denigrate from your 
ability--if anything it enhances it--as you continue your work. 
People who say that the intelligence should be headed by a 
civilian are reminded that the DNI is a civilian.
    General Hayden. Yes, sir.
    Senator Warner. General, I awakened this morning, as 
others, to listen to the early, early reports on this 
proceeding. And there was a gent on there, I think he was with 
the 9/11 Commission, talking about how the morale is at the 
Agency has just hit rock bottom.
    Well, I'm proud to say that in my 28 years here in the 
Senate, and 5 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 at rock bottom.
    Do you have any assessment of it?
    General 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 3 months.
    I do find that the folks in the field are very highly 
motivated, operationally focused. And in a way we unfortunately 
can't describe to the public, some great successes are going 
on.
    Senator Warner. No question about it. And having had this 
long association with them, it is clearly one of the most 
remarkable collection of professionals, dedicated 
professionals, to be found anywhere in Government service.
    But are there some steps you feel you're going to have to 
take when you hopefully cross the threshold here in a matter of 
days?
    General Hayden. Yes, sir. I mentioned some things with 
regard to analysis and collection and S&T this morning. I think 
most important is to just get the Agency on an even keel, just 
settle things down. With all the events, Lord knows, of the 
past several weeks, it can't be a pleasant experience for the 
folks out there despite, as you point out, their continued 
dedication.
    So I actually think, if I'm confirmed and I go out there, I 
would intend to spend an awful lot of my waking moments for 
some period of time just getting around and seeing and being 
seen.
    Senator Warner. I commend you on that. Stick with that even 
keel. For an Air Force general, to use a naval term----
    General Hayden. Yes, sir.
    Senator 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 in the Pentagon where the Navy and Marine Corps 
personnel were. And it paid off great dividends.
    I agree with you. The morale is strong and they are doing 
their job, and they'll continue to do it. And you provide that 
strong leadership.
    That brings me to the next question. It's a little tough. 
But our national security, as it relates to the executive 
branch, of course, as the President and his team, the 
Secretaries of State and Defense, Homeland Security, the 
Department of Justice, and then there's the department, now the 
Department of DNI, Negroponte's outfit, of which you will be a 
part.
    And I really think your opening statement was very well 
done. You paid respect to Porter Goss, which I think was highly 
deserving. We've all known him, worked with him through the 
years. The Chairman served with him in the House.
    He and I set up a commission about a dozen years ago, at a 
time when the Congress was looking at possibly abolishing the 
CIA. And that commission I think successfully rediverted that 
action, and we're where we are today with a strong CIA.
    And you said, in a word, the CIA remains, even after the 
Intelligence Reform Act, central to American intelligence and 
other statements in here which I was very pleased to read.
    But we cannot lose sight of the fact that--I was visited by 
Director Goss in the month of April, by Director Negroponte, 
just talking general things with him--and then we awakened one 
morning to this resignation, at a time when this country is at 
war, and one of the major pillars of our security team, now the 
Director stepping down.
    What can you tell us about--I'm not going into all of the 
perhaps differences in management style and so forth. But was 
there something that the DNI and yourself--you were the deputy; 
presumably he shared with you--felt that wasn't going right? 
And what steps are you going to take to correct that?
    I read through your opening statement about all the things 
you intend to do. But I go to the narrower question, there had 
to be some actions which said tilt and the President had to 
step in and make his decisions.
    General Hayden. Yes, sir.
    Senator Warner. What is it, when you hit that deck, that 
you are going to do that was not being done, in your judgment, 
either according to law or otherwise?
    General Hayden. Well, Senator, I mean, Director Goss had a 
tremendous challenge. He had transformation that everyone's 
talked about within an agency, and then he had to adjust that 
agency's relationship with the broader intelligence community. 
That's really heavy lifting.
    He was moving along both tracks. And I'm not privy to 
decisions that were made a few weeks ago and announcements that 
were made and so on, but was asked by the President would I be 
willing to serve as Director.
    The next Monday the President made that announcement in the 
Oval Office, and I said a few words at that time along the 
lines of standing on the shoulders of those who went before me.
    I mean, I'm not Porter; I'm different from him. I'll 
probably end up doing some things differently. But I'm not 
going out there repudiating him or what he was trying to do. 
Frankly, I just want to look forward. I'll assess the situation 
and move on.
    Senator Warner. We need not be concerned because, under the 
Constitution, we are acting, on the President's request, on 
your nomination to fill that vacancy. And we want to rest 
assured, when we do fill that vacancy, whatever omissions, 
commissions or otherwise were taking place to justify this, are 
corrected.
    And you'll assure us that that will be done.
    General Hayden. Yes, sir.
    Senator Warner. Perhaps in closed session, you can amplify 
on that.
    The distinguished Chairman of the House Armed Services 
Committee said the following the other day with regard to Iran. 
And it really caught my eye. And he'd said there--the question 
was, ``How close is Iran to actually developing a nuclear 
weapon?'' ``I'd say we really don't know. We're getting lots of 
mixed messages. Obviously, we're getting lots of different 
messages from their leadership, the stuff they say in public.''
    Then he went on to say, ``Hey, sometimes it's better to be 
honest and to say there's a whole lot we don't know about Iran 
that I wish we did know. As we and the public policymakers need 
to know that, as we're moving forward and as decisions are 
being made on Iran, we don't have all the information that we'd 
like to have.''
    Now, I'm not asking you to agree or disagree, but that's a 
very forceful public statement and acknowledgment.
    Yesterday, a group of us had a chance to speak to the DNI. 
And that question was addressed by the DNI. But America's 
greatly worried about Iran. It poses, in my judgment, the 
single greatest risk, not just to this country but to a whole 
region and indeed much of the free world.
    What can you tell us, in open, will be some of your initial 
steps to strengthen that collection of intelligence as it 
relates to Iran?
    General 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.
    Senator Warner. Fine. I just wanted to have the public hear 
that you're going to put that down as your top priority. I 
misspoke. Of course, Hoekstra is the Chairman of the House 
Select Committee on Intelligence there.
    Let's turn to another issue. And that is, do you plan to 
have any significant large numbers of transferred personnel 
from CIA to the DNI?
    General Hayden. Sir, the only thing that's on the table--
and thank you for asking this, because there are a few urban 
legends out there 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 is going to be dismantled or the DI is going 
to be moved, there are no thoughts, let alone plans, to do 
that.
    And the amount of movement within the counterterrorism 
analytical forest is going to be measured in doubled digits, 
not triple digits.
    Senator Warner. In other words, less than 100 people.
    General Hayden. Oh, yes, sir.
    Senator Warner. Well, you said in your opening statement 
that, ``The CIA must remain the U.S. Government's center of 
excellence for the independent all-source analysis,'' and I 
agree with that.
    Now, my understanding that our distinguished colleague and 
former colleague, Mr. Goss, Porter Goss, was endeavoring to 
retain a strong counterterrorism analysis capability internally 
to the CIA. Do you intend to continue that initiative?
    General Hayden. Yes, sir. But, frankly, that's the friction 
point that generated your previous question.
    Senator Warner. The question being his resignation.
    General Hayden. No, sir. No, not that. With regard to----
    Senator Warner. Because I know it was an issue.
    General Hayden [continuing]. Moving analysts.
    Yes, sir, an issue. It's something we have to resolve.
    Right now, in the counterterrorism center at CIA, you have 
a wonderful group of people performing magnificently. By 
legislation and, I think, by logic, the National 
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 tasks and do that without in any 
way cracking the magnificent synergy we now have between DO and 
DI inside the CIA, with analysts in direct support of 
operations.
    That's the problem, Senator.
    Senator Warner. That's a very helpful clarification.
    And in that context, you have, I think, only one reporting 
chain, and that's the DNI? Is that correct?
    General Hayden. Yes, sir, that is correct.
    Senator Warner. No other reporting chains directed to the 
White House?
    General Hayden. No other--I'm sorry?
    Senator Warner. No other reporting chains directed to the 
White House?
    General Hayden. Sir, there is a little bit with regard to 
the additional activities in the legislation. In terms of all 
the intelligence functions, it's 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.
    Senator Warner. So you have a direct chain to Negroponte, 
and at times you work in conjunction with him?
    General Hayden. Yes, sir, that's how I would describe it.
    Senator Warner. And that's a workable situation?
    General Hayden. Yes, sir.
    Senator Warner. On the question of the chiefs of stations, 
they're are remarkable individuals all over the world. And I 
think most of us who travel make a point of visiting with the 
chiefs of station on our various trips. Are the chiefs of 
station abroad representatives of the DNI or the Director of 
Central Intelligence?
    General Hayden. Senator, all of the above.
    Senator Warner. Do they have a dual reporting chain?
    General Hayden. They do. For community functions, they 
report to the DNI. For Agency functions, they report to the 
Director of CIA.
    Senator Warner. And that won't pose any problems for you?
    General Hayden. It should not, no, sir.
    Senator 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, I've gone through it, and they have a whole section in 
here relating to ending the turf war between the Bureau, FBI, 
and the CIA.
    Can you bring us up to date on where you are in assessing 
that issue?
    General Hayden. No. 1, we've created the National Security 
Branch inside the FBI. And the funding and the tasking for that 
come from the DNI, come from Ambassador Negroponte. So that's 
one reality that's different since the publishing of the 
report.
    Secondly, the Ambassador has assigned to the Director of 
CIA the function of national HUMINT manager. So with regard to 
training and standards and deconfliction and coordination, the 
national HUMINT manager does have a role to play with human 
intelligence as conducted by the FBI and as conducted by the 
Department of Defense.
    Senator Warner. Do you have a liaison from the Bureau in 
your office out at the Agency?
    General Hayden. Senator, I am a little unclear whether he 
is there or is about to get there, but the deputy----
    Senator Warner. But it is being done.
    General Hayden [continuing]. Of the community HUMINT 
office, the senior there is a Marine two-star, the former head 
of the Defense HUMINT Service. And the expectation is, if it's 
not the reality, his deputy will be from the Bureau.
    Senator 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?
    General Hayden. Yes, sir.
    Is this the one with the Bureau or the one with the 
Department?
    Senator Warner. With the Bureau.
    General Hayden. With the Bureau, yes, sir.
    Senator Warner. You intend to continue that?
    General Hayden. Yes, sir.
    Senator Warner. That covers that subject.
    On the question of the national HUMINT manager, now, look 
here, we had a discussion earlier today about the Army Field 
Manual. And I and Senator McCain and Senator Graham and others 
have worked on that issue for some time. We're continuing to 
work on a regular basis with the Department of Defense as to 
the promulgation, the procedures and so forth.
    But there's a question of how the Agency intends to 
presumably continue its interrogation process, and indeed 
perhaps get into detainees.
    Now, if I understand it, earlier in this testimony you said 
that you fully intend--that is the Agency--to comply with the 
basic standard of not involving in any cruel or inhuman or 
degrading treatment. I understand that.
    But there's a whole manual out here guiding the men and 
women in uniform. Should there not be a companion manual 
guiding the civilians who will be performing much of this task?
    General Hayden. Senator, speaking in generalities now and 
perhaps more detail in a closed session, absolutely.
    I mean, one of the key things that--I used 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.
    Senator Warner. That's clear.
    General Hayden. So it's got to be clear, specific, written 
for all the activities.
    Senator Warner. Understood. But will there be any 
differences in how these interrogations are----
    General Hayden. Yes, sir. I don't want to----
    Senator Warner. Either uniform side or the civilian side.
    General 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, inhuman, degrading'' parts of the statute 
apply to any agency of the government.
    So I think even the statute envisions that there may be 
differences.
    Senator Warner. All right. Well, we'll be looking at that 
very carefully, because we'll have to explain to our 
constituents and others if, in fact, there is a significant 
difference, the basis for it.
    I happen to be a great champion of the science and 
technology. I think few people realize that you have a 
magnificent setup out there that are devising all types of 
devices to not only do the work of your agency, but they have 
parallel uses by other departments and agencies. Indeed, some 
of it may be incorporated in the advancements we're going to 
take in the border security.
    So tell us about the emphasis that you'll put on that. I 
look upon that as one of the four stools of the Agency.
    General Hayden. Yes, sir. Absolutely.
    A remarkable record of success, maybe enabled by 
legislation that gives the CIA a bit more freedom of action 
when it comes to these kinds of things, not quite--I don't want 
to say rule-bound, but let's say administrative-burden-bound.
    And I need to learn more about it, and what their current 
focus might be. I said in my opening comments, though, job one 
is that S&T activity supporting two of the other key pillars of 
the Agency--the human collection and the analysis.
    Senator Warner. All right. Well, I'm delighted to hear 
you'll put emphasis on that.
    Lastly, in your statement you said, ``We must set aside the 
talent and energy to take the long view and not just chase our 
version of the current news cycle.'' I agree with that.
    What steps will you do to impress on the Agency they need 
that? You see how these people have followed a course of action 
which was extraordinary for many years throughout the history, 
and you've got to change, I suppose, some of the old, 
entrenched beliefs and work styles. And this is one of them.
    General 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. And it's understandable. It's legitimate.
    So I think, left to itself, there will be so much 
gravitational pull to the close term that you'll really have to 
expend energy to push the field of view out. And that's what's 
going to be required.
    Senator Warner. Good luck.
    General Hayden. Thank you, sir.
    Senator Warner. Take care of those people out there.
    General Hayden. Yes, sir.
    Senator Warner. Or I'll be knocking on your door.
    General Hayden. Yes, sir, I know.
    Senator Warner. Thank you very much.
    Chairman Roberts. Senator Hagel.
    Senator Hagel. Mr. Chairman, thank you.
    General Hayden, welcome. We are most grateful to you and 
your family for your almost 40 years of distinguished service 
to this country. And we look forward to many more years of this 
same quality of service. And we are not unmindful of the toll 
it takes on a family. So thank you. And thank you for your 
family being here today.
    I was impressed with your opening statement, General 
Hayden, because I think it reflects clearly the kind of world 
that we live in today. It is a world of grand transformation.
    As you have catalogued, not only your priorities--and I'd 
like to explore some of these points that you made in a little 
more detail, as has been done already for the past few hours 
here today--I think it encompasses and frames the larger 
picture of what you will be dealing with as the new CIA 
Director. But also it pulls, like all of us, from our 
experiences and our conditioning and our molding and shaping 
and the product that we have before us in a four star Air Force 
general who is the preeminent intelligence officer in our 
government.
    And that accumulation of experience and knowledge and 
mistakes in judgment has brought you to this point.
    It has been my belief, and I think it's reflected in the 
polls--people read the political polls sometimes with only the 
politics in mind--but the polls today in America say to me, 
General Hayden, that Americans have essentially lost confidence 
in their government.
    They've lost confidence in us, those who govern, those who 
have the privilege and responsibility.
    When the President's poll numbers are as low as they are, 
when the Congress' approval ratings are lower than the 
President's--I don't know if that comforts the President or 
not--but nonetheless it is beyond politics, because politics is 
the avenue that we use to arrive at leaders and the shaping of 
policy and therefore the direction of a country.
    And that's what these poll numbers are telling us--that 
America has lost confidence in the leadership of this country. 
We all have some responsibility, Democrats, Republicans, the 
White House, all of us.
    So I was particularly struck by one of your points in your 
testimony about emphasis on trust. And you and I had a very 
good conversation in my office last Friday about this issue and 
others.
    And at a time when I believe we are still reeling from what 
happened on September 11, 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 and 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 you, in 
response to some of the questions here, talked about--if I have 
it about right--``We will not defeat international terrorism 
without a very clear relationship with our international 
partners''--something to that extent.
    So let me begin there, because I happen to believe that it 
is not a matter of how many Marines and infantrymen we can 
place around the world that will defeat extremism and terrorism 
and these threats of the 21st century--proliferation, which I 
will get to in a moment.
    But the core of this, the hub of this is what you are about 
and what the intelligence community and our country and the 
world is about--a seamless network that you mentioned, not only 
within our community here in the United States, but that same 
kind of seamless network with our international relationships, 
to stop these things before they occur, to start picking them 
off where it counts, really counts.
    And then, of course, you get into the next, outer circle of 
that, which you all have some responsibility for, too, but 
can't find solutions to all of it, and that is what causes 
these kinds of things, what is the underlying cause--not 
simple, complicated--despair, poverty, endemic health issues. 
We know how those accumulate to bring us to the point we are 
today.
    If you could enlarge upon your comments and your testimony 
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.
    General Hayden. I think the first requirement is just a 
sense of focus, I mean, just paying attention to it.
    I learned in my job at NSA--and 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're 
looking for--and I don't want to overstate this because it 
sounds too arrogant--but they're looking for some sense of 
leadership, some sense of direction, some sense of direction 
around which they can organize their own sovereign efforts.
    I think you just plain have to pay attention to them, 
listen to them and understand, and although in most cases there 
will be great disparities of resources and power, to afford 
them the treatment as an equal in some respect.
    So I think that can be done. I think that's absolutely 
valuable. And I think our friends and allies would 
enthusiastically welcome that. And so I'll just try to 
reinforce what we already have.
    Inside our government, we've probably got two concentric 
circles to worry about. One is the intel community itself. And 
I actually think we've made some good progress there, but as I 
think Senator DeWine mentioned earlier this morning about 
sharing and technology and it's really policy, and, frankly, I 
think I responded you just have to get on with it. So that's 
the second.
    And then the larger concentric circle is between the intel 
community and the other parts of the U.S. security 
establishment--DOD, especially Homeland Security, the law 
enforcement aspects of the FBI and so on.
    I kept using sports metaphors in my prepared comments, but 
I really do mean it. You have to play team ball here. And that 
requires everyone to play position and not crowd the ball. You 
know, the ball will come to you directly, just play your 
position. And then focus on the scoreboard, not on individual 
achievement, an individual agency or Cabinet-level department.
    Sorry, Senator, that sounded more like a sermon than a work 
plan, but that's the approach. And I think a lot of it is 
attitudinal.
    Senator Hagel. I happen to believe everything is about 
attitude.
    You might recall that when you were before this Committee 
when we held a confirmation hearing for the current job that 
you have, the Deputy Director of National Intelligence, I asked 
you about your plans for bolstering the energy, strength, 
teamwork and culture of excellence in the organizations that 
make up the intelligence community.
    And I want you to address that, if you will. And I know you 
have alluded to it in your answers to some of the questions 
today, but specifically, the culture of excellence--you have 
used that term; I happen to agree with that term--within our 
intelligence community, within the CIA, how do you, not 
necessarily resurrect that; I don't think we've lost that, but 
I think it's been tarnished. And there is a corrosive dynamic, 
and you've alluded to that. It's as a result of many things.
    But I want you to also focus on the next generation. What 
will you particularly be going to focus on this next generation 
of CIA leaders that this country and the world is going to 
need?
    General 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 4 years service. They now 
make up a significant portion of the population.
    So here's a group--if we pay attention to the lessons-
learned studies and your WMD review and all the other things--
these are folks who are not going to have to unlearn something. 
They'll be coming into this with a tested approach, one that's 
been improved. So there's the opportunity.
    Now here's the bad news: For every individual--and I'll use 
the Agency's analytic force and I'll just have to use 
comparisons rather than absolute numbers because of 
classification--for every 10 individuals we have in the 
analytic force with 1 to 4 years service, we only have one with 
10 to 14 years of service.
    We don't have any shop stewards or foremen. We've got 
senior leaders and we got workers, but that middle layer of 
management is very, very thin.
    Senator Mikulski. Mr. Chairman, excuse me, could the 
General repeat those numbers? I had a hard time hearing those 
numbers.
    General Hayden. Yes, ma'am.
    Again, I can't get into the specific numbers because at 
CIA, unlike NSA, they're classified population numbers.
    But for every--I'm talking about the analysts, all right. 
For every 10 analysts with fewer than 4 years service, we only 
have one experienced analyst between 10 and 14 years of 
service.
    So what you end up with, again, is you don't have any shop 
stewards that should be doing the coaching and mentoring. And 
so here we have this great opportunity, new population, lessons 
learned, but the demographics are all wrong. And that's just 
going to take a lot of work and a lot of energy to turn the 
advantage into true advantage with this new population.
    It's very interesting. This is the youngest analytic 
workforce in the history of the Central Intelligence Agency. 
Put in more disappointing language, this is the least 
experienced analytic workforce in the history of CIA.
    Senator 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, 
a big advantage.
    General Hayden. Yes, sir.
    Senator Hagel. A huge advantage, and we must not squander 
that.
    General 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.
    Senator Hagel. Let me ask a question on--in fact, you were 
responding to one of Senator Warner's questions about this--the 
National Counterproliferation Center. In light of, for example, 
the agreement that the President signed with India--and I was 
just in India last month and spent some time, as well as 
Pakistan, with the government leaders and private industry 
leaders--explain to this Committee, in your view, how this 
center will impact and help shape future arrangements, not just 
using the India-U.S. agreement, but proliferation of weapons of 
mass destruction.
    I don't have to tell you, no one has to tell you that that 
represents really the greatest threat to mankind in the 21st 
century. So how are we going to use the center?
    General 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 at about 60, 65. They're not a 
source of independent analysis. They're the mission managers. 
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 on Iranian WMD? 
Who's in charge, the Iranian mission manager or the NCPC, the 
counterproliferation mission manager?
    Because of what this Committee has--in addition to what 
other sources have told us about the Iraq analysis, which was, 
I will say, perhaps culturally deficient and technologically 
heavy--that's a cartoon, and probably unfair to a lot of 
people, but there's an element of truth in there.
    Because of what we learned there at those intersections, 
it's the area mission manager that gets the final call. That's 
kind of the dynamic that we've set in place for NCPC, Senator.
    Senator 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, ``Help me understand where to draw the line 
between liberty and security.'' And this was in the broader 
framework line of questioning that we've heard a lot about 
today, important, as you have recognized many times.
    And I appreciated that statement for many reasons. The 
Chairman just talked a little bit about rewriting the FISA law. 
I don't think there's anyone who questions that. We do need to 
give the intelligence community a new framework to work within, 
assuring that what you and all the professionals are doing, you 
don't have to go to the attorneys every hour--``Is this legal 
or not legal, can we do it, can we not do it?''--but let you do 
your jobs.
    That's our responsibility as policymakers, to give you that 
new framework. We're going to need input from you----
    General Hayden. Right.
    Senator Hagel [continuing]. 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. 
It has to be done. And we are paying attention to it.
    But we're going to need some guidance from you. Here's an 
opportunity, General Hayden, to lay some of that out, if you 
care to give us some of your thoughts on how do we rewrite a 
law that does what you need to do and protects the interest of 
our country as well.
    General Hayden. Yes, sir. Let me not get into specifics. If 
we need to, we can share some ideas in closed session.
    A couple of, let me just say, factors bearing on the 
problem--and there are two. One is nature of the enemy. When 
FISA was first crafted, it was the cold war. And if you look at 
the legislative, as I've looked at sometimes and my lawyers at 
NSA have told me, an awful lot of the language for FISA was 
drawn from the criminal side of the U.S. Code.
    So we need to just reassess what is it we're trying to 
achieve here in a foreign intelligence way against what kind of 
threats. And so that would be one approach.
    The other one is technology. I've actually said publicly, 
and I'll just repeat it here, that the reach of FISA, the 
impact of FISA, is well beyond what any of its original 
crafters could have possibly intended because they could not 
possibly have known the dramatic changes in technology.
    Again, Senator, just a factor bearing on the problem, not 
an ironclad solution. It may be that the best way to craft FISA 
is in terms of not trying to predict all the changes, possibly, 
in technology over time but setting up processes by which those 
changes can be accommodated to a fairly constant standard of 
what constitutes privacy so that, when communications change 
from going out of the air to going into the ground that all of 
a sudden the impact of the law is completely different without 
any context as to how that affected privacy.
    So that's a little obscure, but----
    Senator 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, to 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 decision to go to war in Iraq. That's an easy 
way out, as far I'm concerned. And there was other 
contradictory alternative analysis out there. It was within our 
own government. Those who chose to make the decisions they did 
based on their own selective reading of it--- that's not what 
you said; it's what I said.
    I say that because I'd like to hear from you what your 
ideas are about alternative sources of intelligence analysis so 
that we don't get ourselves back into invading Iran, not 
knowing what we're doing or not paying attention to 
consequences or whatever else what may be down the road here 
with options for policymakers and the President.
    General Hayden. Yes, sir. The approach of alternative 
analysis, obviously, has great value. We've done that; it's 
under way. We do see that.
    Here's the magic spot. How do you institutionalize that 
without destroying it? I mean, once you institutionalize 
thinking outside the box, you know, it turns to dust in your 
hand. I think it's more about process than structure. It's more 
about insisting on considering alternative views rather than 
boxing off--a 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 and when we're not so good.
    Those lessons will have a tendency to wear off as we age 
off from the WMD, National Intelligence Estimate and so on. The 
challenge for leadership is not to let that happen, is to keep 
that focus on this enriching and challenging aspect of our 
analysis.
    Senator Hagel. You're going to be one of America's best CIA 
Directors, General. Thank you.
    Mr. Chairman, thank you.
    Chairman Roberts. Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman.
    First, General, congratulations on your nomination, on your 
obvious abilities, your tremendous experience and distinguished 
career of public service, and also on your manner. I want to 
say as one Senator that I find it very easy to work with you 
and talk with you.
    General Hayden. Thank you.
    Senator Feingold. And I admire some of the remarks you've 
made today in candor with regard to Iraq and some of the 
comparisons that one might make as we look at the Iran 
situation, that maybe we'd now want to handle it in the same 
way, so I appreciate all of that.
    Before I turn to you, let me just say generally, yesterday, 
4\1/2\ years after the President authorized a program to 
wiretap Americans without a warrant and almost 5 months after 
the program was revealed in the press, the Administration 
finally began describing the program to this Committee.
    This long overdue briefing, hastily arranged on the eve of 
this nomination, in my view, does not provide enough assurance 
that the Administration's general contempt for congressional 
oversight has diminished. But Mr. Chairman, it is nonetheless 
welcome. And I look for more.
    Mr. Chairman, I came away from that briefing yesterday, 
more convinced than ever, first, that the program is illegal, 
and second that the President misled the country in 2004 before 
the revelations about this program became public, when he said 
that wiretapping of Americans in this country requires a 
warrant, and third, that there was absolutely no reason that 
the Administration could not have told the full Committee about 
the program \41/2\ 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 when the President says otherwise? And will 
General Hayden respect Congress' statutory and constitutional 
oversight role and not just when the President deems it 
politically convenient?
    Let me be very clear, and I don't think there's any 
distance between me and General Hayden on this, al-Qa'ida 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 11, 2001, that persons inside 
the United States ``would have protections as what the law 
defines as a U.S. person and I would have no authorities to 
pursue it.''
    Given that the President had authorized the NSA to wiretap 
U.S. persons without a FISA warrant, how do you explain this 
statement?
    General Hayden. Senator, let's go back and look at the 
context in which I offered it. It is very clear to me, though, 
even under the President's authorization, that considerable 
legal protections would accrue to a, quote/unquote, ``target in 
the United States affiliated with al-Qa'ida that would affect 
the ability of the NSA to track that target, compared to that 
target being in any other place on earth outside the United 
States.''
    I also said that--and that was in a totally open session, 
as I recall--and I prefaced my remarks that day by pointing out 
that I had briefed the Committee in more detail and that my 
remarks that day were necessarily limited.
    Senator 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.
    General Hayden. Again, Senator, 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 it was not an intent to mislead; it was to describe the 
limitations under which the Agency worked and continued to work 
inside the United States.
    I think that was the speech where I talked about Usama bin 
Ladin crossing from Niagara Falls, Ontario to Niagara Falls, 
New York, and saying all of a sudden, U.S. law kicks in, and my 
freedom of action against him is suddenly very limited, so that 
even though the President's program would, as we all now know, 
allow me to catch Usama when he called back to Waziristan, I 
couldn't catch the call from Buffalo to Pittsburgh.
    Senator Feingold. And I appreciate that example. And I take 
you at your word that you did not intentionally mislead. But it 
was misleading. And I think when you say you had no authority 
to pursue the target, the average person who knows enough about 
this would have concluded otherwise.
    But let me move on.
    As you know, there is now a vast body of legal scholarship 
that says that the warrantless surveillance of Americans 
violates the FISA law. And of course you said that your lawyers 
told you it was legal. But you are an intelligence professional 
with many years of experience conducting surveillance within 
FISA. Then one day, you're told that FISA doesn't apply--and by 
the way, don't tell the full Intelligence Committee.
    Forget for the moment, General, what the lawyers said. Have 
you ever had any doubts that when this change in approach was 
made, that there may be a concern about not following FISA?
    General Hayden. Senator, obviously, there were concerns. I 
mean, I had an agency that for decades, well, since the mid-
1970s, had frankly played a bit back from the line so as not to 
be close to anything that got the Agency's fingers burned in 
the Church-Pike era.
    And so, this wasn't done lightly, and it wasn't done 
automatically.
    Senator Feingold. But did you have any doubts about the 
legality of doing this?
    General Hayden. Personally, no, I did not. And that was 
cemented with my conversation with the lawyers I knew best, the 
lawyers at NSA. It probably would have presented me with a bit 
of a dilemma if the NSA lawyers had said, ``No, we don't think 
so,'' but they didn't.
    And there was no pressure on me. It was, ``I need to know 
what you think.''
    Senator Feingold. So were you frustrated prior to 9/11 that 
this kind of authority, which I take it you believe derives 
from Article II, the President's powers, was not being used, 
that only FISA was being followed? Did you think that was 
endangering American national security?
    General Hayden. Well, actually, there was an interesting 
article today--yes, it was today, in the Baltimore Sun, that 
talked about some NSA activities. And without getting into the 
fine print of the article and confirming or denying anything 
about it, it talked about discussions at my agency on the 
millennium weekend as to what we could or could not do inside 
the United States when we thought we were under great threat.
    And, according to the article, and just staying within the 
context of that, Senator, I made some decisions there that made 
some of our operators unhappy, in order to stay within the 
confines of statutes, because I had no other legal recourse to 
do something other than the FISA statute and Executive Order 
12333, neither of which----
    Senator Feingold. Article II of the Constitution was in 
place at that time.
    General Hayden. It was.
    Senator Feingold. So why didn't you have legal recourse to 
that?
    General Hayden. Because the President had not exercised any 
of his Article II authorities to authorize the Agency to do 
that kind of activity.
    Senator Feingold. Did you urge him to do so?
    General Hayden. No, we did not at the time, no, sir. This 
happened very quickly.
    Senator Feingold. Well, of course my concern here, 
naturally, is what is the limit to this Article II power and 
where does it leave the role of Congress in this area? And I 
was struck by your comments that you had had a conversation 
with Senator DeWine where you talked about--earlier, not today, 
but an earlier occasion where you talked about the tension 
between liberty and security and what do the American people 
want.
    What I would submit to you, General, is that the American 
people have expressed what they want through the laws that are 
on the books now. And there can be helpful discussions, such as 
the one Senator Hagel just conducted with you about whether it 
should change.
    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.
    General Hayden. Senator, 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.
    Senator Feingold. Thank you, General.
    General, if you're confirmed, there will likely come a 
moment when the President turns to you and asks whether there 
is more the CIA can do under the constitutional authority that 
he has asserted under Article II. What would you tell him? Is 
there more?
    General 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, let me 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.
    Senator Feingold. You're referring back to the wiretapping.
    General Hayden. Yes, sir.
    Senator Feingold. I'm asking you whether there are 
additional things you'd like to see. You just indicated to me 
in a helpful response that prior to 9/11 you thought some 
things maybe should have been done pursuant to Article II, even 
though they were not permitted by FISA or perhaps some other 
statute.
    Are there other things that you believe now we should be 
doing that are not covered by statute that would fall under 
this category?
    General Hayden. No, sir. None that I'm aware of.
    Senator 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?
    General Hayden. Again, Senator, it's a hypothetical. But 
the statute is clear, and unless there was a compelling legal 
argument as to why that was a legitimate exercise of 
Presidential authority, of course not.
    Senator Feingold. Under this theory, could the CIA conduct 
covert action inside the United States?
    General Hayden. Again, Senator, a hypothetical, and I 
wouldn't even know how to begin to address that.
    Senator 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 it.
    General Hayden. No, no, sir.
    And what I believe is important but not decisive. There has 
to be a body of law from people whose responsibility it is to 
interpret the law for someone like the position I was in at 
NSA, or, if confirmed, at CIA who would say that this, indeed, 
is lawful and a lawful exercise of authority.
    And like I recommended and was quickly granted in the case 
in October 2001, we informed our oversight bodies.
    Senator Feingold. I appreciate that answer very much. And I 
just have to say, for the record, that the body of law that 
supports this wiretapping program, I think, is exceptionally 
weak compared to the other authorities that have been 
discussed. But you and I have been back and forth on that. But 
I think it's terribly important to realize, because you are 
acknowledging that you would have an independent obligation to 
look at whether that law is sufficient to justify the 
President's claim under Article II.
    General Hayden. Again, Senator, it's a hypothetical. But, 
you know, 4\1/2\ 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.
    Senator Feingold. Why wasn't the President's warrantless 
surveillance program briefed to the full congressional 
Intelligence Committees until yesterday?
    General Hayden. Sir, it was not my decision. I briefed 
fully to whatever audience was in front of me. And I wouldn't 
attempt to explain the Administration's decision, but it was 
the decision of the Administration.
    Senator Feingold. You weren't given any explanation of why 
the decision was made not to allow it?
    General Hayden. There were discussions----
    Senator Feingold. What were you told?
    General Hayden [continuing]. In terms of--I believe it's 
section 502 and 501 within the phrase ``with due regard'' in 
both of those sections--the one that has to do with general 
intelligence activities and the one that has to do with covert 
action. In both cases, the paragraphs talk with ``due regard to 
the protection of sources and methods.''
    Beyond that, sir, I----
    Senator Feingold. So it was the sources and methods the 
point that was made.
    General Hayden. There was, I believe, a strong desire to 
keep this program as close-hold as possible because of its 
value----
    Senator Feingold. Fair enough.
    General Hayden [continuing]. While at the same time 
informing those who needed to be informed.
    Senator Feingold. Fair enough. On that point, and on the 
sources and methods justification, the National Security Act 
states that, ``Nothing''--nothing--``in this Act shall be 
construed as authority to withhold information from the 
congressional Intelligence Committees on the grounds that 
providing the information to the congressional Intelligence 
Committee would constitute the unauthorized disclosure of 
classified information or information relating to intelligence 
sources and methods.''
    General Hayden, the congressional Intelligence Committees 
handle sensitive sources and methods every day.
    General Hayden. Yes, sir.
    Senator Feingold. What was it about this program that was 
different, other than the Administration knew that it would be 
politically and legally contentious?
    General Hayden. Senator, I wouldn't attempt to describe the 
background to it. I know what the decision was. I was heartened 
that I was able to brief the senior leadership of both intel 
Committees and the senior leadership of the Congress. And I was 
heartened that I was able to do it multiple times.
    Senator Feingold. Well, in fairness to you, I got the 
feeling that you probably did want to tell more people. So I 
want to be fair about that.
    I got that feeling, but do you see the distinction between 
sensitive sources and methods which are part of a known program 
and an entirely new surveillance program whose existence would 
likely surprise, if not outrage, many Members of Congress? I 
mean, isn't there a distinction, as we look forward, in that 
regard?
    General 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.
    Senator Feingold. General, in January, you stated that you 
would, ``Take no view on the political step of going to 
Congress for an amendment of the FISA Act.'' 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?
    General Hayden. If I had no lawful authority to conduct 
something that I believe needed to be done to protect the 
Nation, of course, I would. But in this case, Senator, just to 
make sure I'm not misleading by half, by not being complete, in 
this case, I believe I did have a lawful authority.
    Senator 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?
    General 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, 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.
    Senator Feingold. Senator Bond asked you whether, under the 
warrantless surveillance program, any Americans had been 
targeted who were not associated with al-Qa'ida.
    And you replied only that you didn't see how that could 
occur within the NSA's culture. The question remains: Has it 
happened?
    General 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-Qa'ida.
    Senator Feingold. But that's not my question. And that 
wasn't Senator Bond's question.
    It's whether it's ever happened that any Americans have 
been targeted who weren't associated with al-Qa'ida. As a 
matter of fact, has it happened, despite the cautions?
    General Hayden. Sir, I'll give you a detail in closed 
session, all right?
    Clearly, I think logic would dictate that if you're using a 
probable cause standard as opposed to absolute certitude, 
sometimes you may not be right.
    Senator Feingold. Has there been a thorough and ongoing 
view of this question?
    General Hayden. Oh, yes, sir. Yes, sir.
    Senator Feingold. And will these reviews be submitted to 
this Committee?
    General Hayden. Sir, I think they're available to this 
Committee during your visits at the Agency and in response to 
the questions that you've asked.
    I think by review you mean what's been targeted, what have 
been the results, how long they last.
    Senator Feingold. Are there documents and will they offer 
us the answer to my earlier question relating to whether people 
that were not associated with al-Qa'ida have been trapped in 
this sort of thing?
    General Hayden. Well, how long targeting has gone on, why 
targeting is ceased.
    Senator, let me make something very clear, though. Speaking 
in the abstract a bit, OK, to put someone on targeting under 
NSA anywhere in the world--obviously we're talking about this 
program--and then at some point end targeting doesn't mean that 
the first decision was wrong. It just means this was not a 
lucrative target for communications intelligence.
    Senator 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.
    General Hayden. Yes, sir.
    Senator Feingold. But if the FISA Court were involved, we 
wouldn't have to be discussing this. And based on the comments 
of Senator Feinstein and others, I still believe that this 
could be done within that construct, within that statute.
    As you know, General, the law allows for congressional 
notifications to be limited to the so-called gang of eight, 
only in cases of covert action. Even in those cases, the 
President must determine that it is essential to meet 
extraordinary circumstances affecting vital interests to the 
United States.
    In your view, what kind of circumstances would justify 
failing to notify the full congressional Intelligence 
Committees of covert action?
    General Hayden. Senator, I'm sorry, could you just say the 
last part again?
    Senator Feingold. Yes. An example of a situation that would 
somehow take the Administration or you out of the 
responsibility of informing the full Committee.
    General Hayden. That was not a covert action?
    Senator Feingold. What kinds of circumstances would justify 
failing to notify the full congressional Intelligence Committee 
of covert action?
    General 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.
    Senator Feingold. You can't give me a hypothetical, 
something that might fit that category, so I can imagine what 
it would be?
    General Hayden. Senator, I'm sorry. I just really can't.
    Senator Feingold. OK.
    General Hayden. It's a bit beyond my experience level.
    Senator Feingold. Will you notify the full Committee after 
the covert action has begun?
    General 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.
    Senator 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?
    General Hayden. Senator, I'm sorry, I'm just not familiar 
with the requirements under the law for that.
    Senator Feingold. Mr. Chairman, I would simply ask that you 
review that question, if you would. And I do request, unless 
you have an objection, that that be provided.
    Chairman Roberts. We'll be happy to review it.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Roberts. You bet.
    Senator Chambliss.
    Let me say that we are expecting votes at 4:15, two or 
three stacked votes. We still have 4 Members under the 20-
minute rule. It may well be that we'll have to go back to 
regular order in terms of the timeframe 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.
    Senator Chambliss. Thank you very much, Mr. Chairman.
    General Hayden, having had the privilege of working with 
you for about the last 6 years or so in your position at NSA, 
as well as more recently as the Deputy at DNI, I want to 
congratulate you on this appointment as you enter this next 
phase of your intelligence career.
    And I know, 35 years ago or so when you joined the 
military, it was a commitment not just to Mike Hayden, but of 
his family. And I'm very pleased to see your family here today 
continuing in that great support of you as you make your 
presentation here today.
    Now it's truly a great country we live in when we can have 
differences of opinion, particularly public differences of 
opinion, relative to something as sensitive as intelligence and 
whether programs conducted by intelligence agencies are right 
or wrong.
    I happen to have a significantly different opinion than 
some of my colleagues that have expressed disappointment or 
made statements regarding the programs that have been under 
your leadership.
    I happen to think that you've done a very good job, a very 
professional job, of carrying out your duty as Director of the 
National Security 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 11th. And it's because 
of your leadership and the folks under you, as well as the 
intelligence community team, General Hayden, that American 
lives have been saved, both domestically as well as abroad.
    And I suspect that, knowing the way this town is about 
leaking things, that maybe some of the good things that are 
happening will get leaked out too one of these days. And it's 
unfortunate that it seems to be just the sensational and 
negative things that get leaked.
    Now, as you know, General, you and I have discussed your 
nomination privately on several different occasions, and I have 
had some concerns relative to your nomination that have 
absolutely nothing to do with your qualifications.
    I went back and I looked at a lot of the history regarding 
the Director of Central Intelligence and whether or not that 
individual ought to come from the civilian side or whether they 
ought to come from the military side. And as you know, this is 
one major concern that I have had from day one regarding your 
nomination by the President.
    In the original 1947 Act, it was pretty clear that Congress 
intended that this be a civilian agency. But there was no 
limitation on whether or not the individual as Director ought 
to come from the military side or from the civilian side.
    But in the Act that we passed in 2005, we set up the 
Director of National Intelligence, we also set up a principal 
deputy position. And we specifically stated in that legislation 
that not more than one of the individuals serving in the 
position specified in this paragraph ``may be a commissioned 
officer of the armed forces in active status.''
    That means either you in your position as the deputy or the 
position of the DNI, both of them could not be coming from the 
military side. And so there was a lot of discussion about that 
issue, as to whether or not they ought to be military civilian. 
That's my point there.
    In the bill that we passed out of this Committee last year, 
the report language under section 421 reads as follows: ``The 
considerations that encourage appointment of a military officer 
to the position of DNI or PDNI''--principal deputy--``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 No. 12333, it specifically 
states that the National Security Agency, whose 
responsibilities shall include establishment and operation of 
an effective, unified organization for signals intelligence 
activities--and it goes on to talk about that.
    And the issue relative to the responsibility of the Defense 
Intelligence Agency is also set forth in Executive Order No. 
12333. And it says, as follows, that the DIA, whose 
responsibilities shall include collection, production, through 
tasking and coordination, provision of military and military-
related intelligence for the Secretary of Defense, the Joint 
Chiefs and other Defense components.
    Now, that's what creates my problem, General. And I just 
simply want to ask the question and give you the opportunity, 
publicly, to tell the American people how you're going to go 
from 35 years of this military intelligence mindset to heading 
up an agency, the CIA, that has a different role and function, 
a role primarily of gathering intelligence from a human 
intelligence standpoint abroad or outside the United States.
    General Hayden. Sir, I guess it's, kind of, a four-corner 
matrix here. Let me take each pair.
    I think the first issue is national and DOD.
    Senator Chambliss. All right.
    General Hayden. I mean, the CIA is a national intelligence 
organization. And you make the point quite correctly that DIA 
is a Defense intelligence organization.
    Now, those lines get blurred--I mean, clearly. DIA actually 
does a lot of things for Ambassador Negroponte right now. And I 
already said earlier today, the CIA's doing an awful lot of 
tactical things for the Department of Defense. But 
fundamentally, one's a national agency; one's a Defense agency.
    Senator, NSA is a national agency. It's on the same line as 
CIA in terms of its functioning. I know it resides inside the 
Department of Defense. But its tasking, even under the old law, 
came from the DCI, not the Secretary.
    And under the new law, you've strengthened Ambassador 
Negroponte even more in terms of his direct control over NSA.
    Defense, when I was the Director of NSA, Defense was our 
biggest customer, but it wasn't our only customer and it wasn't 
our most important customer. I feel like I was running a 
national agency, and that that experience should be able to 
translate, if I'm confirmed, to my ability to do something at 
Langley, at CIA.
    The other aspect you bring up, Senator, the other pair in 
this matrix is human intelligence and signals intelligence. And 
I understand that. I've spent a lot of time at NSA, 6 years, 
but I do have HUMINT experience. 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 of model it was. Had sources, as an overt collector, not a 
covert collector, but had sources, asked questions, made 
reports.
    So I do think I have a sense of that.
    And at the NSA job, as Director Tenet, as George, was very 
fond of pointing out, there was a convergence between the 
science and art of SIGINT and the science and art of HUMINT. 
They were getting very close to one another.
    So I actually think I'm not badly prepared. I wouldn't be 
so arrogant to say my career has guided me to this job. Not at 
all. But I don't think I'm badly prepared for this--running a 
national agency, responsive to the DCI, broad experience in the 
intelligence community, and answering not tactical military 
questions throughout my career, but a fair mix of both 
strategic, operational and tactical.
    Senator Chambliss. The focus at the CIA has got to be on 
improving on HUMINT collection.
    General Hayden. Yes, sir.
    Senator 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?
    General Hayden. Yes, sir. I would add, not meant to 
correct, but just to be inclusive, the HUMINT collection and 
the analysis. I think they both have to be dealt with.
    But in terms of CIA as a collection agency, yes, sir, it's 
HUMINT collection.
    Senator Chambliss. OK. And let's talk about the analysis 
just a minute, because the CIA was always intended to be an 
independent agency. And even under the new structure within the 
framework of the new organization that we have, all of the 
agencies still have to be somewhat independent.
    And you have been the No. 2 guy under the DNI, Director 
Negroponte. You now are being asked to move over to an agency 
that sometimes is going to come into conflict with what the DNI 
may think about the intelligence world.
    Now, we've already talked about your relationship with 
Secretary Rumsfeld, and knowing you like I do and having worked 
with you, I know that you can be a very independent individual, 
and that's good. I think you have to be. You're going to have 
to be even more independent in this position.
    Now, I don't know all the ins and outs of what happened, 
but I do know, just because of what you have said and what I 
know previously from conversations with folks within the 
community over the last couple of weeks, that there was some 
independence expressed by Director Goss relative to the removal 
of certain analytic capability out of the CIA over to NCTC.
    Now, when those things happen, are you prepared to face 
conflicts with the DNI when the situation arises, to sort of 
stand your ground for the CIA?
    General Hayden. Yes, sir. That's a lot better question than 
the GI heritage and how it'll affect things, because I have a 
great deal of respect and admiration and good friendship with 
Ambassador Negroponte.
    But the answer to your question is 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 could do it when I was Director of NSA . At 
the end of the day, though, you've got to accept the decision 
that's best for the community.
    After having major points of view, as long as that boss 
knows the cost he's imposing on you for your particular, unique 
function, as long as he understands that and has come to the 
conclusion, ``Yes, but this decision is better for the overall 
functioning of the community as a whole,'' and then it's time, 
I think, to get on and do it and do it well.
    Senator 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 who 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 the 
conflict is going to occur. And we're going to know that.
    General Hayden. Yes, sir.
    Senator Chambliss. From an oversight capacity, it's our 
responsibility to know that. And we expect you, General, to 
stand up for what you think is the correct thing to do for the 
Central Intelligence Agency because it's at a critical juncture 
right now.
    General Hayden. Yes, sir.
    Senator Chambliss. It's an agency that's always been a very 
stable agency. And here we are with our third Director in the 
last 2 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.
    General Hayden. Yes, sir.
    Senator Chambliss. But know that we're going to be making 
sure you do.
    There's also another issue that we have discussed within 
this Committee any number of times, and we've seen some recent 
activity at the Agency regarding how the Directors dealt with 
leaks and individuals who may or may not be responsible for 
leaks at the Agency.
    You've had some experience at NSA. You've had experience as 
the deputy for the DNI. What is going to be your approach to 
leaks and those responsible for the leaks at CIA?
    General Hayden. Yes, sir.
    Senator, obviously I know how we all abhor leaks. And 
there's the usual mantra: It puts at risk sources and methods 
and so on. But beyond that, it really has a corrosive effect on 
the integrity of the community. You can't expect people to make 
tough decisions and hard-edged assessments and then have that 
pushed into public debate in ways it was never intended.
    And so this is a problem, and I meant what I said in the 
opening statement--get CIA out of the news as source or subject 
so we can get back to business, back to basics and do what the 
Nation expects us to do.
    I admire Director Goss for the action he took with regard 
to this last round of unauthorized disclosures. That is not to 
say that all circumstances in the future would demand the same 
kind of response. But you have the same kind of commitment from 
me that I know you had from him in terms of taking all 
appropriate and effective action to not leak classified 
information to those who are not authorized to receive it.
    Senator Chambliss. General, one point that I have 
continuously made over the last several years regarding 
intelligence community and particularly after September 11th 
was our failure to share information properly. We've made great 
strides in the sharing of information, but we are still a long 
ways away from where we need to be.
    One thing that was very positive that Director Goss did 
was, frankly, eliminating some people in positions who tended 
to encourage information to be held within the Agency so the 
Agency could get the so-called credit for the takedown or 
whatever it may be.
    We've got to get away from that mentality. And I think he's 
moved us a long ways in the right direction. Same way with 
Director Mueller at the FBI.
    Can you tell us what thoughts you have or what ideas you 
have about how to improve the information sharing between the 
folks in the community?
    General Hayden. Yes, sir. You bring up a great point. I 
mean, the bottom line is results, not credit. And so we should 
view ourselves as contributing to an overall national effort. 
And there are legitimate reasons for making some kinds of 
information close-hold. Lord knows, we've talked about that 
this afternoon.
    But they have to be legitimate reasons. And those reasons 
have to be examined and re-examined almost constantly, because 
you just can't get in the cultural habits of we haven't shared 
this, therefore we will not in the future share this.
    Senator, I experienced it 6 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, 
2 or 3 months later, this new state of being you're in, where 
you're sharing at a different level, seems like it's been that 
way for 50 years. We just have to keep moving that line.
    Senator Chambliss. Last, General, Senator Warner is right. 
As we travel around the world, one of the things we do is to 
try to visit with as many government agents as we can in the 
field, including our CIA personnel.
    And every time I do, it's interesting to hear the reaction 
of folks. But particularly over the last 6 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.
    And they had a tendency to be risk-averse over the last 
decade. And that's part of the problem that we have talked 
about publicly and privately relative to our HUMINT capability.
    And folks joined the Agency because they're excited about 
getting into that world. They certainly don't come into the 
Agency to make a lot of money. But they enjoy what they're 
doing. And the more risks they're asked to take, the better 
they like it.
    Director Goss is moving in that direction. And I hope you 
will continue to encourage and mandate to our agents in the 
field to be risk-takers as they gather intelligence.
    General Hayden. Yes, sir. That would be my intent. Can I 
add an additional thought to that, Senator?
    Senator Chambliss. Yes.
    General Hayden. We talked about two things today that, as a 
practical matter, it's going to be a challenge to get inside 
the same box. Everyone has recommended risk-taking.
    And we've also talked and had a healthy dialog 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 into the same place?
    There was just a phrase in my opening remarks that said 
something about top cover for people in order to enable them to 
be more free to take risks. We'll have both, Senator. But we'll 
probably have long dialogs with the Members of the Committee to 
balance the things that we both desperately need.
    Senator Chambliss. It's interesting you mentioned that. I 
didn't write it down, but three things you said--and one of 
them was the right top cover, which is critically important.
    Thank you, General. Thanks, Mr. Chairman.
    Chairman Roberts. Senator Mikulski.
    Senator Mikulski. Thank you, Mr. Chairman. General Hayden, 
I want to echo the remarks of my colleagues to welcome not only 
you but, of course, your family, to Mrs. Hayden and your 
children who are here and those who aren't.
    We know that you couldn't do what you've done for the last 
35 years without the support of your wife and your children. 
And we need to express that appreciation to them.
    I've known you for more than 5 years, as the Director of 
the National Security Agency and then as the Deputy DNI, and 
know, like all, that you've really distinguished yourself over 
these 35 years and your background is impressive.
    You bring those old-fashioned blue collar values of being a 
Duquesne man, forgiving you for being a fan of the Steelers----
    [Laughter.]
    Senator Mikulski [continuing]. Things along those lines--
but also, as you said, willing to be in the mud in Bulgaria, to 
being at the National Security Council.
    So today, as we listen to your testimony, know that as I 
sit here to render my independent judgment, when I have to 
choose in voting for you or not, here and on the floor, I'm 
going to use five criteria--my questions--and I use them for 
everyone.
    No. 1, are you competent? No. 2, do you bring personal 
integrity? No. 3, are you independent? No. 4, are you committed 
to the Constitution--not to a President, but to the 
Constitution--and, No. 5, are you committed to the core mission 
of the department that you are asked to lead.
    Clearly, you bring competence--everything about your 
background shows it. 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, with the work that you've done, that you've transformed 
an analog agency to a digital one, you've concentrated on 
changing the NSA, being really a big help to having the DNI set 
up this new agency and so on.
    Independence is one of the areas that I'm going to be 
asking about, because I've known you since 1999 and I've known 
you as a candid reformer. What I'm concerned about, though, is 
the history of when one 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 do you 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 Woolsey and the disaster of Deutch. Then in 
comes George Tenet, who we thought had it together. We had the 
COLE incident. We had the World Trade Center, No. 1, didn't 
follow up on that. World Trade Center, No. 2. ``Slam dunk, Mr. 
President.''
    And then we get Porter Goss. I don't share what's been said 
here about what a great guy Porter Goss was. I think he brought 
in a partisan ax and nearly destroyed the Agency. And it's not 
about saving his face; I worry about saving the Nation.
    So to all who are watching this on C-SPAN, including the 
bad guys, we want them to know we want to get it right, so that 
this next Director of the CIA is the best we have to offer to 
be able to protect the Nation. So that's why this very grueling 
hearing, and we thank you. I know you must be exhausted. We 
want to acknowledge that.
    But I want you to know why we're all so obsessed, because 
we've watched in two Administrations what happens to our 
Directors of CIA.
    So this, then, takes me to following on with what Senator 
Chambliss raised about the military. In my private conversation 
with you, I raised even my own concerns about a military person 
heading it. I have great respect for military officers, and 
they have a unique role. But should that person head up the 
CIA?
    So let me ask a couple very specific questions. If you are 
confirmed as head of the CIA and remain an active duty officer 
in the United States armed services, what will be your chain of 
command and who is your supervisor?
    General 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.
    Senator Mikulski. And then, Ambassador Negroponte or 
whomever is head of the DNI, will continue to be your 
supervisor in that sense.
    General Hayden. Absolutely. Yes, ma'am.
    Senator Mikulski. Will there be statutory necessity for 
change? Senator Chambliss cited all kinds of laws.
    General Hayden. Ma'am, I don't believe there's any 
requirement for changes in statute if I were to remain active.
    Senator Mikulski. For you to remain independent.
    General Hayden. I don't believe so. No, ma'am.
    Senator 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 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?
    General Hayden. Yes, ma'am.
    Senator Mikulski. It's what I call the ``ga-ga'' factor in 
the Oval Office. So it's not the most precise term, but it's 
where through being mesmerized, wanting to serve a President, 
whatever, we get this so-called, ``Yes, sir, Slam-Dunk, Mr. 
President,'' rather than speaking the truth to power, even when 
it is difficult.
    General Hayden. Yes, ma'am. You've got my assurances to the 
best of my earthly and human ability, that's exactly what I'll 
do.
    I talked a bit in my opening comments about that nexus of 
policymaking. And the purpose of intelligence is to draw those 
left- and right-hand boundaries of the discussion.
    Senator Mikulski. Well, I appreciate those answers.
    Now, let's go out to the CIA. Let's create a past scenario. 
I 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 is, if you were getting General 
Powell ready to go before the United Nations, what would you 
have done differently so whatever he did or whatever he said 
was accurate and truthful and spoke to the world?
    General Hayden. Yes, ma'am. Right now in the current job, 
clearly, you know, White House speeches are cleared for 
language--and, frankly, I'm the one. I'm the funnel through 
which all intelligence community comments go.
    So it is something not just for Secretary Powell's speech, 
but for all statements by our public officials that you can 
feel and sense this absolute commitment to accuracy and clarity 
in the language. It is really present and, frankly, I think 
what we need to do now is just sustain that; don't let that 
effect wear off as we go forward in time. We have to be 
absolutely precise.
    Senator Mikulski. Well, being precise is one thing, and I 
would agree with that. But here this man came out, he met with 
the CIA. They showed him all kinds of pictures, gave him all 
kinds of stuff. Obviously, some of it was enormously selective.
    Would you have intervened and said, No. 1, ``I don't think 
we ought to go to the United Nations,'' No. 2, ``If we go to 
the United Nations, these pictures are blurred and they're from 
1989''? I'm making it up, I don't quite remember what the 
pictures were. But they were flawed.
    General Hayden. Well, clearly, the conclusions were flawed. 
I mean, there were items of fact in there. And what went wrong 
was how we latched the items of fact together. You may recall, 
we played three intercepts, three communications intercepts, 
from Iraqi military officers during Secretary Powell's 
presentation.
    Now, those are all correct. But what we didn't do was to 
put all those pieces together. The macro analysis didn't get to 
the right conclusion. As I suggested earlier, it was almost 
certainly because we took the data and leaned it against our 
known assumptions rather than using other or all data and 
challenging the assumptions that we had.
    It was a mistake. We've learned from that.
    Senator Mikulski. Let's go to your staff. How will you 
ensure that CIA analysts provide unvarnished intelligence 
assessments? And will you personally ensure that CIA analysts, 
that whatever analysis CIA presents to policymakers is 
independent of political considerations or the policy 
preferences of the customers?
    General Hayden. Sure. I'm going to say something that's 
going to sound a little bit foolish, ma'am, but hear me out. I 
actually think that task is going to be easy.
    The analytical function, getting the analysis right, that's 
challenging, that's tradecraft, that takes a lot of time. But I 
think the other task, the honesty in the assessment that you 
talk about, that's where they are. That's where all analysts 
are.
    The job of the Director is to make sure nothing gets in the 
way of that, nothing prevents that from blossoming and 
presenting itself in their final analyses. So I think that's a 
natural state. What a Director has to do is make sure nothing 
interferes with that natural state.
    Senator Mikulski. I appreciate that answer. I know in your 
testimony in answer to your questions, you talk about red teams 
to be sure that there is alternative analysis, 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 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 by those leaks.
    But what about essentially having both something you might 
need to hear or a real safety valve for employees?
    General Hayden. Sure. I believe there are those channels 
now. Obviously, I need to make sure of that. And if there are, 
I just need to reinforce that they are to be used if they 
aren't, to set them up.
    Ma'am, from the NSA experience, we had a pretty free-
wheeling, open e-mail policy to the Director. And that's 
something that, I think, worked at Fort Meade and is an 
approach that I would follow at Langley if I'm confirmed.
    Senator Mikulski. Well, I look forward to ongoing 
conversations. I raised this with the DNI, even for the DNI. 
And I know that's under way.
    My last question. Others have asked about data mining and 
the surveillance. We'll talk more about that in closed session.
    But in the 5 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 didn't we get a request for reform, with all these 
investigations and commissions that went on?
    General Hayden. Sure, I'll be happy to answer. Right. To be 
very candid, ma'am, when it began, I did not believe--still 
don't believe--that I was acting unlawfully. I was acting under 
a lawful authorization.
    And you recall, when I gave--well, actually, when Keith 
gave the briefing yesterday----
    Senator Mikulski. I know you believe it was lawful. And you 
cited examples, with the five different legal opinions.
    General Hayden. Right.
    Senator Mikulski. But then you've consistently said that 
one of the ways you operated--and even in your famous Press 
Club speech, in the Q&A, you indicated a frustration with some 
aspects of FISA.
    General Hayden. Right.
    Senator Mikulski. And again, along the line that I've 
said--klutzy, choke points.
    Senator Mikulski. Those are my words.
    General 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.''
    No. 1, beyond the belief that we were doing something that 
was lawful; second, an attempt to change the legislation was a 
decision that could not be made by the National Security Agency 
alone. Clearly, that had to be made more broadly by the 
Administration, including the Department of Justice.
    There were clear concerns, in which frankly I shared, that 
attempts to change FISA would reveal important aspects of the 
program, eliminating key secrets that enabled us to do the 
kinds of things we were doing to an enemy whom I'm certain felt 
that this space was a safe haven for him.
    And, finally, in that March 2004 meeting that the Chairman 
and Senator Hatch had mentioned where we had the senior 
leadership of the Congress there in addition to the leadership 
of the two intelligence Committees, there was discussion about 
changes to FISA.
    And without getting into the details of the conversations, 
ma'am, there was a powerful and general consensus that an 
attempt to change the legislation would lead to revelations 
about the nature of the program, and thereby hurt its 
operational effectiveness.
    Senator Mikulski. Well, I'd like to talk more about that 
when we're in the closed hearing.
    General Hayden. Sure.
    Senator Mikulski. Particularly what I'll call the klutzy 
part, the chokepoint part, et cetera.
    Mr. Chairman, in the interest of time, I yield back what 
time I might have, and look forward to further discussions in 
the closed hearing.
    Chairman Roberts. I thank the Senator.
    Senator Bayh.
    Senator Bayh. Thank you, Mr. Chairman.
    General, thank you. I'm grateful for your patience today. 
We've been at this for slightly more than 6 hours now.
    General Hayden. It's flown by, Senator.
    [Laughter.]
    Senator Bayh. You have a different sense of time than I do. 
I admire your cheerfulness in the face of great scrutiny.
    I also appreciate your service to our country. You've had a 
very distinguished career. And we've personally had a good 
relationship and I've been grateful to you for being 
forthcoming and responding to my inquiries from time to time.
    I'd like to follow up on two or three lines of inquiry. And 
let me begin with something that you said in your opening 
statement about the need to strike the right balance between 
America's security interests but also our interests in the 
liberty, the freedoms of this country.
    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?
    General Hayden. That's right.
    Senator 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?
    General Hayden. I can guarantee you we would not have known 
otherwise. The attempting to attack, I will not make the claim, 
Senator, that we intervened with the sniper on the roof with 
the round in the chamber kind of thing. But we have located, 
identified and taken action against people affiliated with al-
Qa'ida working against the United States and moving in the 
direction to threaten the United States.
    Senator Bayh. Well, that takes care of the security part of 
the balance. I don't think there's a member of this panel who 
would disagree that if we have a program that could have 
identified two of the 9/11 hijackers or other individuals who 
are malevolent and at some point in the process of attempting 
to harm this country and our citizens, that we shouldn't be 
intercepting their conversations and doing what we can to stop 
them. I think we have unanimous agreement on that.
    So let me shift to the liberty side, which is where I think 
most of the point of emphasis has been here today, and how we 
go about striking that right balance and giving the American 
people confidence that we have done so.
    You've spoken to this a couple of times, too. And I 
apologize, it's tough being the last questioner after 6 hours 
and not being somewhat redundant. So I give you my apologies 
for that.
    But you've spoken a couple of times about the burden of 
proof, if that's the right term, required before we can access 
communications, conversations. And you've used the phrase 
``probable cause.'' And then I think it's equivalent to what a 
responsible person would conclude was that they had reason to 
believe that the subject was affiliated with al-Qa'ida in some 
way. Is that, my understanding, correct?
    General Hayden. Yes, sir.
    Senator Bayh. Let me ask you this question then, General. 
Isn't that also the same standard that would apply under FISA?
    General Hayden. Yes, sir.
    Senator Bayh. So why not use FISA then?
    General Hayden. I can get into----
    Senator Bayh. Don't you have to meet the same burden of 
proof no matter what?
    General Hayden. Yes, sir. I can get into more detail in 
closed session and point out some additional difficulties.
    But that decision is made by someone operationally involved 
in the problem. And the movement from that decision to coverage 
is measured--and a carefully considered decision, and one that 
meets the standard, one that has its own kind of oversight--the 
movement from that decision to coverage is measured in minutes.
    And that is not what happens----
    Senator Bayh. Can you say that again, General? Which 
decision is measured in minutes?
    General Hayden. That the analyst has come to conclusion and 
has gone to the appropriate levels of----
    Senator Bayh. There is probable cause to acting on that 
probable cause?
    General Hayden. From that decision to coverage is measured 
in minutes.
    That is not what happens in, let me just say, FISA as 
currently crafted and currently implemented.
    Senator Bayh. So it's a question of timeliness and, 
therefore, efficacy?
    General Hayden. I would use ``efficacy'' and there are 
other aspects that undergird the efficacy point, but I prefer 
to talk about that a bit in closed session.
    Senator 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 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 this anyway.
    General Hayden. A position that I held very firmly back in 
March of 2004, Senator, but things have changed.
    Senator 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----
    General 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.
    Senator Bayh. Well, at some point, General, we're going to 
need to update the statute. At some point, we're going to need 
to try 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----
    General Hayden. I take your point about all that's been 
revealed.
    Senator Bayh. Well, 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 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 interests and the 
Agency that you are about to head, their best interests, and 
this Administration's best interests, 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.
    General Hayden. Yes, sir, commander-in-chief powers.
    Senator Bayh. That power is so nebulous and so broad. One 
of my colleagues tip-toed up to asking you, and I guess I'll 
just go ahead and ask it. One of the advantages you bring to 
this is perhaps that you're not a lawyer, 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?
    General Hayden. Senator, you correctly characterized me as 
not being a lawyer.
    But clearly the Article II does not empower the President 
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 then 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.
    Senator Bayh. 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.
    General Hayden. Right. Yes, sir, that's right.
    Senator 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, it did.
    General Hayden. Sir, I need to make very clear that 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.
    Senator 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 is it 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--I don't ask you to answer it again--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 is 
not 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 interests 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 judicial oversight under 
FISA or congressional oversight under the authorization of this 
Committee in Congress. And so there's someone else serving as a 
check and balance, because the public themselves can't fulfill 
that role.
    And so I get back to the question I was, you know, 
attempting to ask. Is it your belief that, eventually, it would 
be helpful--in your best interests--to try and bring this under 
an amended FISA statute of some kind so that you wouldn't have 
to rely on a 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 interests to have them doing 
that?
    General 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, 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 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.
    Senator 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--the best the world has to offer.
    And I'd like to ask you a couple of 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 
specific that we could do? I mean, 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--as 
Senator Mikulski mentioned--a statesman, the Secretary of State 
going before the U.N. and relying upon information that just 
turns out to not be so.
    General Hayden. Sure. Senator, let me offer this, not in 
any way of an excuse, but maybe just modest mitigation.
    This was 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. As I said, 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?,'' 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 now, we've 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 are 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 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 ofs'' and ``maybes'' and 
so on.
    We don't need that either. There's a sweet spot there where 
you've 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, you actually do make the call. It's a 
challenge for leadership.
    Senator Bayh. Well, let me address that, too. And 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 what weapons of mass destruction in Iraq, how 
would you clarify our assessments and understanding of the 
nuclear program in Iran?
    And before you answer that, I then asked him--and I want 
you to answer that--but I then asked--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.''
    General Hayden. Yes, sir.
    Senator 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.
    General Hayden. Also true.
    Senator Bayh. So those two questions--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?
    General Hayden. Yes, sir.
    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 I wouldn't throw that one 
away, that clarity of the 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 
described, illuminating as well as honest.
    Senator 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 Central Intelligence Agency and the 
FBI for 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?
    General Hayden. Yes, sir.
    Senator Bayh. And should we be different?
    General 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 OK. 
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.'' And then I'll usually pause and say, 
``But we're the only ones that try to put it inside our Federal 
law enforcement agency.''
    That was a decision made by the Congress. I think the 
decision was that, not unlike the dilemma that Senator DeWine 
brought up this morning about putting NOCs--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 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 challenge. 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.
    Senator 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.
    General Hayden. Yes, sir.
    Senator Bayh. 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.
    General Hayden. Yes, sir.
    Senator 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 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--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 and 
keep you out of the front pages, which I know you'd really 
love.
    General Hayden. Thank you.
    Senator Bayh. Thank you, General.
    Chairman Roberts. We will now go to regular order for a 
second round. And by ``regular order,'' I mean 5 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 Snowe. I don't know 
about Senator DeWine. And so, consequently, we will start with 
Senator Bond.
    Senator Wyden. Mr. Chairman, parliamentary inquiry.
    Chairman Roberts. Yes.
    Senator Wyden. 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 
5 minutes and that will be it?
    Chairman Roberts. If the gentleman wishes another 5 minutes 
and another 5 minutes, I will stay with him, and I know the 
General will. But we will have stacked votes sometime between 4 
and 4:15.
    And so, consequently, to come after that, the closed 
session is going to go until about 7 or 8 tonight. And I think 
the witness has spent 7 hours, and I think if we can be more 
concise, if the Senator wishes to have an additional 5, an 
additional 5, I will certainly honor that.
    Senator Bond.
    Senator Bond. 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 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 CIA 
should rid itself of community-coordinating functions and focus 
solely on clandestine human collection and analysis, maybe even 
move the Directorate 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 
operations-centric?
    General 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 that the 
structure out there right now is just fine. You know, 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 Directorate of 
Intelligence out of the CIA and just leave the clandestine 
service behind, and tuck the Directorate of Intelligence up 
under the DNI, 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 national 
HUMINT manager function, which I think is very critical. And 
that's the right spot.
    Senator Bond. 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 effective coordination. And I, for one, 
would look for you to present your viewpoints.
    General Hayden. Oh yes.
    Senator Bond. But we have had, in the past--to be honest--
instances where the CIA had 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 very briefly three areas.
    First, I've heard, as I've talked to CIA people around the 
world, about the less-than-laudable efforts in recruiting and 
clearing ethnic personnel--in other words, when we're sending 
somebody against a target, it's helpful to have somebody who 
has a background in that target.
    We may not be doing a good enough job.
    And I've heard 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's doing IT 
work, for example, from one agency to another agency, another 
agency may have to wait 6 to 9 months for new clearances each 
time.
    Those are administrative problems, but I think they are a 
significant problem. I just want to know if you've got any 
thoughts.
    General Hayden. I've heard all three of them, Senator.
    Senator Bond. And I assume that you will--we can help you 
work on those?
    General Hayden. You bet. They're all hard, but they all 
have to be addressed.
    Senator Bond. They are. None of them are easy.
    Thank you very much, General Hayden.
    Thank you, Mr. Chairman.
    General Hayden. Senator.
    Chairman Roberts. Senator Levin?
    Senator Levin. 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 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.
    General Hayden. My understanding of the legislation, 
Senator, is that it explicitly applies to the treatment of 
personnel under DOD control.
    Senator 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.''
    General Hayden. That's correct. Yes, sir. That's my 
understanding.
    Senator Levin. So it could be a CIA interrogation at a 
Defense Department facility.
    General Hayden. But the language is very, very explicit. If 
it's in a DOD facility or under--I think I said under effective 
DOD control.
    Senator Levin. I just want to clarify that.
    General Hayden. Yes, sir. You're correct.
    Senator Levin. On February 5th, you said on Fox News that, 
``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.''
    General Hayden. Yes, sir.
    Senator Levin. That's the probable cause.
    General Hayden. Yes, sir. And, sir, as you point out, I was 
careful to use the word ``content.''
    Senator 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?
    General Hayden. No, sir, I do not. I use ``content'' in the 
normal usage in normal discourse--the conversation itself, 
everything between hello and goodbye.
    Senator Levin. So you don't use the FISA----
    General Hayden. I was not--in that context, I was not using 
the FISA definition of content, no, sir.
    Senator Levin. And how long, on the average, does it take 
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, 2 weeks, 3 
weeks for that whole process to get to the point where you say, 
``Hey, we think we have probable cause''?
    General Hayden. Yes, sir. It varies.
    Senator Levin. What's the range?
    General Hayden. It's kind of in the range that you just 
discussed. It could be as quick--and in closed session I will 
give you specific examples of how quick it is, and that's 90 
minutes.
    Senator Levin. To get to that point.
    General Hayden. In 90 minutes. 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.
    Senator Levin. So it could take 2, 3, 4 weeks.
    General Hayden. In some cases.
    Senator Levin. Or it could take an hour and a half.
    General Hayden. Yes, sir. That's right.
    Senator Levin. All right.
    Now, when we chatted in the office, I believe you indicated 
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 on that.
    General Hayden. Yes, sir. I gave a speech in Texas 2 or 3 
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 it 
actually ties into 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 someday.
    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.
    Senator Levin. 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 
characterization?
    General Hayden. I couldn't pull statistics out and say one 
is X and the other Y.
    Senator Levin. Just in your judgment.
    General Hayden. But if you look at the global terrorist 
threat, in number it looks as if there are more, in capability 
much reduced.
    Senator Levin. The Executive order governing declassifying 
national security information establishes a uniform system. 
It's Executive Order 13292. And it says that 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?
    General Hayden. Senator, I've not read the EO, but what 
you've described is a process I'm familiar with.
    Senator Levin. And how important would you say it is to 
follow that process?
    General Hayden. Senator, 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.
    Senator 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 9 days after the President authorized that 
disclosure.
    Were you involved in that discussion at all?
    General Hayden. No, sir.
    Senator Levin. Do you know why that process of the 
Executive order was not followed?
    General Hayden. Sir, I'm sorry. I do not.
    Senator, could I just add one footnote to this?
    Senator Levin. Sure.
    General 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 believed 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.
    Senator Levin. My time is up on this round. Thank you.
    Chairman Roberts. Senator Wyden.
    Senator 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.
    General Hayden. Yes, sir.
    Senator 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.
    General Hayden. Sure.
    Senator Wyden. I mean, nearly everybody I know reads like a 
memo, I mean, at least to try to get started on it.
    You said you didn't read a memo, and then I compare that to 
this speech. So reconcile those two for me.
    General Hayden. Sure. Happily.
    What I believe I said at the Press Club was that I had an 
order 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, 
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.
    Senator Wyden. General, 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 
would give you, if confirmed, a chance to get off to a strong 
start in terms of accountability; something 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 to deal 
with a dangerous post-9/11 world.
    Will you work with us, if confirmed, to make any 
appropriate redactions, if necessary, and finally get that 
report out to the American people and to the families who saw 
their loved ones murdered?
    General 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 sections 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 
dialog with you and the Chairman to see, frankly, what effect 
we are attempting to create by making this public.
    Senator 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? Did you mean to say, ``I, in 
conjunction with this Committee and 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.''
    General Hayden. Senator, could you just read the sentence 
to me again?
    Senator Wyden. I'll read it to you. I don't have the exact 
page in front of me. ``I will draw a clear line''----
    General 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 stage. This 
is a discussion between what must remain secret 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 
dialog I would have with this Committee.
    Senator 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.
    General Hayden. No, sir, I didn't mean that at all.
    Senator 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 that there's a 
huge problem with overclassification 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 politician or something gets 
classified.
    What is your sense with respect to whether this is a 
significant concern?
    General Hayden. Senator, I might argue with you with regard 
to the cause, political sensitivity and so on. I don't see 
that.
    I do think we overclassify, and I think it's because we've 
got bad habits. We're just in a routine that just elevates 
information to a higher level.
    Senator, I know you want to ask more questions in closed 
session, but I really want to set the record straight. You 
quoted me as talking last year during my confirmation hearing 
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, that we get out of the mode of building things 
ourselves. We were 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.
    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.
    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.
    Senator 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 issues 
with respect to information technology.
    General 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--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.
    Senator Wyden. I think the gap between what Newsweek 
reports this week on the General's 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.
    Chairman Roberts. Well, maybe we had the good fortune of 
having a Newsweek reporter in the audience.
    Senator Levin.
    Senator Levin. 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.
    General Hayden. Yes, sir.
    Senator Levin. I believe you said that the WMD one got a 3 
and everyone else got a----
    General Hayden. No, the nuke.
    Senator Levin. The nukes got a 3, and the other ones got a 
5.
    General Hayden. No, above 5--7s, 8s. The missile one got a 
10.
    Senator Levin. Ten being the most confident in your level 
of assessment.
    General Hayden. Yes, sir. Yes, sir. To frame it.
    Senator Levin. Were these assessments, these levels of 
confidence, asked for before that particular occasion, like 
back in October during the NIE assessment?
    General 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, 0-10, how confident 
were you on the day we kicked off the war, how confident were 
you that he had''--OK, nukes was lowest at 3, missiles was 
highest at 10, everything else was 5, 7 and 8.
    Senator Levin. Had that kind of an assessment been 
requested during the October NIE or prior to the war?
    General Hayden. Sir, 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.
    Senator Levin. I know those are the same folks, but had 
they given you that kind of a confidence level----
    General 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.
    Senator Levin. I understand. And was there a request of 
that type made for the assessment about any link between Saddam 
and al-Qa'ida?
    General Hayden. No, sir, because we didn't sign up to that 
in the estimate or any estimate.
    Senator Levin. There have been two public statements I want 
to ask whether you agree with--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 No. 1.
    Do you agree with that statement of the Senator?
    General Hayden. Senator, I'd be delighted to answer that a 
little bit later in closed session.
    Senator Levin. You won't answer it or can't answer it?
    General Hayden. No, sir, I don't want to answer it in open 
session, sir.
    Senator Levin. Why is that?
    General Hayden. I am not in a position to confirm or deny 
the story that appeared in USA Today.
    Senator Levin. No, I'm talking about Senator Frist's 
comment on CNN.
    General Hayden. Yes, sir, but you're asking me to comment 
on Senator Frist, which would then----
    Senator Levin. No, on the statement accuracy. I just wanted 
to----
    General Hayden. I understand.
    Senator Levin. And then the second one is a Member of this 
Committee who said the President's program uses information 
collected from phone companies. Are you able to say whether you 
agree with that?
    General Hayden. No, sir, I'm not, not in open session.
    Senator Levin. Same reason?
    General Hayden. Yes, sir.
    Senator Levin. Are you familiar with the second Bybee memo?
    General Hayden. Yes, sir.
    Senator Levin. You and I have talked about it.
    General Hayden. Yes, sir, we have.
    Senator Levin. Have you read the memo?
    General Hayden. I went through it over the past several 
days, sir.
    Senator Levin. OK. Is it your understanding that the second 
Bybee memo remains operative?
    General Hayden. I'll get into further detail in the closed 
session. But in general--let me just take it in closed session 
so I can be precise.
    Senator Levin. Even on that question? Even as to whether it 
remains operative or not?
    General Hayden. There are additional legal opinions that 
are offered. But again, to give you the import of those, I 
would prefer to do that in closed session.
    Senator 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?
    General Hayden. Sir, I'm sorry, I really don't know. But I 
am aware of the circumstances.
    Senator Levin. Finally, you've made the statement again 
here today that, 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 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 
watchlisted as al-Qa'ida operatives, although the CIA knew they 
were operatives.
    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.
    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.
    Would you agree that there was a significant failure----
    General Hayden. Oh, yes.
    Senator Levin [continuing]. On the part of the CIA to 
track----
    General Hayden. Sir, the record is clear, and we lost lock 
on these two individuals.
    All I'm saying is if this program had been in place, I am 
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.''
    Senator Levin. The CIA did not raise its hand, although it 
knew; is that correct? You've read the history.
    General Hayden. I have read the history. I'm not familiar 
with what you just said, though, about their being there.
    Senator Levin. 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 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 27, 2006, also be made part of the record.
    Chairman Roberts. Without objection.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 31314.008
    
    [GRAPHIC] [TIFF OMITTED] 31314.007
    
    Senator Levin. Thank you. Those are my last questions. 
Thank you.
    Chairman Roberts. Senator Wyden, do you wish another round?
    Senator Wyden. I do. Senator Feingold is here. I think he 
was ahead of me.
    Chairman Roberts. I'm sorry. We're going to go to Feingold.
    Senator Feingold. All right, thank you, Mr. Chairman. I 
don't have a lot.
    But, General, thank you.
    General Hayden. Sure.
    Senator Feingold. Several times this morning you said that 
the warrantless surveillance program could have prevented the 
9/11 attacks. Did you ever say this in open or closed session 
to the joint Committee or the 9/11 Commission?
    General Hayden. No, sir. And I need to clarify. I wouldn't 
have said that. And if I have, boy, that's badly misspeaking.
    What I said was, it would have identified two individuals 
we knew to be al-Qa'ida, would have identified them as such, 
and would have identified them inside the United States.
    Senator Feingold. Did you tell that to either the joint 
Committee or the 9/11 Commission?
    General 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.
    Senator Feingold. Why not?
    General 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.
    Senator Feingold. General Hayden, I want to follow up on 
your statement to Senator Snowe that DOD takes actions that 
don't look much different than CIA activities. What are the 
respective roles of the DOD and the CIA?
    General Hayden. Yes, sir, and I'm going to speak 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 and when you're 
watching them happening--are not, in terms of tradecraft or 
other aspects, recognizably different than collecting human 
intelligence for a foreign intelligence purpose.
    The legal blood line, though, for this one goes back to 
title 10, and inherent military activities. The blood line for 
this goes back to the 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.
    Senator Feingold. Does the comparative role of DOD and CIA 
vary by country? Does it depend?
    General Hayden. I guess it would depend. 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.
    Senator Feingold. Well, in terms of this idea of sort of 
doing this on a case-by-case basis, 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? Why not try to resolve 
this now rather than wait until some critical mission is 
potentially paralyzed by some kind of interagency conflict?
    General 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'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.
    Senator Feingold. Well, I wish you well with it, because 
obviously, we don't want people rather than fighting al-Qa'ida 
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.
    General Hayden. Thank you, Senator.
    Chairman Roberts. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    General, to wrap up, 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, it 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?
    General Hayden. Senator, more broadly, and without 
confining my comments to the terrorist surveillance program, 
and particularly without commenting or verifying anything----
    Senator Wyden. General, I only interrupt you to be 
humorous. If you want to say we can be more forthcoming, then 
we can wrap up the topic.
    General 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 that I'm not going to 
solve the polynomial equation created in Philadelphia in terms 
of inherent tension between Article I and Article II 
authorities.
    But my belief is that the way we get the comfort of the 
American people is by the dialog I can have with Members of 
this Committee, albeit in certain circumstances with the 
leadership and in other circumstances with the broader 
Committee.
    Senator 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 programs 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 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 considerable time. Before that New 
York Times story came out, as far as I can tell, only eight 
leadership 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.
    Chairman Roberts. The open part of this hearing is now 
concluded and we will move immediately to the closed session.
    General, thank you for your patience.
    General Hayden. Yes, sir.
    [Whereupon, at 4:40 p.m., the Committee recessed, to 
reconvene immediately in executive session.]
  

                                  
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