[Congressional Record (Bound Edition), Volume 152 (2006), Part 7]
[Senate]
[Pages 9715-9717]
[From the U.S. Government Publishing Office, www.gpo.gov]




                NOMINATION OF GENERAL MICHAEL V. HAYDEN

  Mr. LEVIN. Mr. President, General Hayden's nomination for Director of 
the Central Intelligence Agency comes at a critical time. The Agency is 
in disarray. Its current Director has apparently been forced out, and 
the previous Director, George Tenet, departed 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 mission.
  I will vote to confirm General Hayden because his actions have 
demonstrated on a number of important occasions the independence and 
strength of character needed to fulfill the most important role of the 
CIA Director--independence and a willingness to speak truth to power 
about the intelligence assessments of professionals in the intelligence 
community.
  This nomination has been considered by me on two key issues: One, 
whether or not General Hayden will be independent--and I believe he 
will--and two, what judgment should be rendered about him based on what 
is known about the National Security Agency's surveillance program 
which he administered during his tenure as Director of the NSA. Again, 
the highest priority of the new Director must be to ensure that 
intelligence provided to the President and the Congress is objective 
and independent of political considerations. It was only a few years 
ago that then-CIA Director George Tenet shaped intelligence to support 
the policy position of the administration. There are many examples.
  On February 11, 2003, just before the war, Director Tenet publicly 
stated, as though it were fact, that Iraq has ``provided training in 
poison and gases to two Al-Qaeda associates.'' However, we now know 
that the DIA, the Defense Intelligence Agency, had assessed a year 
earlier that the primary source of that report was more likely 
intentionally misleading his debriefers, and the CIA itself had 
concluded in January 2003, before the Tenet public declaration that I 
have quoted, that the source of the claim that Iraq had provided 
training in poisons was not in a position to know if any training had 
in fact taken place.
  On September 28, 2002, President Bush said that ``each passing day 
could be the one on which the Iraqi regime gives anthrax or VX nerve 
gas or someday a nuclear weapon to a terrorist group.'' A week later, 
on October 7, 2002, a letter declassifying CIA intelligence indicated 
that Iraq was unlikely to provide WMD to terrorists or al-Qaida and 
called such a move an ``extreme step,'' a very different perspective 
from that which had been stated by the President. But the very next day 
after that declassification was obtained, Director Tenet told the press 
that there was ``no inconsistency'' between the views in the letter and 
the President's views on the subject.
  His statement was flatly wrong. His effort to minimize the 
inconsistency or eliminate it not only revealed his lack of 
independence, but it damaged the credibility of the Central 
Intelligence Agency.
  At a hearing in 2004, I asked Director Tenet about the alleged 
meeting between 9/11 hijacker Mohammed Atta and an Iraqi intelligence 
officer in Prague in April 2001. He told us that the CIA had ``not 
gathered enough evidence to conclude that it had happened'' and that 
``I don't know that it took place. I can't say that I did.'' What he 
neglected to say was that the CIA did not believe that the meeting had 
happened, a fact that he finally acknowledged publicly in July of 2004, 
after the war began, when he wrote that the CIA was ``increasingly 
skeptical that such a meeting occurred'' and that there was an 
``absence of any credible information that the April 2001 meeting 
occurred.'' We determined later that that CIA skepticism dated back at 
least to June 2002, before the war.
  Director Tenet also looked the other way when the administration 
publicly alleged that Iraq was seeking uranium from Africa. As a matter 
of fact, he had personally called the Deputy National Security Adviser 
to urge that the allegation be removed from the President's October 
2002 Cincinnati speech. Director Tenet was silent after the President 
included the allegation in his January 2003 State of the Union speech. 
It was not until July of 2003, long after the war began, 2 months after 
President Bush declared major combat operations were over in Iraq, that 
Director Tenet finally acknowledged publicly that the allegations 
should not have been included in the State of the Union speech.
  According to Bob Woodward's book ``Plan of Attack,'' when the 
President asked Director Tenet, following the CIA's presentation to him 
in December of 2002, about its intelligence relative to Iraq's 
suspected WMD programs, How confident are you in the intelligence about 
that, Director Tenet replied, ``Don't worry; it's a slam dunk,'' which 
it surely was not. But that is what the President wanted to hear. That 
is the message which Director Tenet presented to him, and that is the 
message that the President then presented to the American public.
  It is essential that the new Director of the CIA stand up to the 
administration in power, no matter what administration it is, when the 
intelligence does not support the direction that the administration 
wants to go. We cannot afford another Iraq intelligence fiasco.
  General Hayden has said that he will be an independent CIA Director. 
Based on his record, I believe him.
  One piece of evidence in that Hayden record relates to a strategy 
that the administration used to bolster its case for war. The decision 
was made by the administration to put a set of what was called ``fresh 
eyes'' to look over the intelligence relative to the alleged links 
between Iraq and al-Qaida. The Secretary of Defense created a separate 
operation in a DOD policy office led by Douglas Feith. While the 
intelligence community was consistently dubious of the links between 
al-Qaida and Iraq, the Feith office scraped and scratched and cherry-
picked the intelligence to produce assessments that said that there was 
a strong relationship between Saddam Hussein and al-Qaida. And then Mr. 
Feith bypassed the CIA, bypassed the intelligence community, and 
briefed that analysis to senior policymakers at the National Security 
Council and the Vice President's office.
  George Tenet told us that he was not aware of that prewar briefing by 
Mr. Feith, until I brought it to his attention in February of 2004. In 
making its case for war with Iraq, the administration used Mr. Feith's 
misleading intelligence to convince the country that Saddam and bin 
Laden were allies. There were few in the administration who had been 
willing to speak up against this bypass of the intelligence community 
process, a process whose very purpose is to provide balanced, objective 
assessments for the intelligence community. One of the few who has 
spoken up is General Hayden.
  At his nomination hearing, I asked General Hayden whether, when he 
was NSA Director before the Iraq war, he was comfortable with what 
Douglas

[[Page 9716]]

Feith was up to. My question to General Hayden was not just about Doug 
Feith. It was about whether the General was willing to speak the truth 
as he saw it, even if it went against the administration's case for 
war. General Hayden told the committee, relative to the Feith 
operation:

       No, sir. I wasn't comfortable.

  Has anyone else in the administration said that, spoken up and said 
that which is so obvious about the Feith operation?
  There may be others, but General Hayden is the only one that comes to 
mind. This is what he then said to the committee at our hearing on his 
nomination:

       It is possible, Senator, if you want to drill down on an 
     issue and just get laser beam focused, and exhaust every 
     possible--every ounce of evidence, you can build up a pretty 
     strong body of data, right? But you have to know what you're 
     doing, all right.
       I got three great kids, but if you tell me 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 build up.

  General Hayden said this:

       That would be very wrong. That would be inaccurate. That 
     would be misleading.

  Wrong, inaccurate, and misleading. That is a pretty good description 
of the Feith shop's prewar intelligence analysis. It is an indictment 
of the administration's use of that intelligence to make the case for 
war.
  But what is interesting, in particular, is not just what General 
Hayden said at his confirmation hearing; it is what he did at the time 
that the Feith office was actually out looking for intelligence to try 
to prove their premise that there was a connection between Saddam and 
al-Qaida. General Hayden actually placed a disclaimer on NSA reporting 
relative to any links between al-Qaida and Saddam Hussein, stating that 
SIGINT--or signals intelligence--``neither confirms nor denies'' such a 
link.
  So while you had the administration claiming the link and Doug Feith 
scrapping around, scratching for any little bit of evidence that could 
prove his preordained conclusion that there was such a link, you had 
General Hayden saying SIGINT, signals intelligence, neither confirms 
nor denies that such a link exists.
  In other words, we have in General Hayden more than just promises of 
independence and objectivity and a willingness to speak truth to power. 
We have somebody who has actually done so.
  There is another significant way in which General Hayden has spoken 
truth to power. When we were considering reforming the intelligence 
community to fill the gaps and the cracks that existed prior to 9/11 
and the Iraq War, there was a major effort to derail the proposal, in 
part because the legislation sought to shift some authority from 
Department of Defense components to the new office of the Director of 
National Intelligence. Although General Hayden is a four star general, 
he stood up to Defense Secretary Rumsfeld on this issue. It took some 
backbone and strength of character for him to do so.
  As to General Hayden remaining in active duty if he is confirmed, I 
would only make three points. One, he is not the first person to do so. 
Since the Central Intelligence Agency was established by law in 1947, 
three commissioned officers have held the tile of Director of Central 
Intelligence, RADM Roscoe Hillenkoetter, GEN Walter Bedell Smith, and 
ADM Stansfield Turner. I would also remind my colleagues that the 
Senate confirmed then LTG Colin Powell to be President Reagan's 
National Security Adviser even though there is no law that removes that 
position from the supervision or control of the Secretary of Defense.
  Secondly, General Hayden has sent a letter to Senator Warner which 
states ``I do not intend to remain in active military status beyond my 
assignment as Director, Central Intelligence Agency (if confirmed).'' 
This is an added assurance of independence and that he will not be 
shaping intelligence to please the Defense Department in order to put 
himself in a better position for some future appointment in the 
military establishment.
  Third, General Hayden's supervisor in his line of work as Director of 
the CIA will be by law Ambassador Negroponte, not Secretary Rumsfeld. 
So General Hayden would not be in the military chain of command but in 
the intelligence chain of command.
  To eliminate any doubt of that, we are including a provision in the 
Defense authorization bill, which is awaiting Senate floor action, to 
make that absolutely clear in law. Senator Warner and I think it is 
already clear, but we are going to make it doubly clear by putting that 
into the pending DOD authorization bill.
  As I mentioned, the key issue relative to General Hayden's nomination 
is the President's domestic surveillance program. Over the past 6 
months, we have been engaged in a national debate about the appropriate 
limits on the Government's authority to conduct electronic 
eavesdropping on American citizens.
  General Hayden was Director of the National Security Agency when the 
President authorized the program, and many of our colleagues have 
raised concerns about that.
  The administration has repeatedly characterized the electronic 
surveillance program as applying only to international calls and not 
involving any domestic surveillance. In February, for instance, the 
Vice President said:

       Some of our critics call this a domestic surveillance 
     program. Wrong, that is inaccurate; it is not domestic 
     surveillance.

  Ambassador Negroponte said:

       This is a program that was ordered by the President with 
     respect to international phone calls to or from suspected al-
     Qaida operatives and their affiliates . . . This was not 
     about domestic surveillance.

  General Hayden found a way to signal that the administration has not 
described the entire program. When asked at his confirmation hearing 
whether the program the administration described is the entire program, 
General Hayden said he could not answer in open session. Presumably, if 
it were the entire program, he could have easily answered, ``yes.''
  In addition, while Stephen Hadley, the President's National Security 
Adviser, has said relative to the reports that phone records had been 
provided to the Government under the NSA program, that it is hard to 
find a privacy issue here, General Hayden did not make that claim and 
instead acknowledged that, indeed, privacy was an issue, and surely 
whatever one thinks they believe about this program, privacy is an 
issue.
  There may be some who, when they understand the program, believe the 
privacy concerns are overridden by the security advantage. There may be 
others who reach the other conclusion that whatever security advantages 
are achieved do not overcome the privacy intrusions that are reported 
to exist by those phone records being in the possession or being 
available to the Government, according to those press reports. But 
whatever one's conclusion is, there are clearly privacy concerns 
involved. And when the general was in front of us--he was honest 
enough--and said: I cannot say there are no privacy concerns here, he 
was telling us something which should be obvious to each one of us.
  There are remaining for me a lot of unanswered questions about the 
NSA program, and I have been one who has been at least partially 
briefed. I am one of that subcommittee of seven for whom the briefing 
has begun. But the fact is, the legal opinions about this program are 
not General Hayden's, they are the Attorney General's. I am aware of no 
allegation that General Hayden took any action that went beyond what 
the President authorized or what the Attorney General advised was 
legal. There are legitimate grounds for criticism regarding this 
program, but such criticism should be aimed at the White House and the 
Attorney General.
  The Intelligence Committee is in the middle of an inquiry into the 
program. Now that the full committee has been authorized to be briefed 
on the program, all of the members of the Intelligence Committee need 
to catch up to where seven of us are, which is about halfway through 
the briefings. We are

[[Page 9717]]

still waiting for the administration to answer many questions that we 
have asked about the program.
  I want to turn for a few moments to the issue of detainee treatment. 
I would have liked General Hayden to be more forthcoming on this issue 
at his hearing. In his testimony, General Hayden affirmed that the CIA 
is bound by the Detainee Treatment Act of 2005. In particular, General 
Hayden stated that this legislation's prohibition on the cruel, 
inhuman, and degrading treatment or punishment of detainees applies to 
all Government agencies, including the CIA. The Detainee Treatment Act 
also requires that no individual under the effective control of the 
Defense Department or in a DOD facility will be subjected to any 
interrogation technique that is not listed in the Army Field Manual on 
Intelligence Interrogations. In response to my questioning, General 
Hayden agreed that the Army field manual would apply to CIA 
interrogations of detainees under DOD's effective control or in a DOD 
facility.
  I was disappointed, however, that General Hayden repeatedly chose not 
to 12 respond in public to many other questions on detainee treatment, 
deferring his answers to the hearing's closed session. I believe that 
he could have answered these questions and related his professional 
opinion in the public hearing.
  In response to Senator Feinstein's questions, General Hayden would 
not say publicly whether individuals held at secret sites may be 
detained for decades. He would not say publicly whether waterboarding 
is an acceptable interrogation technique whether the Agency has 
received new legal guidance from the Department of Justice since 
passage of the Detainee Treatment Act in December of last year. General 
Hayden would not answer my question whether the Justice Department memo 
on the legality of specific interrogation techniques, referred to as 
the second Bybee memo, remains operative, saying only that ``additional 
legal opinions'' have been offered. The problem is exacerbated because 
the administration continues to deny our requests for the second Bybee 
memo and other Justice Department legal memos which set out the legal 
boundaries for what constitutes permissible treatment of detainees.
  Under the Detainee Treatment Act, we have established a single 
standard--no cruel, inhuman, or degrading treatment or punishment of 
detainees. This standard applies without regard to what agency holds a 
detainee, whether the Defense Department or the CIA, or where the 
detainee is being held. Yet the administration will not say publicly 
whether this standard has the same meaning for the intelligence 
community that it has for our military. The Government's views on the 
standard for how we treat detainees remains cloaked in secrecy.
  The Armed Services Committee has heard from the judge advocates 
general of our military services on what they believe the standard for 
detainee treatment is. The judge advocates general were asked about the 
use of dogs in interrogations; forcing a detainee to wear women's 
underwear during interrogation to humiliate him; leading a detainee 
around the room on all fours and forcing him to perform dog tricks; 
subjecting a detainee to provocative touching to humiliate or demean 
him; subjecting a detainee to strip searches and forcing him to stand 
naked in front of females as an interrogation method; and 
waterboarding. In each case, the judge advocates general said that such 
treatment is not consistent with the spirit or intent of the Army fie1d 
manual. As I mentioned earlier, with the enactment of the Detainee 
Treatment Act, the Army field manual applies to all interrogations of 
detainees under the effective control of the Defense Department and all 
interrogations conducted in DOD facilities.
  General Hayden, in contrast, would not say in open session whether 
even waterboarding is even permitted. When the Senate Armed Services 
Committee's markup of the national defense authorization bill for 
fiscal fear 2007 comes to the floor later this year, the Senate will 
have the chance to demand some answers on the standard for the 
treatment of detainees. The new bill includes a requirement that the 
President provide Congress a definitive legal opinion, coordinated 
across government agencies, on whether certain specific interrogation 
techniques--including waterboarding, sleep deprivation, stress 
positions, the use of dogs in interrogations and nudity or sexual 
humiliation--constitute cruel, inhuman or degrading treatment or 
punishment under the Detainee Treatment Act of 2005. This provision 
would also require the President to certify to Congress that this legal 
opinion is binding on all departments and agencies of the U.S. 
Government, including the CIA, their personnel, and their contractors.
  While I disagree with General Hayden's decision not to publicly state 
his personal view, the general did affirm that the prohibition on 
cruel, inhuman, or degrading treatment in the Detainee Treatment Act 
applies to all Government agencies, including the CIA.
  We have asked the administration to clarify this matter. I would hope 
that the administration would, one, state clearly that waterboarding, 
sleep deprivation, and stress positions are unacceptable; two, state 
clearly that the standard in law prohibits the use of dogs in 
interrogations; and three, state clearly that acts like stripping a 
detainee for interrogation purposes or subjecting a detainee to sexual 
humiliation are prohibited. I also hope that the administration will 
state clearly that the International Committee of the Red Cross will be 
informed about all detainees held by the United States Government and 
adopt a policy of not rendering individuals in our custody where there 
is a reasonable possibility that the person will be tortured.
  As I said at the time the Senate approved the Detainee Treatment Act, 
enactment of this legislation means the United States has rejected any 
claim that this standard--cruel, inhuman, or degrading treatment or 
punishment--has one meaning for the Department of Defense and another 
for the CIA--one meaning as applied to Americans and another applied to 
our enemies, or one meaning as applied on U.S. territory and another 
applied elsewhere in the world.
  I conclude by saying, in my view, General Hayden will be the 
independent Director of the Central Intelligence Agency that we so 
desperately need and that the country deserves. The record demonstrates 
his willingness to speak truth to power, and I will vote to confirm 
General Hayden.
  I yield the floor.

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