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/
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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:]
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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 sou
