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CNN LIVE EVENT/SPECIAL

Hayden Hearing

Aired May 18, 2006 - 12:01   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


WOLF BLITZER, CNN ANCHOR: To our viewers, you're in THE SITUATION ROOM, where new pictures and information are arriving all the time.
Standing by, CNN reporters and analysts for our special coverage of General Michael Hayden's confirmation hearing.

Happening now, the president's choice to be CIA director strongly defends his role in domestic spying.

It's noon here in Washington, where General Hayden is promising to try to take some of the politics out of the intelligence-gathering process.

A hot issue on the Hayden hearing -- in the Hayden hearing, that is, wiretaps without warrants. Are Americans worried that big brother is listening to them? We have some brand new poll numbers to share with you.

And is Hayden getting some tough questions? Is he giving the right answers? We'll ask senators on the Intelligence Committee how the hearing is going so far.

I'm Wolf Blitzer. You're in THE SITUATION ROOM.

Welcome back to our live coverage.

The Senate Intelligence Committee is taking a break from its grilling of CIA director nominee General Michael Hayden. From the start, Hayden addressed some members' biggest concerns, including his role in creating the National Security Agency's controversial surveillance program. The former NSA director says he's confident the program is legal, but there are many, many more questions to be asked and answered.

The hearing is going on right now. We'll go back there live shortly.

But standing by, our national security correspondent, David Ensor; our senior legal analyst, Jeff Toobin. Our Congressional Correspondent, Andrea Koppel, is joining us from inside the hearing room with an update on what has happened over the past two and a half hours.

ANDREA KOPPEL, CNN CONGRESSIONAL CORRESPONDENT: Wolf, I think that the banner that you just had -- in fact, that you do have on the screen right now -- is very accurate. Hayden is in the hot seat. And Democrats have been pressing him.

The two Democrats that have gone thus far, Ron Wyden, from Oregon, who is questioning Hayden right now, and Carl Levin, who is the top Democrat on the committee from Michigan. You're hearing the line of questioning focusing on General Hayden's credibility when he was the head of the NSA, when those wiretapping programs, the surveillance programs were kicked off in the wake of 9/11.

You heard Ron Wyden put it right in square center, saying that he questioned General Hayden's credibility. Then you heard -- before that, you heard Carl Levin putting Hayden on the spot. There was a very, very heated exchange, in particular, about whether or not those press reports were true.

(BEGIN VIDEO CLIP)

SEN. CARL LEVIN (D-MI), INTELLIGENCE COMMITTEE: Is that the only privacy concern in this program, the international phone calls?

GEN. MICHAEL HAYDEN, CIA DIRECTOR NOMINEE: Senator, I don't know how to answer your question. I have 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.

LEVIN: Is the only privacy concern, though, in this program relate to international phone calls?

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...

LEVIN: That he had confirmed publicly?

HAYDEN: Yes, sir, that he had confirmed publicly.

LEVIN: Is that the whole -- is that the whole program?

HAYDEN: Senator, I'm not going to be able to talk about that in open session.

LEVIN: I'm not asking you what the program is. I'm just simply saying, is what the president described publicly the whole program?

HAYDEN: Senator, all I'm at liberty to say in this session is what I was -- what I was talking about. And I literally, explicitly said this at the press club. I'm talking about the program the president discussed in mid-December.

(END VIDEO CLIP)

KOPPEL: What you're hearing there are Democrats expressing their frustrations and their anger at people like General Hayden, Wolf, who they believe perhaps deliberately misled them about the extent of this wiretapping program, this surveillance program, and also whether or not General Hayden is somebody who they can trust once he gets to the CIA to talk -- to talk deliberately and straight and honestly to them if he -- if he gets that job.

I should also mention, Wolf, that there is really no question but that General Hayden is going to be confirmed. Both Democrats and Republicans have told me that this nomination is not in jeopardy -- Wolf.

BLITZER: Andrea, stand by.

Jeff Toobin is our senior legal analyst.

Did you hear anything startling so far, Jeff?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Not really, because this is a forum that does not lend itself to a resolution. You know, this isn't even -- this isn't a courtroom where a judge is going to say this program was illegal, the administration violated the law, or the administration followed the law.

You have Democrats raising questions. You have General Hayden, who is, I think, a very appealing presence as a witness, saying we followed the law. And that's sort of where things are left.

So I think you see Democrats raising questions in a heated, but not angry, way. The General deflecting them. And I think that's likely where matters are likely to be left at the end of the day.

BLITZER: Jeff Greenfield, a lot of these Democratic members, they're under enormous pressure from their constituents, especially in the liberal community, to ask some tough questions of General Hayden. And they're -- clearly, Senator Wyden and Senator Levin have asked some serious questions. But as Jeff Toobin points out, in a very, very restrained manner.

JEFF GREENFIELD, CNN SR. ANALYST: Well, look, if you're just looking at the politics of it, the notion that the Democrats are going to take a position and say we don't want our intelligence agencies to be aggressive in trying to find out if people are trying to attack us, it's a nonstarter.

I actually did hear something that I think we may be -- we want to pay special attention to, which is when Senator Levin asked General Hayden about any disagreements he had within the Defense Department, former undersecretary of defense, Doug Feith. And he said, yes, there was some -- there was an uncomfortable moment there.

I think this is critical, because one of the things we're not going to hear talked about really openly is the battle between the CIA and the Defense Department and the office of the vice president in the run-up to the Iraq war. I alluded to this earlier. And that one answer, which was a little cryptic and I don't think we got full details of it, suggests that there was some uncomfortableness between General Hayden or between the intelligence community and what the Defense Department was pushing for on intelligence. And that may be substantively the most interesting part of the -- of the conflict that we're going to hear today. I don't think we're going to hear angry attacks from the Democrats on General Hayden as NSA director in terms of privacy because that's not where they're headed for.

BLITZER: Jeff, Candy Crowley, our senior political correspondent, is here in THE SITUATION ROOM with us as well, and I want to share with her and with you and our viewers some new CNN poll numbers that have just come out. We'll put them up on the screen.

Here is a question: "The government wiretaps without court order of U.S. citizens not suspected of terrorism?" Look at this, 63 percent say that's likely, 29 percent say it's not likely.

"Has the federal government ever wiretapped your conversations?" We'll put that on the screen. Twenty-six percent say that's likely, 66 percent say that's not likely.

Candy Crowley, what do you make of the way the public, at least according to our CNN poll, feels about these sensitive issues?

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: Well, this tells us what they think is happening. Now, how they feel about it so far has been -- from the very beginning, when we heard about the warrantless wiretaps, people didn't seem to care that much. The poll numbers have come down a little bit. But the public clearly is struggling with the same thing that the intelligence community and Congress is struggling with, which is where is that line between protecting people's right and protecting the nation as a whole?

BLITZER: Here are two more questions we asked in this new CNN poll that's just coming out right now. As far as Bush administration gathering phone records to locate terrorists, 54 percent say that's right, 39 percent say that's a wrong thing to do.

And on this question, "Bush administration wiretaps of suspected terrorists without court order," 44 percent say that's right, 50 percent say that's wrong.

Our senior political analyst, Bill Schneider, who is always crunching new numbers, is joining us in THE SITUATION ROOM.

What do you make of these latest poll numbers, Bill?

WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: Well, first of all, it's interesting, isn't it, that 63 percent believe that the government is wiretapping ordinary citizens, wiretapping, listening to their phone calls, domestic phone calls, which they deny. They say they're just collecting records of phone numbers called.

But only a quarter say they're listening to "my" phone calls. Well, obviously, people think "my" phone calls are not that interesting or important. But they're listening to somebody's phone calls.

Americans in the number you just showed are, in fact, pretty closely divided about these issues because there are two different values involved. One is, do whatever it takes to combat terrorism, very important, but be careful about not violating the privacy of ordinary American citizens.

The difference between the approval and disapproval of the two programs, the wiretap program and the surveillance program, is, of course, the fact that one involves actual wiretapping, listening to conversations. There people have some problems. And the other involves collecting phone records in order to combat terrorism. There the public is more approving.

BLITZER: Jeff Greenfield, you want to weigh in on these numbers we just showed our viewers?

GREENFIELD: Wolf, I think I'm on record as to what I think about some polls like this. I just don't know what -- what -- all right, let me just put it bluntly. I don't know how valuable polls like this are, you know, except in telling us that more people think that the other guy is being wiretapped than them.

I think if you ask people in general, do you want the government watching the bad guys, they're going to say yes. And if you ask people, do you want the government watching, you know, your phone calls, or listening in on you as part of that, they're going to say, gee, I don't know about that. And I just don't know -- it seems to me the real question is, once we know what the government has done, are the people whose job it is to make and enforce the laws comfortable with what has been going on? And I guess based on what we're hearing so far today, they're kind of a little -- the Democrats are a little concerned about it, but they're certainly not going to be concerned about it enough to use it as a way to block General Hayden's confirmation.

BLITZER: It's a snapshot, these polls, as we like to say, Jeff. That's why we...

GREENFIELD: A blurry, sometimes out of focus snapshot, Wolf.

BLITZER: But sometimes if you put together a lot of these polls, you get even a better snapshot. And as a result, we can take a look at -- try to gauge what the American people think of all of this.

Candy, it looks like this snapshot shows that more people think it's right for the Bush administration to be gathering phone records to locate terrorists than it is for the Bush administration to be wiretapping suspected terrorists without court orders. Fifty-four percent say it's right on the former, 44 percent say it's right on the latter.

Is that a difference, a significant difference?

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: Well, it's unclear to me, because I think the reporting on this has been, you know, first of all, fairly new. And we haven't quite settled on what the heck they're doing with those phone records.

I don't think people necessarily see a huge difference between this. There are a lot of people who think that the phone records are wiretapping.

Nonetheless, when you say warrantless wiretapping, it immediately sounds bad. People like checks and balances, as opposed to, you know, that they want. But when you say, we just got a bunch of phone numbers, well, then who cares about that? So I think that's where they're finding a difference.

BLITZER: All right. I think we're going to take another short break. We're going to continue our coverage of the confirmation hearings, General Michael Hayden to be the next CIA director.

Remember, if you want to watch all of this unfold uninterrupted, you can go to CNN.com/pipeline. Our Pipeline service will bring these hearings to you without commercial interruption.

We'll be right back.

(COMMERCIAL BREAK)

BLITZER: Welcome back. I'm Wolf Blitzer. We're in THE SITUATION ROOM.

We're covering the confirmation hearings of General Michael Hayden to be the next CIA director. He's answering questions from members of the Senate Intelligence Committee. We'll go back there momentarily.

Candy Crowley is here in THE SITUATION ROOM with us. John McLaughlin, the former deputy director of the CIA, our national security adviser, is here in THE SITUATION ROOM.

Jeff Toobin s our senior legal analyst.

Jeff, explain to our viewers, because I'm sure a lot of people are confused, the controversy involves two separate program that have been widely reported in the news media, these programs operated by the National Security Agency.

TOOBIN: Right. One involved listening to conversations. The others involve simply getting the records of phone calls, what numbers were called by which number.

There's a huge distinction in the law between the two domestically. When I was an assistant U.S. attorney, if I wanted to wiretap a phone or bug a room or a car, I had to go through all my superiors, I had to go through a special office in the Justice Department in Washington, and then I had to get the approval of a federal judge. It's a very big deal to do a wiretap.

Phone records are easy to get. If I wanted phone records, I just had a grand jury subpoena in the desk, I wrote down the phone number and the time period I wanted. I sent it off to Verizon, or its predecessor in those days, and there's an office full of people at Verizon that do nothing but answer grand jury subpoenas and give phone records. It's a very easy process. So the law has always made one a lot easier than the other domestically and internationally. And that tension is somehow not reflected in lumping them both together, as has been done here.

BLITZER: An excellent explanation.

John McLaughlin, we heard in the questioning that Senator Ron Wyden, Democrat of Oregon, member of the Intelligence Committee, was asking of Michael Hayden involving this program called Trailblazer. He was suggesting that a year ago, or last year when he went through his confirmation hearings to become the deputy national intelligence director, he said this was a glowing, a great program, overachieving what it was doing, although in the last issue of "Newsweek" there was an article suggesting this has been a huge waste of money, a billion dollars maybe up in the air, not necessarily used properly.

Explain to our viewers what this Trailblazer program that has now been made public is all about.

JOHN MCLAUGHLIN, CNN NATIONAL SECURITY ADVISER: Well, you heard General Hayden somewhat reluctantly talk about the nature of it, and the senator as well. So about all I can say at this point is that it was a large program to modernize the information architecture of the NSA.

And in judging General Hayden's performance on this, I think it's important not to look at a specific program and weight your entire judgment on that. The question you need to ask General Hayden is this, when he took over the NSA in 1999, it was in the analog era, as we were moving into very sophisticated technology, digital technology, fiber optics and so forth. The question to ask is, did General Hayden move the NSA from that era into this modern era where it can cope with modern technology?

I think a fair answer to that question is yes.

BLITZER: Because we have heard horror stories over at the FBI about trying to upgrade the computer systems there, and there are hundreds of millions of dollars, supposedly, been wasted because they simply can't get the job done. And they certainly did not have adequate computers before 9/11.

The argument here that some critics of General Hayden have made is that when he was the NSA director, he did not do an excellent job managing the resources there.

MCLAUGHLIN: Well, I think that is not a good argument. I have watched General Hayden perform over the years. A person managing an agency of this size with that kind of budget has to make decisions every day about difficult programs as technology is changing.

I'm sure that General Hayden made some decisions he would do differently, knowing everything that he knows now. But I'm also sure, quite confident, that he made a lot of decisions that were just the right kind of decisions for NSA. Again, going back to my -- my bottom line, I watched this agency for many, many years. And I would say in 1999 they were in serious trouble in terms of their capacity to live in a digital and a fiber optic world.

Just think about it this way in terms of volume. The average microwave tower transmits about 6,000 voice channels. The average fiber optic cable carries about -- just a single strand -- about 80,000.

So when he came in, NSA had a huge volume problem to cope with. And I don't know how one will ultimately judge this Trailblazer program, but I know in the aggregate NSA copes with all of those issues better than they did in 1999.

BLITZER: I guess what, Candy, what we're hearing John McLaughlin say is it's become in this digital era much more difficult to snoop.

CROWLEY: Absolutely. I mean, and that's what -- I mean, you know, there's sort of two arguments here.

I mean, one is we're snooping too much, and the other is we're not snooping well. So I think it's right. I think the parallel between the FBI and at this point, the NSA, and what the CIA needs, right, is to begin to move towards a more sophisticated way of dealing with today's technology?

MCLAUGHLIN: Well, that's an important part of what he'll have to bring to CIA, the technological part of it. And he talked about it.

Importantly, too, though, he's going to have to bring his experience -- this is an important point -- as the manager for signals intelligence across all of these agencies. That's what he did at NSA.

There are, you know, 14, 15 agencies. Some numbers of them do signals analysis. And he had to coordinate that.

Now at CIA, under the new legislation, the personal residing there as the director of the national clandestine service. He has to coordinate human intelligence collection over the entire community, and a lot of people do it. It's done in the Defense Department, it's done in the service intelligence agencies its done in the DIA, and so forth. And General Hayden will be able, I think, to migrate that experience in.

BLITZER: All right. Stand by, guys, because we're going to continue our coverage.

We'll take another short break. The confirmation hearings of General Hayden continuing.

We're going to also be speaking with Senator Trent Lott, Saxby Chambliss, Dianne Feinstein.

If you want to watch these hearings, by the way, uninterrupted and you're near a computer, go to CNN.com/pipeline. You'll be able to watch the hearings.

Stay with us. You're in THE SITUATION ROOM.

(COMMERCIAL BREAK)

BLITZER: Welcome back. I'm Wolf Blitzer in THE SITUATION ROOM.

We're watching the confirmation hearings of General Michael Hayden to become the next director of the CIA. We'll go back there live in a moment.

Let's get a quick check of some other important news we're following. We'll go to CNN's Carol Lin at the CNN Center.

Hi, Carol.

CAROL LIN, CNN ANCHOR: Hi there, Wolf.

Mobsters and mystery is what we're working on. Jimmy Hoffa is back in the news this hour.

The FBI is searching a Michigan horse farm for new clues in the 30-year-old case. An informant tipped them off that the body of the former Teamsters' president could be buried there.

Now, the farm is in Milford Township near Detroit. Hoffa was last seen at a meeting with a reputed mob enforcer in a restaurant in nearby Bloomfield Township.

(BEGIN VIDEO CLIP)

GENE ZAFFT, HOFFA ATTORNEY: We thought at that time he had been kidnapped, and they were kind of waiting to hear from someone making a demand. It never came.

(END VIDEO CLIP)

LIN: No one has ever been charged with Hoffa's disappearance or his death.

Well, Duke lacrosse player Reade Seligmann is back in court this afternoon. Seligmann is one of three players charged with rape. This is his first court appearance since being indicted.

Now, normally, this hearing would be pretty routine. But Seligmann's attorney wants the judge to order the prosecuting district attorney to reveal evidence. And that includes any criminal charges against the accuser and her cell phone log.

Well, a 30-year sentence, that's the latest chapter in the legal saga of Lionel Tate. He's the Florida teen who was once the youngest person sentenced to life in prison. That conviction for killing a 6- year-old playmate was overturned.

Now Tate faces 30 years behind bars for violating his parole. That stems from his arrest last May, when he was charged with robbing a pizza deliveryman. Tate faces trial on that charge in September.

Well, a deadly school stabbing. It happened in Conway, South Carolina, near Myrtle Beach. Local reports say an unidentified female was killed in -- at Carolina's Forest Middle School. And an adult male suspect is in custody.

The stabbing took place in the school's parking lot as students arrived for classes this morning. Both the middle school and a nearby high school went into immediate lockdown, but police say students were never in any danger.

Well, fire at a landmark in Akron, Ohio. The original building where the Goodyear Blimp was made caught fire this morning. The structure is so tall at 211 feet that firefighters couldn't reach all of the flames shooting out of it.

The air dock now owned by Lockheed Martin is in the process of building a high-altitude airship for missile defense. It's been around for 76 years.

Back to you, Wolf. That's a long, long time.

BLITZER: Carol, thanks very much for all those reports.

We're going to continue to watch the hearing here in Washington before the Senate Intelligence Committee. General Michael Hayden being asked some serious and important questions on the future of the U.S. intelligence community.

We're also standing by to speak with senators Trent Lott, Saxby Chambliss, among others. They'll be joining us from the Capitol Hill hearing room.

Our special coverage will continue right after this.

(COMMERCIAL BREAK)

BLITZER: Welcome back. We're covering the confirmation hearings of General Michael Hayden to be the next CIA director. The Senate Intelligence Committee has been meeting for almost three hours right now. We'll go back there shortly. But two key Republican members have emerged to answer some of our questions.

Trent Lott of Mississippi, Saxby Chambliss of Georgia. Senators, thanks very much for joining us.

Senator Lott, I know you've been uncomfortable with some of these programs that have been run by the National Security Agency, the invasion of privacy, if you will. Have you been completely reassured by what you've heard so far today?

SEN. TRENT LOTT (R), MISSISSIPPI: Well, I think you can always have some additional questions or concerns. But for the most part, I've been satisfied. And it's not as if I hadn't been briefed earlier. I did have some familiarity with these programs. I think General Hayden is so well qualified and brilliant. He's got tremendous intelligence background.

So I feel good about the leadership he'll provide for the CIA. We were briefed by General Alexander from NSA earlier this week, and I thought he did a very good job. So I'm comfortable with it. I do think it's good that the entire intelligence committee is being briefed -- given more information. I hope it's not leaked, because it's a very important program that has helped us in the war on terror.

BLITZER: Does it bother you, Senator Lott, that this is a military man who will run a civilian agency of the intelligence community?

LOTT: I actually would prefer a civilian, but I don't think it's debilitating by any means. I'm going to ask General Hayden a couple of questions about that hopefully later on today. I think the most important thing is to get the most qualified person you can find with an intelligence background to bring order to the CIA, get the CIA out of the news, in terms of either a source or the subject, as General Hayden said this morning.

So I've met with him, and we've discussed his role there as a four-star Air Force general. I think he can do the job. And frankly, as I've said before, I think sometimes it takes one of your own to tell you no. I hope he'll be prepared to tell secretary of defense, whomever that may be, no on occasion when it's in the best interest of overall intelligence.

BLITZER: Senator Chambliss, he was blunt, the general -- General Hayden -- when he was asked at one of the exchanges earlier about an effort, a reported effort at the Pentagon under Donald Rumsfeld and Paul Wolfowitz, to have, in effect, this separate intelligence operation run by then undersecretary Doug Fife because they weren't happy about what the intelligence community was telling them about the connection or lack of a connection between Saddam Hussein and Osama bin Laden and al Qaeda. He said he thought it was wrong was Doug Fife and the Pentagon were doing. This is blunt talk coming from an active duty four-star general.

SEN. SAXBY CHAMBLISS (R), GEORGIA: Well, one thing you can't question about General Hayden is his character, his integrity, his commitment to do the right thing in the intelligence community. I felt he did a good job of answering it there, and he's acquitted himself well today.

And I agree with what Trent said. You know, he's told the secretary of defense no. But he also has to stand up to the director of national intelligence from time to time, because we've got to maintain some independence on the part of the CIA. It's critically important that we continue that. And General Hayden is one who will stand up to superiors when the time is right.

BLITZER: Candy Crowley has a question. Go ahead, Candy.

CROWLEY: Senator, 63 percent of Americans believe that the government, without a warrant, is wiretapping U.S. citizens who are not suspected of terrorism. Can either one of you assure us that that's not happening?

CHAMBLISS: I think without question the law prohibits wiretapping, Candy, of any American citizen without a warrant.

CROWLEY: Sure, but is it happening? I think that's the question. Can you assure me it isn't happening?

CHAMBLISS: It is against the law. And I don't know of any agency that is breaking the law.

BLITZER: Senator Lott, you want to weigh in on that?

LOTT: Well, I just think it's important that we use technology every way we can within the law to deal with the terrorist threat that we face. I think most Americans -- I don't know what the percentages would be, would feel that some surveillance of -- you know, of terrorists or calls coming from overseas -- I don't want to get into too much detail here -- but I think they understand that this is one of the tools we can use to track what potential terrorists are doing. There's a process to do that, and I'm satisfied that that has been followed, that it has been legal and that we should not give up this tool.

BLITZER: What can you tell us, Senator Chambliss, about the tracking of phone call records, as opposed to the warrantless wiretap -- wiretapping? The story that emerged last week in "USA Today," Senator Chambliss, you have now briefed. I know there are ground rules on what you can say publicly or not, but what can you share with the American public?

CHAMBLISS: Well, suffice it to say, Wolf, there have been some public statements recently about incorrect information being in that "USA Today" article. And there is, in fact, an awful lot of incorrect information in that story. And that's one of the problems with these leaks that continue to occur. A lot of the information seems to be sensational, but the fact is that there's a lot of misinformation in there. And that is true with that story. And that's about I think as far as I need to go, relative to the specifics of it.

BLITZER: Can you -- you want to add anything, Senator Lott? Is there anything you want to correct the record? Because there is this widespread assumption that the NSA has been tracking literally billions and billions of phone calls of average American citizens to try to get some sort of trend on who they're calling.

LOTT: Again, we have to be careful, but I think that is incorrect and misinformation. It's a much narrower focus than that. But also, here is one thing I want to be clear about. People are concerned about the program and privacy rights. But what about security? What about making sure that we're doing everything we can to thwart and deflect the efforts of terrorists who cause us great damage? I think the people would expect the president of the United States and the head of the CIA and Congress to do that in a responsible way. And I'm satisfied that they have done that.

BLITZER: Senator Lott, Senator Chambliss, thanks for stepping out for a few moments to speak to our viewers. Appreciate it very much.

CHAMBLISS: Good to be with you.

BLITZER: We're also going to be hearing shortly from a Democrat, Dianne Feinstein. She's, in fact, asking questions right now. We're going to go back there live in a moment right after this short break.

(COMMERCIAL BREAK)

BLITZER: Welcome back to THE SITUATION ROOM. I'm Wolf Blitzer in Washington. Let's go right back to the Senate Intelligence Committee. Senator Dianne Feinstein of California is asking serious questions to General Michael Hayden.

HAYDEN: ... in a broad sense about reasonableness, and then, after the comma, talks about the probable cause standards for warrants.

The approach we've taken at NSA is certainly not discounting at all, ma'am, the probable cause standard and need for probable cause for a warrant. But the standard that is most applicable to the operations of NSA is the standard of reasonableness -- you know, is this reasonable?

And I can elaborate a little bit more in closed session, but for example -- for example, if we have a technology that protects American privacy up to point X in the conduct of our normal foreign intelligence mission, it is reasonable, and therefore we are compelled, to use that technology.

When technology changes and we can actually protect privacy even more so with the new technology, "reasonable" just changed and we must go to the better technology for the protection of privacy. It's that reasonableness debate that informs our judgment.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Let me ask you: that "reasonable" standard is your standard. It's not necessarily the law because the Fourth Amendment very specifically states, in Judiciary, we had former FISA judges come before us. They said, in effect, in their court, the probable cause standard was really a reasonable suspicion standard.

Now you're creating a different standard which is just, as I understand it, just "reasonableness."

HAYDEN: No, ma'am. I don't mean to do that. And Lord knows, I don't want to get deeply into this because, I mean, there are serious questions of law with people far more expert than I.

To give an example, purely illustrative and hypothetical, NSA, in the conduct of its foreign intelligence work, in the conduct of its foreign intelligence work, intercepts a communication from a known terrorist, let's say, in the Middle East. And the other end of that communication is in the United States.

One end of that communication involves a protected person. Everything NSA is doing is legal up to that point. It is targeting the foreign end. It has a legitimate reason for targeting it and so on.

But now, suddenly, we have bumped into the privacy rights of a protected person. Now, no warrant is involved. We don't go to a court.

HAYDEN: Through procedures that have been approved by this committee, we must apply a standard to protecting the privacy of that individual.

And so there we -- we've touched the privacy of a protected person. But there are clear regulations held up to the reasonable standard of the Fourth Amendment, but not the warrant requirement in the amendment, ma'am.

FEINSTEIN: Well, I'd like to debate that with you this afternoon, if I might.

HAYDEN: Sure.

FEINSTEIN: Let me move to detention, interrogation and rendition.

I'm very concerned that the practices -- these practices create enormous long-term problems for our country. They cast shadows on our morality, our dedication to human rights and they disrupt our relations with key friends and allies.

The administration has stated that when it renders an individual to a third country for detention or interrogation, it obtains diplomatic assurances from that country that the suspect will not be tortured.

What steps does the administration take to verify compliance with such assurances after a detainee is rendered or transferred?

HAYDEN: Yes, ma'am. By law, we're required to make a judgment on the treatment that someone who is transferred to another sovereign power would get. In the legislative history of the law, which we're following here, the requirement is a judgment that torture is less rather than more likely in the case involved.

Clearly, if we received evidence, indications and so on that, that had happened, that would impose additional responsibilities on us.

FEINSTEIN: Well, what United States government officials visit those sites to see if there is such evidence?

HAYDEN: Ma'am, the true answer is I don't know.

And I'd be reluctant to try to speculate. I don't know.

FEINSTEIN: In an interview with "Time" magazine published on April 12th, Director of National Intelligence John Negroponte said "the terrorist suspects held by the CIA in secret prisons are likely to remain incommunicado detention for as long as the war on terror continues," end quote.

As principal deputy to the DNI, is it your policy that individuals may be secretly detained for decades?

HAYDEN: Ma'am, I know there's been some broad discussion about this publicly.

I know Secretary Rice has talked about our responsibilities under both U.S. and international law.

HAYDEN: Let me give you a full answer, ma'am, and let me give it to you in the closed session, but I would really be happy to answer your question.

FEINSTEIN: Is there a periodic review of what useful and actionable intelligence can be gathered through interrogations and debriefings of terrorists that have been held with no contact with Al Qaeda or other groups for years?

HAYDEN: Again, a more detailed in response in closed session. Let me just hold it for closed, ma'am. And I think...

FEINSTEIN: You can't say whether there's a periodic review?

HAYDEN: Ma'am, obviously we would do things for a purpose, and therefore the intelligence value of any activity we undertake would be a very important factor.

But, again, I don't want to state or imply things that I should not in open session. So let me just hold it, and I will give you a very detailed answer in the closed session.

FEINSTEIN: On March 17th, 2005, Director Porter Goss stated to the Senate Armed Service Committee that waterboarding fell into, quote, "an area of what I will call professional interrogation techniques," end quote.

Do you agree with that assessment? Do you agree with Mr. Goss's statement that waterboarding may be acceptable?

If not, what steps have been taken or do you plan to take to correct the impression that may have been left with agency employees by Mr. Goss' remarks?

HAYDEN: Yes, ma'am. Again, let me defer that to closed session, and I would be happy to discuss it in some detail.

FEINSTEIN: Do you believe that the CIA is legally bound by the federal anti-torture statute and the Detainee Treatment Act adopted last year?

HAYDEN: Yes, ma'am.

FEINSTEIN: Does the president's signing statement affect CIA's compliance with this law? HAYDEN: Again, ma'am, I don't want to get between Article I and Article II and the inherent tensions between those. But let me answer the question as the potential director of the Central Intelligence Agency.

HAYDEN: The CIA will obey the laws of the United States and will respond to our treaty obligations.

FEINSTEIN: Has the agency received new guidance from the Department of Justice concerning acceptable interrogation techniques since the passage of the Detainee Treatment Act?

HAYDEN: Let me answer that in closed session, ma'am. But, again, I will be delighted to answer it for you.

FEINSTEIN: The New York Times reported on November 9th, 2005, that in 2004, the CIA inspector general concluded that certain interrogation practices approved after the September 11th attacks did constitute cruel, inhuman, and degrading treatment as prohibited by the Convention Against Torture.

Do you agree with the I.G.'s conclusion? And what corrective measures, in any, have been instituted in response to the I.G.'s findings?

HAYDEN: Ma'am, again: More detailing in closed session. I would have to learn more about the I.G.'s findings.

In addition, again, the definitive statement as to what constitutes U.S. law and whether behavior comports or does not comport with U.S. law, I would look to the Department of Justice for guidance.

FEINSTEIN: Ambassador Negroponte and other intelligence officials have estimated that Iran is some years away from a nuclear weapons capability. How confident are you of these estimates?

HAYDEN: Again, I would be happy to give additional detail in closed session. But I do want to say more about this with an open. Iran is a difficult problem. We call it a hard target. But I think it unfair to compare what it is we believe we know about Iran with what it is we prove to know or not know about Iraq.

HAYDEN: We have got a great deal of intelligence focus on the target. I would say that that judgment was given somewhere between medium and high confidence, ma'am.

FEINSTEIN: Given the problems with estimates of Iraqi weapons of mass destruction, how can the American public being confident of the accuracy of estimates regarding Iranian plans and programs?

HAYDEN: Yes, ma'am, fair question.

And we've got to earn confidence by our performance. We have to earn confidence by our performance. We have learned a lot of lessons on the Iraq WMD study. Many of the lessons you've documented for us.

One key one that I wanted to mention when the chairman was talking about it: The Iraq WMD estimate was essentially worked in a WMD channel. It was absent a regional or cultural context. We are not doing that now.

It was looked at, almost, square-cornered-wise, mathematically, ma'am, in terms of precursor chemicals or not, precursor equipment or not, absent, I think, a sufficient filter through Iraqi society and what we knew of it.

We're not doing that on Iran. Besides the technical intelligence, there's a much more complex and harder to develop field of intelligence that has to be applied as well: How are decisions made in that country? Who are making those decisions? What are their real objectives?

FEINSTEIN: One of the questions your answered in writing -- number eight, to be specific -- asked what you thought are the greatest threats to our national security. And your response essentially restated Ambassador Negroponte's testimony before this committee in February.

I mean, I don't agree with the ambassador's statement, but do you have any independent or differing views on the threats we face?

HAYDEN: Well, in one sense, your legislation made it very clear that the ambassador sets the priorities, and so on the face of it I don't recoil that my priorities look a lot like his.

Five things come to mind: CT, number one, counterterrorism; counterproliferation; Iran; East Asia, Korea; and one that overarches all of them: We can't be surprised again.

FEINSTEIN: OK.

Now, let me go to an issue, many members of Congress are concerned that...

SEN. PAT ROBERTS (R), KANSAS: Senator, I hate to do this, but there is a vote under way, and you will have ample time on a second round if we can do that.

FEINSTEIN: Do I have time remaining?

ROBERTS: Yes -- well, no.

But if you can wrap it up in 30 seconds or something like that, that would be helpful.

FEINSTEIN: Can I just do it quickly?

HAYDEN: Yes, ma'am.

FEINSTEIN: This is the uniform...

HAYDEN: Yes, I understand.

FEINSTEIN: ... the active-duty presence. Have you thought about that? And could you share with us your decision?

HAYDEN: Sure. My current thinking.

The concern that my being in uniform affects my thinking: My life affects my thinking. The fact I have to decide what tie to put on in the morning doesn't change who I am, one. Two, chain of command issues: nonexistent. I'm not in the chain of command now. I won't be in the chain of command there. I respond to Ambassador John Negroponte.

Third, more important, how does my being an active-duty military officer affect my relationship with the CIA workforce? For want of a better term, since we're rushing here, ma'am, can I bond, and can they bond with me? That's the one that I think is actually a serious consideration. If I find that this gets in the way of that, I'll make the right decision.

FEINSTEIN: Thank you.

Thank you very much. Appreciate it.

SEN. RON WYDEN (D), OREGON: Mr. Chairman, did you say 1:30?

ROBERTS: The committee will stand in recess subject to call of the chair. And we will resume the hearing at 1:30. There is a vote right now, and we will take that time for lunch. And so would encourage all members to come back...

BLITZER: All right, so the committee is going to go into recess. They're going to go vote, they're going to go have some lunch. They'll resume the confirmation hearings at 1:30, about 35 minutes of so from now, 1:30 p.m. Eastern. We're going to take a short break. We'll wrap all this up right after this.

(COMMERCIAL BREAK)

BLITZER: They're in recess right now, having a little lunch, voting on other legislation. Members of the Senate Intelligence Committee wrapping up three-and-a-half hours so far of confirmation hearings of General Michael Hayden.

Andrea Koppel is our Congressional correspondent. She was watching and listening every step of the way.

Andrea, I thought it was very interesting at the very end there, under questioning from Dianne Feinstein, General Hayden said that he thought it was fine, he would go over to the CIA if confirmed wearing his Air Force uniform. But he also left open, albeit slightly, the possibility he would retire from the military if that was the appropriate thing to do.

KOPPEL: Wolf, I was talking off camera to Senator Saxby Chambliss, who you just had on the air, and he was telling me that it's his understanding that when General Hayden moved from the NSA to the DNI to become John Negroponte's deputy, that they worked out an arrangement so that he was able to keep his four stars, but no longer report to the defense secretary, Donald Rumsfeld. And that is his understanding as to perhaps what they're trying to work out right now.

I was just going to say, I think we have seen throughout this hearing, for the most part, the questioning come down pretty much along partisan lines. We did hear Olympia Snowe from Maine ask some pretty tough questions. We also heard Dianne Feinstein take a much softer approach. Nevertheless, when -- we heard Ron Wyden of Oregon, a Democrat, really go at General Hayden, in particular questioning his credibility. Take a listen.

(BEGIN VIDEO CLIP)

HAYDEN: ... to you as well. Anyone who has 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.

(END VIDEO CLIP)

KOPPEL: Now the problem, Democrats would come back and say, is that there was a very limited number, both within the larger Congress and also on the Senate Intelligence Committee and the House Intelligence Committee, who were in the loop on this NSA surveillance program, Wolf.

And Senator Wyden also said that just because they were finally brought in the loop yesterday when the current director of the NSA came up suddenly to give them this behind the doors intelligence briefing, doesn't excuse the fact that there had been years in which primarily Democrats, but some Republicans, were kept out in the cold on the details of this program, Wolf.

BLITZER: Andrea, thank you. Stand by because the hearings are going to be resuming shortly.

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