U.S. Senator Russ Feingold Questions General Michael Hayden on his Confirmation to Become Director of the CIA At a Senate Select Committee on Intelligence Hearing May 18, 2006 Listen to the hearing FEINGOLD: Thank you, Mr. Chairman. FEINGOLD: First, General, congratulations on your nomination, on your obvious abilities, your tremendous experience and distinguished career of public service, and also on your manner. I want to say as one senator that I find it very easy to work with you and talk with you. HAYDEN: Thank you. FEINGOLD: And I admire some of the remarks you've made today in candor with regard to Iraq and some of the comparisons that one might make as we look at the Iran situation, that maybe we'd now want to handle it in the same way, so I appreciate all of that. Before I turn to you, let me just say generally, yesterday, four and a half years after the president authorized a program to wiretap Americans without a warrant and almost five months after the program was revealed in the press, the administration finally began describing the program to this committee. This long overdue briefing, hastily arranged on the eve of this nomination, in my view does not provide enough assurance that the administration's general contempt for congressional oversight has diminished. But Mr. Chairman, it is nonetheless welcome. And I look for more. Mr. Chairman, I came away from that briefing yesterday, more convinced than ever, first, that the program is illegal, and second that the president misled the country in 2004 before the revelations about this program became public, when he said that wiretapping of Americans in this country requires a warrant. And third, that there was absolutely no reason that the administration could not have told the full committee about the program four and a half years ago, as is required by law. FEINGOLD: Now, the question before us today is the nomination for the director of the CIA of General Hayden who directed and vigorously defended this illegal program. Again, General Hayden is highly experienced and I have enormous respect for his many years of service. But it is our responsibility to ask: What kind of CIA director would he be? Will General Hayden follow the law, not the law except when the president says otherwise? And will General Hayden respect Congress' statutory and constitutional oversight role and not just when the president deems it politically convenient? Let me be very clear, and I don't think there's any distance between me and General Hayden on this: Al Qaida and its affiliates seek to destroy us. We must fight back and we must join this fight together as a nation. But when the administration ignores the law and refuses to involve Congress, I think it actually distracts us from our enemies and weakens us and weakens what the general and everybody else is trying to do. Our greatest strength as a nation lies in a few basic principles: that no one is above the law and that no one may operate outside of our constitutional system of checks and balances. So, General, there are many intelligence matters that cannot be discussed publicly. FEINGOLD: But I think the American people have a right to know that what they are told publicly is in fact neither inaccurate nor misleading. And Senator Wyden was referring to a couple of statements that you've made in the past that may bear on this. On October 17, 2002, you told the joint inquiry into the terrorist attacks of September 11, 2001, that persons inside the United States, quote, "would have protections as what the law defines as a U.S. person and I would have no authorities to pursue it," unquote. Given that the president had authorized the NSA to wiretap U.S. persons without a FISA warrant, how do you explain this statement? HAYDEN: Senator, let's go back and look at the context in which I offered it. It is very clear to me, though, even under the president's authorization, that considerable legal protections would accrue to a, quote/unquote, "target in the United States affiliated with Al Qaida that would affect the ability of the NSA to track that target, compared to that target being in any other place on earth outside the United States." I also said that -- and that was in a totally open session, as I recall -- and I prefaced my remarks that day by pointing out that I had briefed the committee in more detail and that my remarks that day were necessarily limited. FEINGOLD: Well, General, I respect what you just said. But you specifically referred in that session -- I have the transcript here -- to U.S. persons in the context of FISA. In other words, you weren't talking about a different program. You weren't talking about some of the other protections that might be there. And to the American people and to members of Congress, when they're talking about FISA, that means a warrant. So I'm wondering how you can reconcile that with... HAYDEN: Again, Senator, I knew in my own heart and mind that we were not talking about domestic to domestic. HAYDEN: If my language could have been more precise, I apologize. But it was not an intent to mislead; it was to describe the limitations under which the agency worked and continued to work inside the United States. I think that was the speech where I talked about Osama bin Laden crossing from Niagara Falls, Ontario to Niagara Falls, New York, and saying all of a sudden, U.S. law kicks in, and my freedom of action against him is suddenly very limited, so that even though the president's program would, as we all now know, allow me to catch Osama when he called back to Waziristan, I couldn't catch the call from Buffalo to Pittsburgh. FEINGOLD: And I appreciate that example. And I take you at your word that you did not intentionally mislead. But it was misleading. And I think when you say you had no authority to pursue the target, the average person who knows enough about this would have concluded otherwise. But let me move on. As you know, there is now a vast body of legal scholarship that says that the warrantless surveillance of Americans violates the FISA law. And of course you said that your lawyers told you it was legal. But you are an intelligence professional with many years of experience conducting surveillance within FISA. Then one day, you're told that FISA doesn't apply -- and by the way, don't tell the full Intelligence Committee. Forget for the moment, General, what the lawyers said. Have you ever had any doubts that when this change in approach was made, that there may be a concern about not following FISA? HAYDEN: Senator, obviously, there were concerns. I mean, I had an agency that for decades, well, since the mid-1970s, had frankly played a bit back from the line, so as not to be close to anything that got the agency's fingers burned in the Church-Pike era. And so, this wasn't done lightly, and it wasn't done automatically. FEINGOLD: But did you have any doubts about the legality of doing this? HAYDEN: Personally, no, I did not. And that was submitted with my conversation with the lawyers I knew best, the lawyers at NSA. It probably would have presented me with a bit of a dilemma if the NSA lawyers had said, "No, we don't think so," but they didn't. HAYDEN: And there was no pressure on me. It was, "I need to know what you think." FEINGOLD: So were you frustrated prior to 9/11 that this kind of authority, which I take it you believe derives from Article II, the president's powers, was not being used; that only FISA was being followed? Did you think that was endangering American national security? HAYDEN: Well, actually, there was an interesting article today -- yes, it was today, in the Baltimore Sun, that talked about some NSA activities. And without getting into the fine print of the article and confirming or denying anything about it, it talked about discussions at my agency on the millennium weekend as to what we could or could not do inside the United States when we thought we were under great threat. And, according to the article, and just staying within the context of that, Senator, I made some decisions there that made some of our operators unhappy, in order to stay within the confines of statutes, because I had no other legal recourse to do something other than the FISA statute and Executive Order 12333, neither of which... FEINGOLD: Article II of the Constitution was in place at that time. HAYDEN: It was... FEINGOLD: So why didn't you have legal recourse to that? HAYDEN: Because the president had not exercised any of his Article II authorities to authorize the agency to do that kind of activity. FEINGOLD: Did you urge him to do so? HAYDEN: No, we did not at the time, no, sir. This happened very quickly. FEINGOLD: Well, of course my concern here, naturally, is: What is the limit to this Article II power and where does it leave the role of Congress in this area? And I was struck by your comments that you had had a conversation with Senator DeWine where you talked about -- earlier, not today, but an earlier occasion where you talked about the tension between liberty and security and what do the American people want? What I would submit to you, General, is that the American people have expressed what they want through the laws that are on the books now. And there can be helpful discussions, such as the one Senator Hagel just conducted with you about whether it should change. FEINGOLD: But at this point, it's the law. And you know as well as I do that no one, and not even the president, is above the law. And I want to remind you with all respect, General, because I have great respect for you, that no one can force you to break the law. HAYDEN: Doctor, I'm well aware of that. And our Uniform Code of Military Justice talks very clearly about the lawfulness of orders in order for the orders to be effective. FEINGOLD: Thank you, General. General, if you're confirmed, there will likely come a moment when the president turns to you and asks whether there is more the CIA can do under the constitutional authority that he has asserted under Article II. What would you tell him? Is there more? HAYDEN: Well, obviously a hypothetical, but let me just imagine the hypothetical in which not unlike the NSA situation, there are additional things that could be done. Senator, I'd consult my lawyers and my conscience just as I did in 2001. In this particular case, Senator, to be very clear, all right, the White House counsel, the attorney general, the Department of Justice's lawyers and my own lawyers at NSA ruled this to be a lawful use of the president's authority. FEINGOLD: You're referring back to the wiretapping. HAYDEN: Yes, sir. FEINGOLD: I'm asking you whether there are additional things you'd like to see -- you just indicated to me in a helpful response that prior to 9/11 you thought some things maybe should have been done pursuant to Article II, even though they were not permitted by FISA or perhaps some other statute. Are there other things that you believe now we should be doing that are not covered by statute that would fall under this category? HAYDEN: No, sir. None that I'm aware of. FEINGOLD: Take another example in this area. The law states that the director of the Central Intelligence Agency shall have no police subpoena or law enforcement powers or internal security functions. If the president told you that he felt he had power under Article II to override that, would you be bound by the statute or would you follow the president? HAYDEN: Again, Senator, it's a hypothetical. But the statute is clear, and unless there was a compelling legal argument as to why that was a legitimate exercise of presidential authority, of course not. FEINGOLD: Under this theory, could the CIA conduct covert action inside the United States? HAYDEN: Again, Senator, a hypothetical, and I wouldn't even know how to begin to address that. I mean... FEINGOLD: Just trying to figure out what it is that would limit the president from saying that to you and if he gave that order, or he made that statement, based on your answers it seems to me you believe he has that inherent power to do it... HAYDEN: No, no, sir. And what I believe is important but not decisive. There has to be a body of law from people whose responsibility it is to interpret the law for someone like the position I was in at NSA, or if confirmed, at CIA who would say that this, indeed, is lawful and a lawful exercise of authority. HAYDEN: And like I recommended and was quickly granted in the case in October 2001, we informed our oversight bodies. FEINGOLD: I appreciate that answer very much. And I just have to say, for the record, that the body of law that supports this wiretapping program, I think, is exceptionally weak compared to the other authorities that have been discussed. But you and I have been back and forth on that. But I think it's terribly important to realize, because you are acknowledging that you would have an independent obligation to look at whether that law's sufficient to justify the president's claim under Article II. HAYDEN: Again, Senator, it's a hypothetical. But, you know, four and a half years ago it was very important to me that the lawyers I knew best personally, that I trusted, and who knew best the National Security Agency were in agreement. FEINGOLD: Why wasn't the president's warrantless surveillance program briefed to the full congressional intelligence committees until yesterday? HAYDEN: It was not my decision. I briefed fully to whatever audience was in front of me. And I wouldn't attempt to explain the administration's decision, but it was the decision of the administration. FEINGOLD: You weren't given any explanation of why the decision was made not to allow it? HAYDEN: There were discussions... FEINGOLD: What were you told? HAYDEN: ... in terms of -- I believe it's Section 502 and 501 within the phrase "with due regard" in both of those sections. The one that has to do with general intelligence activities and the one that has to do with covert action in both cases, the paragraph (inaudible) with "due regard to the protection of sources and methods." Beyond that, sir, I... FEINGOLD: So it was the sources and methods the point that was made... HAYDEN: There was, I believe, a strong desire to keep this program as close-holed as possible because of its value... FEINGOLD: Fair enough... HAYDEN: ... while at the same time informing those who needed to be informed. FEINGOLD: Fair enough. On that point, and on the sources and methods justification, the National Security Act states that, quote, "Nothing" -- nothing -- "in this act shall be construed as authority to withhold information from the congressional intelligence committees on the grounds that providing the information to the congressional intelligence committee would constitute the unauthorized disclosure of classified information or information relating to intelligence sources and methods," unquote. General Hayden, the congressional intelligence committees handle sensitive sources and methods every day. HAYDEN: Yes, sir. FEINGOLD: What was it about this program that was different, other than the administration knew that it would be politically and legally contentious? HAYDEN: Senator, I wouldn't attempt to describe the background to it. I know what the decision was. I was heartened that I was able to brief the senior leadership of both intel committees and the senior leadership of the Congress. And I was heartened that I was able to do it multiple times. FEINGOLD: Well, in fairness to you, I got the feeling that you probably did want to tell more people. So I want to be fair about that. I got that feeling, but -- do you see the distinction between sensitive sources and methods which are part of a known program and an entirely new surveillance program whose existence would likely surprise, if not outrage, many members of Congress? I mean, isn't there a distinction, as we look forward, in that regard? HAYDEN: Sir, I apologize. I don't see the distinction in law. And I do know that practice has been, for activities, for example, like covert action, that only the senior member and the chairman are briefed. FEINGOLD: General, in January, you stated that you would, quote, "take no view on the political step of going to Congress for an amendment of the FISA Act," unquote. But the question of seeking a statutory basis for conducting surveillance in this country, in my view, is not a political question. It's fundamental to our constitutional system of government. General, if you saw that our country's statutes did not provide the authority you thought was necessary to combat terrorist organizations, would you seek that authority from Congress? HAYDEN: If I had no lawful authority to conduct something that I believe needed to be done to protect the nation, of course, I would. But in this case, Senator, just to make sure I'm not misleading by half by not being complete, in this case, I believe I did have a lawful authority. FEINGOLD: Can you explain to me why it is that we even need to pass laws in Congress in this area that relates to Article 2, given the claims that are being made by this administration of its power in this area? HAYDEN: Senator, again, if you look at the three pillars on which this program was based -- its lawfulness, its effectiveness and then the care with which it was carried out -- I'm, kind of (inaudible) for two and three, its effectiveness and the care with which it was carried out. And I think I suggested earlier today, the founding fathers intentionally put tensions between Article 1 and Article 2. And I don't think I can solve those. FEINGOLD: Senator Bond asked you whether, under the warrantless surveillance program, any Americans had been targeted who were not associated with Al Qaida. And you replied only that you didn't see how that could occur within the NSA's culture. The question remains: Has it happened? HAYDEN: In each case, when NSA has targeted a number under this program, there has been a probable cause standard met, in the judgment of our analysis and those who oversee them, that there is reason to believe -- a reasonable person with all the facts available to him or her at the time has cause to believe that this communicant is associated with Al Qaida. FEINGOLD: But that's not my question. And that wasn't Senator Bond's question. It's whether it's ever happened that any Americans have been targeted who weren't associated with Al Qaida. As a matter of fact, has it happened, despite the cautions... HAYDEN: Sir, I'll give you a detail in closed session, all right? Clearly, I think logic would dictate that if you're using a probable cause standard as opposed to absolute certitude, sometimes you may not be right. FEINGOLD: Has there been a thorough and ongoing view of this question? HAYDEN: Oh, yes, sir. Yes, sir. FEINGOLD: And will these reviews be submitted to this committee? HAYDEN: Sir, I think they're available to this committee during your visits at the agency and in response to the questions that you've asked. I think by review you mean what's been targeted, what have been the results, how long... FEINGOLD: Are there documents and will they offer us the answer to my earlier question relating to whether people that were not associated with Al Qaida have been trapped in this sort of thing? HAYDEN: Well, how long targeting has gone on, why targeting is ceased. Senator, let me make something very clear, though. Speaking in the abstract a bit, OK, to put someone on targeting under NSA anywhere in the world -- obviously we're talking about this program -- and then at some point end targeting doesn't mean that the first decision was wrong. It just means this was not a lucrative target for communications intelligence. FEINGOLD: I respect that, but you know, this is exactly why, it seems to me, that FISA had it right by having some oversight of this under a court. And you obviously are doing everything you can to avoid any mistakes in this area. HAYDEN: Yes, sir. FEINGOLD: But if the FISA Court were involved, we wouldn't have to be discussing this. And based on the comments of Senator Feinstein and others, I still believe that this could be done within that construct, within that statute. As you know, General, the law allows for congressional notifications to be limited to the so-called gang of eight, only in cases of covert action. Even in those cases, the president must determine that it is essential to meet extraordinary circumstances affecting vital interests to the United States. In your view, what kind of circumstances would justify failing to notify the full congressional Intelligence Committees of covert action? HAYDEN: Senator, I'm sorry, could you just say the last part again? FEINGOLD: Yes. An example of a situation that would somehow take the administration or you out of the responsibility of informing the full committee. HAYDEN: That was not a covert action? FEINGOLD: What kinds of circumstances would justify failing to notify the full congressional Intelligence Committee of covert action? HAYDEN: Senator, I apologize, that's a very difficult question for me to answer. And as I said in my opening comments, all right, this is a long war, and it's going to require broad political support over a long period of time. FEINGOLD: You can't give me a hypothetical, something that might fit that category, so I can imagine what it would be? HAYDEN: Senator, I'm sorry. I just really can't. FEINGOLD: OK. HAYDEN: It's a bit beyond my experience level. FEINGOLD: Will you notify the full committee after the covert action has begun? HAYDEN: Senator, I'd have to refer myself to the laws in terms of who gets notified and when. I do know that there is a requirement for speedy notification, and we, of course, would do that. FEINGOLD: Will you provide to the full committee information on all past intelligence activities, including covert action that has been previously provided only to the gang of eight? HAYDEN: Senator, I'm sorry, I'm just not familiar with what the requirements under the law for that. FEINGOLD: Mr. Chairman, I would simply ask that you review that question, if you would. And I do request, unless you have... ROBERTS: We'll be happy to review it. FEINGOLD: ... an objection, that that be provided. Thank you, Mr. Chairman.