Congressional Record: May 25, 2006 (Senate) Page S5202-S5208 Nomination of Michael V. Hayden Mr. HATCH.[...] Finally, I thank the leadership for expeditiously scheduling the confirmation vote for General Michael V. Hayden of the U.S. Air Force to be Director of the Central Intelligence Agency. In particular, I thank Intelligence Committee Chairman Roberts for organizing the open and closed hearings last week before our committee. The committee has a heavy work schedule, but nothing should be more important than moving forward an important nomination like this one. I also recognize the work of my other colleague, Senator Warner, for expediting this nomination through his committee. Air Force GEN Michael Hayden has spent his life in the service of our great country. I honor his dedication. He has honored us with his dedication. In my opinion, he brought enormous distinction to the uniform he wears, and his contributions have served the security of this Nation, particularly since the attacks of 9/11. They have made a profound difference in our ability to defend ourselves in a war unlike any we have been forced to fight. He was before us last year, and he is well known to this body. When last we saw him, he was to become the first deputy of an organization formed by the Congress, the Office of the Director of National Intelligence. In the legislation that created this office, we tasked it and its first officeholders with the enormous job of weaving together the disparate but impressive elements of the American intelligence community. Our concept was to create a whole that would be greater than the sum of its parts, but we left the work in the hands of the first Director, Ambassador Negroponte, and his deputy, the man whom the President now nominated to head the CIA. As a longtime military officer, as one who spent most of his life as an intelligence consumer and a distinct part of his life in both the human and technical practices of intelligence, and now as an architect of the new intelligence structure, General Hayden is an individual exceptionally prepared to take on the responsibility of transforming the CIA. It is my hope and expectation that, under the leadership of General Hayden, the talents and capabilities of the CIA not only make the difference in winning this current war on global terrorism but remain central to facing all of the challenges that loom before us once this particular conflict is won. We have the very real possibility of conflicts with Iran and North Korea. We must face the fact that the day may come when we are faced with the threat of armed groups from Latin America. What the CIA does today, if the lessons and experience it gathers from its contributions are conveyed to its new cadres, will play a key role in managing the conflicts of tomorrow. Let's hope none of these potential conflicts become such, and I really don't believe we need to allow them to become such. Reform of the intelligence community, in which the CIA has and should maintain a central position, is already well underway, in part due to the creation of the Office of the Director of National Intelligence and also due to the oversight by the Senate Intelligence Committee in insisting that the flaws in the intelligence process we have revealed be redressed. The DNI was created to coordinate the elements of the community, as well as to advance a reform agenda for the community as a whole, and in each of its elements. Reform, particularly in time of war, is never easy, and it is much more complicated than creating a new bureaucratic structure. It requires creating a new culture that brings a common, professional set of doctrines and values to all components of the community that builds on the extraordinary capabilities that exist, while assembling new hybrid excellencies within an entity whose effectiveness must become greater than the sum of its parts. General Hayden comported himself with great probity in his confirmation hearing last week and rendered honest and detailed answers to a great range of questions in both the open hearing and in the executive hearing. The general's lifetime experience has prepared him for taking this post, and I have the highest regard for him. I might add that one of the first decisions that he will have made will be choosing Mr. Kappas to be his Deputy. I have been checking with many leaders in the CIA and elsewhere, and they say Mr. Kappas is an outstanding person who can help bring about an esprit de corps that may be lacking. Having said all this, I want to praise Director Goss. I served with Porter Goss when he was chairman of the Intelligence Committee in the House. He is a wonderful man. He did a great job in helping to change some of the mindsets at the CIA. He made a very distinct imprint on the CIA for good, and we will miss him as well. But it should not be construed that General Hayden is replacing him because he didn't do the job. Porter said he wasn't going to stay there an excessively long time. [[Page S5203]] I have to say that I believe that as great as Porter Goss is and was, General Hayden will be a good replacement. He is one of the best people who has ever served this country. He has spent a lifetime in intelligence. He is one of the few people who really understands it all, and he is a straight shooter. He tells the truth; he tells it the way it is. He is an exceptionally decent, honorable man, and his wife is a very honorable and good person as well, as are his children. So I hope all of us will consider voting for General Hayden. He is worth it. We should vote for him. We should be unanimous in the selection of a CIA Director, but even if we are not, I hope the overwhelming number of Senators will vote for this great general, this great intelligence officer, this great person who we all know is honest, decent, and capable. Mr. President, I yield the floor. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, I have been waiting some time to talk about General Hayden. I note the presence of the distinguished chairman of our committee, a committee on which I am proud to serve. Given the fact we are starting a discussion of General Hayden to head the Central Intelligence Agency, I ask unanimous consent that Chairman Roberts be allowed to speak at this time and that I be able to follow the chairman after he has completed his remarks. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from Kansas. Mr. ROBERTS. Mr. President, I thank the Senator from Oregon for allowing me to go first as chairman of the committee. Senator Wyden is a very valued member of the committee with very strong and independent views but has always contributed in a bipartisan way on behalf of our national security. Good evening, Mr. President. The hour is a little late. Actually, the night is young, but I am not. Nevertheless, I am going to try to be pertinent on a matter that is of real importance, and that is, in fact, the nomination and hopefully what we expect to be the confirmation of GEN Michael V. Hayden to serve as Director of the Central Intelligence Agency. As chairman of the Select Committee on Intelligence, I rise tonight and associate myself with the remarks made by Senator Hatch, who is another very valued member of the committee, in strong support of the nomination of General Hayden to be the next Director of the Central Intelligence Agency. He is eminently qualified for this position. He is a distinguished public servant, as has been noted, who has given more than 35 years of service to his country. Senator Hatch referred to our hearings both open and closed that we held last week. It was my goal as chairman to ensure that every Senator had enough time to ask any question they wanted or to express any concern they had on their mind in regards to this nomination and the qualifications of this man. I think we accomplished that. We gave every Senator 20 minutes and then another 20 minutes, and then in a regular order, additional time. I might add, Senator Wyden certainly took advantage of that. After over 8 hours, the general, the chairman, and other members of the committee finally concluded. I think it was a good hearing. I think it was a good open hearing and a good closed hearing. General Hayden certainly distinguished himself, and he showed the committee that he will be an outstanding choice for CIA Director. General Hayden entered active duty, in terms of background, with the U.S. Air Force in 1969 after earning both his bachelor's and master's degree from Duquesne University in his hometown of Pittsburgh. He has had a lengthy and diverse career. He has served as Commander of the Air Intelligence Agency and as Director of the Joint Command and Control Warfare Center. He has been assigned to senior staff positions at the Pentagon, at the headquarters of the U.S. European Command, the National Security Council, and at the U.S. Embassy in the People's Republic of Bulgaria. General Hayden has also served as the Deputy Chief of Staff for the United Nations Command and U.S. Forces in Korea and, more importantly, he has served most recently at the highest levels of the intelligence community. From 1999 to 2005, General Hayden was Director of the National Security Agency. Finally, in April of last year, following intelligence reform and a great deal of committee action in regards to the Intelligence Committee to determine the accuracy of our 2002 NIE, National Intelligence Estimate, and then we went through intelligence reform, we had the 9/11 Commission, we had the WMD Commission appointed by the President, he was unanimously confirmed by this body to serve in his current position as the Principal Deputy Director of National Intelligence. He had that kind of background, had that kind of expertise, had that kind of experience. Given his experience at NSA and the Office of the Director of Intelligence, I don't think there is any question General Hayden is well known to the Intelligence Committee. He has briefed us many times. I don't know of anybody in any hearing or briefing who has done any better. It is because of his qualifications and my experience working with him that I support his nomination. This nomination comes before the Senate at a very crucial time. We are a nation fighting a war in which the intelligence community is on the front lines. The CIA is an integral and very vital part of the intelligence community. We need strong leadership in order to protect our national security. When General Hayden takes the helm at the Agency, he is going to find a number of issues that will demand his attention. These are the same issues that we touched on and asked the general to respond to during his confirmation hearings. First, he must continue to improve the Agency's ability to provide public policymakers with high-quality analytic products. The Senate Intelligence Committee's July 2004 report on intelligence related to Iraq's WMD programs did conclude that the agencies of the intelligence community did not explain to policymakers the uncertainties behind their Iraq WMD assessments. Analysts must also observe what I refer to as the golden rule of intelligence analysis, and we asked this specifically of the general: Tell me what you know, tell me what you don't know, tell me what you think and, most importantly, make sure that we understand the difference. It will be up to General Hayden to ensure that the CIA analysts adhere to this rule in the future. Second, General Hayden must improve the CIA's ability to collect what we call humane intelligence. He can begin by ensuring that the Agency is more aggressive in its efforts to penetrate hard targets and in the use of very innovative collection platforms. Third, General Hayden, it seems to me, must improve information access--not information sharing, information access. There is a big difference. We on the Intelligence Committee will look to the general to ensure that appropriately cleared analysts community-wide, with a need to know and the proper training have access to the CIA's intelligence information in its earliest form, while at the same time protecting sensitive sources and methods. No doubt the general will face a number of significant tasks, but based on his record as a manager, his qualifications, and his demonstrated leadership, I believe he is the right choice to lead the CIA. The Senate should expeditiously confirm him and let him get to work over at Langley. Mr. President, I strongly support the nominee, and I urge my colleagues to do the same. I yield the floor. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, I am next in line, but I understand the majority leader and the distinguished Senator from Nevada wish to have a brief colloquy. I will defer to them and pick up when they are finished. The PRESIDING OFFICER. The majority leader is recognized. Mr. FRIST. Mr. President, I ask unanimous consent that during this evening's session, it be in order for Senators to speak in executive session on the Kavanaugh nomination No. 632, or the Hayden nomination No. 672; provided further, that following disposition of the Kavanaugh nomination, the [[Page S5204]] Senate proceed to a vote on the Hayden nomination No. 672; further, if No. 672 is confirmed, then the Senate immediately proceed to a vote on the confirmation of Calendar No. 693; I further ask unanimous consent that following those votes, Senator Nelson of Florida be recognized to speak up to 5 minutes, and the Senate then proceed to a cloture vote with respect to Executive Calendar No. 630, Dirk Kempthorne to be Secretary of the Interior; provided further, that if cloture is invoked, Senator Landrieu be recognized for up to 10 minutes, and the Senate then proceed to an immediate vote on the confirmation of the nomination of Dirk Kempthorne. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. FRIST. Mr. President, what all this means is that by this agreement, we will allow Senators to speak tonight on either the Kavanaugh nomination or the Hayden nomination. We will convene tomorrow morning at 8:45. It is our hope that we will be able to vote on the confirmation of the Kavanaugh nomination after convening. We will then proceed to the votes on the Hayden nomination and the cloture vote on the Kempthorne nomination. Senators, therefore, can expect three early rollcall votes during Friday's session. The PRESIDING OFFICER. The Senator from Oregon. Mr. WYDEN. Mr. President, before he leaves the Chamber, I simply wish to say to the distinguished chairman of our committee that I thank him for his kind and gracious introductory remarks to me. As he knows, sometimes we agree, as we did in the effort to make public the CIA inspector general's report on 9/11. I appreciated working with the distinguished chairman on that matter. Sometimes we disagree, as we do tonight with respect to the nomination of General Hayden, but Chairman Roberts has always been courteous and fair in our committee and essentially to every member. I thank him for that as he leaves the Chamber tonight. Clearly, Chairman Roberts and Senator Hatch, two distinguished members of our Intelligence Committee, want no part of it, but there are those who want to turn the Hayden nomination into a referendum on who is toughest on terrorism, Republicans or Democrats. These people do America a disservice. I know of no Senator who sympathizes with a terrorist. I know of no Senator who wishes to coddle al-Qaida. I know of no Senator who is anything other than a patriot. Unfortunately, this nomination is being used to divide the Senate and the American people on the issue of terrorism. Just this past Monday, the Washington Post newspaper reported that the White House: Seems eager for a battle over the nomination of Air Force GEN Michael V. Hayden as CIA Director. The article goes on to say: The White House hopes voters will see the warrantless surveillance program Hayden started as head of the National Security Agency as tough on terrorism rather than a violation of civil liberties. I believe the American people deserve better than the White House agenda of false choices. I believe one can fight the terrorists ferociously and protect the liberties of law-abiding Americans. I believe the Senate should not be bullied into thinking that security and liberty are mutually exclusive, and I believe that millions of Americans share that view. From the days of Ben Franklin, security and liberty in America have been mutually reinforcing, and it is our job to maintain this sacred balance. This is harder to do now because across America there is less trust and there is more fear. The lack of trust has been fed by the Bush administration telling the public that they have struck the right balance between security and liberty, but then we have had one media report after another that contradicts that claim. When the media reports come out, the administration says it can't say anything because responding would help the terrorists, but then the administration responds in multiple forums to get out the small shards of information that they believe is helpful to their point of view. The increased fear among our people is nourished by the fact that there are no independent checks on the Government's conduct, as there have been for more than 200 years in America. Law-abiding Americans have no reason to be confident that anyone is independently verifying reports about the administration's reported surveillance of their personal phone calls, e-mails, and Internet use. All of this mistrust and fear has translated into a lack of credibility. The administration has given us, by words and deeds, a national security routine: Do one thing, say another. An absolute prerequisite to running intelligence programs successfully is credibility. Despite the scores of talented, dedicated, patriotic people working at Langley today, the failings of the Agency's recent leadership have left the Agency's credibility diminished. The Agency is now looking at the prospect of its fourth Director since 9/11. The last Director brought partisanship and lost talented professional staff as a result. The Agency's No. 3 man, who resigned this month, is being investigated by the FBI for links to the bribing of a former Congressman. It is long past time to get it right at the CIA. This will be the second time I have voted on a Hayden nomination. The first time around, when he was nominated to serve as Deputy National Intelligence Director, I voted for the General. In my view, General Hayden's technical knowledge is not in question. He has always been personable in any discussions the two of us have had, and he has always been extremely easy to talk to. But since I last voted for him, information has come to light that has raised serious questions about whether the General is the right person to lead the CIA. There are serious questions about whether the General will continue to be an administration cheerleader; serious questions regarding his credibility; serious questions about his understanding of and respect for constitutional checks and balances, and the important accountability in Government that they create. Here are the facts: Last December, the New York Times reported that since 9/11, the National Security Agency, which General Hayden was in charge of at the time, initiated a warrantless wiretapping program. General Hayden, reported once more in the media to be the architect of the program, became the main public spokesperson in its defense. At a White House press conference in December of 2005 and at subsequent events, including a speech at the National Press Club this past January, the General vigorously defended the administration's warrantless wiretapping program. Even before the war in Iraq, I was concerned about politicizing intelligence. Since then, I think they are only additional grounds for concern. At his confirmation hearing, General Hayden said he wants to get the CIA out of the news. To me, this was a curious statement, given all the time he has spent on the bully pulpit defending the President's warrantless wiretapping program. Inevitably, any political appointee will have an allegiance to the White House that appointed him or her. But when it comes to positions in the intelligence community, I believe that this allegiance, regardless of whether a Republican or a Democrat is in the White House, should go only so far. It is not good for our great country to have a CIA Director who jumps into every political debate that comes up here in Washington, D.C. It is not good for our great country to have a CIA Director who willingly serves as an administration cheerleader. It is not good for our great country to have a CIA Director who gets trotted out again and again and again to publicly argue for the President's controversial decisions. Politicizing the position renders the CIA Director less effective and less credible. Inevitably, Americans will begin to see the Director as an administration defender rather than a conveyor of the unvarnished truth. And in our next CIA Director, we need more truth and we need less varnish. My second concern rises out of the first. Not only has General Hayden raised questions through his words and actions about politicizing intelligence, but, unfortunately, even when he says something, you cannot trust, based on his words, that what he says is credible. [[Page S5205]] At the National Press Club speech he gave in January defending the NSA warrantless wiretapping program, the General repeatedly stated that the program was limited to international to domestic, or domestic to international calls. For instance, he said: There is always a balancing between security and liberty. We understand that this is a more--I'll use the word ``aggressive''--program than would be traditionally available under FISA. It is also less intrusive. It deals only with international calls. Later, General Hayden said: That is why I mentioned earlier that the program is less intrusive. It deals only with international calls. He explained: The intrusion into privacy--the intrusion into privacy is significantly less. It is only international calls. He added: We are talking about here communications we have every reason to believe are al-Qaida communications, one end of which is in the United States. At the conclusion of the Press Club address, he was asked by a reporter: Can you assure us that all of these intercepts had an international component, and that at no time were any of the intercepts purely domestic? The General said: The authorization given to NSA by the President requires that one end of the communications has to be outside the United States. I can assure you by the physics of the intercept, by how we actually conduct our activities, that one end of these communications are always outside the United States of America. With those final words, the speech and the press conference concluded. But then, just weeks ago, Americans read in the USA Today newspaper that the NSA, according to the paper, was also gathering basic information concerning hundreds of millions of innocent Americans' domestic phone calls. I cannot confirm or deny what was in that article, but I can tell you when I opened the paper that morning and read the article, it raised serious concerns for me about whether the General had been misleading. Unfortunately, this is not a single incident in an otherwise perfect record. There is a pattern of saying one thing and doing another when it comes to the General. For instance, General Hayden said he received legal authority to tap Americans' phone calls without a warrant in 2001. A year later, in 2002, the General testified before Congress's joint 9/11 inquiry that he had no authority to listen to Americans' phone calls in the United States without first obtaining enough evidence for a warrant. As conceded by the General himself, at the time he made these statements to Congress, the NSA was in fact doing the very thing he led us to believe it could not: engaging in warrantless wiretapping on persons here in our country. When I asked the General to explain these contradictions at his confirmation hearing, I didn't get much of a response. At best, I got a nonanswer that reflected the General's skill in verbal gymnastics, but not the type of candor that America needs in its next CIA Director. There is another example that I want to talk briefly about, Mr. President. When General Hayden came before the Senate Intelligence Committee last year in conjunction with his nomination to serve as a deputy to Ambassador Negroponte, I asked him about the NSA Trailblazer Program. This had been one of the General's signature NSA management initiatives, one that had been again reported as one designed to modernize the Agency's information technology infrastructure. In response to my questions--I want to be specific about this because there has been a lot of discussion about it--among a variety of other comments the General made about the Trailblazer Program, at page 44 of the transcript of that 2005 hearing that was held to approve General Hayden to be the deputy to Mr. Negroponte, the General said with respect to the Trailblazer Program: A personal view, now--looking back--we overachieved. Now, I cannot go into detail here on the Senate floor because of the classified nature of the information involved, but suffice it to say today the press is reporting that the program is belly-up and the press is reporting that it is a billion dollars worth of junk software. I take my constitutional responsibility to give advice and consent to the President's nominations very seriously. Last Monday, after the hearing, I did something that I do not customarily do. I reached out to the general once more in an effort to try to find grounds for supporting his nomination. In my office I asked that he keep the Senate Intelligence Committee fully and currently informed of all intelligence activities other than covert actions. In writing, the general responded: Regarding communications with Congress on critical issues, if confirmed as Director of the Central Intelligence Agency I intend to have an open and complete dialog with the full membership of the committee, as indicated by 501(C) 502 and 503 of the National Security Act as amended. So far, so good. But then the general added: As you understand, there will continue to be very sensitive intelligence activities and operations such as covert actions that, consistent with legislative history and longstanding practice, is briefed only to leadership of the committee. On those rare occasions, communications with those Members will be exhaustive. So once again the bottom line, General Hayden's response is ambiguous. If confirmed he intends to sometimes inform Congress and at other times only inform certain Members, without explaining how this will be decided or what his role in the decision will be. Read his response from Monday and you still can't determine when he will brief members of the Senate Intelligence Committee on the activities of the CIA, and when they will be learning about them by reading the morning newspaper. As I stated, the CIA is looking at the prospect of its fourth Director in this dangerous post-9/11 world. Serious reform is needed to get the Central Intelligence Agency headed in the right direction. To make this happen, America needs a CIA Director who says what he means and means what he says. Unfortunately, time and time again, General Hayden has demonstrated a propensity for neither. His words and acts on one occasion cannot be reconciled with words and acts on another. He is a man with a reputation for taking complicated questions and giving simple answers. Unfortunately and repeatedly, when I have asked him simple questions, he has given me complicated answers, or nothing at all. Americans want to believe that their Government is doing everything it can to fight terrorism ferociously and to protect the legal rights and civil liberties of law-abiding Americans. But right now millions of Americans are having trouble locating the checks and balances on Executive power. They don't know what the truth is and they are very concerned about what is next. I believe it is time for the Senate to break that cycle. I remain concerned that what has happened at the National Security Agency under General Hayden will be replicated at the Central Intelligence Agency. For that reason, I oppose the nomination. I yield the floor. The PRESIDING OFFICER (Mr. DeMint). The Senator from Illinois. Mr. DURBIN. Mr. President, let me commend my colleague from the State of Oregon, a member of the Senate Intelligence Committee, a committee on which I served for 4 years. Senator Wyden's statement is consistent with his service on that committee. It shows that he takes that assignment very seriously, he does his homework on a very challenging committee assignment, and that he has given great thought and reflection to this important decision about whether General Hayden should be named to head the CIA. Senator Wyden and I have discussed this nomination. There are some things he cannot share with me because they were learned behind closed doors in the Senate Intelligence Committee, but I have become convinced, as well, that General Hayden, despite his many great attributes and good qualifications, is not the right person for this appointment. When we reflect on America since 9/11, there are many things that are very clear. First, this country was stricken in a way that it has never been stricken since the War of 1812, when the British invaded the United States, invaded this Capitol building, sacked and burned it. We found 3,000 in- [[Page S5206]] nocent Americans destroyed on American soil--a gut-wrenching experience that we will never forget. It changed America and it called on the President, on the leadership in Congress, to summon the courage to respond. In the days that followed that horrible event, there were some inspiring images. We can recall the videotape of firefighters ascending the stairway into the World Trade Center, to certain death, braving what they knew was a terrible disaster to try to save innocent lives. We can recall the President of the United States going to the rubble of the World Trade Center in New York and in a few brief moments rallying America and the world behind our cause. We can remember Members of Congress standing just a few feet away from this Senate Chamber, Members of Congress who hours before had been locked in partisan combat, who put it all aside after 9/11, sang ``God Bless America,'' and said: What can we do to save America? After that, the response around the world; this great, giant, the United States of America, having suffered this terrible loss, was able to count its friends and allies very quickly. So many nations stepped forward and said: We are with you. We will help you. We understand that you must bury your dead and grieve your losses, but then you must defend yourself and your Nation for its future, and we will be there. It was an amazing outpouring of support for our great country. It was a wonderful, encouraging moment. The President came to this Congress and gave a speech shortly after 9/11 that I will say was one of the best I had ever heard, summoning us to gather together as a nation to defend ourselves against this threat of terrorism. Then, of course, we considered the PATRIOT Act. We changed the laws of America so our Government would have new tools to pursue the terrorists. It passed with an overwhelming bipartisan vote, very quickly, and we started to roll up our sleeves and take on this task. At the time I was a member of the Senate Intelligence Committee. I realized then more than ever how important that committee was. Intelligence is the first line of defense, and good intelligence used wisely can protect America from terrorism and from enemies who would inflict great casualties and pain on us. Then, a few months later, came a new challenge, a challenge we had not anticipated on 9/11. The President and this administration told us that the real battle was against Saddam Hussein in Iraq. I remember sitting in that Senate Intelligence Committee just days before the vote on the Senate floor about the invasion of Iraq and turning to a staffer who said to me: Senator, something is unusual here. This is the first time we have ever considered any kind of effort of this magnitude without asking the intelligence agencies of the United States to tell us what they know so we can gather information from every source and make a conscious and sensible judgment about what we should do. It is called a National Intelligence Estimate, an NIE. So at my staffer's prompting, I requested a National Intelligence Estimate, as did Senator Graham of Florida. It turned out it was routine to produce them, but no one had taken the time to do that before the invasion of Iraq. In very short order, just a few weeks, a National Intelligence Estimate was submitted to the Intelligence Committee. There were claims in that NIE that turned out to be false, but at the time we didn't know it. There were claims about weapons of mass destruction that threatened the safety of the United States of America. There were claims of capacities and capabilities by Saddam Hussein in Iraq that were greatly exaggerated. There were claims that Saddam Hussein and the Iraqis were producing nuclear weapons which could be used against the United States. Leaders in the White House were telling us they were fearful of mushroom clouds that could result in a nuclear holocaust. All of this was given to the American people and the Intelligence Committee. The sad reality was when we sat in the Intelligence Committee behind closed doors, we knew that the American people were not getting the full story, that in fact even within this administration there was a dispute as to the truth of these statements, statements given every day and every night by the leaders of this administration. We know what happened. We invaded Iraq. Saddam Hussein, in a matter of weeks, was gone as their dictator, and we came to learn that all of the claims about weapons of mass destruction were false, totally false. The American people had been misled. There is nothing worse in a democracy than to mislead the people into war, and that is what happened. We learned, as well, that there were no nuclear weapons. All those who claim there was a connection between 9/ 11 and Saddam Hussein could find no evidence. The statements made by the President in his State of the Union Address that somehow or another Saddam Hussein was obtaining yellowcake or the makings of nuclear weapons from Africa turned out to be false, and the President had to concede that point. Then, in light of it, we decided it was time to take a look. The Intelligence Committee on which I served decided to ask two questions: First, did our intelligence agencies fail us? Did they come up with bad information when they should have given us good information and good advice? Were we, in fact, misled into this war by that information? And second: Did any member of this administration misuse that intelligence information, use it in a fashion that did mislead or deceive the American people? Those were two specific assignments accepted by the Senate Intelligence Committee. I served on the committee while we were in the process of meeting that obligation. We came to learn the first assignment was exactly right. The Senate Intelligence Committee concluded, as did the House, that our intelligence agencies had failed us. Our first line of defense had failed us, giving us information that was totally flawed, information which was not reliable, information which never should have resulted in the invasion of Iraq. The administration had argued that we have a new foreign policy, a preemptive foreign policy. We can't wait to be attacked, the President said, we have to attack first if there is a threat. It turns out the information used to measure that threat was wrong, in the invasion of Iraq. Mr. President, 23 of us in the Senate voted against the use of force in Iraq, 22 Democrats and 1 Republican. We believed then, most of us, that the information being given to the American people was misleading, the intelligence information was not accurate. It turns out that our estimate was true. It turns out that our invasion of Iraq was based on false pretenses and on intelligence information that was fatally flawed. The second investigation to be undertaken by the Senate Intelligence Committee, promised more than 2 years ago, was that we would look into the misuse of this intelligence by members of this administration. That is a tough thing to ask a Senate Intelligence Committee, led by a Republican chairman, to do, because it is likely to bring some embarrassment to the administration of the President. Unfortunately, as I stand here today, the promise of almost 2 years ago to complete this second phase has not been completed. We still don't know if members of this administration misused the intelligence. But there are things that we do know, things that are very clear. It is clear that in the lead-up to the invasion of Iraq and afterwards there was a separate intelligence agency created in the Department of Defense by a man named Douglas Feith that became virtually a renegade, independent operation. It was not working in concert with other agencies of our Government gathering intelligence. That is inconsistent with what we hoped to be a coordinated intelligence effort in our Government. But Secretary Rumsfeld, who enjoyed the confidence of the President, was able to initiate this intelligence operation in defiance of many other intelligence agencies. We know that for a fact. Then we came to learn several other things. We learned that after 9/ 11, the Bush administration, for the first time in modern history, decided that they needed to rewrite the standards of interrogation for detainees. For decades we had held to the standard of the Geneva code, which basically said that we [[Page S5207]] would not engage in torture, cruel, inhuman, or degrading treatment. But the infamous Bybee memo, exchanged at the time with Alberto Gonzales, then-White House Counsel, and many others, was at least a suggestion that we could breach those rules and change those rules. That conversation, in closed sections of the White House, took place without the knowledge of the American people. But then the terrible disclosure at Abu Ghraib torture, inhuman treatment perpetrated, sadly, by those who were in the service of the United States. It was clear then that the issue of torture was one that was front and center for us as a Nation to face during this time of terror. So with this torture issue before us, we also had other things to consider. Not long thereafter came the news that this administration was engaging in activities which clearly were beyond the law--the so-called warrantless wiretaps of Americans. You see, under the laws of the United States and under our Constitution, one cannot invade through a wiretap the privacy of another without court approval. No executive branch office, Department of Justice, or FBI can engage in a wiretap without the approval of a court order or, when it comes to questions of international security, foreign intelligence gathering, through the FISA court, a special court created for that purpose. Those are the two options. But this administration said that it was above the law; that it didn't have to answer to those courts; that it didn't have to work through those courts; it could engage in warrantless wiretaps through the National Security Agency, an agency administered by General Hayden. Several weeks ago, USA Today disclosed more information indicating an invasion of privacy where the telephone records of innocent American people are being gathered by the same agency, the National Security Agency, in an effort I cannot describe in detail because I have not been briefed, but in an effort to find some intelligence information. Now comes the nomination of General Hayden to become Director of the Central Intelligence Agency after all of this experience. Let me say at the outset that I respect General Hayden. He is a man who has served his country with distinction for over three decades. Many say--and I cannot disagree--that he is one of brightest minds when it comes to intelligence, and the agencies that he has worked with in the past are clear evidence of that. I honor and appreciate his service. I know he is a man of considerable knowledge and formidable intellect. He is well versed in the questions of intelligence, particularly in the most technical areas. However, I have three primary reservations about this nomination. First, I am concerned about the role of General Hayden in the NSA's warrantless wiretapping of American citizens. Second, I am concerned about how the CIA will treat detainees in their custody and how they will implement the clear prohibition on torture and cruel, inhuman, or degrading treatment standard that was passed last year in the McCain amendment, which I cosponsored, by a vote of 90-9 on the floor of the U.S. Senate. I am also concerned about the issue of the General's independence, not merely his independence as an individual but his ability to stand up to the Department of Defense and the likes of Secretary Rumsfeld, and separate defense intelligence operations under Douglas Feith. I raised these concerns when I met with General Hayden, and they we were echoed by many members of the committee during the hearings. First, I would like to address the issue of surveillance of American citizens. As Director of the NSA, General Hayden presided over a program that carried out warrantless wiretaps on innocent Americans. Those wiretaps did not have judicial approval, nor did they have meaningful congressional oversight. Precious few Members of Congress were briefed about the wiretaps, and they were sworn to secrecy about this procedure. General Hayden has stated that the Attorney General and other legal authorities within the administration had concluded that such actions were proper and legal. In fact, I have seen no evidence of that whatsoever. We created the FISA court to issue warrants for such surveillance. If the administration believes the FISA court is not sufficient in this age of terrorism and high technology, the administration should come to Congress and ask us to change the laws, as we did with the PATRIOT Act. In addition to warrantless wiretaps, General Hayden reportedly oversaw a program that assembled an enormous database, the largest in the history of the world, of literally millions of calls made by Americans to Americans in the United States. Tens of millions of Americans appeared to have been included in this database. And most of us in Congress learned about it on the front page of USA Today. I am disturbed about the role that General Hayden played in overseeing these practices. It is certainly critical that the Director of the CIA protect our security but also not endanger our liberties. Second, I am concerned about the way the CIA will treat detainees. When the McCain amendment was pending, it was opposed openly by Vice President Richard Cheney who said that he believed intelligence agents--those working for the CIA--should not be bound by the provisions of the McCain amendment. We disagreed. We passed, on the floor of the Senate, as I said earlier, by a vote of 90-9, clear standards barring torture, cruel, inhuman and degrading treatment. I believe that we should never engage in that treatment--and that is what the McCain amendment requires. Senator McCain said it well last year, and I quote him. He said, ``It's not about who they are. It's about who we are.'' I believe we should have one clear, uniform interrogation standard that applies to all United States personnel--those in uniform and those in a civilian capacity. I was disturbed when General Hayden was meeting with me and did not appear to share that view. He was evasive. While he said that we must establish clear guidelines, he indicated he might prefer to have one standard for the military and another standard for intelligence personnel. He said he wanted to study the question, but that two sets of rules might be appropriate. I disagree. There is only one standard. It should be clear and unequivocal. Finally, there is the question of independence. The Pentagon controls an estimated 80 percent of the intelligence budget. That fact alone makes it critical for the CIA to vigorously defend its independence over the Department of Defense. We need an independent voice at the CIA. I note that last year's intelligence authorization bill, as passed by the Senate Intelligence Committee, stated that the Director of the CIA should be appointed from ``civilian life.'' That bill in the end never reached the floor of the Senate for a vote, but we should nevertheless consider that recommendation seriously. General Hayden assured me that he stood up to Secretary Rumsfeld in the FISA operation when he disagreed with him, and that he will continue to do so. Colleagues on the Intelligence and Armed Services Committee, whom I deeply respect, including Senator Levin of Michigan, have concluded that General Hayden will assert that independence and stand up to the Pentagon. I certainly hope he does. Within the Bush administration, the question of the independence of intelligence agencies is particularly important. That is because the intelligence process has been abused. This administration clearly politicized and distorted the use of intelligence to promote the false premise that Saddam Hussein was tied to the 9/11 attacks and that Iraq was developing weapons of mass destruction, including nuclear weapons. We know now that was false. In 2002, the administration undermined the independence and credibility of the intelligence process by creating the Office of Special Plans at the Pentagon under the leadership of Under Secretary of Defense Douglas Feith. Several of us addressed this issue as part of the Intelligence Committee's 2004 Report on the Prewar Intelligence Assessments on Iraq. And Senator Levin joined me in this. We wrote: [[Page S5208]] The Intelligence Community's findings did not support the link between Iraq and the 9/11 plot [that] administration policy officials wanted [in order] to help galvanize support for military action in Iraq. As a result, officials under the direction of Under Secretary Feith took upon themselves to push for a change in the intelligence analysis so that it bolstered administration policy statements and goals. I asked General Hayden about Douglas Feith and the Office of Special Plans. To his credit, he was critical of that operation. He said it was not legitimate ``alternative analysis,'' and he described the troubling pattern in which preconceptions shaped the search for intelligence. General Hayden reiterated his discomfort with the Feith approach in testifying before the Intelligence Committee. I hope that when he is confirmed, as I am certain he will be, that General Hayden will go even further in opposing efforts to subvert the intelligence process. Today, we face even graver dangers than we did in 2003 when Under Secretary Feith was operating his own intelligence shop. The war in Iraq has claimed over 2,400 American lives, and there is no end in sight. Iran has pursued three different methods of enriching uranium and has experimented with separating plutonium, moving closer to the possible development of nuclear weapons. Osama bin Laden is still at large; al-Qaida has splintered in different and dangerous directions, and North Korea is expanding its nuclear arsenal. All these issues make it extremely important that our intelligence community conduct independent, accurate, trustworthy analysis. And it is critical that we operate within the bounds of our own Constitution and our laws. We should not have one standard for the military and another for the intelligence community, a position once argued as high in this administration as Vice President Cheney. We should not engage in torture or hold detainees indefinitely without of charging them with a crime. Just 2 weeks ago, the President of the United States said it would soon be time to close Guantanamo. That certainly is something that many of us believe is in order. Those who are dangerous to the United States should be charged and imprisoned. Those who have no value to us from an intelligence viewpoint should be released, if they are not a danger to the United States. We cannot ignore the fundamental privacy rights of American citizens and the moral values and rights reflected in the treatment of those detainees. General Hayden will be taking charge of the CIA, by many reports at a time when the Agency is demoralized. He will have to oversee critical reforms. Last December, members of the 9/11 Commission handed out report cards on reform for the Bush administration. They gave the CIA an ``incomplete'' in terms of adapting to its new mission. I hope General Hayden can change that. I hope that he will be the independent voice that we need. I yield the floor. _________________ [Congressional Record: May 25, 2006 (Senate)] [Page S5296] NOMINATION OF GENERAL MICHAEL HAYDEN Mr. OBAMA. Mr. President, let me start by saying that the nomination of General Hayden is a difficult one for me. I generally, as a rule, believe the President should be able to appoint members of his Cabinet, of his staff, to positions such as the one General Hayden is nominated for without undue obstruction from Congress. General Hayden is extremely well qualified for this position. Having previously served as head of the National Security Agency and as Deputy Director of National Intelligence under John Negroponte, he has 30 years of experience in intelligence and national security matters. And he was nearly universally praised during his confirmation to Deputy DNI. There are several members of the Intelligence Committee, including Senator Levin, who I hold in great esteem, who believe General Hayden has consistently displayed the sort of independence that would make him a fine CIA Director. Unfortunately, General Hayden is being nominated under troubling circumstances, as the architect and chief defender of a program of wiretapping and collection of phone records outside of FISA oversight. This is a program that is still accountable to no one and no law. Now, there is no one in Congress who does not want President Bush to have every tool at his disposal to prevent terrorist attacks--including the use of a surveillance program. Every single American--Democrat and Republican and Independent--who remembers the images of falling towers and needless death would gladly support increased surveillance in order to prevent another attack. But over the last 6 months, Americans have learned that the National Security Agency has been spying on Americans without judicial approval. We learned about this not from the administration, not from the regular workings of the Senate Intelligence Committee, but from the New York Times and USA Today. Every time a revelation came out, President Bush refused to answer questions from Congress. This is part of a general stance by this administration that it can operate without restraint. President Bush is interpreting article II of the Constitution as giving him authority with no bounds. The Attorney General and a handful of scholars agree with this view, and I do not doubt the sincerity with which the President and his lawyers believe in their constitutional interpretation. However, the overwhelming weight of legal authority is against the President on this one. This is not how our Constitution is designed, to give the President unbounded authority without any checks or balances. We do not expect the President to give the American people every detail about a classified surveillance program, but we do expect him to place such a program within the rule of law and to allow members of the other two coequal branches of Government--Congress and the judiciary-- to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much. Unfortunately, we were never given the chance to make that examination. Time and again, President Bush has refused to come clean to Congress. Why is it that 14 of 16 members of the Intelligence Committee were kept in the dark for 4\1/2\ years? The only reason that some Senators are now being briefed is because the story was made public in the newspapers. Without that information, it is impossible to make the decisions that allow us to balance the need to fight terrorism while still upholding the rule of law and privacy protections that make this country great. Every democracy is tested when it is faced with a serious threat. As a nation, we have had to find the right balance between privacy and security, between executive authority to face threats and uncontrolled power. What protects us, and what distinguishes us, are the procedures we put in place to protect that balance; namely, judicial warrants and congressional review. These are not arbitrary ideas. They are not new ideas. These are the safeguards that make sure surveillance has not gone too far, that somebody is watching the watchers. The exact details of these safeguards are not etched in stone. They can be reevaluated, and should be reevaluated, from time to time. The last time we had a major overhaul of the intelligence apparatus was 30 years ago in the aftermath of Watergate. After those dark days, the White House worked in a collaborative way with Congress through the Church Committee to study the issue, revise intelligence laws, and set up a system of checks and balances. It worked then, and it could work now. But, unfortunately, thus far, this administration has made no effort to reach out to Congress and tailor FISA to fit the program that has been put in place. I have no doubt that General Hayden will be confirmed. But I am going to reluctantly vote against him to send a signal to this administration that even in these circumstances, even in these trying times, President Bush is not above the law. No President is above the law. I am voting against Mr. Hayden in the hope that he will be more humble before the great weight of responsibility that he has not only to protect our lives but to protect our democracy. Americans fought a Revolution in part over the right to be free from unreasonable searches--to ensure that our Government could not come knocking in the middle of the night for no reason. We need to find a way forward to make sure we can stop terrorists while protecting the privacy and liberty of innocent Americans. We have to find a way to give the President the power he needs to protect us, while making sure he does not abuse that power. It is possible to do that. We have done it before. We could do it again. Mr. President, I yield back the remainder of my time. The PRESIDING OFFICER. The Senator from New York. Mr. SCHUMER. Mr. President, I ask unanimous consent that I be allowed to speak for 5 minutes before the Senator from Michigan speaks--he has graciously agreed to allow me to do that--and then he be given as much time as he needs. The PRESIDING OFFICER. Without objection, it is so ordered. Mr. SCHUMER. Thank you, Mr. President. I want to first, again, thank Senator Carl Levin, who I know has been graciously acceding all night. So he will be the last person to speak here, but I very much appreciate it. And I know all of my colleagues do. ____________________ [Congressional Record: May 25, 2006 (Senate)] [Page S5298-S5301] NOMINATION OF GENERAL MICHAEL V. HAYDEN Mr. LEVIN. Mr. President, General Hayden's nomination for Director of the Central Intelligence Agency comes at a critical time. The Agency is in disarray. Its current Director has apparently been forced out, and the previous Director, George Tenet, departed under a cloud after having compromised his own objectivity and independence and that of his Agency by misusing Iraq intelligence to support the administration's policy agenda. The next Director must right this ship and restore the CIA to its critically important mission. I will vote to confirm General Hayden because his actions have demonstrated on a number of important occasions the independence and strength of character needed to fulfill the most important role of the CIA Director--independence and a willingness to speak truth to power about the intelligence assessments of professionals in the intelligence community. This nomination has been considered by me on two key issues: One, whether or not General Hayden will be independent--and I believe he will--and two, what judgment should be rendered about him based on what is known about the National Security Agency's surveillance program which he administered during his tenure as Director of the NSA. Again, the highest priority of the new Director must be to ensure that intelligence provided to the President and the Congress is objective and independent of political considerations. It was only a few years ago that then-CIA Director George Tenet shaped intelligence to support the policy position of the administration. There are many examples. On February 11, 2003, just before the war, Director Tenet publicly stated, as though it were fact, that Iraq has ``provided training in poison and gases to two Al-Qaeda associates.'' However, we now know that the DIA, the Defense Intelligence Agency, had assessed a year earlier that the primary source of that report was more likely intentionally misleading his debriefers, and the CIA itself had concluded in January 2003, before the Tenet public declaration that I have quoted, that the source of the claim that Iraq had provided training in poisons was not in a position to know if any training had in fact taken place. On September 28, 2002, President Bush said that ``each passing day could be the one on which the Iraqi regime gives anthrax or VX nerve gas or someday a nuclear weapon to a terrorist group.'' A week later, on October 7, 2002, a letter declassifying CIA intelligence indicated that Iraq was unlikely to provide WMD to terrorists or al-Qaida and called such a move an ``extreme step,'' a very different perspective from that which had been stated by the President. But the very next day after that declassification was obtained, Director Tenet told the press that there was ``no inconsistency'' between the views in the letter and the President's views on the subject. His statement was flatly wrong. His effort to minimize the inconsistency or eliminate it not only revealed his lack of independence, but it damaged the credibility of the Central Intelligence Agency. [[Page S5299]] At a hearing in 2004, I asked Director Tenet about the alleged meeting between 9/11 hijacker Mohammed Atta and an Iraqi intelligence officer in Prague in April 2001. He told us that the CIA had ``not gathered enough evidence to conclude that it had happened'' and that ``I don't know that it took place. I can't say that I did.'' What he neglected to say was that the CIA did not believe that the meeting had happened, a fact that he finally acknowledged publicly in July of 2004, after the war began, when he wrote that the CIA was ``increasingly skeptical that such a meeting occurred'' and that there was an ``absence of any credible information that the April 2001 meeting occurred.'' We determined later that that CIA skepticism dated back at least to June 2002, before the war. Director Tenet also looked the other way when the administration publicly alleged that Iraq was seeking uranium from Africa. As a matter of fact, he had personally called the Deputy National Security Adviser to urge that the allegation be removed from the President's October 2002 Cincinnati speech. Director Tenet was silent after the President included the allegation in his January 2003 State of the Union speech. It was not until July of 2003, long after the war began, 2 months after President Bush declared major combat operations were over in Iraq, that Director Tenet finally acknowledged publicly that the allegations should not have been included in the State of the Union speech. According to Bob Woodward's book ``Plan of Attack,'' when the President asked Director Tenet, following the CIA's presentation to him in December of 2002, about its intelligence relative to Iraq's suspected WMD programs, How confident are you in the intelligence about that, Director Tenet replied, ``Don't worry; it's a slam dunk,'' which it surely was not. But that is what the President wanted to hear. That is the message which Director Tenet presented to him, and that is the message that the President then presented to the American public. It is essential that the new Director of the CIA stand up to the administration in power, no matter what administration it is, when the intelligence does not support the direction that the administration wants to go. We cannot afford another Iraq intelligence fiasco. General Hayden has said that he will be an independent CIA Director. Based on his record, I believe him. One piece of evidence in that Hayden record relates to a strategy that the administration used to bolster its case for war. The decision was made by the administration to put a set of what was called ``fresh eyes'' to look over the intelligence relative to the alleged links between Iraq and al-Qaida. The Secretary of Defense created a separate operation in a DOD policy office led by Douglas Feith. While the intelligence community was consistently dubious of the links between al-Qaida and Iraq, the Feith office scraped and scratched and cherry- picked the intelligence to produce assessments that said that there was a strong relationship between Saddam Hussein and al-Qaida. And then Mr. Feith bypassed the CIA, bypassed the intelligence community, and briefed that analysis to senior policymakers at the National Security Council and the Vice President's office. George Tenet told us that he was not aware of that prewar briefing by Mr. Feith, until I brought it to his attention in February of 2004. In making its case for war with Iraq, the administration used Mr. Feith's misleading intelligence to convince the country that Saddam and bin Laden were allies. There were few in the administration who had been willing to speak up against this bypass of the intelligence community process, a process whose very purpose is to provide balanced, objective assessments for the intelligence community. One of the few who has spoken up is General Hayden. At his nomination hearing, I asked General Hayden whether, when he was NSA Director before the Iraq war, he was comfortable with what Douglas Feith was up to. My question to General Hayden was not just about Doug Feith. It was about whether the General was willing to speak the truth as he saw it, even if it went against the administration's case for war. General Hayden told the committee, relative to the Feith operation: No, sir. I wasn't comfortable. Has anyone else in the administration said that, spoken up and said that which is so obvious about the Feith operation? There may be others, but General Hayden is the only one that comes to mind. This is what he then said to the committee at our hearing on his nomination: It is possible, Senator, if you want to drill down on an issue and just get laser beam focused, and exhaust every possible--every ounce of evidence, you can build up a pretty strong body of data, right? But you have to know what you're doing, all right. I got three great kids, but if you tell me go out and find all the bad things they've done, Hayden, I can build you a pretty good dossier, and you'd think they were pretty bad people, because that was what I was looking for and that's what I'd build up. General Hayden said this: That would be very wrong. That would be inaccurate. That would be misleading. Wrong, inaccurate, and misleading. That is a pretty good description of the Feith shop's prewar intelligence analysis. It is an indictment of the administration's use of that intelligence to make the case for war. But what is interesting, in particular, is not just what General Hayden said at his confirmation hearing; it is what he did at the time that the Feith office was actually out looking for intelligence to try to prove their premise that there was a connection between Saddam and al-Qaida. General Hayden actually placed a disclaimer on NSA reporting relative to any links between al-Qaida and Saddam Hussein, stating that SIGINT--or signals intelligence--``neither confirms nor denies'' such a link. So while you had the administration claiming the link and Doug Feith scrapping around, scratching for any little bit of evidence that could prove his preordained conclusion that there was such a link, you had General Hayden saying SIGINT, signals intelligence, neither confirms nor denies that such a link exists. In other words, we have in General Hayden more than just promises of independence and objectivity and a willingness to speak truth to power. We have somebody who has actually done so. There is another significant way in which General Hayden has spoken truth to power. When we were considering reforming the intelligence community to fill the gaps and the cracks that existed prior to 9/11 and the Iraq War, there was a major effort to derail the proposal, in part because the legislation sought to shift some authority from Department of Defense components to the new office of the Director of National Intelligence. Although General Hayden is a four star general, he stood up to Defense Secretary Rumsfeld on this issue. It took some backbone and strength of character for him to do so. As to General Hayden remaining in active duty if he is confirmed, I would only make three points. One, he is not the first person to do so. Since the Central Intelligence Agency was established by law in 1947, three commissioned officers have held the tile of Director of Central Intelligence, RADM Roscoe Hillenkoetter, GEN Walter Bedell Smith, and ADM Stansfield Turner. I would also remind my colleagues that the Senate confirmed then LTG Colin Powell to be President Reagan's National Security Adviser even though there is no law that removes that position from the supervision or control of the Secretary of Defense. Secondly, General Hayden has sent a letter to Senator Warner which states ``I do not intend to remain in active military status beyond my assignment as Director, Central Intelligence Agency (if confirmed).'' This is an added assurance of independence and that he will not be shaping intelligence to please the Defense Department in order to put himself in a better position for some future appointment in the military establishment. Third, General Hayden's supervisor in his line of work as Director of the CIA will be by law Ambassador Negroponte, not Secretary Rumsfeld. So General Hayden would not be in the military chain of command but in the intelligence chain of command. To eliminate any doubt of that, we are including a provision in the Defense authorization bill, which is awaiting Senate floor action, to make [[Page S5300]] that absolutely clear in law. Senator Warner and I think it is already clear, but we are going to make it doubly clear by putting that into the pending DOD authorization bill. As I mentioned, the key issue relative to General Hayden's nomination is the President's domestic surveillance program. Over the past 6 months, we have been engaged in a national debate about the appropriate limits on the Government's authority to conduct electronic eavesdropping on American citizens. General Hayden was Director of the National Security Agency when the President authorized the program, and many of our colleagues have raised concerns about that. The administration has repeatedly characterized the electronic surveillance program as applying only to international calls and not involving any domestic surveillance. In February, for instance, the Vice President said: Some of our critics call this a domestic surveillance program. Wrong, that is inaccurate; it is not domestic surveillance. Ambassador Negroponte said: This is a program that was ordered by the President with respect to international phone calls to or from suspected al- Qaida operatives and their affiliates . . . This was not about domestic surveillance. General Hayden found a way to signal that the administration has not described the entire program. When asked at his confirmation hearing whether the program the administration described is the entire program, General Hayden said he could not answer in open session. Presumably, if it were the entire program, he could have easily answered, ``yes.'' In addition, while Stephen Hadley, the President's National Security Adviser, has said relative to the reports that phone records had been provided to the Government under the NSA program, that it is hard to find a privacy issue here, General Hayden did not make that claim and instead acknowledged that, indeed, privacy was an issue, and surely whatever one thinks they believe about this program, privacy is an issue. There may be some who, when they understand the program, believe the privacy concerns are overridden by the security advantage. There may be others who reach the other conclusion that whatever security advantages are achieved do not overcome the privacy intrusions that are reported to exist by those phone records being in the possession or being available to the Government, according to those press reports. But whatever one's conclusion is, there are clearly privacy concerns involved. And when the general was in front of us--he was honest enough--and said: I cannot say there are no privacy concerns here, he was telling us something which should be obvious to each one of us. There are remaining for me a lot of unanswered questions about the NSA program, and I have been one who has been at least partially briefed. I am one of that subcommittee of seven for whom the briefing has begun. But the fact is, the legal opinions about this program are not General Hayden's, they are the Attorney General's. I am aware of no allegation that General Hayden took any action that went beyond what the President authorized or what the Attorney General advised was legal. There are legitimate grounds for criticism regarding this program, but such criticism should be aimed at the White House and the Attorney General. The Intelligence Committee is in the middle of an inquiry into the program. Now that the full committee has been authorized to be briefed on the program, all of the members of the Intelligence Committee need to catch up to where seven of us are, which is about halfway through the briefings. We are still waiting for the administration to answer many questions that we have asked about the program. I want to turn for a few moments to the issue of detainee treatment. I would have liked General Hayden to be more forthcoming on this issue at his hearing. In his testimony, General Hayden affirmed that the CIA is bound by the Detainee Treatment Act of 2005. In particular, General Hayden stated that this legislation's prohibition on the cruel, inhuman, and degrading treatment or punishment of detainees applies to all Government agencies, including the CIA. The Detainee Treatment Act also requires that no individual under the effective control of the Defense Department or in a DOD facility will be subjected to any interrogation technique that is not listed in the Army Field Manual on Intelligence Interrogations. In response to my questioning, General Hayden agreed that the Army field manual would apply to CIA interrogations of detainees under DOD's effective control or in a DOD facility. I was disappointed, however, that General Hayden repeatedly chose not to 12 respond in public to many other questions on detainee treatment, deferring his answers to the hearing's closed session. I believe that he could have answered these questions and related his professional opinion in the public hearing. In response to Senator Feinstein's questions, General Hayden would not say publicly whether individuals held at secret sites may be detained for decades. He would not say publicly whether waterboarding is an acceptable interrogation technique whether the Agency has received new legal guidance from the Department of Justice since passage of the Detainee Treatment Act in December of last year. General Hayden would not answer my question whether the Justice Department memo on the legality of specific interrogation techniques, referred to as the second Bybee memo, remains operative, saying only that ``additional legal opinions'' have been offered. The problem is exacerbated because the administration continues to deny our requests for the second Bybee memo and other Justice Department legal memos which set out the legal boundaries for what constitutes permissible treatment of detainees. Under the Detainee Treatment Act, we have established a single standard--no cruel, inhuman, or degrading treatment or punishment of detainees. This standard applies without regard to what agency holds a detainee, whether the Defense Department or the CIA, or where the detainee is being held. Yet the administration will not say publicly whether this standard has the same meaning for the intelligence community that it has for our military. The Government's views on the standard for how we treat detainees remains cloaked in secrecy. The Armed Services Committee has heard from the judge advocates general of our military services on what they believe the standard for detainee treatment is. The judge advocates general were asked about the use of dogs in interrogations; forcing a detainee to wear women's underwear during interrogation to humiliate him; leading a detainee around the room on all fours and forcing him to perform dog tricks; subjecting a detainee to provocative touching to humiliate or demean him; subjecting a detainee to strip searches and forcing him to stand naked in front of females as an interrogation method; and waterboarding. In each case, the judge advocates general said that such treatment is not consistent with the spirit or intent of the Army fie1d manual. As I mentioned earlier, with the enactment of the Detainee Treatment Act, the Army field manual applies to all interrogations of detainees under the effective control of the Defense Department and all interrogations conducted in DOD facilities. General Hayden, in contrast, would not say in open session whether even waterboarding is even permitted. When the Senate Armed Services Committee's markup of the national defense authorization bill for fiscal fear 2007 comes to the floor later this year, the Senate will have the chance to demand some answers on the standard for the treatment of detainees. The new bill includes a requirement that the President provide Congress a definitive legal opinion, coordinated across government agencies, on whether certain specific interrogation techniques--including waterboarding, sleep deprivation, stress positions, the use of dogs in interrogations and nudity or sexual humiliation--constitute cruel, inhuman or degrading treatment or punishment under the Detainee Treatment Act of 2005. This provision would also require the President to certify to Congress that this legal opinion is binding on all departments and agencies of the U.S. Government, including the CIA, their personnel, and their contractors. While I disagree with General Hayden's decision not to publicly state his [[Page S5301]] personal view, the general did affirm that the prohibition on cruel, inhuman, or degrading treatment in the Detainee Treatment Act applies to all Government agencies, including the CIA. We have asked the administration to clarify this matter. I would hope that the administration would, one, state clearly that waterboarding, sleep deprivation, and stress positions are unacceptable; two, state clearly that the standard in law prohibits the use of dogs in interrogations; and three, state clearly that acts like stripping a detainee for interrogation purposes or subjecting a detainee to sexual humiliation are prohibited. I also hope that the administration will state clearly that the International Committee of the Red Cross will be informed about all detainees held by the United States Government and adopt a policy of not rendering individuals in our custody where there is a reasonable possibility that the person will be tortured. As I said at the time the Senate approved the Detainee Treatment Act, enactment of this legislation means the United States has rejected any claim that this standard--cruel, inhuman, or degrading treatment or punishment--has one meaning for the Department of Defense and another for the CIA--one meaning as applied to Americans and another applied to our enemies, or one meaning as applied on U.S. territory and another applied elsewhere in the world. I conclude by saying, in my view, General Hayden will be the independent Director of the Central Intelligence Agency that we so desperately need and that the country deserves. The record demonstrates his willingness to speak truth to power, and I will vote to confirm General Hayden. I yield the floor. ____________________