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 

[[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 
  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 

  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 
  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 
  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 
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 
  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 
  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 

       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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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 
  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]

  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 
  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]                        


  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 
  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 

       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 

       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 
  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 
  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 

[[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 

  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 
  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 
  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 

[[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.