Executive Session

EXECUTIVE SESSION

BREAK IN TRANSCRIPT

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 Ð9/11. 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.

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.

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