Hayden defends legal tapping

Air Force Gen. Michael V. Hayden, under scrutiny from the Senate intelligence panel, yesterday said the Bush administration’s telephone surveillance program is legal, doesn’t spy on ordinary citizens and could have detected two of the September 11 hijackers.

The four-star general, nominated by President Bush to lead the Central Intelligence Agency, must be confirmed by the panel. Senators mostly focused on the warrantless surveillance program that Gen. Hayden helped design as chief of the National Security Agency after the 2001 terrorist attacks.

“This balance between security and liberty was foremost in our minds,” Gen. Hayden said during more than six hours of testimony.

Panel Chairman Sen. Pat Roberts defended the program, which opponents say infringes on the civil liberties of ordinary Americans.

“The fact that we have not had another tragedy like 9/11 is no accident,” the Kansas Republican said.

Gen. Hayden said he consulted both his lawyers and his conscience when starting the program in October 2001. It was a “tough decision” to which he applied three standards — that it be legal, that it be effective and that it be carried out carefully and within the law, he said.

Senators asked how he could ensure that workers aren’t abusing the program by spying on neighbors, rivals or journalists.

“We have a very strict oversight regime,” he answered.

Program decisions are made by those who have the most knowledge about al Qaeda and are documented and reviewed by management and the Department of Justice, the general said.

Sen. Carl Levin of Michigan, the ranking Democrat at yesterday’s hearing, dismissed as “speculation” Gen. Hayden’s assertion that the program, had it been in place before September 11 attacks, could have identified the hijackers.

The full panel was briefed for the first time Wednesday about the secret NSA program, a fact that irked many of its members.

Previously, only a handful of lawmakers — including the top two members of the House and Senate intelligence panels and each chamber’s leaders — were privy to the details. In five years, only 31 of the 535 voting members of Congress were briefed, with most members first learning of the program when it was disclosed in newspapers last year.

Sen. Olympia J. Snowe, Maine Republican, said notifying such a limited group “is not the kind of checks and balances that I think our Founding Fathers had in mind.”

Gen. Hayden said the small briefings were not his decision. Questions were “asked and answered,” and concerns were “raised and addressed,” he said, and “I never left those sessions thinking I had to change anything.”

Senators asked about the USA Today report that phone companies gave NSA information on calls made by millions of citizens, but Gen. Hayden declined to answer such questions during the public session.

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