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Hayden nomination revives eavesdropping controversy

Knight Ridder | May 8, 2006
BY STEVE GOLDSTEIN

WASHINGTON - Air Force Gen. Michael V. Hayden's nomination to lead the CIA is just the spark Democrats and some Republicans desire to reignite the debate over the warrantless domestic surveillance program.

One leading Republican, Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania, is contemplating additional hearings on the program and said he hoped to use Hayden's nomination to pry more information about the wiretaps from a recalcitrant White House.

As director of the National Security Agency, Hayden was an architect of the electronic eavesdropping, which President Bush began in late 2001 but which was disclosed only in December.

The program allows the NSA to monitor communications involving a person in the United States and one outside, provided one is a possible terrorism suspect. The White House says the program is exempt from the 1978 Foreign Intelligence Surveillance (FISA), which provides for the issuing of surveillance warrants by a secret court.

Many lawmakers and legal scholars question the legality of the program and contend the administration has done a poor job of explaining and justifying it to the public and Congress.

In March, Sen. Russell D. Feingold, D-Wis., said Bush broke the law and called for Congress to formally censure the president. Specter angered some of his GOP colleagues by holding a hearing on the issue.

Last month, Attorney General Alberto R. Gonzales left open the possibility that Bush could order warrantless wiretaps on phone calls occurring solely within the United States. This revelation - coming after administration officials had refused to comment on such a prospect - raised concerns of a dramatically expanded eavesdropping program.

Asked Monday at a White House briefing if the United States was conducting warrantless wiretaps on purely domestic calls, national intelligence director John D. Negroponte said: "To the best of my knowledge, absolutely not."

Feingold expressed disbelief at Negroponte's assurances.

"Both in the public hearings in the Judiciary Committee and the intelligence committee ... we repeatedly tried to get the administration to tell us what the program really is," Feingold said. "I think it's safe for me to tell you we weren't told."

Hayden has become the administration's most passionate defender of the program, and thus its poster boy, for good or ill.

He told Fox News in February that the NSA effort was no "drift net" trolling cities with large Muslim populations, but rather was totally "focused on al-Qaida."

In a Washington speech the spymaster said he wanted to talk about the program, even though, he said, "people in my line of work generally don't like to talk about what they've done until it becomes a subject on the History Channel."

Federal Appeals Court Judge Richard A. Posner, a frequent critic of the intelligence bureaucracy, has said that the FISA model for authorizing wiretaps was "hopeless as a framework for detecting terrorists."

Negroponte said Hayden "will be very, very well-equipped" to deal with questions about the eavesdropping program.

"He was involved in its creation when he was director of the NSA," Negroponte said. "He's already been both before the public and the Congress in explaining and defending the program as being in the interests of the United States, as it most definitely is."

Confirmation hearings for Hayden will be conducted by the Senate intelligence committee. Specter said he would ask Hayden to speak to him privately to test his willingness to appear before the Judiciary Committee and provide more detail on NSA surveillance.


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