Questions on NSA Abound

Top lawmakers from both parties said Sunday that the nomination of Air Force Gen. Michael V. Hayden as CIA director would hinge on his explanations of a controversial domestic spying program he oversaw as head of the National Security Agency.

Hayden is scheduled to testify Thursday publicly and privately before the Senate Select Committee on Intelligence. The lawmakers indicated that they would pull no punches.

“There’s no question that his confirmation is going to depend upon the answers he gives regarding activities of NSA,” Sen. Chuck Hagel (R-Neb.), a member of the intelligence panel, said on ABC’s “This Week.”

Hayden led the NSA from 1999 until he was tapped in April 2005 to be principal deputy director of national intelligence. The Office of the Director of National Intelligence opened last year to oversee the 16 U.S. intelligence agencies.

The White House has acknowledged that after the Sept. 11 attacks, President Bush instructed the NSA to intercept some e-mails and telephone calls -- those into and out of the U.S. involving suspected terrorist affiliates -- without warrants from a special intelligence court.

Several lawmakers said Sunday that their concerns about the legality of that program heightened significantly when USA Today reported last week that the NSA had built a database of millions of people’s domestic calling records handed over by AT&T; Inc., Verizon Communications Inc. and BellSouth Corp.

The NSA and the White House have refused to discuss the specifics of that report, but President Bush’s national security advisor, Stephen J. Hadley, appeared to confirm the broad outlines of such an NSA database.

He told CBS’ “Face the Nation” that the USA Today report “does not claim that the government was listening to domestic phone calls. It does not claim that names were passed, that addresses were passed, that content was passed. It’s really about calling records ... who was called when, and how long did they talk?”

Hadley said appropriate members of Congress had been fully briefed, and he described such programs as lawful and necessary to protect the United States from terrorism. He repeatedly refused to discuss details of NSA actions.

“What I can say is that the intelligence activities we have conducted against Al Qaeda -- lawfully briefed to the Congress, narrowly focused on the war on terror -- has prevented attacks and saved lives,” Hadley told CNN’s “Late Edition.”

Hayden has privately briefed “designated” members of the Senate and House intelligence committees about what the White House calls the terrorist surveillance program, Hadley said.

But several lawmakers -- including one briefed by Hayden -- took issue with Hadley’s remarks, saying that the program appeared to be illegal and that not enough members of Congress were consulted.

“I didn’t like the claims of Stephen Hadley,” said Rep. Jane Harman of Venice, who as top Democrat on the House Intelligence Committee was briefed by Hayden.

“I think the administration is breaking the law. Its legal rationale that it offers I think is extremely shaky....

“This is a lawless White House, out of control with respect to a program like this,” she told CBS.

As for the NSA’s reported collection of telephone companies’ records, “I think it probably does” violate telecommunications and privacy statutes, Sen. Joseph R. Biden Jr. (D-Del.), a member of the Senate Judiciary Committee, told ABC.

“We just don’t know what they’re doing,” Biden said.

Biden also confirmed a report in Sunday’s New York Times that Vice President Dick Cheney had wanted the NSA to conduct more domestic spying after Sept. 11 -- including warrantless eavesdropping on purely domestic phone calls -- and that Hayden successfully resisted.

“So, with [Hayden] personally, it appears as though the stories I’ve heard is he has pushed back. That is positive,” Biden said. “Now, what he’s pushing forward, that’s another question. We have to know that.”

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) told CBS he would sharply question the telephone executives in hearings on the records-gathering program. “They can’t claim executive privilege, so we may get some answers from the telephone companies,” he said. “It would be a pleasant change.”

The ranking Democrat on the Senate Intelligence Committee, John D. Rockefeller IV of West Virginia, recently had back surgery and could not be reached for comment Sunday. Spokeswoman Wendy Morigi said Rockefeller would be monitoring Hayden’s confirmation hearings closely, paying particular attention to questions about the emerging role of the military in U.S. intelligence efforts, Hayden’s plans to get the CIA back on track, and the general’s response to ongoing concerns of “insufficient congressional oversight of NSA programs.”

*

Times staff writer Tom Hamburger contributed to this report.