Meeting with CIA nominee fails to placate Sen. Durbin


Published Thursday, May 11, 2006

WASHINGTON - Sen. Dick Durbin, D-Ill., met Wednesday with Air Force Gen. Michael Hayden, who has been nominated by President Bush to head the CIA, as Hayden made his rounds seeking support on Capitol Hill.

But the 35-minute meeting didn't resolve Durbin's concerns about Hayden's nomination. While the senator said he respected Hayden's knowledge of intelligence matters, he said he is still "leaning against" the nominee because of questions he has on whether Hayden could be independent of the military and whether he would enforce Congress' ban on torture.

In one key area, however, Durbin found there may be some movement. In their private meeting, Hayden suggested he might be open to changes in the federal law that governs domestic surveillance to allow the Bush administration to eavesdrop on international phone calls and e-mails of people within the United States without a warrant, Durbin said.

Bush and others in the administration have said they don't believe changes in the law are needed. The 1978 Foreign Intelligence Surveillance Act, or FISA, requires national security agencies to seek approval from a federal court before conducting such surveillance.

"To say the president is above the law is unacceptable," Durbin said he told Hayden, who had oversight of the National Security Agency's domestic surveillance program.

Hayden said he relied on the legal and constitutional judgments of others on the issue. One reason the administration didn't seek changes in the law is that it would alert the enemy to U.S. tactics, Durbin said Hayden told him.

But all the publicity surrounding the program, disclosed by The New York Times in December, may have lessened that concern, Hayden told him. Hayden indicated to Durbin that "we may be closer to the possibility of asking for a change in FISA."

"I would really like to see that happen," Durbin said.

Durbin said he also remains "troubled" by Hayden's stance on the McCain amendment, which prohibits torture or cruel, inhuman or degrading treatment of prisoners. The law, adopted in December, was sponsored by Sen. John McCain, R-Ariz., who was a prisoner of war in Vietnam for five years and was tortured.

Hayden said he thought it applied differently to different people. Vice President Dick Cheney argued last year to have CIA operatives excluded.

"That troubled me," Durbin said afterward. But Hayden asked for time to study the issue further.

Durbin said he also asked Hayden whether he could be independent of the Pentagon. Durbin said Hayden cited instances in which he disagreed with superiors.

"I like him. I respect him. There's no question that he knows this intelligence business inside and out," said Durbin, adding that he wants to hear how Hayden responds in his upcoming confirmation hearing.

The Senate Intelligence Committee is expected to take up Hayden's nomination next week. A full Senate vote may not occur until after the Memorial Day recess.