06:17 PM PDT on Thursday, May 18, 2006

Associated Press

WASHINGTON - CIA nominee Gen. Michael Hayden insisted on Thursday that the Bush administration's warrantless surveillance program was legal and that it was designed to ensnare terrorists – not spy on ordinary Americans.

After the attacks of Sept. 11, 2001, President Bush decided that broader surveillance was necessary, said Hayden, who headed the super-secret National Security Agency at the time.

"Clearly the privacy of American citizens is a concern constantly," the four-star Air Force general told the Senate Intelligence Committee at his confirmation hearing. "We always balance privacy and security."

Hayden was grilled on the NSA's eavesdropping without warrants on conversations and e-mails believed by the government to involve terrorism suspects, and reports of the tracking of millions of phone calls made and received by ordinary Americans.

Hayden said he decided to go ahead with the then-covert surveillance program, which has been confirmed by Bush, believing it to be legal and necessary.

He said the surveillance program used a "probable cause" standard that made it unlikely that information about average Americans would be scrutinized.

"When I had to make this personal decision in October 2001 ... the math was pretty straightforward. I could not not do this," Hayden said.

But he declined to openly discuss reports that the NSA was engaged in even broader surveillance, including a story in USA Today that the NSA has been secretly collecting phone-call records of tens of millions of U.S. citizens.

Under questioning from Democratic Sen. Carl Levin of Michigan, Hayden said he would only talk about the part of the program the president had confirmed.

"Is that the whole program?" asked Levin.

"I'm not at liberty to talk about that in open session," Hayden said. A closed-door session was planned for later in the day.

Hayden was asked about reported friction between him and Defense Secretary Donald H. Rumsfeld over how the NSA and other intelligence agencies would work with the Pentagon, which has the lion's share of intelligence dollars.

Had they disagreed, he was asked by Levin? "Yes sir," said Hayden.

Some critics have suggested that Hayden, who remains an active general, is too closely aligned with the Pentagon to objectively run the civilian CIA.