White House stands by Hayden

WASHINGTON -- A day after new disclosures that the National Security Agency has been gathering most US telephone records without court permission, the White House went on the offensive to endorse Air Force General Michael V. Hayden, President Bush's nominee for CIA director -- and the NSA's leader when the data collection began after the Sept. 11, 2001 terrorist attacks.

As Hayden made courtesy calls on Capitol Hill yesterday, White House Press Secretary Tony Snow told reporters Hayden should be able to convince a suspicious Senate that he should be confirmed and that the phone databank and other domestic spying programs Bush authorized are legal. ''[We're] confident that he is going to comport himself well and answer all the questions and concerns that members of the United States Senate may have," Snow said.

Meanwhile, Bush will make Hayden's nomination the subject of today's weekly radio address, according to White House officials. Bush's address will laud Hayden and the surveillance programs he managed as helping to prevent another terrorist attack in the United States, officials said.

The president is clearly betting that Hayden, a low-key, bespectacled career intelligence officer, can be the primary salesman for the NSA's once-secret domestic surveillance activities, intelligence and information gathering that the administration and its allies have described as critical to the war on terrorism.

But Bush's critics, and some of his Republican allies, have questioned whether those activities violate the Constitution because they were undertaken without court permission.

Two days ago, a USA Today report made public a top-secret NSA program in which the agency collected billions of telephone records with help from three major phone companies and analyzed the data, searching for patterns that would reveal terrorist communications. When the news broke, several influential lawmakers said they were stunned and outraged, but opinion polls suggest that more than 60 percent of the public isn't concerned about the NSA's telephone data collection.

But Hayden's nomination carries huge stakes for Bush. A Washington Post/ABC News poll conducted Thursday indicated that only a slight majority of respondents approve of the way Bush has protected Americans' privacy as he has sought to defend the country against terrorist threats, compared with 47 percent who disapprove.

When he goes before the Senate Intelligence Committee next week, Hayden has a difficult task, observers said. He must win over the Senate while satisfying critics on both sides of the aisle who want more details about the agency's highly sensitive domestic activities -- specifics the NSA and the Bush administration have declined to provide despite congressional prodding. Besides the phone database, however, Hayden will be under fire for another formerly secret NSA program, in which the agency eavesdropped on some domestic phone calls without a warrant.

''We need the full intelligence committees briefed on all NSA-related activities," said Senator Jay Rockefeller of West Virginia, the senior Democrat on the panel, which will hear testimony from Hayden on Thursday. ''Significant questions remain surrounding the legality of the program and whether the White House has misrepresented the program to the public."

One former NSA director who asked not to be identified doubted that Hayden, who was at the helm of the agency during the Sept. 11 terrorist attacks and before the Iraq war, can silence the critics.

''The real issue is why would you nominate a guy who is associated with this?" the former director said. ''This is a guy who failed to stop the 9/11 attacks and didn't come and tell anybody about [the domestic surveillance efforts] to make it legal."

While on Capitol Hill yesterday, Hayden briefly defended the NSA's activities, and several influential senators came to his defense.

''Everything the spy agency has done has been lawful," Hayden told reporters. ''It's been briefed to the appropriate members of Congress. The only purpose of the agency's activities is to preserve the security and the liberty of the American people. And I think we've done that."

Susan M. Collins, the Maine Republican who chairs the Senate Homeland Security and Governmental Affairs Committee, gave Hayden a hearty endorsement. ''I believe General Hayden has the qualifications, the managerial experience, and the leadership that is needed" to run the beleaguered spy agency.

Senator Chuck Hagel, Republican of Nebraska, met with Hayden yesterday for 40 minutes. ''I support him," he told reporters afterward

But Hagel also warned that Hayden's confirmation hearing won't be easy. ''He's going to have to explain what his role was" in the phone data program, Hagel said.

Senator John F. Kerry said Thursday that Hayden's nomination was a test case for Congress and the legislative branch, which he contended has shirked its constitutional duty to check the power of the executive branch.

''Enough is enough," Kerry, the 2004 Democratic presidential nominee, told an audience at American University. ''It is long overdue for this Congress to end the days of 'roll over and rubber stamp' and finally assert its power of advise and consent before General Hayden becomes Director Hayden."

Abraham W. Wagner, a former Defense Department intelligence analyst who is now a professor at Colombia University, said Hayden's greatest challenge may be convincing lawmakers that gathering data on US citizens without a court warrant is legal.

''Mike is fundamentally a good guy," said Wagner, who is a lawyer. ''But I think some parts of what they [the NSA] were doing was not legal. This mad waving of hands and citing executive power is a bunch of crap. What they are doing is against the law."

Bryan Bender can be reached at bender@globe.com.