updated 5/10/2006 8:45:13 PM ET 2006-05-11T00:45:13

CIA director-nominee Michael Hayden has told at least one Democratic senator that he may be open to changing the law that governs eavesdropping on U.S. soil to allow the Bush administration’s warrantless surveillance.

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President Bush and other senior officials have said they don’t believe that changes in law are needed to empower the National Security Agency to eavesdrop — without court approval — on communications between people in the U.S. and overseas when terrorism is suspected.

The 1978 Foreign Intelligence Surveillance Act established a system requiring the national security agencies to first seek approval from a secretive federal court before monitoring Americans. Bush’s program skirted those rules.

Hayden, an Air Force general and former NSA director, and other government officials had previously said that they did not ask Congress to change the surveillance law because the debate would reveal U.S. intelligence techniques. Gradually, the White House has come around, saying it is committed to working with Congress on legislation that would write the president’s eavesdropping authority into statute.

But the White House has not specifically embraced changes to the FISA process.

According to Sen. Richard Durbin, D-Ill., Hayden indicated he could support a congressional debate on modifying that law. The exchange came during a 35-minute meeting Wednesday about his nomination to be CIA director.

Durbin said Hayden told him: “With all the publicity that has surrounded this program, we may be closer to the possibility of asking for a change in FISA.”

“He didn’t say he would,” Durbin added.

Spokespeople for Hayden were not immediately available to comment.

White House spokeswoman Dana Perino said details would have to be worked out before the administration would formally back any proposed measure. “We said we were open to ideas and were committed to working with Congress on legislation some time ago,” she said.

Making rounds on the Hill
Hayden is making the rounds on Capitol Hill to help sell his nomination to be CIA director. Outgoing director Porter Goss announced his resignation Friday, and officials have said that Goss had conflicts with National Intelligence Director John Negroponte and his top deputy, Hayden.

Republicans and Democrats have expressed concern about the prospect of an Air Force officer running the civilian CIA. Also creating discomfort are Hayden’s ties to the warrantless surveillance program, which Bush has credited Hayden with designing.

Senate Armed Services Chairman John Warner, R-Va., a Hayden supporter, has said that confirmation hearings should note that he is not a lawyer and was relying on the advice of the White House counsel’s office, the Justice Department and other top government lawyers when the NSA program was created.

Senate Republicans were gradually embracing Hayden. After a morning meeting with him, Sen. Trent Lott, R-Miss., said that he plans to vote to confirm Hayden, “unless there’s some problem that develops during the process of the hearings.”

Lott said the 20-minute session addressed the importance of preventing the Defense Department from becoming “the dominant and the only operation that’s really pursuing the necessary intelligence.”

Bond’s ‘walks like a duck’ rule
Durbin said Hayden told him he “wouldn’t rule out” retiring from the military, as some lawmakers have pressed for. Sen. Kit Bond, R-Mo., who supports Hayden, doesn’t think that the general needs to give up his uniform.

“If it walks like a duck, it quacks like a duck. Just because you put a different suit on the duck doesn’t make it not a duck,” said Bond, an intelligence committee member.

Durbin, the No. 2 Senate Democrat, is reserving judgment on supporting Hayden. He questioned Hayden’s role in the wiretapping program, whether he could be independent from the military establishment and whether he would respect Congress’ ban on cruel, inhumane and degrading treatment of terror detainees.

Vice President Cheney fought to have CIA operatives excluded from the provisions of the amendment, approved last year.

“It is not a question of Gen. Hayden’s qualifications,” Durbin said. “There is no doubt that this man is probably one of the smartest men when it comes to intelligence-gathering in America.”

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