NSA director on NSA domestic wiretaps (to Cong in Oct 2002)

John Gilmore gnu at toad.com
Mon Dec 19 03:44:51 PST 2005

Paragraph 40, below, is about as bald a statement as an NSA director
could make, saying he needs help to decide what he should be allowed
to wiretap about US persons.  We, the privacy community, did not
respond.  We were a bit surprised, but that was about the extent of
the support we offered.

Of course, we were living in a time where being anti-paranoia or
anti-war or anti-president was considered treasonous by the president,
and by most of the people who elected him, and many who worked for
him.  And we were living in the lost time when we expected the
government to follow clearly written laws, until such time as they
were rewritten.  And nobody had ever gotten NSA to stop doing ANYTHING
corrupt, without either suing them, beating them in the legislature,
or shining some bright sunlight on one of their secrets -- in some
cases it took all three.  The door of the NSA Director's office has
never been open for privacy activists to come in and review their
secret programs for sanity and constitutionality, though it should be.

His challenge to the NSA work force -- "to keep America free by making
Americans feel safe again" -- is as bogus as TSA's "We're upholding
the right to travel by making travel feel safe, even while we keep
innocent YOU off the plane".  It begs the question -- who do we need
to feel safe FROM?  Governments are historically thousands of times as
likely to injure you than 'terrorists'.  Do you feel safe from Bush
and NSA and TSA today?  Are you really sure your government isn't
tapping and tracing you, building databases about who you call and who
you travel with, with or without a warrant from some rubber stamp

Indeed, what good would it have done if the whole privacy and crypto
community had risen up to say, "You should follow the law!"?  Bush was
intent on breaking it in secret ANYWAY, and rather than exposing his
treason, NSA followed his orders.  Mr. Hayden did not pose the
question as, "We are now wiretapping the foreign communications of US
persons without warrants, in violation of the FISA; do you think this
is OK?", though he was doing so at the time he made this speech.  But
that's the question that he and his successor will have to face civil
and criminal charges over.


"Statement for the record by Lieutenant General Michael V. Hayden, USAF,
Director, National Security Agency... 17 October 2002"

2.  We know our responsibilities for American freedom and security at
    NSA. Our workforce takes the events of September 11, 2001 very
    personally. By the very nature of their work, our people deeply
    internalize their mission. This is personal.


25. The final issue - what have we done in response - will allow me to
    give some specifics although I may be somewhat limited by the
    demands of classification. I will use some of the terms that
    Congress has used with us over the past year.

26. It was heartening, for example, to hear Congress echo the phrase
    of our SIGINT Director, Maureen Baginski, in the belief that we
    need to be "hunters rather than gatherers." She believed and
    implemented this strategy well before September 11th, and then she
    applied it with a vengeance to al-Qa'ida after the attacks.


36. There is a certain irony here. This is one of the few times in the
    history of my Agency that the Director has testified in open
    session about operational matters. The first was in the mid 1970s
    when one of my predecessors sat here nearly mute while being
    grilled by members of Congress for intruding upon the privacy
    rights of the American people. Largely as a result of those
    hearings, NSA is governed today by various executive orders and
    laws and these legal restrictions are drilled into NSA employees
    and enforced through oversight by all three branches of

37. The second open session was a little over two years ago and I was
    the Director at that time. During that session the House
    intelligence committee asked me a series of questions with a
    single unifying theme:

    How could I assure them that I was safeguarding the privacy rights
    of those protected by the U.S. constitution and U.S. law? During
    that session I even said - without exaggeration on my part or
    complaint on yours - that if Usama bin Laden crossed the bridge
    from Niagara Falls, Ontario to Niagara Falls, New York, U.S. law
    would give him certain protections that I would have to
    accommodate in the conduct of my mission. And now the third open
    session for the Director of NSA: I am here explaining what my
    Agency did or did not know with regard to 19 hijackers who were in
    this country legally.

38. When I spoke with our workforce shortly after the September 11th
    attacks, I told them that free people always had to decide where
    to draw the line between their liberty and their security, and I
    noted that the attacks would almost certainly push us as a nation
    more toward security. I then gave the NSA workforce a challenge:
    We were going to keep America free by making Americans feel safe

39. Let me close by telling you what I hope to get out of the national
    dialogue that these committees are fostering. I am not really
    helped by being reminded that I need more Arabic linguists or by
    someone second-guessing an obscure intercept sitting in our files
    that may make more sense today than it did two years ago. What I
    really need you to do is to talk to your constituents and find out
    where the American people want that line between security and
    liberty to be.

40. In the context of NSA's mission, where do we draw the line between
    the government's need for CT information about people in the
    United States and the privacy interests of people located in the
    United States?

    Practically speaking, this line-drawing affects the focus of NSA's
    activities (foreign versus domestic), the standard under which
    surveillances are conducted (probable cause versus reasonable
    suspicion, for example), the type of data NSA is permitted to
    collect and how, and the rules under which NSA retains and
    disseminates information about U.S. persons.

41. These are serious issues that the country addressed, and resolved
    to its satisfaction, once before in the mid-1970's. In light of
    the events of September 11th, it is appropriate that we, as a
    country, readdress them. We need to get it right. We have to find
    the right balance between protecting our security and protecting
    our liberty. If we fail in this effort by drawing the line in the
    wrong place, that is, overly favoring liberty or security, then
    the terrorists win and liberty loses in either case.

42. Thank you. I look forward to the committees' questions.

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