Hayden on NSA program

David Bolduc bolduc at austin.rr.com
Mon Jan 23 07:11:04 PST 2006


Setting aside the commentary, there are some interesting details here.

Useful formatting and pointers (including one to transcript) in
original.

http://powerlineblog.com/archives/012915.php

HAYDEN DELIVERS IMPASSIONED DEFENSE OF NSA


Lt. Gen. Michael Hayden, former director of the National Security
Agency, delivered a brilliant and heartfelt speech on the NSA's
international terrorist surveillance program at the National Press
Club today. You can, and should, read it all here. What follows are
just a few of the many highlights:

In the days after 9/11, NSA was using its authorities and its
judgment to appropriately respond to the most catastrophic attack on
the homeland in the history of the nation. That shouldn't be a
headline, but as near as I can tell, these actions on my part have
created some of the noise in recent press coverage. Let me be clear
on this point -- except that they involved NSA, these programs were
not related -- these programs were not related -- to the
authorization that the president has recently spoken about. Back
then, September 2001, I asked to update the Congress on what NSA had
been doing, and I briefed the entire House Intelligence Committee on
the 1st of October on what we had done under our previously existing
authorities.
Now, as another part of our adjustment, we also turned on the spigot
of NSA reporting to FBI in, frankly, an unprecedented way. We found
that we were giving them too much data in too raw form. We recognized
it almost immediately, a question of weeks, and we made all of the
appropriate adjustments. Now, this flow of data to the FBI has also
become part of the current background noise, and despite reports in
the press of thousands of tips a month, our reporting has not even
approached that kind of pace. You know, I actually find this a little
odd. After all the findings of the 9/11 commission and other bodies
about the failure to share intelligence, I'm up here feeling like I
have to explain pushing data to those who might be able to use it.
And of course, it's the nature of intelligence that many tips lead
nowhere, but you have to go down some blind alleys to find the tips
that pay off.
Now, beyond the authorities that I exercised under the standing
executive order, as the war on terror has moved forward, we have
aggressively used FISA warrants. The act and the court have provided
us with important tools, and we make full use of them. Published
numbers show us using the court at record rates, and the results have
been outstanding. But the revolution in telecommunications technology
has extended the actual impact of the FISA regime far beyond what
Congress could ever have anticipated in 1978. And I don't think that
anyone can make the claim that the FISA statute is optimized to deal
with or prevent a 9/11 or to deal with a lethal enemy who likely
already had combatants inside the United States.
I testified in open session to the House Intel Committee in April of
the year 2000. At the time, I created some looks of disbelief when I
said that if Osama bin Laden crossed the bridge from Niagara Falls,
Ontario to Niagara Falls, New York, there were provisions of U.S. law
that would kick in, offer him protections and affect how NSA could
now cover him. At the time, I was just using this as some of sort of
stark hypothetical; 17 months later, this is about life and death.
So now, we come to one additional piece of NSA authorities. These are
the activities whose existence the president confirmed several weeks
ago. That authorization was based on an intelligence community
assessment of a serious and continuing threat to the homeland. The
lawfulness of the actual authorization was reviewed by lawyers at the
Department of Justice and the White House and was approved by the
attorney general.
But we all have personal responsibility, and in the end, NSA would
have to implement this, and every operational decision the agency
makes is made with the full involvement of its legal office. NSA
professional career lawyers -- and the agency has a bunch of them --
have a well-deserved reputation. They're good, they know the law, and
they don't let the agency take many close pitches.
And so even though I knew the program had been reviewed by the White
House and by DOJ, by the Department of Justice, I asked the three
most senior and experienced lawyers in NSA: Our enemy in the global
war on terrorism doesn't divide the United States from the rest of
the world, the global telecommunications system doesn't make that
distinction either, our laws do and should; how did these activities
square with these facts?
They reported back to me. They supported the lawfulness of this
program. Supported, not acquiesced. This was very important to me. A
veteran NSA lawyer, one of the three I asked, told me that a
correspondent had suggested to him recently that all of the lawyers
connected with this program have been very careful from the outset
because they knew there would be a day of reckoning. The NSA lawyer
replied to him that that had not been the case. NSA had been so
careful, he said -- and I'm using his words now here -- NSA had been
so careful because in this very focused, limited program, NSA had to
ensure that it dealt with privacy interests in an appropriate manner.
In other words, our lawyers weren't careful out of fear; they were
careful out of a heartfelt, principled view that NSA operations had
to e consistent with bedrock legal protections.
You know, the 9/11 commission criticized our ability to link things
happening in the United States with things that were happening
elsewhere. In that light, there are no communications more important
to the safety of this country than those affiliated with al Qaeda
with one end in the United States. The president's authorization
allows us to track this kind of call more comprehensively and more
efficiently. The trigger is quicker and a bit softer than it is for a
FISA warrant, but the intrusion into privacy is also limited: only
international calls and only those we have a reasonable basis to
believe involve al Qaeda or one of its affiliates.
The purpose of all this is not to collect reams of intelligence, but
to detect and prevent attacks. The intelligence community has neither
the time, the resources nor the legal authority to read
communications that aren't likely to protect us, and NSA has no
interest in doing so. These are communications that we have reason to
believe are al Qaeda communications, a judgment made by American
intelligence professionals, not folks like me or political
appointees, a judgment made by the American intelligence
professionals most trained to understand al Qaeda tactics, al Qaeda
communications and al Qaeda aims.
Their work is actively overseen by the most intense oversight regime
in the history of the National Security Agency. The agency's conduct
of this program is thoroughly reviewed by the NSA's general counsel
and inspector general. The program has also been reviewed by the
Department of Justice for compliance with the president's
authorization. Oversight also includes an aggressive training program
to ensure that all activities are consistent with the letter and the
intent of the authorization and with the preservation of civil
liberties.
Let me talk for a few minutes also about what this program is not. It
is not a driftnet over Dearborn or Lackawanna or Freemont grabbing
conversations that we then sort out by these alleged keyword searches
or data-mining tools or other devices that so-called experts keep
talking about.
This is targeted and focused. This is not about intercepting
conversations between people in the United States. This is hot
pursuit of communications entering or leaving America involving
someone we believe is associated with al Qaeda. We bring to bear all
the technology we can to ensure that this is so. And if there were
ever an anomaly, and we discovered that there had been an inadvertent
intercept of a domestic-to-domestic call, that intercept would be
destroyed and not reported. But the incident, what we call
inadvertent collection, would be recorded and reported. But that's a
normal NSA procedure. It's been our procedure for the last quarter
century. And as always, as we always do when dealing with U.S. person
information, as I said earlier, U.S. identities are expunged when
they're not essential to understanding the intelligence value of any
report. Again, that's a normal NSA procedure.
Let me emphasize one more thing that this program is not -- and,
look, I know how hard it is to write a headline that's accurate and
short and grabbing. But we really should shoot for all three --
accurate, short and grabbing. I don't think domestic spying makes it.
One end of any call targeted under this program is always outside the
United States. I've flown a lot in this country, and I've taken
literally hundreds of domestic flights. I have never boarded a
domestic flight in the United States of America and landed in
Waziristan. In the same way -- and I'm speaking illustratively here
now, this is just an example -- if NSA had intercepted al Qaeda Ops
Chief Khalid Shaikh Mohammed in Karachi talking to Mohamed Atta in
Laurel, Maryland, in say, July of 2001 -- if NSA had done that, and
the results had been made public, I'm convinced that the crawler on
all the 7 by 24 news networks would not have been "NSA domestic spying."
Had this program been in effect prior to 9/11, it is my professional
judgment that we would have detected some of the 9/11 al Qaeda
operatives in the United States, and we would have identified them as
such. I've said earlier that this program's been successful. Clearly
not every lead pans out from this or any other source, but this
program has given us information that we would not otherwise had been
able to get. It's impossible for me to talk about this any more in a
public way without alerting our enemies to our tactics or what we
have learned. I can't give details without increasing the danger to
Americans. On one level, believe me, I wish that I could. But I can't.

Some of the questions and answers were intensely interesting:
QUESTION: Yes, Wayne Madsen, syndicated columnist. General, how do
you explain the fact that there were several rare spectacles of
whistleblowers coming forward at NSA, especially after 9/11,
something that hasn't really happened in the past, who have
complained about violations of FISA and United States Signals
Intelligence Directive 18, which implements the law at the agency?
GEN. HAYDEN: I talked to the NSA staff on Friday. The NSA inspector
general reports to me, as of last Friday, from the inception of this
program through last Friday night, not a single employee of the
National Security Agency has addressed a concern about this program
to the NSA IG. I should also add that no member of the NSA workforce
who has been asked to be included in this program has responded to
that request with anything except enthusiasm. I don't know what
you're talking about.
So whoever the NY Times sources were, they didn't work for NSA.
Here's more:

QUESTION: General Hayden, the FISA law says that the NSA can do
intercepts as long as you go to the court within 72 hours to get a
warrant.
I understood you to say that you are aggressively using FISA but
selectively doing so. Why are you not able to go to FISA as the law
requires in all cases? And if the law is outdated, why haven't you
asked Congress to update it? [Ed: Note how the journalists
immediately encapsulate the Democrats' critique of the NSA program in
their questions.]
GEN. HAYDEN: Lots of questions contained there. Let me try them one
at a time. First of all, I need to get a statement of fact out here,
all right? NSA cannot -- under the FISA statute, NSA cannot put
someone on coverage and go ahead and play for 72 hours while it gets
a note saying it was okay. All right? The attorney general is the one
who approves emergency FISA coverage, and the attorney general's
standard for approving FISA coverage is a body of evidence equal to
that which he would present to the court. So it's not like you can
throw it on for 72 hours.
In the instances where this program applies, FISA does not give us
the operational effect that the authorities that the president has
given us give us. Look. I can't -- and I understand it's going to be
an incomplete answer, and I can't give you all the fine print as to
why, but let me just kind of reverse the answer just a bit. If FISA
worked just as well, why wouldn't I use FISA? To save typing? No.
There is an operational impact here, and I have two paths in front of
me, both of them lawful, one FISA, one the presidential -- the
president's authorization. And we go down this path because our
operational judgment is it is much more effective. So we do it for
that reason. I think I've got -- I think I've covered all the ones
you raised.

This one is hilarious. A reporter offers up an incoherent Democratic
talking point:
QUESTION: You cited before the congressional powers of the president.
Are you -- are you asserting inherent so-called constitutional powers
that a -- to use the term that came up in the Alito hearings -- "a
unitary executive" has to violate the law when he deems fit?
GEN. HAYDEN: I'm not asserting anything. I'm asserting that NSA is
doing its job.

Is it possible that our reporters can be that dim-witted? I'm afraid
so. Here's another:
QUESTION: Justine Redman with CNN. How was national security harmed
by The New York Times reporting on this program? Don't the bad guys
already assume that they're being monitored anyway, and shouldn't
Americans, you know, bear in mind that they might be at any time?
GEN. HAYDEN: You know, we've had this question asked several times.
Public discussion of how we determine al Qaeda intentions, I just --
I can't see how that can do anything but harm the security of the
nation. And I know people say, "Oh, they know they're being
monitored." Well, you know, they don't always act like they know
they're being monitored. But if you want to shove it in their face
constantly, it's bound to have an impact. [C]onstant revelations and
speculation and connecting the dots in ways that I find unimaginable,
and laying that out there for our enemy to see cannot help but
diminish our ability to detect and prevent attacks.

This one was interesting from a technical standpoint:
QUESTION: Two questions in two areas for you. One, can you describe a
little further who the targets of these collection are? Are you
looking at individuals or are you looking at phone numbers, websites,
e-mail addresses?
***
[Gen. Hayden]: [Y]our first question. Are these individuals, are
these phone numbers, are these e-mail accounts and so on? Hard for me
to get into the specifics. I would just say that what it is we do is
that we use our art form -- we use our science and our art to -- as
best as we can, okay? -- specifically target communications we have
reason to believe are associated with al Qaeda, and we use all of the
tools, Katie, available to us to do that.
QUESTION: So you can't be any more specific than as to whether it's
focused on individuals or phone numbers?
GEN. HAYDEN: I would love to, but I can't.

The issue of the 72-hour emergency FISA order came up again:
QUESTION: James Rosen, McClatchy Newspapers. *** [A] second, sort of
linked, question is, on the 72 hours, if what you said is true, if I
understood it, then I and, I think, a lot of other reporters have
been misreporting this. [Ed.: No kidding!] Can you explain, on the 72
hours -- (inaudible) -- because you said it's not true, but you
didn't explain why it's not true.
GEN. HAYDEN: I'm sorry. To be very clear. We throw the language out
and we all maybe lose precision as we do it. NSA just can't go up on
a number for 72 hours while it finishes out the paperwork. The
attorney general is the only one who can authorize what's called an
emergency FISA. That's what we're talking about there, all right? So
it's not -- my point was, that's not something that NSA under the
FISA act can do on its own.
QUESTION: Well, just a quick follow-up on that. I mean, can it be as
quick as you call the attorney general, or the NSA director calls the
attorney general, says, "We got to go up now," and he says, "Okay,
fill out the paperwork"? GEN. HAYDEN: The standard the attorney
general must have is that he has sufficient evidence in front of him
that he believes he can substantiate that in front of the FISA court.

So the Presidential authorization is used when NSA does not yet have
all of the information needed to fill out the very onerous form
necessary to obtain a FISA order, which we wrote about here.
And, finally, this last, slightly cryptic exchange:
QUESTION: The legal standard is probable cause, General. You used the
terms just a few minutes ago, "We reasonably believe." And a FISA
court, my understanding is, would not give you a warrant if you went
before them and say "we reasonably believe"; you have to go to the
FISA court, or the attorney general has to go to the FISA court and
say, "we have probable cause." And so what many people believe -- and
I'd like you to respond to this -- is that what you've actually done
is crafted a detour around the FISA court by creating a new standard
of "reasonably believe" in place in probable cause because the FISA
court will not give you a warrant based on reasonable belief, you
have to show probable cause. Could you respond to that, please?
GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding
to a lawful order. All right? The attorney general has averred to the
lawfulness of the order. Just to be very clear -- and believe me, if
there's any amendment to the Constitution that employees of the
National Security Agency are familiar with, it's the Fourth. And it
is a reasonableness standard in the Fourth Amendment. And so what
you've raised to me -- and I'm not a lawyer, and don't want to become
one -- what you've raised to me is, in terms of quoting the Fourth
Amendment, is an issue of the Constitution. The constitutional
standard is "reasonable." And we believe -- I am convinced that we
are lawful because what it is we're doing is reasonable.

I think that what the reporter said was correct, as to the
Presidential authorization, even though he was wrong about the
language of the Fourth Amendment. The most fundamental difference
between the program authorized by President Bush post-September 11
and FISA is that FISA requires extensive paperwork designed to show
probable cause that a person to be surveilled is connected to
terrorism. Under the Presidential authorization, it sounds as though
the standard is "reasonable belief" as opposed to "probable cause."
General Hayden was correct, of course, as to the constitutional
standard. It is not unreasonable to intercept international
communications that are reasonably believed to involve al Qaeda;
therefore, the program is constitutional.
There is much more that could be said, and I'll try to return to this
later.

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