Yesterday, the former director of NSA (1999-2005), General Michael Hayden gave a speech.
We’ll start with Reuters:
A top U.S. intelligence official on Monday said President George W. Bush’s warrantless spying program was necessary because the war on terrorism has rendered laws governing electronic surveillance ineffective.
As part of a high-profile White House campaign to defend the controversial program, former National Security Agency director Air Force Gen. Michael Hayden said eavesdropping was not as wide-ranging as has been described by critics who say Bush may have overstepped his authority by authorizing it.
“This isn’t a drift net out there where we’re soaking up everyone’s communications,” said Hayden, who is now principal deputy to U.S. intelligence chief John Negroponte.
“This is hot pursuit of communications entering or leaving America involving someone we believe is associated with al Qaeda,” he said in remarks delivered at the National Press Club.
Reuters does a great job of summarizing what Hayden said and the relevant information about his speech, including mentioning that he spoke at the National Press Club.
Oddly the WaPo does not mention where Hayden spoke. They do however note that this is part of a PR campaign:
The remarks opened a three-day blitz by the administration aimed in part at making the controversial eavesdropping program a political winner for the White House in a midterm election year. Attorney General Alberto R. Gonzales will discuss the legal underpinnings for the program today, and Bush will pay a rare visit to NSA headquarters tomorrow to highlight its work.
The strategy was signaled by White House Deputy Chief of Staff Karl Rove in a speech last week that framed the issue as a contest between Republicans who want to protect Americans from terrorists and Democrats who are trying to sabotage the administration’s efforts. Some key Republicans have expressed misgivings about the program’s legality as well, and the Senate Judiciary Committee has scheduled hearings on the issue next month.
Rather than hope the matter goes away, Rove and other Bush advisers are eager to engage on the topic because they see it as a useful wedge issue to define Democrats as weak on terrorism. A similar tactic was used with great success by Republicans during midterm races in 2002.
It’s hilarious and terrifying at the same time to think that a political party is actually campaigning on the issue of spying on Americans.
The WaPo did get this right though:
Hayden echoed a claim earlier this month by Vice President Cheney that, if the NSA program had been in place prior to the Sept. 11, 2001, attacks, “it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States.”
Like Cheney, however, Hayden did not mention that the NSA, CIA and FBI had significant information about two of the leading hijackers as early as January 2000 but failed to keep track of them or capitalize on the information, according to the Sept. 11 commission and others. He also did not mention NSA intercepts warning of the attacks the day before, but not translated until Sept. 12, 2001.
As you know, I hate to rely on secondhand media reports of what someone said, especially when it’s on the record. The complete transcript of both Hayden’s speech and the Q&A is online. Let’s have a look:
Look, let me talk for a minute about this, okay? Because a big gap in the current understanding, a big gap in the current debate is what’s standard? What is it that NSA does routinely? Where we set the threshold, for example, for what constitutes inherent foreign intelligence value? That’s what we’re directed to collect. That’s what we’re required to limit ourselves to — inherent foreign intelligence value. Where we set that threshold, for example, in reports involving a U.S. person shapes how we do our job, shapes how we collect, shapes how we report. The American SIGINT system, in the normal course of foreign intelligence activities, inevitably captures this kind of information, information to, from or about what we call a U.S. person. And by the way, “U.S. person” routinely includes anyone in the United States, citizen or not.
So, for example, because they were in the United States — and we did not know anything more — Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA prior to 9/11.
Actually many of the 19 hijackers were in the United States on expired visas, meaning they were not protected by statutes prohibiting NSA surveillance. Furthermore, several of the 19 were stopped on multiple occasions by police for traffic violations, etc.
Obviously it’s not NSA’s job to determine whether someone is or is not an illegal alien, but you can’t bootstrap a justification to spy based on another branch of the government’s failure to apply the law.
Look, this is not unlike things that happened in other areas. Prior to September 11th, airline passengers were screened in one way. After September 11th, we changed how we screen passengers. In the same way, okay, although prior to September 11th certain communications weren’t considered valuable intelligence, it became immediately clear after September 11th that intercepting and reporting these same communications were in fact critical to defending the homeland. Now let me make this point. These decisions were easily within my authorities as the director of NSA under and executive order; known as Executive Order 12333, that was signed in 1981, an executive order that has governed NSA for nearly a quarter century.
Now, let me summarize. 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.
This is the one of the great stories that the traditional media has failed to report. Hayden here is confirming that there were two non-FISA NSA programs of surveillance of American citizens, one the president “authorized” in 2002 and one Hayden put in motion himself.
What Hayden decided to do is detailed here:
But after Bush was sworn in as president, the way the NSA normally handled those issues started to change dramatically. Vice President Cheney, as Bob Woodward noted in his book Plan of Attack, was tapped by Bush in the summer of 2001 to be more of a presence at intelligence agencies, including the CIA and NSA.
“Given Cheney’s background on national security going back to the Ford years, his time on the House Intelligence Committee, and as secretary of defense, Bush said at the top of his list of things he wanted Cheney to do was intelligence,” Woodward wrote in his book about the buildup to the Iraq war. “In the first months of the new administration, Cheney made the rounds of the intelligence agencies – the CIA, the National Security Agency, which intercepted communications, and the Pentagon’s Defense Intelligence Agency. “
It was then that the NSA started receiving numerous requests from Cheney and other officials in the state and defense departments to reveal the identities of the Americans blacked out or deleted from intelligence reports so administration officials could better understand the context of the intelligence.
Separately, at this time, Cheney was working with intelligence agencies, including the NSA, to develop a large-scale emergency plan to deal with any biological, chemical or nuclear attack on US soil.
Requesting that the NSA reveal the identity of Americans caught in wiretaps is legal as long as it serves the purpose of understanding the context of the intelligence information.
But the sources said that on dozens of occasions Cheney would, upon learning the identity of the individual, instruct the NSA to continue monitoring specific Americans caught in the wiretaps if he thought more information would be revealed, which crossed the line into illegal territory.
Cheney advised President Bush of what had turned up in the raw NSA reports, said one former White House official who worked on counterterrorism related issues.
“What’s really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department,” one former counterterrorism official said. “There was a real feeling of paranoia that permeated from the vice president’s office and I don’t think it had anything to do with the threat of terrorism. I can’t say what was contained in those taps that piqued his interest. I just don’t know.”
What Hayden did (and he refers to it as “downshifting”) is widen the gap about what information about Americans is expunged from reports. Obviously intercepting millions of phone calls, faxes, emails etc is going to gather information about Americans. Prior to 9/11, that information was deleted or censored in accordance with the law. Post 9/11, it was kept in “raw reports” and funnelled not just to Cheney but also to the FBI (Hayden says he “turned on the spigot of NSA reporting to the FBI”). That “spigot” of course resulted in a glut of useless information and wasted thousands of hours chasing dead ends.
Hayden contradicts himself about this in yesterday’s speech, saying at first that protected domestic intercepts are “destroyed and not reported” then a moment later saying protected intercepts are “recorded and reported” in the same sentence:
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.
It’s only after 9/11 that those “incidents” were reported. That is the story the traditional media hasn’t reported on.
More of Hayden’s speech at the NPC yesterday:
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.
Why not? FISA clearly allows for the surveillance of terrorists of a “foreign power”. The FISC ruled in 2002 that this definitely includes Al-Qaeda, so why not apply for FISA warrants? Not to mention that FISC ruled in 2002 that even in cases where the surveillance was requested primarily for domestic criminal prosecution, the FISA warrants would be granted.
I wrote about this more in-depth Sunday, but in plain English, if a terrorist is inside the U.S. talking to another terrorist in the U.S., planning some heinous deed or act, the FISA law as it is right now gives the gov’t full permission to put surveillance on both of them!
That was Hayden in 2006. Here is Hayden in 2000, testifying to Congress:
NSA may only target communications of a U.S. person in the United States if a federal judge finds probable cause to believe that the U.S. person is an agent of a foreign power. Probable cause exists when facts and circumstances within the applicant’s knowledge and of which he/she has reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that the proposed target of the surveillance is an agent of a foreign power. Under the statute, a judge may determine a U.S. person to be an agent of a foreign power only if there is information to support a finding that the individual is a spy, terrorist, saboteur, or someone who aids or abets them.
All FISA collection is regulated by special minimization procedures approved by the FISA Court and the Attorney General. Since the enactment of the FISA in 1978, there have been no more than a very few instances of NSA seeking FISA authorization to target a U.S. person in the United States. In those instances there was probable cause to believe that the individuals were involved in terrorism.
Got it? In 2000, he mentions terrorists twice and says that FISA allows for warrants to allow surveillance on them inside the United States.
Back to yesterday’s speech:
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.
Well if it is “targeted and focused” then why not get a FISA warrant? If it’s a phone call from or to a known Al-Qaeda member, why not get the warrant? Is the FISC really going to turn down a warrant whereby the government wants to track phone calls from an Al-Qaeda member?
Amazingly, a number of very independent media reporters were on hand to question Hayden after his speech, including the slightly tinfoil Wayne Madsen and Pacifica Radio. All the questions, including a couple from traditional media, were hard-hitting.
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?
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.
I’ve talked in other circumstances — I’ve talked this morning — about how we’ve made very aggressive use of FISA. If you look at NSA reporting under this program — you know, without giving you the X or Y axis on the graph — NSA reporting under this program has been substantial but consistent. This is NSA counterterrorism reporting. Substantial but consistent. NSA reporting under FISA has gone like that. FISA has been a remarkably successful tool. We use it very aggressively.
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.
It looks like Hayden is saying that when they’ve actually got some evidence someone is a terrorist, they go to FISA. Otherwise, they use the “presidential path”, which bypasses all restrictions on surveillance on Americans.
FISA allows for a 72-hour retroactive legal approval for wiretapping. The problem is that to get the warrant, even in front of the incredibly generous secret court, there has to be some kind of evidence that the person being spied upon is doing something nefarious. NSA can begin the wiretap immediately but they have to do it based on some kind of probable cause.
Hayden here is admitting that in the “presidential path” cases, there was no probable cause at all. Otherwise why not get the warrant? Hayden clearly says it isn’t because of paperwork backlogs or something like that. It’s because there is no probable cause to spy on Americans, therefore only the “presidential path” gives NSA “authorization” to conduct the surveillance.
QUESTION: Sam Husseini from IPA Media. You just now spoke of, quote, “two paths,” but of course the FISA statute itself says that it will be the exclusive means by which electronic surveillance may be pursued. Are you not, therefore, violating the law?
GEN. HAYDEN: That’s probably a question I should deflect to the Department of Justice, but as I said in my comments, I have an order whose lawfulness has been attested to by the attorney general, an order whose lawfulness has been attested to by NSA lawyers who do this for a living. No, we’re not violating the law.
I should mention here that NSA is a division of the Department of Defense. Clearly the NSA was told by both the President and the Attorney General that bypassing FISA was “legal”, so they have a pretty strong case for saying they believed they were authorized to do this extra-legal surveillance.
IPA is an independent, non-profit media organization. I don’t know how these guys got a chance to question General Hayden but I’m sure glad they had a chance to do so!
Even CNN gets in a few licks:
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.
Oh gosh, are you telling me members of Al-Qaeda didn’t guess they were being monitored? Really? Members of a super-secretive organization, able to commit terrorist attacks around the world, able to escape detection by law enforcement in Spain, Britain, the U.S., Yemen, Kenya, Tanzania and Morocco and yet they don’t know they’re being monitored?
Travis Morales, a peace activist, then asks a question:
QUESTION: No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration? Because as Vice President Gore recently said, “It is much worse than people realize.”
Hayden refuses to answer that. Morales is talking about whether the NSA is targeting World Can’t Wait, a very vocal anti-Bush peace group. I’ll have to take Hayden’s silence (and numerous media reports) to mean that indeed the NSA and gov’t is spying on peace groups.
Katie “Katherine” Shrader of the AP seems to have gotten the fact that there were two non-FISA NSA wiretapping programs against Americans:
QUESTION: [Y]ou described two separate programs authorized after 9/11 — or undertaken after 9/11 — one by you, one by President Bush. Can you explain how the two relate?
GEN. HAYDEN: Sure. Thanks for the — I’m sorry, how the two relate?
QUESTION: How the two relate.
GEN. HAYDEN: Yeah, thanks.
To kind of summarize, Katie, about the program — about the changes I did — I mean, that was essentially just downshifting. I mean, it was shifting the weight of the agency in the direction of targets that were suddenly more important. And the degree of reporting we were doing on those targets changed — again, all within my authorities. The relationship between what I did and what I briefed the entire House Select Committee on Intelligence on the 1st of October — the relationship between that and what the president was authorized was simply that it involved NSA and it involved the war on terrorism. But that’s the only connective tissue.
Again, the “degree of reporting” changed. This means that previously redacted and censored parts were fed as “raw data” to the FBI, Cheney and whomever else in the government wanted it. Those parts had been censored in the past precisely because the NSA is forbidden by law to intercept and report information on Americans without FISA approval.
Then a reporter from Knight-Ridder asks the last question, and he gets the General on the ropes:
QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —
GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.
QUESTION: But the —
GEN. HAYDEN: That’s what it says.
QUESTION: But the measure is probable cause, I believe.
GEN. HAYDEN: The amendment says unreasonable search and seizure.
QUESTION: But does it not say probable —
GEN. HAYDEN: No. The amendment says —
QUESTION: The court standard, the legal standard —
GEN. HAYDEN: — unreasonable search and seizure.
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.
Again, Hayden is admitting that the “presidential path” authorizations did not measure up to the “probable cause” requirement of FISA, therefore when the NSA couldn’t get enough evidence to get a warrant, they bypassed the court.
That was Hayden in 2006. Here’s Hayden in 2000 again:
There are certain restrictions imposed by E.O. 12333 upon all intelligence collection activities engaged in by the Executive Branch agencies. Intelligence collection must be conducted in a manner “consistent with the Constitution and applicable law and respectful of the principles upon which the United States was founded.” (Sec. 2.1). These include the Fourth Amendment’s prohibition against unreasonable searches and seizures. Intelligence collection must not be undertaken to acquire information concerning the domestic activities of U.S. persons.
Hayden also admits in 2000 that the NSA’s rules for following the 4th Amendment are written and approved by the Secretary of Defense and the Attorney General. So if these changed post-9/11, it had to be on the written authorization of Rumsfeld and Ashcroft.
CNN did a “special report” on NSA back in 2001, before 9/11. It’s quite interesting.
Here are some quotes:
[P]rivacy advocates fear that the awesome power of the NSA’s technology and its secrecy does not have enough outside oversight to prevent abuse of its tools and information.
“What’s happening, of course, is that the NSA says, ‘Trust us, we’re the government. We won’t abuse the law,'” said Barry Steinhardt, associate director of the American Civil Liberties Union. “Of course, what they’re really saying is: ‘Trust us, we’re the government spies and we won’t abuse the law,’ but since there is no real check on them, there is no way to know that.”
Here’s more:
Hayden sensed an image problem. That recognition in part explains why the NSA decided to let CNN inside the agency to see where code breakers work to crack the secrets of other nations and where code makers protect U.S. secrets.
Hayden said he wants to ensure that the NSA isn’t viewed as trampling on the privacy rights of U.S. citizens. He said the nature of the NSA’s mission requires it to be a secretive agency. But he added that the agency is trying to make certain that Americans know it follows the law while enhancing U.S. liberty and security.
“Could there be abuses? Of course, there could, but I am looking you and the American people in the eye and saying there are not,” Hayden said.
Hayden said the NSA has not spied on Americans since the 1970s. Congressional committees, led by U.S. Sen. Frank Church and U.S. Rep. Otis Pike, found that government agencies, including the NSA, had eavesdropped on actress Jane Fonda, Dr. Benjamin Spock and other anti-Vietnam War activists.
As a result, Congress passed the Foreign Intelligence Surveillance Act, which created a procedural structure with a special court for considering and approving certain surveillance activities that occur in the United States and involve rights guaranteed by the Constitution such as the ban on unreasonable search and seizure.
The House and Senate also established intelligence oversight committees, and then-President Gerald Ford issued an executive order establishing a formal system of intelligence oversight by the executive branch.
“After Church and Pike, on this question, the ball and strike count on the agency is no balls and two strikes,” Hayden said. “We don’t take any pitches that are close to the strike zone. We are very, very careful. We can’t go back to the American people with, ‘Oh, well, we’re sorry for this one, too.’ We don’t get close to the Fourth Amendment.”
Well it’s a little too close for me.
Current Attorney General “Abu” Gonzalez will testify to Congress on the issue on February 6. Meanwhile the administration will keep campaigning on the issue that this is a “good” thing.
This is cross-posted from Flogging the Simian
Peace
