General 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; I’ve bolded a few passages:
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 be 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. [UPDATE: As Dafydd ab Hugh points out, that’s not right. A current or former NSA employee could have gone directly to the Times without following the proper procedure for lodging a complaint.] 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. [Ed.: This is one of the points that we made here.]
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. [Ed.: He did, actually.]
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.
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. 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 for limited international surveillance, it sounds as though the standard is “reasonable belief” as opposed to “probable cause.” General Hayden was correct 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.