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Ex-CIA, NSA Chief Defends U.S. Intelligence Gathering

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Michael Hayden, former director of both the NSA and CIA, retired from high-profile government work in 2009 to take a lucrative private sector job, but Edward Snowden's National Security Agency leaks quickly thrust him back into the spotlight.

After Snowden leaked classified information in June about the PRISM program that mines electronic surveillance — including metadata about Americans' phone calls — Hayden became the mainstream media's go-to guy for answers about government eavesdropping. Not surprisingly, the retired general used appearances on "Meet the Press," "Face the Nation" and elsewhere to defend the NSA's tactics while conceding that if the public was better informed about the issue, the programs might have more political support.

A retired four-star Air Force general who ran the NSA from 1999 to 2005 and the CIA from 2006 to 2009, Hayden presided over government intelligence before, during and after Sept. 11, 2001, giving him a singularly unique perspective on U.S. counterterrorism strategies.

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Michael Hayden

He recently sat down for a more expansive interview with The Washington Diplomat. During the nearly hour-long talk, the former spy chief echoed his general defense of the NSA but also elaborated on the future of cyber-espionage, concerns that America is becoming a police state, the NSA's controversial sharing of data with the DEA to nab suspected drug offenders in the U.S., his qualified support for waterboarding terror suspects, and privacy in an age of technology.

Today, Hayden is a principal at the Chertoff Group, founded by his former Bush administration colleague Michael Chertoff, the Homeland Security secretary from 2005 to 2009. We met Hayden in his spacious, immaculately organized corner office at the firm's offices, a block from the White House. Despite his role as a keeper of America's darkest secrets, Hayden projects a sunny, congenial demeanor. But he quickly made clear he doesn't have much patience for NSA critics, especially in Congress.

"America's political elite feels free to criticize the intelligence [community] for not doing enough when they feel afraid; then they feel free to pontificate about our doing too much when they feel safe again," said Hayden, who was the highest-ranking intelligence officer in the armed forces.

He used the case of accused Boston bombers Tamerlan and Dzhokhar Tsarnaev as examples of how the public, and by extension Congress, holds the NSA to two different standards.

"He's in Boston but he's visiting jihadist websites and it's, 'Well, why didn't you catch that?'" a visibly exasperated Hayden said. "But over here, we've got your phone bills and it's, 'Oh my God, you've got my phone bills!' To be able to track [the Tsarnaev brothers] going to a website is incredibly more invasive of Americans than anything you're doing over here with telephone metadata! C'mon guys."

Hayden had some equally harsh words for Snowden, who's been called a heroic whistleblower by his supporters, and traitor by his detractors. Hayden has stopped short of calling the former Booz Allen security contractor a traitor, reasoning that his action might not fit the strict legal definition of the word. Instead, he called him an "ex-patriot," a denunciatory play on the more benign "expatriate." He also called Snowden, who's been granted temporary asylum in Russia, a defector.

"That's the word I'm going to start using," Hayden told us. "Just like Guy Burgess and a whole bunch of other people who stole and disclosed American secrets and ended up in Russia. He's a defector."

Hayden argued that the 30-year-old fugitive did more damage to the United States than did Julius and Ethel Rosenberg, who were executed for passing atomic secrets to the Soviet Union, or Aldrich Ames, who compromised the identities of American intelligence officers in Russia, 10 of whom were executed.

"Snowden's different," Hayden argued. "I'm sorry that we lost our agents in the Soviet Union, I really am, but they were rather singular. The damage was clear; it was great but somewhat limited — in a lane. Those guys leaked buckets of water. Snowden's telling the world how the plumbing works. Snowden's effect will be long lasting."

The effects are already being felt. In a speech in mid-August, President Obama addressed public concern over the NSA's surveillance activities. While he made no assurances that the surveillance would stop, he did concede the public should be better informed about it and suggested some modest changes, including greater transparency and a review of the section of the Patriot Act dealing with phone records.

He also said the Foreign Intelligence Surveillance Act (FISA) might need to be altered. The law established a secret court to grant warrants for foreign surveillance, similar to a judge who considers police search warrants. Critics of the court say it's little more than rubberstamp, citing the fact that last year, it didn't reject a single one of the more 1,850 applications that the government submitted.

Obama suggested creating an independent attorney to challenge government prosecutors in the court — an idea long embraced by FISA critics, including Democratic Sens. Tom Udall of New Mexico and Ron Wyden of Oregon.

In late July, Wyden and Udall introduced two bills to level the FISA playing field: The FISA Court Reform Act of 2013 would create a special advocate in the court to argue on behalf of American civil liberties. The second bill, the FISA Judge Selection Reform Act, would reform how judges are appointed to the court to ensure that it is geographically and ideologically diverse (the current court is overwhelmingly stacked with conservatives).

Hayden scoffed at the proposals.

"Let me tell you something really weird about the FISA court — we actually go to a court," he said. "No other Western democracy goes to a court to conduct foreign intelligence. People say, 'I don't like it — it's a secret court.' Well, that was the deal! You can't have a court, which I repeat is weird, for foreign intelligence without it being secret. You want an advocate? Does poor Tony Soprano [the fictional mobster in the HBO television series] have an advocate when the FBI goes to a court to get a warrant for that poor besieged citizen of New Jersey?"

Asked if he thinks there should be any reforms to the FISA court, Hayden was unequivocally opposed — then softened his stance slightly.

"No, of course I don't," he said. "Now, would I give? Sure, if it's the cost of doing business. You want a full-time public defender down there? Go ahead, be my guest. But don't get in the way and don't slow this stuff down. It's probably going to be a little more tedious and it will slow it down. You'll be more confident about what we're doing. You're going to be a little less safe, but you'll be more comfortable. That's the tradeoff."

But civil liberty advocates say that tradeoff is a false one. Unlike in the immediate post-9/11 landscape, when privacy concerns took a backseat to security, a growing number of Americans are uncomfortable with the thought of the NSA potentially sifting through the calls they make or websites they visit — especially without hard evidence that such domestic spying has thwarted any actual attacks.

That the NSA taps into Internet servers to monitor foreign communications hasn't sparked a major backlash domestically. Obama has made no secret of the fact that the U.S., like all governments, snoops on other countries. Speaking to The Diplomat about the NSA spy scandal for an article in the August issue, Hayden himself joked that "yes, indeed, the United States does conduct espionage," noting that "the Fourth Amendment that protects American privacy isn't an international treaty and therefore doesn't innately protect the privacy of non-Americans."

But Americans are increasingly worried about their privacy, as a steady drip of leaks this summer exposed the surprising extent of the NSA's reach into their personal lives. In addition to collecting and storing the phone records of millions of Americans, the NSA also reportedly scours the emails and text messages that travel in and out of the country for links to suspected terrorists abroad.

"While it has long been known that the agency conducts extensive computer searches of data it vacuums up overseas, that it is systematically searching — without warrants — through the contents of Americans' communications that cross the border reveals more about the scale of its secret operations," wrote Charlie Savage of the New York Times, detailing how Americans' electronic communications can be swept up in the NSA dragnet if, for example, they mention a foreign target or keyword.

And an Aug. 15 report in the Washington Post, based on Snowden's leaks, shows that the NSA broke its own privacy rules thousands of times each year since Congress gave the agency broader surveillance powers in 2008, gathering unauthorized information on Americans, often while not disclosing the violations to Congress or the FISA court.

Further piling on the revelations, the Wall Street Journal reported that the NSA has built a network that taps into roughly 75 percent of all U.S. Internet traffic in its hunt for foreign intelligence.

Also in August, Reuters detailed how the DEA's super-secret Special Operations Division uses vast troves of data on foreigners collected by the NSA, CIA, FBI and other intelligence agencies to target American citizens for ordinary drug crimes. Law enforcement agencies are taught to conceal these sources of information by creating something called a "parallel construction," or a manufactured trail of evidence (like saying the investigation began with a traffic violation instead of a tip). It's a common tactic used by police enforcement to protect informants, but the problem, critics say, is that the origin of the case is untraceable by defendants, or even prosecutors and judges.

Asked about reports that the NSA is sharing data with the DEA for domestic drug prosecutions, Hayden asserted that NSA is collecting its evidence legally. As for what the DEA is doing with it, he declined to comment.

"I will make no case with regard to how DEA does or doesn't use the information," Hayden told The Diplomat. "All I can tell you is what we have is legitimately collected foreign intelligence."

Hayden did say that drugs are part of the foreign intelligence matrix. "I had a counter-narcotics center at the CIA and at the NSA, and so we all recognize that it is a legitimate foreign intelligence activity. We also know it has a tremendous law enforcement nexus. We would go out there and collect legitimate foreign intelligence. Now, how that is shared within the government becomes, frankly, a pretty complicated question because it's easier to get running room to collect foreign intelligence than it is for a law enforcement agency to get running room to gather data," he said.

"Honest men may differ about the reconstruction [of case history]," Hayden continued. "I'm not a lawyer, but I have read that it is not uncommon in a variety of cases when you want to protect a sensitive source, like a snitch. I'll let that be fought out in the courts, but that should not affect your judgment about collecting legitimate intelligence."

But Hayden's critics say a good deal of the intelligence gathered by the U.S. government in the wake of 9/11 was gained through illegitimate means. Hayden, though, was unapologetic about the use of waterboarding — an interrogation tactic that simulates drowning — after the Sept. 11 terrorist attacks. The strategy was widely condemned as torture and President Obama banned the practice in 2009. While Hayden conceded the controversial nature of the tactic, he also claimed it worked.

"What I can't stand is somebody who says, 'I don't want you doing that and by the way it just didn't work,'" Hayden told us. "It worked for this class of prisoner — the al-Qaeda-I'd-rather-die-than-live-if-I-can-hurt-you prisoner. For this class of prisoner it worked. I don't make the claim that it's universally applicable and I don't make the claim that we should use it in all circumstances. I would make the claim that we found ourselves in unusual circumstances in 2001, 2002 and 2003."

The CIA confirmed that it waterboarded three high-profile al-Qaeda suspects in 2002 and 2003. Hayden also asserted that the final use of waterboarding by the U.S. government occurred in March 2003, three years before he became CIA director. Critics doubt that claim. Hayden seems unfazed.

"Let me tell you a sentence I never heard in either the [NSA or CIA] job: 'Michael, whatever you do, don't overreact,'" he said. "I never got that."

That kind of blunt talk has gotten Hayden a lot of media exposure, but it's also earned him flak from some quarters — including Glenn Greenwald, the Guardian reporter who worked with Snowden to divulge his secrets to the world.

In an Aug. 12 Guardian article, Greenwald recalled how three federal judges ruled that an earlier incarnation of the NSA surveillance program under former President George W. Bush was illegal because it spied on Americans without a warrant.

"The person who secretly implemented that illegal domestic spying program was retired Gen. Michael Hayden, then Bush's NSA director. That's the very same Michael Hayden who is now frequently presented by US television outlets as the authority and expert on the current NSA controversy — all without ever mentioning the central role he played in overseeing that illegal warrantless eavesdropping program," Greenwald wrote.

But Hayden is proud of his legacy at the NSA, where he is widely credited (or blamed) for ushering in an era of cyber-savvy. He said that when he arrived at the agency in 1999, he deliberately shook it up.

He believed the NSA needed to evolve from the old-school spy games of the Cold War and adapt to a globalized world in which "the volume, variety and velocity of human communications make our mission more difficult each day," as he put it in congressional testimony in 2002.

Hayden told us that the exponential growth of the NSA is a natural outgrowth of the technological age.

"We anticipated this back at the turn of the century before 9/11," he recalled. "I was the director and we realized as an article of faith that if we do this half right, this is going to be the golden age of intelligence. Just think, even in the year 2000, how much of our stuff we were putting out there in ones and zeros that used to be on paper inside a safe.

"In this digital universe, we've got a lot of ways to steal other countries' information — human intelligence, imagery intelligence," he added. "Hell, if you're going to put it all out there in digits, then we'll go get it. What's happened at NSA is just a natural and predictable consequence of so much human information being put into digital form."

Hayden says technology's power to change society can no longer be contained, whether in Syria or the United States.

"The web is so complicated that it's kind of self-healing. If you knock down your big [communications] nodes then anyone with a satellite phone can plug into the web and once plugged in you work outwards from there. I think they can slow the flow of information, but we're beyond the era where it can be stopped."

That's because technology will outrace the ability of governments to suppress digital information.

"It already has," he said. "The Chinese would love to have that great firewall but they don't. Now, on a military basis, can I deny the enemy digital access to specific locations at a specific time? Sure. But that's tactical and transient, not permanent."

And in a world where cyber-warfare can emanate from governments, terrorists or lone hackers, Hayden said an international treaty would be a "hopeless effort" but that "developing international norms is a good idea and we need to do that."

"There is a biological weapons treaty, but it's unenforceable because you can do this in your garage," he said. "Nations don't have biological weapons not because we have a treaty and we can catch them. Nations don't have biological weapons because there is a general norm our there that if you've got bugs, you're just bad.

"I think we can develop something like that in the cyber domain where if this is happening in your cyber domain, we don't care why you're doing it or if you're doing it — if it's coming from your domain you're bad," Hayden said.

As the interview drew to a close, Hayden addressed persistent complaints from civil libertarians that people like him and Chertoff, as government officials, ushered in a climate of fear that led to dramatically greater police and surveillance powers, and that now they're simply cashing in on the fear-mongering as members of the private sector. Many of the Chertoff Group's clients undoubtedly benefit from the enormous security apparatus that sprang up in the wake of 9/11.

Hayden dismisses the criticism, saying it overlooks the digital reality all around us. "To simply say it's just these guys who want to keep all the money flowing by drumming up this terrorist threat — nah."

He pointed out that surveillance is not just the realm of the government — and that most of us are willing players in an interconnected world where some privacy is sacrificed for both security and convenience. He recalled finishing a meeting near Tysons Corner in Virginia recently at about 6 p.m. He checked his phone and Groupon, the website that offers discounts at restaurants and retailers, sent him a coupon to a bistro across the street.

"Groupon knew where I was, what time of day it was," Hayden recalled with some amusement in his eyes. "It isn't just post-9/11 — it's what's happened in the last 15 to 20 years. It's not just the response to terrorism, although that's important and I don't want to minimize it. It's the whole question of what constitutes privacy in an age in which all of us are nodes.

"It's an era in which everything is connected and big data is the only kind of data that seems to be out there," he said. "It exists in all of its dimensions and all numbers of categories and we're dealing with it."


About the Author

Michael Coleman is a contributing writer for The Washington Diplomat.

Last Edited on August 28, 2013