Gen. Hayden Corrects Falsity of “Domestic Spying” Claims

By: Warner Todd Huston

On January 23rd, General Michael Hayden spoke to the National Press Club in Washington, D.C. It seems that the MSM hopes that his remarks go unnoticed because his points tend to make foolish these claims of “domestic spying” that the left has been hurdling at president Bush since the probably illegal divulging of the program in the press.

General Hayden, principle deputy director of national intelligence and former director of the NSA, said some very important things in this talk. Things that should help clarify how we should all evaluate what has been going on with the NSA since before and after the attacks on 9/11. Hayden introduced some common sense into the mass of ill thought-out assumptions that have been coursing through the MSM.

Hayden reminded us, for example, how blind to possible attacks by terrorists on US soil we were before 9/11. He admits that we knew that Mohamed Atta and his crew were in the US. But he says that “we did not know anything more” because prior to 9/11 “Mohamed Atta and his fellow 18 hijackers would have been presumed to have been protected persons, U.S. persons, by NSA “.

Terrorists protected by our own laws and institutions. Terrorists prevented from discovery. Terrorists allowed to go on planning their murderous attacks without molestation. The result was the World Trade Center and surrounding buildings coming down with the deaths of thousands of Americans. This is the time to which leftists in America want to return.

Hayden informed us that his office has been operating under an executive order (EO#12333 from 1981) that gave the NSA the tools it is currently using — meaning the NSA wasn’t suddenly unleashed to go marauding every American’s privacy by George W. Bush. He also shows how the vaunted FISA Court used to approve secret wiretapping and intelligence gathering inside the US, a system that was set up in 1978, just isn’t up to the speed and technology of the modern world.

When FISA was created there were no cell phones, no internet, no personal computers, etc. Hayden said “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.”

Once again, we are faced with a pre-9/11 system for a post 9/11 world and to better illustrate that point, Hayden used a revealing example.

“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.”

In other words, the U.S.A.’s biggest enemy would be, in essence, invisible to our security agencies if he were to get inside the country. I don’t know about you, but using our Constitution to protect our enemies at the expense of our own citizen’s life and limb is absurd. But it is an absurdity that the left wants to wallow in.

As to the new authority that Bush did require of the NSA after 9/11 Hayden assured us that the NSA reviewed all that was asked of them by the Bush administration, not just in terms of possibility, but also in legal terms. “… 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”, Hayden said.

According to Hayden, the NSA didn’t just make a stampede to tap everyone’s phones, but duly considered the legality of the program.

Further he told us of the specifics of just who and how such wiretapping would be triggered.

“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.”

In other words, this is NOT “domestic spying”, as the program is being so inaptly and misleadingly labeled by the press.

Here is a key part of Hayden’s comments on the way NSA is pursuing this program…

“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.”

Contrary to the MSM’s off base claims, NSA isn’t just careening out of control and mindless of the law. In fact, they have a continuing emphasis on keeping within the law.

Now, we know what the program is. Hayden informs us as to what it is not with his next series of comments. The assumption that NSA is casting what might be termed a “driftnet” for “keyword searches or data-mining tools or other devices” is ridiculous according to Hayden.

“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.”

Again, not a wide net cast over just any citizen, nor can it properly b called “domestic spying” if it is targeting communication originating outside the US.

After his formal comments he took questions from the audience and a few of those resulted in further important information for American’s knowledge of what their government is up to.

The question of the “72 hour leeway” for FISA warrants was addressed by the General:

“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 other words, NSA cannot just go do what ever it wants to do and hope that FISA will OK it later. The US Attorney General OKs the warrant requests and it is he who goes to the FISA courts to firm up authorization.

He also said that he has another legal avenue to wiretapping.

“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.”

As to the claim that many MSMers are saying whereby going to the president for affirmation of NSA’s actions is illegal, Hayden said “, 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.”

Hayden was asked, even though he clearly said in his earlier comments that the agency isn’t involved in a “driftnet” surveillance program, if the NSA as intercepting all American’s emails and other communications. His answer was filled with quite a bit of common sense.

“In 2003, our citizenry was on the phone in international calls alone for 200 billion minutes, okay? I mean, beyond the ethical considerations involved here, there are some practical considerations about being a drift net. This is targeted, this is focused. This is about al Qaeda”, he said.

Well, I think it is too easy in this day and age to imagine that the US government has some sort of Hollywood movie style technology, some science fiction like ability, to gather up and read every single American’s every silly email, note to Mom, or listen to every pointless cell call to girlfriends and pals the country over. But, as Hayden reminds us, this capability does not exist. And the 200 billion minutes of cell phone blather that Hayden cites was from 2003. American’s have increased their usage of cell phones – as well as email — by leaps and bounds since 2003 making the surveillance of them even more impossible.

There just aren’t enough people available to any US agency to surveil that avalanche of modes of communication. There isn’t even any computer powerful enough to do it in man’s stead, for that matter.

Hayden also addressed this canard that the extreme left in Congress has been trying to mislead the people into believing that they weren’t told about what was going on.

Hayden said, “We did brief Congress, John, as you know. It’s been announced more than a dozen times. I’ve been the briefer. Every time that’s happened, I’ve been there. And my intent there, in ways less restricted than I’ve had to operate here, was to make sure that the people in the room fully understood what had been authorized and what we have been doing.”

Once again, the leftists in Congress are just not telling us the truth.

All in all this was a revealing and important event, one that should help many Americans understand what it is the NSA is doing to keep the citizens of this country safe against the actions of people that have already killed thousands of us and wish to kill many more. The NSA’s duty is to ferret out the communications of these people, alert the proper agencies that can track them down and eliminate these enemies, and safeguard the civil rights as well as the safety of our citizenry. It isn’t an easy job, but it is one being carried on conscientiously.

You can see the entire transcript of General Hayden’s comments at:

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