A retired U.S. Air Force general, Michael Hayden served as director of the CIA from 2006 to 2008 and the director of the NSA from 1999 to 2005. As head of the NSA under President George W. Bush, Hayden developed the administration's highly controversial warrantless wiretapping program. He spoke to FRONTLINE's Jim Gilmore and Mike Wiser on Jan. 2, 2014.
A retired U.S. Air Force general, Michael Hayden served as director of the CIA from 2006 to 2008 and the director of the NSA from 1999 to 2005. As head of the NSA under President George W. Bush, Hayden developed the administration's highly controversial warrantless wiretapping program. He spoke to FRONTLINE's Jim Gilmore and Mike Wiser on Jan. 2, 2014.
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So Sept. 11 happens. Where are you? How do you learn about it? What happens? Take us to that moment a bit.
Sure. I'm in my office. I remember the day, brilliantly clear day, clear blue skies. I had stayed up late the night before, watching Monday Night Football. Came into work. Normal schedule.
My executive assistant, a young woman, came in and said, "Hey, we got reports of a plane hitting the World Trade Center." And, like 300 million other Americans, I thought, wow, small plane, sport plane, accident, too bad.
And then, 10 to 15 minutes later, she comes in and says, "A plane hit the second tower," at which point it became quite clear, much more clear, what was going on. This was no accident.
I then said, "Get the head of security up here right away." And as the head of security was coming in my office through one door, my executive assistant was coming into my office through the other door, and she said, "There are reports of explosions on the Mall." That's the Washington Mall here. Not quite correct, but it was a reflection of the American Airlines plane hitting the Pentagon.
My poor security chief didn't even have a chance to speak. I just turned to him and said, "All nonessential personnel out of here now." And he did an immediate about-face, went back to his office, and made that announcement.
If you get those iconic pictures of the Fort Meade campus, you've got the two high-rise buildings; then you've got a couple of low-riders nearby. For obvious reasons, after we decided to evacuate nonessential, for the essential that remained -- we never took a head count; it was probably 3,000 to 5,000 -- for the essential that remained, we tried to decamp from the high-rises, for reasons that should be clear, into the low-riders. And thank God, one of the low-riders was the original operations building. And that's where the NSOP, the National Security Operations, our command post, was located.
So we decamped down there and got on with the war. About 11:00 that morning, [CIA Director] George Tenet called me, said, "Mike, what do you got?" I said, "George, it's Al Qaeda." He says, "You have that firm?" I said, "George, we're already picking up the celebratory gunfire, so to speak, in the Al Qaeda networks." Look, anybody who was doing this knew that it was Al Qaeda, but we began to get the confirmatory reporting.
He asked you -- I mean, the famous story is that he asked you, "What can you do?" Tell us a little bit about that.
Well, immediately on that day, on Sept. 11, there were authorities within the range of abilities of the director of the National Security Agency to adjust how America collects intelligence, how aggressive America might want to be. Fully within my authorities, I made some decisions about being more aggressive. I mean, we're held to the reasonableness standard of the Fourth Amendment, no unreasonable search and seizure.
Well, what constitutes the reasonableness that afternoon was different than the reasonableness that morning, and I made some changes. So I told George that I made the changes, called both intel committees on the Hill, said, "Hey, I'm doing some of these things." The House Committee actually asked me to come on down and explain it, which I did. Senate said, "Thanks for the heads-up."
George then apparently went in and talked to the president in one of his morning meetings, and "Hey, by the way, Mike Hayden's kind of leaning forward," and they said to him, "Is there anything more he could do?" George says: "I don't know. I'll ask." So George calls me and says: "Mike, the president, vice president, told them, good. Any more you can do?" I said, "George, no, not within my authorities, not within my current authorities." And he paused and said: "That's not actually the question I asked you. Is there anything more you could do?" I said, "I'll get back to you."
So I sat down with my leadership team, both operations and legal, and put together several things that we could do, that we felt might have specifically addressed the problems that were laid bare by 9/11, if we had the authority to do it. So I briefed that to George. George told the president. The president and vice president had me come down. I laid it out to them, and we did get authorities to do most of the things that we recommended.
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... Tell me the story of that meeting, going to the White House. You didn't normally go brief, right?
So you're not at the White House. What's it like? Who's in the room? What happens?
It's the president and the vice president in the room. Almost certainly Condi [Rice] was there as the national security adviser; [White House Chief of Staff] Andy Card would have been there. I mean, it's just routine. I go in there with George.
Now look, the president has already been pre-briefed on it. We had done some discussion with the vice president's staff and with George and his staff, and I had pointed out, I had pointed out to George, I said, "George, you know, since the 1970s and Church, Pike [Committees] and all that," the metaphor I used was: "George, we've got a permanent one-ball/two-strike count on us. We don't take close pictures out there at Fort Meade." He said, "No, Mike, I understand."
So I walk in to see the president, and I sit down on the couch. The first thing he says to me is, "Mike, I understand your concerns." He had already heard about one ball/two strikes. "But there are some things we're going to have to do, and I think I have the authority to authorize you to do things that you've outlined to me." Now, my lawyers also thought he had the authority to authorize it, but no president had authorized it prior to this time.
So in this meeting, you outlined sort of a wish list?
No, we outlined three things. One of them shows up as the metadata collection that we now refer to as the 215 program. The other has to do with metadata, with regard to email, which was far more foreign-concentrated than the domestic program we're talking about, the so-called 215 program now. Then we talked about intercepting the content of communications entering or leaving the United States, one or both ends of which we had reason to believe were affiliated with Al Qaeda. But it was only international calls.
So what do they authorize on that day?
Well, what they do is give the OK to craft an order, an order that is repeated every 45 days, an order that is accompanied by a memo that talks about the current threat status. None of this was quite on autopilot. You had the memo talking about the dire nature of the threat, which actually threatened continuity of the government, which is why extraordinary means were reasonable in this context, and then the order itself.
And the order itself was signed off by the secretary of defense, since the director of NSA worked through the secretary of defense, and by the attorney general, with regard to its lawfulness, and then signed off by the president.
The mood in that room that day?
Serious, focused, resolute. Resolute. We will do everything we can do to keep this country safe.
The order, the Oct. 4 presidential authorization, arrives how?
Hand-carried. This was very closely guarded that we were doing this, because we did not want to tip our hand to the enemy. So it was physically brought to me at Fort Meade, very often by David Addington, at that time the vice president's legal counsel. Or I would go down to the Old Executive Office Building and pick it up. …
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So define "the program," as it's called or has been called. Define it -- what it was at that point, in the beginning, as much as you can.
Sure. Three broad tracks, right? One had to do with telephony metadata. It's very much like the 215 program that exists today. Enough said. The other one did have to do with email, right? It was largely foreign email we were concerned about. But because of the way we were collecting it, where we were collecting it, it rubbed up against the FISA [Foreign Intelligence Surveillance] Act.
And, by the way, I should add that FISA, at that point, before it was later amended, FISA was having an impact on our operations because of technological change that the crafters of FISA did not intend, and in fact, they could not even have anticipated the impact it was having because of the nature of communications. And that's what that second track was about, about email, metadata and the manner of its collection, which seemed to rub up against the prohibitions of FISA, again, probably unintentional, because they couldn't anticipate the technological change.
And then the third basket was actual intercept of communications, actual intercept of conversations, when we had probable cause in our mind that one or both ends of the conversation was affiliated with Al Qaeda.
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... You have a meeting at some point around this time with the national security folk out at NSA. Tell us a little bit about what you defined, where you were going and what you saw the direction as.
We have the original meeting with the leadership in both ops and our legal team. We have the dialogue with the president, the vice president, director of central intelligence. We get the order from the president. My lawyers look it over, and I had three really good operational lawyers, really good, really operational. And all three of them serially independently said, "The president has the authority to authorize this." Again, we hadn't done it before. In fact, we had rejected an approach a little bit like this during the millennium weekend. Remember the threats there? But we had no authority to do it, not presidential authorization.
With this program, we did. And they all three agreed that it was within the president's Article II authorities. Now, there's been a grand debate about what justifies this, the raw commander-in-chief authorities from Article II or the AUMF, the Authorization for the Use of Military Force? Justice has frequently argued AUMF. My lawyers never went there. My lawyers said, "Raw Article II commander-in-chief authorities." And I think appellate courts have kind of upheld that.
There have been two FISA appellate court decisions; both of them contained the language: We take as a given that the president has inherent constitutional authority to conduct electronic surveillance without a warrant for foreign intelligence purposes. So we had that meeting.
But then we had a workforce. We had a workforce that's very cautious, very conservative, that drilled into it, on an annual basis -- and they have to certify the training -- "thou cans" and "thou cannots." This was going to be something they had never been previously authorized to do. So we took the small team, probably several dozen, into my large conference room at Fort Meade.
I went in there, explained the broad outlines to the program with my ops and legal team right there. Explained the broad outlines of the program to the folks there. Said that it was different but lawful, and that we were going to do this, and we were going to do it very, very well. In fact, I recall saying, "We are going to do what the president has authorized us to do, and not one electron or one photon more."
And then I turned to the legal team, because they're out there all looking at these lawyers who have told them "You can't do this" kind of stuff prior to this. I turned to the legal team and said, "Kevin, Bob [Dietz], Vito [Potenza], brief the folks," and I left. The legal team then took quite a bit of time to explain about the operational and the legal implications of what the president authorized us to do.
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There is some debate out there, though, about understanding the legal aspects of it. It's been reported that you never read the OLC [Office of Legal Counsel] justification for the legality. There's that famous story of your general counsel and the IG [inspector general] going over to the vice president's office to look -- they wanted to look at it -- and then they were told, "It's none of your business." Was any of that worrisome?
It would have been worrisome to me if the lawyers on which I counted, the ops lawyers at NSA, very -- no one better on the planet in terms of knowledgeability about privacy and surveillance. It would have been more of a concern if they had been ambivalent. But they weren't.
But you couldn't see, you weren't able to actually look at the background for why it was considered legal.
I didn't. I didn't ask. I didn't feel troubled by that. Again, the legal opinion that I wanted was the guys' who knew this business best of all.
... But you guys are the ones with your heads on the chopping block. You know as well as anybody that if it is ever going to be another Church Committee, they're going to be looking at this. Is that just part of --
But what expertise do I bring to the background of the opinion, all right? What expertise do I bring to this or that selection of case law?
What I had was an order whose authenticity and legitimacy and legality was averred to by the attorney general of the United States. That was pretty good. In addition, I had my three good friends here, who have been my guardian angels on these things since I became director, saying, "This is good."
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So you brief Congress, 10/25. Tell me a little bit about that -- who was there, what your goals were, what was said. Were there concerns raised?
Yeah. First of all, almost immediately, we at NSA had a discussion with the White House in the president's office and vice president's office. We almost immediately surfaced the question, "You know, we're going to have to tell Congress." Let's just say there were different pockets of levels of enthusiasm with regard to that idea.
You were key in pushing it.
We pushed very hard, all right. And we pushed very hard because of that one-ball/two-strike count. ...
It did come out afterward, as [then-House Minority Whip Nancy] Pelosi (D-Calif.) had some problems with it, raised some concerns. Some people said that they weren't briefed on the Internet metadata program. What's the truth?
That's just not true.
No. Look, they were briefed on everything we were doing. I had no restrictions from the White House. Look, the White House did not approve my briefing, all right? These were almost always given in the vice president's office. The vice president was getting it for the first time when I was briefing Congress. We had total control over what we were to tell them. There were no filters, all right? There is no upside in us not being totally candid with members of Congress. …
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... So 2003, 2004, some changes are occurring at DOJ [Department of Justice]. And that brings up a bit of some heartburn for everyone involved with the program. There is a different point of view, a problem with the Internet metadata program. Do you hear rumblings? Or how do you hear?
Patrick Philbin, a wonderful, wonderful lawyer, spent an awful lot of time at NSA. And I think [then-Deputy Attorney General] Jim Comey had directed he go out there and do it. Patrick was top-notch, and he'd peel back this program one layer at a time. He really became a wonderful master at it. He was asking tough questions of our folks, questions that kind of suggested he was not totally comfortable with what was going on.
At one point, I went up to Patrick and said, "Patrick" -- it was one-on-one, I mean nose-to-nose -- "Patrick, do I have to stop doing anything?" And he said, "No, no, you don't." Now, that was, at that time -- and I'm not suggesting anything other than, at that point, Patrick was not yet prepared to say something should stop.
In March of 2004, with the attorney general [John Ashcroft] ill, with the deputy attorney general being the active attorney general, Jim Comey, Mr. Comey decided that he would not be able to aver to the lawfulness of the one aspect of the program that you've referred to, which was the email metadata, right. It was because it had, in the technology of the collection, the incidental collection of U.S.-person information, he felt, was just too large a proportion of what was being collected.
And therefore he would not aver to its lawfulness, which is -- I'm choosing my words carefully here, because care is important -- it was not a claim that it was unlawful. It was a refusal to aver to the fact that it was lawful, to offer that opinion.
That created the great kerfuffle there in the Situation Room in the White House, in March, the visit to the G.W. [George Washington University] Hospital to visit the ailing attorney general, and all that happened in the next 72 hours. But it was -- and this needs to be pointed out -- it was about one aspect of the program, not the totality of the program.
But it was so heartfelt that the attorney general and Comey and [the OLC's Jack] Goldsmith and another -- more than a dozen people were willing to resign, including the head of the FBI. How much of a heartache -- when you were hearing about that, what were you thinking?
I didn't hear about that, all right. That's taking place off camera for me, all right. I'm not privy to that.
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I kind of get brought into the crescendo when, in the Sit Room, in that afternoon in March, we briefed the congressional leadership. Almost all of them had already been briefed on the program, but there were probably a few in there learning about it for the first time. ...
... So how are you brought into that? You get a phone call?
Yeah, a phone call: "Mike, can you go down and explain the program? Here we've got some issues with Justice on one aspect of the program. We've got to work our way through this problem. We want to talk to members of Congress. One potential way out is simply to change legislation. So we need you to come down and explain the program to the members."
So we're in the Situation Room. I brought one expert with me. The vice president tees it up, kind of like I just did: "We've been doing this. We think it's very useful. We think it's lawful. We're having a problem with this one aspect of the program with the acting attorney general. I want Mike here to explain to you what we're doing."
So I do the technical discussion. I lay that out, and then I go take my seat in the back row and let the vice president and the leadership of both houses of Congress have a discussion.
The first comment I hear is: "Well, gentlemen, that's where we are. And we're having some problem with the lawyers." And that's the vice president. And the first comment I hear from a member of the Senate is, "You ought to get some new lawyers." And that begins the discussion. No one in that room said, "We really want you to end this program." No one.
Were the legal underpinnings of the program defined for them at that point?
I don't know that we got to that level of discussion. It was more a discussion of the politics: You know, can we change the legislation quickly enough? And frankly, I'm going to use the word "secretly enough" -- now I know that brings in a whole bunch of images -- but can we do it in a way that doesn't tip our hand as to what we are doing, with regard to our intelligence collection?
And the consensus from the members was no, we're not going to be able to do that legislatively. Now, I left the meeting. I actually went back and had dinner with my wife that night and said: "I had a big meeting in the White House today. It was really kind of interesting. And you know what? I was kind of proud to be an American, because no one took a political stance in that meeting, and people were trying to do the patriotic right thing." That was my take from the meeting, in terms of being broadly supportive of what we were doing.
... But, you know, afterward, some have come out and sort of said, "That's not the case, that there was no consensus, and that we didn't approve of it. We were just briefed."
Well, they were briefed. I don't know that we ever had a show of hands. But I've already told you what my conversation with my wife was that evening, which was, they opted for patriotism and defense and support of the program rather than political advantage.
... So then the hospital showdown happens. You hear about it. You don't hear about the threats.
I don't hear about the hospital.
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So the next thing that happens, then, that is on your radar screen, then, is David Addington, on the 11th [of March], calls you up. And just what happens?
Yeah, David calls me and says, "We could not get the acting attorney general to sign off," which was kind of the vaguely outlined course of action when the members of Congress said, "Well, we can't give you legislative relief here." So I kind of had that sense. I knew nothing about the hospital visit nor the breathless run up the staircase by Jim Comey and all that went on in that dark and stormy night, all right?
So David calls me and says: "I couldn't get the signature. Are you willing to do this without the signature of the attorney general, with the signature of White House Counsel Al Gonzales and authorization from the president?" And I thought, and I said, "Yes."
Let me tell you the background of "Yes," OK? Number one, I had a safe drawer full of orders signed off by the attorney general saying what we had been doing was lawful. I don't know what had happened to change that. Again, I wasn't privy to some of these other discussions. That was one thing. Number two, my lawyers said it was lawful. Number three, we had gotten what I thought was broad political support from the members of Congress that preceding afternoon in the Situation Room. Number four, this looks like it was being done in haste. And I felt that another 45-day cycle while we sorted this out was probably the right thing to do, given the balancing act, legal, political, operational, security we were trying to do. So let's take the next 45 days to get to the final answer.
And then, that's four reasons. The fifth reason was pretty straightforward: 200 dead Spaniards that were killed overnight from the afternoon meeting in the Situation Room and David Addington's phone call to me that morning, right. Those are the bombings in the Madrid commuter trains.
And given that starkness of the Al Qaeda threat, and given the ambiguity of the situation, I thought the correct operational, legal and ethical decision was: "All right, we'll do this one more time on a somewhat different framework. We've got to sort this out."
The IG report says you went to Dan Levin, your DOJ counsel at that point, and asked advice. Is that what happened?
Well, I don't recall. I don't.
But you did get feedback from the general counsel's office that you could go ahead? I mean, what was that story?
In terms of the NSA general counsel?
Yeah, the NSA general counsel believed in the lawfulness of the activity. By the way, let's spin this story forward a little bit. The concern about one aspect of the program, not the entire program, one aspect of the program, had to do with the proportion of protected information, U.S.-person information, with regard to rather broad collection, in terms of its proportion to foreign collection.
Again, and the anchor here is foreign collection. This is not a mirror image of the 215 telephony metadata program. That's not what this was about.
And so after we stopped doing it -- and it took about a week, the president asked me, "Mike, how long will it take you to turn this off?" "A week to 10 days." He said: "OK. Well, I want you to shut it down." And we did. But just as a practical matter, it took time to change the dials and switches to stop doing what we were doing.
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What did you think when you got that call, that they had decided that they were going to close it down?
Oh, and look, you know, our legal and ethical thread here was the authorization of the president, all right. This was extraordinary. And if it was legal, it was based on the president's -- again, back to my lawyers' explanation, it's based upon the president's Article II authorities. If the president had decided that, for whatever reason -- and it could be policy and politics -- for whatever reason he was not going to authorize it, hey, that was easy; we're going to stop.
Now, we then re-energized efforts that were already underway to, could we get a court order to authorize this? And so we began a very aggressive program with the chief judge of the FISA Court at that time, Judge [Colleen] Kollar-Kotelly, to take that part of the program that had been stopped and present it to her to see if we could get a very different kind of FISA warrant, in order to allow that program to go forward.
Now remember, remember, the argument wasn't that the president did or did not have this authority. The argument was, it was not discriminate enough in terms of the collection. But we took that program to the FISA Court to Judge Kollar-Kotelly, and we tucked in a little bit here and tucked in a little bit there. But at the end of the day, in the summer of 2004, she said it was discriminate enough. And that program that we fretted about in March, and which we stopped for several months, we were up and running pretty much with that program by the fall. ...
Why the need then to go to Congress too, for the FISA Act of 2008?
Well, there was a lot more to it than just email metadata, all right? That the FISA Amendment Act of 2008, in essence, codified the president's Terrorist Surveillance Program and, I really do have to add, and greatly expanded it, OK.
Keep in mind that this program was designed -- it wasn't even terrorism; it was Al Qaeda and affiliates. Hezbollah targets don't get swept into this program. Other terrorist groups, this program doesn't authorize this extraordinary effort against them. It is only Al Qaeda and affiliates.
The FISA Amendment Act of 2008 actually allows some of the things we were doing under the president's authority, only against Al Qaeda, it allows them for all legitimate foreign intelligence purposes. So in a sense, the FISA Amendment Act not only validates the Terrorist Surveillance Program, it expands it.
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Just to back up again, because we missed a whole speech, during the heartburn of the whole DOJ thing was happening, then you get a phone call from Mr. [James] Risen from The New York Times.
This happens later.
But you get that phone call, and what do you think?
I think this is a very bad thing, that there is a reason we keep intelligent sources and methods secret. It's the same reason journalists try to keep their sources and methods secret. You know, you can't survive unless you keep them secret. And so, we had great concern.
So tell me about those discussions. You have a series of meetings. What's being said?
Yeah. We think this is a successful program. We think part of its success is due to the fact that the enemy doesn't know, all right. We think the enemy thinks that the internal American telecommunication system, for them, is a safe haven, that they can operate with impunity there because it's much more difficult for the National Security Agency to operate in that space. So we actually think that secrecy is important. ...
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... So your CIA confirmation hearings are next on our list. You're on the hot seat when Sen. [Ron] Wyden (D-Ore.) comes up.
Yes. And he accuses you of being misleading about the program in the past; that the program, you had stated during I guess the National Press Club press conference that you gave some items about the program was limited to international calls; that you didn't mention what had now been coming out in the press about a huge database of all this information. He was basically saying you were misleading the public. Give me an understanding of what you felt during those hearings, sort of what you thought of what you were being asked and your overview of it.
Yeah, these are difficult questions and clearly Sen. Wyden had a different view of the program than I did. But he need not say I was misleading or dishonest, right. I was quite clear in the speech I gave at the Press Club, and I explicitly said the program revealed by The New York Times had to do with the content of communications, the actual intercept of phone calls, one or both ends of which we had reason to believe was affiliated with Al Qaeda.
And I made the point, and I actually said something like this in the speech at the Press Club, this is not a dragnet over Dearborn, Mich., or Fremont, Calif., sucking up American communications and then going through them with keyword searches to see which phone calls we're interested in. When we listen to the content of a phone call, we already have reason to believe that one or both ends of that conversation are affiliated with Al Qaeda. That was the point I made.
Now, a fair question to be asked was, "Wow, I wonder how they had reason to believe that that would be a suspicious phone call." No one ever asked me that question. And if I had been asked that question, I could not have given them an answer in an unclassified environment, because that part of the program was still classified.
So that wasn't talked about that day.
Wyden considered that to be misleading then.
Well, he can make any conclusions he wants. I think that colloquy between the senator and me, and with me closing my three-ring binder and simply saying, "Senator, you're just going to have to make a judgment on my character."
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... At the same time as the hearings are going on, The Baltimore Sun runs the articles with the information leaked by Thomas Drake. What are you thinking when, all of a sudden now, that's on the front pages? When you hear about it, what are your -- ?
You know, I really didn't have that much of a focus on that. By that time, what, I had been out of the agency more than a year. I did not know Thomas Drake prior to that. ...
What's your overview of Thomas Drake and some of the things that he was saying?
Yeah, Maureen Baginski, the head of signals intelligence, had brought Tom in as a contractor. And, you know, you need to talk to Maureen to get the specifics. But from my point of view, what I've learned later, she brought Tom in to be a bit of a gadfly, to be an outsider to kind of stir up the pot. ...
And what he does, where he comes across Bill Binney and Ed Loomis and Kirk Wiebe, and a project called --
ThinThread. Give me your overview. I mean, their concerns were, they thought, here was something that hadn't gone before 9/11, but here was something that maybe was an answer. It had legal filters to keep the domestic folks out. It had an ability to sort of only look for the questionable information and throw out all the rest. So it didn't have to collect everything. They saw this as an answer. What's your thoughts on that?
No, ThinThread was a technological dispute at the agency prior to 9/11. ThinThread was not the program of record of my predecessor, Ken Minihan, OK. I did not make ThinThread the program of record while I was director. After I left in 2005, Keith Alexander also chose not to make ThinThread the program of record.
Now look, Ken, Keith, Mike, we could all be wrong. But all three of us, independently, decided that this was not the answer to the problems we were facing, with regard to the volume, variety and velocity of modern communications.
My best technological adviser told me it wouldn't scale. I talked to Keith Alexander's technological adviser within the last month. He broadly had the same view, right, and with regard to, "Oh we could filter out the U.S. information," it couldn't filter out the U.S. information without acquiring the U.S. information. And the FISA Act, as written, said you cannot acquire U.S. information. And I'm not sure how even the world's greatest technology out there at the front end, looking at data as it goes by, can pick out the relevant information about something you're going to learn about in six months or 12 or 18 months or 24 months.
I mean, the reason we stored the database is that, when you get a dirty Al Qaeda number, a new one, you want to know the history of the number. Has this number ever talked to numbers inside that massive database, not just will it talk to? I don't understand how something even magical at the front end can tell you whether or not that selector, as we call it, will call someone in the United States in the future.
They say they tested it and that it was finding intelligence that had been missed before. It was well tested. It was cheap, too.
Yeah. And therefore three successive directors and their technical experts rejected something that would have been the secret sauce for all American SIGINT for all times for $30 million.
Needless to say, you disagree with their analysis of what took place?
No. Look, these guys are smart guys. They're good technologists. We had to make decisions. This particular decision went against them. It may or may not be the right decision, obviously. I have a view as to what the right decision was. Apparently Keith does. Apparently Ken did. We all agreed it wasn't the right decision. You know, I can admit the possibility that we're wrong, but it doesn't make us immoral. It doesn't make us unethical. It doesn't make us insensitive to the Fourth Amendment.
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And do you have any view of what happened to these guys? Some of them were very elderly. They had been in the NSA for 35 years, some of them. They were not kooks, right?
They were true believers, all right. And they were very, very dedicated, emotionally committed, personally identifying with this technology. And, by the way, in a lot of circumstances, those are real virtues, all right. But in a circumstance where they were not the selected path forward, that made it more difficult for them to accept the decisions that had been made.
But let's fast-forward, OK, to internal discussions and kerfuffles, and raising dust inside the agency, and prosecution under the Espionage Act, all right? Now I've written about this, all right, and I'm on public record saying that the Espionage Act is a very blunt and clumsy instrument and that the case against Tom Drake collapsed of its own weight, all right, because of trying to use the Espionage Act.
By the way, I had nothing to do with that case. It happened well after I was gone. But I would imagine the course of action I would have hoped I would have taken would have been administrative rather than judicial. It's dismissal and doing things within your authority, dismiss and pulling clearances. But to ruin a man's life over this, that's -- that looks like a bridge too far. …
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Diane Roark is another person that comes up with that [who] was involved with this group. At some point, she goes to [Chairman of the House Intelligence Committee Porter] Goss (R-Fla.) and Pelosi, and they suggest that she talks to you. She has a meeting with you --
-- where she complains about the program, pretty much what the guys had been saying.
Even though she had not been briefed into the program.
... And your response is what?
Well, number one, it's awkward for me having the conversation, because she's not been briefed on the program, all right. So, to a certain level of detail, I simply respond that I disagree with both of her conclusions, and I think what we're doing is lawful, and I think what it is we're doing is effective, and if I knew of a better way of doing it, I would do that, too.
And you say something like, this thing which you said before, that you also acknowledge that, at some point, that it's going to come out.
Of course, of course. And I may have said it to Diane. I don't remember the specifics of the conversation, but it sounds like me. I said, "Look, Diane, this is going to become public, and when it becomes public, you can argue your point, and I can argue mine."
Look, the evening after my meeting in the Oval with the president and the vice president in mid- to late September of 2001, it becomes clear to me we're going to go do this, OK? I go back to Fort Meade; I do my stuff. It's still September. The days are pretty long.
I finally go home and ask my wife, "Let's take a walk." So we walk around Fort Meade. Fort Meade is a very sylvan kind of campus, really a nice place. So we're walking around Fort Meade, and she said, "What's on your mind?" I said, "Well, we're going to go do something here." I didn't go into any details. "We're going to do something. One day it's going to be public. And when it gets public, it's going to be very controversial, and the people doing it are going to be swept into this thing."
And she said: "Uh-huh. Is it the right thing to do?" I said, "Yeah, I think so." She said: "OK. We'll deal with that when it comes." Right now, that's my wife making a commitment, not that I would deal with it, but she would deal with it and our children would deal with it when it became public. And we knew, you know, eyes wide open, that this would be controversial.
Look, let me give you the existential complaint of the American intelligence community. Here's how it works living inside America's liberal democracy, of which, by the way, the intel guys are really a part. Now, we didn't go to different high schools here, you know. We're all part of the same political culture. But from our point of view, this is how it generally works, OK?
American political elites feel very empowered to criticize the American intelligence community for not doing enough when they feel in danger, and as soon as we've made them feel safe again, they feel equally empowered to complain that we're doing too much.
- Ψ Share"There is no data mining"
So that's a quandary. That's a pretty good quandary. The worries that they have also, though, is -- I mean, the big thing that keeps on coming up in the debate over this is that metadata from everyone, hundreds of millions of people, is in the databases. The financial records, telephone content, as well as metadata, is all being stored.
Yeah, we're going to have to deconstruct every one of those sentences, you know.
The fear, of course, the big fear is that all the information could be assessed.
Could be, could be.
[Edward] Snowden says, of course, it can be, and it is. And it is easily accessed.
Of course he's wrong.
Give me your argument about that fear, that fear that all this information is sitting in places, and whether the guys that are controlling it now are good guys or not. Eventually maybe somebody is going to come along that doesn't have as good intentions.
Hey, look, I understand the controversy, all right? I was on one of the 7/24 networks last week when the story came out alleging NSA was doing an awful lot on the World Wide Web with regard to back doors and equipment moving and so on and so forth. And the fellow there, moderator, kind of teased that all up and, you know, kind of getting pretty excited about all that stuff and says, "What do you think about that?"
You know, I forgot exactly what I said, but in my heart was, "Pretty good, huh?" And what I actually said was: "I think Keith Alexander and the folks out at Fort Meade are exactly what you want them to be. They're really an effective signals intelligence organization, and you shouldn't be concerned about that, as long as they turn their energy toward foreign intelligence purposes, which is what they do."
Now, the metadata program here, that's domestic. I get it; I understand that. Now, just to make sure we all have the same database, you realize NSA doesn't collect that, right? I mean, there's no way NSA has got alligator clips on all these wires, and they're just getting the metadata of everybody's phone calls. What they're getting, kind of the books of major telecommunication providers here in the United States. I mean, they're getting the billing records every day. And it's a big number, yeah, a couple billion a day, adds up pretty fast. I get it. ...
Now, what happens? Well, what happens is, 288 times, over the course of a year, NSA walks up to that database with a new phone number, you know, one that they have gotten from a safe house in Yemen or some other activity, and simply yells across the transom, "Hey, any of you guys in here talked to this guy?" And NSA gets to find out what the answer to that question is. And if some phone number in Manhattan raises its hand and says, "Well, yeah, I kind of talk to him every Tuesday," then NSA gets to say, "Well, who do you talk to?" That's it, OK?
There is no data mining. There are no algorithms launched against that database to determine suspicious patterns of behavior. By the way, I'm not all that sure that's unconstitutional if it were to happen. But no one wants it to happen. ....
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So that brings naturally to the next question, which is the effectiveness question. So the Presidential Commission and the 2009 IG reports, 13 years later, say that they find little effectiveness of the program in stopping attacks on the homeland.
I think they use the phrase "imminent attacks" on the homeland.
OK. So what's your best argument about this question of, "Well, wait a minute. If the program is ineffective, why are we doing all this, and spending multiple billions of dollars, of course?"
Sure. It's a useful tool. Can I point to that point there and say, "You know, if we didn't have this, that wouldn't have happened"? I don't think Gen. Alexander has done that. He's pointed out examples where it was quite useful. Mike Morell, former acting director of the Central Intelligence Agency, says it's been a quite useful program. In fact, Mike, who is actually the chairman of the commission, who said he couldn't find where it stopped an imminent attack, Mike actually says, "You know, we've got to do this for all the email metadata in the country, too, in addition to the telephony metadata."
So, you know, let's not say that was a unanimous conclusion from the report that this didn't have any value at all. Michael Morell points out a use to which this database was put that I think is actually very illuminating.
Right now, the standard that we're being held to is, did it stop an actual attack? And very often it's, did it stop an actual imminent attack? All right. I could ask the same question about a whole bunch of things that are going on. How about TSA [Transportation Security Administration]? You know, has that thing in the airport, has that actually stopped an actual Al Qaeda attack against American airliners? Well, I don't know that I could pull one out and say, "Oh, by the way, there it is; that's the imminent attack that we stopped."
Two guys, Nawaf al-Hazmi and Khalid al-Mihdhar, living in San Diego, all right, meeting in Kuala Lumpur, come to the United States, call home, call Yemen, call a safe house in Yemen seven times. We intercepted every one of the calls, right?
Nothing in the physics of the intercept, nothing in the content of the call told us they were in San Diego. If we'd have had the metadata program, OK, if we'd have had that basket of stuff and that phone number of that safe house in Yemen, which we knew, and we would have walked up to that metadata and said, "Hey, any of you guys talked to this number in Yemen?," those numbers in San Diego would have popped up.
But the ThinThread program would have done the same. And in fact, that was one of the targets that they had.
I do not know that to be a fact. You know, you'd have to be from Missouri on that, OK -- show me, all right. And by the way, how were they collecting the domestic metadata prior that happening?
In any event, all right, roll this forward one more scene. Let's say we did have the metadata. Let's say we did find out Nawaf al-Hazmi and Khalid al-Mihdhar were living in San Diego. Let's say the FBI kicked in their front door. Let's say the FBI arrested them, OK? Would that have been judged as stopping an imminent Al Qaeda attack on the United States? Actually, probably not, because we would not have known what would have happened had that act not taken place. …
- Ψ ShareHis views on Snowden
Snowden says he won, that he started a debate that was necessary to have in this country. Is Snowden a traitor? What's your view of Snowden and his view?
Yeah, the line I've used with Snowden is that he's certainly a defector. We've certainly had a lot of people take American secrets to Moscow in the past, and he's part of that long line.
I actually said, and this kind of lit up the blogosphere a little bit, that my opinion of him is getting a little bit more harsh, because, in an open letter to Brazil, for example, he said: "I would love to come talk to you about how the Americans collect intelligence against you. But of course I can't do that because I would need permanent asylum."
Now, he denies that was an offer to trade asylum for assistance. Fine. If that's what he wants to believe, let him believe it. But you know, I headed an organization for about three years that actually tried to arrange these kinds of quid pro quos with other countries or other people. And maybe he didn't intend it this way. But that open letter sure does sound like a dangle to me. So I've become a bit more harsh in my judgments about the young man.
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And are you surprised that Obama has basically taken the program on, has pushed it forward more aggressively, that he has also taken the prosecutions of whistleblowers on even more strongly than the Bush administration had done?
... Look, everything that the president said as a senator, everything he said in the campaign, would tell you he would be spring-loaded to box these things up and go out and say: "You see, I'm not like the other guy. I'm really different. We've turned a corner here." And yet he didn't. He really didn't.
When he was briefed on this program, he said: "You know, I think this is OK. We're going to continue it." I actually think it's one of the strongest arguments with regard to both the lawfulness and the effectiveness of this program, because if our 44th president could have stopped this in good conscience, I think every inch of his nature would have leaned him in that direction. But he didn't. ...
I'm willing to have the debate. You want to draw the box differently? You want to have the security community work in a smaller box? I got it. But, before you do that, you got to understand, you got to understand what the costs might be.
Mike Morrell actually, the former acting director of CIA, was quite eloquent about this. He said: “Look, don’t kid yourself. If we treat the 215 program in the new way, if we have someone else hold it, the phone companies keep it, and you got to go to a court before you query it -- if we do that, it’s going to cost. We’ll be less agile, and we’ll be slower.”
Now he said: “We think that’s a manageable cost. But we understand that’s a separate discussion. And so, let’s keep that in mind before we make some of these decisions.”
... The FISA Court itself has said that they were misled by the NSA, that there were actions taken that were unconstitutional, that the whole Justice Department, at some point, revolted because of problems with it. And so there's a feeling that we’re not getting the full truth. And so therefore, when it comes down to it, that’s going to affect the way the NSA, what they have to swallow on how this thing is controlled.
Yeah, we might, all right. And you know, you can probably detect in my tone a certain sadness. But I understand. I mean, we live inside a democracy. And, you know, public will matters in a democracy. I just hope it’s informed public will. And frankly, when the decisions are made, you understand the costs. ...
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... We talked a little bit about the meeting with Bush and Keller that you were at, at the Oval Office, but not what you said and not what the president said. At that meeting, what were you saying? It's been reported you gave an example about the Brooklyn Bridge. Did that happen?
Yeah. It was indeed a dark and stormy night, I remember. It was dark, and it was stormy. And we were in the Oval, the president, not the vice president. I think [National Security Adviser Stephen] Hadley was there. Mr. Sulzberger, Mr. Keller came in, sat down.
Mr. Sulzberger began to speak, and the president said: "I'm going to go first. I want to talk to you about this program. I want to talk to you about why this is important, why we think it saves lives, and why it should not be made public. Hayden, tell them about the program." And I laid out.
It's hard to brief in the Oval. You can't -- no visual aids. Hard to roll out something in front of somebody. So I gave them the best explanation of the program I could, pretty much what I had done the year before, you know, when they had the story the first time, with [New York Times Washington, D.C., bureau chief] Phil Taubman and others and Condi. Laid it out. I'm sure I would have brought up examples. I don't know which ones I would have brought up, and I don't feel at liberty to even guess, but I did bring up specific examples. And as I said, they left saying, "We'll let you know."
... The New York Times report: Did anybody die? Did some of the doom that was being talked about happen?
I'm sorry, I'm going to give you a flippant answer here, OK? I don't have the list of the communications that didn't happen, OK? I wish I did. But I don't have that list, and that's fundamentally what we're talking about here. ...
What does the administration decide to do after The New York Times story comes out?
Well, the first thing the administration decided to do -- and I think the story comes out on the website Thursday night. As luck would have it, I'm having the chair and ranking member of the House Intelligence Committee at my house that evening for dinner. Their cell phones started buzzing incessantly. It wasn't the best dinner I've ever thrown in the house.
The next morning, the president -- it would be Friday now -- the next morning, you know, when stuff like this happens, people with my background, people in the intelligence community, we call it the "big pause," OK? When stuff like this goes public, what's the big guy going to do? Is he going to man up and support you or suddenly get reflective on you?
President Bush did what we viewed to be the absolute right thing. He tore up the Saturday morning radio address that he already had in the can and went live, saying: "Yep, I did it. Here is why I do it. I intend to continue to do it." And that gave us some ease, some satisfaction. ...
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... My last question was, you'd always been convinced of the legality of the program. There's obviously been different rulings in different courts. But when the judge ruled, again, that the telephone metadata program was unconstitutional and described it as Orwellian, what was your reaction to that, and to your certainty about the legality of the program?
... The program we're talking about here, the metadata program, the 215 program, was authorized by two incredibly different presidents, I might add, both houses of Congress in statute, and it's overseen by the FISA Court. Now, you may think this is a bad idea. I get that. That's a different discussion. But you don't get to think it's an illegal idea.
In terms of oversight and the way we're supposed to do this, this is a constitutional trifecta. All three competing branches of government have said this is good to go. That's how the system works, and until the law or the interpretation of the Constitution is changed, those charged with defending the country should play to the sidelines.