Intelligence Deputy Defends Surveillance Program
The New York Times
January 23, 2006
By JOHN O'NEIL
Gen. Michael V. Hayden, who led the National Security Agency when it began a program of warrantless wiretaps, vigorously defended the program today, but acknowledged that it depends on a lower standard of evidence than required by courts.
"The trigger is quicker and a bit softer," said General Hayden, an Air Force officer who is now the principal deputy director of the new national intelligence agency , "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 standard laid out by General Hayden - a "reasonable basis to believe" - is lower than "probably cause," the standard used by the special court created by Congress to handle surveillance involving foreign intelligence. .
Mr. Hayden said that warrantless searches were conducted when one of a "handful" of senior officers at the security agency determined that there was a "reasonable belief" that one party to a call between someone in America and someone overseas had a link to Al Qaeda.
His remarks came in the first of a series of speeches planned by the Bush administration to go on the offensive over the topic of the wiretaps, which have drawn criticism from some Republicans as well as Democrats. Attorney General Alberto Gonzales has scheduled a speech on the topic on Tuesday, and President Bush has planned a visit to the National Security Agency's headquarters in Maryland on Wednesday.
Since the program was disclosed last month, members of the Bush administration have emphasized the need for speed in explaining why the program bypassed the process set out in the Foreign Intelligence Surveillance Act, the 1978 law that set up the special court.
But General Hayden said that the difference in the legal standards also played an important role in determining whether to go to the FISA court or not.
The 1978 law allows the agency to seek a warrant up to 72 hours after wiretapping begins when speed is of the essence. But even in an emergency, General Hayden said, the law required that the attorney general approve a wiretap before it could begin. But "the attorney general's standard," he said, "is a body of evidence equal to that which he would present to the court,"
meaning that an emergency application would also have to show probable cause.
Members of the Bush administration have said that the program falls under the authority given to the president by the resolution passed by Congress after the Sept. 11 attacks. Democrats in Congress have responded that the resolution was limited to the use of force in Afghanistan, and Republican leaders in Congress have said hearings into the program will begin soon.
General Hayden said the lower, "reasonable belief" standard met Constitutional requirements, pointing out that the Fourth Amendment does not mention probable cause, but instead forbids "unreasonable" searches and seizures.
"I'm convinced that what we're doing is lawful, because what it is we're doing is reasonable," he said.
He also called the program critical to the war on terror in a time when the tools of surveillance were changing rapidly.
"It is my belief," he said, "that had this program been in place before 9/11, it is my judgment that it would identified some of the Al Qaeda operatives in the United States, and would have identified them as such."
Mr. Hayden defended the program's safeguards, saying that it "is actively overseen by the most intense oversight regime in the history of the National Security Agency."
At some points, General Hayden appeared exasperated by criticism that he said was based largely on misinformation or misunderstandings of the program.
"This is not a driftnet being cast over Dearborn or Lackawanna" or other areas with many Arab-American residents, he said. "This is hot pursuit of communications entering or leaving America involving someone we believe is associated with Al Qaeda."
General Hayden also described two separate programs for expanded wiretaps after 9/11. He said that shortly after the attacks he had broadened the criteria used to determine who was a person of "inherent foreign intelligence value," something he described as a routine exercise of his own authority.
"The standard of what was relevant and valuable - and therefore, what was reasonable - would, understandably, change, I think, as smoke billowed from two American cities and a Pennsylvania farm field."
For those wiretaps, the agency continued to seek FISA warrants, he said.
Without giving numbers, he said the wiretaps conducted without warrants under presidential authority had been "a steady producer" of good information, while the amount of information gathered under FISA had risen more sharply.
"FISA has been increasingly effective," he said.
General Hayden said that immediately after the Sept. 11 attacks "we turned on the spigot of N.S.A. reporting to F.B.I. in, frankly, an unprecedented way."
But "within weeks," he said, the agency curtailed the flow. "We found that we were giving them too much data in too raw form," he said.
Since the disclosure of the warrantless wiretapping program, some F.B.I. officials have said the program produced a flood of unimportant information and bogged down agents assigned to check them out.
But General Hayden discounted those complaints, and pointed out that the 9/11 commission had called for both more surveillance and better sharing of information between agencies.
When asked what level of certainty was needed in determining that someone was connected to Al Qaeda before a warrantless wiretap was conducted, General Hayden acknowledged that the decision involved "art as well as science." But he compared it to intelligence given to the military for battlefield decisions.
"It's the same tactics and procedures used to tell American forces 'You can go ahead and put a 500-pound bomb on that target,' " he said. "It's the same art and science." |
