Former National Security Agency (NSA) Director Michael Hayden defended the agency’s contested surveillance programs on Thursday as vital tools for defending national security during an era of rapidly evolving global communications.
Hayden, also a former CIA director during the George W. Bush administration and a retired four-star general, said the NSA had to adapt its intelligence gathering capabilities to address new threats and technological advancements. Laws and policies are still struggling to catch up to the increasingly globalized network for communications, he said at the American University forum.
Barton Gellman, Pulitzer Prize winning reporter at the Washington Post, debated Hayden and argued that the NSA has employed new methods that are not consistent with the American public’s traditional understanding of surveillance. Gellman received documents leaked by former NSA contractor Edward Snowden and was the first reporter to interview him at length after he sought asylum in Russia.
Hayden presented a history of American espionage, noting that it was considered exclusively under the purview of the executive branch since George Washington’s spy ring during the Revolutionary War. That changed in the 1970s when the government created the House and Senate Permanent Select Committees on Intelligence and the Foreign Intelligence Surveillance Court (FISC) to apply more oversight.
Involving all three branches in intelligence oversight was considered sufficient at the time to ensure the consent of the governed, Hayden said. That consensus has since eroded.
“We’re kind of at that cusp in our political culture,” he said.
“Here we are with a national enterprise I’m going to assume we all believe is legitimate and necessary—American espionage—and a broader political culture that demands more transparency of an enterprise that demands secrecy for its very nature, its very success. That’s why it’s so difficult.”
Most public debates about the NSA have focused on the agency’s collection of telephone “metadata” authorized by Section 215 of the Patriot Act. Metadata includes phone numbers, location data, and call times, but not the contents of conversations. The metadata is stored on secure NSA networks and can only be accessed by a limited number of authorized personnel if they believe the information is associated with foreign terrorist organizations.
Gellman has also reported on a separate program, known as PRISM, which gathers large volumes of online communications from U.S. companies and is authorized under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Hayden said the NSA realized it was facing a “tsunami of global data flying at us” in the late 1990s as wireless networks expanded. The huge volume of data flows, a sharp increase from the Cold War landscape of intelligence gathering, prompted the agency to push for bulk collection of metadata. Those programs expanded after the Sep. 11, 2001, terrorist attacks and the proliferation of transnational criminal groups.
“There is no way the NSA can continue to do what it used to do for you if it can’t get there and be in the flow where your communications and mine are commingling with legitimate targeted communications,” he said.
Gellman said the public never got a chance to debate the NSA’s more extensive data collection. He pointed to Director of National Intelligence James Clapper’s testimony last year that the NSA is not “wittingly” collecting data on millions of Americans.
“They’re doing it behind our backs and their highly misleading statements about it have led to a considerable degree of shock when people find out they’re doing it,” he said.
Reporting on Snowden’s leaks enables the public to more actively participate in the surveillance debate, Gellman said, though he conceded that it might “degrade the ability to listen in on something.” Hayden said the leaks have “accelerated” the rate at which U.S. agents lose advantages in the constantly evolving world of signals intelligence.
Snowden’s disclosures prompted President Barack Obama to announce changes to the surveillance programs in January, including requiring analysts to obtain permission from the FISC for each individual query of the database, limiting the range of phone numbers that can be examined, and potentially moving the database to a third party.
However, any substantial changes to the programs would likely require congressional or judicial involvement. Federal judges have issued mixed rulings on the constitutionality of the surveillance methods, and lawmakers have introduced a competing proposal in the House to alter them.
Gellman said the heightened scrutiny of the NSA has not yet extended to its overseas intelligence gathering, which is subject to executive orders rather than court rulings and congressional oversight. The NSA’s activities abroad allow it to vacuum up large amounts of U.S. phone calls and emails that cross over foreign switches and fiber optic cables along with targeted foreign communications, such as an email sent from Washington, D.C., to Cleveland that first flows through a Google data checkpoint overseas.
Hayden admitted that the foreign surveillance methods are “edgy” and “powerful” but noted that the data collected goes through several filters as it is accessed, processed, analyzed, and disseminated.
The privacy-security debate always involves tradeoffs, he added.
“The intelligence community must be more transparent than its ever been before, because if we don’t you’re not going to let us do this stuff in the first place,” he said.
“By being more transparent we will make you more comfortable—but it’s inevitable that we will be less safe. That’s the deal.”