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2006-05-18

Confirmation Hearing Opens for CIA Nominee and Former NSA-Head Michael Hayden

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For the first time since the Sept. 11 attacks, the full Senate and House Intelligence Committees were briefed Wednesday on the National Security Agency’s warrantless domestic surveillance program. The Bush administration agreed to allow the briefing to happen with hopes it would pave the way for the Senate Intelligence Committee to approve the nomination of former NSA Director General Michael Hayden to become the new head of the CIA. Hayden’s hearing begins today. [includes rush transcript]

For the first time since the Sept. 11 attacks, the full Senate and House Intelligence Committees were briefed Wednesday on the National Security Agency’s warrant-less domestic surveillance program. NSA Director Lt. Gen. Keith Alexander traveled to Capitol Hill to deliver the briefing, accompanied by a team of aides carrying zippered blue briefcases containing information on the top-secret program. Up until Wednesday less than half of the Senate Intelligence Committee had ever been briefed on how the NSA is conducting warrant-less eavesdropping inside the United States.

Republican Senator Olympia Snowe of Maine said "This is something that should have happened, frankly, long before now. Congress should be an ally in the war on terror, not an adversary." The Bush administration agreed to allow the briefing to happen with hopes it would pave the way for the Senate Intelligence Committee to approve the nomination of former NSA Director General Michael Hayden to become the new head of the CIA. The Senate Intelligence Committee will open its confirmation hearing on Hayden today.

Part of today’s hearing will be held behind closed doors to allow Senators to question General Hayden about classified information. This will not mark the first time General Hayden has been publicly questioned about the NSA’s secret spy program. In January he made a rare appearance before the National Press Club. He defended the secret program and then took questions from the audience.

  • General Michael Hayden, the former director of the NSA and President Bush’s pick to become the new head of the CIA.

At today’s Senate Intelligence Committee hearing, Senators are also expected to question Hayden’s credibility. When Hayden took over the NSA in 1999 he publicly vowed to protect the privacy of Americans. The Washington Post reports he was viewed at the time as a champion of national security, privacy rights and press freedoms. Last week New York Times reporter James Risen discussed Hayden during a forum on the NSA sponsored by the New York public library and the Century Foundation. Risen is one of the Times reporters who broke the NSA’s domestic surveillance story.

  • James Risen, reporter for the New York Times.

At today’s Senate Intelligence Committee hearing, Gen. Hayden is also expected to be questioned about last week’s report in USA Today that Verizon, BellSouth and AT&T had handed over millions of phone records to the NSA. On Wednesday the Electronic Privacy Information Center filed a complaint with the Federal Communications Commission over the actions of the phone companies. At least one FCC Commissioner–Michael Copps–has already expressed support for the Commission to investigate the phone companies.

Meanwhile the New York Times has revealed more information about the NSA’s efforts to track phone calls. The paper reports that the government efforts to collect phone records has likely focused on long-distance carriers, not local ones. Technical experts said long-distance calling records could yield information not only on the companies’ own long-distance customers, but also on traffic that the carriers connect on behalf of others, including some calls placed on cellphones or on Internet voice connections.

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: In January, he made a rare appearance before the National Press Club. He defended the secret program and then took questions from the audience.

MINISTER: Let me just say this, that domestic spying — and the faith communities are outraged. Churches in Iowa, churches in Nebraska, mosques across the board are just outraged by the fact that our country could be spying on us. You made a point that the young lady at State Penn shouldn’t have to worry, but we’re worried that our country has begun to spy on us. We understand the need for terrorism and the need to deal with that. But what assurances, and how can you answer this question — what can make Americans feel safe? How can the faith community feel safe that their country is not spying on them for any reason?

GEN. MICHAEL HAYDEN: Reverend, thanks for the question. I’m part of the faith community, too. And I’ve laid it out as well as I could in my remarks here, as to how limited and focused this program is, what its purpose is, that it’s been productive. We are not out there — and again, let me use a phrase I used in the comments — this isn’t a drift net out there where we’re soaking up everyone’s communications. We’re going after very specific communications that our professional judgment tells us we have reason to believe are those associated with people who want to kill Americans . That’s what we’re doing.

JUAN GONZALEZ: That was General Michael Hayden, the former Director of the NSA and President Bush’s pick to become the new head of the CIA. At today’s Senate Intelligence Committee hearing, senators are also expected to question Hayden’s credibility. When he took over the NSA in 1999, Hayden publicly vowed to protect the privacy of Americans. The Washington Post reports he was viewed at the time as a champion of national security, privacy rights and press freedoms. Last week, New York Times reporter James Risen discussed Hayden during a forum on the NSA that was sponsored by the New York Public Library and the Century Foundation. Risen is one of the Times reporters who broke the NSA’s domestic surveillance story.

JAMES RISEN: I think that’s to me one of the great problems Hayden has politically now, is his credibility. As you pointed out, he was in Korea before he took the NSA job. And one of the things he told me years ago was that right about the time that he got the word that he was going to take over NSA near the end of the Clinton administration, the movie with Will Smith, Enemy of the State, came out, which is, I think, the first movie really about the NSA. Maybe there were some others, I don’t know. But it made the NSA look like a bunch of murderous thugs who were out to destroy the republic, basically. And I remember he was very eloquent on the fact that that appalled him, that that image was out there of the NSA, and he realized that the problem the NSA had was that nobody really understood it. And so, in this vacuum, you could say all of these horrible things about NSA.

And when he came into Fort Meade, I think he was one of the — maybe you did this when you were there — but he was one of the first NSA directors to really make an effort to get to know the press corps in Washington and to really give the NSA a public face. And he constantly was out there saying, you know, "We don’t spy on Americans. We never would spy on Americans. We follow the law." And one of his favorite phrases was, you know, "We know that NSA always has two strikes on it, and so we’re afraid to go for a third." And, of course, after 9/11 he stopped giving those public speeches. And he left the impression out there that that was still the case. And I think that’s one of his problems. He’s got a credibility issue.

AMY GOODMAN: That was New York Times reporter James Risen, who broke the NSA spy story, albeit a year after he had completed it, this at the request of the Bush administration, asking that the story not be released. They asked that just before the election of 2004. At today’s Senate Intelligence Committee hearing, General Hayden is also expected to be questioned about last week’s report in USA Today that Verizon, BellSouth, and AT&T handed over millions of phone records to the NSA. On Wednesday, the Electronic Privacy Information Center filed a complaint with the Federal Communications Commission over the actions of the phone companies. At least one FCC commissioner, Michael Copps, has already expressed support for the Commission to investigate the phone companies.

JUAN GONZALEZ: Meanwhile, the New York Times has revealed more information about the NSA’s efforts to track phone calls. The paper reports that the government efforts to collect phone records has likely focused on long distance carriers, not local ones. Technical experts said long distance calling records could yield information not only on the company’s own long distance customers, but also on traffic that the carriers connect on behalf of others, including some calls placed on cell phones or on internet voice connections.

AMY GOODMAN: We’re joined now from Washington, D.C. by Kate Martin, Director of the Center for National Security Studies. Welcome to Democracy Now!

KATE MARTIN: Good morning, Amy.

AMY GOODMAN: It’s good to have you with us. Well, can you talk first just about your reaction to it being General Michael Hayden who the President has nominated to be head of the CIA?

KATE MARTIN: Well, you know, it’s another example in a long line of examples of people, who were part of, complicit in the administration’s program to break the laws in the fight against terrorism, being promoted. Alberto Gonzales, of course, as White House Counsel, gave the go-ahead to the illegal interrogation policies, the illegal detention policies, the illegal surveillance policies, and was rewarded by being promoted to Attorney General. And we now have General Hayden, who evidently must have authorized at the President’s direction, the NSA’s law breaking, and now he’s being promoted.

JUAN GONZALEZ: What do you think should be some of the questions that the Senate should be asking today?

KATE MARTIN: Well, you know, the most basic questions haven’t been answered by the administration, starting with, "Please give us what was your contemporary legal justification for what, to us, is clearly an illegal program." You know, and Hayden isn’t a lawyer. He had some legal analysis, presumably from the Justice Department, saying that it was alright to break the law. And you know, the Congress and the American public are entitled to see that legal analysis. They’ve refused to turn that over.

But there are then the questions of what exactly is the NSA up to with regard to domestic surveillance. Those clips that you just played at the Press Club was at a time when the President had very carefully and misleadingly said, "Yes, we’re listening to al-Qaeda phone calls," and the clear implication was "and that’s all." And they’ve been embarked on this course of deception of the Congress, where they answer questions and say, "Yes, we wiretap al-Qaeda phone calls without a warrant, but we’re not going to say anything else."

So the Congress needs to know the full scope of what the programs are, and then the Congress needs to ask a lot of questions. What happens to the intercepts of American phone calls that the NSA has, that they got without a warrant? Are they shared throughout the government in the new information sharing environment? Have they been destroyed? I very much doubt that.

They have the records of tens of millions or hundreds of millions of phone calls of Americans. The administration’s proxies are all out there saying, "Well, the only thing we do with that is data mine to see which terrorists are calling which terrorists." But we have no assurance of that. It is, in my judgment, much more likely that that information is stored in the NSA computers to be accessible to any part of the Defense Department or other — the CIA even, that wants to do data mining on that information. And I don’t think the Congress knows any of those answers.

And then, there are the questions about General Hayden’s particular comments to the Congress, as well as to the American public since 9/11, that were misleading at best, if not outright lies about what the NSA was doing.

AMY GOODMAN: Kate Martin, I don’t know if you’ve seen the Baltimore Sun today, but it’s reporting that the NSA developed a pilot program in the late '90s that would have enabled it to gather and analyze massive amounts of communications data without running afoul of privacy laws, but after the September 11 attacks it shelved the project, not because it failed to work, but because of bureaucratic infighting and a sudden White House expansion of agency surveillance powers. Sources told the Baltimore Sun the program's ability to sort through massive amounts of data to find threat-related communications far surpassed the existing system. It also was able to rapidly separate and encrypt U.S.-related communications to ensure privacy. But the NSA, which was then headed by General Michael Hayden, opted against both of those tools, as well as the feature that monitored potential abuse of the records. Only the data analysis facet of the program survived and became the basis of the warrantless surveillance program. Your response?

KATE MARTIN: Amy, this is another example of the scope of what we don’t know and what we’ve been lied to about. You know, all of these data mining tools, which are basically different kinds of technology that are meant to analyze massive amounts of data in lots of different ways, you know, that’s what Total Information Awareness was about. And one of the myths about that is that Congress killed the program, when in fact what Congress did was move the research parts of the program into the black secret classified budget. But the defenders of the program, Admiral Poindexter, are always fond of saying, "Well, the only part of the program that Congress killed were the privacy protections that we were trying to develop."

And so, you know, they argue it both ways. On the one hand, they say, "Well, you know, we were trying to develop technological privacy protections, and yet we’ve —" but the fact is that there’s no national security justification for keeping the existence of all those technology capabilities a secret, and we are entitled to know. The Congress should insist on knowing, so that we can know what capabilities exist, how they are being used, and whether or not there are any safeguards against them, because one of the things that’s most frightening to me, looking at the landscape, is that there are almost no legal restrictions on the government’s use of data once it has the data. And so, anything they can build to analyze, manipulate that data, they can use.

JUAN GONZALEZ: Kate Martin, the Senate Judiciary Committee could consider as early as today a bill by Senator Specter on this whole issue. Your concerns about the bill that Senator Specter is proposing?

KATE MARTIN: Yes. Well, that’s very interesting, and it’s a little-covered story in the media. You know, Senator Specter has been quoted as raising concerns about the program and quoted as saying that he wanted the program — now we’re talking about the warrantless eavesdropping on Americans’ telephone calls — that he wanted the program submitted to court review for a determination of its constitutionality.

But that’s not what his bill does. And he’s circulated various draft bills, which, first of all, would authorize a much larger program than the President has admitted to. It would basically authorize the NSA to intercept millions of phone calls of Americans without specifying which individuals’ phone calls they’re intercepting, and especially without any probable cause that those individuals are engaged in wrongdoing. The NSA would then be free to troll through, data mine all of those phone calls. And it’s only at the tail end that — well, even then, there’s no court review.

And what the Senator Specter’s bill does is authorize this kind of general warrant, which the Revolutionary War was fought over, that says the FISA Court can authorize this general program to intercept all of these phone calls as long as it’s done initially by a computer. And you have to wonder whether or not what’s described in Senator Specter’s bill, which is very similar to what’s described in a bill introduced by Senators Hagle and DeWine, who have been briefed on the program, isn’t in fact the actual program being run by the NSA, and that it is much broader than what the President has admitted to.

AMY GOODMAN: Last question, Kate Martin. Today, yes, General Hayden goes before the Senate Intelligence Committee. Yesterday, they went into closed session. They were briefed about the spying and the eavesdropping programs. Is that going to prevent them from confronting him in public today?

KATE MARTIN: I hope not. I think that that was one of the objectives of the administration, was to try to box in the program’s critics and say, "Now, you can’t talk about it publicly." You know, they’ve been very successful in trying to intimidate members of Congress about, quote, "revealing classified information." And lots of the members have forgotten that they have an equal constitutional and institutional responsibility vis-a-vis classified information and that there is lots more information about this program that can be discussed publicly without harming any national security interest, without giving away anything that’s sensitive or helpful to al-Qaeda. The things that are being withheld here is what the American people need to know. And I hope that the classified briefings are not used as an excuse to clamp down on debate in the Congress, as opposed to the beginning of opening up some public oversight.

AMY GOODMAN: Kate Martin, we want to thank you very much for being with us, Director of the Center for National Security Studies in Washington, D.C.

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