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Former NSA Head Gen. Hayden Grilled by Journalists on NSA Eavesdropping on U.S. Citizens

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We turn to a rare news conference held by General Michael Hayden, deputy director of National Intelligence and former national director of the National Security Agency, who spoke to reporters Monday in Washington D.C. at the National Press Club. The conference was part of a public relations offensive by the Bush administration to defend the NSA’s eavesdropping on U.S. citizens without court warrants. [includes rush transcript]

In a separate speech later in the day, Bush repeated his argument that he had the legal and constitutional authority to authorize the program without congressional approval. Meanwhile, Attorney General Alberto Gonzales is scheduled to discuss the legal justification for the program today. And on Wednesday, Bush will pay a rare visit to NSA headquarters at Fort Meade in Maryland. We turn now to excerpts of General Hayden’s National Press Club news conference, beginning with Hayden being questioned by a reporter.

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

AMY GOODMAN: We return now to the rare news conference held by General Michael Hayden, the Deputy Director of National Intelligence and former head of the N.S.A., speaking to reporters and others on Monday in Washington, D.C., as part of a public relations offensive by the Bush administration to defend the N.S.A.’s eavesdropping on American citizens without court warrant.

In a separate speech later in the day, President Bush repeated his argument. He had the legal and constitutional authority to authorize the program without congressional approval. Meanwhile, Attorney General Alberto Gonzales is scheduled to discuss the legal justification for the program today. And on Wednesday, President Bush will pay a rare visit to N.S.A. headquarters at Fort Meade in Maryland. But it was General Hayden who launched the media offensive Monday morning. These are the excerpts of the news conference, beginning with Hayden being questioned by a reporter.

REPORTER: General Hayden, the FISA law says that the N.S.A. can do intercepts, as long as you go to the court within 72 hours to get a warrant. I understood you to say that you are aggressively using FISA, but selectively doing so. Why are you not able to go to FISA, as the law requires, in all cases? And if the law is outdated, why haven’t you asked Congress to update it?

GEN. MICHAEL HAYDEN: 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 — two paths in front of me, both of them lawful: one, FISA; one, 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. I think I got — I think I’ve covered all the ones you raised.

REPORTER: Quick follow-up. Are you saying the sheer volume of warrant-less eavesdropping has made FISA inoperative?

GEN. MICHAEL HAYDEN: No. I’m saying that the characteristics we need to do what this program is designed to do, to detect and prevent, okay, make FISA a less useful tool. It’s a wonderful tool, it’s a wonderful thing for the nation, in terms of fighting the war on terror, but in this particular challenge, this particular aspect, detect and prevent attacks, what we’re doing now is operationally more relevant, operationally more effective.

SAM HUSSEINI: Sam Husseini from IPA Media. You just now spoke of, quote, “two paths.” But, of course, the FISA statute itself says that it will be the exclusive means by which electronics surveillance may be pursued. Are you not, therefore, violating the law?

GEN. MICHAEL HAYDEN: That’s probably a question I should deflect to the Department of Justice. But as I said in my comments, I have an order whose lawfulness has been attested to by the Attorney General, an order whose lawfulness has been attested to by N.S.A. lawyers who do this for a living. No, we’re not violating the law.

SAM HUSSEINI: You cited before the congressional powers of the President. Are you asserting inherent so-called constitutional powers that a — to use a term that came up in the Alito hearings — a unitary executive has to violate the law when he deems fit?

GEN. MICHAEL HAYDEN: I’m not asserting anything. I’m asserting that N.S.A. is doing its job.

MINISTER: General, first, thank you for your comments, and I think you somewhat answered this in your response. And this goes to the culture and just to the average American. 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.

And I realize the challenge we have. I mentioned earlier, the existential issue that N.S.A. has, well before this program, that it’s got to be powerful if it’s going protect us. And it’s also got be secretive if it’s going to protect us. And that creates a tremendous dilemma. I understand that. I’m disappointed, I guess, that — that perhaps the default response for some is to assume the worst.

I’m trying to communicate to you that the people who are doing this, okay, go shopping in Glen Bernie, and their kids play soccer in Laurel, and they know the law. They know American privacy better than the average American, and they’re dedicated to it. So I — I guess the message that I’d ask you to take back to your communities is the same one I take back to mine: This is focused. It’s targeted. It’s very carefully done. You shouldn’t worry.

MINISTER: Just know, General, that the faith communities will take that back, but the faith communities are scared. Where does this stop?

JUSTINE REDMAN: Justine Redman with CNN. How was the national security harmed by The New York Times reporting on this program? Don’t the bad guys already assume that they’re being monitored anyway, and shouldn’t Americans bear in mind that they might be at any time?

GEN. MICHAEL HAYDEN: You know, we’ve had this question asked several times. Public discussion of how we determine al-Qaeda intentions — I just — I can’t see how that can do anything but harm the security of the nation. And I know people say, 'Well, they know they're being monitored.’ Well, you know, they don’t always act like they know they’re being monitored. But if you want to shove it in their face constantly, it’s bound to have an impact. And so, to — I understand, as the reverend’s question just raised, there are issues here that the American people are deeply concerned with. But constant revelations and speculation and connecting the dots in ways that I find unimaginable and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks.

TRAVIS MORALES: My name is Travis Morales, and we’ve read numerous reports in the Times and other papers about massive spying by the N.S.A. on millions of people, along with reports on rendition, torture, etc., and I attended Congressman Conyers’s hearings on Friday, where a gentleman came from South Florida talking about how military intelligence went and infiltrated his Quaker peace group, and that this — they later saw the documents detailing that.

And my question — I guess I have two questions for you. One is, as a participant in a group called the World Can’t Wait: Drive Out the Bush Regime, which is organizing for people to drown out Bush’s lies during the State of the Union, and there’s a gathering on February 4 demanding that Bush step down, my question is this: Are you or the N.S.A. — when I say you, I mean the N.S.A. in its entirety — is it intercepting our email communications, listening to our telephone conversations, etc.? Because, as Bush has said, you’re either against us or you’re with us, and they have asserted that whatever the President wants to do in time of war, whether it’s holding people without charges or writing memos justifying torture, they can do that.

My second question is this, related to that. I publicly challenge you and the N.S.A. to an open debate, a public open debate, that people can gather and listen to your responses, a debate on this warrant-less wiretapping and spying on millions of people that have gone on across this country, because as the reverend said, millions and millions of people are outraged. That is why people are talking impeachment. That is why people are demanding that Bush step down, because of this massive spying, the torture, the rendition, and everything else. So I challenge you to a public and open debate on these questions.

GEN. MICHAEL HAYDEN: What was the question?

TRAVIS MORALES: Will you openly and publicly debate us, myself, in a forum that’s open to the public, not restricted, on the N.S.A. spying scandal and defend what has been said and respond to the numerous reports about the N.S.A. spying on millions of people? That is one question. The second question is: Are you spying on or intercepting our communications, e-mails and telephone conversations, of those of us who are organizing the World Can’t Wait to Drive Out the Bush Regime?

GEN. MICHAEL HAYDEN: You know, I tried to make this as clear as I could in my prepared remarks. I said this isn’t a drift net. I said we’re not out there sucking up comms and then using some of these magically alleged key word searches. 'Did he say jihad? Let's get —-’ That is not -— do you know how much time Americans spend on the phone in international calls alone? Okay? In 2003, our citizenry was on the phone in international calls alone for 200 billion minutes. 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.

The other request about a public debate, as I mentioned at the beginning of my prepared remarks, this is a somewhat uncomfortable position for someone in my profession to be in, laying out details of the program. One way of describing what you have invited me to would be why don’t you come out and tell the world how you’re catching al-Qaeda? And I can’t do that. That would be professionally irresponsible.

JAMES ROSEN: Excuse me, James Rosen, McClatchy Newspapers. General, you said that if this program had been in place before 9/11, you’re pretty confident that you would have detected at least some of the hijackers’ presence in the United States and maybe stopped the attack. If that’s the case, why is this limited to communications where one person is overseas? Isn’t it more urgent, even more urgent, if you’ve got communications within the United States between two people who might have al-Qaeda links, and why aren’t you pursuing that? And a second sort of linked question is, on the 72 hours, if what you said is true, if I understood it, then I and I think a lot of the other reporters have been misreporting this.


JAMES ROSEN: Can you explain on the 72 hours and the lack of the free press? Because you said it’s not true, but you didn’t explain why it’s not true.

GEN. MICHAEL HAYDEN: I’m sorry. To be very clear, we throw the language out, and we all maybe lose precision as we do it. N.S.A. just can’t go up on a number for 72 hours while it finishes out the paperwork. The Attorney General is the only one who can authorize what’s called an emergency FISA. That’s what we’re talking about there, alright? So it’s not — my point was, that’s not something that N.S.A., under the FISA Act, can do on its own. And the first question was, I’m sorry?

JAMES ROSEN: Just a quick follow-up on that. I mean, can it be as quick as you call the Attorney General or the N.S.A. director calls the Attorney General, says, “We’ve got to go up now.” And he says, “Okay. Fill out the paperwork”?

GEN. MICHAEL HAYDEN: The standard the Attorney General must have is that he has sufficient evidence in front of him that he believes he can substantiate that in front of the FISA court.

JAMES ROSEN: Why isn’t it even more urgent to monitor communications of two al-Qaeda folks within the United States?

GEN. MICHAEL HAYDEN: Okay, primarily because N.S.A. is a foreign intelligence agency, alright? And this is about — what we’ve talked about here today is about foreign intelligence. It’s also about, as I tried to suggest in my comments, a balancing between security and liberty. And one of the decisions that have been made collectively, and certainly I personally support it, it’s that one way we have balanced this is that we are talking about international communications, so it not only plays to the strength of N.S.A., it’s an attempt to balance these consistent continuing legitimate questions of security and liberty. If we were to be drilled down on a specific individual to the degree that the judgment was we need all comms, we need domestic to domestic, that’s the route we go through the FISA court in order to do that.

JAMES ROSEN: Okay. Thank you.

JOHN DIAMOND: General, John Diamond, USA Today. There are many things, it seems to me, that presidents can assert they can do without congressional approval. Nevertheless, they seek congressional approval. There are presidents who have consistently argued that the War Powers Act does not apply, that they have the power to send troops into action, etc. And yet, it’s felt that for the sense of national unity, the correct thing to do is to go to Congress and get approval.

You laid out an argument today, the urgency of the situation, the reasonableness, the numerous lawyers who have approved it, this would suggest strongly that had it been presented to Congress, Congress would have approved it, would have agreed with the reasonableness of it. And there’s a suggestion that by not going to Congress, except to merely inform a very limited number of members, the unspoken message was: We don’t feel we could have gotten the approval. The other potential message is that the secret would have leaked out, which seems to be a disturbing message, if that’s what you’re saying, that the committees, the oversight committees, the intelligence oversight committees can’t keep a secret. Sorry for the longwinded —

GEN. MICHAEL HAYDEN: Well, let me take a run, though. 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 restrictive 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 had been doing.

EVELYN CALDWELL: Evelyn Caldwell with Pacifica Radio. You said that you used your top counsel in the planning process to tell you if this was legal and appropriate back in 2001. What exactly did your counsel tell you, that it was within guidelines and within the law, constitutional law?

GEN. MICHAEL HAYDEN: Yeah, and it was in a group answer. And all three came back, saying that they believe this was lawful, that it was a lawful order that had been authorized by the President that was within his authorities to authorize this activity.

JAMES BAMFORD: Jim Bamford. Good seeing you here in the Press Club, General. It would be good to see more of you here. Just to clarify sort of what’s been said, from what I’ve heard you say here today in an earlier press conference, the change from going around the FISA law was to — one of them was to lower the standard from what they called for, which is basically probable cause to reasonable basis, and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at N.S.A. Is that what we’re talking about here, just for clarification?

GEN. MICHAEL HAYDEN: Yeah. You got most of it right. The people who make the judgment — and the one you just referred to, there are only a handful of people at N.S.A. who can make that decision. They’re all senior executives. They are all counterterrorism and al-Qaeda experts. So even though I — you’re actually quoting me back, Jim, saying shift supervisor — to be more precise in what you just described, the person who makes that decision, very small handful, senior executives, so in military terms, a senior colonel or general officer equivalent, and in professional terms, people who know more about this than anyone else.

JAMES BAMFORD: Well, no. That wasn’t the real question. The question I was asking, though, was since you lowered the standard, doesn’t that decrease the protections of the U.S. citizens. And number two, if you could give us some idea of the genesis of this, did you come up with the idea? Did somebody in the White House come up with the idea? Where did the idea originate from?

GEN. MICHAEL HAYDEN: Let me just take the first one, Jim, and I’m not going to talk about the process by which the President arrived at his decision. I think you have accurately described the criteria under which this operates. And I think I at least tried to accurately describe changed circumstance, threat to the nation, and why this approach, limited, focused, has been effective.

JONATHAN LANDAY: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue. And that has to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures.

GEN. MICHAEL HAYDEN: Actually, the Fourth Amendment actually protects all of us against unreasonable search and seizure. That’s what it says.

JONATHAN LANDAY: But the measure is probable cause, I believe.

GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.

JONATHAN LANDAY: But does it not say probable —


JONATHAN LANDAY: The court standard, the legal standard —

GEN. MICHAEL HAYDEN: The amendment says unreasonable search and seizure.

JONATHAN LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “We reasonably believe.” You have to go to the FISA court or the Attorney General has to go to the FISA court and say, “We have probable cause.” And so what many people believe, and I would like you to respond to this, is that what you have actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of “probable cause,” because the FISA court will not give you a warrant based on reasonable belief. You have to show a probable cause. Can you respond to that, please?

GEN. MICHAEL HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order, alright? The Attorney General has averred to the lawfulness of the order. Just to be very clear, okay — and believe me, if there’s any amendment to the Constitution that employees at the National Security Agency is familiar with, it’s the fourth, alright? And it is a reasonableness standard in the Fourth Amendment. So, what you’ve raised to me — and I’m not a lawyer and don’t want to become one — but what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is reasonable. And we believe — I am convinced that we’re lawful because what it is we’re doing is reasonable.

AMY GOODMAN: The Deputy Director of National Intelligence, former head of the National Security Agency, Michael Hayden, being questioned yesterday at the National Press Club. That last reporter, after Jim Bamford asked his question, was Jonathan Landay of Knight Ridder, editor and publisher pointing out, well, this is the Fourth Amendment: the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. We are going wrap up with Jim Bamford, live in our Washington studio. Your response to this questioning, Jim Bamford?

JAMES BAMFORD: Well, Amy, that is really the key issue here, because what seems to be happening is that the Bush administration, the Attorney General, General Hayden have all taken it upon themselves to violate the law. The law that was set up by Congress called for a probable cause — issuing of a probable cause and taking that to the FISA court. And what they’ve done is say, 'We don't believe in that. We want to lower the standard — which encompasses far greater numbers of people — lower the standard to reasonable belief.’ And because they couldn’t go into a court and argue, 'We just have a reason to believe this is taking place,' the court would say, 'Well, that's not good enough; we want you to have a probable cause’ — they decided simply to violate the law. And that, I think, is something that has to be decided in the court or by a special prosecutor.

AMY GOODMAN: Jim Bamford, we just have 30 seconds. President Bush is going to the N.S.A. as part of his P.R. campaign this week, pushing his spying program. How rare is this to go to this top secret agency?

JAMES BAMFORD: Usually, a president once during his term will go to the N.S.A. President Bush went there a couple of years ago, I think, actually around 2002, right around the same time he decided to issue his very secret order. So this will be the second time. But this time it’s being done for public relations reasons. I think this is one of the other tragedies, is the fact that the director of the National Security Agency, for the very first time, is being used sort of as a political ploy in the administration’s public relations machine this week.

AMY GOODMAN: Jim Bamford, thanks so much for being with us. James Bamford is, well, suing the government over potentially possibly spying on him, an author of several books on the National Security Agency. This poll, pointed out by Editor and Publisher, a new Gallup poll released Monday showed 51% of Americans said the administration is wrong to intercept conversations involving a party inside the U.S. without a warrant. In response to another question, 58% said they support the appointment of a special prosecutor to investigate the spy program.

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