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Exclusive: Former NSA Director speaks about US domestic phone spying

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By Simon Davies

Earlier this year I interviewed former CIA and National Security Agency Director, General Michael Hayden, for an upcoming radio series that the Privacy Surgeon will soon be launching.

Part of this interview addressed domestic surveillance and the expansion of the NSA’s powers. Given the current controversy over the Agency’s access to US phone data I thought it might be useful to release the relevant part of the interview transcript. I doubt there’s anything new here, but the commentary might be interesting from a historical perspective.

What I regret… in retrospect – is not briefing more members of congress.

The series will be launched in July in audio podcast format. The Hayden interview was conducted on 7th February 2013 at the 14th annual Privacy & Security conference, Victoria, British Columbia.

Simon – Now look at the wiretap scandal, it’s been a number of years – have you got any reflections now on the events of that period?
Hayden – Are we talking about the terrorist surveillance programme?
Simon – Yes.
Hayden – No. What I did was effective, it was lawful, it was appropriate.  Again, if I had it to do over again, I’d have reached a far larger number of people on the intelligence committees.
Simon – I was going to say, did you regret the way that it was done?
Hayden – What I regret… in retrospect – is not briefing more members of congress.
Simon – And you’re happy that the spirit of…

The changes made to the FISA act in 2008 were far more dramatic, far more far-reaching than anything President Bush authorised me to do under his article 2 commander-in-chief authority.


Hayden – By the way, let me fast forward here, for the benefit of your listeners. You know, we reformed the FISA act. Let me give background here. What we did was never challenged with regard to its constitutionality – what we did was challenged because of some people claiming it was inconsistent with the FISA act with statute, not with the constitution. The FISA act, the one we’re alleged to have walked all over, was amended in 2008 and the changes made to the FISA act in 2008 were far more dramatic, far more far-reaching than anything President Bush authorised me to do under his article 2 commander-in-chief authority. So what we had here, Simon, was an adjustment, to American collection based upon a changed threat, and most important of all, changed technology, that the impact of the law, as it was originally crafted was far beyond the intended impact of the crafters. We changed that in statute and in fact, NSA now, on balance – I mean there are some things, plusses and minuses – but on balance NSA has more authority now than I did as director, even with President Bush’s special authorisation.
Simon – Are you concerned about that additional power?
Hayden – No, not especially. As I pointed out today, the NSA is a foreign intelligence organisation, even the programme you described, the terrorist surveillance programme, dubbed as domestic wire-tapping as I pointed out today, All the communications that we were observing –  the content of calls – were international – at least one end of them was outside of the Unite States and before we listened to a call, we already had reason to believe that one or both communicants were affiliated with Al-Qaeda.

All the communications that we were observing – the content of calls – were international


Simon – This is a fishing expedition in its broadest sense though, isn’t it? It’s the ends justify the means. Once you’ve collected data, once you’ve been able to associate data streams, under European law, there are limitations on that level of…
Hayden – You be careful here, when it comes to intercepting calls – let’s use that as an example – this was not a dragnet where we just sucked it all in and then let’s sort our way through it. Let me repeat what I said – when we intercepted a communication – let’s use call, that’s easier for me to explain – when we intercepted the content of a call, we already had reason to believe that one or both communicants intended us ill, so this is not, don’t think of this as a driftnet, and we’ll separate the fish from the dolphins later.
Simon – If it’s not a dragnet, if it’s not a mass fishing expedition of the entire telecommunications spectrum, then surely you have access to raw data that allows you that reasonable suspicion, so you can target your surveillance?
Hayden – Again, the full story of the terrorist surveillance programme has never been told. What’s been portrayed in the press is on a good day, incomplete.