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Former NSA Director attacks agency accountability and espionage by China

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By Simon Davies

Earlier this month in the wake of revelations about the activities of the NSA I published a short, partial transcript of my interview earlier this year with former NSA and CIA Director, General Michael Hayden. This was a teaser to the launch of the new “Privacy Channel” series of audio interviews that will be launched next month on Privacy Surgeon. This series also includes interviews with such people as Professor Noam Chomsky and former UK Home Secretary David Blunkett.

General Michael Hayden

General Michael Hayden

In light of the escalation of developments – and in response to requests from readers – I’m now publishing the full transcript. Media or other interested parties can request the audio interview by using the contact form on this site, or they can contact General Hayden directly for verification. Please keep in mind that the nature of this series is conversational rather than contentious.

The thirty-minute conversation ranged widely across a spectrum of issues from the NSA’s operational conditions, its legal position, its relationship with global partners and its role in economic espionage.

In the interview General Hayden stressed that China is “the poster child” of economic espionage and that he believed Chinese security authorities routinely target US systems for the benefit of Chinese industry. He denied any involvement by his agency in economic espionage for the benefit of US industry.

Hayden also expressed regret for not pushing back harder on White House demands for diminished transparency and accountability for the NSA, and argued that the current oversight regime is deficient.

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Transcript of audio interview with General Michael Hayden (Full version)

Interviewer: Simon Davies, PrivacySurgeon.org

7th February 2013 at the 14th annual Privacy & Security conference, Victoria, British Columbia.

 

Davies – My guest in conversation today is General Michael Hayden, former principal deputy of US National Intelligence, former head of the Central Intelligence Agency and the National Security Agency. He’s now retired as 4 star general but very much active in spreading the message in so many issues that concerned him at crucial periods of global security. General Hayden, thank you.

Hayden – Thank you.

Davies – An open ball question for you. You’ve said that security is to governments, what privacy is to individuals. Could you explain a little more?

governments cannot opt for what an individual can opt for – to be totally pacifist. That’s actually a noble choice for an individual. It’s an ignoble choice for a government

HaydenSecrecy is to government what privacy is to individuals. I realise if you take any analogy too far it breaks down, but what I’m trying to describe here is that as individuals have a right to protect certain information for their welfare, governments also have a right to protect information for the general welfare and that in both cases, that can be abused, – that can be misused. Criminals hide information and autocratic governments use their secrecy to take rights away from their citizens.

Davies – But don’t the same rules apply to scrutinising how information is used by governments as people do in their social circles?

Hayden – Well individuals have individual consciences, they judge their own behaviour, but there are broadly accepted norms. Inside government, the accountability is more difficult, it’s more diffuse, it’s sometimes more deflected and that’s the challenge of free people. We need to have empowered governments, there are dangers in the world – governments cannot opt for what an individual can opt for – to be totally pacifist. That’s actually a noble choice for an individual. It’s an ignoble choice for a government that has the responsibility to protect its citizens. So it’s got to deal with the balance between privacy, secrecy and security.

Davies – I’m curious about your mandate. Would you say your mandate was exclusively to protect the interests of the United States in the time that you were in office?

Hayden – They were, but perhaps more narrowly defined than some of your listeners might understand that to be. This was about security. This was about protecting the lives, property and the liberties of American citizens. Now you and I have chatted earlier about this alleged system called Echelon, and I can assure you that whatever collection was done by my agency, it wasn’t done for profit, it wasn’t done for commercial interest.

I can assure you that whatever collection was done by my agency, it wasn’t done for profit, it wasn’t done for commercial interest.

Davies – So you’re definitively saying that there was no commercial espionage to the benefit of the United States, and that those stories that we hear are mythology?

Hayden – No – they are. Now let me be very precise. Now some economic transactions have security implications and therefore a bill of laden for pre-cursor chemicals, going to a rogue state – well that’s economic intelligence, but you understand the purpose – it’s not for profit for an American corporation.

Davies – You spoke earlier today at the Victoria Privacy and Security conference about four intersecting circles, which from memory are, legal – what is legally allowable, what is technically possible, what is operationally necessary and what is politically sustainable. I want to just focus for a moment on the operational side. What is the extent of accountability of what is operationally necessary, in let’s say the National Security Agency?

Hayden – In Europe, you go by the broad doctrine of proportionality when your governments try to make these decisions. In the United States, we use the same activity, perhaps with a slightly different label – we sometimes refer to it as “Shock the Conscience” – but there’s a balance to be drawn between what it is you want the government to do operationally. In the American system, rarely do we let 320 million citizens vote thumbs up or thumbs down – it’s done through a congressional oversight, and that would suggest that as cumbersome as the American system is, the presidential system, separation of powers – it actually injects into our oversight system more contention, more tension, and hence, I think more powerful oversight, than a ministerial or a parliamentary system does.

We have a lot of self-filtering, a lot of layers within our executive bureaucracy, before any proposal sees the light of day in the American Courts.

Davies – You would certainly have a problem in Britain with ministerially issued warrants.

Hayden – Yes

Davies – I’ve had conversations with David Blunkett, the former home secretary about this. It also imposes extraordinary pressure on a busy home secretary to have to personally sign off the warrants and it relies on bureaucratic oversight, rather than court oversight.

Hayden – In the American system, the three branches of government are set up in a contentious way, and so whereas a minister might be inclined instinctively to support a security service coming under the minister – in the American system, make your judgements as you will about the FISA court system, it’s a separate branch of government, not beholding at all to the executive branch.

Davies – Do you recall a time when a FISA court has actually turned down an interception application?

Hayden – They are few and far between. And I would tell you that from our point of view – we think that’s because we’re exceptionally careful in what it is we ask the court to do. We have a lot of self-filtering, a lot of layers within our executive bureaucracy, before any proposal sees the light of day in the American Courts.

Davies – This of course is what home secretaries say in the UK – we don’t turn down warrant applications because we go through a hefty process. And of course we have the argument in Europe that perhaps we should be leaning more on an independent court system that specialises in these things.

So now we’ve got the definition of US person more protected than someone who is not a US person

Hayden – And I think your listeners understand the American FISA court – a selection of judges – nine – they rotate through, they’re focused on these issues, and they do indeed build up expertise, over time on these kinds of questions.

Davies – Still keeping to an operational theme here, I mentioned before, that one of the areas I’d like to explore with you is the limit to transparency in National Security. Now let’s take a small aspect of this – your powers as a three letter American agency are distinctly different, when you’re talking about US citizens

Hayden – yes

Davies –  compared to the rest of the world. Now how do you differentiate, operationally – how do you go about determining whether someone is a US citizen? One imagines that you need a database of US citizens that you can refer to. How do you actually make that judgement, unless it’s post-hoc – unless you’re determining afterwards whether you’ve tapped a US citizen?

Hayden – First of all, for clarity of language, we’re required to protect US persons – which is actually a larger category than US citizens. For example, if you and I were having this conversation 50 miles south, in the state of Washington – you would be a US person, so it’s a much broader category than just US citizen. And frankly, it also applies to organisations largely comprised of US persons – so it extends to broader groups as well.

If I’m going to access a certain frequency, I have to have very high confidence that the number of US persons that I would touch  – even access – their signals meets the standard of reasonableness.

Davies – And the courts have defined precisely what US person means?

Hayden – The definition of US person that I’ve just described to you comes under something called USSID 18 – The United States Signals Intelligence Directive number 18, which is approved and promulgated by the Attorney General and which our oversight committees are well studied on. So now we’ve got the definition of US person – you’re absolutely right – more protected than someone who is not a US person – now your question is, how do we filter that out? We’re held to the standard of reasonableness which is in the US 4th amendment to our constitution. American citizens, US persons are protected against unreasonable search and seizure. So if you take the Signals Intelligence process, from access, to collection, to processing, to analysis, to reporting to dissemination – I have a hurdle, in every one of those steps to a standard of reasonableness, I have to filter out the US person in my coverage. So for example, if I’m going to access a certain frequency, let’s just use that as an illustration – I have to have very high confidence that the number of US persons that I would touch  – even access – their signals meets the standard of reasonableness. Now reasonableness depends on the totality of circumstances at the time. Reasonableness on September 10th, might be a little different on September 12th 2001, but I’m held to that standard of reasonableness. Now, let me go one step further. If I develop a new technology, that gives me greater precision at the access point in doing that filtering  I must apply it – because now reasonableness, the level, has just been redefined by technology and you go up the intelligence production process – access, collection, processing and so on, filtering out the US person identity.

Davies – But the reasonableness equation if you like, is something you have to pioneer?

Hayden – We have oversight. We have oversight within the agency, we have oversight from the congress, we have oversight from the Attorney General and we’ve got to win the argument that we’re being reasonable here

If I develop a new technology, that gives me greater precision at the access point in doing that filtering  I must apply it – because now reasonableness, the level, has just been redefined by technology

Davies – OK, and when was the first time that you had to face that test yourself?

Hayden – During the millennial weekend, when everyone was fearful besides Y2K that other threats were going on, the nation was on edge, we looked at several collection options, and had a judge with regard to their reasonableness, in terms of the broader context, and we said no.

Davies – I’m curious about the oversight because in some respects, you do have the right to withhold information, you do have a right to say “There is stuff I know, that you don’t know…”

Hayden – In the congress?

Davies – In the congress.

Hayden – Actually, no. The best the executive branch can do according to statute is to confine information to the gang of 8 – the leadership of the congress and the leadership of the oversight committees.

Davies – But whatever you say to congress is public anyway so you’re limited…

Hayden –  Well one hopes that’s not the case.

Davies – Well, not in camera, it wouldn’t be…

Hayden – In fact most of my testimony, the testimony perhaps most of your listeners are familiar with is me in open session. That’s a small fraction. Most of my testimony was in private session. Closed session.

Davies – Are you happy then, with the current level of oversight and accountability of the agencies – or would you like to see reform?

The congress – I think in an act of unwisdom – has put term limits on members of these committees

Hayden – Oversight is hard – and let me give full credit. I mean, look, as I already described based on our constitutional system – there’s already built it tension when it comes to oversight. I’m a creature of the executive branch and now oversight is being conducted by the legislative branch. So it’s automatically a bit tense, even in the best of circumstances. Let me give full credit to people who agree to serve on the Intelligence oversight committees, because one thing you don’t get by being on the HPSCI or the SSCI as we call them – you don’t get any bridges built in the home district. You don’t get any roads paved. This has got to be a labour of love – and so full credit to those people. Now, with that said, the congress – I think in an act of unwisdom – has put term limits on members of these committees, so – as you know – this is very complex stuff. You can be very open with a committee, a full committee and realise at the end of two hours, they didn’t understand a word of what you said. So I think the term limit problem is actually a serious one. You should let the expertise build up, let these people really become familiar with what they’re overseeing.

Davies – It naturally follows that, because you’ve had such a lengthy -an extraordinary career – there must have been regrets that you’ve had. I wonder for example, you were in control of SIG intelligence at the time of 9/11 – would you behave differently or would you have made decisions differently now, knowing what you know now than you did then?

The administration opted for its most sensitive initiatives after 9/11 to brief only the gang of eight. That’s a mistake. I’d have gone full monty to the full committees.

Hayden – I’ll give you one, with absolute clarity, and it actually ties in with our earlier conversation, Simon. The administration opted for its most sensitive initiatives after 9/11 to brief only the gang of eight – that’s the leaders of the two Cameras and the leaders of the intelligence committees. That’s a mistake. I’d have gone full monty to the full committees.

Davies – But you supported it at the time?

Hayden – Actually, at the time I argued for as much transparency as possible. Did I say, once we’d briefed the gang of eight did I continually tug at the sleeves of the executive branch saying, ‘we’ve gotta tell more people’? No I didn’t, but looking backward on it, because when these things become public – and they always do – the more members of congress who know, the better you are for that one factor that you and I chatted about earlier – the political sustainability.

Davies – As head of the agencies, did you feel a duty of care to the rest of the world? Did you find any conflict in that duty of care to the rest of the world, to the duty of care you had to Americans?

Hayden – I can best answer this question, by describing for you, more in my CIA job, than the NSA job, the relationship we had with what we call liaison services. And we had rich liaison relationships. My wife and I in 30 months, 31 months as director, travelled to over 50 countries, and we were always welcome by the local services, and more than that number came to CIA headquarters. And I’m describing this for you now, Simon – it’s a visual image – but if your listeners can imagine my putting my right hand on top of my left with my fingers superimposed – even among our best friends, that image I’m describing for you doesn’t exist. There are differences even amongst the closest allies. And for some partners, the differences are so stark – and here I’m describing it for your listeners, the thumbnail on one hand is overlaying the thumbnail on the other hand, and that’s your common space. And what you’re required to do, in duty to your own citizens is to work with that partner as well as you can in that common space, knowing – and I’m wiggling my fingers now on my right and left hands – knowing that there’s an awful lot of things that you do not share in common and you are not going to share with this partner 

The CIA brings to a relationship, wealth, power, a global field of view, technological agility.

Davies – James Banford and others describe these relationships as 2nd party, 3rd party, 4th party, or 2nd level, 3rd level – is that real? Do you look at a country such as Italy or Turkey as having a silo which you will trust to “n” extent.

Hayden – Let me not describe 2nd party of 3rd party, let me just go back to relationships and describe why – and again it’s easier for me to talk about CIA because it’s a more recent experience for me – CIA brings to a relationship, wealth, power, a global field of view, technological agility. Another partner – small as you can imagine – brings to that relationship focus, cultural agility, linguistic agility that we cannot replicate. And so you end up building, between services of quite disproportionate size, you end up building very close relationships. Let me tell you what I told our chiefs of station. We’d have a huddle before they’d go out for their assignments and we’d have classes and a couple of months running and so on. And near the end of this seminar, I talked to them all. I said look – two or three things to remember when you’re talking to the partner out there. Number one – if they ever want to talk to me, they can. Number two – when you go into a room and talk to a partner, remember two things. Number one – you’re the only superpower in the room. Number two – they know that; don’t act like it. And there’s truth to that, because even our smallest partners, contribute something we would not otherwise have been able to

We know about changing power relationships on the planet. We simply reflect those, when we go about doing our work.

Davies – What happens now, if you were to sit down with, say China? To what extent do the rules that applied to the time that you were in office, how much have those rules changed now that China has become so much more of an active international…

Hayden – How do you mean rules?

Davies – Well, the rules of engagement, the rules of negotiation, the political rules. At the time, as you say, the US was the superpower that worked with them, that negotiated with all these countries. But how do you interface now with China?

Hayden – Well again, it’s hard for me to talk about anything specifically, so I won’t do that. But clearly, after all, we’re an intelligence agency. We know about changing power relationships on the planet. We simply reflect those, when we go about doing our work.

Davies – Because obviously it would be difficult for you to answer the question, what was your advice to government over the ascendancy of China.

Hayden – Oh no, I can chat a bit about that. Let me tell you what I say to public audiences. The ascendancy of China just is. It’s not good, it’s not bad. It’s a pure intelligence judgement. It’s just happened. That’s one. Number two – China is not an enemy of the United States of America. There are no good reason for China to become an enemy of the United States of America. There are logical, non-heroic policy choices available to Beijing and Washington that keep our relationship competitive – occasionally confrontational – but never has to be conflictual.

There are logical, non-heroic policy choices available to Beijing and Washington that keep our relationship competitive – occasionally confrontational – but never has to be conflictual.

Davies – That’s a very utilitarian argument. We’re saying on one hand that you’re looking to democracy, freedom and rights as being cornerstones of the America that you’re trying to protect. China is a non-democratic nation that suppresses rights. We know this, it’s no great secret. You can’t surely look at China as an economic commodity – a political commodity that you deal with as you would any other. Can you recognise that there is an argument that the ascendancy of China is a threat to the rights of a much large group outside of China, a much larger group of countries, and that it should be treated differently? Do you see any merit in that argument?

Hayden – I’ve heard the argument, but we’re not in the business of retarding another nation state’s natural economic growth. Look I’m in the security business, and we’re here to defend, as I said, American values – as you suggest – American people, American security, American safety. I can picture a world in which a China which is naturally growing in strength, does not have to seriously threaten any of those things that I have just listed. It requires statecraft, it requires all the tools that a nation can bring to bear on the problem, but I am not prepared to say here in the abstract, that the ascendancy of China is an existential or even an inherent threat to the wellbeing of Americans.

Davies – But are you happy with the extent to which there is current pressure being brought to bear to reform China’s attitude to freedoms. Do you think the American government is doing enough?

Hayden – Not in the centre of my lane as an intelligence officer. Let me describe to you my picture of an intelligence officer. We’re the world-as-it-is guys, not the world-as-we’d-like it to be. We’re the fact-based folks, not the vision-based folks and so my role in policy dialogue is to describe to the policy maker, be it the President or somebody else, what are the facts. What does our inductive reasoning, swimming in this sea of data, allow us to say with regard to broad generalisations. Now the policy maker has the other problem. He’s got to take his first principles which is what you were suggesting to me, and he’s got to apply his first principles to this particular situation. He’s heading down the reasoning ladder in a different direction. I don’t envy him that task, but my job’s hard enough.

Other nations in the world – most nations in the world – I think allow their security services to go after information for the benefit of domestic industry. And the poster child for this, made very public by my own government, is the People’s Republic of China.

Davies – See this loops back down, to one of the first things we talked about in this discussion. You’re certain that economic espionage in the traditional sense of the word, didn’t take place, hasn’t taken place, but you’re coming across as a person who is reasoning on the basis of economic partners and the economic strength of the partner – can you define what you mean by economic espionage within the mandate of the NSA and that that’s outside it.

Hayden – As I said before, there are economic matters that have security implications, like I said before, pre-cursor chemicals, dual use equipment, money laundering for drugs. Those are economic matters but they have clear security implications. Other nations in the world – most nations in the world – I think allow their security services to go after information for the benefit of domestic industry. And the poster child for this, made very public by my own government, is the People’s Republic of China. I get it. We have a nation state attacking American corporations in the cyber domain, trying to take intellectual property, trade secrets and negotiating positions for the benefit of the Chinese economy. That’d a bad thing. I oppose that totally. But as an intelligence officer, my suggestion as to what my government should do about it is to make Chinese cyber-behaviour part of the overall Sino American relationship and make it very clear to the Chinese that this pattern if it continues, will affect the health of the overall relationship and they have as much in this relationship as we do.

Davies – 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 program?

Davies – 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.

Davies – 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.

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.

Davies – And you’re happy that the spirit of…

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 authorities. 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.

Davies – 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 program you described, the terrorist surveillance program, 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.

The full story of the terrorist surveillance program has never been told.

Davies – 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.

Davies – 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 program has never been told. What’s been portrayed in the press is on a good day, incomplete.