On Oct. 25, Record Managing Editor Megan Bantle ’14 and Communications Editor Emily Dugdale ’14 interviewed General Michael Hayden in Washington, D.C., with several other college newspaper editors from peer institutions. Hayden was the director of the National Security Agency (NSA) from 1999-2005 and of the Central Intelligence Agency (CIA) from 2006-09. Bantle and Dugdale traveled to D.C. after organizing the trip and interview with alumnus Dennis Helms ’64, whose father, Richard Helms ’35, served as the director of the CIA from 1966-73. The interview with Hayden was an open conversation on the topic of government surveillance.
Hayden opened the conversation, which lasted nearly two hours, with a sweeping look at how questions regarding privacy and security have fit in with American values since the creation of the Constitution. “If you look at our founding documents, it is life, liberty and the pursuit of happiness. It’s not an accident that ‘life’ is listed first,” Hayden remarked, tying this to the importance that security plays in keeping our country safe. “Security is a value,” he continued. “It’s one of the principles around which we have organized government.” Hayden proposed that problems arise when others do not recognize the “tradeoffs” inherent in a society that values both privacy and security. “The best free people can do is to be wise in how these trade-offs are made,” he said.
Hayden continued by highlighting the enormous changes in notions of privacy and security in today’s globalized world. “These old distinctions in what constitutes foreign and what constitutes domestic [don’t matter] so much,” he said. “People entering and leaving the U.S. are not nearly as metered or as limited as they once were.” Using Sept. 11 as an example, Hayden further noted how threats perceived as “foreign” could also have domestic roots, highlighting the importance of increased security as a way to “adjust ourselves to this new reality.”
Hayden then continued with a broad overview of the two major intelligence systems currently in contention: Metadata and PRISM. “Target communications are coexisting with yours,” he said, explaining why the government would need to monitor civilian phone and e-mail records. “They [the phone companies] have got all your phone calls,” Hayden said of Metadata. He explained that the companies know little about the individual calls placed. “They know your phone number, the phone number you called, when you called it and how long the call was. Not your name, not the location, just the fact that you called,” he said. As a justification for these controversial measures, Hayden offered that the program “is an attempt to deal with that reality I described to you before, which is the end of the significance of our borders, that the dangers could come from within the United States.”
“You may have objections, and I understand that,” Hayden remarked when questioned about the concerns of American citizens regarding their personal privacy in relation to Metadata. “But this is what it is, so if you object, object for what it is and not for what someone wants to imagine it to be,” he said, addressing the sometimes inaccurate interpretations that Metadata and similar intelligence technology receive in the media.
Hayden also commented on the second contentious intelligence program, PRISM. The program collects e-mails from targeted sources, but these communications often coincide with the communications of normal American citizens protected under the Fourth Amendment. These e-mails, called “incidental collections,” are not the purpose of the collection, and therefore, private information regarding private identities must be suppressed. If a private individual’s identity is deemed important to the case, “U.S. law actually allows us to report your name … because your name is an intelligence factor,” Hayden said.
“The reality is that [foreign terrorist communications] are in the U.S.,” Hayden said. Hayden even commented that Gmail was the Internet service of choice for terrorists worldwide. “It’s ubiquitous, it’s free, it’s relatively secure, it’s easy to use. Most people send e-mails through American companies, and terrorists do, too.”
Another topic raised was the potential issue of the balkanization of the Internet and how recent concerns and allegations against the NSA programs will speed that process up worldwide. “What’s going on now is that you have the NSA accused for using the ubiquity of the Internet and it’s lack of boundaries, in order to conduct industrial-sized espionage. This reinforces the argument of some people that say we really need to set up [Internet] boundaries here,” Hayden said. “This can’t be as free-ranging as it used to be.”
“We’re a really interesting case,” Hayden remarked about the U.S.’s unique role in Internet security. “We built this thing. We still kind of govern it. But we’re also pursuing policies, cyber security and cyber espionage, that give people who want to balkanize it more tools than they would otherwise have.”
Several students brought up the recent criticism directed at the NSA and the Obama Administration concerning evidence that the U.S. was spying on several administrations, including Mexican President Felipe Calderón, as well as German Prime Minister Angela Merkel and French President François Hollande. “Our Fourth Amendment, which protects you and me, I hasten to emphasize, is not an international treaty. It only applies to [U.S. citizens],” Hayden said. “If you are not protected by the Fourth Amendment and your communications contain information that would help keep Americans more safe, and we have no expectation that we would otherwise acquire that information, game on. Your privacy is not in our job description.”
Hayden additionally outlined that there are some countries that the U.S. would never spy on, and alternatively there are nations “so bad that we don’t need to spy on them.” “There’s a myth that NSA and CIA collect every e-mail and phone call on earth. Is that true? No,” Hayden said.
Hayden often used humor when trying to explain the thought process behind making these security and privacy decisions. In reference to countries such as Germany, who have recently made headlines by publicly denouncing the U.S.’s intelligence operations, Hayden said, “If you think someone is stealing your nation’s high-end presidential communications, do what my dad told me to do when I came home from a fight crying when I was about nine years old. Quit whining, act like a man and defend yourself.” Hayden used his joke to underline the delicate balance between collecting intelligence and angering other countries, especially those who are allies to the U.S. “It’s also true that we have very important political and security relations with all these other countries. Although you may have reasons to do certain activities, you are always running the risk that the discovery of certain activities may put the long-term cooperation on which you depend at risk.”
A student questioned Hayden on the legality of “project upstream.” “The news labeled it ‘project upstream,’ but upstream is just a generic term. Upstream simply means you’re collecting the data while it’s moving, rather than downstream, where you’re collecting the data when it’s stopped, when it’s resting on a server,” Hayden said. “To go ahead and collect data upstream or downstream, to collect data moving or at rest, if you’re doing it abroad, there are no courts. The legal distinction is that you’re doing it under the executive power of the president or you’re doing it under the authority of the court. It’s still legal, it still has the attorney general rules. It’s still reported to Congress, but you’ve got no court.”
The question of legality came up frequently throughout the discussion. One of Hayden’s major points in the second half of the interview was that the public, and at times the media and Congress, misunderstand the issues presented. “We collect the metadata of phone calls. It’s technically not collection,” Hayden said. “We’re just going to the phone companies who keep these records for their own purposes and saying, ‘Xerox a copy for me.’ And the law is quite clear: it’s business records. It’s records gathered by the phone companies for their own purposes, and now under subpoena, we require them to share them with the [NSA]. There are no business records for e-mails. And therefore if you want the data on e-mails, you’ve got to collect it upstream.” Hayden highlighted the fact that this upstream data collection was stopped under the current NSA director, General Keith Alexander.
The interview then shifted to the topic of transparency, as the media and the general public continuously chastise the NSA for its lack thereof. “That will shave points off of operational effectiveness,” Hayden said. “It will make these programs less impactful, but the macro judgment I’m making is that unless we show a fair amount more leg – even knowing it will slice away effectiveness – we could very well end up in a situation where we don’t get to do this at all.”
The controversy around Edward Snowden, who leaked information regarding Metadata and PRISM, was of interest to all the participants. As one of the most vocal voices in the Snowden dilemma earlier this year, Hayden wasted no time in clarifying that it was indeed the U.S. government who gave Snowden the final clearance.
In response to Dugdale asking whether the government was at risk of another leaker like Snowden, Hayden replied, “You bet. The whole story here is the empowerment that the digital age gives to individuals. Snowden was in charge of bringing data in and putting it in a common location so that other people that had need for that data could access it.” This meant that the CIA, NSA and Federal Bureau of Intelligence (FBI) could share information with one another. “What people like me are worried about, is not so much are we going to get another Snowden, but whether reaction to the first Snowden may stop, thwart or stunt this sharing, which has made us as operationally effective as we’ve been,” Hayden said.
Eventually, the interview turned to recent media and public concerns regarding the extent of NSA surveillance and about whom they are gathering information. Hayden stressed that even if every individual decision is defensible, the overall picture of the NSA activity also must be defensible. “We have to be concerned … that each of those shards of glass don’t create a mosaic that is incredibly frightening,” Hayden said. “That may be part of the current issue. It’s certainly part of the current public issue.”
Bantle then asked Hayden about a previous interview in which he had said that it is the public who should be making this judgment; who should be, in his words, “defining where the box is.” She asked how he thought that sufficient knowledge could be disseminated to the people so that they could make this judgment. “It cannot be done through bumper stickers,” Hayden said. “I was able to explain that to you in five or six sentences because we’ve been talking for about 90 minutes. That ain’t gonna happen on Meet the Press with some Congressman yelling at me for reading American e-mails … The truth is complicated, the accusation is simple.”
Hayden talked about the repercussions this might have on Congressional decisions. “This could be really interesting. Let’s say it [legislation to stop metadata collection] passes the House. Let’s say it passes the Senate. Then what happens?” Hayden asked. “This is going to be one of those dramatic moments in American history when a president – who unarguably is governing from the left of center – a president who is run on transparency, a president who ran against the record of his predecessor in many of these programs, will now veto a bill passed, at least in one chamber by his own party, that seems to kind of ’cross the grain. This is going to be one of those big historical moments.”