Ex-NSA Head Hayden: Surveillance Balances Security, Privacy

Correction: We incorrectly say it has been 13 years since the Sept. 11, 2001, attacks.

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This is WEEKEND EDITION from NPR News. I'm Rachel Martin.

It was a rough political week for President Obama after a string of revelations about sweeping government surveillance of American telephone records, email and Internet activity. And more fallout may come this week after further revelations in the Guardian newspaper about yet another tool that the NSA uses. It's called the Boundless Informant program and it shows that the NSA collected some 97 billion pieces of intelligence from computer networks around the world just in March of this year alone. Last night, the president's top intelligence advisor, James Clapper, criticized the latest media reports, saying they have mischaracterized the government's data collection programs.

We are joined in the studio now by General Michael Hayden. He served as the director of the National Security Agency. He was also the director of the CIA. Thank you so much for coming in, General.

GENERAL MICHAEL HAYDEN: Yeah, thank you, Rachel.

MARTIN: President Obama and his director of national intelligence, James Clapper, have both insisted that the U.S. government is not spying on Americans.

HAYDEN: Right.

MARTIN: That it is not data-mining information from Americans.

HAYDEN: Right.

MARTIN: So, if that is the case, what is it doing? What is the purpose of this program?

HAYDEN: (Laughing) OK, so the first thing we need to keep in mind is that there are two programs here and they're getting conflated in the public coverage of what NSA is doing. So let's start with the first one.

The first one was revealed through revealing the FISA court order to Verizon. That's about metadata and it's about telephones. It's fact of call. And what happens there has been made now very clear by Director Clapper that the United States government - the National Security Agency - is acquiring as business records, not collecting on a wire anywhere, but acquiring as business records the metadata of foreign and domestic phone calls here in the United States. And that constitutes billions of events per day.

MARTIN: And this is a program that you worked on at the NSA.

HAYDEN: It is a successor to the activities we began after 9/11 on President Bush's authority, later became known as the Terrorist Surveillance Program.

So, NSA gets these records and puts them away, puts them in files. They are not touched. So, fears or accusations that the NSA then data mines or trolls through these records, they're just simply not true.

MARTIN: Why would you be collecting this information if you didn't want to use it?

HAYDEN: Well, that's - no, we're going to use it. But we're not going to use it in the way that some people fear. You put these records, you store them, you have them. It's kind of like, I've got the haystack now. And now let's try to find the needle. And you find the needle by asking that data a question. I'm sorry to put it that way, but that's fundamentally what happens. All right. You don't troll through the data looking for patterns or anything like that. The data is set aside. And now I go into that data with a question that - a question that is based on articulable, arguable, predicate to a terrorist nexus. Sorry, long sentence.

MARTIN: You have to have just cause first.

HAYDEN: I have to have a probability as to why I'm going in there. Let me just give you a very practical and very common example. We roll up an al-Qaida cell somewhere. Let's just say Yemen. We grab a cell phone. We note through the pocket litter that the owner of that cell phone is involved in terrorist activity. We didn't know about that cell phone before. We didn't have that number. It is quite a legitimate activity then to simply - I'm being a little flip about this - walk up to the barrier of that grand database I just described for you and simply yell across the transom: Have any of you guys ever talked to this phone number?

Now, you're not touching - by the way, what happens to all the other records in that database? Absolutely nothing. You've got to have this nexus to terrorism to ask the question.

MARTIN: May I back up? Do you have to have approval...


MARTIN: ...from the FISA court...


MARTIN: ...which is the intelligence surveillance court established in order to go in and ask that question.

HAYDEN: You have had a generalized approval, and so you've got to justify the overall approach to the judge. But you do not have to go to the judge, saying, hey, I got this number now. I'll go ahead and get a FISA request written up for you. No, you don't have to do that.

MARTIN: How does the Internet surveillance program differ?

HAYDEN: OK. Separately now, go to the second program, which some people are calling PRISM, all right? Now, PRISM is about Internet data, not telephony. And it's all about foreigners. All right? Now, so, if I've got a bad person in Waziristan talking to a bad person in Yemen via a chat room that is hosted by an American Internet service provider, the only thing American about that conversation is the fact that it's happening on a server on the West Coast of the United States.

MARTIN: It's my understanding, though, that analysts who are making these determinations only have to be 51 percent sure that this person is a foreigner. That seems mushy.

HAYDEN: Yeah, well, actually, in some ways, you know, that's actually the literal definition of probable, in probable cause. And I understand. It makes Americans nervous. Fifty-one percent; you're going to get some of these wrong. But, Rachel, the way this works is you get to do the first step, based on a belief that this is probably a foreign conversation. All right? But as you go through it, you are under a constant requirement to try to shred out whether you're still sure it's foreign or American. And if it's American, you're done.

MARTIN: The NSA has been transformed by new technology, obviously, we've been talking about it, that allows for the highly automated instantaneous analysis of all of this information. Is it possible that the technology has gotten out ahead of the laws?

HAYDEN: Oh, that's always the challenge. And in fact, in fact, what we saw after 9/11, in the special authorization I got from President Bush under his Article 2 authority as commander in chief to do the Terrorist Surveillance Program, is a classic case of technology outstripping the law. I mean, the law, in this case is the FISA Act, the Foreign Intelligence Surveillance Act. It was passed in 1978. By 2001, OK, the effect of the FISA Act was inconsistent with the intent of the FISA Act. And the different effect was created by the change in technology.

MARTIN: So, what do you do at this point? I mean, is this something that now needs to be reined in?

HAYDEN: No. No, no. Look, look. The law was changed in 2008 to reflect the change in technology. Now, what I was...

MARTIN: You think it's sufficient?

HAYDEN: Well, right now I think it's sufficient. What I was doing under the president's Article 2 authority has been made more sustainable by actually having Congress join in and actually change the law, so that you've got both political branches agreeing this is a good idea. This is an accurate reflection of balancing our security and our privacy.

MARTIN: It has been 13 years since the terrorist attacks of 9/11. We heard the president a couple of weeks ago say that he thinks that laws need to be recalibrated, that the original law, the authorization for the use of military force that legalized the war against al-Qaida perhaps needs to be looked at again. He did not mention the Patriot Act. Do you think that enough time has passed, that the war has changed enough, that that law needs to be retooled? [POST-BROADCAST CORRECTION: It has been over 11 years since the Sept. 11, 2001 attacks.]

HAYDEN: Isn't it interesting? To the degree the war is changing, it's moving in the direction of these two programs we just talked about, particularly the metadata program. I mean, we are a bit less worried about this massive, slow-moving, complex al-Qaida attack designed to create mass casualties, and we're more now worried about the one-off lone wolf, like Nazibullah Zazi or Faiza Shizad or Major Hasan.

So, in actuality, although we're safer, the tactics of our adversaries are actually moving more in the direction where we more need programs like the one we've talked about.

MARTIN: General Michael Hayden. He served as both the head of the CIA and the director of the National Security Agency. He joined us here in our studio in Washington. General Hayden, thanks so much for taking the time.

HAYDEN: Thank you. Transcript provided by NPR, Copyright NPR.

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