Artwork by DONKEY HOTEY
EDITOR’S NOTE: This interview originally posted on March 14th, 2016
BY JONATHAN VALANIA The irony of people like me having to, by law, inform General Michael Hayden, former head of the CIA and NSA, that I was recording our phone conversation may have been long ago lost its amusing resonance for the general, but not for me. Given his faintly Bond villain mein — the fleshy Blofeld-ian dome, the piercing blue-eyed X-ray stare, the indomitable ramrod straight, four-star posture during appearances on cable news and at congressional hearings — and status as the architect of the omnivorous all-seeing/all-hearing God-eye of the post-9/11 American surveillance state, it’s not entirely surprising that General Hayden came to be seen as the dark Lord of the NSA Sith by the Snowdenistas, not to mention many in the nat-sec wing of the Fourth Estate.
However, it is an image that is at odds with the sunny disposition and candor of the man I spoke with on the phone last week. That goes double for the author of Playing To The Edge: American Intelligence In The Age Of Terror, Hayden’s just-published folksy-toned memoir detailing his tenure as the keeper of America’s deepest and darkest secrets and absolving himself of any violence that may or may not have been done to the fourth amendment of the U.S. Constitution in the wake 9/11. The takeaway? I’m not evil, I’m just drawn that way by the Edward Snowdens and Glenn Greenwalds of the world. In his defense, Playing To The Edge offers plausible, albeit self-serving, explanations for the necessity of his means and methods for data mining the darkest recesses of the of 21st Century digital communications matrix as well as the darkest recesses of the souls of the terror suspects he had rendered to secret prisons for so-called “enhanced interrogations” during his tenure as director of the NSA from 1999 to 2005 and director of the CIA from 2006 to 2009.
Although Osama bin Laden enjoyed Public Enemy Of The State Number One status for the decade spanning the fall of the Twin Towers and his assassination by Seal Team 6 in 2011, it was Edward Snowden who proved to be Hayden’s greatest, albeit ex post facto, nemesis — or more accurately Hayden’s legacy’s greatest nemesis. And his thinly-veiled rage at and contempt for Snowden in the wake of the former Booz-Allen contractor’s game-changing 2013 data dump of the NSA’s crown jewels into the hands of journalists was both palpable and constant on cable news ever since. But lately, in conversation as well as a surprising number of passages of the book, one senses that Hayden’s thinking about the balance between privacy and security has “evolved,” as they like to say inside the Beltway, in the intervening years. While he still condemns Snowden’s actions as destructive and treasonous, he now concedes that Snowden was a harbinger of the citizenry’s long pent-up demand for greater transparency and accountability in surveillance matters and a re-calibration of the balance between public safety and individual privacy. It is a conversation that is both necessary and a long time coming, he says, but we could have had it without blasting a huge hole in the side of the secrets factory. His detractors counter that if you believe that they have some Pentagon Papers to sell you. It will be years before history renders a final verdict, in the mean time, enter this Q&A with General Hayden, who will discuss his new book tonight at the Free Library, into the public record. DISCUSSED: Benjamin Franklin, Edward Snowden, essential liberty, temporary security, the exact parameters of PRISM and Stellar Wind, transparency vs. translucency, Apple vs the FBI, Glenn Greenwald, Laura Poitras, Nixon, Trump, GCHQ. Dmitry Medvedev, James Clapper, Michael Chertoff, the Chertoff Group, Eisenhower, the military industrial complex, and the darkness looming on the event horizon.
PHAWKER: Benjamin Franklin famously said that, “Those who would give up essential liberty, to purchase a little temporary security, deserve neither liberty nor safety.” True or false?
GENERAL HAYDEN: True, but Franklin is very careful with his language. Essential liberties for temporary safeties. I think he implicitly understood that these are tough questions that have to be decided. My view is that they are decided based on the totality of circumstances in which you find yourselves. We are balancing things that are virtues — privacy on the one hand and security on the other. Liberty on one and safety on the other. Over time, where that line is, we have to make adjustments for. I’ve said at a conference in British Columbia that, privacy is the line that we continuously negotiate for ourselves as unique creatures of God and ourselves as social animals, with social community responsibilities. It’s not surprising that it’s hard. Some things are easy because they are always wrong and some things are easy because they are always right, most things are in between.
PHAWKER: There is a lot of confusion at the moment as to what exactly the NSA is or isn’t doing. I think a lot of Americans are under the impression that the NSA is Hoovering up all of the digital data that’s flowing across America in the course of the day – phone calls, web traffic, emails, etc. Could I ask you to clarify, without violating classified information, what exactly the current parameters of the Stellar Wind and the PRISM programs as they apply to the United States?
GENERAL HAYDEN: Sure, NSA does not have the authority to target what we call protected communications. That would be the communications of US citizens anywhere in the world along with people inside the United States. The only way they can be targeted is through a court order after determining that the target is the agent of a foreign power. Now, that gets hard to explain because there’s the whole taxonomy of words like ‘inadvertent collection’ or ‘incidental collection.’ So there’s no denying that communications to or from Americans gets swept up by NSA, but they are not targeted. If NSA is ever given the chance to explain how it does each of those processes, I think that most reasonable people would say that, “Well I get it. That’s about the only way you can do your vision.” And so, frankly, as far as I’m concerned, within some operational limits, the more transparency, the better, because I’m pretty comfortable that most Americans would agree what we’re doing is fine.
PHAWKER: That brings me my next question, you make a distinction in the book between transparency and translucency as it applies to what you’ve just detailed. Can you clarify that for the sake of our readers?
GENERAL HAYDEN: Yeah, I use the word “transparency” because it’s a facile word and it rolls off of the tongue. But I said that at Aspen a year ago and a good friend, Mike Leiter, who used to run the National Counterterrorism Center, corrected me and said, “Mike, I get your point, but what you really mean is translucency, not transparency. If something is transparent, you are able to learn the intimate details.” Mike Leiter’s point was translucency allows you to see the broad shapes and the broad movements. You see enough to be comfortable with what is going on, but you don’t reveal so much that your adversaries also learn what you are doing. It isn’t worth doing anymore if they know it. I think it’s actually a very useful word in describing where we need to be when it comes to these kind of things.
PHAWKER: I wanted to ask about where you come down on the FBI vs. Apple debate.
GENERAL HAYDEN: I come down on the side of Apple, which may or may not surprise you.
PHAWKER: Yes, it does.
GENERAL HAYDEN: Okay, well let me parse it out. It raises constitutional questions. I am not a constitutional scholar, but I have a view on it. I think the government has the power to do it, but I’m not a constitutional scholar. I’ll put that aside. It really doesn’t raise privacy concerns, because it wasn’t his phone and he’s dead. And so, you’re not talking about privacy in that particular instant. I come down on the side of Apple looking at this solely through a security lens. I actually think conceding what the FBI wants Apple to concede will actually make America, overall, a less secure place. Jim Clapper, who’s been the DNI (Director of National Intelligence) for last two or three years, has said that the most dangerous threat facing America is cyber – cyber theft, cyber destruction, and so on. Why would we want to impose on a massive American corporation, who’s actually pretty good at cyber security, something that that corporation, and almost all technologist agree, would make their system less secure than it otherwise would be, even if by doing that we might learn some specific pieces of information over here that are useful for fighting crime or terrorism. So on security grounds, it’s a close but I think a clear call. I think Apple’s right.
PHAWKER: You’ve stated elsewhere that you are all for end-to-end encryption, meaning that private citizens would have their digital data encrypted in ways that, when it came down to it, the NSA or CIA or whoever could not decode. Correct?
GENERAL HAYDEN: What I want is a world in which private industry creates the best encryption that it can create without creating what’s called extraordinary or exceptional access, which when I was the Director of NSA and I learned that a particularly difficult, tough encrypted target had actually an exceptional access entryway into it, I simply said, “Thank you Lord,” because suddenly my job got easier. It didn’t always mean I would get in, but I had many more opportunities available to me. So I don’t think we should make Apple do that. Now on the other hand, if I were still the Director of NSA, I’d still be spending money to break encryption, all right, so I could use that to go after particular targets, legitimate foreign intelligence targets, but my doing that doesn’t compromise generally available encryption which forcing Apple to do this would do.
PHAWKER: In your book, you write that Edward Snowden was the end product, not the cause, of a “broad cultural shift that is redefining the legitimate secrecy and necessary transparency and what constitutes the consent of the governed.” Can you clarify what exactly, in your estimation, triggered that shift and why?
GENERAL HAYDEN: Yes, it’s a cultural shift and I’m not the political scientist or sociologist to do the fine print, but here’s how I come to that conclusion – when the 215 program, the metadata program became public, there was a pretty strong public outcry, part of that created by the way it became public and, frankly, the government being so flat-footed in explaining itself, but nonetheless there was an outcry. NSA thought they were good to go, because NSA had gotten all of the approvals that the great compromisers of the 1970’s said they needed to get before they did anything. It was authorized by the President, actually two Presidents. It was overseen by congress and the congressional committees were pretty strong supporters of it. And when it was required, it was overseen by the federal court, specifically the FISA court. That’s a Madison-ian trifecta: all three branches of government [agree this is legal]. What happened was that a good chunk of the American population, not the extreme fringes only, but a good chunk of centrist Americans were now believing that what I just described to you, which was the way we all said we would do it in the 70’s, what I just described to you, no longer in their mind constituted consent of the governed. ‘That may be the consent of the governors, but you told them you didn’t tell me.’ That’s a new dynamic that my old guys are going to have to somehow adjust to.
PHAWKER: Why do you think, in your heart of hearts, that Edward Snowden did what he did?
GENERAL HAYDEN: I really don’t know because what he did was so ultimately destructive that it’s hard for me to attach noble motives to it. Now look, he pushed some stuff out of the door that raised privacy concerns, he accelerated a national debate that was coming anyway, as I already had suggested. The other 98% or 99% of the stuff that he shoved out of the door was how America collects foreign intelligence. The question I use, the example I pull out is – what’s the privacy question of his revealing, through a reporter, that NSA could intercept the unclassified emails of the Syrian Armed Forces or that NSA and GCHQ were listening to Dmitry Medvedev’s satellite phone during the G20 in the United Kingdom? Where’s the privacy question there? Where is the social conscious question there?
PHAWKER: The purpose of revealing some of the spying techniques the NSA use outside of the US was a little head scratching. If you had him in front of you right and could ask him one question, what would that question be?
GENERAL HAYDEN: Well, I may dive down into the weeds [to Snowden]: You claim that you raised serious concerns and you also stole a quarter of a million documents, but apparently none of those documents that you stole reflected your concerns or that the NSA lawyers responded to your concerns. So why do you make that claim? By the way, you said you did what you did because of what Jim Clapper said in answer to Ron Wyden’s question in the spring of 2011. But, you were already in contact with Glenn Greenwald and Laura Poitras in December 2010. How does that work?
PHAWKER: I think what he said is that the Clapper thing was the final straw and I think prior to that –
GENERAL HAYDEN: He was already shopping himself to advocacy journalists. By the way, let me sympathize with the young man for a second. I can be very brief about this. His problem was that he never discovered anything that was illegal. If he brought these questions up, anyone at NSA would tell him that, no we were good to go. The President has authorized it, Congress and the courts oversee it. His problem was not that he was pulling out things that were illegal, he just didn’t like it.
PHAWKER: Do you believe that all of the NSA surveillance activities would pass judicial review from the Supreme Court?
GENERAL HAYDEN: Sure.
PHAWKER: There are no Fourth Amendment violations?
GENERAL HAYDEN: Well, first of all, frankly, the only issue that drew American heat was [section] 702 [of the FISA Amendments act] somewhat, but most of it was 215 – the metadata program. You all know, I started that after 9/11. And we started it specifically because the Court had ruled in Smith vs. Maryland that metadata was not protected by the Fourth Amendment, that there was no reasonable expectation of privacy. The Court can change its mind, but right now, that is the governing Supreme Court decision.
PHAWKER: As private citizen Michael Hayden, what degree of privacy do you have a reasonable expectation of?
GENERAL HAYDEN: Well, as a private citizen, I know what foreign intelligence services do. And so, when I’m doing anything on my iPhone or sending emails, in the back of my mind, is the reasonable expectation given my personal background, that some foreign governments with technical talent would be interested in what I have to say. I just make that assumption.
PHAWKER: You accuse a number of journalists of doing agenda-driven national security reporting that –
GENERAL HAYDEN: I pretty much confine that to the group that did the Snowden revelations: Poitras, Greenwald and Bart Gellman, but not nearly as much.
GENERAL HAYDEN: Bamford, as I said, makes a living out of real or imagined expose. Weiner’s book on the CIA was actually reviewed – well you saw the review in my book. It was just dismissed out of hand as being – the only way to explain such gross inaccuracies was that he was working backwards from belief, rather than forward from data.
PHAWKER: You’re talking about Legacy of Ashes.
GENERAL HAYDEN: The whole story begins criticizing at the title.
PHAWKER: I specifically wanted to ask you because we just did an interview with Jane Mayer about her new book, Dark Money, about a week or so ago. I wanted to ask you, she’s on your list of journalists that are agenda-driven, specifically what do you think Jane Mayer’s agenda is or was?
GENERAL HAYDEN: Well, all I know is that when I read her material on the CIA’s detention and interrogation program, it is intensely negative and relentlessly prosecutorial. I just made that leap of logic.
PHAWKER: One of your complaints about the coverage of intel communities, specifically the NSA, is that these journalists, as you say, ‘walk the story to the darkest corner of the room.’ But by the same token, having read your book, could you not be accused of always walking the story to the sunniest side of the room?
GENERAL HAYDEN: Well, maybe. But then again, I know more about this than they did. I was from the inside, I had more data. I guess my premise – by the way, I’m actually not that relentlessly critical of journalists, I do sympathize with them. I do point out that when I take their phone calls — knowing fully well that them doing their responsibilities under the Constitution might make it harder to do mine, — that I pretty consistently had reasonable conversations. I get it. Frankly, I’ve got a lot of good friends who are journalists now. There’s a line in the book, “I’ve got an idea, let’s talk to these people when they aren’t accusing us of something.”
PHAWKER: Moving onwards here, I think a lot of the anxiety about the extraordinary surveillance powers that have been conferred on the intelligence community isn’t extending to people such as yourself or a president say like Obama or even a Jeb Bush, reasonable people. But I think the question is, what if down the line, the person holding the reins was a Donald Trump or a Dick Nixon, how do you respond to that? Where do checks and balances kick in? Would the system correct itself?
GENERAL HAYDEN: Yes. However, the Constitution does grant exceptional authority to the executive when it comes to foreign affairs, military affairs, and espionage. Let me step back, because I think this is a very important thing to point out, that compromise of the ‘70s where you bring the two oversight committees in, you bring the FISA Court in, that remains unique among the Western democracies. In almost all of the other Western democracies, espionage remains the exclusive province of the executive. For all of the things you and I are going to discuss, and we need to make better in the United States, our parliamentary oversight is infinitely more invasive than any European parliament. I would raise the complaint that the reason European parliamentarians complain about NSA is because they know far more about NSA than they will ever learn about their own services. That’s pre-Snowden.
After Paris, the French, German, and British parliaments considered and passed legislation that would never see the light of day here. I was on Morning Joe as this was going on and Scarborough says to me, “Well, it looks like the French are passing their version of the Patriot Act after the Paris massacres.” I just started laughing, I said, “You have got to be kidding me, this is stuff we would never even ask for, let alone be granted.” So when you’re coming to surveillance states, transparency, and oversight, normalize that to what the rest of the world experiences.
PHAWKER: You were serving as an advisor to Jeb Bush, who has since suspended his campaign. What are your thoughts on the fact that Donald Trump is probably the nominee?
GENERAL HAYDEN: I think it’s scary. Here’s the blanket assessment I can give you: these are complicated things, these are fields of gray, there is very little black and white. Every decision demands a trade off and, therefore, really deserves some thoughtful consideration. Right now, we have driven our national dialogue below the level of sophistication of bumper stickers. That is scary for people of my background, it’s really scary to people of my background in other countries because they really need America to be stable.
PHAWKER: When you left government you went to work as a principal at the Chertoff Group, the security consulting firm started by former Homeland Security chief Michael Chertoff, which among other things, helps military contractors navigate the government procurement process, essentially facilitating the sale of defense hardware and technology, etc. Do you ever ask yourself about if you have not become part of the military industrial complex that Eisenhower warned Americans about upon leaving office?
GENERAL HAYDEN: I’m very comfortable. What I view it as, is that I have a different role, but I continue to serve and I mean that genuinely. American espionage is the spying equivalent of the strength of America’s society just like the Air Force is the martial expression of the aviation industry. Theses government enterprises – NSA, CIA, and so – don’t exist separate from the broader society. Even when I was in government, I was very comfortable and refused to make the distinction between what we call “blue-badgers” and “green-badgers”. I felt as if government employees or contractor employees in service of the government were all part of the team I had to rely on. It wasn’t a big lift, but my background has exposed me more to this than most people. I know when a contractor is recommending something that makes sense and when a contractor is recommending something that doesn’t make sense. Frankly, my view on the Apple question should suggest that my freedom of thought hasn’t been cooked by my experience in government, that I actually try to look at these things in an objective way.
PHAWKER: Fair enough. Final question here. There is a long preamble here that I need to set up for the reader who hasn’t read your book. So let me just say this and I’ll get to my question. You end the book on a rather pessimistic note, detailing the daily briefings that you delivered to the President every day that were full of dark threats and terrifying scenarios. You conclude that, “Evil is afoot in the world” and it really tries your belief in the essential good of human beings. You go on to reference a figure from the American Revolution, Nathan Hale, who spied for the Continental Army, who is regarded as the alpha-spy of American intelligence. He was discovered and later executed by the British — America’s first intelligence failure as you characterize it. You finish the book by wondering what the 21st century equivalent of Hale’s failure might be. The book ends with this sentence, “That conjured up some very dark thoughts, some very dark thoughts, indeed.” I’m wondering if you could share some of these dark thoughts with me. What darkness do you see looming on the horizon?
GENERAL HAYDEN: Sure, here’s the thing: we began the conversation with this perpetual balancing act that free peoples have liberty, security, privacy, and safety. I truly believe that espionage — I mentioned this in a passage of the book — espionage is not just compatible with democracy, it’s essential for democracy. Scared people don’t make good Democrats or Republicans. So I knew full well in the past ten years of the government, post 9/11 especially, that if I failed, if we suffered catastrophic loss, it wasn’t just American security that would be lost, I know what we would do as a people. Our response to another catastrophic failure would put American liberty at much as risk as American safety. That’s the dark scenario that I try to prevent.