Hayden to Newsmax: Obama's Surveillance Strategy Returning to Pre-9/11

Image: Hayden to Newsmax: Obama's Surveillance Strategy Returning to Pre-9/11

Saturday, 18 Jan 2014 01:49 PM

By Todd Beamon

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Former NSA Director Michael Hayden told Newsmax on Friday that President Barack Obama's major change on how the agency could use the vast amount of surveillance data it collected was "going back to the approach that we had before we responded to 9/11."

"I was director of the NSA on Sept. 11," Hayden told Newsmax in an exclusive interview. "It's beginning to feel more like the way we did business before Sept. 11."

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Emphasizing that he did not "want to overdo that" — referencing the 2001 attacks that killed more than 2,600 Americans — Hayden told Newsmax that the terrorism led the NSA to conclude that "we needed more agility. That's the kind of structure we said we needed after Sept. 11.

"We can do this and still protect civil liberties without multiple layers of oversight."

Hayden, who directed the National Security Agency from 1999 to 2005, was referring to Obama's directive that the agency would not have to obtain an order from the secret Foreign Intelligence Surveillance Court to access the data that it collects daily on Americans' Internet and telephone activity.

The move was among several steps Obama said the administration would take to reassure Americans and foreigners that the United States would address the privacy concerns that arose after damaging information about the NSA's vast surveillance activities were leaked last year by former agency contractor Edward Snowden.

The president’s actions resulted from recommendations by an advisory panel he convened last year in the wake of public anger over the Snowden disclosures.

In addition, Obama said that the United States would not eavesdrop on the heads of state or government of close American friends and allies, which sought to smooth over frayed relations with such world leaders as German Chancellor Angela Merkel.

Reports that the NSA had monitored the Merkel's cellphone surfaced last year.

President Obama also called on Congress to establish an outside panel of privacy advocates for the FISA court, which considers terrorism cases, but he devoted most of his speech to the NSA's "metadata" collection program.

Besides requiring a judicial order for the agency to access specific data, Obama said that the government would not hold the metadata and decided that communications providers could share more information with the public beyond government requests for data.

The advisory panel had recommended that the data be controlled by a third party — the telephone companies, for instance — but Obama directed Attorney General Eric Holder and the intelligence community to develop ways the information could be stored.

Hayden, who also is a former director of the CIA, told Newsmax that "there are a lot of things to like" in Obama's speech overall.

"This could've been a far different speech. He did not accept all the recommendations of his commission. He gave great credit to the intelligence community.

"He made a few concessions, but he made it very clear that American intelligence is going continue to aggressively pursue legitimate foreign intelligence targets," Hayden added. "It's clear that this president understands his responsibilities under the Constitution to defend the nation."

He also noted how Obama praised NSA staff for their dedication "to the rule of law."

"That is actually the most the president has said about that since this whole thing began with Edward Snowden," Hayden told Newsmax. "That was a very good thing."

But President Obama's decisions on the metadata program were "a bit troubling," he said.

Hayden acknowledged the president's highlighting of the importance of the metadata program to national security and his saying that the program had not been intentionally abused.

"The president said this is a necessary program," he said. "The president said this program is well-run. But then he said, 'Now, we're going to change it.'

"That part is a little more difficult for me to understand. The argument for the changes is that he has to build up greater trust and confidence in the American people," Hayden said. "He's got to give them a better feeling that this program will not be abused in the future.

"I'm not so sure that's sufficient grounds for changing something that is necessary and well-run."

And by bringing the FISA court into the picture, Hayden cautioned, Obama's decision slows the process and could end up requiring judges to render decisions where sufficient expertise.

"If an NSA analyst looks at intelligence data and concludes that … a number is associated with al-Qaida, he must go to the FISA court and get a judicial finding," he began. "The expert has already made the judgment. What's the judge supposed to do? The NSA expert is far better positioned to make that decision."

More broadly, however, President Obama's plan begs a greater question, Hayden told Newsmax.

"The president made it very clear: We are doing this to give people more confidence that the metadata will not be abused in the future.

"Now, what's the price to pay by making these changes to give people more confidence about the future?" Hayden asked. "What might we be giving up?

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"This is all about making people more comfortable, so here’s the deal," he concluded. "You're going to be a lot more comfortable. You're going to be a lot less safe, but you’re going to be more comfortable."

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