Former NSA Director Michael Hayden denied reports that the agency has repeatedly broken privacy rules or exceeded its legal authority in an exclusive interview with Newsmax late Friday.
"If, at any step in the data-collection process, you discover that the signal you're working is a protected signal, you've got to stop," Hayden, a retired Air Force general who directed the National Security Agency from 1999 to 2005, told Newsmax in the interview. "At each step, you've got that requirement: Is this or is this not a communication of someone who is protected by the Fourth Amendment?"
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Based on information provided earlier this summer by former NSA secrets leaker Edward Snowden, The Washington Post
published details of an internal audit on Friday that purportedly showed the agency overstepped its authority thousands of times since Congress granted it broad new powers in 2008.
"If, at any step in that process, you think you have a protected communication, you stop and you report it," Hayden countered.
The report on the audit, dated May 2012, followed assurances last week from President Barack Obama of stronger oversight of the surveillance agency.
According to the Post, most of the infractions involved unauthorized surveillance of Americans or foreign intelligence targets in the United States. Both activities are restricted by statute and executive order.
They ranged from significant violations of law to typographical errors that resulted in unintended interception of U.S. emails and telephone calls.
The audit counted 2,776 incidents in the preceding 12 months of unauthorized collection, storage, and access to or distribution of legally protected communications, the Post reports.
Most were unintended — and many involved failures of due diligence or breaches of standard operating procedure.
The most serious incidents included a violation of a court order and unauthorized use of data on more than 3,000 Americans and green-card holders.
In one of the audit documents, for example, NSA personnel were instructed to remove details and substitute more generic language in reports to the Justice Department and the Office of the Director of National Intelligence, the Post disclosed. The reports are used to inform Congress.
Senate Judiciary Committee Chairman Patrick Leahy said he would hold hearings into the new disclosures, while Senate Intelligence Committee Chairwoman Dianne Feinstein said her panel had been notified of NSA compliance problems — not by seeing the internal audit but through legally required reports to her committee.
Hayden, who also served as CIA director from 2006 to 2009, told Newsmax that many of the compliance issues detailed in the audit were unintentional and were caused by human error.
"None of these were intentional," he said. "Previous claims that the NSA was violating the law are not true. All of these are inadvertent and unintentional and corrective.
"The first line of oversight is the NSA workforce itself," Hayden continued. "This is very complex. This is done by 35,000 people — and the good news is that every word in that report was self-reported by NSA. This was not some outside body."
NSA employees are a key part of the quality control process, Hayden insisted.
"The first line of oversight are the people at the NSA themselves, who swear to uphold the Constitution; the leadership of the NSA, the inspector general," he explained. "There actually is a lot of oversight, which is suggesting that this is hard to do."
He added that the audit disclosed by the Post encompasses all data-collection activities of the NSA — not just those involving the surveillance of Americans' telephone calls and Internet activities disclosed in May by Snowden, who was granted a year of asylum by Russia.
"This is about the totality of NSA collection globally, not these two narrowly defined programs," Hayden said. "It's about everything NSA does."
Hayden acknowledged that mistakes happen.
"You don't want to make any mistakes, but no one is claiming that the mistakes were intentional. Everyone understands that it's complicated."
It may not be realistic to expect the system to be error-proof.
"The NSA needs to work very, very hard. It needs to work to zero — but, realistically, anyone who understands this business knows they will never get to zero," Hayden said.
"What's required of them is to work to the limits of the available technology. And when a mistake is made, to recognize it, to report it, and try to correct it."
The agency is doing its best to protect America with as few errors as possible, he said.
"What we're talking about is a very complex undertaking in which good folks, with very difficult technology in an ever-changing global IT environment, are doing their very best to do this perfectly," he said.
"And guess what?" Hayden said. "They don't do it perfectly. There are, occasionally, unintended mistakes."
Asked whether NSA employees substituted more generic language in reports to Congress and other oversight agencies, Hayden responded, "I have no reason to believe that NSA was trying to hide anything from oversight.
"My sense is the agency was looking for consistency in its reporting, but I have to admit that I don't know. I've not been there — and I'll let that agency describe what that language meant or did not mean."
The retired four-star general said errors don't happen often.
"There's widespread collection. The errors are incredibly infrequent — and they're monitored and detected, and corrective action is taken," he explained.
"But look, we're all Americans. You read this number (2,776 incidents), and you have the right to ask some questions. That's good — and I think the agency is going to come out and put some of these headlines into context."
He said there's a danger that news reports will be taken out of context.
"The NSA revelations should be put into context," he added. "It gives the impression that it's constant, that it's sloppy, that it's a result of inattention, that the NSA people don't care."
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