Skip to main content
Part of complete coverage from

Going beyond the headlines on the NSA

By Michael Hayden, CNN Contributor
updated 2:09 PM EDT, Tue August 27, 2013
Jonathan Pollard is a divisive figure in U.S.-Israeli relations. The former U.S. Navy intelligence analyst was caught spying for Israel in 1985 and was sentenced in 1987 to life imprisonment. The United States and Israel are discussing his possible release as part of efforts to save fragile Middle East peace negotiations, according to sources familiar with the talks. Click through the gallery to see other high-profile leak scandals the United States has seen over the years. Jonathan Pollard is a divisive figure in U.S.-Israeli relations. The former U.S. Navy intelligence analyst was caught spying for Israel in 1985 and was sentenced in 1987 to life imprisonment. The United States and Israel are discussing his possible release as part of efforts to save fragile Middle East peace negotiations, according to sources familiar with the talks. Click through the gallery to see other high-profile leak scandals the United States has seen over the years.
HIDE CAPTION
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
Sharing secrets: U.S. intelligence leaks
<<
<
1
2
3
4
5
6
7
8
9
10
>
>>
STORY HIGHLIGHTS
  • Michael Hayden: It's good for U.S. to discuss balance between liberty and security
  • Former NSA director says much has been misunderstood in recent debate on agency
  • He says Americans are only surveilled when in contact with foreign agents
  • Hayden: Violations of rules were discovered by NSA, represent tiny fraction of communications

Editor's note: Gen. Michael V. Hayden, a former National Security Agency director who was appointed by President George W. Bush as CIA director in 2006 and served until February 2009, is a principal with the Chertoff Group, a security consulting firm. He is on the boards of several defense firms and is a distinguished visiting professor at George Mason University.

(CNN) -- As Congress prepares to return from its August recess, Washington is gearing up for a national conversation on the balance between security and liberty, between necessary surveillance and necessary privacy.

That's a good thing.

It would be an even better thing if the discussion were based on fact rather than contaminated by inaccuracies and posturing. A quick review of recent commentary suggests that may not be likely.

Michael Hayden
Michael Hayden

For example, Fox News seems incapable of commenting on this story without the header "NSA Scandal," a lead that brings with it its own conclusion.

A prominent U.S. senator recently opined that, "They (the National Security Agency) basically I believe probably are looking at all the cell phone calls in America every day."

Another lawmaker has already concluded that the NSA is "an agency out of control."

And a former congressman on a Sunday talk show added to the sum total of human knowledge with this: "CIA! Hello! I mean we have a CIA. What's the NSA really about?"

I fear that the coming debate will have all the characteristics of a mob -- thoughtless action driven by artificial urgency, unreasoning fear, emotion and misinformation.

And that's a pity since the heart of this issue has been around for years and deserves serious discussion.

Hayden on impact of Snowden leaks

As far back as at least 2000, the NSA tried to hit the real question head-on. The agency knew that past targets of its surveillance largely communicated on their own dedicated networks. There was hardly a civil libertarian alive who would be concerned about trying to intercept communications between the Soviet high command in Moscow and intercontinental ballistic missile silos beyond the Urals.

But the threats of the 21st century do not communicate on their own networks. Terrorists, drug traffickers, arms proliferators and the like live on a unitary global information grid where their communications co-exist with the communications of the very people the NSA is committed to protecting.

It was clear even pre-9/11 that the NSA could not do its mission without working aggressively on this common grid. It was also clear that the agency would not have the power to do so -- legally, financially or technologically -- unless the American people were convinced that this power would be limited to its intended purpose, that even as constitutionally protected communications mingled with and were sorted from targeted communications, they would still be protected.

And that basically is the issue of the moment, whether the headline is PRISM, XKeyscore, metadata, "upstream" communications, Blarney or an alleged NSA secret room at an AT&T facility in San Francisco -- all of which have been featured in recent coverage.

Americans will have to decide what constitutes a "reasonable" expectation of privacy and what running room they will give their government to search for the signals almost everyone agrees should be captured even as those signals co-exist with their own.

Although Congress, the courts and two administrations have authorized what the NSA is doing today, these are not easy issues. Resolution will hinge on how much trust people have in their government, or at least this part of it. It will also hinge on how much danger with which people are willing to live.

And if this is to be a fact-based discussion, resolution will also hinge on how well citizens understand a few basics of what exactly is being done. Unfortunately, much of the public discourse is confused to the point of incoherence.

Take the question of authorities. How does the NSA get the power to do any of this? In most instances, since this is about foreign intelligence, authority comes from the president and is codified in Executive Order 12333.

Only when a U.S. person is involved or for certain kinds of collection in the United States does the agency have to rely on the Foreign Intelligence Surveillance Act and the court it established.

This is important. Most intelligence collection -- by the NSA, CIA or any intelligence agency -- is not overseen by a court. Oversight comes from the president and the Congress. But it is still oversight. Breathless claims that some things are done without court review could well be true -- and not very relevant.

Then there is collection involving Americans. Most casual commentators simply assert that anytime the NSA is listening to an American, the agency must have a warrant. Indeed, trying to calm current concerns, President Barack Obama told Charlie Rose that, absent a warrant, "What I can say unequivocally is that if you are a U.S. person, the NSA cannot listen to your telephone calls. ..."

Actually, that's not quite correct -- and never has been. As the president suggested later in the interview, the NSA cannot target the communications of a U.S. person. If it is tracking the communications of a legitimate foreign intelligence target and that target talks to an American, the NSA indeed covers it -- and always has.

This simply makes sense. Picture a known terrorist who makes a series of operational calls to confederates in say Paris, London and the Bronx. To suggest that the NSA has to stop coverage of the last call is ludicrous.

This is what the NSA calls incidental collection of information to, from or about a U.S. person. When this occurs -- and it is not rare -- the agency is required to keep its focus on the foreign intelligence in the communication and minimize or mask the U.S. identity unless the identity is essential to the intelligence (as it would be in the example above).

Keep this in mind when commentators claim that the NSA has collected the content of American e-mails or phone calls. That may be, but the NSA is not targeting them without a warrant.

And then there are the numbers. Like The Washington Post's August 15 headline screaming, "NSA broke privacy rules thousands of times per year, audit finds."

You have to dig deeper to learn (as I pointed out in another piece) that all of the incidents were inadvertent; no one is claiming that any rules were intentionally violated; and all of the incidents were discovered, reported and corrected by the NSA itself.

In one example, the Post referred to "large numbers of data base query incidents." The NSA later confirmed that in one quarter there indeed were 115 incidents of NSA queries being incorrectly entered, mistakes such as mistyping or using overly broad search criteria. That's 115 out of more than 61 million inquiries made in that quarter, a compliance rate of .999998.

In this, as in most issues, facts (and context) matter.

Understanding beyond the accusatory headline or the facile quip is needed, or we will be just tossing slogans at one another, slinging volleys of hyperbole, stoking fears and anger and distrust, all of which will make it even more difficult to resolve an already very difficult question.

Follow us on Twitter @CNNOpinion.

Join us on Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Michael Hayden.

ADVERTISEMENT
Part of complete coverage on
updated 12:42 PM EDT, Wed April 16, 2014
Rick McGahey says Rep. Paul Ryan is signaling his presidential ambitions by appealing to hard core Republican values
updated 11:39 AM EDT, Wed April 16, 2014
Paul Saffo says current Google Glasses are doomed to become eBay collectibles, but they are only the leading edge of a surge in wearable tech that will change our lives
updated 2:49 PM EDT, Tue April 15, 2014
Kathleen Blee says the KKK and white power or neo-Nazi groups give haters the purpose and urgency to use violence.
updated 7:56 AM EDT, Wed April 16, 2014
Sen. Sheldon Whitehouse and Rep. Henry Waxman say read deep, and you'll see the federal Keystone pipeline report spells out the pipeline is bad news
updated 7:53 AM EDT, Wed April 16, 2014
Frida Ghitis says President Obama needs to stop making empty threats against Russia and consider other options
updated 5:29 PM EDT, Tue April 15, 2014
Peter Bergen and David Sterman say the Kansas Jewish Center killings are part of a string of lethal violence in the U.S. that outstrips al Qaeda-influenced attacks. Why don't we pay more attention?
updated 12:41 PM EDT, Tue April 15, 2014
Danny Cevallos says families of the passengers on Malaysian Airlines Flight 370 need legal counsel
updated 11:23 AM EDT, Mon April 14, 2014
David Frum says Russia is on a rampage of mischief while Western leaders and Western alliances charged with keeping the peace hem and haw
updated 7:56 AM EDT, Mon April 14, 2014
Most adults make the mistakes of hitting the snooze button and of checking emails first thing in the morning, writes Mel Robbins
updated 1:54 PM EDT, Mon April 14, 2014
David Wheeler says as middle-class careers continue to disappear, we need a monthly cash payment to everyone
updated 7:55 AM EDT, Mon April 14, 2014
Democrats need to show more political spine when it comes to the issue of taxes.
updated 11:55 AM EDT, Mon April 14, 2014
Donna Brazile recalls the 50th Anniversary of the Civil Rights Act as four presidents honored the heroes of the movement and Lyndon Johnson, who signed the law
updated 9:17 AM EDT, Mon April 14, 2014
Elmer Smith remembers Chuck Stone, the legendary journalist from Philadelphia who was known as a thorn in the side of police and an advocate for the little guy
updated 2:56 PM EDT, Sun April 13, 2014
Al Franken says Comcast, the nation's largest cable provider, wants to acquire Time Warner Cable, the nation's second-largest cable provider. Should we be concerned?
updated 11:22 AM EDT, Fri April 11, 2014
Philip Cook and Kristin Goss says the Pennsylvania stabbing attack, which caused grave injury -- but not death, carries a lesson on guns for policymakers
updated 3:06 PM EDT, Fri April 11, 2014
Wikipedia lists 105 football movies, but all too many of them are forgettable, writes Mike Downey
updated 10:32 AM EDT, Fri April 11, 2014
John Sutter and hundreds of iReporters set out to run marathons after the bombings -- and learned a lot about the culture of running
updated 12:49 PM EDT, Fri April 11, 2014
Timothy Stanley says it was cowardly to withdraw the offer of an honorary degree to Ayaan Hirsi Ali. The university should have done its homework on her narrow views and not made the offer
updated 10:16 AM EDT, Fri April 11, 2014
Al Awlaki
Almost three years after his death in a 2011 CIA drone strike in Yemen, Anwar al-Awlaki continues to inspire violent jihadist extremists in the U.S, writes Peter Bergen
updated 9:21 PM EDT, Fri April 11, 2014
David Bianculli says Colbert is a smart, funny interviewer, but ditching his blowhard persona to take over the mainstream late-night role may cost him fans
updated 1:31 PM EDT, Thu April 10, 2014
Rep. Paul Ryan says the Republican budget places its trust in the people, not in Washington
updated 5:28 PM EDT, Thu April 10, 2014
Aaron David Miller says Obama isn't to blame for Kerry's lack of progress in resolving Mideast talks
updated 11:22 AM EDT, Mon April 14, 2014
David Weinberger says beyond focusing on the horrors of the attack a year ago, it's worth remembering the lessons it taught about strength, the dangers of idle speculation and Boston's solidarity
updated 12:32 PM EDT, Thu April 10, 2014
Katherine Newman says the motive for the school stabbing attack in Pennsylvania is not yet known, but research on such rampages turns up similarities in suspects and circumstances
updated 7:03 AM EDT, Fri April 11, 2014
Simon Tisdall: Has John Kerry's recent track record left Russia's wily leader ever more convinced of U.S. weakness?
updated 12:40 PM EDT, Thu April 10, 2014
Mel Robbins says Nate Scimio deserves credit for acting bravely in a frightening attack and shouldn't be criticized for posting a selfie afterward
updated 2:39 PM EDT, Wed April 9, 2014
Wendy Townsend says the Rattlesnake Roundup -- where thousands of pounds of snakes are killed and tormented -- is barbaric
updated 9:45 AM EDT, Thu April 10, 2014
Dr. Mary Mulcahy says doctors who tell their patients the truth risk getting bad ratings from them
updated 9:28 AM EDT, Wed April 9, 2014
Peggy Drexler says the married Rep. McAllister, caught on video making out with a staffer, won't get a pass from voters who elected him as a Christian conservative with family values
updated 7:43 AM EDT, Wed April 9, 2014
David Frum says the president has failed to react strongly to crises in Iran, Syria, Ukraine and Venezuela, encouraging others to act out
updated 4:57 PM EDT, Wed April 9, 2014
Eric Liu says Paul Ryan gets it very wrong: The U.S.'s problem is not a culture of poverty, it is a culture of wealth that is destroying the American value linking work and reward
updated 7:51 AM EDT, Wed April 9, 2014
Frida Ghitis writes: "We are still seeing the world mostly through men's eyes. We are still hearing it explained to us mostly by men."
updated 10:08 AM EDT, Thu April 10, 2014
Chester Wisniewski says the Heartbleed bug shows how we're all tangled together, relying on each other for Internet security
updated 3:26 PM EDT, Wed April 9, 2014
Danny Cevallos says an Ohio school that suspended a little kid for pointing his finger at another kid and pretending to shoot shows the growth in "zero tolerance" policies at school run amok
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT