It is the debate of the moment: Whether democracies should have the right to take part in large-scale state surveillance, at home and abroad, to fight terrorism. A look at two men who have helped shape both sides of the debate: Glenn Greenwald and Michael Hayden
On Edward Snowden’s leaks: “Nothing he has disclosed has been shown to be illegal or unconstitutional. He just didn’t like it.” — Michael Hayden
An American spymaster by vocation, and a Pittsburgh Steelers fan by hometown predisposition, Michael Hayden played the spying game under smashmouth rules. He likens it to being a linebacker.
“Playing back from the line protects me. Playing close to the line protects America,” he said in a Globe and Mail interview a few years back. And, he pointed out then, he never got penalized for traversing his legal limits.
The football analogy came up again in an interview last week ahead of Friday’s Munk Debates in Toronto, at which the former Air Force commander, CIA director and head of the National Security Agency will argue that state surveillance is a legitimate defence of our freedoms.
National security, he says, is a team sport, where different agencies play different roles, working together for incremental advantage.
That’s why he gets upset when people ask him if his surveillance programs thwarted any imminent terrorist attacks. “It’s a little bit like asking an NFL running back, ‘How many last-second field goals did he kick?’” (Running backs don’t kick field goals.)
Gen. Hayden had been former president George W. Bush’s most trusted intelligence aide, but the four-star general’s aggressive approach did not survive the transition when President Barack Obama was elected.
In Toronto on Friday, the 69-year-old will defend what’s being called the American surveillance state, for which he would be considered a key architect. Until Gen. Hayden came along, the National Security Agency was dedicated to foreign intelligence and banned from any kind of spying within the United States.
Gen. Hayden says the value of stepped-up electronic-eavesdropping programs can be profound, and argues such measures could have helped thwart the Sept. 11 attacks. In the months before, U.S. intelligence agencies had received information that two al-Qaeda operatives were in California but there was insufficient follow-up and monitoring, he contends.
“If we had had this in place, we would have discovered [them] in San Diego,” Gen. Hayden says. “The FBI would have kicked in their door, and have arrested two Arabs … and probably would have made them leave the country.”
Gen. Hayden is reticent to talk about American journalist Glenn Greenwald, who is debating against him on Friday. “The First Amendment is something sacred, even when it is abused,” is all he would say.
But he was less inclined to hide his disdain for Edward Snowden, the former NSA contractor who has leaked information about the agency’s spying to Mr. Greenwald.
“I say he betrayed,” Gen. Hayden says. “Which is my way of offering judgment, without getting into the legal question of what constitutes treason.”
Mr. Snowden says he is upholding his oath to the U.S. Constitution by whistle-blowing, but Gen. Hayden bristles at this. “Nothing he has disclosed has been shown to be illegal or unconstitutional. He just didn’t like it.”
Gen. Hayden explains how the Sept. 11 attacks changed spying south of the border. By altering the rules, the NSA began to encroach on the once-sacrosanct communications associated with American citizens, and also communications passing through the United States – material that federal agents previously needed judicial warrants to intercept.
In aftermath of the terrorist attacks, nearly 3,000 Americans were dead, and President Bush was vowing “never again.” The NSA, an electronic-eavesdropping agency long banned from spying inside the United States, was suddenly tasked with finding al-Qaeda sleeper agents around the world – and inside America.
As ruins of the World Trade Center still smouldered, Gen. Hayden met George Tenet – his counterpart at the Central Intelligence Agency, a man known to have the ear of President Bush. Gen. Hayden recalls the CIA director asking: What more can done?
This question led Gen. Hayden to draw a Venn diagram. Oval One: What kinds of surveillance were currently legal? Oval Two: What kinds were technically possible? Oval Three: Given the above, what was desirable?
“I said, ‘George. I’m doing everything I can within the limits of my current authority,’” Gen. Hayden says.
“Not exactly the question I asked you,” was the reply he recalls getting.
So Gen. Hayden went back to the drawing board. He had his officials draft the Terrorist Surveillance Program – a slate of new spying activities that was secretly endorsed by the President.
It included the collection of phone and Internet metadata – which meant the NSA began amassing phone numbers, e-mail headers, and Internet Protocol addresses and the like. In private, surveillance officials argued this was legal because it was just “envelope” information – the stuff that surrounds the shielded conversations of American citizens, but which are not inherently part of them.
The NSA could only empower itself to listen to or read such conversations, Gen. Hayden says, if there was a known nexus to a potential foreign terrorist.
When The New York Times was on the cusp of publishing an exposé on “warrantless wiretapping,” its top editors were summoned to the White House – to meet Mr. Bush, and hear Gen. Hayden urge them to withhold publication.
“We tried to inflict a national-security concern on them,” he recalls. “It failed.”
When lawmakers called him to testify as to why the NSA was sweeping up American “communications,” Gen. Hayden chose his words carefully. He denied that the NSA was indiscriminately collecting “conversations.”
“It was not, as portrayed by some, a ‘driftnet,’” he says. Politicians often fail to grasp the distinction between metadata collection and eavesdropping, he adds.
Matters really came to a boil when top law-enforcement officials – including the Attorney General and FBI director – found out about an aspect of the program that veered on illegal domestic surveillance and threatened to resign en masse.
“The President told me ‘OK, Hayden stop it,’” he recalls. But months later, “we resumed activity… under a different legal regime,” he says. “In terms of operational activity, it was just about the same thing.”
During the second Bush administration, Gen. Hayden was tapped to head the CIA. In 2008, Congress voted to legitimize some borderline NSA activities he had pioneered. Politicians passed laws to shield phone companies from being sued for having given citizens’ records to the NSA. They also empowered secret intelligence courts to compel the release of Americans’ call records and other data.
Now that the Snowden leaks have revealed the inner workings of NSA surveillance programs, Mr. Obama is facing pressure at home and abroad. He is withdrawing on some spying fronts, but not others.
In the interview, Gen. Hayden says he’s never faced a leak of the magnitude of Mr. Snowden’s: “This stuff is, by far, deeper, more far-reaching and more destructive.”
“Be it resolved state surveillance is a legitimate defence of our freedoms.” Watch the Munk Debate live online, starting at 7 p.m. EST tonight.
In favour: Michael Hayden’s partner in the debate is Alan Dershowitz, a Harvard law professor and civil liberties lawyer.
Opposed: Glenn Greenwald will be debating with Alexis Ohanian, the co-founder of reddit.
Read Mr. Dershowitz’s and Mr. Ohanian’s opposing arguments here.