For all their inaccurate blather about President Bush “spying on Americans,” Senate Democrats seem reluctant to say unambiguously whether they want to terminate the National Security Agency program that intercepts al Qaeda-linked international communications coming in and out of the U.S.
Gen. Michael Hayden, deputy director of national intelligence and former NSA director, has explained key facts of the program not featured in Democratic rhetoric or establishment press reports about it: The program intercepts only international communications, and only when there is a reasonable basis to believe the communication is linked to al Qaeda. Most importantly, he has said the program has gleaned information about terrorists that could not be obtained through court-ordered wiretaps.
When asked at a December 19 briefing whether the U.S. “got information through this program that you could not have gotten through going to the court,” Hayden said: “I can say unequivocally, all right, that we have got information through this program that would not otherwise have been available.”
In light of this, I asked senators last week whether we should continue or stop the program.
Gen. Michael Hayden has said the NSA surveillance program has gotten information about terrorists that could not have been obtained with a court order—
Sen. Christopher Bond (R.-Mo.): That makes sense.
Would you end this program? Yes or no.
Bond: No! Definitely not. We want to keep our country safe from attacks and unfortunately now that the news of the program has been leaked we are substantially less likely to get the information we need. I think leaking that was a very serious crime, and I hope that whoever did can be apprehended and prosecuted.
Gen. Michael Hayden has come out and said that the NSA surveillance program has obtained information about terrorists that could not have been gotten with a court order. Do you think we should end the program? Yes or no.
Sen. John Cornyn (R.-Tex.): You know that’s one of the most amazing things I’ve heard from the critics is no one has called for ending the program, even those who claim—erroneously in my view—that the President has somehow violated the law. After studying the matter, I’ve concluded that the President is not only authorized, but I think, he’s duty-bound to take steps to protect American lives against foreign threats, and I think that this is an important part of that responsibility.
So, you don’t think there are any of your colleagues that would end this program willingly, knowing that it’s caught—
Cornyn: I can’t wait until you write your story because I haven’t heard anybody, even the ones that said, “It’s an outrage! It’s illegal!” Nobody is calling for ending the program because they know it works and they know it saves American lives.
Gen. Michael Hayden has said that the NSA surveillance program collected information about terrorists that we could not have gotten through a court-ordered program. Should we still continue the surveillance? Yes or no.
Sen. Larry Craig (R.-Idaho): First of all, there will be comprehensive hearings and an analysis of what was and wasn’t done. I’m not going to react to individual statements out of context. The information I have to date suggests that this President has done what other Presidents have done and that it was appropriate under the eyes of the law. Hearings will bring that out.
Gen. Michael Hayden has said the NSA surveillance program has collected information about terrorists that he could not have gotten through court-ordered surveillance. Should we continue the surveillance?
Sen. Dick Durbin (D.-Ill.): Well, I want to know more from Gen. Hayden because I have yet to hear anyone from the administration tell me where the current law, the FISA law, does not provide enough authority for them to keep us safe. Let them be specific and then let them explain to us why they never came in four years to Capitol Hill to ask us to change the law which we did. Part of the FISA law was changed during the Patriot Act. So, I mean, we’ve done that. We’re open to those suggestions. I want America to be as safe as possible.
So, you don’t think the program should be ended?
Durbin: Well, I don’t know what the program is No. 1. No. 2, I don’t know what they’re doing under the program that they cannot do legally. Those are two important questions. But if they’re coming to us and saying, “We need to change the FISA law,” I’ll listen.
Gen. Michael Hayden said the NSA surveillance program collected information about terrorists that we could not have gotten through court-ordered surveillance. So should we continue this program?
Sen. Orrin Hatch (R.-Utah): Now, I can’t talk about the program because I know a little bit about it and I am on the Intelligence Committee. But I can say this about it: Listen to Gen. Hayden. He’s the straightest shooter you’ll ever find. He’s non-partisan. He doesn’t get political and he’s talking about protecting our country and protecting our people in this country against some terrible, terrible things. That’s as far as I’ll go.
Just to clarify—
Hatch: You want an opinion legally, the fact of the matter is there are at least two Circuit Court appeals cases that would have backed, that have backed, in essence, what the President has decided to do. There are also inherent powers of the President that cannot be done away with just because of congressional actions. And keep in mind, the 4th Amendment itself says “unreasonable searches and seizures.” I think most every American if it’s really put to them and they really are concerned about terrorism should come to the conclusion that you aren’t going to call these “unreasonable” approaches to try and find out who is against us.
As far as I understand it, Gen. Hayden said there are three aspects to these [intercepts]. One, there has to be international communication.
Has to be linked to Al-Qaeda.
And you could not have done this with FISA.
Hatch: He made it very clear that FISA would have [made it] very difficult to get this done. And he’s right on that.
Gen. Michael Hayden has said that the NSA surveillance program collected information about terrorists that could not have been obtained through a court order. Should we continue this program? Yes or no.
Sen. Jon Kyl (R.-Ariz.): Yes. Can I add the word “absolutely” to that?
Yes, you may.
Kyl: (Laughing.) Thank you.
A number of your colleagues seem reluctant to say yes. They want to say, “We’re going to have hearings,” and don’t want to make a definitive statement that, yes, this program is valuable and we should listen to Gen. Hayden.
Kyl: The program is incredibly valuable. It needs to continue. It is legal. The hearings are a good thing to explain all that. The problem is that you can’t talk very much about the program itself and you sort of have to accept at face value what Gen. Hayden says. Some people are willing to do that, others are not.
Could you explain to our readers why Gen. Hayden is a better source of information on this than Senate Democrats may be?
Kyl: Because they don’t know very much about it, and he knows everything about it.
Now, Gen. Michael Hayden has said that the NSA program has collected information about terrorists that could not have been obtained through a court order. Should we continue this program? Yes or no.
Sen. Carl Levin (D.-Mich.): I don’t think we ought to. I don’t think the President ought to violate the law.
So you would end the taps now?
Levin: I would comply with the law, and if the law needs to be changed, we can consider the proposed changes. But until those changes are proposed, if they’re proposed, the President should comply with the law. I believe that means if there’s an urgent matter he should do the tapping first then go to courts second. The law provides for that.
Gen. Michael Hayden said that the NSA surveillance program collected information about terrorists we could not have gotten through court-ordered surveillance. Do you think we should continue the NSA program? Yes or no.
Sen. Jay Rockefeller (D.-W.Va.): No, you don’t ask me a “yes” or “no” question on that subject.
Okay, excuse me. I’m trying to phrase it that way to everyone. Could you comment on that because you issued a pretty strong statement in December about this.
Rockefeller: Yeah. The answer is no. The biggest problem with that right now is that I’m the only Democrat in the Senate who “purportedly” knows what’s going on in this tapping situation, NSA tapping situation. That’s crazy. I think there’s a unanimous feeling on the part of the intelligence committees and also at least the Democratic leadership that what they say should be open, not open, but in closed session to the two intelligence committees. You cannot—it is far too complicated, far too changing—just to go to a meeting and have somebody explain to you what they want to tell you. It’s got to be a lot deeper.