Skip to main content
Part of complete coverage from

Snowden -- facts, fictions and fears

By Michael Hayden, CNN Contributor
July 24, 2013 -- Updated 1854 GMT (0254 HKT)
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: Many have misconstrued NSA access to phone calls
  • He says agency has information on calls but not content of the calls
  • Hayden says agency needs metadata on calls to track terrorists
  • He says NSA was criticized in wake of 9/11 for not detecting the plot

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. This is the second in a series of pieces by Hayden on the Edward Snowden case.

(CNN) -- "Any analyst at any time can target anyone. Any selector, anywhere ... I, sitting at my desk, certainly had the authorities to wiretap anyone, from you or your accountant, to a federal judge, to even the President. ..."

Thus spoke -- this time not Zarathustra, the Persian prophet -- but former National Security Agency systems administrator Edward Snowden.

To be sure, Snowden was reaching for dramatic effect, but if his words were true, he would have been violating not only the laws of the United States, he would also have been violating the laws of physics. He had neither the authority nor the ability to do what he has claimed he could do.

Michael Hayden
Michael Hayden

To determine what we think of Snowden's allegations about the NSA's activities, we should have a clear idea of what the NSA is actually doing, not what Snowden implies or alleges or what some 24/7 networks allow their commentators to proclaim.

The confusion is not entirely Snowden's fault. The story has been so badly mangled by the media that one of The Washington Post's "exposes" (on the PRISM program) has been rewritten, without benefit of announcing corrections, on the newspaper's website.

So let us begin where Snowden did -- with the "telephony metadata" or business records program.

It is clear that the NSA has access to large numbers of calling events that Americans create: who called whom, when and for how long, but neither the location of the communicants nor certainly the contents of the call.

Why in heaven's name would they want this "metadata" -- the term of art applied to the externals of a communication, somewhat like what is on an envelope as opposed to the content of a letter?

I'll tell you why. Before the attacks of 9/11, Nawaf al-Hazmi and Khalid al-Mihdhar (part of the al Qaeda "muscle" on the plane that struck the Pentagon) were living in San Diego. From there on several occasions they called an al Qaeda safe house in the Middle East whose communications were targeted by American intelligence.

The NSA intercepted a series of these calls and created intelligence reports on several of them. But nothing in the physics of these intercepts or in the contents of these calls (even looking at them in retrospect) told us that these two known terrorists were in the United States.

After the 9/11 attacks, the intelligence committees of the U.S. Congress formed a joint inquiry commission to determine what had gone wrong. One of the commission's findings was to criticize the "NSA's cautious approach to any collection of intelligence relating to activity in the United States."

Years later, in his 2008 book, "The Shadow Factory," James Bamford -- a chronicler and inveterate critic of NSA activities and, it should be added, a participant in a lawsuit against the agency for its post-9/11 activities -- wrote about al-Hazmi and al-Mihdhar that "the Agency never alerted any (emphasis his) other Agency that the terrorists were in the United States and moving across the country toward Washington."

To be sure, the NSA never knew they were in the United States, but a career critic of alleged NSA privacy violations (Bamford) thought the agency did and should have known these two terrorists were in (that's my emphasis) this country and the Congress of the United States believed the NSA too "cautious" about intelligence in (my emphasis again) America.

The metadata program was an attempt to deal with this challenge with the lightest possible impact on American privacy. After all, the Supreme Court had determined decades earlier (Smith v. Maryland, 1979) that metadata carried no expectations of privacy.

Thus, it seemed the perfect approach. Properly used, metadata collection was not about targeting Americans. It was about determining who in America deserved (in all meanings of the word: legally, morally, operationally) to be targeted.

And, as Steve Bradbury, the acting head of the Office of Legal Counsel at the Justice Department during this period, has pointed out, "At least 14 federal judges have approved the NSA's acquisition of this data every 90 days since 2006 under the business records provision of the Foreign Intelligence Surveillance Act (FISA)."

Billions of records are retained by the NSA under this program, but these records are accessed only under strict controls. No data mining engines or complex logarithmic tools are launched to scour the data for abstract patterns.

Instead, the data lies fallow until the NSA can put a question to it based on a predicate related to terrorism and only terrorism. A little more than 20 people at the NSA get to do this, under close supervision, and the agency reports that this happens about 300 times a year.

Let me describe a possible example of a "terrorist predicate." Let's say that somewhere in the world American intelligence comes across an individual it has good reason to believe is an al Qaeda operative, and he has a cell phone in his possession.

Under this authority, the NSA could take the cell phone number and use a computer simply to ask that ocean of metadata, "Is there any activity in here related to what we now believe to be a terrorist telephone?" And if a number in the Bronx timidly raises its hand (so to speak) and answers, "Why, yes, I routinely communicate with it," the agency gets to ask, "And who do you and your friends talk to?"

That's it! If there is anything more to be done, the agency (actually, far more likely, the FBI) has to go back to court to dig any deeper into American information.

This is hardly the East German Stasi, but there may be some in America who are still discomfited by it.

Fair enough. But folks should object based on facts rather than on the oft heard and amazingly misinformed commentary in some of the media that claims the NSA can then go back and listen to these calls in its database -- listen to calls that have never been recorded and which, incidentally, are protected by the U.S. Constitution.

And for those who still object, please keep in mind that, if the metadata program had been in effect in the summer of 2001, al-Hazmi and al-Mihdhar would likely have been rolled up, the plane that hit the Pentagon would not have had these jihadists available for the hijacking and the entire 9/11 enterprise might have been scrapped by al Qaeda.

In my next column, I'll tackle: What of the PRISM program, the collection of Internet content with the compelled cooperation of American firms? And how is that enterprise viewed here and abroad?

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
July 9, 2014 -- Updated 2047 GMT (0447 HKT)
World War I ushered in an era of chemical weapons use that inflicted agonizing injury and death. Its lethal legacy lingers into conflicts today, Paul Schulte says
July 9, 2014 -- Updated 2153 GMT (0553 HKT)
Mel Robbins says many people think there's "something suspicious" about Leanna Harris. But there are other interpretations of her behavior
July 9, 2014 -- Updated 2006 GMT (0406 HKT)
Newt Gingrich warns that President Obama's border plan spends too much and doesn't do what is needed
July 9, 2014 -- Updated 1753 GMT (0153 HKT)
Amy Bass says Germany's rout of Brazil on its home turf was brutal, but in defeat the Brazilian fans' respect for the victors showed why soccer is called 'the beautiful game'
July 8, 2014 -- Updated 1754 GMT (0154 HKT)
Errol Lewis says if it really wants to woo black voters away from the Democrats, the GOP better get behind its black candidates
July 9, 2014 -- Updated 2107 GMT (0507 HKT)
Aaron Carroll explains how vaccines can prevent illnesses like measles, which are on the rise
July 9, 2014 -- Updated 0008 GMT (0808 HKT)
Aaron Miller says if you think the ongoing escalation between Israel and Hamas over Gaza will force a moment of truth, better think again
July 8, 2014 -- Updated 2241 GMT (0641 HKT)
Martin Luther King Jr. fought and died so blacks would no longer be viewed as inferior but rather enjoy the same inherent rights given to whites in America.
July 9, 2014 -- Updated 1147 GMT (1947 HKT)
Alex Castellanos says recent low approval ratings spell further trouble for the President
July 9, 2014 -- Updated 0349 GMT (1149 HKT)
Paul Begala says Boehner's plan to sue Obama may be a stunt for the tea party, or he may be hoping the Supreme Court's right wing will advance the GOP agenda that he could not
July 6, 2014 -- Updated 1659 GMT (0059 HKT)
The rapture is a bizarre teaching in fundamentalist circles, made up by a 19th-century theologian, says Jay Parini. It may have no biblical validity, but is a really entertaining plot device in new HBO series
July 7, 2014 -- Updated 1749 GMT (0149 HKT)
Ruben Navarrette: President Obama needs to send U.S. marshals to protect relocating immigrant kids.
July 8, 2014 -- Updated 1903 GMT (0303 HKT)
Norman Matloff says a secret wage theft pact between Google, Apple and others highlights ethics problems in Silicon Valley.
July 8, 2014 -- Updated 2237 GMT (0637 HKT)
The mother of murdered Palestinian teenager Mohammed Abu Khder cries as she meets Palestinian president Mahmoud Abbas in Ramallah, West Bank on July 7, 2014.
Naseem Tuffaha says the killing of Israeli teenagers has rightly brought the world's condemnation, but Palestinian victims like his cousin's slain son have been largely reduced to faceless, nameless statistics.
July 9, 2014 -- Updated 2028 GMT (0428 HKT)
Danny Cevallos says charging the dad in the hot car death case with felony murder, predicated on child neglect, was a smart strategic move.
July 8, 2014 -- Updated 1326 GMT (2126 HKT)
Van Jones says our nation is sitting on a goldmine of untapped talent. The tech companies need jobs, young Latinos and blacks need jobs -- so how about a training pipeline?
July 7, 2014 -- Updated 1309 GMT (2109 HKT)
A drug that holds hope in the battle against hepatitis C costs $1,000 per pill. We can't solve a public health crisis when drug makers charge such exorbitant prices, Karen Ignagni says.
July 7, 2014 -- Updated 1133 GMT (1933 HKT)
Julian Zelizer says our political environment is filled with investigations or accusations of another scandal; all have their roots in the scandal that brought down Richard Nixon
July 6, 2014 -- Updated 1814 GMT (0214 HKT)
Sally Kohn says Boehner's lawsuit threat is nonsense that wastes taxpayer money, distracts from GOP's failure to pass laws to help Americans
July 7, 2014 -- Updated 1526 GMT (2326 HKT)
Speaker John Boehner says President Obama has circumvented Congress with his executive actions and plans on filing suit against the President this month
July 7, 2014 -- Updated 1331 GMT (2131 HKT)
Hands down, it's 'Hard Day's Night,' says Gene Seymour-- the exhilarating, anarchic and really fun big screen debut for the Beatles. It's 50 years old this weekend
July 2, 2014 -- Updated 2201 GMT (0601 HKT)
Belinda Davis says World War I plunged millions of women across the globe into "men's jobs," even as they kept home and hearth. The legacy continues into today.
July 3, 2014 -- Updated 1824 GMT (0224 HKT)
Pablo Alvarado says all the children trying to cross the U.S. border shows immigration is a humanitarian crisis that can't be solved with soldiers and handcuffs.
July 3, 2014 -- Updated 1151 GMT (1951 HKT)
Elizabeth Mitchell says Frédéric Auguste Bartholdi dreamt up the symbolic colossus not for money, but to embody a concept--an artwork to amaze for its own sake. Would anyone do that today?
July 2, 2014 -- Updated 1601 GMT (0001 HKT)
Wendy Townsend says Jamaica sold two protected islands to China for a huge seaport, which could kill off a rare iguana and hurt ecotourism.
ADVERTISEMENT