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Why then should it have been necessary for Congress to immunize US officers against FISA last fall?
Warrantless Criticism
By MICHAEL HAYDEN
Published: July 26, 2009
Washington
THE recent report of inspectors general on the President’s Surveillance Program operated by the National Security Agency has led some to make hasty and deeply flawed judgments about the value and legality of what was a critical part of protecting America from further attack after Sept. 11.
The program was crucial in addressing one of the most stinging criticisms of the 9/11 commission — the need to reduce the gap between foreign intelligence and domestic security. This was an especially difficult task, which helps explain both the program’s importance and its sensitivity. The program was lawful, effective and necessary.
The reflexive judgments to the contrary seem hasty at best. Although the inspectors general report notes that the compartmented nature of the program hurt its utility (it should be noted that restricting access to especially sensitive data is hardly a unique phenomenon in an intelligence community that forever has to balance using information and protecting it), it also notes that users of the information rated the program “of value,” “useful” and a “key resource,” albeit one that was most often used in combination with other intelligence sources.
Intelligence professionals call that “connecting the dots,” something for which we were roundly criticized after Sept. 11 as not sufficiently doing. The report also suggested that there were counterterrorism successes associated with the program but that these could not be discussed in an unclassified venue. Although little commented on, the report also mentions that “even those read into the program would have been unaware of the full extent” of reporting.
Let’s be clear: when the National Security Agency reported intercepted communications from this program, the reports were often disseminated in the normal intelligence production stream. An analyst would have no way of knowing the source of the information.
Some critics claim that Congress was not aware of the full extent of the program, but the ultimate judgment on the effectiveness of much of the program may actually have been the actions of Congress. In the 2008 amendment to the Foreign Intelligence Surveillance Act, Congress judged it appropriate not only to provide additional legal underpinnings for much of what the agency had been doing but also to recognize the value of its activities by providing additional critically needed capabilities. In my briefings to Congressional overseers from 2001 to 2005, I continually made the point that we simply could not achieve the program’s operational effect under FISA procedures as they then existed and it is clear that Congress ultimately agreed.
There has been much controversy about the lawfulness of the program. Here I must point out that agency lawyers — career attorneys with deep expertise in the law, privacy and intelligence — assisted their professional Justice Department counterparts in their review of the program but remained comfortable throughout with the lawfulness of all aspects of the surveillance effort.
IN any event, the aspect of the program that was so contentious in March 2004, when some Justice Department officials objected, resumed in only slightly modified form within six months under a new legal regime that all the players in March’s crisis supported. And it should be pointed out that the elements of the program made public in news reports in December 2005 had been consistently deemed lawful by the Justice Department.
Some have been tempted to read ominous undertones into the report’s careful prose: a passing reference without further definition to the program’s “effect on privacy interests of U.S. persons,” the parting words that information collected under the surveillance program and FISA "should be carefully monitored,” and a reminder that there were other highly classified parts of the president’s program out there still publicly unacknowledged. Such phrases have already led to incorrect assumptions that the report concluded that the wiretaps violated the privacy of millions of American citizens.
Let me stress that Congressional overseers were told of all activities conducted by the agency under this authorization. We made clear that this program was not a minor effort but neither was it the “Big Brother” project that some have alleged. In fact, at every briefing we reported daily and ulative activities for the program.
There is also one very large finding in the report that hasn’t received the attention it deserves: “No evidence of intentional misuse” of the program was discovered.
That is, the agency work force heeded, to the very best of its ability, the direction I gave them when the program was begun: do what the president has authorized us to do and not one photon or one electron more.
This debate on law and policy will no doubt continue, but learning will only begin when we turn down the volume, moderate our language and recognize that there is more information that will appropriately become available in time to allow both us and history to inform our judgments.
Michael Hayden was the director of the Central Intelligence Agency from 2006 to 2009 and the director of the National Security Agency from 1999 to 2005.
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Why then should it have been necessary for Congress to immunize US officers against FISA last fall?
I'll take a guess.
Because law enforcement often uses undercover operatives that are already engaging these people. Not only would it be a waste of resources to double the work, but if it's not required to seek the iden y of the other party first, they could blow an ongoing investigation.
There are already laws against revealing the iden y of covert operatives.
I still have never seen a good argument against using the FISA laws as they existed at the time. FISA allowed for the warrant to be applied for after the surveillance was done, and the denial rate for warrants was comically low.
FYI, FISA is a secret court.
I have one. Whatever they were doing or trying to do most likely wouldn't have been approved by FISA.
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