Or How I Learned to Stop Worrying

The United States Senate voted 78-15 to confirm General Michael Hayden as the new CIA Director. 25 Democrats joined 52 Republicans and 1 Independent in voting to confirm General Hayden. In doing so, the Democrats gave Karl Rove and the Bush Administration the headline they were hoping for when they nominated General Hayden.

The Washington Post website obligingly served up the following as its top news story:

Senate vote gives broad bipartisan endorsement to the architect of NSA’s domestic spying program.

The cowering Democratic response to the Hayden nomination has just needlessly inoculated the Republicans from the charge of violating Americans’ civil liberties by conducting warrantless domestic spying. This is a defeat for the American people and may result in defeat at the polls in November for the Democrats.

The Democrats now have 6 months in which they must grow a backbone. However, if today’s vote is any indication they are steadily digging themselves into the same safe yet futile hole that John Kerry climbed into during the 2004 Presidential elections. Republicans in the Congress and the White House must be doing cartwheels watching the latest act of Democratic Hara-kiri.

When President Bush nominated General Michael Hayden for the position of Director of Central Intelligence he threw down a gauntlet to the Democrats. He dared the Democrats to do battle on this nomination. He dared the Democrats to vote against Hayden and he dared the Democrats to hold up the nomination. He dared the Democrats to leave vacant the CIA Director’s position while the United States is engaged in wars in Afghanistan and in Iraq. Predictably, the Democrats on the Senate Intelligence Committee saw the gauntlet, turned tail, and fled.

With the notable exception of Senators Feingold, Wyden and Bayh, the remaining Democrats on the Committee voted to send Hayden’s nomination to the floor. By voting for the nomination the 4 Democratic Senators have fallen into the political trap set for them by the Administration. The Administration has put the Democrats in a vise. If Democrats vote against the nomination, the Administration can claim that the Democrats are obstructionist and weak on national security. If the Democrats vote for the nomination, the Administration is inoculated against charges that it overstepped its authority by conducting warrant-less surveillance. A vote for Hayden is in effect an acceptance of the Administration’s position on the NSA spying. Either way the Democrats vote they will be beat upon relentlessly in the run up to the November elections.

Democrats have rightly decided that blocking Hayden’s nomination will damage them politically going into the November elections. However, voting for the architect of the NSA spying program is an even worse option. A vote for Hayden, in addition to giving the Administration a green light on the NSA spying, will also alienate the Democratic base - and the base is crucial in the November elections where turnout will likely determine the outcome of many races. A vote for Hayden will damage the Democrats just like John Kerry’s Iraq votes damaged him in the 2004 Presidential elections. Here the Administration has figured out that they can have their cake and eat it too - they get the nominee through and they damage the Democrats politically.

I propose a third option for the Democrats. When the nomination comes up for a vote on the Senate floor, the Democrats should neither try to block it nor vote against the nomination. Instead the Democrats should abstain. Abstaining on the nomination vote blunts the Administration’s logic and outflanks them politically. The Democrats cannot be seen as obstructionists when they do not hold up the nomination. The Democrats cannot be seen as weak on national security when they do not vote against the nominee. The Bush Administration will also fail in their gambit to inoculate themselves from charges that the NSA spying is illegal. The Democrats can say that they stood on principle and could not vote for a nominee who has a questionable record on protecting American civil liberties, and on the other hand, the Democrats can say that they could not vote against the President’s nominee for the crucial position of Director of Central Intelligence in a time of war. 

When the Bush Administration picked General Hayden, no doubt they believed they had a horse on which they could win multiple political points ahead of the elections. They counted on the Democrats to cower at the prospect of a nomination fight. They counted on the Democrats to lose the game. Instead of capitulating on the playing field laid out by Karl Rove and his friends the Democrats need instead to move the playing field. It’s a simple strategy yet it holds the promise of success. 

On October 17, 2002 General Michael Hayden, then director of the National Security Agency, spoke in prepared remarks in front of a joint hearing of the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. General Hayden was speaking about NSA’s knowledge of the events leading up to the attacks of September 11, 2001. General Hayden concluded his remarks by telling the Committees what he hoped would result from the public debate on the NSA’s future role:

Let me close by telling you what I hope to get out of the national dialogue that these committees are fostering. I am not really helped by being reminded that I need more Arabic linguists or by someone second-guessing an obscure intercept sitting in our files that may make more sense today than it did two years ago. What I really need you to do is to talk to your constituents and find out where the American people want that line between security and liberty to be.

In the context of NSA’s mission, where do we draw the line between the government’s need for CT information about people in the United States and the privacy interests of people located in the United States? Practically speaking, this line-drawing affects the focus of NSA’s activities (foreign versus domestic), the standard under which surveillances are conducted (probable cause versus reasonable suspicion, for example), the type of data NSA is permitted to collect and how, and the rules under which NSA retains and disseminates information about U.S. persons.

These are serious issues that the country addressed, and resolved to its satisfaction, once before in the mid-1970’s. In light of the events of September 11th, it is appropriate that we, as a country, readdress them. We need to get it right. We have to find the right balance between protecting our security and protecting our liberty. If we fail in this effort by drawing the line in the wrong place, that is, overly favoring liberty or security, then the terrorists win and liberty loses in either case. [Emphasis added by me.]

General Hayden’s concluding remarks to the Committees give us a window into the thought process of the man who has been nominated to be the next Director of Central Intelligence. General Hayden was challenging Congress and the American people to move the line between liberty and security toward more security. He suggested that favoring liberty over security, as was the case before September 11, 2001, will mean that "the terrorists win". He suggested that the line needs to be moved so that the standards for doing surveillance ("probable cause versus reasonable suspicion" ) can be lowered toward "reasonable suspicion". He arrogantly told Congress that he is not "helped by being reminded" of NSA’s shortcomings or by being second-guessed on NSA’s failures. The most important thing for him was that Americans give up some liberty for security in order that he, Michael Hayden, can guarantee the American people liberty by intruding on their privacy.

As General Hayden spoke to Congress on that day, we now know, the NSA was already engaged in tapping Americans’ phone conversations and collecting the phone records of millions of American citizens without required court orders. The line between liberty and security had already been moved by General Hayden and a like-minded White House without the consent or the knowledge of the American people. General Hayden had moved the privacy threshold from "probable cause" to "reasonable suspicion" without an amendment to the Constitution. In his mind, it would appear, General Hayden had convinced himself that the Constitution had been amended. In his now infamous exchange with a reporter at the National Press Club recently he made the outrageous claim that the 4th Amendment of the Constitution did not specify a "probable cause" threshold:

QUESTION: Jonathan Landay with Knight Ridder. I’d like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

GEN. HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

QUESTION: But the —

GEN. HAYDEN: That’s what it says.

QUESTION: But the measure is probable cause, I believe.

GEN. HAYDEN: The amendment says unreasonable search and seizure.

QUESTION: But does it not say probable —

GEN. HAYDEN: No. The amendment says —

QUESTION: The court standard, the legal standard —

GEN. HAYDEN: — unreasonable search and seizure.

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause." And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place in probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

GEN. HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.

In light of the General’s previous remarks to Congress, the exchange at the National Press Club does not appear to be a slip of the tongue by the General. It appears that the General in pushing the bounds of civil liberties has convinced himself that the Constitution does not offer citizens the protections it quite clearly does.

General Hayden not only believed the line between liberty and security needed to move toward security he acted upon it with gusto. Under General Hayden the NSA embarked upon a massive investment in technology to enhance NSA’s eavesdropping prowess. In his remarks to Congress he stated:

Another part of our strategy for nearly three years has been a shift to a greater reliance on American industry. We have been moving along this path steadily and we have the metrics to show it. As you know, in project GROUNDBREAKER we have already outsourced a significant portion of our information technology so that we can concentrate on mission. We have partnered with academia for our systems engineering. I have met personally with prominent corporate executive officers. (One senior executive confided that the data management needs we outlined to him were larger than any he had previously seen). Three weeks ago we awarded a contract for nearly $300 million to a private firm to develop TRAILBLAZER, our effort to revolutionize how we produce SIGINT in a digital age. And last week we cemented a deal with another corporate giant to jointly develop a system to mine data that helps us learn about our targets. In terms of "buy vs. make" (the term Congress has used), we spent about a third of our SIGINT development money this year making things ourselves. Next year the number will be 17%. [Emphasis added by me.]

The $300 million for TRAILBLAZER was awarded to SAIC to develop a platform for doing massive data collection and analysis in real-time or near real time. NSA also awarded contracts to mine the massive amounts of data collected by TRAILBLAZER. In launching and managing TRAILBLAZER General Hayden presided over the largest waste of taxpayer dollars in the history of the National Security Agency. Since its inception in 1999, the program’s budget has ballooned to $1.2 billion. For the huge investment in taxpayer dollars, instead of the sophisticated surveillance platform promised by the contractors,  "only a few isolated analytical and technical tools have been produced" in the program’s six and a half years of existence.

In April of 2005, General Hayden testified before Congress about the delays and cost overruns of the TRAILBLAZER program:

In April, Hayden testified to the Senate Intelligence Committee that Trailblazer was racking up extra costs and dropping behind schedule.

"The costs were greater than anticipated to the tune of, I would say, hundreds of millions," Hayden said. "The slippages were actually more dramatic than the costs. As we slipped, the costs were pushed to the right."

General Hayden also learned what happens when you give big corporations blank checks written on the backs of the American taxpayer:

Hayden, in his testimony in April, acknowledged that NSA initially had mishandled the Trailblazer contract.

"We learned within Trailblazer that when we asked industry for something they had or something close to what they already had, they were remarkable in providing us a response, an outcome," Hayden told the committee. "When we asked them for something that no one had yet invented, they weren’t any better at inventing it than we were in doing it ourselves." [Emphasis added by me.]

General Hayden had bet the farm on TRAILBLAZER and he mismanaged the project at great expense to the American taxpayer.  But in spite of his utter failure in managing the most important project during his tenure as the head of the NSA, General Hayden has many backers and apologists in Washington:

But General Hayden’s fans remain loyal. Mr. [Bob] Graham, who was chairman of the Senate Intelligence Committee when the problems with Trailblazer became evident, said he preferred to attribute the difficulties to worthy ambitions.

"There were failures, but in my judgment they were not failures of competence or management," he said. "When you’re Christopher Columbus, you’re not going to get to your destination on the first try."

Apparently in Washington, you only need to think big not deliver big. I would think after the Iraq debacle the American people have had just enough of grand ideas backed up by incompetent execution.

The TRAILBLAZER program is likely the platform on which the domestic wiretaps and the phone records program are based. It now appears quite clear that the phone records database and the domestic wiretaps are in fact two aspects of the same program. The TRAILBLAZER program, flawed as it is, is likely being used to create and analyze a database of phone records. Based on hits from the analysis of the phone records, the NSA is likely tapping the phone calls of those that it has a "reasonable suspicion" might be connected to terrorism. I think it is now clear why the NSA did not seek to get warrants for the domestic wiretaps and why they unilaterally lowered the standard for wiretaps to "reasonable suspicion" from "probable cause". The phone numbers that the NSA wants to tap are likely gathered using link analysis techniques applied on their database of phone records. Without having listened in on the actual calls all the NSA is able to establish is that person A may have communicated with person B through a series of intermediaries. The NSA would find it very difficult to get warrants using "probable cause" for taps on the phone numbers of the intermediaries. For all the NSA or the court knows the call to the "intermediary" may have been an innocent call to a pizza place. The explanation provided by General Hayden that the current FISA warrants are slow is probably not correct. The more likely explanation is that the NSA is on a fishing expedition based on  "reasonable suspicion" and no court would grant a warrant under these circumstances. Having run into the law of the land, the NSA and the Administration simply chose to ignore the law.

In their zeal to root out terrorists in our midst, General Hayden and this Administration have chosen to ignore laws that protect our civil liberties. They have chosen expediency at the expense of prudence. They have chosen ambitious programs that have wasted tax payer dollars on ideas that have barely left the drawing board. When faced with a choice between programs that were designed with the civil liberties of Americans in mind on the one hand and programs that promised maximum intrusion upon privacy on the other, General Hayden chose the latter. After September 11, 2001 General Hayden and the NSA killed a program called ThinThread, designed with privacy protections, in favor of the more expensive and more ambitious TRAILBLAZER program.

General Hayden has consistently demonstrated, in testimony before Congress and in his actions as head of the NSA, that he is quite willing to disregard or ignore Amerians’ privacy rights in his pursuit of "security".  As Congress considers the nomination of General Hayden today, they should be mindful of the General’s distaste for civil liberties and his demonstrated failure as a manager. General Hayden may be a very competent intelligence officer, but he has shown himself to be a poor manager and protector of civil liberties. General Hayden’s intelligence expertise can be harnessed by the intelligence community but he should not be in charge of one of the premier intelligence services of the United States Government. He promises to continue to disregard civil liberties if he is placed in a decision-making role at such a high level. He needs to be guided and checked by strong leaders who understand where the line should be properly drawn between civil liberties and security. As such, he is not fit to lead an agency but is qualified to be a senior member of such an agency. General Hayden has it backwards when he says, that if we draw the line  "overly favoring liberty or security, then the terrorists win and liberty loses in either case." On the contrary, the terrorists win every time our civil liberties are eroded. General Hayden would do well to remember the oft-quoted Benjamin Franklin’s admonition that "those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety. "

The prospect of a $200 billion class action lawsuit has the effect of clearing the mind and clouding the facts. After the initial shock of the USA Today report on collection of domestic phone records by the NSA wore off the accused phone companies have now circled the wagons. Verizon and BellSouth have both issued statements denying involvement in the phone records gathering program.

After a week of bobbing and weaving by the Administration and its surrogates, the phone company denials need to be scrutinized carefully. First the President made a hastily organized public statement the morning after the USA Today report was released claiming NSA activities were lawful without confirming the program. Then Administration surrogate Richard Falkenrath delivered a fantastical and deeply flawed defense of the NSA program in a Washington Post opinion piece. Over the weekend Senator Frist went on national television and confirmed the existence of the NSA program before realizing his mistake and trying to back away from it.  Yesterday the President appeared with Australian Prime Minister John Howard in a joint news conference and appeared to confirm the existence of the program. Later White House spokesman Tony Snow denied the President had confirmed the existence of the program. In doing so, Snow bizarrely noted that a Washington Post poll showed that the majority of Americans approved of the program (the existence of which of course he could not confirm or deny). Finally, the often-confused Senator Orrin Hatch stated yesterday that two FISA judges had been briefed on the program but had not necessarily approved the program. Again, a spokesman for Hatch had to later clarify that the Senator had not meant to confirm the existence of the program.

With the waters muddied by the Administration, BellSouth announced in its statement:

As a result of media reports that BellSouth provided massive amounts of customer calling information under a contract with the NSA, the Company conducted an internal review to determine the facts. Based on our review to date, we have confirmed no such contract exists and we have not provided bulk customer calling records to the NSA. [Emphasis added by me.]

Verizon announced firmly in its statement:

Contrary to the media reports, Verizon was not asked by NSA to provide, nor did Verizon provide, customer phone records from any of these businesses, or any call data from those records. None of these companies - wireless or wireline - provided customer records or call data. [Emphasis added by me.]

The key to interpreting these denials are the words "provide" and "phone records". Verizon and BellSouth both are denying that they did not provide phone records to the NSA. BellSouth cuts this even finer by saying they did not provide bulk phone records. They do not however deny that they may have allowed the NSA to tap into their phone traffic and gather the phone data real time. This is a very crucial distinction from the phone companies’ point of view. By not providing the NSA stored call data, the phone companies are not in violation of the Stored Communications Act. However, if the NSA is collecting the data real-time from taps on the phone traffic the Government would be in violation of the "pen register" and "trap and trace device" statutes. It is not clear if by simply allowing the NSA to tap into their traffic whether the phone companies are in violation of the Telecommunications Act and the resulting $1000 per violation penalty.

Verizon and BellSouth’s narrow denials may be designed to muddy the waters and protect the companies from the massive class action suits against them. The phone companies may also be depending on the Government to intervene on their behalf in the lawsuits on national security grounds. In the meantime, the denials from the phone companies and the lack of confirmation from the Administration may sufficiently cloud the issue so that the facts of the NSA program will be obscured from the general public. The phone companies need to be challenged on their denials. Specific questions need to be asked about the nature of their transactions with the NSA and whether they are allowing the NSA to tap into their phone traffic. This is the time for reporters to aggressively follow up on the USA Today story. Nothing less then the civil liberties of the American people is at stake.