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Former NSA Head Defends Surveillance Changes

STEVE INSKEEP, Host:

NPR's Larry Abramson reports on what the general said and what he didn't.

LARRY ABRAMSON: General Hayden is now number two man in the new office of the Director of National Intelligence, but as head of the NSA from 1999 until April of 2005, he was in charge when the agency fired up the domestic surveillance efforts that are now the focus of so much controversy. Speaking Monday at the National Press Club in Washington, Hayden was careful to distinguish between changes ordered by the President and a change that Hayden himself ordered immediately after 9/11. After the attacks, Hayden knew he had to address a problem, which he described to Congress in the year 2000.

MICHAEL HAYDEN: At the time I created some looks of disbelief when I said that, if Osama bin Laden crossed the bridge from Niagara Falls, Ontario to Niagara Falls, New York, there were provisions of U.S. law that would kick in, offer him protections and affect how NSA could now cover him.

ABRAMSON: That is only true if the NSA did not know it was bin Laden on the other end of the phone. If the NSA was unsure just who was making the call, the Agency would assume he was a U.S. person. NSA guidelines say the agency must keep the names of U.S. persons secret unless knowing the names is the only way to understand the information. Hayden said that, after 9/11 he changed that rule and began to share such information with agencies like the FBI. The idea, he said, was that these messages were now much more likely to yield valuable intelligence.

HAYDEN: The standard by which we decided that, the standard of what was relevant and valuable and therefore, what was reasonable, would understandably change ,I think, as smoke billowed from two American cities and a Pennsylvania farm field.

ABRAMSON: Hayden said that change in policy has nothing to do with the program the President authorized soon afterward. That's the program that authorized wiretapping within the U.S. on international calls and it's the target of the harshest criticism. Hayden gave few new details except to say that, this is not a huge data mining dragnet that analyzes all available communications, as some have charged.

HAYDEN: This is hot pursuit of communications entering or leaving America involving someone we believe is associated with Al Qaeda.

ABRAMSON: But, the Administration will not say just how it decides who's associated with terrorist groups. Civil liberties organizations worry that many innocent people could be swept up because of casual connections. In response to a question from the audience, Hayden did admit that this determination, once reserved for a judge on the Foreign Intelligence Surveillance Court, now can be made by an NSA official.

HAYDEN: There are only a handful of people at NSA who can make that decision. In military terms, a senior Colonel or General Officer equivalent and in professional terms, the people who know more about this than anyone else.

ABRAMSON: Law professor Peter Swire says, it's not very reassuring to know that NSA officials are now making these judgment calls.

PETER SWIRE: That somebody's very senior within the military and somebody with a lot of experience, but it's not a judge. And the whole point of the Fourth Amendment and the whole point of having judges is that, if somebody who's outside of the chain of command, somebody who's looking at this with an independent perspective.

ABRAMSON: Swire, who teaches at Ohio State University, says there's still a lot we do not know about the surveillance effort. He says that's partly because the Administration continues to define the program by telling us what it is not.

SWIRE: Some of the factual revelations in The New York Times and elsewhere suggest that there were perhaps data mining things. General Hayden didn't deny that other programs exist, but he just kept saying that this program does not feature those things.

ABRAMSON: And that's the Catch-22, trying to determine the legality of a program that remains largely secret. Larry Abramson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.