Former CIA director Michael Hayden defends the National Security Agency’s post-9/11 electronic surveillance program in today’s New York Times:
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 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.
Later Hayden writes:
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.
Hayden is dead-on. As Heritage fellow Andrew Grossman recently explained:
The Foreign Intelligence Surveillance Court of Review, in line with nearly every other court to consider the matter (as well as its 2002 Sealed Case decision), ruled that the government does not need to satisfy the Fourth Amendment’s Warrant Clause when it is conducting foreign intelligence-gathering.