The man who would be DIA
QUESTION: Jim Bamford. Good seeing you here in the Press Club, General,
GEN. HAYDEN: Hey, Jim.
QUESTION: Hope we see more of you here.
Just to clarify sort of what’s been said, from what I’ve heard you say today and an earlier press conference, the change from going around the FISA law was to — one of them was to lower the standard from what they call for, which is basically probable cause to a reasonable basis; and then to take it away from a federal court judge, the FISA court judge, and hand it over to a shift supervisor at NSA. Is that what we’re talking about here — just for clarification?
GEN. HAYDEN: You got most of it right. The people who make the judgment, and the one you just referred to, there are only a handful of people at NSA who can make that decision. They’re all senior executives, they are all counterterrorism and al Qaeda experts. So I — even though I — you’re actually quoting me back, Jim, saying, “shift supervisor.” To be more precise in what you just described, the person who makes that decision, a very small handful, senior executive. So in military terms, a senior colonel or general officer equivalent; and in professional terms, the people who know more about this than anyone else.
QUESTION: Well, no, that wasn’t the real question. The question I was asking, though, was since you lowered the standard, doesn’t that decrease the protections of the U.S. citizens? And number two, if you could give us some idea of the genesis of this. Did you come up with the idea? Did somebody in the White House come up with the idea? Where did the idea originate from?
GEN. HAYDEN: Let me just take the first one, Jim. And I’m not going to talk about the process by which the president arrived at his decision.
I think you’ve accurately described the criteria under which this operates, and I think I at least tried to accurately describe a changed circumstance, threat to the nation, and why this approach — limited, focused — has been effective.
MR. HILL: Final question.
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.
We will decide what is reasonable, not your silly courts.