During an interview on Fox News Sunday, Fox News' Chris Wallace failed to challenge Gen. Michael Hayden when he defended the Bush administration's domestic surveillance program by claiming that in order to undertake domestic surveillance without a warrant, the National Security Agency must have evidence "in the probable cause range." Hayden's statement appears to be in direct contradiction to an earlier statement he made, in which he said the program requires a "reasonable basis" standard that he admitted is "a bit softer than it is for a FISA warrant."
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In an interview with Gen. Michael V. Hayden on the February 5 edition of Fox Broadcasting Co.'s Fox News Sunday, host Chris Wallace failed to challenge a statement Hayden made that appeared to directly contradict something Hayden had previously said in defense of the Bush administration's domestic surveillance program. In the interview, Hayden repeated the administration's defense that in order for the National Security Agency (NSA) to undertake domestic surveillance without a warrant, it must have evidence in the same "probable cause range" that the Foreign Intelligence Surveillance Act (FISA) requires to obtain a warrant. But as the first administration official to publicly defend the program, Hayden admitted on January 23 that what he called the program's "reasonable basis" standard is "a bit softer than it is for a FISA warrant," and directly acknowledged, in response to a question from a reporter, that the warrantless domestic surveillance had adopted a "lower standard" than required under FISA.
Asked by Wallace why Americans should not be concerned that the administration has adopted a "lower or looser standard" for conducting wiretaps in the United States, Hayden replied by outlining the administration's current defense that "the standard that we use ... is in that probable cause range":
WALLACE: General, one of the big questions I think that people are asking is: Why can't you use the FISA law that was passed by Congress back in 1978?
As I understand it, under FISA, you have to show a court that you have probable cause before you can intercept a phone call, but under the president's plan, all you need is a reason to believe.
Why shouldn't Americans be concerned that what you have done is taken a program or taken a standard, in which you had to go to a court that would be using a judge that would be using a higher standard, and instead, now, you're using an NSA officer who's able to apply a lower or looser standard?
HAYDEN: All right. Lots of questions contained in there, Chris. First of all, I think you'll hear from NSA lawyers, and you'll probably hear from the attorney general tomorrow, that the standard that we use in order to determine whether or not we want to cover a communication is in that probable cause range.
Hayden's February 5 description of the program is in line with the Justice Department's (DOJ) defense of the program, but it directly contradicts his previous account of the program's requirement for engaging in warrantless surveillance.
As The Washington Post reported on January 26, Justice Department spokeswoman Tasia Scolinos said that the operative standard for NSA surveillance is "reasonable basis," which she said was "essentially the same" standard as FISA's requirement for "probable cause." But as Media Matters for America documented at the time, the DOJ account directly contradicted a statement Hayden had made earlier that week. In a January 23 press conference, Hayden acknowledged that the domestic surveillance program's standard is "a bit softer than it is for a FISA warrant" and confirmed a reporter's characterization that the program has a "lower standard" than that required by FISA:
HAYDEN: The president's authorization allows us to track this kind of call more comprehensively and more efficiently. The trigger is quicker and a bit softer than it is for a FISA warrant, but the intrusion into privacy is also limited: only international calls and only those we have a reasonable basis to believe involve Al Qaeda or one of its affiliates.
REPORTER: 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?
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.
REPORTER: 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?
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.