Magazine | April 11, 2016, Issue

We Americans and Our Spies

Playing to the Edge: American Intelligence in the Age of Terror, by Michael V. Hayden (Penguin, 464 pp., $30)

Even though General Michael Hayden is seven years removed from being director of the CIA, and almost eleven removed from being director of the National Security Agency, his ghost hung heavily over a recent Republican primary debate in Detroit.

The previous week, Hayden had made news by pointing out that candidate Donald Trump was suggesting a range of illegal orders (concerning torture and the targeting of non-combatants) that the military and the intelligence community would be duty-bound to disobey. When confronted with this during the debate, Trump doggedly and condescendingly twice insisted that the military would do whatever he told them to do. Faced with a post-debate uproar (not, it should be noted, among his supporters), Trump walked back his embrace of issuing illegal orders and expecting blind obedience to them.

At the same debate, Ted Cruz, who initially, in 2013, took a very libertarian view of Edward Snowden’s leak of the NSA’s metadata programs designed to capture overseas-terrorist links to Americans’ digital communications, but now says Snowden is guilty of treason, referred to those programs as “the United States government engaging in massive surveillance on American citizens.” This was a factually debatable statement, but it was said with the charged sort of language used in paranoid circles. This kind of emotive and imprecise language is meant to imply to the uninformed that the content of Americans’ domestic communications is being swept up and analyzed by the NSA. In actuality, the various programs (some of which were ended by Congress last year) tracked anonymous phone numbers and digital addresses, kept databases to query phone numbers connecting to phone numbers, captured almost no content (except in a very few cases in which a court order was issued separately, in the process of an investigation), and collected patterns of data that could show direct communication from Americans to overseas terrorists.

General Hayden was a central player in the decisions leading to the programs that underlay the debate questions. He took seriously, and even personally, the gaps in U.S. intelligence strategy that had passively abetted the 9/11 attacks, and he moved in a time of war to close those gaps against the terrorist threat.

The general criticism of the intelligence community about the surprise of 9/11 was that it had failed to “connect the dots.” Hayden undertook a frantic effort, lasting more than seven years, to put into place programs, laws, and technology that would connect the dots.

If you have watched the recent Showtime documentary The Spymasters: CIA in the Crosshairs, you’ll remember the on-camera scenes with General Hayden. The documentary features interviews with all twelve living CIA directors. I have met with or gotten to know eight of these dozen men over the years, including Hayden, but I was still surprised at how Hayden stands out from the rest — in his directness, his ability to clarify very complex issues without losing any important nuance, his folksy-yet-eggheaded communication style, his fair-mindedness, and his toughness.

Hayden’s memoir gives one the same impression. Written by a career intelligence professional and wonky, in some places, as a result, the book comes across nonetheless as down-to-earth, simple, and direct. Some of the post-9/11 intelligence-world issues are virtual halls of mirrors in their legal and institutional complexity. Hayden explains them in a clear and direct way. His upbringing as a lower-middle-class Catholic kid in Pittsburgh grounded him, and he has kept that perspective.

In 1999, Hayden inherited a technologically backward NSA. After 9/11, he transformed it very quickly into an action-oriented agency. He pivoted the mission to active signals intelligence and away from reliance on passive intercepts in which the NSA “hop[ed] for a transmission” that would “serendipitously hit our antennas.”

He ended up spending much of his time and energy — and not just after queries from Congress or leaks to the press — thinking through the balance between intelligence-gathering and civil liberties. In many ways, this theme dominates his book. In a speech to the NSA just two days after 9/11, he emphasized protecting Americans’ liberties. As new programs were put into place to plug the holes that had led to 9/11 and take advantage of new technology, he challenged his lawyers at the NSA to think constantly about, and indeed to lose sleep over, questions about the Constitution and the Fourth Amendment.

While the Dr. Strangelovean caricature many Americans have of our spy agencies is that the intelligence community cares nothing for civil liberties, Hayden has thought about these issues more seriously than most so-called privacy experts. Alan Dershowitz has even been his debate-team partner in some of these discussions of civil liberties.

On these issues and others, Congress comes off poorly in this book — as dedicated largely to unintelligent Monday-morning quarterbacking of risky intelligence programs and bailing out when the going gets tough. Hayden writes that “most American intelligence professionals are well acquainted with the broad cultural rhythm connecting American espionage practitioners and American political elites: The latter group gets to criticize the former for not doing enough when it feels in danger, while reserving the right to criticize it for doing too much as soon as it has been made to feel safe again.”

Hayden writes that the NSA terrorist-surveillance program Stellarwind “covered a quadrant where we had no other tools.” And yet, after it was leaked and became controversial, congressional leaders who had been briefed earlier on the necessity of the program as part of a mosaic of intelligence-gathering efforts wanted it only if it produced an intercept that led to “our tackling a sniper on a roof just as he was chambering a round. Anything short of that was unconvincing.” Most members simply did not understand the nature of intelligence work — the building of a composite from thousands of pieces of data from many sources, the risks inherent in acquiring intelligence from shadowy enemies.

In the face of this widespread incomprehension on the Hill, Hayden was at pains to explain “the near-absolute inappropriateness of applying law-enforcement models” to intelligence work: “What might be admirable for a court system is unconscionable for an intelligence agency.”

Hayden, more than any other NSA or CIA director, sought out Congress and the public to try to build a political consensus around the more controversial intelligence programs. The short-lived and seldom-used (a total of three detainees were waterboarded) CIA enhanced-interrogation program was shut down before Hayden even became CIA director, and yet he still sought to build political and public consensus for it — persuading President Bush to speak about it in a televised address in September 2006. He believed that since the intelligence community “was serving an executive with a bolder view on how to conduct the conflict than many in the legislature,” such a consensus was necessary.

That did not work, even when Hayden was prepared to pare down some operational capabilities to gain some political support:

I could afford to give up some things, especially if that led to the kind of political consensus we were seeking. I wanted Congress to be part of that consensus. That required a serious discussion with them. That discussion never happened. The members were too busy yelling at us and at one another. . . . In the end, the Congress of the United States had no impact on the shape of the CIA interrogation program going forward. Congress lacked the courage or the consensus to stop it, endorse it, or amend it.

His stories of the inane questions of some (kindly unnamed) members, and the duplicity of, in particular, Nancy Pelosi, Dianne Feinstein, and Jay Rockefeller, are depressing, if unsurprising.

There was a similar problem with the press. For a long while, Hayden and his colleagues had succeeded in keeping some programs known by the press from being revealed, by engaging in a constant dialogue with editors and publishers of the major newspapers about the age-old tension between the watchdog role of a free press and legitimate government secrets whose revelation would endanger sources and methods. There too, the story ends ignobly, with the New York Times, for instance, leaking word of the SWIFT terrorist-finance-tracking program in 2006. The editor, Bill Keller, actually said outright that the president was now politically weaker than he used to be and that it was therefore now more feasible to leak word about SWIFT. The paper of record subsequently ran an editorial bemoaning a “seemingly limitless stream of cash flowing to terrorist groups.” Hayden writes: “Thanks for the suggestion. Talk about hypocrisy.”

Hayden attests throughout the book to the operational utility of all these Bush-administration programs and discusses the attacks that they most certainly prevented. Even so, the Democratic Congress elected in 2006 chipped away at them until, by the end of the administration, “we had finally succeeded in making it so legally difficult and so politically dangerous to grab and hold someone that we would simply default to the kill switch to take terrorists off the battlefield.”

It got worse, of course, with the transition of administrations and Candidate Obama’s campaign pledges to end the wars and close the detention center at Guantanamo. For the ensuing seven years, the U.S. has been conducting what should be largely an intelligence war with no viable detainee policy. The Obama administration has defaulted to simply killing most low-level terrorist operatives with drones.

Even that, the president hoped to stop: He wanted to end what his top advisers called “the Forever War.” He gave a speech in May 2013 basically announcing a victory over al-Qaeda and the end of the War on Terror. In the meantime, the horror of ISIS was on the horizon; a few months after this speech, the president dismissed ISIS as “the JV team.” Hayden writes:

A president who at that point had conducted 85 percent of all secret drone strikes in human history called for limits, transparency, oversight, and the near elimination of collateral damage from such strikes. A president who had been conducting global war for more than four years then called on Congress to refine and eventually eliminate his authority to conduct that war by withdrawing and then reissuing a much more confining Authorization for the Use of Military Force.

Bemoaning the pendulum swing of the past 15 years and yet recognizing the constantly changing dynamics of public opinion, political support, and strategic circumstances, Hayden writes: “What we need here is a dial, not a switch.”

Hayden is not entirely optimistic that an open, democratic society with a yearning for transparency and instant gratification can sustain difficult, risky, and controversial intelligence programs that “play to the edge”:

American intelligence routinely assumes that it is operating with at least the implied sanction of the American people. Its practitioners believe that if the American people knew everything it was doing, it would broadly have their support. We have always believed that we worked with some manner of consent of the governed. Now the governed are reconsidering how they want to grant that consent.

Hayden believes that the intelligence community needs to welcome a more “cogent” and “complete” description of the terrorist threat and the countermeasures to it. His book is an important step in that direction.

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