Michael Hayden: Law, policy, and the war on al-Qaida: An emerging consensus? September 7, 2012.
>> Good afternoon everybody and welcome. I'm Susan Collins, the Joan in Sandford Weill Dean of the Gerald R. Ford School of Public Policy and I am just delighted to have all of you here with us this afternoon. This is the first of our policy talks at the Ford School lecture series for this new academic year. We are very, very honored today to be joined by retired US--United States Air Force General Michael Hayden. Many of us tomorrow will get a chance to welcome the air force to Ann Arbor as the Falcons take the field in the big house and in advance of that, I would just like to have you join me in doing an advance welcome, so to the Falcons.
[ Applause ]
I'll have the pleasure of introducing General Hayden more fully in just a moment. But I'd like first to say a little bit to begin with some great history of what this lecture series what it comes from. Josh Rosenthal was a 1979 graduate of the University of Michigan, who went on to earn a master's degree in Public Policy from Princeton. He worked in the fields of International Finance and he died in the attacks on the World Trade Center on September 11th in 2001. Josh's mother Marilyn Rosenthal was a long-term Michigan faculty member. She wanted to shape positive meaning from what happened on 9/11 and to honor her son's optimism about the world and about how mutual understanding, dialogue and analysis can improve communities both here and abroad. Marilyn and many others established the Josh Rosenthal Education Fund which enables the Ford School each year to bring leading public policy figures to Ann Arbor each September. And I know that there are some members of the Rosenthal family with us today and we are particularly grateful to be joined by Josh's aunt, Mary Burke [phonetic] thank you for coming. We are very grateful for your family's continued support and inspiration in the Rosenthal Lecture Series. Marilyn Rosenthal died in 2007 but I know that she would have been so pleased and honored to welcome the very distinguished General Michael Hayden as this year's Rosenthal lecture. During his 41 year career in the Air Force, General Hayden served as the country's first deputy--first Principal Deputy Director of National Intelligence, the highest ranking intelligence officer in the armed forces. He was Director of the National Security Agency from 1999 to 2005. And in 2006, he was sworn in by President Bush as Director of the Central Intelligence Agency. General Hayden has two degrees in history from Duquesne University and was a distinguished graduate school--a graduate of that school's ROTC program. He did post graduate work at the Defense Intelligence School. General Hayden has graciously agreed to take questions from the audience after his remarks. And so at around 1:30, members of our staff will come down the aisles to pick up question cards from each of you and I hope that you will share your questions with us. Professors Bob Axelrod and Allan Stam will select questions along with two of our graduate students, Christina Hodge [phonetic] and Cynthia Rathinasamy and then we will be able to have a question and answer session with General Hayden. And so with that, I ask you to please welcome me and join inviting General Hayden to the podium for his remarks, general?
[ Applause ]
>> Well, Dean Collins, thank you very much for that kind introduction. It may have noticed in the short biography that I am not a graduate at the Air Force Academy, all right. But I would ask you to take it easy on those cadets 'cause in a year or two they'll be defending you.
Thanks for the opportunity to be with you here this afternoon. It's really an honor to be part of this distinguished lecture series. And so I want to be worthy of that honor and I want to do and say something here this afternoon that adds to our national discussion in our debates about the world in which we find ourselves. And given for the 11th anniversary of 9/11, I've asked if I could talk about law and policy in the war against al-Qaeda. And albeit in military profession we genuinely do bottom-line up front, what I would hope to show you the next 35 minutes or so is that despite all the long knives and sharp political rhetoric, we have broadly arrived at a consensus as to how we want to defend ourselves against this particular enemy. But that's the end of the story, let me start at the beginning. Let me start by actually referring to a mentor of mine Brent Scowcroft. I worked for General Scowcroft in Bush 41s National Security Council. We've stayed periodically in touch. General Scowcroft had an article that he wrote for the Atlantic Council about two or three months ago in which he kind of described the word in which we're located now and compared it to the world in which he did most of his professional work. In a way he described it was that, you know, when he was in government. Practically, all the pieces on the board that he was concerned with were comprised of nation states and the way he nudged pieces around the board was what you and I today would call hard power, as opposed to the current terms of soft power and smart power, all right--nation states hard power. And what Brent then goes to point out is that in this era of globalization, practically everything that's happened for the last two decades, the telecommunications or commerce or the internet, practically everything that's happened has tended to weaken the nation state. As opposed to the era in which he grew up, the era of industrialization where practically everything, culturally, economically, trade wise, politically, seeing the strength in the nations, they just think back and looking at the audience here, not all, you know, student age think back when telecommunications were such that they were either run by the state or run by a state governed monopoly. Remember those days? And everything seemed to strengthen the state. In this current era, everything seems to erode the power of the state. And there are lots of expression of this erosion of the power of the state and the pushing of power down below the state level to non-state actors even in the direction of individuals. Lots of expressions of that, and terrorism is one but it's not the only one. I mean if we were here for a different topic, I think we could fill the space up this afternoon talking about cyber dangers, where someone in their mom's basement or their dad's garage could actually cause great harm, again the product of globalization pushing power down. On another day, we could talk about transnational crime and what's happening in Mexico and what that means for a national security. Certainly not a state actor but clearly it has security impact, not just on Mexico but on ourselves as well. A third area in which this broad phenomenon of globalization pushing power down is terrorism. Hey look, I can remember the day when a religious fanatic in a cave, near the Hindu Kush was not an item of concern to anyone of us here but they are today because of this globalization, connectedness, connectivity and power down. Now, even though--even though everything I think General Scowcroft said is right, you know, everything is moving in the direction of weakening the nation state, it is nonetheless the nation state that you and I turned to, to defend us. We still give the nation state the monopoly on the legal use of violence in our own defense. And you see the tension I'm trying to describe for you here, okay. We have threats coming at as from new dimensions, from new directions. And we have old forms, nation states to defend us. That at the level of metaphysics is what happened to us on the morning of September 11th, 2001. And the struggle of the nation state--hours, to deal with this new form of threat is frankly what it is I'm here to talk about. And this has been a struggle. And as I've already suggested to you at the end of the day, I think we've kind of broadly worked it out, but there is still a lot of roughness on the edges--it's to how we want to defend ourselves against the very atypical threat.
^M00:10:11 Now, everyone in this room knows where they were in the morning of September 11th, okay it's burned into your psyche of the way for my parent's generation of December 7th, was brought in to their psyche. I was the director of the National Security Agency and along the East coast I mean it was an absolutely gorgeous day. I don't think it got above of 75 or so in the Washington DC area. It was an absolutely cloudless sky. I remember staying up late the night before to watch Monday night football. It was actually the opening of that, what was then the new stadium in Denver and like most of us in the eastern times zone that mentioned went to work a little tired because you stayed up watching the end of the game. 9 o'clock or so, my executive assistant, Cindy Farkus comes in and gives that first report that probably everyone on this room has heard. A plane has hit the World Trade Center. And even though I'm the director of the National Security Agency and I'm charged, you know, one of the team charged with your, Defense, my instinct was the same as yours. That's probably an accident, probably a small plane--probably a small plane. I go on with my meeting. About 15 or 20 minutes later, Cindy comes back in and says, plane at the other tower. All right, and immediately, you know, this isn't accident, I know it's al-Qaeda, but I'll get to that in a minute. I turn to my executive assistant and said, "Get the head of security up here right away." And as the head of security got there, oh maybe seven, eight, or nine minutes later, a federal named Kempt. Kempt came in the door in my office and he is coming in that door, Cindy--again and the executive assistants coming in to her door saying, "There are reports of explosions on the mall." You know that like most first reports turns out to be not quite accurate, but it is a reflection of the plane hitting--hitting the Pentagon. Poor Kempt's coming in, he doesn't even have a chance to talk. I just say, "Kempt, all nonessential personnel out of the building now." He does an immediate about face, makes the announcement and our nonessential personnel. I mean we're a headquarters in addition to being the national security agency doing work at Fort Meade in Maryland, nonessential personnel begin to leave. I don't know exactly how many left, how many stayed. We have about 15,000 people to come to work there everyday easily more than 5,000 stayed as the central personnel. If you've ever seen those photos of NSA, if you can't remember it, go check out one of those Will Smith movies, Enemy of the State, okay, and they got pictures of NSA with two kind of high-rise buildings, okay? Those are our headquarters buildings. And for reasons that should be obvious to this group now 11 years later, I said try to get everybody out of the high rises and we moved into a low rider building, a three-story building which is actually was our original office building. And I went down there and blessedly, that's where our Op center was, that's where all the wires kind to came together for global communications. So in addition to being safer, it was the place I would want to be anyway. So I went down there about 10:30 or 10:45, George Tenet called me. George was that the DCI at that time, the head of CIA, and George simply says, "Mike, what do you got?" And I said, "George it's al-Qaeda, we can already hear the celebratory gun fire" and some of the things we were hearing and not literally celebratory gun fire, but you understand that--the self congratulatory kind of conversations. Of course, we all knew this could only be the work of al-Qaeda. So we began to fight the war, from that Op center in the low rider building at Fort Meade. It got to be about dusk and one of my folks came up to me and said, "You know you're kind of terrorism folks are a little--are a little off balance right now. You'll probably need to go talk to them." I said, "That's right, good idea. I should have thought of that." I went our to our CTC shop, counter terrorism center, okay, which was in one of the high rises near the top. And they could not evacuate because I don't know if you notice or not, but we actually do work at Fort Meade, it's just not the headquarters. We actually do an awful lot of our mission. I mean so, these folks had headsets on if you know what I mean, okay? They are doing real time work and we can't afford the break in coverage, the break in continuity if we say, "Hey we want to--we got to move all of your stuff and your files and we're going to take you down." I mean, it is impossible. So they are there in the high rise. I come through, it's just about dusk. I can see the sky darkening through the windows in the office. Most of these individuals were Arab-Americans. And so, you can imagine the professional trauma, the personal trauma, the national trauma that all them must have felt. So I went through and I mean there's no time to interrupt them. This was--this was kind of like "hand on shoulder" time and keep it up, okay, we appreciate you being here and just made my way through the office. I'm almost without a sound that just trying to touch each one of them, each one of the operators. While I was there, a part of the NSA National Security Agency Logistics Force was in the room and they--remember, it's dusk, they were tacking up blackout curtains on the windows of this office building in Glen Burnie, Maryland. I couldn't see it from that room but if I had been about 150 feet higher, you know, the building didn't go that high, but if I had been about 10 to 15 stories further up, I could see Fort McHenry which was one of the last areas of the United States to be bombarded by an invading enemy. And I had the thought as they're putting up the blackout curtains, "Things are going to be really different around here tomorrow." We have entered in to an entirely new era. We were going to go fight an enemy and then--I mean, just use a little bit of my own history or background. We were going to go fight an enemy that did not accept the Treaty of Wesphalia, you know, the one that kind of forced off the road and Brent Scowcroft's chessboard nation states. Frankly, they thought nation states were in the front to God because it interfered with the direct connection of the will of God to the will of the individual. They also rejected Geneva, okay. The primary tenant of the Geneva Convention is the distinction between combatant and noncombatant. This enemy did not make that distinction for those they killed. And interestingly, they did not make that distinction for even themselves in that all of their adherences were combatants of jihadists in a very narrow meaning of that word in their eyes. So, kind of harkening back to how it began, here is a security structure built on Geneva, built on Westphalia, meeting an enemy that was constructed on neither of those premises. Beyond that, beyond that, we Americans had figured out how to make ourselves both secure and free. We have this formula that worked for more than two centuries of the life of the republic. We divided stuff into bins, okay. We put all of the foreign stuff over here and we put all the domestic stuff over here. We put all the intelligence derived information over here, and we put all the law enforcement stuff over here. And now, here was an enemy living in the scene between foreign and domestic, between intelligence and law enforcement. For god's sake, one of the crews that hit one of the World Trade Centers stayed at a motel about four miles from my headquarters prior to the attack. So do you see the challenge? Okay, new kind of threat, old kind of institutions. How do you adapt the old institutions to the new threat? Two days after 9/11, I gave the talk to the NSA workforce. Actually, I gave the talk to an empty room, I was in front of a TV camera and NSA being what it was, everybody could see me globally at their work station. I still have a copy of the speech. I said some of the things you'd expect. Number one, job one is defense, okay. Attack characterization is there a second wave, what else is coming towards us? We'll play offense soon enough, but we're playing--we're playing defense now, defense.
^M00:20:00 I know a lot of folks had some difficulty with their family members coming to work. One incident, about one spouse kind of throwing yourself across of--in front of the vehicle saying, "Don't go." And so I needed to say something about the people over there. And what I simply said was, "I want to thank you for being here. I know you probably have family members who are really worried about you, but look at it on the bright side, 300 million Americans right now wished they had your job." And finally I ended up this, a really get end it--end the talk up with this. I said, "Look all free peoples, all free peoples have to figure out where in that kind of continuum between security over here, and liberty over here, where it was they want to kind of put their banner." And I said, "We Americans, blessed by history, blessed by oceans, blessed by circumstance, we've always tended to put our banner way over here, close to liberty. What happened two days ago, is going to cause a lot of folks to think about picking that banner up, and moving it down that continuum in the direction of security. So let me tell you what your job is, okay? Your job is to keep America free by making Americans feel safe again." I did a graduation address at my alma mater Duquesne, back in 2007, and I related something to the story I just told you, and then concluded to the graduates, the goal was to keep our nations safe without changing our DNA as a people. That was really hard work. That was really challenging. That was really, really contentious, okay? You've seen this played out politically. You've seen this played out in the national press. You've seen it played out currently with politicians perhaps on the right side criticizing the current president for not doing this, not doing that. You saw the current president, when he was running for president the first time, talking about we have lost our way, we have lost our values. You have the current attorney general in 2008, talking about there must a reckoning, because of the way the previous administration had acted in the face of this new and unprecedented threat. But let me repeat my hypothesis, despite the frequent drama at the political level, America and Americans have found a comfortable centerline in what it is they want their government to do, and what it is they accept their government doing. It is that practical consensus that it's fostered such powerful continuity between two vastly different presidents, George W. Bush and Barack Obama, when it comes--when it comes to this conflict. Let me start with the most fundamental continuity between the 43rd, and the 44th president of United States. Both have said we are at war, both have said we are at war with al-Qaeda and its affiliates. I was watching President Obama's inauguration and carefully looking for signals with regard to this very fundamental thing, and he actually said, "We are a nation at war," which was somewhat satisfying for someone from my background, my point of view, but not definitive. Well, no one would argue we're at war in Iraq, no one would argue we're at war in Afghanistan. I wanted evidence. He believed that we were at war with the groups that it attacked us on September 11th. In august 2009, my wife Janine and I were in Phoenix, Arizona for the VFW convention. We were there almost in the front row, and President Obama was the speaker, and the president explicitly said, "We are at war with al-Qaeda and its affiliates." In other words, remember that Foreign and Domestic Law Enforcement Intelligence, they're here in the scene, how do we do this? The president was going to use like his predecessor, all the authorities he had in his backpack. He would use law enforcement authorities, when they were useful but he would not limit himself just to law enforcement authorities. He would actually use his authorities as commander in chief to wage war against the foreign enemy. I'm sure you all remember in 2009 after just a few weeks in office, President Obama was awarded the noble piece prize, by and large, I thought he was awarded because he wasn't President Bush, okay? And the Europeans wanted to confirm that fact.
Okay. Do you recall his acceptance speech in Scandinavia? Do you recall the scene? I do. I watched it carefully. You had the president kind of at the podium here, and he's reading a speech, and the camera shots coming from here, okay. So, I'm--we're seeing kind of the back of the president, and then you're seeing the noble committee, and all the other dignitaries that have been invited, and there was a remarkable scene. I've actually tested this in other folks and they remember it the way I do. So this is just not me, you know, wishing the circumstance here. As the president's giving his speech, you look at the facial expression of the people who would just giving him the noble prize and it looked--it looked as if everyone of their dogs had been run over by a bus.
Okay, I mean they had the most somber, sad looks on their face because President Obama fundamentally was giving them a lecture on just war theory, and how from time to time it was his responsibility to use force, to protect America and Americans. I was invited to the German embassy in spring of 2007. So I've been director of CIA for about a year. Ambassador Scharioth was a German ambassador. I'd like to explain this. The German's were in the chair of the European Union back in Europe. So as a matter of courtesy, Ambassador Scharioth, the German ambassador to the United States, would about every two weeks have the other ambassadors to the United States from the other states of the European Union over for lunch, okay? Germans in the chair, ambassadors to America from the EU states over for lunch. And he would then have an American come in and be the lunchtime entertainer, all right. The American would kind of give the lunchtime talk. I'm not sure who else is there, I suspect the secretary of state probably was invited once, secretary of defenses was probably there. So, now he invites me the Director of the Central Intelligent Agency. So I get invited after--okay, I got a representative from every country in the European Union there, what would make an interesting speech. I got it. Let's talk about renditions, detentions and interrogations.
So, I did, okay? And I began--I began the conversation, I had a great staff at CIA. You are blessed as a people with the talent and morality of the folks who are in your chief espionage service. And I had a wonderful staff, they made great speeches. It was rare that I would let anyone go without, you know, the most irresistible temptation of anyone is to, you know, fool around with someone else's pros so I would make changes. But this one was so important that an awful lot of it, I just wrote. And I remember that page two or page three of that speech on there, you know, we're about midway through lunch, and you got about two dozen people in the room, and I said "Look, to make sure we're all clear here, let me tell you what I believe, what my government believes, and what I believe my nation believes." And then I gave th--gathered European ambassadors four senses. I said "Number one, we are at nation at war. Two, we are at war with the al-Qaeda and its affiliates. Three, this war is global in scope. Four, I can only fulfill my responsibility to the citizens of my republic by taking this fight to that enemy wherever he may be, for war, al-Qaeda, global, take the fight." There was not another nation represented in that room who agreed with any of those four senses. Now, I'm not saying they didn't believe it for themselves. They didn't. I'm telling you they didn't think it was a legitimate for us to believe that, and yet you've had two presidents, the American Congress, and the American Court System in essence signed up to all four of those senses. This fellow name Saleh Nabhan, he died September of 2009. He was killed by Navy SEALs in Somalia. He was the chief of operations for Al-Shabaab, which is the al-Qaeda affiliate in the Horn of Africa.
^M00:30:00 Navy SEALs approached his convoy on helicopters. The SEALs did not dismount. The SEALs according to the press accounts, made no attempt to capture. The SEALs fired with and from the helicopters, destroyed the two vehicles, landed long enough to in essence swab up enough of him to make sure the DNA would prove they got the right guy and then flew back to their carrier. I am willing to hazard to you the judgment that there is not an intelligence service in Western Europe who would have given us the intelligence to do what I just told you we did if they knew that's what we were going to do. Because of this fundamental disagreement that we believe we are totally legitimate in conducting a targeted killing outside of internationally recognized theaters of combat. Let's fast forward. Let's go to May, okay, in Abbottabad, the death of Bin Laden. You all know the story, right? You know, you're familiar and we followed the courier network, we built that up over years. The courier led us to Abbottabad, Leon Panetta, my successor is building up the case, trying to give the president enough confidence but not getting too close to the target that he actually scared the target away. The president in the face of somewhat ambiguous information has to make a decision. We decided to go, the helicopters go, the first Blackhawk gets backwash remember? It crushes, snaps off its rotor. They go in and stormed the house. They killed one of the couriers, Ahmed al-Kuwaiti. They killed one of Bin Laden's sons. They go up to the second floor. They see Bin Laden and depending on what version you're following now. The one we got from the White House right afterwards or the one that appears to be being narrated in this new book by this Navy SEAL. In an event, they shoot Bin Laden, right? And then they radioed "Geronimo E.K.I.A.. Geronimo Bin Laden enemy killed in action", an event we all celebrated. Okay, somewhat satisfying for all of us, particularly satisfying for folks in the American Intelligence and Special Operations Community who've been following him for a decade. But, just permit me, forgive me, let me rerun that tape. Let me describe it for you in a slightly different way. A heavily armed agent of the United States government facing an unarmed man, offering no visible resistance, shot and killed him, an unarmed man wanted in the American Judicial System for crimes against United States.
[ Pause ]
If you do not believe we are at war, you got to read it according to Narrative B. Only if you believe we're at war. Do you understand that what the SEALs did is a perfectly legitimate action and it was and it is and I'm no way suggesting it was not but you understand what I'm trying to say? There's an underpinning here. We're at war. And so, we've seen all of these continuities between two very different human beings, President Bush and President Obama. We are at war, targeted killings have continued. In fact, if you look at the statistics, targeted killings have increased under President Obama. Renditions, okay, that's the extra judicial movement of suspected terrorist from place A to place B. Our policy under President Obama is the same as it was under President Bush, is the same as it was under President Clinton, powerful continuity. Guantanamo, I know President Obama said shortly after taking office, he's going to close Guantanamo in a year but he did not, and why didn't he? He didn't because of a bipartisan political consensus in congress supported broadly by public opinion but he shouldn't close it. Yeah, back to continuity because we Americans have kind of agreed on courses of action, indefinite detention, okay? Eric Holder wanted to trial Khalid Sheikh Mohammed, the architect of 9/11 in New York, that didn't work out, all right? He's being tried by Military Commission which I'll get to in a minute in Guantanamo. But when Attorney General Holder was asked what if Khalid Sheikh Mohammed is acquitted in the Article 3 court in New York? And the Attorney General said, "Oh, we'll continue to hold him anyways in enemy combatant, indefinite detention, the same as his predecessor. Military Commissions, as I said, the same as his predecessor. I mean there's powerful continuity here, states secrets. The Bush Administration was criticized for invoking the State Secrets Argument when many other things I've just described for you, having contested in the American court system. And the Bush Administration in my eyes rightly, said we can't argue about that in court because it will reveal things that are still protecting Americans. And despite a campaign that was based upon a very powerful promise of transparency, President Obama and again, in my view quite correctly has used the States Secrets Argument in a variety of courts as much as President Bush. Now I am personally grateful for President Obama using the State Secrets Arguments--State Secrets Arguments to stop some of these court proceedings that I am personally named in some of these courts.
The one in which I am most personally named is something called, what President Bush called the Terrorist Surveillance Program which the New York Times called the Domestic Surveillance Program. I'm seeing a few people nod. This is about intercepting messages entering or leaving the United States that we believe we're affiliated with al-Qaeda, big expose in the New York Times in December of 2005, Pulitzer Prize for the authors in the Times piece. Let's talk a little about that, this Terrorist Surveillance Program because I think it actually--it actually enlivens something I'm trying to describe for you. Remember I said Foreign and Domestic Law Enforcement Intelligence and I got an enemy here in the scene. The 9/11 Commission recognized that. The 9/11 Commission actually criticized my agency, NSA, for being a little too timid when it came to trying to intercept terrorist communications, particularly terrorist communications that might involve US persons. In other words, communications won't end here--here in the United States. Remember, I told you 9/11 and I'm done in the Ops building and we begin to fight the war and we got to play defense and they want to play offense. As a Director of NSA, you've got a fair amount of authority. You can kind of dull things up a little bit. You can get a little more aggressive within your own authorities. Now, you know, you can't be haphazard about this. You've got to be thoughtful. You certainly have to tell Congress but you've got authority. Well, guess what I did about 11 o'clock in the morning of September 11th. If I had authority to ratchet up, I ratcheted up, all right? I dutifully called George Tenet. Remember, George is the head of the American Intelligence Committee. I actually called the house in Senate Intelligence Committees too. So hey, I'm ratcheting up. It's okay, good. I told George. Hey, you're ratcheting up. You're getting a bit more aggressive. You know, giving us a higher probability. We would intercept those kinds of messages that would tell us about the next attack. So I told George this, I don't hear from George for two or three days. Then George calls me, "Hey Mike, I was in with the President and Vice President, I told them what you were doing." Now Gorge is making a joke here he said, "I told you were going to jail, Mike" [laughs]. And the President and the Vice President says, "Okay, we'll bail him out."
Okay. What George was saying was I was being more aggressive and that I was doing it within my authorities. He was then asked, "Can he do anything more?" So George calls me. And George says, "Hey Mike," he's in with the President and Vice president. "I told him what you're doing they said, "that's great but can you do anything more?" And I said, "George, not within my current authorities I can't." And George said, "What could you do if you had more authority?" I'll get back to you. And I had it up with my people. We decided there were some things we could do but I would need more authorization, it was an inherent in me as Director of NSA. We took a dine with the President and the President using his Article 2 authorities as Commander In-Chief, remember, we are nation at war. We are against an opposing armed enemy force. Congress had already passed the AUMF, the Authorization for the Use of Military Force which is as close to a declaration of wars we will ever get in modern America.
^M00:40:00 And the President, as commander-in-chief, then said, "Okay, Mike you laid these things out I think those are good. I want you to go do them and I'm authorizing you to do them as commander-in-chief and here is the attorney general he's--he signed off saying, "I have the authority to do that." okay? I went back--I went back to Fort Meade and I took this question to my lawyers. Okay, remember the framework we're talking about here. Remember, new kind of threat, old kind of structure. How do you adapt to the new reality? And I went to my three top lawyers serially so I wouldn't get a group answer. And all three of them said, "We believe the president has the authority to authorize you to do this. We believe the president as commander-in-chief can authorize you to--to intercept the communications we're describing." And I--you know, operation I can't go into details, but fundamentally higher probability you're going to intercept the communication, one end of which might be in the United States related to the al-Qaeda threat, okay? The New York Times blew that story as I said in December of 2005. There are--there are tons of subplots for those of you who followed this. Remember the visit to Attorney General Ashcroft's hospital room at GW in March of 2004 and Al Gonzales and Andy Card and Bob Mueller is pushing him back and James Comey the Deputy Attorney General, I mean if that intrigues you, I write it on one of the cards, I asked question. And anyway, this was incredibly contentious, incredibly contentious. Now, was it legal? You bet. The FISA appellate court is ruled on this twice and let me quote to you one of the rulings from the FISA appellate court is called in Ray shield [phonetic] we take as a given that the president has inherent constitutional authorities to conduct electronic surveillance without a warrant for foreign intelligence purposes. Okay, so in terms of lawfulness, I'm fine. Politically, this is a nuclear detonation, all right, going on in DC. Okay, sorry that's a long build up. We're going to fast forward the tape. We're now in 2008. Congress in 2008, okay, is about to amend the FISA Act, Foreign Intelligence Surveillance Act. It's the law that governs everything I'm describing to you here. There are sharp debates. Senator Obama opposes the law, but later changes his mind and votes for the amendment to the FISA Act. The FISA Act, not only legitimated everything President Bush had told me almost everything. President Bush had told me to do under his Article 2 authorities as commander-in-chief but in fact, gave the National Security Agency a great deal more authority to do these kinds of things. Sorry, that's a--that's a long and involved segue here to come back to the point as contentious as that was, as bitter as the fighting was in 2005 when the story broke. Legislation has passed three years later but not only legitimates it but expands it. Why? Because frankly, I think we've got powerful broad agreement that we've got to do some things differently. Now, I've made the point of the continuity between the 43rd and the 44th president, obviously, there are differences. But the most primary difference, the most fundamental difference has to do with detainees. Recall when President Obama became president in one promised to close Guantanamo something he was not able to do but he also closed down CIAs black sites, the sites where we held al-Qaeda senior leadership for interrogation under special rules that were authorized by President Bush. That's a long and contentious argument and an honest man differ as to the wisdom of that policy. Clearly I was comfortable with it because for two or three years we maintained the black sites although we had few people in them as I thought a necessary tool in the fight against the al-Qaeda. President Obama--President Obama on January 22nd directed that we close the black sites and also I directed that all interrogations would be done in accordance with the army field manual not in accordance with some of the techniques that CIA had approved. If--if you go to CIA.gov in your leisure time and go to our public affairs site and go to the messages to the workforce in January 22nd, 2009 I'm still the director, you can see my note to the workforce reflecting President Obama's executive order. What I said to the workforce was President Obama has given us exactly what we need. President Obama has given us clear lines within which he wants us to operate. These are different from the lines we had before but our only requirement is that the lines are clear. And we will be as aggressive and as successful inside the new box as we were inside--inside the old box. And so, as director, one out of the sense of lowly to the elected commander-in-chief, I was supportive. But intellectually, personally I was supportive. What we need from the president is clear guidance. That's true and that remains true and I meant what I just said. But I never expected that we would actually get out as a nation of the detention business. I defy you to think of anyone we have captured and held outside of Iraq or Afghanistan since January 2009. We have given up detaining people. Those of you who have fallen closely along there's been one, his name is Warsame. He was caught between Yemen and Somalia. He was kept in the US Navy ship for about six weeks. Other than him I know of no other example. And much of our intelligence comes from detainees. This is the one discontinuity between the 43rd and the 44th president. We have made it so politically dangerous and so legally difficult that we don't capture anyone anymore. We take another option. We kill them. Now, I don't morally oppose that this is an opposing armed enemy force and I certainly wasn't setting into a record to my last two years as director because I only put two additional people in Guantanamo in 2007 and 2008. But we are losing the opportunity to interrogate and to learn about our enemy because I really do think we, plural, not just the president, not just CIA, we, plural, this is the one area where we really have not yet worked out the consensus. And so, we will not capture and detain and hold anyone but we are not convinced we can put into an Article 3 court at the end of the detention which is a far cry from what the Geneva Convention, the laws of armed conflict and the logic of being a nation at war suggest we should do. And so, if I'm looking forward, all right and I have a truth in lending here, I'm an advisor to the Romney campaign but that's strictly an advisor not--not an advocate, all right? If we're looking forward, I actually expect there's could have been some continuity between a president Romney and his predecessor too if that were to come to past. I actually think and all of these things that seem to carry over from 43 to 44, we'll carry over to 45. The one additional one might be that we actually look for ways to capture and detain people without needing to be CSI Miami at a crime scene, in order to create the predicate for a criminal case in an Article 3 court. I can actually envision someone considering and please don't read this as the governors intent this is just me talking. I can actually envision someone saying, "You know, we can actually put a couple of more people in Guantanamo because we are a nation at war and we do have the right to detain enemy combats. So, as I told you why am I in upfront, amazing continuity we've got to find the centerline, we're still arguing about this one thing but by and large, we're kind of okay. Look at the targeted killing program, you know, the one I said most of our European allies kind of go this like. 72 percent of you think that's a good idea.
^M00:50:00 It's hard to get 72 percent of American's degree in anything, and 72 percent are strongly supportive of that effort. Let me give you one final point before we open it up to the questions and answers, okay? And by the way, you've just had a 39 year military officer talk to you for more than 40 minutes without a PowerPoint slide, huh come on.
[ Applause ]
But if I had a slide here's where I need it.
And since I don't have it, I would do hand puppets, okay? If--if, this is what we're doing now, everything I described for you, the renditions, the targeted killings, the state secrets, the indefinite detentions and military commissions and so on, if this is what we're doing now, this will get us kind of our level of effort. Most of the things we used to worry about are up here, okay? 9/11, up here, but what I'm saying is what we're doing now is stopping this kind of stuff. 9/11. Bojinka, airliner plot over the Pacific, East Africa embassies, up here. 2006 airliner plot out of United Kingdom, you know the reason you can't take your aftershave through that TSA checkpoint. al-Qaeda, what al-Qaeda really wants to do is that mass casualty attack against the iconic target and because of this, 11 years of this, I'm an intelligence officer, we're inherently pessimistic so I never say never but it's really hard to imagine how they pull this off, okay? So what are we seeing now? We're seeing some stuff down here, okay? We're seeing that moped down the road. Umar Farouk Abdulmutallab on Christmas Day 2009 remember? We're seeing Najibullah Zazi driving from Denver to New York to try to put explosives in the New York Subway system. We're seeing a drive by shooting at an army recruiting station a Little Rock, Arkansas. We're seeing Major Hasan at Fort Hood, you see what I'm trying to describe. Secretary Napolitano, Secretary of Homeland Security, probably wouldn't put the way I'm going to put it but in it what I'm going to tell you now is I think a very fair assessment of what she has said publicly, future al-Qaeda attacks against America are going to be less well organized, less complex, less likely to succeed, less lethal if they do succeed because of this because they [inaudible] lost arm here. They're just going to be more likely, okay? And if you look at these kinds of attacks down here I know we're going to go watching American football game tomorrow but bare with me while--while I speak from on about the rest of the world caused football, okay. This is Patriot acts. No matter how good our goalie is, sooner or later this ball is going in the back of the net. So now the question I have for you, you know when I started this. I talked about consensus and continuity and new threats and old structures and we got to make adjustments, now I got one for you. Given what I just told you, not likely to happen, probably will. What do you want me to do with my left arm 'cause I can move it. I can push it down. I can actually work to make this less likely than it is today. But the question I have for you is, what of your privacy, whatever your convenience, what of your commerce, do you want to give up as I push that on down. I'm not a free agent here. I'm your servant. You got to give me some guidance, put very candidly, how much more do you want to take off, take off when you go through the line at the airport, okay? And what we need is a nation going forward, is that continuation of the very tough, sometimes overly bitter conversation we've had to get us here. Do you want us to get more likely to do this? Or you want to live with that? And if you're going to live with that and frankly if you ask me my personal view, I kind of am, if you're going to live with that, we kind of metaphorically have to kind of shake hands, okay? Because if we say no, this is about as far as I want you to go to guarantee my security, you've done some new and creative things and I'm gladly comfortable with most of them, although probably some in the room or not but you get the point. And I'm saying, "Well I can do more but you got to let me know and you say, "No, we're kind of cool. Leave it where it is". Patriot acts far enough, okay. Then you have to have the understanding that when bad things happen, bad things happen. No one did anything wrong in terms of the people defending you, okay. Nothing is broke. It's just a natural consequence of balancing a free society's liberty with its security. That's where we've been, we've worked a lot of it out. We still have some homework assignments and that's why I came to kind of share that with you because only an informed citizenry can inform the government where it is you want your security services to be. As we go forward in a world that is still quite dangerous. And with that, let me stop and I'd be happy to take any questions I may have generated.
[ Applause ]
>> Good afternoon sir. My name is Christina and I'm a master's student at the Gerald Ford School Public Policy. Thank you for being here.
>> Thank you.
>> I'm going to read the first question from the audience. There have been reports that al-Qaeda units have been operating alongside the Free Syrian Army in the Syrian Conflict. Given that the US was discretely supporting the FSA, how does the US and allies avoids supporting al-Qaeda?
>> Yup. Everybody hear the question?
>> Try it again Christina.
>> Okay. There have been reports that al-Qaeda units have been operating alongside the Free Syrian Army in the Syrian conflict. Given that the US has been discretely supporting the FSA, how does the US and allies avoid supporting al-Qaeda?
>> Okay. Syria, Al Qaeda growing in strength, you want to support the opposition to Assad but now part of that opposition appears to be al-Qaeda, what are you to do? This is the kind of question that makes me delighted I'm out of government.
This really is a problem from hell. What you have in Syria now, and I'll be very efficient but just--just a moment's background what you have in Syria now is the opposition against the Assad regime playing out on cellphone, videos and you and I are watching it every night, right? And--the popular image of that is that the oppressed against the oppressor and that's true. But there's another story line, and this is where intelligence comes in, telling the policy maker it's not just what you're seeing. It's not just oppressor and oppressed. This is Sunni Alawite, this is sectarian. And there are bunch of other groups in Syria, Jews, Christians, and Kurds [phonetic] who have not yet voted. They are not yet part of the opposition. In fact, it kind of trend towards the Assad regime because it's the devil they know until those others groups vote oppressed and oppressor as true as it is isn't the defining narrative. It's Sunni Alawite, al-Qaeda-Sunni. This is an absolute magnet drawing al-Qaeda into this fight against the Alawite to an offshoot of Shia Islam, okay? The longer this goes in my view, the more the al-Qaeda character of the opposition grows which is a really dark picture which then would suggest you well then we got to act more quickly before this becomes a real al-Qaeda flavor movement. But I've already told you it's not yet just the oppressor and oppressed, it's sectarian. You want to get involved in another sectarian conflict? So it is quite a dilemma. The scenario you laid out is correct though. al-Qaeda is there, and al Qaeda will grow in strength. It would naturally go in strength. These guys are prepared to die. These guys are prepared to kill. If you're fighting someone you think is your oppressor and somebody shows up saying I'm ready to die, I'm ready to kill, you're going to hug him. And you're not going to ask too many questions. The longer this goes, I fear the more that's going to be the--be the reality.
>> Sir my name is Cynthia Rathinasamy. I'm also from the Ford School. Thank you for being here today. Next question is as the US' fighting groups that do not wear uniforms or insignia and do not honor Geneva our response includes attacking targets that are often alongside noncombatants especially when the CIA uses drone strikes, are we not irreparably damaging Geneva? What could this mean for a conventional war in the future?
>> Yeah, it's, it's impossible for me to comment on specific operations, all right? So let me just couch my answer and I'm just talking about technology, all right? And so we're not doing, not doing specific operations by specific agencies in specific parts of the world.
^M01:00:01 But as an Airman, remember 39 years in the Air Force, the drone--UAV, I'm sorry. The drone is a popular term. We say RPV because we already do think there's a pilot. He's just remote, remotely powered vehicle, all right? It gives you an unblinking stare at the target. This is not a fast moving F15 or F16 at 400 knots that has to make a decision in a matter of a few seconds to engage or not engage. And RPV over a target can be there for hours if not days. And it can give you almost a god's eye view with the circumstances. Are you sure that's who you believed with this? How are they behaving? Are there any nonmilitary age males there? Are there any females there? When was the last time you saw females there? When was the last time you saw a nonmilitary aged males there? If we were to attack this, what weapons would you recommend? Why wouldn't you use a smaller weapon? What if you use that weapon coming in from the Northeast as opposed to the Southwest? Give me the probability of death or injury coming this way as opposed to that way. You see what I'm trying to describe for you? It gives you the opportunity to be almost exquisite in your precision. And so I think in one sense I'm kind of rejecting the premise of the question. That this is a--that the use of RPVs, UAVs is kind of a collateral damage engine. In fact it's quite the opposite. It actually gives you the opportunity to be in an incredibly high standard, to avoid collateral damage.
>> Given that the war on al-Qaeda has focused in recent time on Pakistan and the diplomatic difficulties that have ensued, what do you think is the future of the strategic partnership between America and Pakistan? Most Pakistani's are concluding that the defenses are now irreconcilable.
>> Yeah. This is--it's a question about US and Pakistani relations. This is something we've worked on a lot. The current Chief of Army Staff there Ashfaq Kayani was my counterpart. He was head of the Pakistani Intelligence Service for most of my time as Director of CIA, a wonderful man and wonderful officer. All right. As you might imagine, I went to Islamabad more than once during my time as Director 'cause this is a very important relationship, a very important country. I would go to Islamabad for a variety of reasons and I would gently fly with the C17 and we had a little comfort pad in there. So you can kind of had like airline chairs even though with the transport aircraft and they would give me briefing books like that. All 17 hours in a route to read the books and master whatever topic we were going to talk to general Kayani or his successor Ahmed Shuja Pasha about, okay? Now hold that thought. What constitutes Pakistan? What's the glue? What's the fundamental glue that keeps Pakistan together? You and me we're together because of an idea frankly. It's not blood I'm looking out here. It's glue and not blood, all right. Not even history. Its belief in a political principle and you know you get to be one of us by saying, "Yeah, I agree with that. And I raise my right hand and I'll sign?" Okay. What makes you German? In that case, it's kind of blood. Okay. I mean you could be an individual Turkish descent, 3rd generation in Germany and you're kind of still a Turk. You can be a German living in the Crimea since the middle of the 19th century and you're a German. So understanding what makes a German. And what makes a Pakistani? I came up with two things. It's not India. An Islam, okay, look, I don't mean to make a lie to this and I'm oversimplifying it. So let me beg forgiveness to begin. But there's a point to be made here. It's not India and it's Islam. Okay. Back to my C17, all right, my stock of binders, I'm mastering the case, we landed Islamabad, I got a [inaudible]. I talked to General Kayani. No matter what's in those books, fundamentally what are these I'm trying to convince General Kayani or a Successor General Pasha remember what constitutes Pakistan. Fundamentally, I'm trying to convince on the two things. One, quit obsessing about the Indians. Two, let you and me talk about making war on this particularly virulent slice of Islam. That's a really hard conversation, don't you think? So fundamentally that--I mean--this is really basic. Okay. This is almost primal. It gets in the way of creating a constructive relationship with the Pakistani's. It's just hard work. And by the way I hope you understand, I'm not blaming anybody. Okay. It's just the nature of reality at this moment.
>> What effect will sequestration, if it actually occurs have on our defense capability?
>> Sequestration, what effect would it have on our defense capability? Secretary Panetta has said catastrophic. I agree with Secretary Panetta, okay? This is another half trillion over 10 years. The Department of Defense is eight and a half a trillion. Okay. And fundamentally in a fairly orderly way it probably can eat some more cuts but it can't digest them the way sequestration says to digest them which is take every account and take 11 percent out of it. Okay. Imagine your own household account, okay, you got less money. Okay. But no, no, you can't juggle the money. You just got to take 11 percent out of everything you have. Do you know what happens if you're 11 percent short on your mortgage? That's kind of what sequestration does to the Department of Defense, okay?
>> If we are at war with al-Qaeda and its associates how will we know when we have won and what will it signify?
>> Okay. I had a note here. You saw me going back occasionally and make sure I wasn't wondering too far. And right here this is the last page, all right. How do I know I'm done?
[ Laughter ]
That is a really good question. That was going be the one after my left arm thing, okay. And I bear with I'd used too much of your time and I want to leave more space for that. So I'm happy that someone brought that up. You know the real answer is? I don't know and that's a really good question. And it's a question you should continue to ask folks like me, I mean not necessarily retired folks like me, but people still kind of doing what I was doing. How do I know that we are safe enough, that it is time for us to shift out of that "we are at war" model and go back to more traditional ways of keeping us safe? That's based upon an intelligence judgment. It's based upon our judgment with regard to the resilience of al-Qaeda and the reach of al-Qaeda. And let me add an additional thought and this Americans talking to Americans, okay. Do you know the degree of political courage that would be required of a national leader to say, "I think we're done, we're going to scale back on this thing." I mean that's--that's way up there in the real hard to do box, okay, because you make your self frankly political vulnerable. And therefore if we ever get to that point, it really will have to be based upon a national bipartisan consensus. It can't be if I stopped doing this, I got an exposed right flank 'cause it will always be an exposed right flank, all right? And so back to the point I was trying to suggest you this has got to be the product of a very sincere dialogue among people. It's kind of like the left arm thing. You know, okay, Hayden I want you to raise your left arm this time. I know I'm increasing the odds, but we're shaking on it. We understand. We're all in agreement and that's fundamentally what that question is. And we are not at that point in my judgment. That point will come someday and we will have to have the courage to address it.
>> What are other departments in our government doing in ways that are on a diplomatic level to deal with like al-Qaeda? Is there anyone to deal with?
>> Yeah. What are other departments of our government doing to deal with the al-Qaeda? And are there other ways to deal with? I'm going to take that question and run at about 20 degrees right here and just kind of answer the question I wished that question was. Okay. You had me talking about targeted killings and renditions, and Guantanamo and saying, "Hey, that's not going to happen. We're really safe," right? What I'm describing for you here is that in dealing with today's threat, in dealing with that human being he's convinced he wants to do you harm, your government is really good and it really is. Okay. We really have kept that republic safe for about--we've kept it so safe and this is the dark side. They'd often don't come with us. They come at other people now. They don't come here. That's a byproduct. It's non-intended. It's a reality. But we have kept you safe. But in the American military terms, we would call that the close fight. You know, that's the one we're fighting today, that's about the guy who's already convinced he's going to come kill you. There's a deep fight here. The deep fight is about the production rate of people who were going to come to try to kill you in 6, 12, 18, or 24 months. And as successful as we've been on the close fight, not so good on the deep fight? Now we, you know, we did this in the Cold War, remember? Then we had large armies in Europe, the Ambassador know a bunch about this. You know, we're defending the Fulda Gap in Southern Germany, best army in the Germany, the American one, defending the best scenery, Bavaria [phonetic] okay? But while we held the Soviets, we also had this deep, ideological conflict with them, did we not? And we won that one. Now whatever it is, you think of communism, you know, I think it's a pretty bad theory of history, let alone bad theory of government, you cannot argue that communism is a western philosophy. It was written by a German in a library in London. And so in the Cold War, while we're kind of holding in a close fight, we're--we're scramming it up here in the deep fight, ideologically, and we got authenticity. This is about a western philosophy. Now, fast-forward to this war, we're doing real well in the close battle. These guys convinced to want to kill us, we're stopping them. The production rate though back here, is fundamentally about one of the world's great monotheism. It's fundamentally about Islam and what it really means. And we don't have a lot authenticity in that thing. Now, I know--I know we are multicultural society but fundamentally, we have European and African roots and we're Judeo-Christian in our outlook. So it is very hard for us to get seriously involved in a dispute out here about the meaning of the Koran or the Hadith and telling that Ummah, the general body of believers, they should believe something different. In fact, we probably make it worse as soon as we engage in that fight. And so for 10 years, we got butt kiss out here, okay? We're not doing much and that 18 moths ago, something happened. This fruit merchant set himself on fire in Tunisia and you had this wave of protest and revolution, Tunisia, Libya, Egypt, Bahrain, Syria, Yemen. The heartland of al-Qaeda and al-Qaeda was absolutely irrelevant to it. It doesn't mean al-Qaeda won't exploit it, but it was irrelevant to the movement. And what was this movement about? This movement was about responsive government, responsible government, transparent government, the rule of law, democracy, voting, wait a minute, wait, we know some about this stuff. As disruptive as the Arab awakening has been, as in the near term and midterm caused us some serious diplomatic and maybe even kind of terrorism challenges. Over the longer term, it has created a new dialogue in this deep fight, a dialogue about which we have genuine legitimacy. It can offer views and so in my personal view, for the first time, we actually can engage in this deeper ideological conflict in a way that we never have before. So at the end of the day, what that means is, other elements of the American government besides your intelligence and security services, besides the Department of Defense and the CIA, need to get into this diplomatically, politically, economically, in order, and, again, it's not ours to control, it's not our to shape, but at least foster a positive movement out here about which we never had an opportunity for the first nine years of this war.
>> General, this will be the last question.
>> How does the new phenomenon of home grown terrorism fit into the enemy combatant and noncombatant categories?
>> Yeah. That's a great question--up here in hearing and a lot of these were homegrown, okay? A lot of these Faisal Shahzad, Time Square, homegrown, US citizen, okay? Not in green card, US citizen. Major Hasan, US military officer, okay? I guess the first thing I'd point out to you is that this--this problem is not zero, all right? This homegrown, self-radicalized issue is not zero, but whatever the number is, it is much smaller than it is in many other countries in the west. We do not share the kind of problem, for example, that the British have with their population. Why is that, because your CIA is better? No, okay? It is that way because of who we are. We are an immigrant people. We are far more accepted of immigrant groups. We are actually fully well practiced at assimilation. The average Islamic income in the United States of America is above the national average, right? So there's no reason to despair about this, but there will be issues. This is where that we are at war or is this a law enforcement problem, really become sharp edge. In my personal view, it will be the incredibly rare case why US--no I'm going to be careful here, who are American citizens doing something within the United States triggers that we are at war approach as opposed to the law enforcement approach. I'm trying not to be absolute here because I can imagine our future circumstances, all right? But here in my senses in that balance, okay, but going in position is this is a job for FBI, not CIA, okay? This is a job for the Michigan State Police, not the Department of Defense, okay? By the way, by and large, most of the information we knew, okay, we knew about Umar Farouk Abdulmutallab, the guy coming into Detroit was all foreign-derived. I frankly think it was a mistake to Mirandize him after 50 minutes because our base of knowledge of him is foreign intelligence. To me, the right entry point was any combatant nation at war deal with it that way. On the other hand, if someone is discovered and prevented in an attack in the United States by the FBI, the roots of that information are law-enforcement derived. The going in position is we ought to treat this as a law enforcement problem and entered this into the American--American court system. I suppose that we stayed here long enough, we could think of exceptions but in broad measure, my sense is that's--that's how we should deal with it. Well, I hope I've made it worth your while coming here this afternoon. I hope you've left with more questions than you had when you came in, that was my intent. And thank you very much for the opportunity and go Air Force.
[ Applause ]
>> Thank you, thank you so much General Hayden for your candid, clear and thought-provoking presentation and also for your insights on such very important issues. I'd also like to thank the audience for their thoughtful questions. In a moment, we'll adjourn and I hope that all of you will join us just across the walkway in the Alumni Center for our reception, but with that please join me once again in a final applause to thank General Hayden.
[ Applause ]