In My Time - Dick Cheney [184]
The Foreign Intelligence Surveillance Act of 1978 established a court through which NSA was required to seek approval for certain activities. Hayden explained that one of the challenges he faced was that the slow procedures of the court made it impossible to do what needed to be done with speed and agility. He described the kinds of additional activities he could undertake with expanded authorities, and I told him we’d do everything we could to see that he got them.
I reported on our conversation to the president. With his approval, I asked Dave Addington to work with General Hayden and the president’s counsel, Alberto Gonzales, to develop a legal process by which we could ensure the NSA got the authorizations Hayden needed. The president was clear that these new authorities had to be signed off on by the attorney general, the secretary of defense, and the director of the CIA before he would grant them. He also said he wanted to keep the program on a short leash and instructed that it should be reauthorized regularly. We were well aware that there is an important balance between protecting privacy and gathering intelligence. The president wanted to make sure the program was used only when needed to defend the nation.
Although parts of the NSA program remain classified, it is now public that a key element involved intercepting targeted communications into and out of the United States where there was a reasonable basis to conclude that at least one party to the communication was associated with al Qaeda or a related terrorist organization. It is hard to imagine a more important kind of communication for us to intercept from the standpoint of our national security than one potentially involving terrorists speaking to someone already in the United States. General Hayden has observed, “Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States and we would have identified them as such.”
On October 4, 2001, the president, on the recommendation of the director of central intelligence and the secretary of defense, with the determination of the attorney general that it was lawful to do so, authorized the program for the first time. At the National Security Agency, General Hayden took an extra step. He called in the three most experienced lawyers at the NSA, and, as he has said publicly, they did more than acquiesce in the program. They supported it.
After the initial authorization, every thirty to forty-five days, with a fresh intelligence assessment from the CIA, the same officials made recommendations and gave legal clearance for the president to make a decision whether to continue the program. The program was so sensitive and closely held that Dave Addington carried the authorizing document in a locked classified documents pouch by hand to each of the officials involved.
If the president did not authorize the program every forty-five days, it would stop. It was a tricky task each month getting time on each of the principals’ schedules and then getting the document to the president for signature. Once the stars did not align, and the president left for a trip to Asia before the package was ready for him to sign. Al Gonzales and Dave Addington flew to California to get the president’s signature, so the program would not stop while he was away.
Wanting to ensure that we were proceeding absolutely within the letter and intent of the law, we also took great care to brief the Congress on the program. Given the extreme fragility and sensitivity of the intelligence sources and methods involved, we briefed only the chairman and ranking member of the House and Senate intelligence committees, a practice that has been followed by both Republican and Democratic administrations when dealing with intelligence programs of this sensitivity. This program was too important and too highly classified