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The Current Transcript for August 4, 2016

Host: Laura Lynch

STORIES FROM THIS EPISODE

Listen to the full episode

Prologue

[Music: Theme]

SOUNDCLIP

I feel very overwhelmed, emotional, yet hopeful at the same time. So many of us have been fighting for this for so long.

LAURA LYNCH: For Lorelei Williams, the loss is personal and painful — two members of her family among the missing and murdered Indigenous women of Canada. Now a national inquiry will attempt to do what Williams and others want — provide justice, healing, and a path to preventing future violence. But can it do all that? And then...

SOUNDCLIP

If a future president wants to water board somebody, he'd better bring his own bucket. Because the agency I led will not do it.

LL: Harsh words from former CIA director Michael Hayden on presidential candidate Donald Trump. The man who was in charge of hunting down America's enemies offers his take on current events and defends his agency's methods in what he calls the Age of Terror. I’m Laura Lynch, and this is the summer edition of The Current.

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Missing and Murdered Indigenous Women inquiry launches with hope and concern

Guests: Carolyn Bennett, Pamela Palmater, Christa Big Canoe

LAURA LYNCH: I'm Laura Lynch, and this is the summer edition of The Current.

SOUNDCLIP

We are all here today gathered for such a momentous historic event. Yes, at times it will be certainly solemn, for we gather here to seek the justice, give the justice, and honour our women. Our women and girls that are missing, our women and girls that are murdered, and to stop this national tragedy and disgrace.

LL: Algonquin elder Claudette Commanda had been waiting a long time to say those words spoken yesterday morning at a ceremony in Gatineau, Quebec. The event marked the long awaited official start of the national inquiry into missing and murdered Indigenous women and girls. While some feel the inquiry is a step towards justice for victims and their families, others are concerned that the commission's mandate doesn't go far enough. Indigenous and Northern Affairs Minister Carolyn Bennett has led the process of launching the inquiry, and she was on hand yesterday to hand things over to the commissioners. Carolyn Bennett joins me now from Ottawa. Hello.

CAROLYN BENNETT: Hi Laura.

LL: I'm sure you've heard a lot of the reaction already from people whose expectations are very high and who are very concerned about what the inquiry will and won't do. What do you say is the goal of the commission?

CAROLYN BENNETT: Well, I mean the commission is directed to make recommendations on the concrete actions to remove the systemic causes of violence, and increase the safety of Indigenous women and girls in Canada. And also to make recommendations about commemorating and honouring the memory of the missing and murdered women and girls that we’ve lost. So, it's a big task, but we think that we've been able to get it right in terms of what commissions can and can't do. We're very grateful to people like Justice Sinclair, Senator Sinclair, who's been very eloquent in being able to describe what commissions can and can't do. That it's not a criminal court, it can't lay charges or prosecute people, or find criminal wrongdoing. But, it can refer cases that are worrying to the commission to police, or to oversight bodies, or to attorneys general. But they also can get to the bottom of individual cases, because they now have the ability to compel witnesses and compel documents.

LL: OK, let's dig into this a little bit more. I want to play you some tape of people who are reacting to it. BC based activist Lorelei Williams, who I believe you met with before the inquiry was set up. She knows the pain of losing two female members of her family, and listen to what she had to say about the terms of reference for the inquiry.

SOUNDCLIP

The terms of reference has to explicitly include policing and police accountability. This is very important to me, because of what happened to my family. My auntie Belinda’s case, she went missing in 1978. She is not technically reported until 2004, because they wouldn't take her case seriously.

LL: So what do you think of Lorelei Williams' concerns?

CAROLYN BENNETT: Well, I think that again, and the commission now has the power to investigate any system, or any institution, and there was a concern if systems that weren't listed would then be able to proceed in litigation as to why the commission thinks they could investigate them. So, by giving the commission broad, important powers to do exactly what they see fit to execute their mandate. We believe that even in the referral back to attorneys general, or police, or oversight body. This is under a very powerful microscope and scrutiny--

LL: [interposing] So you’re talking about public pressure having an effect, because they will not have the power to order that any investigations be reopened.

CAROLYN BENNETT: But they in referring a case, I can't imagine a police organization under the Inquiries Act they can't compel that, period. But they can in making a very public referral in terms of their moral authority, to tell the police to look into this again under the scrutiny. And then, that they can track those cases back to the commission such that that becomes part of the recommendations.

LL: I think one of the other issues though for a lot of people like Lorelei Williams, is that the inquiry will be sending these cases back to what is for many families of victims the same kinds of institutions that they have learned not to trust over the years. And you’re telling them to trust them again.

CAROLYN BENNETT: No, I think what we're saying is that we have heard them strongly. That there was nobody there for them when they weren't being heard, when they weren't being listened to, like Lorelei's story. And that's why the Minister of Justice is setting up the family information liaison units that will help them navigate the system. That's 16 million dollars that will go to families to navigate the system and be able to track how those families are dealt with and report back. And the commission will be watching carefully.

LL: I want to play another clip for you now. Dawn Lavell-Harvard is the President of the Native Women's Association of Canada, and at the press conference following yesterday's announcement she had this to say.

SOUNDCLIP

We're concerned there does not appear to be an opportunity for families to pursue or reopen cases through the justice system. Families made it very clear that they wanted answers. That many cases that they felt were closed prematurely, cases that they don't accept the conclusion, they wanted an opportunity to have those reopened.

LL: Now, I know that reflects among the same issues we were just discussing, but it goes to another issue. When the inquiry is trying to deal with these things, they're also going to be dealing with a lot of provincial authorities. What kind of cooperation are they going to get from police forces, from provincials attorneys general, is it going to be a true national inquiry?

CAROLYN BENNETT: Absolutely, Laura. And I think we've got every confidence this was historic, having all provinces and territories agree to sign on and allow the commission to investigate in the systems, in their jurisdictions. It means that the commission can compel witness documents from those institutions--

LL: [interposing] From police forces?

CAROLYN BENNETT: Absolutely.

LL: From active investigations?

CAROLYN BENNETT: In terms of an active investigation, they're not allowed to intervene, according to the Inquiries Act, in an investigation that's ongoing at the time. But these cases that the families are concerned about, a lot of them as you've heard are ones where it was called a suicide or an overdose or an accident and the family believes this was a murder. And they want, particularly so many families want, that pattern of the idea that this was a death that was inevitable, the life was valued less, that the families want the commission to be able to really have a look at that. And the commission will have the power to do that, absolutely.

LL: But I guess for a lot of them though, a lot of these cases have been called open investigations for years now, cold cases, and this inquiry won’t have the power to look into them because they are still considered active cases.

CAROLYN BENNETT: Well, I think that the families are most worried about the ones that were closed or weren't even investigated at all. Because it was called a suicide nothing seemed to have been done, the investigation wasn't adequate, and then the police stopped working on it. Those are the cases and the experiences of the families that are the most disturbing.

LL: Minister, we will leave it there but I thank you very much for your time.

CAROLYN BENNETT: Thank you very much.

LL: That was Carolyn Bennett, Minister of Indigenous and Northern Affairs, and she was in Ottawa. Well, across the country advocates have spent decades demanding an inquiry into missing and murdered Indigenous women. Now that it's finally been launched, we're asking two of those advocates for their reaction. Pamela Palmater is the Chair in Indigenous Governance at Ryerson University and we reached her at her home in Ajax, Ontario. And Christa Big Canoe is the legal advocacy director at Aboriginal Legal Services in Toronto. We reached her today just outside the city. Hello to you both.

MANY VOICES: Hi.

LL: Pamela Palmater, two weeks ago the draft of the inquiry's terms of reference was leaked, and you were concerned about what was in it then. To what degree has now the official terms of reference and what Carolyn Bennett had to say allayed your concern?

PAMELA PALMATER: Well, I'm a person of caution. I never go by what anyone says at a press conference, because the proof is in the pudding. And the terms of reference that was leaked compared to the actual terms of reference has not changed substantively except for one significant aspect — the provinces and territories were deleted from the final copy. So that's not just symbolic, but it's also indicative of a potential problem where you have some provinces who haven't passed their orders and councils. We don't know if their orders and councils are going to be consistent, if they're going to do it at all, if they're going to do it in a timely way, or if they will have inherent limitations. So--

LL: [interposing] But you heard the minister just say that they have all signed on and they are all going to be involved.

PAMELA PALMATER: She said that the whole way along, that they've signed on. But they haven't signed on to anything. There are no signatures, they weren't at the press conference. They're not included in the terms of reference. So, what she means by signed on is they will at some point hopefully pass an order and council to authorize this federal inquiry into their provincial and territorial jurisdiction.

LL: Christa Big Canoe, what are your thoughts upon hearing about the final terms of reference and also the minister's remarks?

CHRISTA BIG CANOE: Well, I have to agree with Pamela in terms of not putting a lot of trust into press conferences. And you know, there were a lot of positive things said yesterday by all the ministers, and you know, you're hopeful that they'll actually come true. But I've been saying all along it should be in the mandated document, which is the terms of reference. If it's important enough to say over and over again to families and to the public, it should be important enough to include actually in the terms of reference, which is the governing document. To six months, eight months, ten months, 18 months down the road, people aren’t going to recall what was said on the day that it was launched. All they'll have to work with is the legal document that actually gives through legislative powers authority to the commissioners.

LL: But do you doubt then that they will be able to access documents that come out of provincial jurisdiction?

CHRISTA BIG CANOE: You know, one of the things is will there be provinces that comply, that cooperate? Absolutely, I think there will be. But in a two year time period, trying to navigate through the systems of different provinces and territories and their legislative frameworks. So, for example where there's time limitations or statutes of limit on certain types of legislation or information, or going through Freedom of Information requests — we do these all the time in our office of aboriginal service — and they often take us months. So, it will be interesting to see how a commission will be able to compel 13 jurisdictions and how much cooperation there will really be. In the truth and reconciliation, we saw the commission have to take the feds to court a number of times. I know it's a different day and a different government, but there are opportunities for lots of legal latches.

LL: Pamela Palmater, we know now it's been made very clear that this inquiry will not be investigating, so to speak. It won't be a policing type of inquiry, they won't be going into individual cases and demanding that charges be laid. But you heard what they will be doing, which sounds like putting a lot of public pressure on cases that they say need to be reopened. What do you think of that?

PAMELA PALMATER: I think that's ridiculous. I mean, honestly, how many justice inquiries have we had already saying that there is systemic racism and overt racism in Canada's police forces, in the justice system? I mean, in the Ipperwash Inquiry they said it was like an infection, it's rampant, it's not just a few bad apples. So, we're essentially asking all of the families, who have some of them for four and five decades been trying to work with police, and victim services, and Crown prosecutors, to get them to look at their case and say you know, because of an inquiry, police, we think you should reopen these cases, that the police are just going to say sure no problem. Especially if they know they're you know, implicated in not doing something to begin with. That's a huge leap of faith when at their own press conference they were saying that Canada's institutions are infected with racism and misogyny. The same institutions that are meant to protect indigenous women. So, now they're saying these infected institutions are the ones we're going to send all the families back to. And I think that's the biggest insult.

LL: What's your solution then?

PAMELA PALMATER: My solution is that they should have had multiple processes. So, there's no reason why they couldn't have had a separate oversight body, you know, even one of the commissioners leading that, to look at closed cases, open cases, misnamed cases. And I don't mean in terms of a criminal court. I don't think anyone's ever suggested that. But to look at and interview witnesses about what happened, what did the police do, what did they didn't do, what's the evidence they didn't look at, how long did it take, so that you can look at not just individual problems, but the very systemic problems that they want. And within a two year period, you would need a parallel process just to look at those. Because as a minister said, it's not going to be 1,200 cases. We're talking about the range of 4,000 cases nationally.

LL: Christa Big Canoe, I'm wondering what you think about that idea. I'm not sure that the terms of reference, broad as they are would prevent the commissioners from doing something like Pamela Palmater is suggesting, but do you think that's a good idea?

CHRISTA BIG CANOE: Absolutely. And I think that there needs to be more parallel processes than just looking at referring cases, or looking at and investigate a branch that looks more particularly at individual family cases. I think there are lots of opportunities. I also have to agree though there's nothing precluding the commissioners from setting up something like that. The problem is the timeframe and what will be allowed. A lot of talk has been spent on recognizing that there's a pre-existing reports and inquiry. And we know the root causes of domestic violence and violence against Indigenous women and girls, so we're not starting at point zero. And so the commission is really going to have to focus this time. It's good to have a broad mandate, but the problem is if it's too broad and there's too many limitations, which the National Inquiries Act could sort of cap some of that or cause a limitation, as well as the timeframe, then they're not going to get a chance to launch and start and get all the priorities put out there. So I think the biggest constraint right now is not the terms of reference, because there's enough room for the commissioners to wiggle around. I think it's the reality that they're just not going to give enough time to set up.

LL: OK, so then obviously the big responsibility falls on the shoulders of the commissioners and what choices they make in the weeks and months to come. What do you think of the choices of the commissioners?

CHRISTA BIG CANOE: I think it's some good diverse choices in terms of life experience and geography. I think to put the whole weight on the commissioners though is also unrealistic because it is the terms. So although the federal government once they hand it over to the commission is arm's length. If they don't give the time, tools, and resources to the commissioners then it doesn't give them the opportunity to succeed. I think that you know, you have some legal expertise on there, including some human rights. You have the first female Indigenous woman appointed to the BC bench in Justice Buller, and she has done a lot of work in BC in setting up First Nations specific responses in the justice system. So you have someone who sort of has an understanding of bringing Aboriginal justice driven processes, not inherent or not traditional justice systems, but a way to incorporate it into a system. You have a human rights lawyer who was with Ontario Human Rights Tribunal. You have Michèlle Audette, who’s a very outspoken and vocal advocate of Indigenous women and children's rights. You know, it's a good array of people. It's not the commissioners, they're all intelligent people who in their own rights have you know, made a place in life and have respect within various communities. You could pick others or there could be conversations of others, other commissioners, but the reality is all the people who have been picked are intelligent, smart, well-respected people within various communities and there'll always be somebody who wants someone else.

LL: Pamela Palmater, I'm wondering what you think?

PAMELA PALMATER: Well, I think the organizations and the families spoke out you know, quite a bit about the choice of the commissioners. One, that they weren't all Indigenous women which is something that was brought forward in the engagement sessions.

LL: Does that concern you?

PAMELA PALMATER: It concerns me because this whole problem is about male violence against female Indigenous people. And so some of the families are raising concerns when they go to testify, they don't want a male commissioner and that they're going to ask him to be excused. So I think it's problematic having a male person, regardless of how wonderful his credentials are when we're talking about male violence. The other thing is that Pauktuutit and some of the other Inuit organizations and families raise concerns that like the Truth and Reconciliation Commission, there is no Inuit commissioner. And they feel that whenever there are these national, provincial, or territorial processes, Inuit voices are always lost despite the fact that they have very qualified, intelligent, experienced Inuit women who could be a part of that process. So, I mean those are the comments coming from some of the Indigenous organizations and families so far. The only person I know on the commission is Michèlle Audette, and I know that she's obviously an advocate and a champion. And I don't think that the issue is ever going to be you know, challenging their credentials. It's what the families have said for a very long time, and what human rights experts have said you know, should be a part of this. And if we're going to get at the heart of colonialism, you know, we really have to stop trying to do balance. Government’s always saying balance whenever we challenge their power.

LL: Pamela Palmater we're going to have to leave it there for times sake, but I'm sure we'll be talking about this again. Thanks to both of you.

MANY VOICES: Thank you.

LL: Pamela Palmater is the Chair in Indigenous Governance at Ryerson University, she was in Ajax, Ontario. Christa Big Canoe is the legal advocacy director at Aboriginal Legal Services in Toronto, and she was just outside the city. I'm Laura Lynch, and you are listening to the summer edition of The Current.

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ENCORE: Inside America's intelligence with former CIA and NSA director Michael Hayden

Guests: Michael Hayden

LAURA LYNCH: Hello, I’m Laura Lynch and you're listening to the summer edition of The Current.

SOUNDCLIP

DONALD TRUMP: I said they’re chopping off our heads in the Middle East. They want to kill us. They want to kill us. They want to kill our country. They want to knock out our cities and don't tell me it doesn't work. Torture works. OK folks, have these guys torture doesn't work, believe me it works, OK? And waterboarding is your minor form. Some people say it's not actually torture. Let's assume it is, but they asked me the question what do you think of waterboarding? Absolutely fine. But we should go much stronger than waterboarding. That's the way I feel.

LL: That was Republican presidential candidate Donald Trump last February, making his feelings about torture absolutely clear. He's also said the United States should target the families of terrorists, which would be a war crime under international law. Brash statements like that have propelled Mr. Trump to the Republican nomination, and it’s causing unease among people whose job it is to actually hunt down and kill terrorists. One of them is Michael Hayden. He was the director of the National Security Agency from 1999 until 2005. He was also the director of the Central Intelligence Agency from 2006 until 2009. And he's the only person ever to have held both positions. He's the author of the book Playing to the Edge: American Intelligence in the Age of Terror. And I spoke with Michael Hayden last March. Here is our conversation.

LL: Hello.

MICHAEL HAYDEN: Hi Laura.

LL: General, what do you think of what Donald Trump said, morality and work crimes aside, does torture work?

MICHAEL HAYDEN: Wow. Where to begin. How to unpack all that you just played. Look, let me give you the gut feeling of what Mr. Trump is saying and how people like me feel about this. Number one, he seems to be doing this out of enthusiasm. Whatever we did, and again honest men can argue about it, we did not do out of enthusiasm. We did out of duty and occasionally out of regret. He says we ought to do this because they deserve it. We never did anything to these people because they deserved it. We're not the arm of American justice, this is American intelligence. This was never backward looking, this was forward looking. And again, people can disagree with what we did--

LL: [interposing] And people do, but you do say in the book you point to examples of where you say it was effective in getting information.

MICHAEL HAYDEN: Right, right. But again, and just back to motivation and distinguishing what would happen to what he's claiming he would do, this was forward looking and it was about safety. And then finally, finally what we did was rare. We did it on three and only three people in the last time in 2003. He appears that he wants to do it routinely.

LL: OK. So, that comment and his comment about going after the families. What do you think of that? Do you think that that's an appropriate role for America's military or intelligence agencies?

MICHAEL HAYDEN: Well, two broad thoughts. With regard to waterboarding, I have said in other fora and I’ll repeat for your audience Laura, if a future president wants to water board somebody, he better bring his own bucket. Because the agency I led will not do it. Not because they disagreed with what they've done in the past, but they frankly feel betrayed by the society they served because of what's happened to them afterwards. And with regard to targeting the innocent, violating the Geneva Convention, and going after women and children because they happen to be related to terrorists, that's such a fundamental violation of the laws of armed conflict that my expectation would be that if that order ever popped up in the American command and control system, the first American in uniform, a man or woman would simply turn to whomever had given the order to him or her and simply say this just isn't going to happen.

LL: You would defy an order of the commander-in-chief?

MICHAEL HAYDEN: I fully expect an order so black and white as that one, I can't picture the American armed forces carrying it out. Now Laura, to be perfectly honest you know, innocents die in combat, it's called collateral damage. And there is a moral judgment to be made with regard to the eternal principle of war, with regard to distinction and proportionality. How many of the innocent might die and is that target really necessary, that happens all the time. And frankly, I think right now our threshold for collateral damage under President Obama in Syria is too low. In the end more innocent people will die, because you have not disabled an enemy that does intentionally target the innocent.

LL: And there are some who would certainly dispute that argument with you, who say that civilians dying in the name of killing those who are labeled as terrorists is simply not acceptable. But, when you hear Donald Trump speak about fighting terrorism and maintaining security at home, and the words obviously concern you. But does it worry you that he might be a threat to national security?

MICHAEL HAYDEN: Well, one hopes that whenever anyone becomes president, what the permanent government, you know, the folks I left behind at these agencies try to impose on the president-elect is their worldview. I have a line in the book Laura, and I applied it to the 2008 election, and it would have applied no matter who won, Senator Obama or Senator McCain. And it's simply this: our job is to point out to the newly elected president that national security looks different from the Oval Office than it does from a hotel room in Iowa.

LL: I guess you're hoping that'll be true if Mr. Trump becomes president.

MICHAEL HAYDEN: That's right.

LL: I want to ask you about the recent attacks in Paris and Brussels. I'm wondering what do these attacks tell you about the state of intelligence gathering these days?

MICHAEL HAYDEN: Yeah. Sadly these attacks were not a surprise. They were somewhere between expected and inevitable, knowing what it was we knew and knowing what it was we didn't know about the ISIS network in Europe. These were fairly mature attacks. Multiple targets, high end targets, sequentially done, synchronized. This wasn't cooked up in somebody’s basement the night before. And it's clear that the attacks, for their success, depended upon a network that could get the weapons, could get them hidden, could get the detonators, could get everyone to the targets on time and so on. And so, I fear the extent of this network is broader than we know, and it remains there as a clear and present danger to safety. I should add Laura, in Europe.

LL: But did intelligence fail?

MICHAEL HAYDEN: Well, I mean the attack took place. And so yeah when you look back as to what happened, both intelligence and in this case law enforcement, because we are talking about domestic activities in these countries, appears to have been well short of need.

LL: Let me go back to a very dark day in American history, one that was certainly dark for you and many other Americans. You were the head of the National Security Agency the day the planes flew into the World Trade Center, and the Pentagon, and in the field. What were your main concerns in the minutes and hours after that attack?

MICHAEL HAYDEN: Yeah, the first concern I had was to protect my workforce. Not because that was a moral imperative, not just because it was a moral imperative, but it was an operational imperative. The nation would be badly damaged if we lost the talent that is represented by the NSA workforce. So, the first thing I did was to evacuate all nonessential personnel. And then I took the essential personnel Laura, and to the best of our ability got them out of the high rise headquarters building, and put them into an older three story operations building that goes back to the near founding of the agency. Get them out of the high rises, get them into the low building, and let the nonessential folks go home. And then the other thing we started to do Laura was to build in plans not just to protect America but to protect ourselves.

LL: And I want to get to that, but I need to ask you in light of what we were just discussing with Brussels and Paris. This was an intelligence failure was it not?

MICHAEL HAYDEN: What, 9/11?

LL: Yeah.

MICHAEL HAYDEN: Yeah, we freely admit that it was a failure. But you know, if you let me step back, and this is not meant to be in the defense of the community of which I was a part, but to describe more broadly the issues we all face, I agree mistakes were made. My agency made some, CIA, FBI, in the run up to this. But given the overall condition of the country Laura, given the state of law enforcement, the state of law, the way we had decided to protect ourselves against what we viewed to be the threat. If this 9/11 had been stopped, another 9/11 would have happened. The reason we're safer after 9/11 than we were before is not just that our intelligence got better, but that we as a nation decided to go on a war footing and that totality is what has made us safer.

LL: You write about a meeting that took place shortly after that, involving intelligence services of Britain, Australia, New Zealand, the US, and Canada, and you were told by Britain at that time that there needed to be a discussion about balancing security with freedom. And I'm wondering how the US responded to that advice.

MICHAEL HAYDEN: Oh, no we welcome that. We all knew that, we all share that Anglo-Saxon democratic tradition. I mean, we've got shades of differences between and among us, you know, parliamentary governments, presidential governments, and so on, but we all go back to the same trunk of the tree, to the to the same roots. And in that meeting Eliza Manningham-Buller, who then was deputy MI5, later, became the head, she summarized it quite well. She said our societies are all accustomed to do what it is we have to do to those who are guilty. Our challenge in the intelligence services is to devise what it is we must do to find and ferret out those who are not yet guilty. That's a real challenge.

LL: OK. And so your response to this is the president asked you to find out what you can do. You write about a top secret program you launched called Stellar Wind, that's attracted a lot of controversy over the years. What was Stellar Wind?

MICHAEL HAYDEN: Yes Stellar Wind, if you just step back for a second Laura, talking about how we were as a society before 9/11, we in the United States had decided the best way to get both freedom and security, liberty and privacy, was to create divisions. And so we kind of shoved all the foreign stuff to one side, all the domestic stuff to another, shoved all the intelligence activity to one side, all the law enforcement stuff to the other side, and we kept those separate. As the best compromise to buy both security and liberty, safety and privacy. Those 19 hijackers drove down that seam between those characteristics that I just described. So, the challenge we had was how then do we tighten up in a world in which we kept foreign and domestic intelligence, and law enforcement information isolated from one another. And the challenge, we responded to the challenge in many ways. But one of them was the Stellar Wind program, which was designed to detect terrorist communications that should have been of the highest importance to the United States, terrorist communications, one end of which was in this country.

LL: And yet you seem somewhat aware of the fact that you were as you say playing to the edge. Because you write in your book about taking a walk with your wife at Fort Meade and telling her you were about to do something controversial. And you write and I'm going to quote here, “I was comfortable with doing it because it was right. But at some point there was going to be high political and reputational risk, and I couldn't rule out legal risk either.” Why did you think that?

MICHAEL HAYDEN: Because a subsequent president might decide that what this president had authorized was in one way or another illegal or unconstitutional. Now as it turned out Laura, the next president, President Obama, not only did not do that, he actually doubled down on the program, and actually expanded it. On the other hand, some of the things that CIA had been doing which were not the subject of that chapter, the incoming president decided quite arbitrarily in my view that what the agency had been ordered to do actually constituted felonies and there were investigations of CIA officers. So you know, eyes wide open, reputational risk was going to be there, political risk certainly, and could not rule out legal risk. I still thought it was not just the right thing to do, but the legal thing to do. My lawyers told me that our president, under his article to authorities, did indeed have the power to in this case ignore the FISA statute, and go ahead and authorize us to gather metadata.

LL: Now your words there that I read in that quote, someone like Edward Snowden might make the same case. He knew leaking the documents carried a legal risk, but he thought it was the right thing to do for the country. So what's the difference?

MICHAEL HAYDEN: Well, the difference is that I stayed in this country and was willing to go under anything the American political or legal system would have me do. I did not go to a third country and remain there. You know, I don't view what I did to be civil disobedience since I was doing it under the authority of the president, with the approval of the attorney general. Mr. Snowden has indeed conducted what he believes to be civil disobedience. And if you read the American classic on civil disobedience, Henry David Thoreau’s piece, he says that civil disobedience takes its moral meaning from the willingness to suffer the consequences of your action legally. Mr. Snowden does not appear to be willing to do that.

LL: And you disagree with what he did obviously.

MICHAEL HAYDEN: Yes.

LL: Now just recently though the former Chief of Staff to Colin Powell, Colonel Lawrence Wilkerson, said Snowden has done a service. He called him, I’m going to use the words that he used, courageous, logical, impressive. He refrained from releasing anything truly dangerous. He was circumspect, altruistic motives, more helpful than dangerous. What do you think of Colonel Wilkerson assessment?

MICHAEL HAYDEN: That's fundamentally an idiotic statement, because Snowden stole more than a quarter million documents. He was largely unaware of the content of the documents. He freely admits that he didn't curate the documents. And so I would just raise the question, what's the civil liberties quotient of telling the world that the National Security Agency is intercepting the unclassified emails of the Syrian armed forces. Actually about one or two per cent of what the man released had to do with American privacy. The other 98 per cent had to do with how America collects foreign intelligence, and one has to wonder why did he shove all that other stuff out the door if his question was about American privacy?

LL: I want to play you a clip now from February 5th, 2003. This is Colin Powell, then the secretary of state, making his case for war against Iraq before the UN Security Council.

SOUNDCLIP

COLIN POWELL: Let me begin by playing a tape for you. What you're about to hear is a conversation that my government monitored. It takes place on November 26th of last year, on the day before United Nations teams resumed inspections in Iraq. The conversation involves two senior officers, a colonel and a brigadier general from Iraq’s elite military unit, the Republican Guard.

[unintelligible foreign language]

LL: Now, in your book you write that Colin Powell used NSA intercepts to build the case that Saddam Hussein had weapons of mass destruction. And of course we know that case was wrong.

MICHAEL HAYDEN: Right.

LL: As the head of the NSA at the time, how convinced were you really that Saddam Hussein had weapons of mass destruction?

MICHAEL HAYDEN: I was convinced enough to vote yes in the ultimate meeting we had on the National Intelligence Estimate. The rhythm Laura, in our intelligence organization is that the director of Central Intelligence, George Tenet, brings in the head of the three letter agencies. We discussed the conclusions, the key judgments of the NIE, and I voted in favour of each of the conclusions. I was wrong. I did have a private conversation that I mention in the book with Condi Rice, saying Condi I got a room full of evidence this guy's doing this. I've got to tell you though Condi, all my evidence is circumstantial. Now, before you jump on that Laura, I tell another story in the book where President Obama is talking to Mike Morel, one of the good guys at CIA that worked with me and was a senior. And the president was asking him Michael you guys seem all over the map in terms of whether Osama bin Laden is in that compound in Abottabad or not. What are the people in the agency really saying? And the answer Michael gave was, well Mr. President anybody who touched the Iraq NIE is saying it's 50/50. Those folks who studied only Osama bin Laden and al-Qaeda are giving it 90/10. And the president said so I understand, and then Michael interrupted him — because Michael had a very good relationship with the president — and Michael said, Mr. President I got to tell you, all the evidence that Osama bin Laden is in that compound is indeed circumstantial--

LL: [interposing] But you raise the question, is circumstantial good enough to take a nation to war? A war that's led to the destabilization of Iraq, and the rise of extremist groups.

MICHAEL HAYDEN: Oh, well look, look, George Tenet makes the point that that NIE was the public justification for war, it was not the casus belli. But Laura, the purpose of intelligence is not the same purpose of evidence in a court of law where you're supposed to get things beyond all reasonable doubt. The purpose of intelligence is to enable action even in the face of lingering doubt. I was asked by an American actual venture capitalist, on a scale of zero to ten how would you rate CIA analysis. And the first thing I said was we don't do eight, nine, or ten. If we can get it to eight, nine, or ten they aren’t asking us the question, they’re chucking it down to the Department of Commerce or the interior or somebody. We get a lot right, and I freely admit, we got this one wrong.

LL: Let's wind up our conversation then by taking it back onto your territory, the United States. Republicans often accuse President Obama of being weak when it comes to targeting of Islamic extremists. You've spoken of him already of his efforts to double down on some of the programs you have. What do you think of that charge against him?

MICHAEL HAYDEN: So, a couple of macro judgments alright? And this may surprise your Canadian listeners, but in my heart of hearts and I actually mention it in the book Laura. In terms of fighting terrorism, there are bigger changes between President Bush's first and second administrations than there were between the Bush and the Obama administration. The first thing is the remarkable continuity between two incredibly different presidents. Which actually has disturbed some folks abroad who thought this was all about George Bush. Actually, it appears that a whole lot of it was all about America, not Texas not George Bush. So that's one. That said, I got my complaints. And I do think what we're doing against ISIS in Iraq and Syria, my line Laura has been under resourced and over regulated. I would have used more firepower, I would have put more American forces, I would have pushed them more forward into the battle space. No one is calling for American maneuver brigades back there. But right now Americans can't go below the brigade level even advising the Iraqi army. And then finally to come back to a point we've discussed two or three times, I do think our tolerance for collateral damage is far too low. I do think to successfully conduct a necessary and just war, we do have to accept the fact that from time to time despite our best efforts, people we’re not mad at might be hurt.

LL: And that might be a difficult sell for the public again. But I've got to ask you this, you still have security clearance do you not?

MICHAEL HAYDEN: I do.

LL: So, tell me when you take a look at the world today, what do you think is the biggest national security threat facing the next president. You can tell me secrets, go ahead.

MICHAEL HAYDEN: Yeah, sure. Look, I look at it three ways and so Laura if you imagine I’ve got a graph between us, I've got an X axis and a Y axis, and the vertical axis is how bad is it, and the horizontal axis is how immediate is it. In the lower left hand corner I put terrorism and cyber-attacks. In other words, they're very immediate. We have a TSA agent make a bad decision here, something bad could happen tonight.

LL: You mean the airport screening.

MICHAEL HAYDEN: Right, right.

MICHAEL HAYDEN: But as the president is correct in pointing out, that's not an existential threat to the United States. It's bad, but it doesn't threaten our existence. Now, you run the timeline out a little bit Laura, three, four, five years, and here I bump into another problem. This is a group of states that I've taken to labeling ambitious, brittle, and nuclear. And here I include the North Koreans, the Iranians, the Pakistanis, and maybe even the Russians. That's actually more serious. If that goes bad, it's a lot worse, but it's not going to happen overnight. We've got some time, three, four, five years. And then I go further out on my timeline Laura, to about the ten year point. And way up there, something that is really important, is the long term relationship of the United States and the People's Republic of China. And here I'm not talking about China as a threat, like I might view North Korea or terrorism. I'm just talking about the reality of Chinese emergence. If that is not handled well Laura, the rest of this probably doesn't matter. You know, this is the whole historical tale of the emerging power and the status quo power. Far too many times in human history, the way we get from the old to the new equilibrium to accommodate the emerging power is a process that popularly goes by the name global war. We don't want that one.

LL: General Hayden, I thank you very much for your time.

MICHAEL HAYDEN: OK Laura, thank you.

LL: That was Michael Hayden, former director of the National Security Agency and the Central Intelligence Agency, and author of the book Playing to the Edge: American Intelligence in the Age of Terror. He spoke with me last March from Washington DC. I'm Laura Lynch, thank you for listening to the summer edition of The Current.

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August 4, 2016 full episode transcript

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