Getting Counterterrorism Right: A Transatlantic Conversation

By

General Michael V. Hayden

Former Director of the Central Intelligence Agency and of the National Security Agency

Principal at the Chertoff Group

The Lord Carlile of Berriew QC CBE

Liberal Democrat Member of the House of Lords

Independent Reviewer of Terrorism Legislation, 2001-2011

TIME: 3 – 4pm, Monday 30th September 2013

VENUE: Committee Room 4a, House of Lords, London, SW1A 0AA

To attend please RSVP to: eventsassistant1@henryjacksonsociety.org

Please note that access to this event will be limited. Ticket confirmations will be given, with Parliamentary pass holders, HJS members and those with professional expertise receiving priority.

Western democracies have always wrestled with the challenges of preventing terrorist attacks while retaining their core liberties. The gravest terrorism threat today comes from al-Qaeda and the terrorists it inspires. Such individuals are not the only terrorist threats facing the West, but their unpredictability and willingness to kill indiscriminately makes them the most dangerous.

When responding to this, the challenges for the state are immense. Attempting to disrupt transnational actors determined to carry out mass casualty attacks, and yet retaining your key democratic values; not allowing terrorism to destroy a functioning economy; policy responses based on fact, rather than fear – these are all key issues. Yet the nature of the terrorist threat as it revealed itself on 9/11 has made achieving this balance more difficult – and more vital – than ever before.

The Henry Jackson Society is pleased to invite you to a discussion with General Michael V. Hayden, Former Director of the Central Intelligence Agency and of the National Security Agency, and Lord Carlile of Berriew, Liberal Democrat Member of the House of Lords and Independent Reviewer of Terrorism Legislation (2001-2011). In this transatlantic conversation, the two individuals better qualified than anyone else to tackle these issues will discuss the most effective way to balance liberty and security.

Biographies

General Michael V. Hayden is a retired four-star general who has served as Director of the Central Intelligence Agency and as Director of the National Security Agency.

As Director of the Central Intelligence Agency, General Hayden was responsible for overseeing the collection of information concerning the plans, intentions and capabilities of America’s adversaries; producing timely analysis for decision-makers; and conducting covert operations to thwart terrorists and other enemies of the US.

Before becoming Director of the CIA, General Hayden served as the country’s first Principal Deputy Director of National Intelligence and was the highest-ranking intelligence officer in the armed forces. Earlier, he served as Commander of the Air Intelligence Agency, Director of the Joint Command and Control Warfare Center, Director of the National Security Agency and Chief of the Central Security Service.

General Hayden graduated from Duquesne University with a bachelor’s degree in history in 1967 and a master’s degree in modern American history in 1969. He also did postgraduate work at the Defense Intelligence School, conducted by the Defense Intelligence Agency. He is currently a Distinguished Visiting Professor at George Mason University and a Principal at the Chertoff Group. In 2013, the Intelligence and National Security Alliance (INSA) awarded Hayden the 29th annual William Oliver Baker Award.

Lord Carlile of Berriew QC CBE is a Liberal Democrat member of the House of Lords. A practicing barrister and former Head of Chambers of 9–12 Bell Yard, he was created a Life Peer in 1999 and was appointed UK government’s first Independent Reviewer of Terrorism Legislation in 2001.

He was called to the Bar by Gray’s Inn in 1970 and became a QC in 1984. He first became a Recorder of the Crown Court in 1986, and a Deputy High Court Judge and Honorary Recorder of the City of Hereford in 1996. His Parliamentary career began when he was elected Liberal MP for Montgomery from 1983 to 1988, and Liberal Democrat MP from 1988 to 1997. He was Commons’ spokesman on many subjects at various times.

From 1980 to 1982, Lord Carlile was Chairman of the Welsh Liberal Party. He was Leader of the Welsh Liberal Democrats from 1992 to 1997 and President of Liberal Democrats Wales from 1997 to 1999.

He broadcasts frequently on issues bordering law and politics and lectures particularly on matters concerning counter-terrorism legislation. He is President of the Howard League for Penal Reform and is a Deputy High Court Judge and Recorder.

 

Full Event Transcript

By Charlotte Ward & Robin Simcox

Dr. Alan Mendoza – Executive Director of the Henry Jackson Society

Well, we’ll get under way. Thank you Lords, ladies and gentlemen for turning up at 3pm on an afternoon, on a Monday afternoon, in the middle of party conference season. It’s always good to see a good crowd, and of course I think that says a lot about the calibre of our conversations today, more of which in a moment. But I will just take a moment just to introduce the topic slightly. We are here of course to have a discussion about ‘Getting Counterterrorism Right: A Transatlantic Conversation’. Thankfully we have transatlantic participants in this debate as well. But I do want to just highlight some of the work that Henry Jackson Society has been doing in this field.

Our latest publication, ‘Al Qaeda’s Global Footprint’, is obviously looking at that particular organisation and how its malign influence is spreading around the world still, despite protestations to the contrary. How that’s working, with previous examples in this field, and in the field of terrorism work itself, of course. But also looking at some of the issues surrounding the terrorism debate which I think we’re going to get into today. Things like, how do you actually monitor people? What’s a form of preserving, if you like, security, freedom, those sorts of areas? And indeed looking at areas such as radicalisation, which will doubtless crop up in the discussion there as well, but more of that in a moment.

We’ll introduce our two panellists, our panellists today. To my immediate left, General Michael Hayden, who is of course the former director of the Central Intelligence Agency, but also the National Security Agency, having capped off a storied career in the military before that. He’s of course currently at the Chertoff Group, and indeed is also a distinguished visiting professor at George Mason University. We’re delighted you’ve joined us, on what I understand is quite a brief tour of the UK, delighted we have this opportunity to speak with you accordingly.

And to open up the conversation with him, Lord Alex Carlile, of course a Liberal Democrat member of the House of Lords, and indeed former Head of Chambers at 9-12 Bell Yard. His claim to fame in this area is, of course, that he spent a decade reviewing government, well terrorism, essentially, legislation, in the period 2001-2011, where not one scrap crossed his desk without him pouring over it extensively, passing comment over and indeed hoping that, indeed actively changing, policy as a consequence of his incisive interventions. So I can’t think of a better person to, if you like, start the conversation with General Hayden and I will pass over to Lord Carlile, once we have given them a warm welcome.

[Applause]

Lord Carlile of Berriew QC CBE

I should just start, General Hayden, by revealing to our audience that your main reason for coming here was to talk to this meeting but it was closely followed by the Pittsburgh Steelers match at Wembley Stadium, a team which you have been following all your life, I think. But you’re very, very welcome.

Can I start by tempting you with an observation I made on frequent occasions when I was Independent Reviewer of Terrorism Legislation:  which is that we are rather too secretive about what the Secret Services do, that actually most of what they do is available in open sources (if you have a rough idea of where to look on the internet), and that the public, and in particular the political class might understand counterterrorism work rather better, if our governments and Secret Service agencies gave a much stronger narrative of the kind of achievements they have.

General Michael Hayden

I agree with the premise. But let me kind of deconstruct it, because it is a difficult question for people with my background. I think every discrete, particular decision to keep that particular activity secret, is somewhere between defensible and unarguable. But the total strategic effect of what may be a thousand discrete, correct tactical decisions; the total strategic effect turns out to be harmful. So in my profession, I can argue for shaving points off of operational effectiveness by making almost anything public.

But it’s clear to me now, actually it was clear to me earlier, but it’s really clear to me now, that in liberal democracies, the Security Services don’t get to do what they do without broad public understanding and support. And although the public can’t understand and be briefed on everything, there has to be enough out there publicly so that the overall population, the majority of the population, the sense of the population (because they’ll be outliers in both directions), but the sense of the population is that ‘what they are doing is acceptable to me’.

When I was at NSA I would draw, a very controversial programme called the Terrorist Surveillance programme, where we operated under President Bush’s Article Two authorities as Commander in Chief. And we’re doing things unprecedented in the history of NSA. And when I explained those to anyone I had to explain it to, I would draw these little three Venn-circles, and said that the overlap of those three Venn-ovals was where we were, and the three ovals were described as: operationally effective, I mean, it was worth doing; technologically possible, we could do it; and lawful. Check, check, check. That’s our field, that’s where we work.

But by the time I got to CIA, and it wasn’t because I got to CIA, it was an evolution of my own thinking, there was a fourth Venn-oval: and that’s politically supportable, okay? Even in our presidential system, with the separation of powers, and an awful strong constitutional basis for presidential action in security matters.

Presidents can do one-offs, on their raw constitutional authority, but no President gets to do something repeatedly over a long term, without that broad popular support. So I’ve said publicly, Lord Carlile, that my community has got to show a lot more leg, okay,  otherwise we won’t get to do any of what we want to do, because the public support will be so withdrawn, that politically, no one is going to give us the authorisation.

I’ll maybe throw in one additional flavour. There are many things mixing in this, by the way, and there are broad cultural trends, and not just the threat of terrorism. I had to sit on an advisory board when I was director of CIA, prominent Americans, you’d recognise many of them I think, and I’ve actually asked permission to use the name of one; it’s not  a secret, but question of privacy, but the individual I’m going to talk about is Carla Fiorina, former chief executive officer at Hewlett-Packard.

I had this broad committee; I created 3 sub committees, how you recruit, your IT, which is always a problem, and the third I gave to Carla and her subcommittee. And the question was this: ‘Will America’, and I think by extension applies to Great Britain, ‘will America be able to conduct espionage, inside a political culture that every day demands more transparency and more public accountability, from every aspect of national life?’

And the answer I got back after Carla and her very bright team worked on this for 6 months was a very decided ‘we’re not sure’. And so these are the currents that are flowing, and it really does come to the heart of how the modern state defends its citizens against modern threats.

Lord Carlile of Berriew QC CBE

Would you like in the context of that to add a comment about Assange and Snowden, and the issue as to whether they really are whistle-blowers, or whether they are in part whistle-blowers, or whether they are just traitors who should be dealt with by the criminal justice system, or something in between?

General Michael Hayden

Our constitution has a narrow definition of ‘traitor’ so I just leave that on the table any time it’s brought up, and neither of them meet that, certainly not Assange as he’s not an American. Whistle-blower is far from the term I would be comfortable with in any circumstance. Whistle-blowers point out wrong doing.

Let’s take Snowden, he’s pointed out or made available to his friends in Brazil and here a whole bunch of things, that many here in this room, many of my countrymen may think unwise, but they’re not illegal. There is no argument that they are illegal. They have been authorised by two Presidents, both Houses of Congress, and the American court system.

Now you can say ‘yes but that’s a really stupid thing to do’, that’s a good… that’s a discussion, but they’re not illegal. And whistle-blowers are people who, within the system point out unlawfulness. And that doesn’t apply to either of those individuals.

Lord Carlile of Berriew QC CBE

Right, thanks. Can we move on to some things that are premised in the following way? We in the United Kingdom have rejected the phrase ‘War on Terror’, broadly speaking. And the premise tends to have been that we prefer to deal with terrorists by using traditional arrest and prosecute measures, though we have, with considerable difficulty, bolted on to those measures additions like control orders, TPIMs, terrorism management orders, and for a time we had detention without charge subject to the scrutiny of a tribunal.

How far do you think that it’s a) legitimate and b) necessary in terms of national security to use measures going beyond traditional arrest and prosecute?

General Michael Hayden

Speaking candidly among friends, I am very comfortable with my republic having a set of tools in front of it, some of which come under the laws of armed conflict; some of them come under other aspects of both international and domestic law. I gave a talk at the German embassy about a year into my tour at NSA, this would have been… sorry CIA, this is spring of 2007. And the Germans were in the chair of the EU, and the Ambassador Scharioth would bring, I have to say this carefully, the Ambassadors to the United States from the states of the European Union. He’d have them over for lunch every couple of weeks and he’d have an American come in for the lunchtime entertainment, to give a presentation.

So it was my turn, so he called me over, and today we’re among friends and I knew this, and this is the issue, so I’m going to talk about ‘renditions, detentions and interrogations’ as my agreed text. And I had wonderful staff at CIA, and it was rare that I let a speech go without that irresistible urge to change something, but this one I was really a participant in, and so much so that I’m going to quote me now, because I remember exactly what I said, about page two of the prepared text. I simply said:

 

Look, just so we understand one another, let me make very clear what I believe, my agency believes, what my government believes and what I believe my nation believes: We are a nation at war. We are in an armed conflict with Al Qaeda and its affiliates. This war is global scope. And I can only fulfil my moral and legal responsibilities to my citizens by taking this war to that enemy wherever they may be.

Okay. War. Al Qaeda. Global. Take the fight.

I fully recognise there was not another country in the room who agreed with any of those four sentences. Okay, in fact, they not only disagreed with those four sentences for them, they thought they were illegitimate for us.  But we had 2 incredibly different Presidents accept the war paradigm. I mean, very forcefully and dramatically, and so I am not at all personally uncomfortable with it.

I’m sorry this is a bit of a longer answer and I promise to be more efficient with future questions.

But here is the problem, and now I’m going to talk as an American because I’m most familiar with our structures, but I know it transfers. All American security structures, how do we go about this, were created about 1947. And the National Security Act of that year created the National Security Council, created the American Air Force, created the Department of Defense, the CIA, okay, so we’re kind of hard wired for the security problems of 1947. Which fundamentally were encompassed by the power of nation states, okay, and we’re still hardwired to deal with those issues.

And now we have a completely different kind of global array. Now you understand, I’ll go back and watch Sky News or something, and BBC, and find out how we’re going with the Iranians, so nation states still matter, but fundamentally the things that most can affect our citizens directly, cyber-attacks, terrorism and transnational crime are not the product of nation state strength, they are the products of nation state weakness and nation state absence.

So what we’re doing back home, is we’re taking this hardwired national security structure that was designed to go this way [points left] and we’re trying to get it to go that way [points right].

What are examples of that: Guantanamo, indefinite detention, military commission. And everything Snowden has said, about the national security, I cannot find a single libertarian, alive or dead, who raised a finger, when we were intercepting microwave communications between strategic rocket forces headquarters in Moscow and Soviet ICBM fields beyond the Urals.

The equivalent of that, that signals the greatest danger to the United States, the equivalent of that today, co-exists with your emails. They’re out there in the same web.  And so, what we’re doing is taking this and trying to apply it here. We don’t want to give up the war paradigm; we want to have that in our menu of options.

And so, there’s a bit of a debate, you saw President’s Obama speech at National Defense University last May, kind of Hamelt-like, on the one hand, on the other hand, you know, “I’m doing targeted killing but I don’t think I’ll do so much in the future” and it goes, it goes back and forth. Richard Haass, the Head of the Council on Foreign Relations summarised this perfectly, he said, ‘We are not looking for a switch here; we are looking for a dial.’

And as we move forward in this war, as relative strengths change, as our knowledge of the enemy improves, as the situation develops, you can dial back from one basket of authorities – a nation at war – and make more use of another basket of authorities, which would be in our terminology, not the laws of armed conflict, but domestic, domestic law.

Sorry, very long answer, but what I want to try to point out to you… is that we Americans may or may not be particular war-like but that’s a different conversation; we were faced with an absolutely unique international situation for which our domestic institutions and frankly many international norms were not written. And now we’re going through this debate internally and externally to try and move forward and still be true with the values.

Look, I mean Al Qaeda rejects the very premise of Geneva. The premise of Geneva, all the treaties, is the distinction between combatants and non-combatants. They reject it for their enemies and they reject it for themselves. And yet we’re charged with defending folks, and so you, you get these challenges. So yes, I’d like to keep that basket available.

Lord Carlile of Berriew QC CBE

In the context of that basket, one of the things that affects the size, politicians, and some politicians and many commentators on what we sometimes call ‘the Westminster Village’, Parliament and the media scrum that surrounds it, has been the use of enhanced interrogation techniques. And indeed the government has been faced with the problem of paying damages to claimants who may be entirely undeserving claimants because of their unwillingness actually to disclose national security material.

In a memorable episode of Homeland, which I’m sure some of you will have seen: a fictitious CIA operative, whilst interrogating Brody, plunges a knife through his hand, which is shortly followed by Carrie having sex with him in a motel, which one might called enhanced interrogation techniques, I suppose!

What is your view on the use of enhanced interrogation techniques and do you think we look upon these rather differently on our opposite sides of the Atlantic?

General Michael Hayden

We do definitely look at them differently on opposite sides of the Atlantic. I tried to suggest in the long answer to the previous question, Lord Carlile, that we were thrust into some very unusual, unprecedented circumstances for us.  So just make sure we have a sense of scale here. How many people did CIA hold in its black sites for the history of the programme? Fewer than a hundred. How many people had any enhanced interrogation techniques used against them? Fewer than a third of that fewer than a hundred. And how many were waterboarded? Three. The last waterboarding was March 2003. We’re talking about a transient period here.

When I became director, back to, remember the ovals, and political acceptance, and not just narrowly lawful but ‘what’s the political atmosphere’. I think I decided to make a great deal of this public. President Bush gave a speech in September 2006, in which we emptied the black sites and we moved 14 people to Guantanamo, where they remain today.

I did a backgrounder with Steve Hadley, gave the press numbers I just gave you, which have been unremarked and unreflected on by most people. They just kind of gravitate to what must be hundreds if not thousands and so on. I went to the Congress and informed them of all thirteen techniques that were used, and then suggested because of changes in law, because of changes in our threat perception, and because of greater, just, espionage penetration of Al Qaeda and its networks, I thought it no longer operationally compelling to use the menu of thirteen techniques against future detainees and reduced it down to six.

Four of which I had happened to me in Catholic Grade School, they were, they were grabbing people by the lapel, and grabbing people by the chin, and those are two of the six, so we stepped it back because the overall circumstances had changed. In European terms, in American terms it ‘shocked the conscience’. Something which shocked the conscience in 2006 may not have shocked the conscience in the circumstances of 2002. In European terms it’s called, ‘proportionality’. What is the proportionality of what it is you are doing and what it is you expect to gain?

Honest men can differ. I have said this to American audiences. Honest men can differ, and simply say, ‘I don’t want my nation doing this’. That’s a straight-up honourable position. A position many Americans have chosen to take is, ‘I don’t want you doing this and it didn’t work.’ Well actually, that second sentence isn’t true, okay. And so that’s the hard choice that people in the United States have to face.

President Obama stopped the Detention and Interrogation Programme on 22nd January 2009. He did not stop the Rendition Programme, which remains unchanged and its authority is from President Bush, back to more continuity than change between 43 and 44. As they were drafting the Executive Order to stop the Interrogation Programme, the language they used was ‘anyone in the custody of the United States or an agent of the United States’, which is a really interesting legal formulation because you’re allied to other nations and you know…

You cannot be interrogated with any techniques beyond the nineteen techniques publicly identified in the Army Field Manual,  right, which are very mild frankly, and certainly less than American police do I suspect, less than what British police do.

I said to Greg Craig, who is the President’s lawyer, “Greg, not that you asked, but this is CIA officially non-concurring on the executive order, and you can buy back pretty much everything we need, if in that sentence about US government or agent of US government relating to the nineteen techniques of the field manual, you simply added ‘unless otherwise authorised by the President’.” Now he didn’t do that, which had a powerful political effect, that was needed, wanted by the President.

It comes back to the circumstances of proportionality: what is the level of danger? What is the level of threat?  What is the knowledge base of the individual? And one cannot make decisions about this in the abstract. The decisions have to be made with the totality of circumstances available at the moment, in terms of danger, knowledge and threat.

Lord Carlile of Berriew QC CBE

We’re often presented with the ‘ticking time bomb scenario’, which is sometimes called the Dershowitz Doctrine, and I think I’m right in saying that in the law of England and Wales at least, the use of fairly extreme violence to prevent the murder of the large number of other people would be regarded as lawful, to protect the safety of other people, unattractive as it might be. What is your view of the’ ticking time bomb scenario’?

Do you think that if there is reasonable intelligence of a very major threat, then the use of violence to produce information is justified?

General Michael Hayden

Here is what I’ve said since, well before I became director of CIA, but certainly since. I’m dodging your question. What I say is I thank God I don’t have to make those decisions. I thank God George Tenet had to make that decision and when I’m in a bad humour I generally say there are a lot of other people currently in Washington who should also thank God that George Tenet made those decisions. Because in many ways it may have provided, it may have protected them from those circumstances developing in the future, in which they would have to make those kinds of decisions.

So, I dodged the question. In American law, shock the conscience, in European thought it’s proportionality depending on the totality of circumstances.

Lord Carlile of Berriew QC CBE

I’m just going to ask Michael Howard, who is here and who was Home Secretary, and do you agree Michael, that in extreme circumstances it would be reasonable in your view that to use violence to obtain information that might save hundreds of people from a  credible threat of murder?

He’s dodging the question!

Lord Howard of Lympne

No, I’m not going to dodge the question. Though I preface my answer by saying I came to listen not to talk.

Lord Carlile of Berriew QC CBE

Yes but you’re here!

Lord Michael Howard of Lympne

I will give my answer, which is probably not going to strike many people as entirely satisfactory. I think it should be unlawful, because I think that violence and torture exercised on behalf of the state should always be unlawful.

However: suppose an operative was actually faced with that terrible decision. And suppose he decided, knowing that it was unlawful, that he wanted to save the lives of those who were at risk, whom he thought there was a reasonable possibility of saving by using those unlawful methods, and he acted on that view. What would then happen under our system? Would the prosecuting authorities decide that it was in the public interest for him to be prosecuted? Probably not. If they did prosecute him, would he be convicted by a jury? Almost certainly not.

So, my answer, which is not a very neat or tidy answer, is that it should be unlawful, for the reasons that I have given, but then you have to work through the consequences in a practical fashion.

General Michael Hayden

Can I just say that we need to be very careful with our language. If you’re asking me is murder ever justified? That’s a throwaway; I can give you an answer there. I actually think that the same thing applies to torture. Can torture be justified? The answer is no. But there is a very long scale with varying shades of grey, as to what constitutes torture, and what doesn’t constitute torture. There are some things we would never do, under any circumstances. They are actually explicitly forbidden by law, but the list, it’s not an exhaustive list, but there are other things we wouldn’t do.

We waterboarded over fifty thousand American airmen: so it’s not inherently torture, otherwise we couldn’t do it in our military training. My deputy when I came to CIA was a Special Forces navy admiral, he had been waterboarded. Two of my lawyers were waterboarded.

Lord Howard of Lympne

Well we have a difference in view as to what does or doesn’t constitute torture.

[Laughter]

General Michael Hayden

No, but that’s an important distinction, and the argument must be: does it or does it not constitute torture? I’m sorry to dwell on this but I really don’t want to dwell on this, there are so many things out there. Right now it’s illegal under American law to interrupt the sleep cycle of a detainee. Now I don’t think that’s torture. It is not one of the nineteen techniques in the Army Field Manual and therefore it is unauthorised and by executive order it can’t be done.

Now I think there is a long way between interrupting the sleep cycle of somebody and getting to some agreed upon definition of torture. There are a bunch of things in there, but again, proportionality, shock to conscience, the totality of circumstances; enlightens the conscience as to what is appropriate or not.

Lord Carlile of Berriew QC CBE

I think it’s worth saying, and worth my saying that I thought that Michael Howard gave a very accurate lawyer’s answer, speaking as a lawyer. And I think that it exactly analysed correctly what would happen in the United Kingdom if such a situation arose. And I think we overlook the discretion not to prosecute, exercisable by both the DP (the Director of Public Prosecutions) and the Attorney General as one of the most important constitutional protections available in certain circumstances under our unwritten constitution.

Can I turn now please General, to a different subject, which is the balance between prevention and disruption on the one hand, and arrest and prosecution on the other. It is said, I know not, and you will probably know the answer, that there was some tension between the United States and the United Kingdom in relation to the Airline Plot in 2006.

[Laughter]

General Michael Hayden

I’ve heard about that.

Lord Carlile of Berriew QC CBE

He knows the answer.

[Laughter]

On that subject, would you like to just talk about the extent to which we should be relying on disruption and prevention for the protection of the public, regarding arrest and prosecution perhaps as something we deal with in only the easier cases?

General Michael Hayden

As you’ve already suggested, I think both the United States and the United Kingdom kind of broke right in terms of looking for additional tools beyond traditional law enforcement after 9/11. We broke far harder right than you did. Now we’ve come back towards centre line, perhaps you have as well. I think our views are now more aligned but they’re not perfectly coincident, in terms of these kinds of questions. I remember the summer of 2006. We had magnificent intelligence on this plot. We had great insight into it. We genuinely were getting impatient on our side of the Atlantic, as you were trying to follow the plotters in order to build up the strongest possible case for prosecution,  eventual prosecution, in a British court.

Truly our primary concern was disruption of the plot. No question about it. We had that transatlantic tension between good friends still sharing totally one to the other. We wanted you to disrupt, you wanted to continue to build up a case. We were saying are you sure you know where everyone is? Are you sure you know everyone in the plot? You’re saying, we can’t use electronic surveillance in court, we need to build up further information, I mean it went on and on and on, and then the Pakistanis kind of broke everyone’s bubble by arresting Rashid Rauf and obviously we had to break up the cell.

It is an example of two very good friends, with differences of emphasis, not contrary views, but differences of emphasis as we go forward.

Let me tell you how this plays out now. So we’ve got Al Qaeda weaker than it’s been, in a peculiar use of the word weaker: less capable of the iconic target, mass casualty attack, but Al Qaeda is more widespread, probably controlling more territory and as you pin Al Qaeda from east to west from Pakistan to Yemen, the horn [of Africa], north Africa and then out to Boko Haram and so on, the flavour of Al Qaeda changes from a global jihad focus, to a ‘I like the global jihad bumper sticker but I’m mostly worried about local issues’.

We’ve got a question somewhat like the one you just asked, in how we (plural) deal with these flavours as they shift from east to west. No question about it: my country is still going after the guys in the tribal region. I mean there is no question about it. We are conducting targeted killings against Al Qaeda in Pakistan, because there is no question their enemies are in this room and they’re coming after us. We haven’t done a thing with regard to Boko Haram and we’re kind of light on Mali, and we’re still making up our mind on Al Qaeda in the Islamic Maghreb.

The attack last week in Kenya, is a really interesting focal, a really interesting point. How much should we tilt in the direction, largely of war making, to nip these burgeoning Al Qaeda movements before they become regional or global in their reach? Or how much should we be a bit more passive, work with the face of friends in the region, and rely almost exclusively on a law enforcement approach to not make them an enemy of us before they are ready to make us their enemies? And sorry, it’s another long answer, but I’ll get to the punch line.

What you asked me, I think, is a less a philosophical question and is more an operational question. It’s a dial based upon the tactical needs, the operational view of the battle space at the moment. And in case I might be very much willing to forgo what I would think would be lawful war making authorities in some parts of the world, to rely on what are probably less effective in the operational room approaches, because of the broader strategic interest of not putting a Western face on these attempts, or not stimulating these Al Qaeda affiliated groups to become global in their focus, rather than local.

Sorry long answer, it’s less philosophical than it is practical.

Lord Carlile of Berriew QC CBE

Alan will want to turn to Q&A I think fairly soon, but there is one different question that I wanted to raise with you and that’s about the use of drones. There was a story in the British press last week about the use of drones based on an American air base in Djibouti, and plainly the position of Djibouti geographically is extremely important strategically, and it would appear from what we read that large numbers of drones are being used out of Djibouti over countries in that region. And in this country there’s been quite a lot of controversy about the use of drones because of the danger of collateral danger to civilians arising from such use.

Would you like to just give this interested and informed audience your own assessment of the utility of drones and any problems that arise from the use of drones in counterterrorism operations?

General Michael Hayden

There are all sorts of factors that get pulled in that.  Some of them are at the highest policy levels, the use of Predator and Reaper and so on might be too alluring, might be too easily done, Elliott Coleman who teaches over at John Hopkins in Washington, he said this about another matter but I think it applies here: “the use of unmanned aerial vehicles for targeted killings has all the attraction of 21st century sex, gratification without commitment.”

[Laughter]

Gratification without commitmen, and so one needs to be careful that it’s not too easy, and one commits a nation to a path that would… you need to map out second, third, fourth and fifth moves before you do that.

With regard to collateral damage I challenge anyone to give me a weapons system that’s more precise than drones with Hellfires and GBU-12s. The thing, without referring to any particular operation or any particular job, if you’re in control of one of these things, and somebody calls you and says “I think I got a target” you get to ask:

“How long have you had capture of the target?”

“Three hours.”

Hmm. “what’s the history of the compound? When was the last time we saw anyone other than a military aged male at that compound? Get back to me with that”.

They come back and say, “We haven’t seen a non-military aged male at that compound for four months”.

Okay.  “What’s the weather like?”

“It’s good.”

“How much fuel does the drone have?”

“We’re good for 3 hours and we’ve got another one in the route.”

“Alright call me back in about six hours.”

And then you wait and you see if anybody… you get the people you’re interested in, the people you’re mad at in the guest quarters; you get to look for the longest period of time to see if anyone else comes out of the main house, to make sure there any non-military aged males.

Then you say, “Okay, I think we’ll go with it. Show me” – and we do use the word – “show me the bugsplat for Hellfires coming in from the north east”.

The hellfire coming in from the north east has got about a fifteen pound warhead in it and they gauge the Hellfire and give you what looks like something that hit your windscreen and it’s got a little red, a little yellow and a little green. Red is lethality, yellow is probable wounding and green is probable no harm. And you say “No I don’t like that, that’s too big. Give me a picture of those things coming in from the south west.”  So you see what I’m doing. And then when all that’s done you say, “Alright, let’s do it.”

And so I don’t know how you can get more precise with a weapons systems, that gives you a persistent God’s eye view of the space that you’re interested in. Now you may object, as many do, that my government appears to be using these things outside of agreed international areas of armed conflict. Okay, we can talk about that.

Some can say that it’s counter-productive because it could be used as recruiting by the enemy.  That’s an operational consideration that deserves weighing with regards to its merits. But in terms of precision and it collateral damage, it just doesn’t get any better.

Lord Carlile Of Berriew QC CBE

Thank you. Right, Alan would you like to go to Q&A.

Dr Alan Mendoza

Certainly, well thank you gentlemen for having kicked off in such an enlightened manner, I think you presented quite a range of issues, I’m sure members of the audience would love to come back on with some other thoughts

I’m going to open it up to Q & A for about twenty minutes before we have to bring the meeting to a close.  Please do declare who you are and if you’re representing an organisation.

If anyone would like to go first?

Lord Howard, yes.

Question 1 – Lord Howard of Lympne

What’s the future of Guantanamo?

General Michael Hayden

We tried to close it in the Bush administration; this is not an Obama administration idea. And the problem with Guantanamo was not its lawfulness, again, if you accept the war paradigm, holding enemy combatants for the duration of the conflict is an accepted international practice. And so the Bush administration pushed out far more people from Guantanamo than President Obama’s been able to do.

But were down to kind of a hardcore, what is it, 160, 180? I don’t see any, certainly, near term steps that in any way dramatically reduces the population there.

And by the way so you might want to ask, “so if you guys thought it was lawful why did you want to close Guantanamo?”

It was simply the brand. Guantanamo, I mean Guantanamo was like a Rorschach test for most of the world. I mean Guantanamo, you say it and rather than a semi-arid bay in south eastern Cuba, people come up with this very dark image, which we can argue later whether it’s accurate or inaccurate, but they came up with very this dark image which we decided operationally, practically was something we didn’t want.

But I, both legally and practically, I don’t know how the President gets off the dime.

Question 2- His Excellency Konstantin Dimitrov, Ambassador to Bulgaria

Thank you very much. Konstantin Dimitrov, the ambassador to Bulgaria. You said in your initial statement that now we’re waging war on terrorism primarily against non-state actors. Now never the less do you think that there, your own definition, states sponsoring terrorism against the United States both by active involvement and by acquiescence of that delivered from their territory?

And how could you transpose this possible assumption onto cases of cyber-attacks on a major scale against government institutions in the United States or other allied countries?

General Michael Hayden

[Greeting in Bulgarian]

His Excellency Konstantin Dimitrov, Ambassador to Bulgaria

[Response in Bulgarian]           

Lord Carlile Of Berriew QC CBE

That was not Welsh!

[Laughter]

General Michael Hayden

The state sponsorship is a broad and actually kind of turbid question in American history. There are those in my country who felt very strongly, for example, the Iranian connection with Al Qaeda, something that frankly the intelligence doesn’t support, certainly in any meaningful way. Intelligence services talked a lot to people, including my own services. In terms of an operational relationship that is simply not true.

On the other hand what happened in Burgas was Hezbollah, which is sponsored and supported by the Iranians, and you do have the state sponsorship, increasing the threat from, in this case Shia based, terrorist groups against the US.

I’m sorry Mr Ambassador; you asked a follow on, second part …

His Excellency Konstantin Dimitrov, Ambassador to Bulgaria

The cyber-attack…

General Michael Hayden

Yes, yes, ok.

His Excellency Konstantin Dimitrov, Ambassador to Bulgaria

Of states sponsoring international terrorism.

General Michael Hayden

So, one of the things I can’t explain, again among friends trying to be very candid, I can’t explain why we have not seen terrorists attempt to use a cyber-weapon. They’re not cyber-stupid. They’re actually quite cyber-smart. And they use the web for a variety of things; they just haven’t used it as a weapon yet.

Now we are seeing, although my government hasn’t officially confirmed it, I think most of us agree that there are Iranian-based attacks against American infrastructure, mostly American banks, and they’re massive but not sophisticated denial-of-service attacks, the kind that happened in Estonia and Georgia 2007 and 2008. I think that has the hand of the Iranian government behind it. I think the Syrian Electronic Army, that’s kind of trying to respond to Western moves with regard to Syria in support of Assad, I think that has the hand of the Iranians behind it, yeah. So in that sense I do.

I don’t see the hardwiring, the connective tissue, with regard to Al Qaeda based terrorism and real state sponsorship. I can’t leave the topic, however, without talking about Pakistan.

It is clear to me that our friends, and I do mean that, our friends in Pakistan have made a real deal with the devil, in terms of the relationship they have cemented and secured with various groups peripheral with Kashmir but more importantly to our conversation in the tribal region with the Haqqani network and others. So there is state connective tissue there as well, Mr Ambassador.

Dr Alan Mendoza

The gentleman in the second row.

Question 3- Anthony Glees, University of Buckingham

[Inaudible] I’m Anthony Glees of the University of Buckingham.

General, there are many people in the UK, of whom I am not one, who thinks that it’s not the presence of the United States in delivering global security that’s the problem, it’s the absence of the United States. And I think that you can look at the refusal of the United States to intervene in Syria as a sign that America is less interested at the moment under President Obama, plenty of drones and so on.

But generally can you understand that there are some people that who have concerns on security issues, including terrorism, who feel that his policy has led to the deteriorating situation in the Middle East, the Horn of Africa and so on, and that we need once again to be able to look to America to be there to keep with global security. There have always been critics; we know that, but do you think that’s a problem?

General Michael Hayden

Well first of all let me provide my sense of the context: America has no God-given right to naturally assume this is our role to accept or reject.

On the other hand, I’ve been in the American Armed Forces for thirty nine years, and I know what other people have expected of the United States. So, I give this preface. This is not as a backdoor argument for American exceptionalism. I’m not going to that discussion.

But what I am describing is that the circumstances in current history, in terms of relative power, presence and so on; it can be argued has given my country more capacity to do some things than other countries have. On the other hand, the essence of strategy is balancing a country’s resources and staying power with its interests. And I think that at the highest level, President Obama is about that. He is trying to balance what it is we’re committed to with what it is we’re capable of doing. Many people in my country, and I’m one of them, disagree with his math but not with his premise. We need to be careful, as to where we put our energies.

I probably would have been more activist in Syria, I don’t think I would be in the Senator McCain school, but I probably would have put my thumb on the scale a lot earlier.

I personally think the right number in Iraq was greater than zero. And I think the right sustained force in Afghanistan is also greater than zero and that we reap the consequences of not making those kinds of commitments, as difficult as they are.

The President would argue that he is not managing American withdrawal. There are many in my country that would argue that that’s exactly what he’s doing. But I do see the broad effort. Look, a conservative and practical guy as Bob Gates, former Secretary of Defense and former Director of CIA, talks about the need to realign our capacities with our commitments. But that’s a very tough proposition to get right, and I think we’re seeing the consequences of opting for lighter rather than heavier, shorter rather than longer in several theatres right now.

Dr Alan Mendoza

The lady right at the back there.

Question 4- Janice Lam

I’m Janice Lam, Coordinator of the APPG on Extraordinary Rendition, and a fellow American citizen.

I [Inaudible] very clearly remember September 11th, I was living in Stanford, Connecticut at the time,and the horror afterwards, not just of all that happened, but also in the media seeing excesses and abuses, like for example, Abu Ghraib, or hearing about enhanced interrogation techniques.

And then beginning to feel the very real fear that it could perhaps, as you mentioned, be a recruiting tool for the moderates, for the undecided, and really fearing for the safety of our country.

And I was wondering to what extent that was a concern of CIA and other commissions?

General Michael Hayden

It was always a concern, but to be fair, in kind of the relative balancing of concerns in 2002 as opposed to 2013, it carried a clearly different weight. I would say that ’06, ’07 and ’08, we decided we needed to be very aggressive in the euphemism we used, I can say it publicly, ‘taking terrorists off the battlefield’, particularly in the tribal region of Pakistan, which President Obama carried on in ’08 and ’09. Knowing full well, that there were second and third order effects that would be the devil to pay, someday, for them. But that the first order effect was so necessary at that moment, and even looking back on it, I’m,  you can probably tell, I’m very comfortable with the calculation.

And now we’ve reached a point where that first order effect, I mean the reason you do it, to take the terrorists off the battlefield, to actually increase safety; I’m fully prepared to admit that those second and third order effects, now that we are more safe, that we have done what we have done certainly against Al Qaeda prime, those second and third order effects: recruitment, relationship with allies there, relationship with allies here, those are big deals.  And we always knew they were big, they just weren’t as big as the one we were calculating back then.

Let me give you an example. Just to say as fellow American I know exactly what you’re talking about. American Seals killed a fellow named Saleh Nabhan. He was head of operations for Al Shabaab in Somalia, September 2009. They were heli-borne, they came in, I’m guessing off a ship, I’m out of government at this point. There was no attempt to capture, they used their [inaudible] weapons to their helicopters, they killed Nabhan and I think one other one, they landed enough to swab up enough of him to take the DNA back to the ship to make sure they had the right guy, and they did.

Now, here’s the punch line. There isn’t an intelligence service in Western Europe that would have given me, if I were in government then, that would have given me information to conduct that operation, had they known that was the use to which I would put that information. So we know, that this course of action creates daylight and difficulty. I spent the day yesterday with Sir John Scarlett, my counterpart from M16, John and I are very good friends, but I mean John and I were operating under different legal authorities and he couldn’t help me do something he wasn’t allowed to do and I couldn’t help him do something he wasn’t allowed to do. Again, that’s an operational favour to the broader principle.

I think we’re at a point now where second and third order effects are more telling in most cases to the first order, so back to it’s a dial, not a switch.

Dr Alan Mendoza

The gentleman at the end of the second row.

Question 5 –Cyrus Afkhami

Hello, thank you for your talk. My name is Cyrus Afkhami, I’m a graduate in Middle Eastern Studies with a focus on Iran, and I now run an online tutoring company. I have a question: bearing in mind the CIA’s involvement in Iranian political history, I just wanted to understand your thoughts on how you view the slightly softer tone that’s coming out of Tehran at the moment, and whether you see this as a potential real opportunity for a change in Iran in American relations?

General Michael Hayden

The genuine from the heart answer is that I don’t know. But being an intelligence officer  I’ll continue to talk.

[Laughter]

It gives some reason for hope. I know a little bit about Rouhani before this and so on. But it comes down to action, not language. I mean, if you [inaudible]  back to Venn-circles, it’s the one Venn-circle here is what Rouhani willing to sell his government about what he’s willing to give up and what my President can sell his government about what he is willing to accept; I don’t think the circles overlap.

And so I’m fairly dark, that even if he genuinely has good intentions, he is going to find it very, very difficult to do them. We want to put time between the Iranian nuclear programme and the success of a break out. We’d like that to be measured in one to two years, which probably means they got to deconstruct Arak and they’ve got to deconstruct Qom and they’ve got to have overly invasive IAEA supervision of Isfahan and Natanz. And I mean to use Prime Minister Netanyahu’s formula that runs the clock back, backwards for a break out scenario.

So far all Rouhani has offered is transparency. Transparency for a programme that’s decreasing the distance in time between decision and ultimate break out, it just isn’t useful. And so that’s where we are now. I have a very dark personal picture, but I don’t blame Rouhani for it. I’m not trying to say he’s being misleading; I’m just saying he’s going to find it very difficult to deliver.

Dr Alan Mendoza

The gentleman by the window.

Question 6- Nick Hopkins

Hello, my name is Nick Hopkins and I write for The Guardian.  I just wanted to ask you about Snowden, and come back on something you said about the legality of what he is revealing, part of the problem is that the law that had been used both in America and here to justify some of the intelligence gathering architecture has been massaged and stretched to a point beyond which the laws were actually intended. So you can say it is within law but the law has actually been made a bit of an ass of here.

General Michael Hayden

Which one are you referring to specifically, the metadata for phone records?

Question 6- Nick Hopkins

I think well, certainly PRISM in the United States, and the use of FISA court rulings, and also in the United Kingdom the use of RIPA which is an act brought in thirteen years ago and it’s being applied to techniques which could not have been conceived of thirteen years ago.

General Michael Hayden

From my point of view in terms of lawfulness, to an American audience, which is really the only audience for lawfulness we care about. I mean European audiences, political effect, friendliness, openness I got it. In terms of lawfulness either you’re in or out in terms of American law.  PRISM is a softball. PRISM doesn’t incur much of a ripple in the United States at all. I mean prisoners’ foreign  communications, the only thing American about those communications was that they were sitting on a server in Redmond, Washington, they’re in America, they’re not of America.

And remember this and we’re trying to bend it to go here, [points left then points right] in the SIGINT world we knew this back in ‘99 when I became director of NSA. Modern communications had created a circumstance in which a communication in the United States very often was not of the United States. And now we had this legal challenge in that our law, because it was based upon the technology in 1978, our law treated all communications in America as if they were of America, and what the FISA Reform Act, the law, in 2008 then allowed NSA to do, was to go after their signals that were resident in America, but were foreign, and so we did. So again that’s so not really a hard one I think, to justify its lawfulness to an American audience.

Now I realise don’t worry about it were just clucking on foreigners, you say that in another country you know, not so good. But that’s a political question not a legal question. With regard to the metadata programme that’s going deep, that’s playing to the edge of the line. And I can understand Congressmen saying I don’t think that was the intent of that provision in the Patriot Act, but then I would say, “so why didn’t you read the letter sent to all of you in 2009 and in 2011 before you reauthorized the Patriot Act, that clearly described that NSA was collecting metadata on all phone calls in the United States?”

So I’m still saying check, lawful.

Question 7- Dr Alan Mendoza

Right we’re up against our deadline; I’m going to sneak in one final question myself to you. We had a conversation in February in Washington when Robin launched his last report on Al Qaeda in the US, and in the midst of that conversation, it came out that one of the major determinants of and the success of terrorist attacks in the West has been the training of terrorists. The more trained someone is, the more time they have to get used to arms, equipment, bomb making ,whatever it may be, the more likely they are to succeed.

Does it therefore worry you that we are seeing so many conflicts around the world raging, where there is particularly radical Islam, of course Syria being the classic example of this, and what do you think this means for the likelihood of an increased success of terrorist attacks going forward?

General Michael Hayden

So I mean, we actually sent a National Intelligence Estimate in 2006 – back to unintended consequences, and having to live with the second and third order effects) – that Iraq had become a cause celebre for global jihadists, and it was a magnet for jihadists from around the world. [And] you had them coming there getting combat experience, and then the very danger was when they were done there they would go somewhere else.

The rate of foreign fighter arrival in Syria is twice that of the historic high in Iraq, and so this is really a problem. And both Great Britain, but in a way we don’t normally experience in the United States, the Somali issue is quite important because oddly, we…  my Steelers lost to the Minnesota Vikings yesterday, that’s Minneapolis St. Paul Minnesota, the largest Somali American community in the United States, so local colour. We run a real danger.

[Inaudible] I want to make something very clear, you’ve asked me candid questions, I’ve answered candidly and probably without much repentance on many of the things that you’ve raised, but as friends, I would ask you even if you object to some of things my government has done or is doing, that you would make a decision:  “I understand these are good people with tough decisions but I just think that’s wrong”,   I get that, that just says that we come from the same value pool, I understand that perfectly. And I’m not asking for sympathy but I’m asking for deeper understanding: that we’re all doing this.

We are all in our Security Services trying to adapt Security Services designed again to protect us from state power, to go against non-state actors, who are animated and enlivened and protected by state weakness, and were all going through these adjustments. And many dangers for our citizens now don’t come from other states, they come from other individuals, and states aren’t well equipped to deal with that, but we still all agree, I think, that we give only states the monopoly on the use of violence to protect us.

And so I sound a little bit too American, but don’t cross your arms and cluck at us for wanting another action. I got it, disagree with it, let me know. But now tell me, so what am I supposed to do with the guys at Guantanamo?

Remember that speech at the German embassy? It was a lively debate afterwards, at one point so lively that the German ambassador kind of turned to me as I’m standing at the podium next to him and said to me, “General, after all, we are all children of the Enlightenment.”

[Laughter]

And I responded, “ Yes, but we’re kind of hugging Hobbes while you guys are walking away with Locke, in terms of your general approach.”

And I said, “Look, it’s a practical matter, were among friends here. If I go back to my headquarters and we’ve got somebody I got three choices:

I can keep him – that’s detention. I can give him to a friend – that’s rendition. Or I can I send him to Guantanamo.”

Those are the real choices.

And I know your first question, Lord Carlile, was the law enforcement model, but as a practical matter, you can’t turn the American armed forces or the CIA into CSI Miami, or CSI Kandahar, or CSI Jalalabad, or CSI Peshawar, in order to build up that kind of evidence.

So, we may or may not have acted consistent with what you think should be our values or our common values, but this are our issue.

Dr Alan Mendoza

Thank you. It is indeed our issue. You both have laid it bare today; you’ve taken the discussion in numerous places.

General Hayden, you did lay out the harsh reality of the possibility of the world of gratification without commitment earlier. I’m pleased to say that we’ve been gratified by your commitment, to answering the questions in such a fulsome manner, and indeed Lord Carlile, for putting them in such an effective way, and of course that’s based on both of your commitment to improving our national security in your periods of tenure.

Thank you both for giving us your time today, and look forward to seeing you again some point soon.

[Applause]

HJS



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