Michael Hayden:  “We Kill People Based on Metadata”

[Editor’s note: See the video clip from the debate where General Hayden said “We kill people based on metadata” here.]

I have a New York Review of Books blog up today on Congress’s efforts to rein in NSA spying — or at least that part of it that directly targets Americans.   It starts with a remarkable admission former director of NSA and CIA Michael Hayden made in a debate I had with him last month at Johns Hopkins, in which he asserted, in response to my argument that metadata is very revealing – “We kill people based on metadata.”

But the focus of the piece is Congress’s effort to rein in NSA metadata collection.   To many peoples’ surprise, the Judiciary and Intelligence Committees this week unanimously approved an amended version of the USA Freedom Act, the bill originally introduced by Senator Patrick Leahy and Representative James Sensenbrenner.  In my blog, I address whether this unprecedented bipartisan agreement should be grounds for suspicion.

If enacted, the bill’s reforms would be significant in altering the NSA’s collection of metadata.  It would now collect not everyone’s metadata, but only those numbers that are one and two hops away from a number that is suspected of being linked to a terrorist.    But even one and two-hop searches can generate tens or even hundreds of thousands of numbers, and over time will lead to another very large aggregation of phone numbers in the NSA’s database.  One of the law’s shortcomings is that it does not specify any limits on how the NSA can search that database – one that will inevitably include the phone numbers of many people whose only connection to terrorism is that they called the same take-out joint that a suspected terrorist did.

The bigger lacuna, however, concerns the NSA’s spying on foreign nationals overseas. This bill is directed entirely to Americans’ rights, and gives not a shred of protection to the rest of the world – even though Edward Snowden’s revelations have shown that the NSA is far more intrusive with respect to foreign nationals’ communications than with respect to Americans’ calls and emails.  It is, I suppose, not surprising that Congress – and the American people – care a lot more about Americans’ rights. But as I have argued here previously, foreign nationals have privacy rights, too – and we are all foreign nationals with respect to the rest of the world.  True NSA reform should impose limits on how we treat the rest of the world as well as how we treat ourselves.

Almost certainly, one of the principal reasons there is real movement toward reform is that Section 215 of the USA Patriot Act, the provision on which the bulk metadata collection rests, sunsets in 2015.  That means that if there’s not consensus, the authority will end.  And that shifts the burden dramatically in favor of those seeking reform, as they can hold out the very distinct possibility of a sunset.  Another likely factor is that, according to the Pew Research Center, for the first time since 2004, more Americans are concerned that the government is infringing their civil liberties than that the government is not doing enough to keep us secure.  But as the scope and title of the USA Freedom Act make clear, Americans’ concern about civil liberties is parochial, and apparently does not extend to the liberties of others. 

About the Author(s)

David Cole

National Legal Director of the ACLU and Professor at Georgetown University Law Center Follow him on Twitter (@DavidColeACLU).