Inside the NSA: An Evening with General Michael Hayden

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[MUSIC] Stanford University. >> Good evening and welcome. It's a little, I can feel it's kind of warm here, so, I've been told the air conditioning is being turned up. So, we'll try to cool down the auditorium a little bit. I want to welcome you to the first event in a speaker series, that's going to run through this academic year at Stanford. The title of the series, as I think you know is The Security Conundrum, balancing security and, liberty in America. My name is Phil Taubman. I'm a consulting professor at Stanford at the Center for International Security and Cooperation. And this course, this series grew out of a course that I teach here in the spring about the clash between a free press and the government over the handling of national security secrets. That course is entitled Need to Know, and for the Stanford students here who know the parlance, it's, COMM 133, 233. The reason that I teach that course is that I spent my career as a journalist. 30 years at the New York Times as a reporter and an editor. As Moscow Bureau Chief and Washington Bureau Chief and ended up, as a player in quite a few of these confrontations between the press and the government over the handling of classified information. Michael Hayden who was, as you know, director of the CIA and the NSA. Michael Hayden and I had a lot of conversations in 2004 and 2005 when the New York Times learned about, a top-secret government program that was run by the National Security Agency, to collect information on communications involving suspected terrorists after 9/11. The reporters in the bureau reported that information to me and then I and my colleagues at the Times ended up in a long discussion, it went on for a year, with senior members of the Bush Administration. To some of you it may be a famous case or an infamous case. We hold the story for a year and eventually published it in December of 2005, and the program that that story was about was the first of these NSA programs. I think those of you who have followed the Edward Snowden disclosures would know it as stellar wind. That was one of his, the first documents that Snowden revealed. And we had a piece, a small piece of the stellar wind program, which we published in the Times after holding it for a year. So General Hayden came out and served as a guest speaker in my course two years ago. And literally within a few weeks of, of his appearance, the first of the Snowden reports came out. And I found myself thinking, you know it's great at Stanford you can have a course where someone like General Hayden comes and talks about issues like this with 14 students. But wouldn't it be great if we could expand the discussion so that the whole community could be involved in it? Because I think the Snowden disco, disclosures are so important for our society to debate about and try to reckon with. So this series is an outgrowth of that course. And tonight you'll be hearing from General Hayden, who will be here in conversation with Amy Zegart, who is a professor at Stanford. I'll introduce her momentarily. On November 17th, the next event will be a conversation that I'll have here in this auditorium with Bart Gellman, who is a reporter for the Washington Post. As many of you know, the Snowden disclosures really first surfaced in the Guardian and in the Washington Post and Bart was the lead reporter for the reporting in the Post. And Bart, and the Post won a Pulitzer prize this, earlier this year for that work that they did. And the point of the series is to explore Snowden from different perspectives and different dimensions. So, tonight you'll be hearing about the perspective inside the NSA with Bart Gelman, you'll be hearing about the perspective within the media, the kinds of questions that reporters and editors tackle when they're faced with hugely important highly classified information, and are debating whether or not it should be published or, or broadcast, or posted, or tweeted or, or whatever. We have an agreement with Senator Dianne Feinstein to come and speak. We don't have a date yet, but I believe she'll be here either in winter quarter or spring quarter. And of course, she'll talk about the Congressional role in this, maintaining the proper balance between security and liberty in America. At the moment she is the chair of the Senate Intelligence Committee. Whether she'll still be in that job come winter quarter, or spring quarter remains to be determined. Judge Reggie Walton, will be here on April 10th. He served for seven years on what's known as the FISA court, which is the foreign intelligence surveillance court. The Foreign Intelligence Surveillance Act was passed by Congress. And signed [COUGH] by Jimmy Carter after revelations of the abuses by the CIA and the NSA during the 1960s. And as part of that law a special court was set up to review government requests for warrants to wire tap and in other ways intercept communications involving foreign intelligence issues. So judge Walton served on the court for seven years, until this past summer and was the presiding judge of that court in his last year on the court. It's very unusual to have a member of the FISA court speak publicly about these matters. He will do that here in a conversation with Jenny Martinez, a law school professor, on April 10th. We're hoping to find a volunteer from Silicon Valley to come talk about all this from the perspective of the tech world, which. It clearly has an uneasy relationship with an agency like the NSA, which came in the front door with some companies to gather information with their approval, and came in the back door to gather information in some cases without their approval. So, let me just touch on a couple of quick housekeeping issues. Please silence your electronic devices. Stanford video is here to record this. We ask that the audience not make it's own recordings. By being present, you acknowledge that you may be recorded as part of the recording which will be available on iTunes U eventually and also on the websites of the sponsoring organizations for this series. I'll enumerate them in just a second. The Q and A format is modeled on the commonwealth club, in San Fransisco, which is, written questions. I think a lot of you, got cards and pencils as you came in. And the idea is that you would write your question succinctly, to the point, legibly, and it would be, they would be collected, during the, discussion. Don't, please don't wait till we get to the Q and A part of the evening, by then the stack of questions will have piled up. And for those of you who suspect that this is some kind of conspiracy to assure softball questions, I promise you that's not the case. I worked at the New York Times for 30 years, I hope I never asked a softball question and I hope all of you will ask tough, difficult questions, for General Hayden. And we will ask them if you turn them in. And finally, let's be respectful of each other this evening. These are highly charged, very volatile, incredibly important issues. And I know that people have very strong feelings about them, so I would ask, please [COUGH] let's have a respectful conversation tonight and at the future events. My thanks to the five organizations or six, that are cosponsoring this. The Freeman's Bogley Institute for International Studies. Seasac, the organization where I hang my hat, the Center for Secured International Security and Cooperation, the Hoover Institution, Stanford Law School, Stanford Continuing Studies and Stanford In Government. And now let me just quickly introduce the, the two people who you will be hearing from. General Hayden, director of the National Security Agency 1999 to 2005. Principal Deputy Director of National Intelligence 2005 to 2006. CIA director 2006 to 2009. He's a retired four star air force general and he's now a principal at the Churdof group in Washington. And Amy Zeigart is an expert on intelligence issues, you couldn't have a better person to have in conversation with general Hayden. She's co director of SESAC,. She is the Associate Director for Academic Affairs at the Hoover Institution, and a professor of political science by courtesy at Stanford. So I will turn the proceedings over to them, and thank you all very much for coming this evening. [APPLAUSE] >> That's it? >> Well I want to thank you Phil, for not only that introduction, but for coming up with the idea to make this our classroom here at Stanford. [LAUGH] I want to thank all of you for coming. General Hayden. And welcome to Stanford. >> Thanks Amy. >> I want to start if we can by setting some facts on the ground, there has been a lot of confusion about the different programs, surveillance programs that Ed Snowden has revealed in the past year. In particular, the distinction between the telephone meta data program, which policy wonks know under section 215, and the Internet communications program under section 702, can you lay out for us in layman's terms what these programs do? >> Sure >> And how they do it? >> Yeah. As Amy suggests, 215 program has to do with telephone meta data. So it's not email traffic, it's voice. And it's not content, it's fact of. And so what the Agency gathers is who called whom, when, for how long. It's also within the technical definition of metadata to include locational data but this program doesn't, okay, it's consciously excluded. So what you've got is a record of all phone calls made within the United States, or between the united States and overseas. It's given to the National Security Agency on a daily basis by the telecom providers. It is not technically electronic surveillance, it is not even metaphorically alligator clips on some wire somewhere getting signals. These are actually business records kept by the phone company in order to charge you for your phone usage. That pipe, that data is then bent towards the National Security Agency, where it is stored. Key point about this is that it is unarguably domestic. It's your stuff, it's my stuff. And it's put into this large database. Now, that in itself causes a lot of people concern, because, you know, even with good intent, there's some nervousness about the government having that kind of information. The NSA view is that, although that is kind of theoretically frightening, as a practical matter, one has to look at what happens to that data, in order to make a coherent judgement about it. It has to of what you've got here, are the records of phone calls as I've described, between and among us, and between us and overseas, either originating overseas, or originating here. That data is locked and inaccessible at NSA except under a very narrow set of circumstances. Now number one, the number of people who are allowed to access that data is about two thou, two dozen. Actually the right number is 22, all right? And the way you access the data is through a number, almost always foreign, about which you have a reasonable, articutable suspicion that the foreign number is affiliated with terrorist groups. Specific example. So you, you raid a safe house in Yemen. And, you go in and you. With your Yemeni allies. And you, you grab some people. And you grab what's called pocket litter, which is. Identifiable stuff inside, inside their pockets confirms that yeah, these guys are who we, they, who we though they were. They're aff, affiliated with AQAP, Al-Qaeda on the Arabian Peninsula or some other group. And you discover a cell phone that you'd never seen before. Now you have a reasonable articulable suspicion that, that cell phone is in fact affiliated with the terrorists. What you then get to do, and, and I'm going to be a little cartoonish here, but this is kind of how it works. What you then get to do is walk up to that database, kind of yell through the transom. Say hey, anybody in here talk to this phone? And then if a number in the Bronx kind of raises its hand and says, well yeah, I do every Thursday. NSA then gets to say to that a number in the Bronx, well then who do you talk to? That's it. That's the program. There's no mining of the data, there's no pattern development, no pattern recognition. It is, did any of those, did any of those phone events that were captured there relate to a phone that we have reason to believe is affiliated with Al Qaeda? The last year I've seen statistics is 2012, and that, hey anybody in here talk to this phone. Happened 228 time. That's 215 meta data. Fundamentally it is designed to see if there are any terrorists inside the walls. Terrorists inside the gate. 702 is different. 702. Telephone. Email. Domestic. Foreign. Metadata. Content. So seven to two is, is about content. And it's about emails. And it's about emails who are re, which are residing in the United States, that are on servers inside the United States, but this is foreign intelligence. And so, we, we're aware of a, of a certain terrorist. And we know that this terrorist uses two or three Gmail, or Hotmail, or, Yahoo or AOL accounts. Under broad court supervision. It's not specific. I don't have to go, every time I ask a question to a judge, but under broad court guidance, NSA gets to go to the ISPs here. The Internet service providers, and say I want everything in this account that meets the standard the judge has given me. That it is outside the United States and it is someone affiliated with terrorism, proliferation, or cyber attack. And here's another difference, terrorism only, broader foreign intelligence needs. That program, 702 the, the email content was developed because prior to the amendment of the FISA Act in 2008. We treated foreign to foreign emails resident on servers in the United States as being of America. And therefore enjoying f, the fourth amendment pr, protections against unreasonable search and seizure that, that you enjoy. Again, it's foreign intelligence. So this could be, remember that safe house in Yemen? All right? Let's say that one of those individuals in that safe house was talking to another individual say, in the travel region of Pakistan. And they were using Gmail to do it, because Gmail's cheap, ubiquitous, it works. The only thing American about that Gmail correspondence between the Yemeni and the Pakistani. The only thing American about that is it's sitting on a server here in the United States. 702 then allows the agency under those circumstances to go get that information. >> So let's talk a little more about 215 the Telephone Meditative Program. Which has generated a tremendous amount of controversy. >> It should because that's the one about you and me. Right. >> It's domestic. >> So, you've been in public defending this program. Other members of the National Security Agency, the intelligence community, have been talking a lot in public. About the fact that this program does not include the content of your phone calls. And the American people overwhelmingly do not believe you. Right. So polls in October of last year through January of last year show a majority of Americans believe that the NSA is lying. When it says that the 215 Telephone Program does not in fact include content. And in fact only 16% of Americans thought that NSA was telling the truth. Why doesn't the American public believe you? >> I don't know. [LAUGH] Have have any of you ever made your phone bill talk? This is not electronic collection, these are billing records from the company. It is a physical,. To listen to the content of those calls would not just violate the laws of the United States. That would violate the laws of physics. >> [LAUGH] >> There is no content. It isn't electronic surveillance. Now look,. At the end of all this you're going to go, I got it, Hayden, nice try. I still don't want the government to have that kind of data. That's a fair position. I, I, that's something we can have an honest discussion about. But let's talk about what's really possible, and the really when this thing first broke. You know anytime after 7 o'clock on the 7 by 24 networks, all right the news networks. You've had somebody on there talking about this and then they would say. And then, then if you're looking really suspicious you just click on that number and they get the content of the call. I'm going it's your phone bill. It, it's just not possible. >> So let's talk about the right. [CROSSTALK]. >> So weak inference to everyone here, right? >> [LAUGH] >> [LAUGH] Which gets into the right of privacy. How do you think about, is there a Constitutional right to privacy, and if there is, how do you define it? >> Absolutely, there is a right to privacy. And the way I defined is, and I've, I've had this discussion before. And I was up in, British Colombia about two years ago. and, pretty sporting debate going on. And I said privacy is the line we continuously negotiate for ourselves. As unique creatures of God and as social animals. There are some things that the community has a right to know and there are other things that the community does not have a right to know. And the whole debate about privacy is, where is that line? Between the duality of my nature my unique, my uniqueness as a creature, and some things are mine and only mine. And other things that I owe to the collective because I have to live with other people. That’s what, that’s what this is. And, and now, where that line is, is subject to great debate. But I'll give you a concept I'll probably keep coming back to. Where that line is, is, is not an, is not a theoretical construct and, an abstract we arrived at. Where that line is, actually depends upon the totality of circumstances in which we find ourselves. So we're chatting a little bit over dinner. Right after 9-11, I did some things at NSA that were fully within my authorities. I told both congressional committees and we told the White House. But I did it. I mean I wasn't say, may I do this? I did it because my belief was that the, that the correct judgment with regard to the totality of circumstances we found ourselves in. Well that was different on the afternoon of September 11th, then it was on the evening of September 10th. What constitutes reasonableness which is what you and I are protected from, for in the Fourth Amendment. You know the Fourth Amendment doesn't protect us against all searches and seizures. And protects us against unreasonable searches and seizures. And what constitutes reasonableness and again we can disagree about the specific point in the line. But I don't think we would disagree that where we draw that line depends on a whole bunch of things, things that can change. And so 215 which really began under me, under another title. All right? That was something we would have never done on September 9th, or September 10th. It was quite in our view, reasonable after September 11th. >> So talk a little more about this decision to initiate this program. As your thinking about what activities the NSA should conduct after 9/11. Do you see your job as balancing security and privacy as we are talking about here or pushing the line as far as you think it can go? >> It, that's a great question, and the answer is a little ornate so just give me a minute to come at it. My responsibility is to defend you. And so very often in the discussion I would be saying, if I am allowed to do this, this is what I can provide. Remember the circumstances, remember reasonable, unreasonable, in essence what is proportionable. My expertise is if I'm if I'm able to do this, this is what I believe I can deliver to you. In terms of security for the United States. Now, I am not indifferent to the other side of the equation. So two days after 9/11 all right, Sept, September 13 I, I addressed the NSA work force. I go into my conference room. It's empty. I mean, we don't want to pull anybody off a mission. But we beam my remarks to all the work stations throughout the National Security Agency, which is 35,000 people globally, all right? And I, I go through some things you'd expect me to say,. We gotta play defense now. It's about attack characterization and threat warning. What happened, any more coming. Won't play defense forever I reminded everyone, but defense for now. I said, I betcha a lot of your family members didn't want you to come to work today. I'm glad you're here. Look on the bright side. 300 million of your countrymen wish they had your job right now. And then I ended by saying look, in addition to keeping the country safe, we got a fundamental issue here. All free people's have had to decide how to balance the requirements of liberty and of security. We blessed, by friendly or weak neighbors and two big oceans, always tucked our banner way up here by liberty. And I told the NSA workforce, that is under threat, so here's the job. We will keep America free by making Americans feel safe again. So in this debate about security and liberty, let me suggest to you that if, that if you shortchange the security part. And really bad things happen. People out here are going to demand stuff that probably the better angels of their nature would suggest wasn't consistent with their traditions. And so, when I went out and played to the line. When I went out and worked within my box as a, as aggressively as possible, it wasn't just for security. That was also for liberty. >> So was there ever a time, either when you were NSA director or CIA director, where you said. Unilaterally. This may be inside the box, but I'm not going there. >> Not inside the box. It that would be immoral on my part. You know? It's, it's legal. It's technically possible. It's operationally efficient. But you know I'm probably going to be comfortable about this ten years from now out of Stanford. And people are going to be crabbing at me and somethings going to hit the fan so, tell you what lets just play back from the line. That, that's an immoral decision for somebody like that. >> Since the Snowdon revelations, that US intelligence community has talked about these programs as being necessary for counter terrorism. Although, 702. >> Broader. >> Broader. >> Broader per view. >> Right. >> Right, so let's then focus on 215, phone meta data. And, yet the President's own review board. And then the Civilian Oversight Board, did detailed examinations of that program, that telephone meta data program. And decided that in fact, not so essential. And decided that it was all right and that the country would not suffer terribly if the, if that program were ended. So my question is did the NSA mis judge the value of it's own program? >> I don't think so, but remember the totality of circumstances. And circumstances change, all right? I'm going to, I'm going to reason by analogy here, but I'll, I'll get back to the NSA stuff. When I became director of CIA, I had my own issues over there with detentions and interrogations. You know, what are we going to do about this. >> We can invite you back to talk about that another time. [LAUGH] >> And I actually decided to change that program. I actually decided to, to empty the block sites, I actually decided to make public that we're holding people. We didn't close them, we actually put a couple more people in em while I was director. And we decided to take the techniques we had used, which had been called enhanced interrogation techniques and reduce them from 13 to 6. Okay. Now, is that a judgement by me on George Tenet? Is that my saying, George you got that wrong? You, you overreacted. Eh, you know, you shouldn't have used those other seven techniques. No, no. I was in different circumstances than George Tenet was in, all right. I had more unit penetrations of al-Qaeda. I knew more about their plans. I knew more about their capabilities. And, and therefore, back to totality of circumstances, what's reasonable and unreasonable, what's proportional to the threat. I felt, operationally, I no longer had the compellence that George had immediately after 9/11. It could be that, that review board. Okay? Walking us forward, doing this pre-ISIS, pre-beheading. We are all feeling well maybe it was necessary then, but it is not so necessary now. I would be curious as to what their review board would do if they had to reinvesitgate that. Effort in three, six, or nine months since the metadata program 215 phone, phone bills, is specifically designed to go after the lone wolf. It's specifically designed to go after the individual actor. There's a few, in fact, it's the best tool we have to go after the individual actor. And so, maybe now they would re, I have no idea. Maybe they would reconsider. I would tell you this, that one of the members of the board, Mike Murrell, after the board gave us conclusions, Mike came out and simply said. Not only is the phone program good, we gotta go back to be collecting the email metadata too. And so, I get it. There are a range of views. Where are you going to draw the line? But it's based upon the totality of circumstances. No one's doing this out of interest. You know, after 9/11 I didn't go oh, boy I got this in my lower right hand desk drawer. I've been waiting to do this program forever. [LAUGH] No. It was a logical response to the needs of the moment about which honest citizens can disagree, but this is not the forces of light and the forces of darkness. These are just contentious issues. >> There has been this serious debate about how do you know, how do you weigh the benefits versus the disadvantages of these various programs? What are the right metrics that NSA or Congress, or the President should be using today to begin to make those decisions. >> Other than the fact that the Federal Government has your phone bills, what disadvantages are you asking me to weigh? >> I think they're, a poll show and there has been a lot of debate in this country in wake of the Snow revelations that. Americans are, sit uncomfortably with the idea that they're telephone call data is in the hands of the government. >> Again, that's my point. Other than the fact that the government has your phone bills, what disadvantage. I mean give me, give me concrete evidence of bad things happening to Americans because of the 215 program. >> Well, because you know, well there's a history, a long intelligence history of abuse of authority in the past. >> Sure. >> And concerns that that history could be replayed. >> [CROSSTALK] We're not here, we're not here arguing about police forces or armed forces, all of which have had abuses. >> Right. >> All right? I, I, again, I, I'm. I've been a little prickly here. I apologize. But I, I, I want to point out. >> But we promised that we wouldn't be talking about softball questions. >> Yeah. >> Right >> I, I want to point out that, that it's the fact of. And your right Amy, when the president makes his speech in January. All right? As it, as, you know, after Snowden comes out, and he gets the commission going, and, and he huddles up, and he goes out there in January at the archives. He's got, so he's got the Constitution behind him and, you know, great, great visual. And the, and the President gives you kind of a three part speech. Part one is, it's a really dangerous world and we really need intelligence. I mean, it, it, it is a, it is a stunning endorsement of the American Intelligence community. In fact my line is, if the man had been giving that speech for the last 12 months, he wouldn't have had to give the last two thirds of the speech he gave in January, okay? But it's a, a remarkable endorsement. And the second part is, but this domestic stuff we're doing is making you uncomfortable. And he almost literally says that. And he says because you are uncomfortable, this stuff here that, legal, and is kind of working, and I thought was essential, we are going to change some of that stuff now because you are uncomfortable. Look, I get it. I am an American too. I'm part of the same political culture. The population being uncomfortable in a democracy is a big deal. But it was fundamentally the discomfort that the president was talking about. He did not claim that these were ineffective. He did not say they were unlawful. He just said, you're uncomfortable, so we're going to make some changes. And that, that's really the, the fundamental issue here. I'm good with that, trust me. We just need to go out for the coin toss, and this box that I was operating in, you're saying I'm uncomfortable. I want the box to be about that size. And as long as you understand that, that smaller box, in my professional judgement, would make NSA's job harder and therefore probably make you less safe. As long as you understand that, we got it. That's what we'll go do. >> Give us your sense of what the damage was from the totality of the Snowden revelations. We've talked a lot about telephone metadata. Snowden's revealed a lot of things about programs to potentially undermine encryption standards, et cetera. How bad is the damage from [CROSSTALK] these revelations? >> It's, it's the greatest hemorrhaging of legitimate American secrets in the history of the republic, and was tremendously damaging on multiple levels. First of all, most of the stuff he revealed had nothing to do with your privacy or mine. The overwhelming majority of the information he revealed was how your government collects foreign intelligence to keep you safe. A couple specific examples. So he's in Hong Kong trying to get out of the city, and he tells the South China Morning Post, himself,. Not through Greenwald, or Bart Gellman is going to be here in a couple of weeks. He tells the South China Morning Post himself that the National Security Agency is breaking into computers in the People's Republic of China, and gives a few more details about that story. And then while he's still in Hong Kong, trying to get out of there, Glenn Greenwald. Whose been given these documents by Snowdon, publishes the story in the London Guardian that the station at Menwith Hill, up north of London in the moors up there, had used its antennas there to collect the satellite phone of Dmitry Medvedev during a G20 meeting in Great Britain. I'm, I'm waiting, I'm waiting for the civil liberties quotient here to pop in to this discussion. That has nothing to do with civil liberties. And again so, the vast majority of what he released, that's just a couple of examples, is about foreign, legitimate foreign intelligence collection. And that makes your security services job more difficult. Second damage was American foreign relations, and before you jump to the fact yeah you made the German Chancellor mad, all right. That's not the issue. The issue of damage here, and I understand there's a political issue with the Germans and. We and they will work our way through this, because we have a wonderful intelligence relationship with them. The issue with foreign nations is simply this. Why would we work with you people? You can't keep anything secret. And then the third impact, and people in the audience here know it better than I, the third impact has been on American industry. Who've been dimed out and punished for doing things exactly what British Telecom or Deutsche Telecom does for their government, except that Snowden was an American and he released American secrets. So these big American slash international firms have suffered mightily because of the revelations of, those are all very damaging things. >> So where, let's stay on this topic for a second. We are sitting here in Silicone Valley, we have major tech companies just down the road, many of which were started here at Stanford. And when I went to a, a leading tech firm for just a couple of weeks ago, here is what I heard from a Senior Executive there. We think about the NSA as the enemy to us, just like we do China's People Liberation Army. Twitter yesterday filed suit against the U.S. government because in order to get more disclosures about the queries that the U.S. government is asking >> Twitter, Twitter wanted the ability to scale >> That's right. >> how much they're giving to the U.S. government publicly. And the issue that you raise that has perhaps most angered executives, well two. One is the damage to their business overseas, because they're perceived as an arm of the US government when they're not. But the second is as Phil Talman referred to the back door. Right? That revelations that the agency had been going through the back door to collect data from data centers of these different company's when they could have gone through the front door. And the relationship is bad. It's really bad. What do you say to these executives, what can the U.S. Government do today to begin to repair that breach of distrust. >> Go on, get over it, right? >> Go on, get over it. Is there anything more, concretely that we can do, >> No, I >> because they're not over it. >> No, and they shouldn't be over it, because it's done great harm, and I, I get it. I mean, we talked a little bit before we came in here about what Google and Apple are doing with regard to unbreakable encryption, right? You know, the FBI's not going to be able to read Tony Soprano's cell phone, unless they go to Tony and ask him for the key, that's essentially what, what they're going to do. Do I object to that as an intelligence professional? Yes, [LAUGH], okay. Do I understand that based upon Google and Apple's business model? Absolutely. Okay? So, let's unpack some of the things you brought up about you guys are just like the Chinese. Actually we're not. We're actually much better than they are. >> [LAUGH] >> But, we self-limit. I freely admit, NSA steals stuff and we're really good at it. And we're better than the Chinese. But we steal stuff to keep you free and keep you safe. We do not steal stuff to make you rich. And there are four other countries I know of in the world who can say say those last two sentences and have them been true, have them be true. Everyone else steals for commercial advantage. And the distinguishing characteristic between ourselves and the Chinese is not that we conduct electronic surveillance, because we do. It's that we conduct, we conduct electronic surveillance for far more narrow purposes than the Chinese do. And so, that is an important distinction that should not be lost. And you're probably getting the message here, that I'm saying we steal stuff through electronic espionage without apology. And, and I am. So that's one. The back door front door thing, I think is a reference, so you've got the 702 program. You can go to Eric Schmidt and say Eric, give me that file. And yet, at the same time, NSA was on fiber optic cables connecting data centers elsewhere in the world. Yeah. What I can, what I can say without getting into too much operational detail is the 702 program is not exhaustive of everything that's covered in Google. All right? And the 702 program requires you to know I want his email account. Okay? Whereas, when you're overseas apparently, according to the stories, on a cable overseas, connecting two data centers. You get to do traditional signals intelligence, you get to collect the data while it's moving. It's not the same data, not identical to the data you might be able to get through a court order. And you are not required to have prior knowledge of your target's email address in order to begin discovering. I had this debate at American University with your next guest, Bart Gellman, and Bart was kind of exercised about this. I said what, Bart, let me, I'm sorry, I'm, I'm not following you here. You think Gmail should be a safe haven for the enemies of the United States? Do you think NSA should not be able to target Gmail? And he said oh, no, no I am not saying that at all. I said, yes, you are. Because if you, if you do not target Gmail in a way, or Yahoo, or any other network. I mean, I'm using GMail because that's the example. If you're not able to target that, you are conceding a safe haven to our enemies. >> While we're on the topic of GMail, you have said and I'll, I'll paraphrase, that there's an organization out there that knows a lot about your private information, that follows your searches on the web. That can read the content of your emails, and its name is not the National Security Agency, its name is Google. As a private citizen, are you concerned about that? >> Absolutely. Absolutely, and look, there, there are a lot of big issues here and frankly, how long NSA keeps your phone bills. Which is kind of a big issue back home. How the NSA keeps their phone bills is about that big in terms of the massive issues that we are, we are addressing. [COUGH] One is the whole question of privacy. And, you know, we've grown up in a political culture in which the only significant threat to privacy came from our government. And therefore we've, we've protected ourselves, our privacy from our government. Now I've, I'm carrying no grief against Erik, he's a good friend, we, we've talked about these issues and he's very sensitive about privacy and all that, all right. So this is not meant to be accusatory, I'm just simply saying that in terms of who knows more about you, one of the least of your worries is the US government. Okay. It, it is other private sector entities. And so, you know, and that trickles down to who knows what. The government knows this. The government has your phone bills. How long do they keep the phone bills? We're really getting down here into the inches and you've got these other incredibly macro issues up here that you and I have not yet decided. We have, we have not yet decided on a, on a digital age, post-modern, post-industrial, 21st century definition of that line between unique creature of God and social animal. >> Now, we've talked a little bit about this before. One of the arguments from tech firms is, there's a big difference between the private sector and the government. The private sector can't put you in jail. >> [INAUDIBLE]. >> Share your response to that. >> You know, like NSA. [LAUGH] If we're, no, it's an important distinction. And I realize, yeah, we're part of the federal government and we're kind of connected. I get that. Been an awful lot of the dialogue about the Snowden revelations, has been couched in language and viewed through the lens of our traditional domestic law enforcement taxonomy. So very often, Bart Gambon does this a little bit, he'll probably mention it when he comes. Greenwald, Glen Greenwald wrote for the Guardian, now he's got his own kind of website called the Intercept. Greenwall talks about suspicionless surveillance. To me, that's a nonsense phrase, okay? My job is not to do the forensics after a crime has been committed, and to prove something beyond a reasonable doubt. My job is to work on stuff before something happens in order to prevent it, and to enable your government to act even in the face of continuing doubt. And so, I really do want to make a distinction between the law enforcement function of our government, and the foreign intelligence function of our government. Pre Snowden, way back in the day. Go back into the 90s. It was always easier for me to go to the court to get a warrant for foreign intelligence purposes than it was for the FBI. My bar that I had to jump over to get probable cause was, was lower than the Bureau's. Why? Because if I did something bad, if I made a mistake, I squeezed your privacy, but that's as far as I could go. The Bureau could squeeze your liberty, and hence the standards by which they had to operate were much higher. If I, I, I am glad you brought it up Amy, because as you think this through, because this debate is going to go on for a while. As you think this through, do not treat this as law enforcement. That is not the purpose of this. And my second life as CIA director. I get asked about, well should we try these people or not? I go, I don't care. I want to question them, I want to get intelligence from them. My job is to worry about the future. I am indifferent as to whether you try them in a civil court, you try them in a military commission, it doesn't matter. So, when you're talking about intelligence, try to keep your focus on that's different law enforcement. It's not the same thing. I, I'll go one further because you're probably going to get some NSA offending not just Americans but citizens around the world. >> Well, I was going to go there, but since you brought it up. >> I was in, I was in Germany in February and the Germans are actually get, they're a little upset about this thing. I was at the Munich Security Conference and I, I got a lot of German friends, and we were talking, and I, German anger about this is absolutely genuine. It really is. I think in my heart of hearts. I don't think it's warranted, but there is no doubt that it's genuine. And, and the German, the German taxonomy of values. I get it. We're all Judeo-Christian, tradition, western civilization. We're all children of the enlightenment. But fundamentally, the Germans, because of their historical circumstances view privacy pretty much the way you and I view freedom of religion or freedom of speech. Okay? We let Nazis march in Skokie, because freedom of speech is sacred. Germans don't even allow Nazis. All right? But the Germans treat privacy the way we do freedom of speech and, and freedom, freedom of religion. So, so we, we overstepped it in that sense. At least who ever stepped in our inability to keep in what it was we were doing secret, okay. Then I get accused that you guys are just Gestapo. I go woah, stop. Gestapo used that information to, to reduce your liberty. It is physically impossible for NSA to use that information to reduce German liberty. It is quite different. They'd still be quite offended by the privacy thing, but it is not Gestapo. >> General Hayden, is there anything when you look back on this very challenging year of the Snowden revelations, is there anything useful that he has disclosed? It it accelerated a necessary debate, the price we are all paying for the acceleration is the misshaping. Okay. So, for example, first question you asked was 215, and that was the first story out of the gate. And for a week to ten days, the only story out of the gate was, they got all your phone records and then with a hyperbole of trying to fill a newscast 24 hours a day. It is not just they have your phone records, they can click on the number and listen to the phone calls too. It was only much later that the other part of the story that I told you, they are locked down. Nobody touches them. 22 people can ask. They ask just over 200 times. They got to have a reasonable suspicion. No they don't surf in the data. No, they don't see who is calling who. I mean, that story comes out much, much later. So what you've got is a generalized feeling within the public as you described. That it's, this, this may be bad enough, but it's being described in far worse circumstances. Now, part of that problem is not the reporters or Snowden. Part of that problem is our government's absolute flat footedness in responding to these stories, and the inability to describe this stuff in sinkle, simple English prose that allow these stories to catch fire. And now you're dealing, the President's saying. It works, it's legal, I authorized it, but you're a little uncomfortable, so I'm going to change it. It, it allowed people to get uncomfortable and, perhaps, for some programs, if correctly explained, they wouldn't have been uncomfortable about. >> So, let's stay on this topic for a moment, which I'm glad you brought up. As you know better than I do, NSA used to stand for no such agency. Right? >> [LAUGH] Yeah. >> It was so secret that it's existence wasn't even acknowledged. And yet now you've described this media environment, and we all know we live in a digital environment where it's very hard for our private lives to stay private. Can the NSA operate in this kind of an environment without being more proactive about educating the American people, and describing its mission, and justifying its mission to the American people. If it has to do that, how can it do it better? >> Well, to answer the first question, no it cannot survive without being more transparent. Now the question is how do you do that? >> How. >> Yeah. It's very hard. Before you quote me, let me finish the whole paragraph, okay? As an intelligence officer, I wouldn't tell you anything, because this is an enterprise based on absolute secrecy. I told you, hang on, I gotta finish the part enough. But I'm not just an intelligence officer, I'm an intelligence officer in a Democratic Republic. And therefore, we have to give the American people enough information to be at least tolerant, if not supportive of what the government does to keep them safe. Now the trick is, how do you do that? And I, I actually stumbled across a phrase. I was up in Aspen for a security conference, and we were talking about the need for transparency, which is kind of the buzz, buzzword here. And Mike Leiter, who used to head up the National Counterterrorism Center, said, Mike, not transparency. We need to be translucent. And that actually is really good. You know, translucent, you can see through thick glass. You, you get the broad outline of the shapes. You get the broad patterns of movement. But you don't get the fine print. And it's the fine print when it goes public that, that kills us. And so we have got to devise a way to explain to the American people what we do on their behalf without destroying that which it is we're trying to do, by the openness we're, we're trying to create. It's a, it's a pretty narrow spot, but if we don't do it, you're not going to let us do this stuff. And I've already made the point, that doesn't just threaten your security over the long term, it puts your liberty at risk. Because bad things will happen. >> I want to turn to a bit of a different subject, which is Ed Snowden himself. There's been a lot of. >> He and I went to the part together, there's a big picture on Wired Magazine of us. >> I'm sure many people have seen that picture. >> Tuxes, we're all kind dressed up. [LAUGH] True story. >> What a diff, what a difference a couple years makes. >> Yeah. >> Yep. So, there's a lot of speculation about whether, what's Snowdon's motivations were, whether he was cooperating with a foreign power. The chairman of the house intelligence committee Mike Rogers has overtly speculated about Snowden's possible relationship with the Russians. What's your take on Snowden? >> I have no evidence. You know, intelligence officers really are more comfortable working inductively. We like to work from facts, and then build up to conclusions. I got no facts that drives me to that conclusion. Now, if I, I step out of character for a moment, and think deductively, how does a 29-year-old high school dropout manage to do all that stuff? At least one of the hypotheses that come to mind is, maybe he had help. Wait, let me end where I began. I got no data for that. I've got, I've got no evidence. >> What do you think should happen to Ed Snowden? >> He should come back and face a jury of his peers for his crimes. >> And if Snowden were here tonight and you could ask him anything or tell him anything, what would you want to say? >> You have the right to remain silent. [LAUGH] [APPLAUSE]. >> I want to ask you a couple of questions about your personal experiences before we open it up to some questions. Stanford freshmen, I am reminded of daily we're five years old on 9/11. So, it's not in the same kind of frame of reference that it is for old people like you and me. >> [LAUGH]. >> Help us understand where you were on 9/11, what it was like to be in your position on 9/11, and how those events have shaped your decisions and your life? >> Okay. So, I watched Monday Night Football the night before. The Broncos were the home team. They were opening up the new Mile High Stadium in Denver. 7 o'clock, I had a hair cut. 7:30, this is Tuesday morning now, the 11th. 7:30, I walked past the NSOC, the National Security Operations Center, my command post. Got my morning briefing, not a word about a threat to the country. Went to my office. 8:15, I had a meeting with my new chief of EEO, Equal Employment Opportunity. About 9 o'clock, my new IG came in. A few minutes into that meeting, my executive assistant, Cindy Farkus, came in said a plane hit the World Trade Center. Hm. I wonder what kind of plane, how big a plane, probably a sport plane. You've seen those helicopters over Manhattan. Then, she came in about ten minutes later and said the plane hit the other tower. And I just turned to her and said, get the chief of security up here right now. I dismissed the IG. A few minutes pass. The chief of security was coming in one door of my office. Cindy came in the other to, their reports of explosions on the mall. That's the mall in DC. That's a garble of the plane hitting the Pentagon. Upworth security Chief, Kemp didn't have a chance to say anything. I said Kemp, all non-essential personnel out of here now. So we got something called giant voice, big announcement: all non-essential personnel leave. I then directed that, if you've seen those scary pictures in the Will Smith movie Enemy of the State, about NSA. We've got two highrise buildings. That's where I was. For reasons it should be clear, I said everybody who can get out of the high rises get out of the high rises. And there's a three story ops building which is the original building, which is where my command post is. And so we decamped down there and moved as many people as we could to the, to the Nsock. Where I got all the coms in the world. George called me about 11, 11:30. George Tenet, the DCI, said what do you got? I said Al Qaeda. We can already hear celebratory gunfire in their communications. I mean, okay, they're congratulating one another. Early September it gets dark about 7:30, quarter of 8 in eastern Maryland. Someone recommended I go talk to our counter-terrorism folks. NSA at Fort Meade is not just the agency's headquarters. It's the agency's biggest field station. It does mission there. And so the CT shop, I mean, there are people in front of a workstation with headsets on, all right. >> Counter terrorism. >> I'm sorry, counter terrorism. So I went up, and they were in the high rises. All right? But we couldn't move them. I mean, you move them, you interrupt mission and, you know, the nation's under attack, for God's sake. And so I walked in and the first thing I saw, because the sky's darkening, is people from our logistics force tacking up blackout curtains on their windows, because they can't, can't move them. I had the thought, this is really something. We are tacking up blackout curtains in eastern Maryland in the 21st century. Things are going to be different. I walked around and talked to, talked to the folks. Most of them Arabs, most of them Arab Americans. I mean, language, for counter terrorism. And so then, I think, bearing a whole bunch of burdens, not just the ones you and I had that, they had a mission burden and maybe even a bit of a identity questions going on. So I didn't say anything to interrupt. Hand on shoulder, keep it up. You know? Thank you for your work, thank you for being there. And well. About a year after 9/11 something called the Joint Inquiry Commission, a combined House and Senate intelligence committee, had these open hearings, and closed. Looking at the causes of 9/11 attack. The subtext was, how'd you guys let this happen. There is a picture in Time Magazine with me, George Tennant, and Bob Moore, just like this just before taking the oath. You know this Amy, but I want to share this with everyone else. For the conclusions of that commission where the NSA prior to 9/11 was far too timid, and far too cautious with the one kind of terrorist communications that was most essential to defending the United States. Terrorist communications, one end of which was in America. And so, you know, we can all sit back here 13 years later and all say, well, gee, I wonder if that was a good idea. What we were told was to open our aperture, open our operational art to be more capable of getting that kind of communication. And the terrorist surveillance program, Stellar Wind as we called it, the 215 program. Those were all the products of that requirement. And that was the lightest touch we could, we could devise on American privacy, in order to give us a reasonable chance of detecting that kind of communication. >> You served at the pinnacle of the US Intelligence establishment in three different positions over the past 15, 20 years. And I want to ask you to reflect on your experiences as NSA director, CIA director, deputy director of National Intelligence. Lots of controversial programs under your watch. You've named several of them. Enhanced interrogation methods, which other people call torture. Warrantless wire tapping, detention, black sights. >> Renditions. >> Renditions, yup, those are- >> Don't forget renditions. >> Long list. >> Targeted killings, targeted killings. >> Right. As you look back on this very challenging and controversial period, what was the toughest moral dilemma for you personally that you encountered? >> They were all hard, I mean, you know? Because very often, remember I said what you need to go forward has to be legal, it has to be technologically possible, and it has to be operationally relevant. I mean, it's gotta, it's gotta do good stuff. Well guess, guess who gets to make that one? It's the professionals, all right? Not just me, but people, people like me. And so. Is this worth the candle? So, those, those kinds of judgements will always, were always very difficult. So, remember I said, we, we did some things differently. We started on the afternoon, 9/11, because regional people would agree, the circumstances would change, and a little bit more aggressive in terms of communications coming out of Afghanistan and entering the United States. I told George and I told the Congress, and George went and told the President. And the President said good. Is there anything else he could do. And then he, George calls me and says George, er, Mike, anything more you can do? And I go, not within my authorities, George. He said that's not exactly the question I asked you. I said well, let me check. So we huddle with our lawyers and ops guys and came up with what became the Stellar Wind program. So we took it down. We briefed the president. You know, he would have to use his raw Article two commander in chief authorities to authorize it. Because what we were proposing to do was inconsistent with the FISA act as it was written then. Now later, the FISA act gets amended, okay? Pretty much authorizing everything the President did. Actually, authorizing a lot more than what the President did, but that's later in the story. And so, I go home, figuring yeah, he, he's probably going to authorize this. So I took a long walk with my wife. And I can't tell her the details of the program, but I said, gotta make decisions, a big deal. It's going to blow back, there's no question it's going to blow back. She said well, is it right or wrong? I said no, I think it's the right thing to do. And she said okay, we'll live with that. That, that moment there, where I was telling my family, my wife, but she was representing the family, that this was not going to be without cost for them as well, was probably the most, most difficult moment. >> Well, I want to make sure we leave time for questions from all of you. And so Russel Wild's going to come up here. He's been collecting and tabulating questions from the audience. He's the academic program manager at Hoover. And so, Russel's going to end us with a few questions that we haven't touched on yet, that you all are interested in asking. >> Okay. Senator, I don't know if I can really see you behind that tree right there but I just want to say that the Stanford community really brought some serious questions for you, so I hope you're ready. I do have a legibility issue I'm working through if you give me a minute though. This one comes from a Stanford and government student organization here. That is a co-sponsor of this event, and it is a really great question. So today, Senator Widen held the round table of leaders from the technology industry at Palo Alto High School. And at it Eric Schmidt said that the current NSA activities threatened to break the Internet by pushing countries to regulate where their citizen's data may be held. What can we do to earn back the trust of foreign customers of American tech firms. >> you, it may be an insoluble problem. And the destruction of the Internet, as we know it, may not actually be NSA's fault. You know, the Russians, the Chinese, the Iranians, the Saudis, and a bunch of others, sorry, made a run at the Internet in Dubai about two years ago in an organization called ITU and fundamentally, they're not worried about NSA spying. Fundamentally, their issue is the Internet, which is the free movement of ideas. And if we do, if this happens, all right, it will be a by-product of the revelations, some true, a lot not, but doesn't matter. Putting wind in the sails of people like that who can then argue, see the Americans, that wasn't always about free speech. What they want is a free fire zone for their espionage. And so, I actually think. I gave you three qualms operationally, politically and economically. The fourth great outcome of this may actually be creating boundaries in the world wide web that we have all become accustomed to in physical space. Things like borders and look, Eric wrote about this before Snowden. He and Jared Cohen wrote a book called, The New Digital Age, in which he talked about the balcanization of the net. This is about three years ago now. And he began to suggest things that there are countries that are going to demand digital passwords and digital visas, and I don't mean going online, so you can go to Australia, or Turkey, you know to get a, to get a visa, I mean you can't go to .ch without the permission of the Chinese government. And more importantly, people can't leave .ch without the permission of the Chinese government, which flies in the face of what the Internet is. Global, ubiquitous, democratizing, egalitarian, accessible. And so, no foreign real danger. The first wave of practical assaults on the, by the way the ITU meets this month in Pusan. Again. So we'll see where it comes out. But Eric's right. The first wave is what it, what he called in his book, again, pre-Snowden, digital residency requirements. Which in essence, you've gotta keep my data in my sovereign space. You can't store it anywhere else, and I'm sure I pointed out at the high school, that that's a nonsense phrase for the worldwide web. I mean, just can't be, that's not the way it works. So, a German sends an email to Tom Finger, here in the third row, and the German then demands that that email has to be kept in German sovereign space. Yeah, that'll happen. I mean, it's impossible. >> Okay. >> Sorry, that didn't answer your question. >> Not my question but,. >> No, but, but the question's a great one. It does put at risk, this whole movement puts at risk the web as we know it. But the movement is not energized by American espionage. That's the cover story. The movement is energized by governments wanting to control the flow of information. >> So you've slightly spoke about this earlier but I want to, it comes much more in a personal context when it's written this out this way. As a European, I'm curious to hear why we should trust the US government when you are, tapping our leaders' phones and collecting our communications. >> Espionage is accepted international practice. Any government that is worthy of the respect of it's people conducts espionage to keep it's citizens safe. I make no apologies for American espionage. >> If translucency of the intelligence community is the goal, why is the Federal government so resistant to releasing broad statistics about intel activity? >> Great question, I have no good answer. >> [LAUGH] I, as a citizen, not me, I, as a citizen, feel very uncomfortable when secret courts with secret judges use secret laws to prosecute citizens with very limited access to lawyers. What can we, as citizens, do to fight this intrusion on our rights? >> FISA court doesn't prosecute. The FISA court is the court that you go to get a warrant for collection. Tony Soprano doesn't have a lawyer. When the FBI wants to go up on Tony, they saw a foreign terrorist who's using an, an American email account. I don't think that's a prima facie case. He deserves a lawyer either. I understand the FISA court is secret. Let me tell you what makes the FISA court odd, not that it's secret, what makes the FISA court odd is that it exists. We are the only western democracy that goes out to the political branches to get permission to conduct espionage. We're the only Western democracy with a court in any way resembling the FISA Court. In Great Britain, the, the warrant that's given by the FISA Court is actually given by a minister within the cabinet. It is kept within the political branches. This is the great compromise of, of the 1970s after Church-Pike. Espionage has generally been viewed as an executive branch function. This nation's first spymaster was its first President, and he insisted on a secret budget for covert action, about which he did not report to the Congress. [SOUND] By the 70s there was general agreement. We can not leave the oversight of such a threatening activity to just the executive, so it was spread to the congress and the House and Senate intelligence committees, and spread to the court, in terms, in terms of the FISA court. Okay? We're the only ones who've done that. We talked about transparency, Amy? Let, let me remind everybody. I already said we need to be more translucent, we need to have more visibility. Your intelligence community today is the most transparent intelligence community on this planet and no one else is in our zip code, okay. My counterpart in Great Britain is named Ian Loban, he was the head of GHCQ. Ian testified for the first time in front of the British parliament, in a very staged session about three months ago. We have, we have overseas facilities which we share with foreign allies. We have an American congressman that comes along and says, hey I want to go visit that facility. We say, you can't. Why not? I went to the identical facility you have in the United States. Why can't I go there? And the answer is, because their parliamentarians are not allowed to go there, and so we can't, we can't send you there. So, as we're talking about transparency, please keep in mind, yours is already the most open intelligence community in the world. >> We have time for one last question. >> One last one. >> I'm just warming up! >> Okay. This is more on a probably grander foreign policy issue that one we haven't really hit yet, so how would you assess the, intelligence power of, the r, regime in Iran and, are they capable of performing a major cyber attack in the US? >> The, Iranians are very, very good at counter intelligence. Which makes them a very difficult target for us. President, Iran was the second most discussed topic in the oval office when I was head of CIA. Number one was terrorism. Iran was number two. And there wasn't a number three. I mean, we talked about a bunch of other stuff, but there was no other single thing that aggregated to, to number three. President Bush always asked questions about Iran. He wanted to know about the nuclear program, how many kilos of low enriched, and so on. Then he wanted to know, how do they make decisions. How do, if I'm trying to influence them, Mike, I need to know who's pulling the levers here. Always wanted the nuclear questions. I can almost answer those. The leadership questions were very, very difficult for us. So the Iranians are very good at counterintelligence. They're also very good at what we would call covert action. This is activity designed to influence foreign, political, military, economic events in which you intend the hand of the government to be hidden. The Iranians, through their Kurdish force and the IRGC are, are, are very, very aggressive. And they don't have anywhere near the restraints we have on our covert action, they are incredibly lethal. So in that sense very powerful. In terms of cyber, they are a mid-range at best, cyber concern. They almost certainly, your government doesn't tell you, but I'm telling you, the Iranians went after American banks about a year ago. Massive distributed denial of service attacks, you know, this pinging the website so you and I can't get in there to cash a check or check our balance. I talked to the security officer of one of those banks. He said normal work day, 15,000 hits a minute on the bank. This is JP Morgan, Chase, Bank or America, Wells Fargo, I mean, the big guys. Normal workday, 15,000 hits, you and I are trying to check our balance. At the height of the Iranian attacks it was 3 million, which means you and I aren't checking our balance. I mean, the websites gone. Because you can't, can't access that. The Iranians are capable of that. Which is not at all sophisticated, but it was massive. And that is kind of where I would put their capabilities. >> We have had a wide ranging conversation tonight, please join me in thanking General Hayden for this fabulous. >> [APPLAUSE] [INAUDIBLE] For more, please visit us at stanford.edu.
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Channel: Stanford
Views: 31,604
Rating: 4.295681 out of 5
Keywords: Michael Hayden (Politician), United States National Security Agency (Industry), Security Conundrum, National Security, Continuing Studies, Stanford in Government, Hoover Institution, FSI, CISAC
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Length: 73min 36sec (4416 seconds)
Published: Tue Oct 28 2014
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