Face the Nation transcripts December 29, 2013: Hayden, Drake, Radack, Gellman

A look back at the government surveillance debate that dominated 2013
A look back at the government surveillance de... 47:44

(CBS News) Below is a transcript of "Face the Nation" on December 29, 2013, hosted by CBS News' Major Garrett. Guests include: Former NSA Director Gen. Michael Hayden, Thomas Drake, Jesselyn Radack, Barton Gellman, Jeffrey Kluger, James Fallows, Laura Sydell, and Seth Fletcher.

GARRETT: Good morning again, and welcome to "Face the Nation." We start today with what may be the biggest story of the year. It began back in June when National Security Agency contractor Edward Snowden began leaking top-secret documents. Those documents disclosed government programs involving surveillance on everyone from ordinary Americans to our closest international allies. Joining us now is General Michael Hayden, who is the former head of the National Security Agency and the CIA is now a principal of the Chertoff Group here in Washington. General Hayden, good morning.

HAYDEN: Good morning.

GARRETT: Before we get to the NSA and surveillance -- and a lot of ground to cover there -- there is a lead story in the New York Times this morning that talks about a months-long investigation the paper conducted into the Benghazi attack.  It says "There is no clear linkage to Central Command Al Qaida," and that there was a much messier situation on the ground than originally disclosed by the administration or thought by most observers. Your reaction to that story?

HAYDEN: Yeah, I think that has the ring of truth to it. And in general, Major, these kinds of events are a lot more nuanced than we would like them to be, looking back at them in retrospect. When the attack happened, actually on this network, a few days afterwards, I was asked who did it. And I said, "Well, you know, the Al Qaida movement's divided into three layers, Al Qaida prime, formerly affiliated, and like-minded. And at the time, I said this was probably high-end like-minded or low-end affiliated. And I think the Time story, kind of, bears that out.

GARRETT: And when you say "like-minded," you mean locals who have anti-American sentiments, Al Qaida sort of passions in their veins?

HAYDEN: And a broad belief system that's consistent with the Al Qaida vision.

GARRETT: And these are the locals the United States thought it had a relationship with and that relationship turned sour, then deadly?

HAYDEN: Well, we had a relationship with some locals. Obviously, with other locals we did not. And frankly, I would also offer the view that we had plenty of warning, strategic warning, that Benghazi was simply not a safe place. If you were waiting for a tactical warning that an event would happen at this day, at this time, and were in Benghazi, you weren't waiting for intelligence. You were waiting to die.

GARRETT: Last question on this: If it doesn't have a strong centralized link to Al Qaida, what does that tell us about the nature of terrorism and terrorist threats? HAYDEN: Right, that the Al Qaida movement has changed. Naturally, that's probably the better word, not that the Al Qaida organization but the Al Qaida movement. So now you see Al Qaida, from Al Qaida prime in Pakistan and Afghanistan and that swath westward all the way to the West Coast of Africa. And the identity, the actual make-up of those Al Qaida groups, shifts a bit as you move westward, a little less Al Qaida prime, a little less about the global caliphate and a little more about local circumstances and local grievances.  Now, right now, those groups farthest west don't really consider us to be the prime enemy. But our problem is what do we do about that? Do we wait until they've gathered more strength and therefore are a threat to us, or do we move now and perhaps turn a movement that really wasn't mad at us into an enemy of the United States? Tough decisions.

GARRETT: That's an evolving story. And let's now get to where we are with the NSA, the disclosures, the surveillance and some court rulings.  I want to read to you one segment of a ruling handed down by Judge Richard Leon here in Washington, U.S. district judge, who said, "It's one thing to say that people expect phone companies to occasionally provide information to law enforcement. It's quite another to suggest that our citizens expect all phone companies to operate what is effectively a joint intelligence-gathering operation with the government." What do you respond to that?

HAYDEN: Well, first of all, I would respond that Judge Leon was looking at the acquisition of the data and not how the data was used. And so this is not a broad fishing expedition. Granted, millions -- billions of phone records a day are acquired by the National Security Agency, but what follows, Major, is really important. What happens to that data? How often is that data touched? And the truth is, it's touched two to three hundred times per year and only based upon a reasonable articulable suspicion that that number is affiliated with terrorism.

GARRETT: But Judge Leon also talks about, as you said, the acquisition of this data. And he said, "Underlying Supreme Court precedent," which dates back to a case from 1979, in no way imagined this world that we're currently living in. Let me read again. And this is the words. They're interesting. "The almost Orwellian technology that enables the government to store and analyze the phone metadata of every telephone used here in the United States is unlike anything that could have been conceived of in 1979. The notion that the government could collect similar data on hundreds of millions of people and retain that data for a five-year period, updating it with new data every day in perpetuity, was, at best, in 1979, the stuff of science fiction. Americans, General, are legitimately, it seems to me, alarmed by the scope and stature of this collection, retention and sifting.

HAYDEN: Sure. Look, our history as a people demand that we be alarmed, that we be concerned about this. But our concerns should be governed; our thinking should be focused on the facts of the case and not the emotion of the case. Again, what happens to the data? Judge Leon ignored precedent. He ignored Smith v. Maryland, the case that you cited. He ignored that 15 FISA judges on over 30 occasions have upheld the lawfulness of this. And then judge Pauley, in the Southern District of New York, within a week issued another warning saying -- or another decision -- saying that this was inherently constitutional. And judge Pauley relied on precedent. Judge Leon relied on exclamation points throughout his judgment, not precedent.

GARRETT: He also said this is likely unconstitutional and this collection violates the fourth amendment. You disagree?

HAYDEN: I do. I do. Well -- well, I'm not a lawyer; I'm not a judge. I do know there is one controlling Supreme Court case, Smith v. Maryland, in which the court has said in a 5-3 decision that there is no reasonable expectation of privacy over this kind of data.

GARRETT: Once you hand your data over to a third party?

HAYDEN: Right.

GARRETT: Now it's also been disclosed through Edward Snowden's leaks that the NSA tapped fiber optic cables abroad to siphon data, circumvented or cracked encryption codes and covertly inserted weaknesses into coding mechanisms. Now, you're telling me all of that is done in accordance with the Constitution and raises no fourth amendment concerns?