Hearings
Hearing Type:
Open
Date & Time:
Wednesday, July 22, 2020 - 10:00am
Location:
Russell 325
Witnesses
Full Transcript
[Senate Hearing 116-229]
[From the U.S. Government Publishing Office]
S. Hrg. 116-229
OPEN HEARING: NOMINATIONS OF CHRISTOPHER
C. MILLER TO BE DIRECTOR OF THE NATIONAL
COUNTERTERRORISM CENTER AND PATRICK
HOVAKIMIAN TO BE GENERAL COUNSEL OF
THE OFFICE OF THE DIRECTOR OF NATIONAL
INTELLIGENCE
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
WEDNESDAY, JULY 22, 2020
__________
Printed for the use of the Select Committee on Intelligence
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
40-866 PDF WASHINGTON : 2021
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
MARCO RUBIO, Florida, Acting Chairman
MARK R. WARNER, Virginia, Vice Chairman
RICHARD BURR, North Carolina DIANNE FEINSTEIN, California
JAMES E. RISCH, Idaho RON WYDEN, Oregon
SUSAN COLLINS, Maine MARTIN HEINRICH, New Mexico
ROY BLUNT, Missouri ANGUS KING, Maine
TOM COTTON, Arkansas KAMALA HARRIS, California
JOHN CORNYN, Texas MICHAEL F. BENNET, Colorado
BEN SASSE, Nebraska
MITCH McCONNELL, Kentucky, Ex Officio
CHUCK SCHUMER, New York, Ex Officio
JAMES INHOFE, Oklahoma, Ex Officio
JACK REED, Rhode Island, Ex Officio
----------
Chris Joyner, Staff Director
Michael Casey, Minority Staff Director
Kelsey Stroud Bailey, Chief Clerk
CONTENTS
----------
JULY 22, 2020
OPENING STATEMENTS
Rubio, Hon. Marco, Acting Chairman, a U.S. Senator from Florida.. 1
Warner, Hon. Mark R., Vice Chairman, a U.S. Senator from Virginia 2
Grassley, Hon. Chuck, a U.S. Senator from Iowa................... 4
WITNESSES
Miller, Christopher C., Nominee to be Director, National
Counterterrorism Center........................................ 6
Prepared statement........................................... 8
Hovakimian, Patrick, Nominee to be General Counsel, Office of the
Director of National Intelligence.............................. 13
Prepared statement........................................... 16
SUPPLEMENTAL MATERIAL
Nomination material for Christopher C. Miller
Questionnaire for Completion by Presidential Nominees........ 40
Additional Prehearing Questions.............................. 52
Posthearing Questions for the Record......................... 83
Nomination material for Patrick Hovakimian
Questionnaire for Completion by Presidential Nominees........ 96
Additional Prehearing Questions.............................. 113
Posthearing Questions for the Record......................... 147
OPEN HEARING: NOMINATIONS OF CHRISTOPHER C. MILLER TO BE DIRECTOR OF
THE NATIONAL COUNTERTERRORISM CENTER AND PATRICK HOVAKIMIAN TO BE
GENERAL COUNSEL OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
----------
WEDNESDAY, JULY 22, 2020
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 10:10 a.m., in
Room SR-325, Russell Senate Office Building, Hon. Marco Rubio
(Acting Chairman of the Committee) presiding.
Present: Senators Rubio, Burr, Risch, Collins, Blunt,
Cornyn, Sasse, Warner, Feinstein, Wyden, Heinrich, King,
Harris, and Bennet.
OPENING STATEMENT OF HON. MARCO RUBIO, ACTING CHAIRMAN, A U.S.
SENATOR FROM FLORIDA
Chairman Rubio. I'd like to call the hearing to order.
I would like to welcome Christopher C. Miller, President
Trump's nominee to be the next Director of the National
Counterterrorism Center, and Patrick Hovakimian, President
Trump's nominee to be the next General Counsel for the Office
of the Director of National Intelligence. Congratulations to
both of you for your nominations, and thank you for your
willingness to serve.
Our goal for this hearing is to enable this Committee to
have a thoughtful and deliberate consideration of your
qualifications for the positions that you've respectively been
nominated to fill.
The witnesses have provided written responses to questions
from the Committee, from its Members, which you all will have.
And this morning, Members will be able to ask any additional
questions they have and hear directly from the nominees.
As you'll see, Mr. Miller graduated from George Washington
University. He was commissioned as an infantry officer through
ROTC in 1987. He has a Master's in Arts degree in national
security studies from the Naval War College, and he's also a
graduate of the Naval College of Command and Staff and the Army
War College.
He began his military career as an enlisted infantryman in
the Army Reserve in 1983, and also served in the District of
Columbia National Guard. In 1993, Christopher transferred to
Special Forces and served with the 5th Special Forces Group. He
participated in combat operations in Afghanistan and Iraq.
Upon retiring from the Army in 2014, he worked as a defense
contractor before serving as the Special Assistant to the
President, and Senior Director of Counterterrorism and
Transnational Threats at the National Security Council. He
currently serves as the Deputy Assistant Secretary of Defense
for Special Operations and for Combating Terrorism.
Mr. Hovakimian graduated from Occidental College and
received his law degree from Stanford University in 2010. He
then served as a law clerk on the United States Court of
Appeals for the 11th Circuit. Thereafter, he entered private
practice for several years before joining the U.S. Department
of Justice as an Assistant U.S. Attorney for the Southern
District of California.
During this time, Patrick served multiple roles here in
Washington, to include during his time with DOJ, he served in
multiple roles here in Washington, to include as the
Department's Director of Counter Transnational Organized Crime.
Mr. Hovakimian currently serves as the Associate Deputy
Attorney General and Chief of Staff to Deputy Attorney General
Jeffrey Rosen.
Gentlemen, you've been asked to lead NCTC and the ODNI's
Office of General Counsel, respectively, at a time when we are
engaged in a debate--in a robust debate about the Intelligence
Community and our collection tools and authorities. At the same
time, however, the Nation continues to confront a growing array
of threats from state and nonstate actors. Navigating this
tension will require judgment, wisdom, integrity, and I expect
that you will both provide sound counsel and advice to the
Director of National Intelligence Ratcliffe as he takes on
these complex and at times divisive challenges.
The satisfaction of this Committee's oversight mandate will
at times require transparency and responsiveness from your
respective offices, should you be confirmed. You can expect us
to ask difficult and probing questions of you and of your
staff. And in turn, we will expect honest, complete, and timely
answers.
That said, we also want you to feel free to come to the
Committee with situations that necessitate our working in
partnership with you. I look forward to supporting your
nominations and ensuring their consideration without delay. I
thank you both for being here, for your years of service to our
country, and for your willingness to continue in that service.
And I look forward to your testimony.
I recognize the Vice Chairman.
OPENING STATEMENT OF HON. MARK R. WARNER, VICE CHAIRMAN, A U.S.
SENATOR FROM VIRGINIA
Vice Chairman Warner. Well, thank you, Mr. Chairman. And I
want to also join in welcoming Mr. Miller and Mr. Hovakimian. I
had the opportunity to talk with both of them prior to this
hearing.
Congratulations on your respective nominations to serve as
Director of the National Counterterrorism Center and General
Counsel for the Office of the DNI. Both of these positions are
important positions in the Intelligence Community during a time
of unprecedented national challenge and peril.
The National Counterterrorism Center was created to prevent
these kind of efforts of the bad guys listening into our
meetings. It was created in the wake of 9/11 to connect the
dots and ensure a terrorist attack never again occurs on our
soil. The ODNI's General Counsel is critical to ensuring that
the Intelligence Community abide by the laws of this Country,
including protecting Americans' civil liberties and privacy
interests.
The job of America's Intelligence Community is to uncover
and anticipate threats, and to provide warning to the Nation.
The Intelligence Community is first and foremost America's eyes
and ears against foreign threats. And you, just as all of the
professional men and women of the IC, are mandated to be
nonpolitical and to speak truth to power. Making those
difficult calls based not on what those in power wish to hear,
but on the facts.
Unfortunately, under this President, the men and women of
the Intelligence Community have increasingly come under attack,
not only from abroad, but without justification from within the
leadership of our very own government. Those who've had the
temerity to do what all Americans expect of them, simply to
tell the truth, have found themselves similarly dismissed,
disparaged on Twitter, and retaliated against.
Because this President so often finds the truth unwelcome,
he has fired DNI Coats, Acting DNI Admiral Maguire, his Acting
Deputy DNI Mr. Hallman, Deputy DNI Sue Gordon, and IC Inspector
General Michael Atkinson. Acting NCTC Director Russ Travers, a
40-year intelligence veteran, was dismissed by Mr. Trump's
Acting DNI. Intelligence professionals, who volunteer to do
difficult, dangerous jobs, including those who risk their lives
every day around the world, must know that our country's
leaders have their backs. Instead, they have been subject to
disrespect.
For a significant period of this year, there was not a
single Senate-confirmed senior official at the office of the
DNI. This alarms me and it should alarm the American public.
The leadership roles you've agreed to undertake are
challenging under the best of circumstances.
Mr. Miller, our terrorist adversaries have not simply
disappeared. Those of us on this Committee know that plots
continue every day. American men and women deployed in harm's
way in Syria, Iraq, Afghanistan, and elsewhere are terrorist
targets. And some never made it back to their families.
I look forward to hearing from you today with your thoughts
as to how to confront the evolving and increasingly
sophisticated threat from ISIS and other rogue organizations
you'll take on in this role, and how you will define success,
should you be confirmed. In particular, I'd like to hear what
you think about the role of the NCTC in confronting these
threats and how you plan to make sure the Center is
sufficiently resourced to carry out its job.
Mr. Hovakimian, the General Counsel advises the DNI on the
letter and spirit of the law, including the legal mandate to
keep the intelligence committees fully and currently informed,
and to ensure Americans' civil liberties are protected. But as
we saw with the Ukraine whistleblower, those who complied with
their obligations to inform Congress have faced consequences.
I expect to engage with you today on your perspective of
what whistleblowers and in particular your perspective on the
involvement of the Office of Legal Counsel at the Department of
Justice. Unfortunately, because of how this Administration has
approached the IC, your already difficult responsibilities will
be even more challenging.
In addition to asking how you will undertake these
responsibilities today, I will also wish to hear how you will
stand up to political pressure, how you will ensure that
analysis is apolitical and performed without fear or favor. How
you'll reassure your workforce that they will not face
consequences for simply doing their jobs, and how you'll make
sure that this Committee is fully and currently informed.
Former DNI Dan Coats, a former Member of this Committee,
set a high bar for telling truth to power, even in public when
necessary, for which he was eventually fired. I will want to
understand how you plan to live up to his example.
Thank you again, both, for agreeing to take up these
challenging positions during a difficult time. I look forward
to today's hearing.
Thank you, Mr. Chairman.
Chairman Rubio. I understand the President Pro Tempore of
the Senate, Senator Grassley, is here to introduce and speak on
behalf of Mr. Miller.
Senator Grassley, please proceed.
OPENING STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM
IOWA
Senator Grassley. Thank you very much, Mr. Chairman and Mr.
Vice Chairman, for the opportunity to introduce to the
Committee a native of my home state of Iowa, Mr. Christopher
Miller.
I congratulate both of the nominees for their appointment.
It is not every day that an Iowan with such a distinguished
service record comes before the Senate for consideration. So
it's a special privilege for me to give this introduction.
Chris' parents and much of his family still live in Iowa
City and/or Eastern Iowa. I'm sure his family is very proud
that he will be testifying before this Committee today and be
recognized for his accomplishments and service to our country.
Chris was raised in Iowa City. After graduating from City
High School, he attended George Washington University where he
majored in history and enrolled in the ROTC program. He
graduated from George Washington in 1987, and then immediately
accepted a commission in the U.S. Army as an infantry officer.
In the Army, Chris had an impressive and distinguished
career. He served in Afghanistan in 2001 and Iraq in 2003. And
in the following years, like a lot of other military people, he
served on numerous additional deployments to both of those
countries. On behalf of the people of Iowa, we thank you and
other people for your service to the country, particularly in
those difficult times.
Following his time in the Army, Chris went on to become a
Deputy Assistant Secretary of Defense for Special Operations in
Combating Terrorism, where he is currently performing the
duties of the Assistant Secretary of Defense for Special
Operations. Whether as a member of the Armed Forces or in
public service, Chris has given the best of himself for the
American people and the defense of our country. Of course, that
should be no surprise. After all, he's got Iowa roots.
I'm certain that this Committee will give him a proper
review of his record and his service and how that fits into his
new position. I believe he is fully qualified, being nominated
now to be director of the National Counterterrorism Center,
Office of the Director of National Intelligence.
So now, it is again my pleasure to introduce to this
Committee Mr. Christopher Miller. Congratulations.
Thank you, Mr. Chairman.
Chairman Rubio. Thank you, Senator Grassley.
So before we begin, Mr. Miller and Mr. Hovakimian, would
you please each stand and raise your right hand?
Do you solemnly swear to give this Committee the truth, the
full truth, and nothing but the truth, so help you God?
Mr. Hovakimian. I do.
Mr. Miller. I do.
Chairman Rubio. Thank you. Please be seated.
Gentlemen, before we move to your statements, I want to ask
you to answer the five standard questions that we ask of every
nominee who appears before us. They generally require a simple
yes or no answer. The only reason why we need to hear it is so
it can be transcribed. So from each of you, make sure your
microphones are on.
The first question is, do you agree to appear before the
Committee here or in any other venues when invited?
Mr. Hovakimian. Yes.
Mr. Miller. I do, yes.
Chairman Rubio. If confirmed, do you agree to send
officials from your office to appear before the Committee and
designated staff when invited?
Mr. Hovakimian. Yes.
Mr. Miller. Yes.
Chairman Rubio. Do you agree to provide documents or any
other materials requested by the Committee, in order for it to
carry out its oversight and legislative responsibilities?
Mr. Hovakimian. Yes.
Mr. Miller. Yes.
Chairman Rubio. Will you ensure that your office and your
staff provide such material to the Committee when requested?
Mr. Hovakimian. Yes.
Mr. Miller. Yes.
Chairman Rubio. And finally, do you agree to inform and
fully brief to the fullest extent possible all Members of this
Committee of intelligence activities and covert actions, rather
than only the Chairman and the Vice Chairman?
Mr. Hovakimian. Yes.
Mr. Miller. Yes.
Chairman Rubio. Thank you very much. We will now proceed to
your opening statements, after which I'll recognize Members. I
believe we'll go by order of seniority today.
Christopher, I understand you're going to go first. So the
floor is yours.
STATEMENT OF CHRISTOPER C. MILLER, NOMINEE TO BE DIRECTOR,
NATIONAL COUNTERTERRORISM CENTER
Mr. Miller. Thank you, Senator. I wanted to highlight what
a thrill it was for me to hear Senator Grassley make those
opening comments. My folks are in Iowa City watching. I hope
they've got C-SPAN 2 up. I was a little bit worried, but I'm
sure my sister helped them out.
My Uncle Floyd Booth and Aunt Arlene of Alburnett, Iowa, I
know are smiling down. They were huge supporters of Senator
Grassley. When I was 14 years old, I went to an event at their
farm in Alburnett. I will admit that I did not hear his
remarks. I was out along the fence line plinking with my BB
gun, but it was awfully special.
Senator Warner, with highest regards, I am now a citizen of
the Commonwealth. But when people ask me where I'm from, I
proudly say that I'm from Iowa. And I really--words can't
describe how honored I am, and all the work that Senator
Grassley has done for the state of Iowa and his leadership.
Acting Chairman Rubio, Vice Chairman Warner, and
distinguished Members of the Committee, thank you for taking
the time today to consider my nomination to be the director of
the National Counterterrorism Center. I appreciate the
opportunity to appear before you. It is both humbling and
surreal to sit before you today as the President's nominee for
this position. I am grateful to have the support and confidence
of President Trump and Director of National Intelligence
Ratcliffe.
Along with the overwhelming privilege to lead and command
America's sons and daughters in combat as an Army Special
Forces officer, being considered for this position is the
distinct honor of my professional life. When Al-Qaeda declared
war on the United States in 1997, and attacked us in force on
September 11, 2001, I like many of my generation, answered the
call to fight and defeat them. It was not a war we sought, but
in the defense of this Nation, we selflessly sacrificed our
youth and our innocence.
Many dear friends and comrades also sacrificed their
health, their marriages, and in some cases their lives. We have
no regrets. The war has been long, but our efforts have been
remarkably successful. The commitment of tens of thousands of
professionals has taken the fight to the enemy, protected the
United States, and developed a global network of partnerships
that have prevented another cataclysmic attack.
When we set out on this journey as a country, we envisioned
our campaign against violent extremist organizations as a
generational war, not a multigenerational war. It would be, in
my view, the height of irresponsibility to leave this conflict
for our children to fight.
It is my life's goal, whether confirmed for this position
or in another capacity, to defeat Al-Qaeda and its affiliates,
transition this war to a sustainable effort laser focused on
monitoring terrorist threats to the United States, attacking
those that generate the will and capability to do us harm,
developing and nurturing the next generation of
counterterrorism professionals and technologies, and expanding
relationships with like-minded partners around the world who
are committed to the elimination of this scourge to peaceful
coexistence.
I still see myself as a kid from Iowa who wanted nothing
more than to serve his country and make his parents proud. My
father believed strongly in the nobility of public service, and
I try every day to follow in his footsteps. In addition to my
mother's wisdom and example of citizenship, that's what my
sister and I aspire to emulate in all facets of our lives.
Most importantly, I want to recognize my wife Kate and our
three children that are here with me today. Kate stood
steadfastly with me through this 32-year odyssey, and raised
our three children into magnificent adulthood. Their character,
optimism for the future, and goodness are my motivation. They
give me hope for the continued greatness of this wonderful
experiment that is the United States of America.
If confirmed, I will lead the patriotic men and women of
the National Counterterrorism Center with honor and integrity;
advocate for the no-fail requirements of our counterterrorism
enterprise; and provide my frank, honest, and unvarnished
opinions and advice to the President, the DNI, this Committee,
and other policymakers and leaders in order to guarantee that
we never again experience the indescribable loss of September
11, 2001.
Mr. Acting Chairman, Mr. Vice Chairman, and Members of this
Committee, thank you for your unparalleled leadership in
protecting the United States. I look forward to responding to
your questions.
[The prepared statement of Mr. Miller follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Rubio. Thank you.
Mr. Hovakimian.
STATEMENT OF PATRICK HOVAKIMIAN, NOMINEE TO BE GENERAL COUNSEL
OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Mr. Hovakimian. Acting Chairman Rubio, Vice Chairman Warner
and distinguished Members of the Committee, thank you for
taking the time this morning to consider my nomination to serve
as General Counsel for the Office of the Director of National
Intelligence. I am honored to appear before you today.
I also extend my thanks to the President for the
opportunity to serve, to Director Ratcliffe for his confidence
in me, and to my current bosses, Attorney General Bill Barr and
Deputy Attorney General Jeff Rosen, for their support
throughout this nomination process.
Acting Chairman Rubio and Vice Chairman Warner, I am a
first-generation American and a proud civil servant. My
background and my family experiences shape who I am today, and
they compel me to put my hand up when called upon to serve.
This great country of ours has given me everything.
My parents, Eric Ara Hovakimian and Lida Hovakimian, came
to the San Francisco Bay area. They built a life. They raised
two boys. And they instilled in me a deep appreciation of the
freedom and rights our country provides, and an equally strong
duty to serve. Without their love and support, I simply would
not be here today. I thank my mom who is watching from home, my
dad who I know is watching from above, my entire extended
family, and the many close friends both from back home in
California and those from later in life who have supported me
and lived life beside me through the years.
I've been fortunate in my career. After graduation from law
school, I joined an international law firm where I worked
alongside and learned from some of the finest lawyers anywhere
in the world. After a few years at the firm and after clerking
for Judge J.L. Edmondson on the Eleventh Circuit, I accepted
what I thought could well be the last job I ever had.
As an AUSA in San Diego, I worked alongside talented
Federal agents and prosecutors, building cases from the ground
up. I handled matters in diverse context and across the Federal
criminal code. For the last couple of years, I served as a
prosecutor. I worked primarily on a series of cases involving a
former foreign defense contractor, his firm, and the U.S. Navy.
Investigating and litigating these multinational defense
procurement fraud and bribery cases was rewarding work, to say
the least. It implicated our national security interests and
those of our military. Working hand-in-hand with law
enforcement agents and military personnel, it felt like we were
standing up for the interests of the United States. It felt
righteous, because it was.
I look back on those days fondly, and I carry the
experiences with me. They motivate me to continue to serve.
Just as I have great respect for the dedicated professionals
who comprise our Federal law enforcement agencies, I have
tremendous respect for the members of our IC. They, too, do
righteous work. They work every day on behalf of the United
States, often in unheralded, if not completely anonymous, ways.
I am here because I want to support them and their mission.
I am here because I want to do what I can, particularly at this
consequential time, to ensure that the women and men of the IC
get the support they need to help keep our country safe and
secure.
I've seen the IC's work in action. Serving as DOJ's
Director of Counter Transnational Crime, I was an avid consumer
of IC products. I participated in FBI and CIA briefings on
counternarcotics efforts, terrorism finance, country-specific
and region-specific threats, and the various interconnections
between nation-states and organized crime around the globe.
As I worked to implement the substance of these briefings
into action, I experienced firsthand the value the IC provides
and the mission-critical nature of the work that they do. I've
also seen firsthand the way the law interacts with the
activities of the IC. As an Associate Deputy Attorney General,
I regularly participate in counterintelligence and
counterterror briefings, consult on operational matters, and
review investigation and litigation strategy in national
security cases.
Senators, the General Counsel position that I've been
nominated for is, at its core, of course, a legal job. In
addition to the everyday tasks that any CLO would perform, I
regard the overarching duties of the ODNI GC to be in principle
threefold.
First, the GC must speak truth to decision-makers.
Everything else flows from that basic proposition. The only
legal advice I will ever give is that which comports entirely
with the Constitution of the United States and the laws of the
United States. Even when it results in outcome or advice that
others may not want to hear, I will only ever deliver what I
consider to be lawful, objective, clear, and complete advice
and counsel. My oath to the Constitution, if I'm confirmed,
would require it, and my professional judgment and moral
compass demand it.
Second, the General Counsel must promote transparency,
because the IC must keep Congress fully and currently informed
of its intelligence activities. For me, cultivating a
relationship with the Congressional intelligence committees is
of paramount importance. Oversight provides the American
people, through their elected representatives, a channel
through which to review and evaluate. Specifically with regards
to the intelligence activities of the IC, robust and thorough
Congressional oversight is vitally important.
The IC engages in activity critical to the national
security of the country and with implications on many other
important values that we rightly prize, like civil liberties
and privacy. If confirmed, I'll work with the Director and
other senior leaders to facilitate and maintain a cooperative
process with this Committee.
Third, the General Counsel is uniquely situated to promote
collaboration across the IC offices, and should do so. The GC
should take a leading role in promoting collaboration and
ensure that the IC activities are conducted lawfully, and that
the full panoply of statutory rights are protected for IC
employees.
I'll close by saying public service is a high privilege. I
remember standing in court and saying for the first time,
``Good morning, your Honor. Patrick Hovakimian on behalf of the
United States.'' That feeling never got old. If I'm confirmed,
I'll have a different but similarly significant opportunity to
serve. I look forward, if confirmed, to working with the
talented professionals of the IC.
So Acting Chairman Rubio, Vice Chairman Warner, and Members
of the Committee, thank you for your consideration of my
nomination. I look forward to your questions.
[The prepared statement of Mr. Hovakimian follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Rubio. Thank you both. I'm going to defer my
opening questions till the back end of the hearing. And I'll
recognize Senator Burr to begin.
Senator Burr. Thank you, Mr. Chairman. Mr. Miller. Mr.
Hovakimian?
Mr. Hovakimian. Hovakimian, Sir, close.
Senator Burr. Hovakimian. I've got a question for both of
you, but I want to make a statement if I can at the beginning.
Most on this Committee were intricately involved in creating
not just NCTC, but the DNI. So they have their own vision of
what the responsibility and the mission of both were.
I've had an opportunity to sit down with Mr. Miller, and
I've looked at Patrick's background in his resume. I'm not sure
that we could have two more qualified people to fill the roles
that they've been nominated for than these two individuals.
And given that many on this Committee crafted these
agencies in legislation, it is absolutely crucial that we have
people that can fulfill the mission that we thought NCTC was
there to do, and that we can have somebody interpret the
correct law in an agency that is still in its embryo stage.
So I encourage Members that if there were ever a time where
I would really like to see us expedite these nominees, and
hopefully get away from acting and have permanent, it would be
before we leave for the next break.
Mr. Miller, as CT mission manager for the IC, how do you
plan to ensure that the Intelligence Community's
counterterrorism mission is operated as efficiently as
possible, given the limited resources and growing focus of
hard-target countries?
Mr. Miller. Thank you, Senator, for that question. I hope
everyone can hear me.
It's so important as rightfully, we've had enormous success
against countering violent extremist organizations. And I
really see that we're having this conversation about resourcing
and prioritization for counterterrorism at this time. It's a
real testament to the success that we've had. But the war's not
over yet. Al-Qaeda and its affiliates still are committed to
attacking us.
First 30 days, get in there, look under the hood, see
what's going on, determine what our resourcing strategy is and
how we are, Senator, and then take action after that. I feel
right now, we're in a pretty good place. I looked at the macro
perspective of the budget in my last job. However, it's
something we have to pay attention to and we can't overcorrect
too soon, Senator.
Senator Burr. Let me ask you a follow-up, if I can.
How do you plan to reduce any analytic duplication that's
going on currently?
Mr. Miller. Senator, as you know, 17 intelligence
organizations within our federated enterprise presents
challenges. I have some of the same concerns when I see
products that are written and, they're like, that kind of
contradicts another one. That's kind of one of the challenges,
but that's the beauty of our federated enterprise. We have
competitive analysis. The question is, how much?
And I know we currently, within the counterterrorism
business, every day we have a meeting where we make sure we're
not doing that. I'm going to take that very seriously, because
duplication is all right to a point. But to use tax dollars
correctly, we don't need too much, and that's always the
challenge. And I'm going to take that one on loud and clear,
Sir.
Senator Burr. Thank you.
Patrick, the Intelligence Community is often faced with the
use of cutting-edge technology in novel situations. Without a
lot of precedent for us to draw on, what experience do you have
in crafting legal solutions for cutting-edge technology
problems that have no legal precedent?
Mr. Hovakimian. Senator, it's a great question and one
that, in many ways, as you've rightfully pointed out, will
define the IC and the process of providing considered legal
judgments to the IC in the near future.
Working at DOJ, I've had the opportunity to consult and
work with FBI and the National Security Division on matters
relating to artificial intelligence and other cutting-edge
technologies like that. There are crosscutting legal issues
that apply. Luckily, the IC is comprised of a number of
talented GC offices. I would draw upon their experience and
expertise. I would work with this Committee and the
professional staff. I would engage, as appropriate, industry
and other stakeholders. And I would do my best to render
complete, thorough, and accurate legal advice, no matter how
novel the context.
Senator Burr. Thank you for that.
Mr. Chairman, I yield.
Chairman Rubio. Vice Chairman.
Vice Chairman Warner. Thank you, Mr. Chairman. And let me
again say I've really enjoyed my opportunity to meet with both
of you gentlemen before this hearing. And I would echo what
Senator Burr said, that you both bring, I think, very strong
qualifications. But you'd be taking on these jobs in an
extraordinarily difficult time when I personally fear that the
IC is under constant assault.
I've got a couple of questions--not implying that you
wouldn't--but I want to get these for the record.
Will you commit to report to Congress any evidence of
political pressure on analysts or politicization of any of the
intelligence?
And will you report to Congress any evidence of the use of
so-called purge lists or loyalty tests within your respective
areas?
Mr. Miller. Yes, I will.
Mr. Hovakimian. Yes, Senator. Politics has no place in the
intelligence activities of the United States.
Vice Chairman Warner. What will each of you do to reassure
your workforce that you won't allow the NCTC or, for that
matter, the ODNI writ large, not just within the General
Counsel's office, that intelligence professionals will not face
repercussions if they do their job and tell the truth?
Mr. Hovakimian. Senator, I'm a proud civil servant. I've
worked alongside career public servants for the majority of my
career now. I consider myself to be among them. If I'm
confirmed for this job, I will engage with them daily. I will
tell them that I'm the leader of the office, but that doesn't
mean that I'm not their peer. I am their peer. They can come to
me and talk to me.
And I'd expect and anticipate that if confirmed, I'd have
an open and collaborative relationship with the professionals
in OGC, and that we would work through the tough issues
together. And they would have my full support.
Vice Chairman Warner. Mr. Miller.
Mr. Miller. Vice Chairman Warner, a really important
question. The thing that I'm drawn to with the counterterrorism
enterprise is it is literally apolitical, nonpartisan. We used
to have a statement, as many of us recall, that politics ended
at the water's edge. It's the same way with counterterrorism. A
dedicated, mission-focused group of professionals. I will
absolutely lead with integrity and--as I have throughout my
career--and be very conscious of that and set the example in
every way I can.
Vice Chairman Warner. Thank you both.
Mr. Hovakimian, I've got a couple more questions for you,
and again, we talked a little bit about this in our meeting.
In your answers to the Committee's prehearing questions,
you noted that you were not familiar with the specific
intelligence underlying the January 2017 ICA assessment of the
Committee's assessment that Russia interfered in the 2016
Presidential election to then help candidate Trump.
You're Chief of Staff to the Deputy Attorney General, which
would seem to me that you would have had some access to that
information, particularly since it appears that there are some
within the Attorney General's office that are trying to
undermine the conclusions of this Committee and of the ICA.
Do you have any doubts that Russia interfered in 2016, and
continues to interfere or attempt to interfere in our 2020
elections?
Mr. Hovakimian. Senator, I do not. As Director Ratcliffe
said during his confirmation hearings, it's clear that the
Russians interfered in 2016. It's clear they interfered in
2018. And it's clear they are, or are attempting to, this year.
Some of the things they did were extensive social media
disinformation campaigns, some forms of hacking, and other
efforts aimed at sowing general discord and undermining our
democracy. So I think it's clear.
Vice Chairman Warner. Do you have any questions about the
unanimous consent assessment of the Intelligence Community and
of this Committee's report that in 2016, they had a favorite
candidate?
Mr. Hovakimian. Senator, as I noted in the response to the
prehearing questions, I haven't had a chance to look at that
intelligence. I don't know what it says. I don't know what's
there and what isn't there. But what I can say is sitting here
today, I have no reason to doubt the ICA of January 2017, nor
this Committee's confirmation of it.
Vice Chairman Warner. I think that is a careful answer. And
I know you're applying to be a lawyer, but I am concerned about
that. Let me get one last question, and I think my colleagues
will press you on that.
One of the things that I found maybe most outrageous was
when the Inspector General, Mr. Atkinson's, efforts were
undermined by the OLC's opinion that basically said that the
ODNI has the ability to stop the ICIG from reporting a
whistleblower matter of urgent concern to Congress, which I
believe is clearly opposite to the plain letter intent of the
law.
Have you had a chance to review any of those activities,
and would you see going forward that if an Inspector General
was pursuing a matter in your role as GC for the ODNI, would
you try to impede or stop any Inspector General effort?
Mr. Hovakimian. Senator, I have great respect for all acts
of Congress, and among those chiefly is the enactment
governmentwide of whistleblower protection acts, and including
the one that applies to the IC. If confirmed, Senator, I will
ensure that whistleblowers receive all protections under the
law to which they are entitled. I will work closely with the
Director and with other senior officials.
I don't know the new ICIG, Mr. Monheim, but I know him by
reputation. He's a dedicated, decades-long public servant, and
if confirmed, I look forward to working with him, his office,
and all lawyers at OGC to ensure that whistleblowers are
afforded all the legal protections that they are entitled to.
Vice Chairman Warner. Thank you, Mr. Chairman.
Chairman Rubio. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Miller, as you know from our conversations on the
phone, I have a very special interest in the NCTC because it
was created by the Intelligence Reform and Terrorism Protection
Act of 2004, which I drafted with Senator Lieberman. And we
always considered NCTC, as well as the creation of the DNI, as
to the chief components of that wide-ranging bill.
I am, therefore, concerned about Russ Travers' recent
comments in which he outlined his concerns that NCTC does not
have the resources that are required to fulfill its mandate
under IRTPA. He has communicated similar concerns to my staff
and to this Committee.
I've also noted in recent years that it seems that agencies
are no longer sending their very experienced analysts to the
National Counterterrorism Center. And so in some ways, we've
gone back to the pre-NCTC days when President Bush first set up
TTIC to try to do this kind of interagency analysis to ensure
that we connect the dots.
Do you believe that the NCTC has sufficient resources to
fulfill its legal mandate?
Mr. Miller. Senator, first off, thank you for your
visionary leadership with Senator Lieberman in establishing the
National Counterterrorism Center, which responded to the
failures we had, of course, prior to September 11, 2001.
Russ Travers is a dear friend and a mentor. And
fundamentally, I actually very much agree with the broad
outlines of Russ' public statements. I've not, of course, seen
anything. I understand he might have done an Inspector General
complaint, or however you termed that.
We don't want to return to pre-2001 stovepipes. We want to
make sure we are resourced correctly. You know, the other thing
is the degree between centralization and decentralization. And
that's a really important question that we have to get right.
And, of course, Russ' last thing is like let's have a public
discussion about that, which we're having here today.
I don't want to speak for Russ Travers. I need to go in
there and look. I know that the general budget lines and
analytical capacity, it's something that is important. And I
know that there is stress on pulling analysts out of
counterterrorism and moving them to other accounts that are of
higher priority.
I haven't seen that at the macro level yet, ma'am. As I
said, I kind of look at the gross numbers. It's a huge concern.
We can't return back to the problems we had in the past. But I
just don't have a level of detail, and I look forward to
talking to Russ Travers again as soon as I can to get more
specificity of that. And, of course, I'll talk to all of the--
talk to a bunch of them--all the former directors, to get their
views, too.
Senator Collins. Thank you. I think that's really
important. We intended for the dots to be connected after
reading the 9/11 Commission's report, which suggested that the
20-some intelligence agencies each had some information that
perhaps, had it been pooled, might have led us to be able to
thwart the 9/11 attack. And as we shift toward a focus more on
China and Russia, we cannot forget that the terrorist threat is
still very real. So I appreciate your commitment.
Mr. Hovakimian, I didn't do as well as the Chairman on
that.
Mr. Hovakimian. That's very close, Senator, thank you.
Senator Collins. Last year, the DNI received a
whistleblower complaint that the Intelligence Community
Inspector General decided was credible and of an urgent
concern. Despite a legal requirement to transmit the complaint
to this Committee within seven days, the ODNI did not do so.
Under what circumstances do you believe that it's
appropriate to not send a whistleblower complaint to Congress
that the ICIG decides is credible and an urgent concern?
Mr. Hovakimian. Senator, generally speaking, all
whistleblower complaints should be forwarded to Congress. If
confirmed--I've said it in other contexts and I'll say it
again--I will do everything I can to ensure that whistleblowers
are afforded all the statutory rights to which they are
entitled. And I will do everything I can to work with the
career professionals, both in the Inspector General's office
and the General Counsel's office, to ensure that the
Whistleblower Protection Act is applied fairly and
consistently.
Senator Collins. Thank you.
Thank you, Mr. Chairman.
Chairman Rubio. Thank you.
Senator Feinstein. Senator Feinstein, you're next.
Senator Feinstein. Thanks very much, Mr. Chairman. You're
very young, and back in 2014 this Committee----
Chairman Rubio. Which one?
Senator Feinstein. Not you, Sir.
[Laughter.]
Sorry, I couldn't resist that.
Back in 2014, this Committee put out a study, a report on
the CIA's detention and interrogation program. That was very
important to me. I was Chairman of the Committee at the time.
Do you believe that any of the CIA's former enhanced
interrogation techniques are consistent with the Detainee
Treatment Act?
Mr. Hovakimian. I've reviewed the executive summary of the
report that was released while you were Chairman. It is a very
detailed and thorough report, and really from my perspective
and where I sit, a model of Congressional oversight.
Senator, the law today is clear. The National Defense
Authorization Act of 2016 says that only interrogation
techniques that are authorized in the Army Field Manual are
legal, and only those techniques. I support that law fully. And
if confirmed, I will ensure that that law is complied with.
Senator Feinstein. Good, you've done your homework. Let me
ask you about the Detainee Treatment Act, which is the set of
conditions and techniques that really can be used. Have you
read that?
Mr. Hovakimian. I've reviewed it, Senator, yes.
Senator Feinstein. Because that's the standard that is
used, is my understanding. And so as chief legal counsel for
the most important intelligence office, I'm really very
interested in what your position on torture would be. You're
very young.
Mr. Hovakimian. Senator, torture is wrong. And if
confirmed, I will enforce the law. I will ensure that the law
is complied with. I've read the executive summary of the report
that your Committee put together when you were Chairman. I
found it to be illuminating and terrifying at the same time,
Senator.
Senator Feinstein. Good. Thank you. Let me ask, if
confirmed as General Counsel in the ODNI, how would you
approach questions about using Title 50 intelligence
authorities domestically as part of law enforcement operations?
Mr. Hovakimian. Senator, a bedrock principle of our country
is that Americans who are engaging in activities that are
entirely protected by the First Amendment or other parts of the
Constitution ought not to be targeted or surveilled solely on
the basis of that protected activity.
So, although in Executive Order 12333, there's a section
that allows for certain coordination, technical assistance,
things like that, between IC elements and domestic law
enforcement. In a word, that kind of stuff happening here, not
to be too colloquial about it, is very serious.
And to answer your question directly, I would review it
soberly. I would look at activities like that with a skeptical
eye, and I would work with the career professionals at OGC and
across the Intelligence Community to ensure that the law and of
course, of paramount concern, the Constitution is complied with
in all contexts.
Senator Feinstein. Are you aware of the President's firings
of recent Inspector Generals, to include Inspector General
Michael Atkinson?
Mr. Hovakimian. I am aware of that, Senator, yes.
Senator Feinstein. Well, do you see any issues in that
firing that would undermine the IC's confidence in
whistleblower protections?
Mr. Hovakimian. Senator, I'm familiar with Mr. Atkinson
being fired. I don't know all the facts there. What I do know
is that there is a dedicated and committed core of civil
servants who work both in the IC and across the United States
Government. I'm proud and honored to be among them. And, you
know, my experience has been: nothing shakes these folks. They
just do their job on behalf of the United States, day in and
day out. And I anticipate that if confirmed, I will have their
back and help them do just that.
Senator Feinstein. I'm sorry, I missed that. You will have
the back of whom?
Mr. Hovakimian. I will have their back. I will support them
in their mission on behalf of the United States.
Senator Feinstein. Well, do you see any issues with the
recent firing of ICIG Michael Atkinson that would undermine the
IC's confidence in whistleblower protections?
Mr. Hovakimian. Senator, whistleblower protections are of
paramount importance. It's important that the rights of all
whistleblowers are protected. I was a prosecutor. I worked with
confidential informants. They are like whistleblowers in many
ways. They put everything on the line.
Sometimes they work at a company and they have a job and a
career and a family, and they put everything on the line to
come forward and tell what they believe to be the truth, and to
disclose what they see as wrongdoing. It is important to
protect whistleblower rights. And I know the dedicated servants
of the IC and across [inaudible] work to do just that. And if
confirmed, I look forward to helping them do that.
Senator Feinstein. Thank you.
Thank you, Mr. Chairman.
Mr. Hovakimian. Thank you, Senator.
Chairman Rubio. Senator Cornyn.
Senator Cornyn. Mr. Hovakimian, I'm surprised nobody's
asked you about what I consider to be one of the greatest
scandals that's affected the Intelligence Community, including
the FBI, in American history, where the resources of the FBI
and the Intelligence Community were directed against a
candidate for President of the United States. And obviously,
produced a long and lengthy narrative about Russian collusion--
ultimately resulted in the appointment of special counsel and a
report from Mr. Mueller.
And now, we're learning, as a result of declassifications
of a lot of previously classified materials, about the nature
of the fraud being committed on the FISA court, and securing
FISA warrants. Abuse of the FBI's authorities to conduct
counterintelligence investigations, which are very, very
important. And frankly, reckless disregard at the highest
levels of the FBI during the previous Administration for the
rules and procedures governing fair and impartial
investigations of----
I wonder, if you would, if you could characterize your
reaction to the revelations that we've seen, recognizing, of
course, there are some ongoing investigations by Mr. Durham,
and we are anticipating his report. But it strikes me that this
is one of the greatest scandals in American history.
Mr. Hovakimian. Senator, all I can say is that I was
shocked, as were many Americans, when I read Inspector General
Horowitz's report on the FISA situation. As a lawyer and as a
public servant, the idea that just, for example, an Office of
General Counsel lawyer would alter an email, and then that
altered email would serve as the basis, even partly, for an
affiant in a FISA application, it's deeply, deeply troubling.
The Attorney General has called it an abuse.
Senator, I will say over the course of my career as a
prosecutor and now as an employee of main Justice, I've had the
pleasure and honor of working with any number of FBI agents and
law enforcement personnel. They, too, seek to do the right
thing, by and large, on a daily basis. They help protect this
country. I'm honored to work with them.
I know Director Wray and FBI leadership are implementing
reforms and changes to address the situation that Mr. Horowitz
described in his report. It's an ongoing and important
conversation, and thank you for the question.
Senator Cornyn. Senator Feinstein raised the issue of
enhanced interrogation and the investigation that was made.
Unfortunately, the report ended up being a minority report and
a majority report on partisan lines. And indeed, there was not
a fulsome investigation in terms of talking--actually
interviewing witnesses, as opposed to reviewing paper and
reports.
But clearly, this was a novel legal challenge for the
Department of Defense and for the Intelligence Community. The
CIA and other aspects of the Intelligence Community had to
adapt to a novel situation, and try to get actionable
intelligence to save American lives and hopefully preempt
future terrorist attacks.
Could you just describe for us how you as the chief lawyer
for the Director of National Intelligence would approach these
sort of novel legal questions? Because we know exactly what
happens. Once the officials responsible for protecting the
American people act, consistent with the legal advice provided
at the time, there is invariably a second-guessing and an
attempt then to hang those very people out to dry when they
have tried to do the very best they can in a novel circumstance
to understand what the law is and follow the law.
Can you address how you would approach those sort of novel
legal questions?
Mr. Hovakimian. Yeah. Senator, as I said in my opening, I
want to do this job because I believe in the mission of the IC.
I believe in the mission of those who are deployed overseas who
are fighting on behalf of this country every day--some in
unheralded, if not completely anonymous, ways.
Senator, if confirmed, I would talk to, consult, and work
with personnel in the Intelligence Community, and people who've
sort of been there, done that, and seen it. Because I believe
that legal advice is informed and is best delivered when it
takes into account facts on the ground, in addition to
principles of law that are inviolable and can't be violated.
There are facts that can help guide analysis in situations.
So, you know, I try to be a lawyer at all turns, who
operates on a fully informed basis, and talking to all those
who have skin in the game, so to speak, and to those who have
at times their back up against a wall. I do believe facts
inform legal judgments. If confirmed, I will work every day to
ensure that I give the best legal advice I can.
Chairman Rubio. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
Mr. Hovakimian, my hometown of Portland has been invaded by
militarized Federal law enforcement. These Federal forces are
beating, tear-gassing, and detaining my neighbors. On Monday,
Donald Trump promised to expand this invasion to other cities.
If the line is not drawn in the sand right now, America may be
staring down the barrel of martial law in the middle of a
Presidential election.
Now, Mr. Hovakimian, you're a senior Justice Department
official. You're in a position to know what's going on. And as
you know, I informed you in advance that I would be asking
questions this morning about the legality of what is happening
in my hometown.
So my first question is, do you believe that Federal forces
can patrol American cities over the objections of state and
local officials and away from Federal buildings?
Mr. Hovakimian. Senator, I understand Portland is your
hometown, and I understand there's a lot going on there right
now. So I do extend my best wishes to your friends and family
and constituents there.
Senator, I will stand firm on the idea that Americans'
right to free speech, to free assembly under the First
Amendment, are absolutely sacrosanct. Neither law enforcement
nor the Intelligence Community should target or surveil
Americans who are engaged in activity that's entirely protected
by the First Amendment. This is a bedrock principle of our
democracy. It's one that I stand by.
Senator, peaceful protest is one thing, and violence is
another. And from where I sit, you know, law enforcement
helping to quell violence----
Senator Wyden. My time is short.
Mr. Hovakimian. Yes, Senator.
Senator Wyden. Nobody condones violence, and I have
repeatedly said that. That's not the issue. The issue is
whether that's a smoke screen for a Federal takeover of local
authority and local law enforcement.
So what is your reaction to what is going on in my
hometown? Because I believe it is unconstitutional, and I
believe the country needs government lawyers who aren't going
to use the law as a smoke screen to justify this
unconstitutional invasion over the objections of local
officials.
Mr. Hovakimian. Senator, as I began my remarks, I noted
that the situation in Portland is volatile, and I do extend my,
you know, my best wishes to your constituents there. I have to
say----
Senator Wyden. My constituents are interested in more than
your best wishes. What they want to know is that these forces
can't go wherever they want over the objections of local
authorities. That's what they want.
Mr. Hovakimian. Senator, the Department is committed to
enforcing the law, while respecting and promoting the
Constitutional rights of all people. On this issue
specifically----
Senator Wyden. I will tell you, the Department is throwing
the law in the trash can. This morning, a Republican, the first
secretary of the Department, said there is no way, no way he
would have allowed, as a governor, the Federal Government to do
what is going on in my city.
And you seem to want to extend best wishes to us and the
like, and you're for the First Amendment. But I don't see any
evidence that you're going to do anything different. And I'd
like to hear that you're going to.
So let me ask you one other question. Do you believe that
unidentified Federal forces in unmarked cars can drive around
seizing and detaining American citizens? That's a yes or no
question.
Mr. Hovakimian. Senator, I believe in fully protecting the
Constitutional rights of American citizens. And I've done that
as a prosecutor. I've done that as a DOJ official. And----
Senator Wyden. That's not what I'm asking. What I'm asking
is, do you believe that unidentified Federal forces in unmarked
cars can drive around seizing, detaining--seizing and detaining
American citizens? That's a yes or no.
Mr. Hovakimian. Senator, generally----
Vice Chairman Warner. Can you lean in a little bit more.
Mr. Hovakimian. Yes, Vice Chairman. My apologies.
Generally speaking, Senator, it's a great idea to identify
oneself as a Federal law enforcement officer. I will say that
the Department takes the Constitutional rights of Americans
very seriously. As you know, the state AG in Oregon has sued
the Federal Government. And, as is common, the Federal Programs
Branch of the Civil Division of the Department is defending the
lawsuit. The marshals are named defendant in the lawsuit. So at
this point, there is ongoing litigation and some of the matters
you're asking about cut to the heart of that litigation.
Senator Wyden. That that, again, is ducking the question.
These are practices that are going on now over the objection of
local officials, and you have equivocated.
I consider these practices a massive invasion of the
Constitutional rights of my constituents. I think that these
practices are essentially fascist practices that, until
recently, would have been unthinkable in America. And your
refusal to condemn what is going on in my hometown--and people
know all about it. The first Secretary of Homeland Security was
very clear about it this morning. These positions are not
consistent with the position to which you've been nominated.
Mr. Chairman, I intend to oppose his nomination.
Chairman Rubio. Senator Heinrich.
Senator Heinrich. Thank you, Chairman.
Mr. Hovakimian, in your current capacity at the Justice
Department, I have a few questions that I'd like you to take
for the record. You don't have to answer them today. They're
fairly detailed, but I would appreciate a quick response.
The U.S. Attorney for New Mexico told me yesterday that
Federal law enforcement agents will be sent to Albuquerque as
part of the expansion of Operation Legend. The Justice
Department states on its website that this initiative is
intended to, quote, fight this sudden surge of violent crime.
But as Albuquerque Police Chief Geier has pointed out,
homicides are down this year, and protests in our city have
been mostly peaceful. The DOJ initiative is also intended to
work in conjunction with state and local law enforcement
officials, and yet the mayor and the chief of police were not
consulted.
I'd like to ask you: why now? What is the driving reason to
send these agents to Albuquerque at this time? How is this
initiative different than last year's Operation Relentless
Pursuit? How will DOJ work with city officials such as the
chief of police and the mayor to ensure cooperation,
coordination, and some legal guardrails? Because we don't want
the Portland model coming to the city of Albuquerque, frankly.
And finally, what will this operation actually look like on the
ground? If it's not intended to monitor protests, how exactly
will these forces be utilized?
Now, I'd like to get to some questions that I would
appreciate your answers to today. On June 26th, the President
issued an executive order on protecting American monuments,
memorials, and statues and combating recent criminal violence.
According to two public reports this week, an unclassified
Department of Homeland Security memo, which we have--which I
have requested--authorizes DHS Office of Intelligence and
Analysis to engage in intelligence gathering against ordinary
American citizens who may be participating in local protests.
I'd like to ask you if you believe that the threat to
property damage to monuments and statues specifically is a
significant enough homeland security threat, not a local law
enforcement threat, but homeland security threat, to warrant
intelligence analysis and collection by Federal agents.
Mr. Hovakimian. Senator, with respect, I can't necessarily
speak to what the Department of Homeland Security is or isn't
doing. I can say that American's right to free speech and free
expression, including free speech and free expression around
statues and monuments, is of paramount importance to me. Those
are bedrock principles.
Senator Heinrich. In your personal judgment, do you believe
that the threat of vandalism to particular monuments or statues
rises to the level of necessitating intelligence analysis,
especially given the fact that that comes at an opportunity
cost if we're gathering information on protesters at monument
sites, we're not gathering information about white supremacy
groups or other groups that have actually--that have threatened
violence.
Mr. Hovakimian. Senator, I understand the question. My goal
always as a lawyer, both in my current job and if confirmed in
my future job, would be to provide considered legal judgments.
And to do that, I need all the facts on the ground. You know,
it's difficult to opine categorically on hypotheticals,
because----
Senator Heinrich. It seems to me, though, you answered
pretty straightforwardly Senator Feinstein's question about
Title 50 authorities. And this is the next logical step. This
is the Title 50 authorities in action, right? So why is it hard
to connect the dots for you between those two things?
Mr. Hovakimian. Senator, there' a lot happening in the
country right now. And there's a lot of facts on the ground in
different cities. And your question was specifically about
vandalism near monuments and statues.
Senator Heinrich. My question is specifically about
gathering intelligence about protesters.
Mr. Hovakimian. Senator, generally speaking, intelligence
should not be gathered against Americans who are engaged in
activity entirely protected by the First Amendment.
Senator Heinrich. Thank you, Mr. Chairman.
Chairman Rubio. Senator Risch.
Senator Risch. Thank you, Mr. Chairman. I've got questions,
but I'm going to reserve them for a closed session. They're not
matters to be taken out in public.
Chairman Rubio. Okay. Thank you.
Senator Harris.
Senator Harris. Thank you, Mr. Chairman.
In your current role at the Department of Justice, have you
reviewed, approved, or supervised the deployment of Federal law
enforcement officers to these protests?
Mr. Hovakimian. The deployment of Federal law enforcement
officers----
Senator Harris. Well, let's not parse words. Were you in
any way involved in the decision to send Federal officers to
these locations?
Mr. Hovakimian. Senator, I'm a current DOJ official.
There's a lot happening right now and----
Senator Harris. Please, if you can do a yes or no answer,
that would be helpful.
Mr. Hovakimian. Senator, I advise the Attorney General and
the Deputy Attorney General on any number of topics.
Senator Harris. Have you advised on this topic? Let's focus
on the subject that I've raised.
Mr. Hovakimian. Yes, Senator. I have sightlines into a
great many of the things DOJ does. This does not happen to be
one of them. It's, you know----
Senator Harris. So you were not involved in any of these
decisions. Is that what you're saying?
Mr. Hovakimian. Well, like any major big organization,
there's a division of labor at the Department.
Senator Harris. I'm aware of that, Sir. But it's a very
specific question I'm asking you.
Were you involved in any way in the decision to deploy
Federal law enforcement officers to the various cities we've
been discussing during the protests?
Mr. Hovakimian. Senator, my understanding is that DOJ's
involvement has been relatively limited vis-a-vis that of DHS.
Senator Harris. Can you answer the question: were you
involved or not?
Mr. Hovakimian. Senator, there are ongoing law enforcement
operations around the country, and you know, to protect the----
Senator Harris. So you're not going to answer this question
directly, Sir? I can move on if you're not going to. Or you can
answer the question.
Mr. Hovakimian. I'm attempting to answer the question,
Senator.
Senator Harris. Were you involved?
Mr. Hovakimian. Senator, I advise the Attorney General and
the Deputy Attorney General on everything under the sun. And I
always bring to the table respect for Constitutional rights and
the First Amendment. That is something I turn to frequently
when advising them.
Senator Harris. Were you involved in the decision to remove
peaceful protesters that were gathered in front of the White
House? The incident in Lafayette Square.
Mr. Hovakimian. In early June?
Senator Harris. Yes.
Mr. Hovakimian. Senator, I don't know anything about who
made that decision or when it was done.
Senator Harris. So you were not involved?
Mr. Hovakimian. Well, I just don't know who made the
decision and what happened.
Senator Harris. Were you involved in that decision?
Mr. Hovakimian. Senator, I think I had a question for the
record prehearing on that topic and I answered, no, I was not.
Senator Harris. And press reports indicate in June that DOJ
granted the DEA extensive new authority to conduct covert
surveillance. I think that's what my colleague was speaking
about earlier. Were you involved in the decision to grant these
new authorities to DEA?
Mr. Hovakimian. Senator, I'm not entirely sure. I know I
got some questions for the record on that, prehearing also.
Senator Harris. You're not sure if you were involved?
Mr. Hovakimian. No, no, I'm not sure exactly what it is
that you're referring to. DEA is a Federal law enforcement
agency. And under the United States Code, there are delegations
that are available to be made. I'm just giving you my----
Senator Harris. Were you involved in that decision?
Mr. Hovakimian. I'm just giving you my understanding of the
law. Again, I have sightlines into a great number of things DOJ
does. This, generally speaking, is not one of them.
Senator Harris. In your role at DOJ, were you involved in
any manner in the decision to fire Geoffrey Berman?
Mr. Hovakimian. No. Geoff Berman----
Senator Harris. You were not?
Mr. Hovakimian. Geoff Berman was the U.S. Attorney up in
New York. I knew Geoff Berman. I had worked with him on a
number of things. The Department has made statements on that
and those will speak for themselves.
Senator Harris. The previous ODNI General Counsel consulted
with the Department of Justice regarding a whistleblower
complaint that had been filed with the Intelligence Community's
Inspector General.
In your capacity at DOJ, did you have any awareness of this
whistleblower complaint? And the question of whether it should
be shared with Congress?
Mr. Hovakimian. Senator, you're referring to the
whistleblower complaint from the late summer and early fall of
last year that resulted in all of the proceedings. Is that
right?
Senator Harris. Right. Were you involved in that decision
in any way?
Mr. Hovakimian. Senator, that was something that occurred,
and the Nation watched it. You know----
Senator Harris. Sir, were you involved in that decision in
any way?
Mr. Hovakimian. In what decision precisely, Senator?
Senator Harris. The decision to not share the whistleblower
complaint with Congress.
Mr. Hovakimian. Senator, my understanding was that the
whistleblower complaint was shared with Congress at some point.
Senator Harris. At some point, but there was also at some
point a decision not to share it with Congress.
Mr. Hovakimian. Oh.
Senator Harris. And my question to you, Sir, is, were you
involved in that decision?
Mr. Hovakimian. Well, I guess my point in bringing that up,
Senator, is that I'm not exactly sure which decision you're
referring to because I don't know who made it, if it was even
made. I don't know that there was a decision made not to share
it with Congress because it was, in fact, shared with Congress.
Senator Harris. And do you have any information, or were
you involved in any way in any of the decisions that were made
around the Department of Justice's decision in the Michael
Flynn case or the Stone case?
Mr. Hovakimian. Senator, the matter involving General Flynn
is in active litigation. It's before the D.C. Circuit en banc.
Senator Harris. So were you involved in that decision in
any way?
Mr. Hovakimian. Well, Senator, as a lawyer and an official
at DOJ, it's very difficult for me to comment on an ongoing
matter.
Senator Harris. What about the Stone case?
Mr. Hovakimian. Senator, Roger Stone--that matter was
litigated over the course of years. The Department took
positions in court filings.
Senator Harris. Were you involved in that decision?
Mr. Hovakimian. The Attorney General has made public
statements about that case, and I will allow those to speak for
themselves.
Senator Harris. Thank you, Mr. Chairman. My time is up.
Chairman Rubio. Thank you.
Since I deferred my questions to the end, I have three.
Let me start with Mr. Miller. You know, the NCTC has an
arrangement in which the major--a lot of its workload is taken
up by detailees from other agencies, in an era in which
increasingly our foreign policy and therefore our intelligence
work and frankly, multiple areas of U.S. policy, including
geopolitics, trade, commerce, diplomacy, are increasingly
focused on China and Russia and Iran and North Korea.
And the concern, of course, is that even as we focus on
these things, and rightfully so, that it could somehow detract
from the role of--or the importance of--counterterror, which
remains an active threat and in many ways has metastasized and
moved into different theaters.
What is your view of this arrangement in which the NCTC
relies--the counterterrorism mandate relies heavily on
detailees from other agencies whose increased workload in these
other four areas, you know, great power competition, the like,
could potentially place a strain on our ability to focus on the
counterterror mission?
Mr. Miller. Thank you, Acting Chairman Rubio. Great
question. I really think the model works when resources are
bountiful, and everyone is committed to the mission. I think
it's something that the beauty of that model was you were
constantly rotating in new folks with new views, and you kept a
degree of energy and individual thinking going.
My gut instinct right now is we need to relook at that
because I'm concerned, as you note, that as resources get
further constrained or other priorities take the fore, that we
really need to think if that's the right model because I've
done this one before where you're trying to get borrowed labor
and wow, it works great. But then, until it doesn't. And I
think we might be kind of getting to that point, Sir.
Chairman Rubio. And just to be clear, it's not the aspect
of having new people come into the role. It is the question of
numbers and workload. If an agency is being told, we need more
product, we need more work, we need more focus on North Korea,
they may not be able to part with detailees is at the same
scale than in the past. The bigger concern is the numbers, not
necessarily the fact that it's new people rotating in.
Mr. Miller. Yes, Senator. I also think the National
Counterterrorism Center is doing some cutting-edge work on
using artificial intelligence and machine learning. I think
we're kind of baby steps right now. We're a long way as a
government, writ large, to exploiting those. But I'm really
hopeful that they continue to be best in class at that and
figure out whether there are efficiencies that can be gained,
because that's the goal in this. But right now, I completely
hear what you're saying, and I'm going to look at that really
closely, if confirmed. And am concerned as well.
Chairman Rubio. We're in this unprecedented situation where
certain Foreign Intelligence Surveillance Act, FISA
authorities, expired in March, and it's leading the
Intelligence Community and the Department of Justice without
FISA business records, lone wolf roving surveillance
authorities. This question really is for both of you.
What concerns do you have with the current expired status
of these authorities?
Mr. Miller. Thank you, Acting Chairman Rubio, for another
kind of really important question.
I'm not an expert on 702 and FISA. I will say this from an
operations standpoint better. I think this is--one of the
things we learned from the horrendous attacks in 2001 is,
typically speaking, it's better to have tools and not need them
than need and not have after the fact. Once again, I'm not an
expert on FISA. I understand the broad outlines, and more tools
are better, generally speaking, as long as they comport with
the Constitution, with our laws and with, you know, AG
guidelines.
Chairman Rubio. Yeah. And more specifically, my question is
not so much about the legal arguments surrounding it or the
political arguments, but whether it's an impediment to our
counterterrorism, the current status, if it carries forward,
whether that's an impediment to the counterterror mission. Your
answer is obviously the more tools, the better. But how
critical are those tools, or have they been historically, in
your view?
Mr. Miller. Senator, I know the National Security Agency
has some thoughts on that and, of course, support the
operational elements. However, once again, I can't speak
specifically right now to what the impacts are on our
intelligence take in regard to counterterrorism. But certainly,
more is better. And I'll look at that if confirmed, Sir.
Chairman Rubio. Mr. Hovakimian, do you have any insights?
Mr. Hovakimian. Senator, yes. The provisions of FISA that
expired on March 15th of 2020 have been very important and
useful to law enforcement and to the national security
community. And as Mr. Miller said, it's always better to have
more tools and not necessarily need to use them.
One of those provisions, in fact, I think DIC has said has
never been used in history, but that doesn't mean there aren't
a set of circumstances under which it would be useful. So if
confirmed, I look forward to collaborating with this Committee
and with the legislative affairs professionals across the
government to reauthorize those provisions.
Chairman Rubio. All right. We're going to follow up if any
Members have any questions. I know the Vice Chairman has one.
Vice Chairman Warner. Yes. Mr. Hovakimian, I'm pretty
disappointed about how you answered a number of my colleagues'
questions or failed to answer. But the one that really bothered
me the most, because we talked about it----
Mr. Hovakimian. Yes, Sir.
Vice Chairman Warner [continuing]. Before Senator Harris
came in, was we had a discussion during my questions about the
OLC's opinion that ruled, I think, totally and appropriately,
that the OLC could, in a sense, intervene--stop the IG from
making a report to Congress. We talked about that. You said you
thought it was very important that Congress gets the IG's
report and that you left me with the impression that you
thought that was inappropriate. And yet you wouldn't even
respond to Senator Harris, whether you were involved in that
matter at all and acted like you didn't know what she was
talking about.
Mr. Hovakimian. Yes, Senator, I think--sorry for any
misunderstanding. I think what I was referring to was when the
decision was made not to send the report over. That didn't
compute for me because, of course, the complaint did eventually
make its way over.
Vice Chairman Warner. The complaint got over, but not
through appropriate channels, and was stopped. And the
Inspector General stopped from continuing the investigation
that he was rightfully required to do by law. And so if you're
not willing to answer her, will you answer me?
Were you involved in that in any way?
Mr. Hovakimian. Senator, I was not. That decision was made
by the Office of Legal Counsel. It was a considered----
Vice Chairman Warner. In your effort of having sight lines
into all different things the Attorney General is involved in,
were you involved in that through your various sight lines?
Mr. Hovakimian. Senator, I'm not quite sure what you mean.
I was at----
Vice Chairman Warner. Sir, if you don't understand what I
mean, then I'm not sure you're dealing with me or dealing with
this Committee in an appropriate straight manner. I really
enjoyed our conversation earlier. I think you are a bright
young man, to quote my colleague. But I would like to get a
written response from you on this subject.
Mr. Hovakimian. Yes, Senator. I'm committed to ensuring the
rights under the statute of all whistleblowers. I believe in
it. I believe that whistleblowers serve an important role in
the government. I believe Congress spoke to that. And, you
know, I've worked with confidential informants as a prosecutor,
and they are, in many ways, like whistleblowers. I respect
whistleblowers and their statutory rights. And if confirmed, I
will do my very best to respect those rights as I always have
in every position, including my positions at DOJ.
Vice Chairman Warner. Thank you, Mr. Chairman.
Chairman Rubio. I want to give you an opportunity because
there was confusion, it appears, on your part about the
question, so let me just try to ask it a different way.
I think the question at its core that I believe they're
asking is obviously, as you have sight lines, you work in an
office, you understand that different things are going on in
different places. If I understand the question, and that may be
what you want to respond to in writing, but as I understand the
question is when the decision, whatever decision was made by
the Office of Legal Counsel or the like, were you involved in
that deliberative processing and giving legal advice as to what
the outcome should be?
Mr. Hovakimian. No. No, Senator.
Vice Chairman Warner. Can I amend?
Chairman Rubio. Yes.
Vice Chairman Warner. Mr. Chairman, I think that is right,
and this is why you may want to take this for the record: my
understanding was that you had OLC, I believe in some
consultation with the Attorney General, reaching that
conclusion, which then was referred to the IC, in a sense--the
IG, I'm sorry--the IG Inspector General was then stopped from
performing his duties, which at least some of us thought was in
clear contradiction of the law. And I do recall the gentleman
who had your position before, him coming in and trying to
defend that because the ODNI GC tried to defend that, I thought
unsuccessfully.
So the clarity here is not whether you are simply--
obviously, OLC is not inside the DOJ's Office. But you have
left me with the impression that you are avoiding answering
directly Senator Harris' question. And if you were involved,
particularly after I tried to pose questions on this matter
about whistleblowers, you've left me with a very, very
unsettled sense. So, whether you want to address it today or in
writing----
Chairman Rubio. It's a question, and I want to give you a
chance to answer. You don't have to answer here. Maybe it would
be better off in writing because the answer is complex.
But as I understand, the question is, to the extent the
Department of Justice was involved in this matter and in
reaching some conclusion and determination, was that a process
that you were involved in helping reach that determination?
Mr. Hovakimian. Senator, I'd be happy to take the question
for the record and do the best I can, parsing it out and
answering it. I will say that there's an OLC opinion that is
public. Its reasoning is out there. I am not an attorney who
works in the Office of Legal Counsel. I did not inject myself
into their deliberations. I did not try to, you know, steer
things one way or another. And I did not try to give legal
advice on what that opinion should look like. But I will be
happy to take the question for the record and to answer it the
best I can.
Vice Chairman Warner. And again, if you could just address
both whether you were involved in or aware of these
deliberations at DOJ in terms of consulting with the OLC.
Thank you, Mr. Chairman.
Chairman Rubio. Anybody else? Senator Burr, did you have a
follow-up?
Senator Burr. [Inaudible.]
Chairman Rubio. Oh, okay.
Well, I want to thank you, everyone, for being here today.
For planning purposes, if any Members wish to submit
questions for the record, which sounds like we're going to have
some after today's hearing for either of the nominees, please
do so by the close of business tomorrow. I think we know at
least one of those questions.
Again, I want to thank everybody for being here. And with
that, this meeting is adjourned.
[Whereupon, at 11:36 a.m., the hearing was adjourned.]
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