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[Senate Hearing 110-936]
[From the U.S. Government Printing Office]
S. Hrg. 110-936
NOMINATION OF J. PATRICK ROWAN TO BE
ASSISTANT ATTORNEY GENERAL
FOR NATIONAL SECURITY
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 25, 2008
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
CHRISTOPHER S. BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California JOHN WARNER, Virginia
RON WYDEN, Oregon CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
Andrew W. Johnson, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
----------
SEPTEMBER 25, 2008
OPENING STATEMENTS
Rockefeller, Hon. John D., IV, Chairman, a U.S. Senator from West
Virginia....................................................... 1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from
Missouri....................................................... 3
WITNESS
Rowan, J. Patrick, Nominee to be Assistant Attorney General for
National Security.............................................. 4
Prepared statement........................................... 5
SUPPLEMENTAL MATERIAL
Prehearing Questions and Responses............................... 20
Questionnaire for Completion by Presidential Nominees............ 51
Letter from Don W. Fox, Office of Government Ethics, Dated June
26, 2008 Transmitting Public Financial Disclosure Report....... 69
July 23, 2003 Congressional Testimony............................ 80
July 20, 2006 Congressional Testimony............................ 84
January 29, 2008 Congressional Testimony......................... 92
NOMINATION OF J. PATRICK ROWAN TO BE
ASSISTANT ATTORNEY GENERAL
FOR NATIONAL SECURITY
----------
THURSDAY, SEPTEMBER 25, 2008
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:39 p.m., in
Room SDG-50, Dirksen Senate Office Building, the Honorable Jay
Rockefeller (Chairman of the Committee) presiding.
Committee Members Present: Senators Rockefeller, Wyden,
Bond, and Warner.
Chairman Rockefeller. The Committee will come to order.
We meet to consider the nomination of J. Patrick Rowan to
be Assistant Attorney General for National Security.
I would like to begin by congratulating the nominee and
asking whether--as I sorely suspect is the case--he has anybody
he'd like to introduce.
Mr. Rowan. Yes, Senator. Thank you for providing me that
opportunity.
Behind me here is my mother, Anne Rowan, a retired math
teacher, and my father, William J. Rowan, who is a judge in the
Montgomery County Circuit Court in Maryland. I'm also joined by
a number of my colleagues from the Department of Justice,
including a number of colleagues from the National Security
Division. I really appreciate that they're able to come as
well.
Chairman Rockefeller. Good. We welcome you. A math teacher
and judge.
Mr. Rowan. A lot to live up to.
Chairman Rockefeller. Yes.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A
U.S. SENATOR FROM WEST VIRGINIA
In the PATRIOT Act Reauthorization in 2006, Congress
established the National Security Division of the Department of
Justice and the position of Assistant Attorney General to head
that division. That legislation also established a somewhat
unique, at least rare, procedure which brings to our
Intelligence Committee the nomination of a Justice Department
official. The nomination was first considered by the Judiciary
Committee, which favorably reported it two weeks, glad to say.
It was then automatically referred to our Committee.
There is an important reason why the 2006 statute provided
for an automatic sequential referral to the Intelligence
Committee. The Assistant Attorney General for National Security
carries out intelligence-related functions that are at the
heart of the legislative and oversight responsibilities of this
Committee. These include representing the government before the
FISA Court and being the government's chief counterterrorism
and counterespionage prosecutor.
Mr. Rowan is a career Department of Justice prosecutor who
has rendered very important service in the U.S. District
Attorney's Office in the District of Columbia, at the FBI, and
in several offices in the Department of Justice. Of particular
relevance to the nomination that brings him here today, Mr.
Rowan has been in the leadership of the National Security
Division from its beginning in 2006. He first served there as
Principal Deputy Assistant Attorney General. In that capacity,
he managed the Department of Justice's national security
investigations and prosecutions. And from April, 2008 to the
present he has been the Acting Assistant Attorney General.
That's the only thing I don't like about the Justice
Department, is all the assistant levels. It's difficult for
those of us who aren't in that profession. But that's not your
fault.
Mr. Rowan. It certainly is. Thank you.
Chairman Rockefeller. Mr. Rowan has obviously earned the
confidence of Attorney General Mukasey, and I am advised that
the Director of National Intelligence, DNI, strongly supports
his nomination. We treat both as high recommendations.
If confirmed, Mr. Rowan will head his office at a time of
important challenges and responsibilities for the National
Security Division. The National Security Division has a leading
role in implementing the recently-passed FISA Amendments of
2008--a very noncontroversial matter--in a manner that is true
to the twin objectives of the law--providing for the effective
collection of intelligence and preserving the liberties and
privacy of Americans, if those two are entirely reconcilable.
And that's, I would think, one of the fascinations of what
probably lies before you.
Robust congressional oversight of the new law, as well as
older parts of FISA that were unchanged by that law, is
essential. Our ability to conduct this oversight will depend on
full and informative reporting by the Attorney General, which
will rely in turn on comprehensive and penetrating reviews and
reporting by the National Security Division.
Our oversight responsibilities will be particularly
important in areas that are not subject to judicial review. Key
among them is the adequacy and adherence to the Attorney
General's guidelines required by the FISA Amendments to ensure
adherence to the Act's limitations, including the prohibition
on reverse targeting. We will be looking forward to the
National Security Division's full participation in that effort.
It is not too soon to note that several FISA provisions
added by the 2001 PATRIOT Act, and extended in the 2006
reauthorization, will sunset at the end of 2009. One is the
business records title of FISA. A challenge Congress will face
that will also occur when provisions of the FISA Amendments
sunset at the end of 2013 is how to enable public
considerations of interpretations of these laws by the FISA
Court and its Court of Review.
We would welcome the nominee's thoughts on what he would
do, if confirmed, to work with those courts and the
intelligence community to release publicly any opinions on
important issues of law, to the extent consistent with national
security.
There are important challenges for the National Security
Division apart from FISA. The Assistant Attorney General is the
government's chief counterterrorism prosecutor. The time is
rapidly approaching when, in my opinion, this Senator's
opinion, there needs to be a thorough reconsideration of the
effort to substitute military commissions for military court
martial or federal criminal trials.
Simply put, seven years have passed since the terrorist
attacks of September 11th, and more than that since the USS
COLE attack. And it is clear that the effort to bypass
established ways, both military and civilian, for trying
terrorism cases has failed to bring to justice the participants
in those attacks. While the nominee may be limited in what he
can say at this time, I hope that if confirmed he will quickly
and energetically make the National Security Division an active
participant in the search for a better course.
I now turn to the distinguished Vice Chairman for his
opening remarks.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A
U.S. SENATOR FROM MISSOURI
Vice Chairman Bond. Thank you, Mr. Chairman. I join with
you in welcoming Mr. Rowan, his parents, Judge and Mrs. Rowan.
You have adequately described, Mr. Chairman, very
eloquently how we got to this position. I add just a few
comments about Mr. Rowan's predecessor, Ken Wainstein, now
serving as the President's Homeland Security advisor.
We provided an outline for this position, but there are
many competing visions and some very strong opinions on what
the NSD should look like. And I think Ken sifted through them
and made some very tough decisions. So far, overall it appears
to me that they were good decisions, and for that we owe Ken
our country's gratitude and praise.
There is still a lot to be done. Executive Order 12333 and
its implementation to NSD will be on the frontline. As the
Chairman said, the IC continues to implement this summer's FISA
Act amendments and the new extensive oversight and reporting
requirements on the IC and the NSD.
As I understand it, virtually on a daily basis the FBI
seeks FISA applications for physical search, electronic
surveillance on terrorists, spies inside the U.S. It has to be
drafted by the NSD in coordination with the FBI.
And that's why I think it's important that we get a
permanent leader at the helm. Having a Senate-confirmed AAG
would enable him to act in the place of the Attorney General to
certify FISA applications or authorize emergency FISAs when the
Attorney General is not available. And if we cannot confirm
him, that means there could be lengthy delays while we wait to
track down General Mukasey.
There are also a number of other issues we'll get into on
the proposed new guidelines for FBI criminal national security
investigations. And I'd like any wisdom you have as a career
prosecutor and solid security experience if this works well,
and I also look forward to hearing your opinion on the impact
the FISA Act amendments have had on the National Security
Division in its processing of FISA applications.
But Mr. Chairman, since we're running very short of time, I
hope we can move it quickly to the floor, assuming that none of
the people here have any problems with this nominee, that we
could get him confirmed before we leave town to give the
Attorney General the resources he needs.
I thank the Chairman and thank our witness.
Chairman Rockefeller. I agree with the Vice Chairman. Mr.
Rowan, we will welcome your opening statement at this point.
STATEMENT OF J. PATRICK ROWAN, ASSISTANT ATTORNEY GENERAL FOR
NATIONAL SECURITY-DESIGNATE
Mr. Rowan. Thank you, Chairman Rockefeller, Vice Chairman
Bond.
It's my pleasure to appear before you today as the
President's nominee to be the second Assistant Attorney General
for National Security. As a federal prosecutor and attorney for
the FBI and in my work in the last several years at the
Department of Justice, I've devoted much of my career to
protecting the security of this nation and its citizens while
defending our civil liberties. I hope to have the opportunity
to continue this service as the Assistant Attorney General for
National Security.
At the outset, I'd like to thank you for holding this
hearing, knowing the many pressing demands you face at the end
of this Congress and in this period of financial crisis. I
appreciate your support for the critical mission of the
National Security Division.
Since the attacks of September 11th, 2001, the first
priority of the Department of Justice has been combating
terrorism and other threats to our national security. The
department worked hard in the years immediately following
September 11th to fulfill this mission, but it became clear
that a restructuring of the department was needed. The
President and the Congress authorized the creation of the
National Security Division, and we've been up and running for
almost two years now.
We've made significant strides in realizing the benefits of
bringing together the department's prosecutors and its
counterterrorism and counterespionage sections with its
intelligence lawyers in the Office of Intelligence Policy
Review to form a new, streamlined national security
organization. As one who's been there since the beginning, I'm
proud to report that the transition has gone well. Our new
structure enables us to provide quick, fully coordinated
responses to national security threats.
Of particular importance to this Committee, the creation of
the division makes the department more responsive to the needs
of the intelligence community by having the Assistant Attorney
General for National Security provide a single Justice
Department point of coordination and contact for our colleagues
in the intelligence community. If confirmed, I will act as the
primarily liaison to the Director of National Intelligence, and
I look forward to developing further the already strong
relationship between our offices.
I recognize that congressional oversight plays an important
role in promoting accountability and improving government
operations, especially those of the intelligence community. I'm
committed to ensuring that we provide information responsive to
Congress's oversight needs, consistent with our law enforcement
and national security responsibilities, in a thorough and
expedited manner.
Specifically, I look forward to discussing national
security issues of significant interest to this Committee,
including what the National Security Division has done and is
planning to do to implement the FISA Amendments Act. I'd like
to pause here to thank this Committee for its invaluable and
tireless efforts in pursuing the modernization of FISA. It was
a historic achievement, and I'm proud that the NSD was a part
of it.
In conjunction with the DNI and the agencies of the
intelligence community, the NSD has made significant strides in
implementing the FISA Amendments Act. And in particular,
consistent with Section 702 of the FISA Amendments Act, the NSD
has taken appropriate steps to ensure there's an efficient and
effective transition from the Protect America Act to the newly
enacted authority.
The specific details of the certifications and related
procedures are necessarily classified and must remain so. Staff
members of this Committee have been fully briefed on these
certifications and related procedures and any court action on
them. In addition, the NSD has implemented other provisions of
the FAA, including provisions that streamline the applications
under FISA.
In closing, I want to thank the President and the Attorney
General for the trust they have placed in me. I want to assure
this Committee that if I'm confirmed I'll continue to devote
all my energies to the mission of protecting our national
security and defending the civil liberties and freedoms that
give meaning to our security.
I look forward to working with the Committee should I be
confirmed as an Assistant Attorney General, and I welcome any
questions that members of the Committee may have.
[The prepared statement of Mr. Rowan follows:]
Prepared Statement of J. Patrick Rowan
Chairman Rockefeller, Vice Chairman Bond, Members of the Committee:
It is my pleasure to appear before you today as the President's
nominee to be the second Assistant Attorney General for National
Security. As a federal prosecutor, Special Counsel for the Office of
General Counsel of the Federal Bureau of Investigation, Associate
Deputy Attorney General, Principal Deputy Assistant Attorney General in
the National Security Division, and Acting Assistant Attorney General
for National Security, I have devoted much of my career to protecting
the security of this nation and its citizens and defending our civil
liberties. I hope to have the opportunity to continue this service as
the Assistant Attorney General for National Security.
At the outset, I would like to thank the Chairman, Vice Chairman,
and the Members of the Committee for holding this hearing knowing the
many pressing demands you face at the end of this Congress and in this
period of financial crisis. I appreciate your support for the critical
mission of the National Security Division.
Since the attacks of September 11, 2001, the first priority of the
Department of Justice has been combating terrorism and other threats to
our national security. The Department worked hard in the years
immediately following September 11th to fulfill this mission, but it
became clear that a restructuring of the Department was needed. The
President and Congress authorized the creation of the National Security
Division. The Division has been up and running now for almost two years
and we have made significant strides in realizing the benefits of
bringing together the Department's prosecutors in its Counterterrorism
and Counterespionage Sections with its intelligence lawyers in the
Office of Intelligence Policy and Review to form a new, streamlined
national security organization. I am proud to report that the
transition has gone well and the National Security Division now
consists of the fully integrated Office of Intelligence (01) (formerly
the Office of Intelligence Policy and Review), the Counterterrorism and
Counterespionage Sections, and a new Office of Law and Policy devoted
to national security issues. Our new structure enables us to provide
quick, imaginative, and agile responses to national security threats.
Of particular importance to this Committee, the creation of the
Division makes the Department more responsive to the needs of the
Intelligence Community by having the Assistant Attorney General for
National Security provide a single Justice Department point of
coordination and contact for our colleagues in the Intelligence
Community
The Attorney General expects that the National Security Division
will continue to pursue the following primary objectives that led to
the creation of this new division: the centralization of the management
of the Department's national security program; the coordination of
operations and policy across the national security spectrum; the
implementation of comprehensive national security oversight; and the
further development of national security training and expertise. If
confirmed, I will act also' as the primary liaison to the Director of
National Intelligence (DNI) and I look forward to developing further
the already strong relationship between our offices. In addition, the
Attorney General expects that if confirmed I will help ensure that our
national security responsibilities are met during the first transition
of government following September 11, 2001.
I recognize that congressional oversight plays an important role in
promoting accountability and improving government operations,
especially those of the Intelligence Community and, if confirmed as the
Assistant Attorney General for National Security plan to actively
participate in the congressional oversight process. In my previous
positions at the National Security Division I have participated
directly in the oversight process by testifying at hearings before
House Committees and by briefing numerous members of the Senate and
House, as well as the staff of their committees. I am committed to
ensuring that we provide information responsive to Congress's oversight
needs, consistent with our law enforcement and national security
responsibilities, in a through and expedited manner.
Specifically, I look forward to discussing national security issues
of significant interest to this Committee, including what the National
Security Division has done and is planning to do to implement the FISA
Amendments Act (FAA). I would like to pause here to thank this
Committee for its invaluable and tireless efforts in pursuing the
modernization of FISA. It was an historic achievement, and I am proud
that the NSD was a part of it. It will always serve as a reminder of
what we can achieve when we work together.
In conjunction with the DNI and the agencies of the Intelligence
Community, the NSD has made significant strides in implementing the
FISA Amendments Act. In particular, consistent with Section 702 of the
FAA, the NSD has taken appropriate steps to ensure there is an
efficient and effective transition from the Protect America Act to the
newly enacted authority. The specific details of the certifications and
related procedures are necessarily classified and must remain so. Staff
members of this Committee have been fully briefed on these
certifications and related procedures and any court action on them. In
addition, the NSD has implemented other provisions of the FAA including
provisions that streamline applications under FISA.
In closing, I want to thank the President and the Attorney General
for the trust they have placed in me. I want to assure this Committee
that if I am confirmed, I will continue to devote all my energies to
the mission of protecting our national security and defending the civil
liberties and the freedoms that give meaning to our security.
I look forward to working with this Committee should I be confirmed
as the Assistant Attorney General for National Security and I welcome
any questions the members of this Committee may have.
Chairman Rockefeller. Thank you, sir. We have our
tradition, Mr. Rowan, and we always ask individual questions of
our members before we get to that. We have several questions
that we ask all of our nominees.
Do you agree to appear before the Committee here or in
other venues when invited?
Mr. Rowan. Yes, Senator.
Chairman Rockefeller. Do you agree to send officials from
the National Security Division to appear before the Committee
and designated staff when invited?
Mr. Rowan. Yes, Senator.
Chairman Rockefeller. Do you agree to provide documents or
any other material requested by the Committee in order for it
to carry out its oversight and legislative responsibilities?
Mr. Rowan. I do, Senator.
Chairman Rockefeller. You're sure about that?
Mr. Rowan. Yes.
Chairman Rockefeller. Will you ensure that the National
Security Division provides such material to the Committee when
requested?
Mr. Rowan. I will, Senator.
Chairman Rockefeller. Good. Well, you're virtually
confirmed.
As I said in my opening statement, seven years after the
attacks on 9/11, eight years--seems a lot longer since the
attack on the USS COLE--it's clear that the effort to bypass
established ways, both military and civilian, for trying
terrorism cases has failed to bring to justice the participants
in those attacks, and it's a rather stunning fact, because they
were very large events.
From your long experience in the U.S. Attorney's Office, at
the FBI, in the Criminal Division at Justice, and now in the
National Security Division, can you describe both the
challenges and the successes that the Department of Justice has
had in trying terrorism cases in the United States district
courts? Specifically, I would like your comments on the risks
posed by abusive interrogation methods to the ability of the
United States to successfully prosecute terrorists.
Mr. Rowan. Well, Senator, there are, obviously, quite a few
examples in which we've been able to successfully prosecute in
the federal criminal courts individuals involved in
international terrorism. There's obviously been a number of
successful trials in the Southern District of New York. The
most recent case involving something associated with the 9/11
attacks, of course, is Mr. Moussaoui's prosecution and
conviction in the Eastern District of Virginia.
And that case is actually, I think, an example of, on the
one hand, how we have very talented, very dedicated prosecutors
who are dealing with very experienced judges, and they work
their way in a very impressive fashion through some very
difficult problems--problems with the classified information
that is put at risk by a prosecution, problems with a defendant
who doesn't accept our courts as being legitimate in the first
instance, the myriad of issues that everybody who watched the
Moussaoui case saw arise. And the court and the prosecutors and
the defense attorneys, all being very professional, worked
their way through them, and of course, he's been convicted.
At the same time, I think it's fair to say that wasn't an
easy road. There were a lot of difficulties that were
encountered along the way. So I think it demonstrates that
these cases do present unique challenges for our courts,
particularly in the context of protecting classified
information.
Mr. Moussaoui was someone who obviously was caught here in
the United States and quickly placed in immigration custody. I
think it's even more challenging when you consider the examples
of individuals who are detained and there's a concern that they
have urgent threat information. And so the first interest of
the government is what kind of intelligence information can we
get from this person?
So I think that wrinkle is what adds a great deal of
complexity to the problem that we face. And I think that that
issue is one that we have tried to work on on a case-by-case
basis, but we struggle with that in each instance.
Chairman Rockefeller. Okay. That doesn't sort of get at
the--I know it's a popular subject, and I don't want you to
think that I'm starting out in a badgering mood, but the whole
question of the so-called abusive techniques thing. Because, as
you know, there are schools of thought on that, some saying,
particularly the FBI and the military officials, JAG officials,
et cetera, that you don't get your best information that way,
and others saying that that may be true in a variety of cases,
but sometimes you just have to--if there's an imminent national
security--something that you see on the horizon, and this
person might be able to tell you about that. How that would be
surmised I don't know. Do you have any thoughts on that?
Mr. Rowan. Again, my experience has been as a federal
prosecutor, and in that context I've certainly seen how
effective an experienced FBI agent can be in building rapport
and extracting information from a defendant when it's clearly
not in his interest to provide that information. So I certainly
have a great deal of respect for a rapport-building technique.
I think that they are difficult issues when you're trying
to--when you're on the front line of trying to determine how to
interrogate a person where there's a concern about them having
imminent information.
I do think that, regardless of what technique you're
pursuing, that we need to keep in mind that the Miranda model,
which we obviously use here in the United States, is a
difficult one to apply. I'm not talking about coercion. I'm
talking about like the traditional set of protections that we
have expected to be provided to detainees when we want to use
their statement in an Article 3 court. I think that the Miranda
protections are difficult to square with some of the urgencies
of overseas interrogations.
You know, I think there's plenty of room, obviously, over
and above Miranda, to determine how an interrogation should
take place, and I think that we are now in a better position
than we've ever been to judge the relative adequacy and
effectiveness of rapport-building techniques against more
coercive techniques.
And we're obviously also working through in the military
commissions context how do we address statements that were
obtained in the aftermath of techniques that were certainly
more aggressive than the classic FBI rapport-building
techniques.
So to the extent that there continues to be a substantial
disagreement about how to go about this, I would hope that we
would at least be able to draw on everything that we've learned
over the last years since 9/11 as the entire intelligence
community and the law enforcement community was mobilized to
try to extract information. We've got a lot more experience now
than we did on 9/11.
Chairman Rockefeller. I want to pursue that a little bit,
but my time is up.
Vice Chairman Bond.
Vice Chairman Bond. Thank you very much, Mr. Chairman.
I am concerned about some of the implications of trying to
apply all of our constitutional protections for U.S. citizens
to people we may detain on the battlefield. Obviously, we have
standards by which they must be handled, but exposing in public
witnesses who may be undercover assets--there are a lot of
things that I'm concerned about. So we will get into the
discussion of what kind of justice system is appropriate.
I would like to turn to the new Attorney General
guidelines. As I said, you're a prosecutor. You were with the
FBI in the National Security Division. What's your personal
opinion of it, or did you have such a big hand in writing it
that that's your handiwork?
Mr. Rowan. Senator, the National Security Division, we did
have plenty of opportunity to input into the new guidelines, so
I am somewhat biased, but I believe even if I did not have that
bias I would have little trouble concluding that the basic
premise of the guidelines--which is we should have one set of
guidelines for all investigations--is a rock solid point. I
think it really is the case that FBI agents in the field are
very concerned about following the guidelines properly. The
amount of confusion that can result when you don't know which
box you're in, and so therefore you're not sure which
guidelines to pull out and refer to, can be maddening at the
least, if not dangerous to agents in the field.
Vice Chairman Bond. Good. Quick question. Since the FISA
Act Amendments were signed earlier this summer, have you seen
any benefit in attorney resources, improved oversight? How is
that working?
Mr. Rowan. Well, it's a little bit early, I think, to say
with any certainty, but so far we are starting to see numbers
that would suggest that we're going to enjoy--that the amount
of work that's going to be done under Section 702 is such that
our attorneys are going to have a little bit more time for the
oversight work that is also, obviously, required by the FISA
Amendments.
So I think we are going to find over time that it will
reduce the demands on our resources, particularly in the
context of Section 702 coverage, and we will hopefully then
have more of an opportunity to pursue other FISAs that maybe
people haven't been in a position to pursue in the past, and
more generally, we'll certainly have more time for our
oversight work.
Vice Chairman Bond. Well, we really want to make sure you
are exercising oversight to accomplish the additional duties
and observe the additional limitations placed in the
amendments. I think that's important.
I understand the Executive Order has been drafted. Do you
know when it will be signed by the President to designate a
Deputy Director of the FBI to certify FISA applications? Do you
know where that stands?
Mr. Rowan. Senator, I don't. Like you, I'm aware that it
has not yet been signed, but I'm not certain of where beyond
that it is.
Vice Chairman Bond. Can you tell us briefly the steps
you're taking to ensure that the privacy interests of U.S.
persons are being protected when the government requests or
implements a FISA order?
Mr. Rowan. Well, Senator, you know, obviously, we have
minimization procedures that we were required to put into place
under FISA, and those procedures are something we've spent a
lot of time working on. It's an issue that we want to make sure
that the procedures themselves are up to date, that they are
consistent with the age of information sharing that we are in
now. I think we are doing a reasonably good job of updating
them to ensure that U.S. person information is properly
protected under those procedures while at the same time giving
the members of the intelligence community, the FBI and the
other agencies, the opportunity to share the proper
information.
Vice Chairman Bond. NSD has reviewed FBI's use of national
security letters. Have you identified any abuses?
Mr. Rowan. Nothing--you know, Senator, we've been doing
these field office reviews since 2007, since the IG determined
that there had been abuses of national security letters. And to
my knowledge, while we've done a number of those reviews in
field offices, both in 2007 and so far in 2008, we do provide
feedback to the FBI. Certainly what we have observed so far is
that the FBI is learning the lessons of what happened with
national security letters. And I don't have knowledge that
we've uncovered anything like a systemic problem that existed.
Vice Chairman Bond. Thank you. We'll be interested to hear
if you do, and, Mr. Chairman, I'm going to have some other
routine questions, informational questions, I'm going to submit
to the nominee for his reply. One or two of them may require a
classified answer. I apologize, but not surprisingly, I've got
a few other things to do this afternoon for a change.
Chairman Rockefeller. Are you the one with the $700 billion
in your hip pocket?
Vice Chairman Bond. No, but I've got a couple of strings on
it. I want to make sure that it works right.
Chairman Rockefeller. Thank you.
Vice Chairman Bond. Thank you.
Chairman Rockefeller. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman, and let me thank
the nominee. I've very much enjoyed our visit and the chance to
get together.
As I indicated to you, when the Committee was writing the
Foreign Intelligence Surveillance Act Amendments, I authored
the legislation to expand privacy protections for the law-
abiding Americans who travel overseas. It was co-authored with
Senator Feingold and Whitehouse. Senator Rockefeller and Vice
Chairman Bond were all involved. So it was a great deal of
effort from our Committee on it.
The amendment said if the government wants to target the
communications of an American overseas, the government would
have to get a warrant, just like it would if the American was
located in the United States. So my first question is, now that
the amendment has become law, is the process of implementing it
going smoothly?
Mr. Rowan. Thank you, Senator, for that question, and I do
appreciate the opportunity to have met with you the other day.
As I told you then, we have implemented--the provision you're
referring to we know as Section 704. We have implemented
Section 704, and we have not encountered any obstacles in the
course of implementing that provision.
Senator Wyden. And this is an open session, but because I
want this to be a learning experience, let's see how much
additional information we can put on the record. Has the
Department gotten warrants already?
Mr. Rowan. We have used Section 704 to get warrants. I
would be uncomfortable getting into a number, but I'm certainly
comfortable telling you that we have used it to get warrants.
Senator Wyden. And it's fair to say--and again, I want to
respect the fact we're an open session you all have used it
multiple times already.
Mr. Rowan. Certainly more than once.
Senator Wyden. Okay. With respect to the timeliness
question--this was something we worked with the Vice Chairman
on, we worked with the Department on, because we all felt very
strongly about making sure that when we really were dealing
with those individuals that represented a threat to our country
we had to be in a position to move in a timely fashion--have
you all felt that you could pursue these warrants and still
protect the security interests of the United States in a timely
way?
Mr. Rowan. Senator, I'm not aware of us having any timing
problems in connection with our implementation of Section 704.
Senator Wyden. Very good. Let me just ask you one other
question, again because you in the private session did really
address many of my concerns.
I want to see what can be done in cooperation with the
Executive Branch and the Judicial Branch to provide greater
access to the opinions of the Foreign Intelligence Surveillance
Court. As we talked about, it seems clear to me that you've got
to make sure that any matter that goes to targets or collection
methods, the kinds of things that are operational, absolutely
has to remain classified.
But at the same time I want to make sure that when you're
talking about legal analysis, for example, interpretations,
matters that don't go to these operational matters involving
targets and collection methods, I think that that kind of area
ought to be something that there could be opportunity for more
understanding by the people of this country and how the courts
handle these matters.
First, do you think that that's the case? Do you think that
more of this can be given broader access? And two, if
confirmed, would you be willing to work with me--and we'll do
this in a bipartisan fashion here under the Chairman and the
Vice Chairman--work with this Committee to try to strike the
right balance, to keep classified court matters that absolutely
must be classified, but get these issues of legal analysis and
interpretations--to find a way to make more of that accessible.
Mr. Rowan. Senator, with respect to the second question, I
certainly would be willing to work with you and other members
of the Committee on the issue. We are aware of the importance
of trying to identify those decisions that can be released to
the public.
The problem that we've run into on occasion when we've
looked at this in connection with specific decisions is that
the analysis and the facts are so intertwined that there's
really nothing left that's meaningful once we declassify it.
That's not to say that we wouldn't continue to look at this and
work on this, but it's a bit more of a challenge than I think
one would have imagined in the abstract.
We do recognize it's an important issue. Obviously, the
FISA Court of Review decision from 2003 is very important, that
that's a matter of public record, and so we do feel that we
need to keep a very close eye to determine if there are
decisions that we can assist in getting released so the public
will get some sense of what's going on with the FISA Court.
Senator Wyden. My time is expired. I understand that there
are a number of these areas that are intertwined, where you're
talking about legal analysis and you're talking about facts. At
the same time, I think that to have the kind of informed,
reasonable debate about national surveillance law, people have
got to understand how these laws are interpreted by the courts.
And I will especially look forward to the fact that you're
willing to work with us, because I think it is possible to
strike a balance and expand access and still be sensitive to
protecting matters that absolutely have to be protected to
ensure the security of the country.
Thank you, Mr. Chairman. I've been very impressed with Mr.
Rowan in both our private session and this afternoon.
Chairman Rockefeller. Thank you, Senator Wyden.
Senator Warner.
Senator Warner. Thank you, Mr. Chairman. I share my
colleague's high professional regard for our nominee, Mr.
Rowan. I enjoyed a rather lengthy office consultation that we
had here this week. So I wish you well.
I'd also like to have the record reflect my view, and I
think the view of many on this Committee, that his predecessor,
Kenneth Wainstein, discharged his responsibilities very
professionally and capably.
I'd like to return to the general subject that my colleague
raised, Vice Chairman, the Chairman, all of us, this question
of privacy interest. You have a division in your organization
that does oversight, correct?
Mr. Rowan. That's correct, Senator.
Senator Warner. So perhaps we should have in this record a
little description of that and what supervision you have over
that division, and what mission do they have?
Mr. Rowan. Senator, one of the clear mandates that when we
had when we set up the National Security Division was to create
a more robust and systematic oversight mechanism in connection
with our intelligence work. So our Office of Intelligence
Policy and Review, which is what it was called back then,
basically the core problem was they had always had an oversight
function, but they had been drowning in FISA work post-9/11 and
they hadn't been in a position to do as much as they would have
liked because of the urgency of the FISA work.
So one of the things that my predecessor, Ken Wainstein,
did working with the Deputy Assistant Attorney General Matt
Olsen and others in the Division, was to reorganize that
office--we actually now call it the Office of Intelligence--to
have a dedicated oversight section within it. And the attorneys
in that section, they are able to call on other resources of
the Division, but their whole job is to do oversight.
And in particular, they do national security reviews, which
is a new concept that we've begun in the Division where they go
out to an FBI field office. They look through all the case
files on their intelligence matters. And they try to ensure
that the predication is there for every step in an
investigation, try to ensure that the facts that are pleaded in
the FISA application are accurate, try to make sure that the
national security letters that have been obtained in the course
of an investigation were properly obtained, a sort of searching
review of investigations, intelligence investigations.
Those reviews, we did--I think in 2007 we did 15 of those.
Fifteen separate field offices were reviewed. We're going to
hopefully do even more in 2008. We also do what we call
minimization reviews where we go to the FBI to make sure that
they're properly handling the information that they're getting
from FISA collection.
And of course we also, in the context of the FISA
Amendments Act, have a new obligation to work with the ODNI and
members of the intelligence community to do six-month reviews
of the operations of the intelligence community as they relate
to how they're collecting under the FISA Amendments.
Senator Warner. That's reassuring, but I'd like to point
out that our records here in the Committee show that since
September 11th, the terrorist attacks, the number of
applications for electronic surveillance and physical search
that have been approved by the FISA court have increased from
934 to 2,370. Now, that's understandable in view of the
absolutely extraordinary attack on our country, and I think it
doesn't reflect any weakness to the FISA court.
So we'd like to have your impression of the FISA court, how
it functions, and what steps you would take to oversee that so
that it doesn't ever have a foundation in fact that would give
rise to the infamous term that it's a rubber stamp.
Mr. Rowan. Senator, I think it's actually far from a rubber
stamp in my experience. The judges of the FISA court--
obviously, these are Article 3 judges who are taking on an
additional duty. They're very familiar with the probable cause
standard from their work in Article 3 cases. And they quickly
learned the intelligence community and the nature of the work
they're doing on the FISA court.
We have a great deal of back and forth with the court where
we will come to understand that a judge believes that our
application is deficient in some way, and we work with the
agents and the members of the intelligence community to try to
make sure our applications are solid. And for that reason I
think we have a fairly high success rate when it comes time for
the court to actually sign an application. But that's not an
indication that they're a rubber stamp there. They put us
through our paces every day, and we understand and appreciate
the importance of their work, and we have learned to live under
that kind of a regime.
Chairman Rockefeller. I thank you. I thank the witness.
Senator Warner. Mr. Chairman, will you indulge me for a
minute?
Chairman Rockefeller. Of course.
Senator Warner. Mr. Chairman and members who are absent and
the staff, this is my last meeting with this Committee. I
complete very shortly 30 years of service in the Senate, and I
was on one six-year term, another term for a couple of years,
and now I've enjoyed with your chairmanship several more years,
actually had the title of Vice Chairman. I took a lot of pride
in that title, but I just talked to my colleague here about it,
and I don't want to put in the record his remarks about it, but
I think it's a very important recognition. I recall one time
making arrangement that the title was given to you. Do you
recall that?
Chairman Rockefeller. I do.
Senator Warner. I do, indeed. And I also just want to take
this opportunity. It's been a marvelous, marvelous perspective
of my life here in the Senate for these many years, and that's
been largely possible through the extraordinary men and women
who've served on this Committee. And I also want to recognize
the tremendous support that has been given me and the means by
which I've been able to learn from a superb professional staff.
So I thank all present, and with that, I bid you all a fond
farewell.
Chairman Rockefeller. Not yet.
Senator Warner. Oh.
Chairman Rockefeller. I gave a fairly lengthy peroration
filled with truth and sobriety and some emotion about Senator
Warner's leaving, as well as Senator Hagel's leaving, and the
sadness of that, not knowing that we would be doing this today
simply because when you're dealing with a $700 billion crisis
you don't know what you're doing the next ten minutes, much
less the next day and who's going to be at the hearing.
Senator Warner, I don't think you can dismiss yourself so
easily. We cry out in this Congress for comity, for
statesmanship, for civility, all of which seems to flow from
you as from springs of Dunmore, which is very near a farm that
Sharon and I have in Pocahontas County, West Virginia, just on
the Virginia border right across from Highland County.
And it isn't just the colleagues that you work with,
because you've got some contentious colleagues on both sides. I
think a lot of this hope stems that there will be more people
like you, Senator Warner, who are profoundly engaged in public
service and who will commit themselves, as you have for a
period of 30 years, in many areas and gain through your nature
your--simply, it's just within you. You either have it or you
don't, and you do, a special kind of integrity.
And it's been an enormous honor for me to be associated
with you, if I reach that level of praise, because you're
honest. You vote your convictions. You're not afraid to break
when you want a break and to not break when you don't want a
break. You're real. Some people would say that you're old
school. Some people would say that Thomas Jefferson was old
school. And I don't think that you would be unhappy with that
comparison.
I think you're remarkable, and frankly I'm just going to
miss you enormously in spite of the fact that when you had your
picture taken in your recent marriage that you invited my wife
to join the photograph, but not me. I'm a forgiving man, so I
only remember the nobility of your service. [Laughter.]
Senator Warner. I thank you, Mr. Chairman. We have enjoyed
a very close working friendship and professional relationship
these many years.
I think some of the staff might be interested to know I
first came to know you--not having met you, but having the
privilege of working with your father for some several years on
a project of mutual interest. And you have carried on the
traditions and the heritage of an extraordinary family with
great dignity and modesty, if I may say. You serve your state
as well, and our states adjoin.
And in the few remaining days I have here I wonder if once
again we could determine whether or not we could put the two
states back together. I'm stepping down; therefore, you could
continue on. They'll have to replace me. Simple as that.
Chairman Rockefeller. And you do have a Democratic
governor, don't you? [Laughter.]
Senator Warner. Yes, yes. Thank you, Mr. Chairman. I thank
the witness and the guests present for this indulgence. Thank
you very much.
Chairman Rockefeller. Thank you, Senator Warner.
I just want to pursue one matter, Mr. Rowan, that I brought
up before in outline, and that is this really quite interesting
and amazing debate which takes place in public, but really
takes place much more in sort of private conversations, about
ways of interrogation. How do you best get information out of
people? And the feelings are very, very strong.
I think the CIA, if you want to be cynical about it, you
can say that they have a facility down at Guantanamo, and
therefore, they're going to hold on to that facility. They say
there are things they don't do anymore which they used to. But
that doesn't get into the nature of how you interrogate.
And it is very interesting to me how SERE, those who say
that you can get interrogation and then your, the Department of
Justice and particularly the FBI is one of those. When you
treat people with dignity, they will tell you things because
they don't expect that, particularly because they've read the
recent history since 2001 of what we do do, that they're
surprised and are willing to cooperate.
Now, I guess in one sense I have two questions. One is,
people are dug in. That's human nature. If you've done it a
certain way for the FBI--we've had so many--I'm just thinking
of so many people who've come before us, open session and
closed session, and talked about how they extracted
information. And there's groups from the outside, there's
professionals who've been doing it all their lives. And they
talk about the way to be respectful and yet end up with that
because of persistence, and I'm not going anywhere, and I'll be
here a month from now. And, you know, they're tough, but
they're respectful.
And then you hear from the other side. Well, if there's
going to be--and I mentioned this before--an incident, and we
think there is that chance, we don't want to take the chance of
letting somebody get it by without saying something.
And then you get into the question of how much can people
take? And the fact that the Koran, in fact, actually provides a
method by which you can say I can take one more of these things
but I can't take anymore, so if you do it once again, I'll tell
you what you want--and it gets very confused. And if what you
want is what the truth is, there's also a very important
consideration of that.
My question of you is, is this a debate which has no
solution, or ought not to have a solution, or is this a debate
which as we get further in, as our soldiers are subjected to
some of this and the American people learn about it, where
there can be some kind of reconciliation? Is that possible in
this business?
Mr. Rowan. I think that it may be very hard to have a
reconciliation. One of the things that's always struck me is
there's--it seems from what I have heard--there seems to be
some value--unfortunately, for the public debate there seems to
be some value in leaving the capabilities and powers of our
interrogators vague--in other words, that I do believe that al-
Qaida trains to meet in those interrogation techniques. And to
the extent that they are able to get on the web and understand
exactly what they are and what they are not, I fear that we
lose a little bit by that kind of openness, which is the kind
of thing that you'd want to have----
Chairman Rockefeller. May I interrupt? I'd like to take
that aspect of it off the table. I'd like to pretend that these
discussions have all been held behind closed doors, classified,
and that therefore the business of informing the enemy, which
your case is hands down--if they don't already know--I'd like
to take that off the table, just have your view.
Mr. Rowan [continuing]. Right. Well, I think that one of
the things I said before is, you know, we really didn't have
any experience in this from what I can see at 9/11 except for
the rapport-building experience that the FBI and other law
enforcement agencies had.
And now we do have much more of a record to look back upon
and try to determine--you know, if a certain set of techniques,
if one of the arguments in favor of those techniques is, yeah,
but--I understand rapport building may work over time, but we
need the information urgently, then I think we now have a
little bit better handle on it. I can't say I've seen anything
systematically used to examine this, but I think we'd be in a
better position now to look back and say, well, how long did it
take to get that, how long did it take to get that, and get a
better handle on whether or not the sort of urgency argument is
one that the evidence supports or the evidence doesn't support
it.
As I sit here, I don't know the answer to that. But it does
strike me that that's a critical fact in favor of those who say
rapport-building isn't viable in all instances. But if in fact
it is the case that you look back and you say you know what, it
took some lengthy period of time before these other techniques
worked also, then I think that that would obviously be an
important factor that I'm not sure has really been analyzed in
any systematic way.
I also think that since we have more experience, we have
more experienced interrogators, it's clear to me that some
people just have a talent for this. And I'm really talking
about here rapport-building techniques. I think sometimes
rapport-building techniques don't work because the person who's
conducting the interrogation just isn't very good at it. I
mean, it's something that you see even in a law enforcement
setting as a prosecutor in the District of Columbia. Some
Metropolitan Police detectives were good at getting a
confession. Others were not good. And it's a skill like other
skills.
And I think that some of what occurred after 9/11,
particularly in the context of DOD interrogators, may have been
sort of frustration and inexperience that manifested itself,
frankly, in abusive techniques, the kind of things that have
been studied and reported on in the Schmidt-Furlow Report and
the various studies that have been done.
So I think that the people need to come up with rules, with
the understanding that either these are going to be used by a
small and an elite group of interrogators who are very well
trained, very disciplined, and very good at what they do, or
you're going to have a set of rules for a much larger set of
people who don't have the experience, and you don't want to
give them nearly as much flexibility because it will probably
go bad at some point.
So I think those are some things that we've learned, and I
think that if we looked more at this in the context of a
classified setting it may be that there's other factors that we
could tease out that would help us to understand where the
balance ought to be struck to determine what's the appropriate
system for us going forward?
I also think at some point we need to determine how we use
intelligence interrogations in the context of prosecutions,
because the problem arises that even in a rapport-building
context it's hard to go in and advise somebody of their Miranda
rights and hope to get useful information.
So we need to sort of decide that we're either going to
give up an admissible statement, in the case of an Article 3
court, or we're going to use the military commissions because
that doesn't require--these statements, we need to be able to
prove that they're reliable, that they were--just under all
circumstances use them, but we don't have to prove that there
was a waiver of Miranda.
So I think it's a very difficult issue, and I don't think
that it would be easy to nail down, but I still believe there's
a possibility of having a consensus that's clearer than may
exist right now about the way we ought to do this.
Chairman Rockefeller. That's helpful and thoughtful.
I have other questions and I'll submit them; I won't give
them now. I do want to call particular attention to the math
teacher and to the judge. And I think you've been very
fortunate to start out in life with that. And I think there's a
lot of respect for you in this Committee. It's interesting when
people say what they feel before they've even talked to you.
That means they have a judgment, and the judgment's been on the
circuit, and they hear their--people they hear that they
respect, what they have to say. And I think you've come out
very well on that.
And with that in mind, under Committee Rule 5.5, a
Committee vote on a confirmation shall not be sooner than 48
hours, which is not in your favor the way things appear to be
going on this bailout. After the Committee receives transcripts
of the confirmation hearing, unless the time limit is waived by
unanimous consent to provide us with the flexibility in
proceeding with this nomination in the closing days of
Congress, closing hours of Congress, whatever it might be, I
ask unanimous consent that this time limit be waived. And since
I'm the only person here, it is waived without objection.
And this hearing is adjourned, and I thank you.
[Whereupon, at 3:37 p.m., the Committee adjourned.]