Hearings
Hearing Type:
Open
Date & Time:
Wednesday, June 7, 2017 - 10:00am
Location:
Hart 216
Witnesses
Director
Daniel R.
Coats
Director of National Intelligence
DNI
Deputy Attorney General
Rod J.
Rosenstein
Deputy Attorney General of the Department of Justice
DOJ
Full Transcript
[Senate Hearing 115-84]
[From the U.S. Government Publishing Office]
S. Hrg. 115-84
OPEN HEARING ON FISA LEGISLATION
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, JUNE 7, 2017
__________
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
RICHARD BURR, North Carolina, Chairman
MARK R. WARNER, Virginia, Vice Chairman
JAMES E. RISCH, Idaho DIANNE FEINSTEIN, California
MARCO RUBIO, Florida RON WYDEN, Oregon
SUSAN COLLINS, Maine MARTIN HEINRICH, New Mexico
ROY BLUNT, Missouri ANGUS KING, Maine
JAMES LANKFORD, Oklahoma JOE MANCHIN III, West Virginia
TOM COTTON, Arkansas KAMALA HARRIS, California
JOHN CORNYN, Texas
MITCH McCONNELL, Kentucky, Ex Officio
CHUCK SCHUMER, New York, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
JACK REED, Rhode Island, Ex Officio
----------
Chris Joyner, Staff Director
Michael Casey, Minority Staff Director
Kelsey Stroud Bailey, Chief Clerk
CONTENTS
----------
JUNE 7, 2017
OPENING STATEMENTS
Burr, Hon. Richard, Chairman, a U.S. Senator from North Carolina. 1
Warner, Hon. Mark R., Vice Chairman, a U.S. Senator from Virginia 2
WITNESSES
Coats, Hon. Dan, Director of National Intelligence; Accompanied
by: Andrew McCabe, Acting Director, Federal Bureau of
Investigation; Admiral Michael S. Rogers (USN), Director,
National Security Agency, and Commander, U.S. Cyber Command;
and Rod J. Rosenstein, Deputy Attorney General................. 4
Prepared Statement........................................... 11
OPEN HEARING ON FISA LEGISLATION
----------
WEDNESDAY, JUNE 7, 2017
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 10:08 a.m. in
Room SH-216, Hart Senate Office Building, Hon. Richard Burr
(Chairman of the Committee) presiding.
Committee Members Present: Senators Burr (presiding),
Warner, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn,
McCain, Feinstein, Wyden, Heinrich, King, Manchin, Harris, and
Reed.
OPENING STATEMENT OF HON. RICHARD BURR, CHAIRMAN, A U.S.
SENATOR FROM NORTH CAROLINA
Chairman Burr. I'd like to thank our witnesses today:
Director of National Intelligence Dan Coats--Dan, welcome back
to your family here in the United States Senate--Department of
Justice Deputy Attorney General Rod Rosenstein; Director of
National Security Agency Admiral Mike Rogers; and Acting
Director of the Federal Bureau of Investigation Andrew McCabe.
Welcome to all four of you.
I appreciate you coming today to discuss one of our most
critical and publicly debated foreign intelligence tools. Title
VII of the Foreign Intelligence Surveillance Act, commonly
known as FISA, is set to expire on December 31, 2017. Title VII
includes several crucial foreign intelligence collection tools,
including one known primarily as Section 702. Section 702
provides the capability to target foreigners who are located
outside the United States, but whose foreign communications
happen to be routed to and acquired inside the United States.
Section 702 collection is exceptionally critical to
protecting Americans both at home and abroad. It is integral to
our foreign intelligence reporting on terrorist threats,
leadership plans, intentions, counterproliferation,
counterintelligence, and many other issues that affect us.
It is subject to multiple layers of oversight and reporting
requirements from the Executive, the Judicial and the
Legislative Branches. The Foreign Intelligence Surveillance
Court must approve minimization procedures for each relevant IC
agency before the agency can review collected information. At
the end of the day, FISA collection provides our government
with the foreign intelligence that our Nation needs to protect
Americans at home and abroad, and in many cases our allies.
I understand there is an ongoing debate pitting privacy
against national security, and there are arguments within the
debate that have merit.
As we all too painfully know, the intelligence community's
valuable FISA collection was thrust into the public spotlight
following the illegal and unauthorized disclosures by former
NSA analyst Edward Snowden. As a result, the United States
government and this committee redoubled its efforts to oversee
FISA collection authorities, which already were subject to
historical robust oversight.
But I also think it's fair to say that some entities
overreacted following Snowden's disclosures. And now Congress
must justify what courts repeatedly have upheld as
constitutional and lawful authorities. And I also think that
it's fair to say that nothing regarding this lawful status has
changed since Director Clapper and Attorney General Holder
wrote to Congress in February 2012 to urge us to pass a
straight reauthorization of FISA, and since the Obama
Administration followed suit in September 2012.
What has changed, however, is the intensity, scale and
scope of the threats that face our Nation. This is not the time
to needlessly roll back and handicap our capabilities. I know a
lot of people will use this hearing as an opportunity to talk
about the committee's Russian investigation. I'd like to remind
everyone that 702 is one of our most effective tools against
terrorism and foreign intelligence targets. I hope my
colleagues and those closely watching this hearing realize
that, at the end of the day, our constitutional obligation is
to keep America and our citizens safe.
The intelligence community needs Section 702 collection to
successfully carry out its mission. And it is this committee's
obligation to ensure that the IC has the authorities and the
tools it needs to keep us safe at home and abroad.
Gentlemen, I look forward to your testimony and continued
efforts to maintain the integrity of this vital collection
tool.
I now turn to the Vice Chairman for any comments he might
have.
OPENING STATEMENT OF HON. MARK WARNER, U.S. SENATOR FROM
VIRGINIA
Vice Chairman Warner. Thank you, Mr. Chairman. And thank
you for hosting this hearing on the very important 702 program
and ways that we might ensure its effectiveness, and I will get
to that in a moment. However, given the panel of witnesses here
and given the recent news about ongoing investigations into
Russian interference in our 2016 elections, I'm going to have
to take at least part of my time to pose some questions during
my question time.
Each of you here today, we all know, have taken oaths to
defend the Constitution. As leaders of the intelligence
community, you've also committed to act and to provide advice
and counsel in a way that is unbiased, impartial, and devoid of
any political considerations. This is the essence, quite
honestly, of what makes our intelligence community and all the
men and women who work for you so impressive. You tell it
straight, no matter which political party is in charge.
And that's why it's so jarring to hear recent reports of
White House officials, perhaps even the President himself,
attempting to interfere and enlist our intelligence community
leaders in any attempt to undermine the ongoing FBI
investigation.
Obviously, tomorrow there's another big hearing. We'll be
hearing from former FBI Director Comey. I imagine he'll have
something to say about the circumstances surrounding his
dismissal. We have now heard the President himself say that he
was thinking about the Russia investigation when he fired
Director Comey, the very individual who was overseeing that
same investigation.
Today we'll have an opportunity to ask Deputy Attorney
General Rosenstein about his role in the Comey firings as well.
Additionally, we've seen reports, some as recently as
yesterday, that the President asked at least two of the leaders
of our Nation's intelligence agencies to publicly downplay the
Russian investigation. The President is alleged to have also
personally asked Director Coats and CIA Director Pompeo to
intervene directly with then Director Comey to pull back on his
investigation.
I'll be asking, as I've told them, DNI Director Coats and
NSA Director Admiral Rogers about those reports today, because
if any of this is true, it would be an appalling and improper
use of our intelligence professionals, an act, if true, that
could erode the public's trust in our intelligence
institutions.
The IC, as I've grown to know over the last seven and a
half years I've been on this committee, prides itself,
appropriately, on its fierce independence. Any attempt by the
White House or even the President himself to exploit this
community as a tool for political purposes is deeply, deeply
troubling.
I respect all of your service to the Nation. I understand
that answering some of the questions that the panel will pose
today may be difficult or uncomfortable, given your positions
in the Administration. But this issue is of such great
importance, the stakes are so high, I hope you will also
consider all of our obligation to the American people, to make
sure that they get the answers they deserve to so many
questions that are being asked.
Now let me return to the subject of our hearing. Mr.
Chairman, I agree that the reauthorization of Section 702 is
terribly important. As the attacks in London, Paris,
Manchester, Melbourne--and the list unfortunately goes on and
on--all those attacks have demonstrated, terrorists continue to
plot attacks that target innocent civilians. Section 702 under
court order collects intelligence about these potential
terrorist plots.
It authorizes law enforcement and the intelligence
community to collect intelligence on non-U.S. persons outside
the United States, where there is reasonable suspicion that
they seek to do us harm.
I've been a supporter of reauthorizing Section 702 to
protect Americans from terrorist attacks. And I'm eager to work
with my colleagues on both sides of the aisle to make sure that
we reauthorize it before the end of this year. A
reauthorization of Section 702 should ensure also that there is
robust oversight and restrictions to protect the privacy and
civil liberties of Americans. Those protections remain in
place, and if there are areas where those protections can be
strengthened, we ought to look at those, as well.
So thank you, Mr. Chairman. I look forward to our hearing.
Chairman Burr. Thank you, Vice Chairman.
Let me say for all members, votes are no longer scheduled
for 10:30, if you've not gotten that word. Votes have been
moved to 1:45. When this hearing adjourns, we will reconvene at
2:00 p.m. for a closed-door session on Section 702. I intend to
start that hearing promptly at 2:00. Today, members will be
recognized by seniority for questions up to five minutes.
With that, gentlemen, thank you for being here today.
Director Coats, you are recognized to give testimony on behalf
of all four of you. The floor is yours.
STATEMENT OF HON. DAN COATS, DIRECTOR OF NATIONAL INTELLIGENCE;
ACCOMPANIED BY: ANDREW McCABE, ACTING DIRECTOR, FEDERAL BUREAU
OF INVESTIGATION; ADMIRAL MICHAEL S. ROGERS (USN), DIRECTOR,
NATIONAL SECURITY AGENCY, AND COMMANDER, U.S. CYBER COMMAND;
AND ROD J. ROSENSTEIN, DEPUTY ATTORNEY GENERAL
Director Coats. Thank you, Mr. Chairman. Chairman Burr,
Chairman Warner, members of the committee: We are pleased to be
here today, at your request, to talk about an important and
perhaps the most important piece of legislation that affects
the intelligence community. I'm here with my colleagues.
I would like to take the opportunity to explain in some
detail Section 702, given this is a public hearing and
hopefully the public will be watching. Our efforts to provide
transparency in terms of how we protect the privacy and civil
liberties of our American citizens needs to be explained. The
program needs to be understood, and so I appreciate your
patience as I talk through in my opening statement the value of
702 to our intelligence community and to keeping Americans
safe.
Intelligence collection under Section 702 of the FISA
Amendments has produced and continues to produce significant
intelligence that is vital to protect the Nation against
international terrorism, against cyber threats, weapons
proliferators and other threats. At the same time, Section 702
provides strong protections for the privacy and civil liberties
of our citizens.
Today, the horrific attacks that recently have occurred in
Europe are still at the top of my mind. I was just in Europe
days before the first attack in Manchester, followed by other
attacks that have subsequently taken place. I was in discussion
with my British colleagues through this, as well as colleagues
in other European nations. And my sympathies go out to the
victims and families of those that have received these heinous
attacks and to the incredible resilience that these communities
affected by this violence have shown.
Having just returned from Europe less than three weeks ago,
I'm reminded of why Section 702 is so important to our mission
of not only protecting American lives, but the lives of our
friends and allies around the world. And although the many
successes enabled by 702 are highly classified, the purpose of
the authority is to give the United States intelligence
community the upper hand in trying to avert these types of
attacks before they transpire, which is why permanent
reauthorization of the FISA Amendments Act without further
amendment is the intelligence community's top legislative
priority.
And based on the long history of oversight and transparency
of this authority, I would urge the Congress to enact this
legislation at the earliest possible date, to give our
intelligence professionals the consistency they need to
maintain our capability.
Let me begin today by giving an example of the impact of
Section 702 of FISA. It's been cited before, but I think it is
worth mentioning again. An NSA FISA Section 702 collection
against an e-mail address used by an Al Qaida courier in
Pakistan revealed communications with an unknown individual
located within the United States. The U.S.-based person was
urgently seeking advice on how to make explosives.
NSA passed this information on to the FBI, which in turn
was able to quickly identify the individual as Najibullah Zazi.
And as you know, Zazi and his associates in fact had imminent
plans to detonate explosives on Manhattan's subway lines.
After Zazi and his coconspirators were arrested, the
Privacy and Civil Liberties Oversight Board stated in its
report, and I quote, ``Without the initial tipoff about Zazi
and his plans, which came about by monitoring an overseas
foreigner under Section 702, the subway bombing plot might have
succeeded.'' This is just one example out of many of the
impacts this authority has had on the IC's ability to thwart
imminent threats and plots against United States citizens and
our friends and allies overseas.
Since it was enacted nearly 10 years ago, the FISA Act has
been subject to rigorous and constant oversight by all three
branches of government. Indeed, we regularly report to the
Intelligence and Judiciary Committees of both the House and the
Senate how we have implemented the statute, the operational
value it has afforded, and the extensive measures we take to
ensure that the government's use of these authorities complies
with the Constitution and the laws of the United States.
Further, over the past few years we have engaged in an
unprecedented amount of public transparency on the use of these
authorities. In the interest of transparency and because this
is a public hearing, allow me to provide an overview of the
framework for Section 702 and the reasons why the Congress
amended FISA in 2008.
I will then briefly address why 702 needs to be
reauthorized. And finally, I will discuss oversight and
compliance, and how we are ensuring and continue to ensure the
rights of U.S. citizens, rights that need to be protected.
At the outset, I want to stress three things as a backdrop
to everything else that my colleagues and I are presenting
today. First, as I mentioned at the outset, collection under
702 has produced and continues to produce intelligence that is
vital to protect the Nation against international terrorism and
other threats.
Secondly, there are important legal limitations found
within Section 702 of FISA and let me note four of these legal
limitations. First, the authorities granted under Section 702
may only be used to target foreign persons located abroad for
foreign intelligence purposes. Secondly, they may not be used
to target U.S. persons anywhere in the world. Third, they may
not be used to target anyone located inside the United States,
regardless of their nationality. And fourth, they may not be
used to target a foreign person when the intent is to acquire
the communications of a U.S. person with whom a foreign person
is communicating. This is generally referred to as the
prohibition against reverse targeting.
The third item I would like to stress is that we are
committed to ensuring that the intelligence community's use of
702 is consistent with the law and the protection of the
privacy and civil liberties of Americans. And to that end, in
the nearly 10 years since Congress enacted the FAA, there have
been no instances of intentional violations of Section 702. I'd
like to repeat that. In the nearly 10 years since Congress
enacted the amendments to the Freedom Act, the act that
established FISA, there have been no instances of intentional
violations of Section 702.
With those points as a backdrop, now let me turn to a
discussion of why it became necessary for Congress to enact
Section 702. I do this so that the American public can
hopefully better understand the basis for this important law.
The Foreign Intelligence and Surveillance Act was first
passed in 1978, creating a way for the Federal Government to
obtain court orders for electronic surveillance of suspected
spies, terrorists, and foreign diplomats located inside the
United States. When originally enacting FISA, Congress decided
that collection against targets located abroad would generally
be outside of their regime, FISA's regime. That decision
reflected the fact that people in the United States are
protected by the Fourth Amendment, while foreigners located
abroad are not. Congress accomplished this in large part by
defining electronic surveillance based on the technology of the
time. In the 1970s, overseas communications were predominantly
carried by satellite. FISA, as passed in 1978, did not require
a court order for the collection of these overseas satellite
communications.
So, for example, if in 1980 NASA intercepted a satellite
communication of a foreign terrorist abroad, no court order was
required. However, by 2008 technology had changed considerably.
First, U.S.-based e-mail services were being used by people all
over the world.
Second, the overseas communications that in 1978 were
typically carried by satellite were now being carried by fiber
optic cables, often running through the United States. So, to
continue the same example, if in 2008 a foreign terrorist was
communicating by using a U.S.-based e-mail service, a
traditional FISA court order was required to compel a U.S.-
based company to help with that collection.
Under traditional FISA, a court order can only be obtained
on an individual basis, by demonstrating to a Federal judge
that there is probable cause to believe that the target of the
proposed surveillance is a foreign power or an agent of a
foreign power. This had become an ever more difficult and
extremely resource-intensive process.
And therefore, due to these changes in technology, the same
resource-intensive legal process was being used to conduct
surveillance on terrorists located abroad, who are not
protected by the Fourth Amendment, as was being used to conduct
surveillance on U.S. persons inside the United States, who are
protected by the Fourth Amendment.
By enacting 702 in 2008 and renewing it in 2012, both times
with significant bipartisan support, Congress corrected this
anomaly, restoring the balance of protections established by
the original FISA statute. And although I will not go into
great detail here regarding the legal framework for FISA's
Section 702, I will simply note a few key items.
First, the statute requires annual certifications by the
Attorney General and by the Director of National Intelligence
regarding the categories of foreign intelligence that the
intelligence community will acquire under this authority.
Second, the statute requires targeting procedures that set
forth the rules by which the intelligence community ensures
that only foreign persons abroad are targeted for collection.
Thirdly, the statute requires minimization procedures
protecting U.S. persons' information that may be incidentally
acquired while targeting foreign persons.
And finally, each year the FISA Court reviews this entire
package of material to make sure the government's program is
consistent with both the statute and with the Fourth Amendment
of the Constitution.
We have publicly released lightly redacted versions of all
these documents, including the most recent FISC opinion, to
ensure the public has a good understanding of how we use this
authority. The government's Section 702 program, as we have
said, is subject to rigorous and frequent oversight by all
three branches of government.
The first line of oversight and compliance is within the
agencies themselves, whose offices of general counsel, privacy
and civil liberties offices, and inspectors general all have a
role in FISA 702 program oversight. The majority of the
incidents of noncompliance that are reported to my office and
to the Department of Justice are self-reported by the
participating agencies.
In addition, the Office of the DNI and Department of
Justice conduct regular audits, focusing on compliance with the
targeting procedures, as well as on querying of collected data
and on dissemination of information under the minimization
procedures. Also, we have regular engagements with and
extensive reporting to Congress about the FISA 702 program.
For example, the Judiciary and Intelligence Committees
receive relevant orders of the FISA Court and associated
pleadings, descriptions and analysis of every compliance
incident, and certain statistical information, such as the
number of intelligence reports in which a known U.S. person was
identified.
And finally, of course, the FISA Court regularly checks our
work, both through the annual recertification process and
through regular interactions on particular incidents of
noncompliance. Members of the FISA Court, who are all appointed
by the Chief Justice of the Supreme Court, represent the best
of the best of our judicial community. They have vast judicial
experience and are committed to the constitutional
responsibilities of protecting the privacy of U.S. persons.
We are particularly proud of our oversight and compliance
track record. The audits of the program conducted by the ODNI
and DOJ have shown that unintended error rates are extremely
low, substantially, substantially less than 1 percent.
Further, and I want to emphasize this, we have never--not
once--found an intentional violation of this program. There
have been unintended mistakes, but I would note that any system
with zero compliance incidents is a broken compliance system,
because human beings make mistakes. The difference here is that
none of these mistakes has been intentional. When do we--and
when we do find unintentional errors and compliance incidents,
we ensure that they are reported and corrected.
This is an extraordinary record of success for the diligent
men and women of the intelligence community, who are committed
to ensuring that their neighbors' privacy is protected in the
course of their national security work.
And with that, I'd like to turn to the most recent
compliance incident, which resulted in a significant change in
how the National Security Agency conducts a portion of its FISA
702 collection. A recent example of the oversight process at
work--as a recent example, NSA identified a compliance incident
involving queries of U.S. persons' identifiers into Section
702-acquired upstream data. ``Upstream data'' refers to when
NSA receives communications directly from the Internet, with
the assistance of companies that maintain these backbone
networks. The FISC, FISA Court, was promptly notified and DOJ
and ODNI worked with NSA to understand the scope and causes of
the problem, as well as to identify potential solutions to
prevent the problem from reoccurring.
The details of the incident are publicly available, and
Admiral Rogers will go or can go into more detail during the
question and answer session if you would like. But just allow
me briefly to state what happened. NSA identified and
researched a compliance issue.
NASA--excuse me. NSA reported that issue to DOJ, ODNI, and
ultimately the FISA Court. The court delayed its consideration
of the 2016 certifications on that basis until the government
was able to correct the issue.
NSA determined that a possible solution to the compliance
problem was to stop conducting one specific type of upstream
collection. So ultimately we decided that the most effective
way to address the court's concerns was to stop collecting on
this basis. It's called the ``abouts'' portion of upstream
collection. And by ``abouts collection,'' I'm referring to
NSA's ability to collect communications where the foreign
intelligence target is neither the sender nor the recipient of
the communication that's made, but is referenced within the
communication itself. The FISA Court agreed with our solution
and approved the program as a whole on the basis of the NSA
proposal.
In short, what I'm trying to say here is that a compliance
issue was identified and after a great deal of hard work the
Department of Justice and the intelligence community proposed
to the FISA Court an effective solution that took the relevant
collection costs and compliance benefits into account, and the
court agreed with the proposed solution. That is how the
process works, and it works well.
Before I conclude, I would like to speak briefly about an
issue that has been the subject of much public discussion.
There have been requests, numerous requests, from both Congress
and the advocacy community for NSA to attempt to count the
number of United States persons whose communications have been
incidentally acquired in the course of FISA 702 collection.
During my confirmation hearing and in a subsequent hearing
before this committee, I committed to sitting down with Admiral
Rogers and the subject matter experts in the intelligence
community to understand why this has been so difficult.
Within my first few weeks on the job, I visited NSA,
discussed with Admiral Rogers and his technical people, and
followed through on my commitment. What I learned was that the
NSA has made--it's hard for me to say. They have made extensive
efforts.
[Laughter.]
``Herculean'' I think is the--say that again.
Mr. Rosenstein. Herculean.
Director Coats. Herculean. Herculean. All right. I had to
turn to----
Senator Risch. We know what you mean.
Director Coats. You know what I mean? I mean really tough
efforts, all right, to devise a counting strategy that would be
accurate and that would respond to the question that was asked.
But I also learned that it remains infeasible to generate an
exact, accurate, meaningful, and responsive methodology that
can count how often a U.S. person's communications may be
incidentally collected under 702.
I want to be clear here. To determine if communicants are
U.S. persons, NSA would be required to conduct significant
additional research trying to determine whether individuals who
may be of no foreign intelligence interest are U.S. persons.
And from my perspective as the Director of National
Intelligence, this raises two significant concerns.
First, I would be asking trained NSA analysts to conduct
intense identity verification research on potential U.S.
persons who are not targets of an investigation. From a privacy
and civil liberties perspective, I find this unpalatable.
Second, those scores of analysts that would have to be
shifted from key focus areas such as counterterrorism,
counterintelligence, counterproliferation, issues with nations
in which, such as North Korea, we need--and Iran--we need
continuous and critical intelligence missions. I can't justify
such a diversion of critical resources and the mass of critical
resources that we would need to try to attempt to reach this,
even without the ability to reach a definite number. I can't
justify that at a time when we face such a diversity of serious
threats.
And finally, even if we decided the privacy intrusions were
justified, and if I had unlimited staff to tackle this problem,
we still do not believe it is possible to come up with an
accurate, measurable result.
I'm aware that the Senate Intelligence Committee staff will
be meeting following this public hearing in a classified
session, and Admiral Rogers has instructed his experts to
address this issue in greater detail.
Before I wrap up my remarks, I want to provide one final
example that I have, for the purposes of today's hearing,
chosen to declassify using my authority as the Director of
National Intelligence to further illustrate the value of
Section 702. Before rising through the ranks to become at one
point the second in command of the self-proclaimed Islamic
State of Iraq and al-Sham, ISIS, Haji Iman was a high school
teacher and imam. His transformation from citizen to terrorist
caused the U.S. government to offer a $7 million reward for
information leading to him.
It also made him a top focus of the NSA's counterterrorism
efforts. NSA, along with its IC partners, spent over two years,
from 2014 to 2016, looking for Haji Iman. This search was
ultimately successful, primarily because of FISA Section 702.
Indeed, based almost exclusively on intelligence activities
under Section 702, NSA collected a significant body of foreign
intelligence about the activities of Haji Iman and his
associates.
Beginning with non-Section 702 collection, NSA learned of
an individual closely associated with Haji Iman. NSA used
collection permitted and authorized under Section 702 to
collect intelligence on the close associates of Haji Iman,
which allowed NSA to develop a robust body of knowledge
concerning the personal network of Haji Iman and his close
associates.
Over a two-year period, using FISA Section 702 collection
and in close collaboration with our IC partners, NSA produced
more intelligence on Haji Iman's associates, including their
location. NSA and its tactical partners then combined this
information, the Section 702 collection which was continuing
and other intelligence assets, to identify the reclusive Haji
Iman and track his movements.
Ultimately, this collaboration enabled U.S. forces to
attempt an apprehension of Haji Iman and two of his associates.
On March 24th, 2016, during the attempted apprehension
operation, shots were fired at the U.S. forces aircraft from
Haji Iman's location. U.S. forces returned fire, killing Haji
Iman and the other associates at that location. Subsequent
Section 702 collection confirmed Haji Iman's death.
As you can see from this sensitive example, Section 702 is
an extremely valuable intelligence collection tool and one that
is subject to a rigorous, effective oversight program. And
therefore, allow me to reiterate my call on behalf of the
intelligence community without hesitation, my call for
permanent reauthorization of the FISA Amendments Act without
further amendment.
Mr. Chairman, thank you for your patience and we would be
willing to be open to your questions.
[The prepared statement of Director Coats follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Burr. Thank you, Director Coats.
The Chair would recognize himself now for five minutes of
questions.
In 2012, I mentioned in my opening statement, Director of
National Intelligence Jim Clapper and Attorney General Eric
Holder wrote a letter to the Congressional leadership asking
Congress to pass a straight reauthorization of FISA. The
September 2012 statement of administration policy also urged
the same. This would be to Director Coats and AG Rosenstein:
Has the ODNI or the Department of Justice position changed at
all since the time of the February 2012 letter?
Director Coats. No. We strongly support the 2012 letter and
request.
Chairman Burr. Mr. Rosenstein.
Mr. Rosenstein. We agree 100 percent.
Chairman Burr. Great.
This is to Admiral Rogers and to Director McCabe. Since
Congress last authorized this authority in 2012, again, have
there been any instances involving a deliberate or intentional
compliance violation?
Admiral Rogers.
Admiral Rogers. Not that I'm aware of.
Chairman Burr. Director McCabe.
Director McCabe. No, sir.
Chairman Burr. Admiral Rogers, this is to you.
Admiral Rogers. Yes, sir.
Chairman Burr. If FISA 702 statutory authorities were to
end or even be diminished, what would be the impact on our
national security?
Admiral Rogers. I could not generate the same level of
insight that the Nation, our friends and allies around the
world count on with respect to counterterrorism,
counterproliferation. I could not, for example, be able to
recreate the insights on the Russian efforts to influence the
2016 election cycle. Without 702, we could not have produced
that level of insight.
Chairman Burr. This is a jump ball. April 26, 2017, the
Foreign Intelligence Surveillance Court, commonly known as
FISC, held that Section 702 certifications, including its
targeting and minimization procedures, are lawful both under
FISA statute and the Fourth Amendment.
As former Director Comey testified last month, the only
reason our laws even require the certification to cover, and I
quote, ``these non-Americans who aren't in our country'' is
because of their communications transiting U.S.-based networks
and systems. Yet others have suggested imposing a Fourth
Amendment warrant requirement on foreigners who are located
outside of the United States. This is really NSA and Justice:
Would imposing such a warrant requirement impact our national
security tools to protect America?
Mr. Rosenstein. He's deferring to me. I'll be happy to take
the ball.
Yes, it would, Senator. I think what's important to
recognize is that in the absence of Section 702 the Department
of Justice and the intelligence community, in every case in
which we wanted to obtain foreign intelligence information, to
collect against a particular target we'd be required to obtain
a court order that would need to be supported by probable
cause.
The consequence of that is, number one, it'd be very time-
consuming because these are very thorough investigations and we
produce very lengthy documents. In fact, Director McCabe and I
spend a fair amount of our time every morning reviewing a stack
of documents with our career agents and attorneys, in which
they have determined that it's appropriate to seek those
orders. So it'd be time-consuming, it would require a
significant commitment of resources, and in addition to that it
would require a showing of probable cause. And, as you know,
the probable cause showing which is required under the
Constitution in circumstances in which privacy interests of
Americans are at stake and it's required by the Fourth
Amendment, that's a relatively higher threshold than we require
for foreign intelligence information.
And so we think it's important, Senator, that we not apply
that Fourth Amendment constitutional standard to foreigners who
are not in the United States.
Chairman Burr. Thank you, Mr. Rosenstein.
Admiral Rogers, this is to you. There's a lot of news
reporting, much of it inaccurate, that characterizes Section
702 as a means of targeting U.S. persons. We know that
targeting U.S. persons is prohibited, as it is what is termed
``reverse targeting.'' Could you explain and clarify the
reverse targeting prohibition? And what does it prevent the IC
from targeting and collecting?
Admiral Rogers. So reverse targeting is designed to
preclude our ability to bypass the law. And what do I mean by
that? The law is expressly designed to ensure that we are not
using this legal framework as a capability to target U.S.
persons.
Reverse targeting is the following scenario: Say we're
interested in generating insight on U.S. person A. We know that
we can't get a Title I, we can't get a FISA warrant. So under
the idea of reverse targeting, the theory would be, well, why
don't you just target a foreign entity that that U.S. person
talks to, and then you'll get all the insights you want on the
U.S. person, but you'll have bypassed the court process, you'll
have bypassed the entire legal structure. 702 specifically
reminds us we cannot do that. We cannot use 702 as a vehicle to
bypass other laws or to target U.S. persons.
Chairman Burr. Can you--last question. Can you please
clarify for members and for the public, what's meant by
``incidental collection''?
Admiral Rogers. Incidental collection--and the statute
itself, if you read the law, the statute acknowledges that in
the execution of this framework we will encounter U.S. persons.
We call that incidental collection.
That happens under two scenarios. Number one, which is
about 90 percent of the time: We are monitoring two foreign
individuals, and those foreign entities talk about or reference
a U.S. person. The second scenario that we encounter what we
call incidental collection is we are targeting a valid foreign
individual and that valid foreign individual, a foreign
intelligence target, ends up having a conversation with a U.S.
person that's not the target of our collection. It's not why we
are monitoring it in the first place. We're interested in that
foreign target. That happens, of the times we have incidental
collection, that scenario happens about 10 percent of the time.
Chairman Burr. And were that incidental collection to
happen, do you have a procedure in place in both instances to
minimize that?
Admiral Rogers. We do. The law specifically gives a set of
processes that we have to follow. So if we do encounter a U.S.
person incidentally in the course of our collection, we ask
ourselves several questions. Number one, are we looking at
potential criminal activity? If we do that, we have a
requirement to report or to inform the Department of Justice
and the FBI, and they make the determination if it's illegal or
not. We are an intelligence organization, not a law enforcement
organization.
The second question we ask ourselves: Is there anything in
this conversation that would lead us to believe that we're
talking about harm to individuals? In that case, we do report
it. If we think we're dealing with something that is criminal
or there's harm to individuals, we report it.
Other than that, unless there is a valid intelligence
purpose, depending on the authority in a case of 702, we
specifically purge the data. We remove it. We don't put it into
our holdings. If we don't assess that there's intelligence
value and it's a U.S. person, we have to purge the data.
Chairman Burr. Thank you for that.
Vice Chairman.
Vice Chairman Warner. Thank you, Mr. Chairman.
As I indicated, I've got some questions on another matter
and, Director Coats and Admiral Rogers, they're mostly going to
be directed at you gentlemen. And thank you for your testimony
this morning.
We all know now that in March then-Director Comey testified
about the existence of an ongoing FBI investigation into links
between the Trump campaign and the Russian government. And
there are reports out in the press that the President
separately appealed to you, Admiral Rogers, and to you,
Director Coats, to downplay the Russia investigation. And now
we've got additional reports, and we want to give you a chance
to confirm or deny these, that the President separately
addressed you, Director Coats, and asked you to, in effect,
intervene with Director Comey, again to downplay the FBI
investigation.
Admiral Rogers, you draw the short straw. I'm going to
start with you. Before we get to the substance of whether this
call or request was made, you've had a very distinguished
career, close to 40 years. In your experience, would it be in
any way typical for a President to ask questions or bring up an
ongoing FBI investigation, particularly if that investigation
concerns associates and individuals that might be associated
with the President's campaign or his activities?
Admiral Rogers. So today I am not going to talk about
theoreticals. I am not going to discuss the specifics of any
interaction or conversations I may or may not----
Vice Chairman Warner. Can you----
Admiral Rogers. If I could finish, please--that I may or
may not have had with the President of the United States. But I
will make the following comment. In the three-plus years that I
have been the Director of the National Security Agency, to the
best of my recollection I have never been directed to do
anything I believe to be illegal, immoral, unethical, or
inappropriate. And to the best of my recollection, during that
same period of service I do not recall ever feeling pressured
to do so.
Vice Chairman Warner. But in your course prior to the
incident that we're going to discuss, was it in any regular
course where a President would ask you to comment or intervene
in any ongoing FBI investigation? Not talking about this
circumstance, but is there any prior experience with that?
Admiral Rogers. I'm not going to talk about theoreticals
today.
Vice Chairman Warner. Well, let me ask you specifically.
Did the President--the reports that are out there--ask you in
any way, shape, or form to back off or downplay the Russia
investigation?
Admiral Rogers. I'm not going to discuss the specifics of
conversations with the President of the United States, but I
stand by the comment I just made to you, sir.
Vice Chairman Warner. Do you feel that those conversations
were classified? We know that there was an ongoing FBI
investigation.
Admiral Rogers. Yes, sir.
Vice Chairman Warner. There are press reports.
Admiral Rogers. Yes, sir.
Vice Chairman Warner. I understand your answer. I'm
disappointed with that answer, but I may indicate--and I told
you I was going to bring this up--there is----
Admiral Rogers. Yes, sir.
Vice Chairman Warner. We have facts that there were other
individuals that were aware of the call that was made to you,
aware of the substance of that call, and that there was a memo
prepared because of concerns about that call.
Will you comment at all about the----
Admiral Rogers. I stand by the comments that I have made to
you today, sir.
Vice Chairman Warner. So you will not confirm or deny the
existence of a memo?
Admiral Rogers. I stand by the comments I have made to you
today, sir.
Vice Chairman Warner. I think it will be essential, Mr.
Chairman, that that other individual, who has served our
country as well with great distinction, who's no longer a
member of the Administration, has a chance to relay his version
of those facts.
Again, I understand----
Admiral Rogers. Yes, sir.
Vice Chairman Warner [continuing]. Your position, but I
hope you'll also understand the enormous need for the American
public to know. You've got the Administration saying there's no
there there, we have these reports, and yet we can't get
confirmation.
I want to go to you, Director Coats. When you appeared
before SASC, you said, and I quote, ``If called before the
investigative committee, I certainly will provide them with
what I know and what I don't know.'' I have great respect for
you. You served on this committee. I remember as well when we
confirmed you, and I was proud to support your confirmation,
you said that you would cooperate with this committee in any
aspects that we request of the Russia investigation.
We now have press reports, and you can lay them to rest if
they're not true, but we have press reports of, not once, but
twice, that the President of the United States asked you to
either downplay the Russia investigation or to directly
intervene with Director Comey. Can you set the record straight
about what happened or didn't happen?
Director Coats. Well, Senator, as I responded to a similar
question during my confirmation and in a second hearing before
the committee, I do not feel it's appropriate for me to, in a
public session in which confidential conversations between the
President and myself--I don't believe it's appropriate for me
to address that in a public session.
Vice Chairman Warner. Gentlemen, I understand----
Director Coats. I stated that before and I----
Vice Chairman Warner. Well, I thought you also said at
SASC, if brought before the investigative committee, you would,
quote, ``certainly provide them with what I know and what I
don't know.'' We are before that investigative committee.
Director Coats. Well, I stand by my previous statement that
we are in a public session here and I do not feel that it is
appropriate for me to address confidential information. Most of
the information I've shared with the President obviously is
directed toward intelligence matters during our Oval briefings
every morning at the White House, or most mornings when both
the President and I am in town.
But for intelligence-related matters or any other matters
that have been discussed, it is my belief that it's
inappropriate for me to share that with the public.
Vice Chairman Warner. Gentlemen, I respect all of your
service, and I understand and respect your commitment to the
Administration you're serving. We will have to bring forward
that other individual about whether the existence of the memo
that may document some of the facts that took place in the
conversation between the President and Admiral Rogers.
But I would only ask, as we go forward--this is my final
comment, Mr. Chairman--that we also have to weigh in here the
public's absolute need to know. They're wondering what's going
on. They're wondering what type of activities.
We see this pattern that, without confirmation or denial,
appears that the President, not once, not twice, but we will
hear from Director Comey tomorrow, this pattern where the
President seems to want to interfere or downplay or halt the
ongoing investigation, not only that the Justice Department's
taking on, but this committee's taking on.
And I hope as we move forward on this you'll realize the
importance, that the American public deserves to get the
answers to these questions.
Thank you, Mr. Coats.
Director Coats. Well, Senator, I would like to respond to
that, if I could. First of all, I'm always--I told you and I
committed to the committee that I would be available to testify
before the committee. I don't think this is the appropriate
venue to do this in, given that this is an open hearing, and a
lot of confidential information relative to intelligence or
other matters--I just don't feel it's appropriate for me to do
that in this situation.
And then, secondly, when I was asked yesterday to respond
to a piece that I was told was going to be written and printed
in the Washington Post this morning, my response to that was,
in my time of service which is in interacting with the
President of the United States or anybody in his
Administration, I have never been pressured, I've never felt
pressure to intervene or interfere in any way with shaping
intelligence in a political way, or in relationship to an
ongoing investigation.
Vice Chairman Warner. All I'd say, Director Coats, is there
was a chance here to lay to rest some of these press reports.
If the President is asking you to intervene or downplay--you
may not have felt pressure, but if he is even asking, to me
that is a very relevant piece of information.
And again, at least in terms of the conversation with
Admiral Rogers, I think we will get at least some--another
individual's version. But at some point, these facts have to
come out.
Thank you, Mr. Chairman.
Chairman Burr. Senator Risch.
Senator Risch. Well, thank you very much, Mr. Chairman.
Thank you, Senator Coats--excuse me, Director Coats, and
Admiral Rogers, for your testimony. With all due respect to my
colleague from Virginia, I think you have cleared up
substantially your direct testimony that you have never been
pressured by anyone, including the President of the United
States, to do something illegal, immoral, or anything else.
Thank you for that.
Let's go back to----
Director Coats. Thank you, Senator.
Senator Risch. Let's go back to Section 702, which is what
this hearing was supposed to be all about. It's becoming
patently obvious, I think, to those of us that work in the
intelligence community that we're in a different position than
Europe is. Europe, their risks are obviously very high and
they're suffering these attacks on a very regular basis, and
becoming more regular.
So let's talk about our collection efforts versus the
European collection efforts and particularly as it relates to
Section 702. And obviously we hear in the media frequently
about spats between us and the Europeans regarding intelligence
matters. But we all know that there is a robust communication
and cooperation between our European friends and ourselves. So
I want to talk about it in--I want to talk about 702 in that
respect.
Why don't we start, Director Coats, with you and then I'll
throw it up for anybody else who wants to comment on this. How
important is 702, the continuation of Section 702 and its
related parts, to doing what we have been doing as far as
helping the Europeans and the Europeans helping us and doing
the things that we're doing here in America to see that we
don't have the kind of situations that have been recently
happening in Europe?
Director Coats, start with you.
Director Coats. Well, having just returned a few weeks ago
from major capitals in Europe and discussing this very issue
with my counterparts throughout the intelligence communities of
these various countries, they voluntarily, before I could even
ask the question, expressed extreme gratitude for the ability--
for the information we have been able to share with them
relative to threats. Numerous threats have been avoided on the
basis of collection that we have received through 702
authorities and our notification of them of these impending
threats, and they have been deterred or intercepted.
Unfortunately, what has happened just recently,
particularly in England, shows that, regardless of how good we
are, there are bad actors out there that have bypassed the more
concentrated, large attack efforts and taken it, either through
inspiration or direction from ISIS or other terrorist groups--
have chosen to take violent action against the citizens of
those countries.
The purpose of the trip was to ensure them that that we
would continue to work and share together. Their collection
activities, capabilities, in many cases are good, but in some
cases lack the ability that we have. And so this ability to
share information with them that helps keep their people safe
also is highly valued by them.
But I don't think we should take for granted that, just
because Europe has been the recent target of these attacks,
that the United States is safe from that. We know through
intelligence that there is plotting going on and we know that
there's lone-wolf issues and individuals that are taking
instructions from ISIS through social media or that, for
whatever reason, are copycatting what is happening. And so that
threat exists here also.
And let me lastly say that the nations that I've talked to,
many of which have been extremely concerned about violating
privacy rights, have initiated new procedures and legislation
and mandates relative to getting the intelligence agencies
better collection, because they think they need it to protect
their citizens.
Senator Risch. Thank you very much.
In just the few seconds that I've got left, Mr. Rosenstein,
could you tell me, please--we get a lot of pushback from the
privacy people, and we've now heard testimony that there's been
no intentional violation over the 10 years. Could you tell the
American people what's in store for someone who these guys
catch intentionally misusing 702, since you're the highest
ranking member of the Department of Justice here?
Mr. Rosenstein. Yes, Senator. I can assure you, Senator,
that in Department of Justice we treat with great seriousness
any allegations of violations regarding classified information.
So if there were a credible allegation that someone had
willfully violated Section 702 in a way that was in violation
of a criminal law, we would investigate that case and if
prosecution were justified we would prosecute it.
I know Director McCabe shares with me that commitment. And
we recognize that we have an obligation to the American people
to make sure that these authorities are used appropriately and
responsibly, that we comply with the Constitution and the laws
and the procedures. And we're committed to devote whatever
resources are required to make sure that, if there are willful
violations, people are held accountable for them.
Senator Risch. And this is your commitment, and the
Department of Justice's commitment, to the American people?
Mr. Rosenstein. That's correct.
Senator Risch. Thank you, Mr. Rosenstein.
Mr. Rosenstein. Thank you.
Senator Risch. Thank you, Mr. Chairman.
Chairman Burr. Senator Feinstein.
Senator Feinstein. Thanks. Thank you, Mr. Chairman.
Just a couple of comments on Section 702. It's a program
that I support. It's a program that I believe has worked well.
It's a big program. It's an important one. It is a content
collection program involving both internet and phone
communications, so it can raise concerns about privacy and
civil liberties.
In the year 2016, there were 106,469 authorized targets out
of 3 billion internet users. That's the ratio. The question of
unmasking has been raised. It's my understanding that 1,939
U.S. person identities were unmasked in 2016 based on
collection that occurred under Section 702.
So my question is going to be the following, and I'll ask
it all together and hopefully you'll answer it. I would like a
description of the certification process and the use of an
amicus. I would like your response to the fact that--the
program sunsets after five years--about raising that sunset
versus no sunset. Because of the privacy concerns, it's my
belief there should be a sunset--and the use of an amicus,
which is currently used as part of the certification process,
and whether that should be continued and formalized.
So, Admiral, the program's under your auspices.
Admiral Rogers. If I could, DOJ is going to be smarter on
the amicus piece, please.
Senator Feinstein. Okay.
Admiral Rogers. Will you take that piece?
Mr. Rosenstein. I'm not sure I am smarter on the amicus
piece, Senator. I can tell you this, though, that with regard
to the question of unmasking--now, this is actually primarily a
question not for the Department. The determination is made by
the intelligence agencies if there is a situation where a
foreign person has been communicating about an American person,
and a decision is made whether or not the identity of the
American person is necessary in order for that intelligence to
be properly used.
I think what's important for people to recognize, Senator,
is that's an internal issue. That is, that unmasking is done
internally, you know, within the cloak of confidentiality
within the intelligence community. That's a different issue
from leaks. In other words, if somebody's identity is disclosed
internally because it's relevant for intelligence purposes,
because that's the goal of this collection, is to understand--
--
Senator Feinstein. Mr. Rosenstein, let me just tell you, I
just listened to somebody who should have known better talking
about unmasking in a political sense, that it's done
politically. And that of course is not the case. And so what
I'm looking for is the definition of how this is done and under
what circumstances.
Mr. Rosenstein. Right. And I think, Senator, that, because
that's really a decision made by the IC, the intelligence
community, not by the Department, it would be appropriate for
them to respond to that.
Admiral Rogers. I can do that. So, with respect to
unmasking, the following criteria apply. First, for the
National Security Agency, we define in writing who has the
authority to unmask a U.S. person identity. That is 20
individuals in 12 different positions. I am one of the 20 in
one of those 12 positions, the Director.
Secondly, we outline in writing what the criteria that will
be applied to a request to unmask in a report. And again, part
of our process under 702 to protect the identity of U.S.
persons, as part of our ``minimization procedures,'' when we
think we need to reference a U.S. person in a report, we will
not use a name. We will not use an identity. We say, ``U.S.
Person One, U.S. Person Two, U.S. Person Three.''
That report is then promulgated. Some of the recipients of
that report will sometimes come back to us and say, ``I'm
trying to understand what I am reading. Could you help me
understand who is Person One or who is Person Two, et cetera?''
We apply two criteria in response to their request. Number one,
you must make the request in writing. Number two, the request
must be made on the basis of your official duties, not the fact
that you just find this report really interesting and you're
just curious. It has to tangibly tie to your job. And then
finally--I said two, but there's a third criterion, and that is
the basis of the request must be that you need this identity to
understand the intelligence you're reading.
We apply those three criteria, we do it in writing, and one
of those 20 individuals then agrees or disagrees. And if we
unmask, we go back to that entity who requested it--not every
individual who received the report, but that one entity who
asked for us. We then provide them the U.S. identity, and we
also remind them the classification of this report and the
sensitivity of that identity remains in place. By revealing
this U.S. person to you, we are doing it to help you understand
the intelligence, not--not--so that you can use that knowledge
indiscriminately. It must remain appropriately protected.
Senator Feinstein. Thank you.
Director Coats. And, Senator, if I could just add something
to that. Given the nature of this issue--and it's a legitimate
question that you've asked--I've talked with my colleagues at
NSA and CIA, FBI and so forth, suggesting that we might ask our
civil liberties and privacy protection agencies to take a look
at this, to see if there--Admiral Rogers laid out the
procedures. Are these the right procedures, should we be doing
something different, would they have recommendations that
better protected people from misuse of this? So--and they've
all agreed to do that. So I think it's a legitimate issue to
follow up on. I've talked to the agency heads about doing so,
and they're willing to do it.
Admiral Rogers. And if I could, I also have an internal
review that I have directed. Given all the attention, given the
focus, let's step back, let's reassess this and let's ask
ourselves, is there anything that would suggest we need to do
something different in the process?
Senator Feinstein. Good, good. Thank you.
Mr. Rosenstein. Mr. Chairman, with your permission I'd like
to more thoroughly answer the first question the Senator asked,
which is that, Senator Feinstein, my understanding is that an
amicus was used in 2015, and that decision was made by the
court, the Foreign Intelligence Surveillance Court, which has
the statutory authority, if the court believes it's appropriate
in a particular case, to appoint an amicus. So my understanding
is that that was done in 2015. Thank you.
Senator Feinstein. Well, would you feel it would be helpful
to make it a part of the regular certification process?
Mr. Rosenstein. Well, my understanding, Senator, is that
the statute permits the court to do it if the court believes
it's appropriate. So I believe the court has that authority,
and I'd leave it to the judges to decide when it's appropriate
to exercise that.
Senator Feinstein. Thank you.
Thanks, Mr. Chairman.
Chairman Burr. Senator Rubio.
Senator Rubio. Thank you all for being here. I understand
fully the need of the President of the United States to be able
to have conversations with members of the intelligence
community that are protected, particularly in a classified
setting.
I also understand that the ability of this community to
function depends both on its credibility that its work that
it's doing is in the national security interest of the United
States, and also the importance of its independence--that it is
not an extension of politics, no matter which administration is
at play.
And the absence of either one of those two things impacts
everything we do, including this debate we're having here
today. And the challenge that we have now is that, while the
folks here with us this morning are constrained in what they
can say, there are people that work--apparently work for you
that are not, and are constantly speaking to the media about
things and saying things.
And it puts the Congress in a very difficult position,
because the issue of oversight on both your independence and on
your credibility falls on us. I actually think if what is being
said to the media is untrue, then it is unfair to the President
of the United States. And if it is, then it is--that if it is
true, that it is something the American people deserve to know
and we as an oversight committee need to know in order to
conduct our job.
And so my questions are geared to Director Coats and
Admiral Rogers. You have testified that you have never felt
pressured or threatened by the President or by anyone to
influence any ongoing investigation by the FBI. Are you
prepared to say that you have never felt--that you've never
been asked by the President or the White House to influence an
ongoing investigation?
Director Coats. Well, Senator, I just hate to keep
repeating this, but I'm going to do it. I am willing to come
before the committee and tell you what I know and what I don't
know. What I'm not willing to do is to share what I think is
confidential information that ought to be protected in an open
hearing. And so I'm not prepared to answer your question today.
Senator Rubio. Director Coats, I would just say, and with
the incredible respect that I have for you, I am not asking for
classified information. I am asking whether or not you have
ever been asked by anyone to influence an ongoing
investigation.
Director Coats. I understand, but I'm just not going to go
down that road----
Senator Rubio. Okay.
Admiral----
Director Coats [continuing]. In a public forum.
And I also was asked the question, if the special
prosecutor called upon me to meet with him to ask his
questions. I said I would be willing to do that.
Admiral Rogers. I likewise stand by my previous comment.
Senator Rubio. Okay. Well then, in the interest of time let
me ask both of you, has anyone ever asked you, now or in the
past, this Administration or any administration, to issue a
statement that you knew to be false?
Admiral Rogers. For me, I stand by my previous statement.
I've never been directed to do anything in the course of my
three-plus years as the director of the National Security
Agency----
Senator Rubio. Not directed. Asked.
Admiral Rogers [continuing]. That I felt to be
inappropriate, nor have I felt pressured to do so.
Senator Rubio. Have you ever been asked to say something
that isn't true?
Admiral Rogers. I stand by my previous statement, sir.
Senator Rubio. Director Coats.
Director Coats. I do likewise.
Senator Rubio. Well, let me ask this of everyone on this
panel. Is anyone aware of any effort by anyone, in the White
House or elsewhere, to seek advice on how to influence any
investigation?
Mr. Rosenstein. My answer is absolutely no, Senator.
Senator Rubio. No one has anything to add to that?
Admiral Rogers. I don't understand the question.
Senator Rubio. The question is, are you aware of any
efforts by anyone in the White House or the Executive Branch
looking for advice from other members of the intelligence
community about how to potentially influence an investigation?
Admiral Rogers. Are you talking about me? No.
Director Coats. No.
Senator Rubio. Okay.
Who wants to answer? I'm sorry.
Director McCabe. I'm not sure I understand the question,
but if you're asking whether I'm aware of requests to other
people in the intelligence community, I am not.
Senator Rubio. Seeking advice on how he could potentially
influence someone. You're not aware----
Director McCabe. I'm not aware of it.
Senator Rubio [continuing]. Of anyone ever saying or
reporting that to you?
Director McCabe. No, sir.
Senator Rubio. Has anyone ever come forward and said, ``I
just got a call from someone at the White House asking me what
is the best way to influence someone on an investigation''?
Director Coats. I've never received anything.
Admiral Rogers. I have no direct knowledge of such a call.
Senator Rubio. It was an allegation made in one of the
press reports and that's why I asked.
On a separate topic--I'm sorry.
Mr. Rosenstein.
Mr. Rosenstein. Our confusion, Senator. We just want to
make sure we're clear on the question. The answer is no, as I
understand it. But I'm not sure I'm familiar with the
particular media report that you're referring to.
Senator Rubio. All right. I'm running out of time. I do
want to ask this, because this is important. Did the NSA
routinely and extensively and repeatedly violate the rules that
were put in place in 2011 to minimize the risk of collection of
upstream information?
Admiral Rogers. Have we had compliance incidents? Yes. Have
we reported every one of those to the court? Yes. Have we
reported those to our Congressional oversight in Congress? Yes.
Have we reported those to the Department of Justice and the
Director of National Intelligence? Yes.
Senator Rubio. Did--under the Obama Administration, was
there a significant uptick in efforts--in incidents of
unmasking, from 2012 to 2016?
Admiral Rogers. I don't know that. I'd have to take that
for the record, to be honest.
Senator Rubio. Who would know that?
Admiral Rogers. We have the data, but I don't know that off
the top of my head. I couldn't tell you unmasking on a year-by-
year basis for the last five years. I apologize, I just don't
know off the top of my head.
Senator Rubio. Thank you.
Chairman Burr. Senator Wyden.
Senator Wyden. Thank you very much, Mr. Chairman.
I've noted the conversations you've had with my colleagues
with respect to the content of conversations that you may have
had with the President. My question is a little different. Did
any of you four write memos, take notes, or otherwise record
yours or anyone else's interactions with the President related
to the Russia investigation?
Director Coats. I don't take any notes.
Senator Wyden. Let's just get the four of you on the
record.
Mr. Rosenstein. Senator, I rarely take notes. I've actually
taken a few today. But I am not going to answer questions
concerning the Russia investigation. I think it's important for
you to understand, when I----
Senator Wyden. Not on whether you wrote a memo.
Mr. Rosenstein. I'm not going to answer any questions,
Senator, about the Russia----
Senator Wyden. Okay. My time's going to be short.
Whether you wrote a memo, notes, anything?
Director McCabe. I also am not going to comment on any
conversations I may have had or notes taken or not taken
relative to the Russia investigation.
Senator Wyden. Okay.
Admiral Rogers. And likewise, I take the same position.
Senator Wyden. Director Coats, on March 23rd you testified
to the Armed Services Committee that you were not aware of the
President or White House personnel contacting anyone in the
intelligence community with a request to drop the investigation
into General Flynn. Yesterday, the Washington Post reported
that you had been asked by the President to intervene with
Director Comey to back off of the FBI's focus on General Flynn.
Which one of those is accurate?
Director Coats. Senator, I will say once again I'm not
going to get into any discussion on that in an open hearing.
Senator Wyden. Both of them can't be accurate, Mr.
Director.
Mr. Director, as recently as April you promised Americans
that you would provide what you called a ``relevant metric''
for the number of law-abiding Americans who are swept up in the
FISA 702 searches. This morning, you went back on that promise
and you said that even putting together a sampling, a
statistical estimate, would jeopardize national security. I
think that is a very, very damaging position to stake out.
We're going to battle it out in the course of this, because
there are a lot of Americans who share our view that security
and liberty are not mutually exclusive. We can have both. And
you rejected that this morning. You went back on a pledge, and
I think it is damaging to the public. Now, let me----
Director Coats. Senator, could I answer the question?
Senator Wyden. Mr. Director, my time is short and I want to
ask you about one other----
Director Coats. Well, I would like to answer your question.
Senator Wyden. Briefly.
Director Coats. What I pledged to you in my confirmation
hearing is that I would make every effort to try to find out
why we were not able to come to a specific number of collection
on U.S. persons. I told you I would consult with Admiral
Rogers. I told you I would go to the National Security Agency
to try to determine whether or not I was able to do that.
I went out there. I talked to them. They went through the
technical details. There were extensive efforts on the part of,
I learned, on the parts of NSA to try to come to, to get you an
appropriate answer. We were not able to do that.
Senator Wyden. Mr. Director, respectfully, that's not what
you said. You said, and I quote, ``We are working to produce a
relevant metric.''
Now, let me go to my other question----
Director Coats. We were, but we were not able to do that,
to achieve it.
Senator Wyden. You told----
Director Coats. Working to do it is different than doing
it.
Senator Wyden. You told the American people that even a
statistical sample would be jeopardizing America's national
security. That is inaccurate and I think detrimental to the
cause of ensuring we have both security and liberty.
Now, here's my other question. We are trying to sort out--
---
Senator McCain. Can the witness respond?
Senator Wyden [continuing]. Who are the targets, who are
the targets of a 702 investigation. Director Comey gave three
different answers in a hearing a month ago, and I think it
would be very helpful if you would tell us who in fact is a
target of these investigations.
I want to go after serious foreign threats, but we don't
know as of now, with Director Comey having given three
different answers, who the targets are.
Mr. Director.
Director Coats. Well, I can't speak for Director--former
Director Clapper. Targets, as I understand, are non-U.S.
persons. Foreign individuals are the targets in terms--702 is
directed and prohibited from directing targets on U.S. persons.
Senator Wyden. My time is up. I will tell you, Director
Comey gave three answers. He finally said: ``I could be wrong,
but I don't think so. I think it's confined to
counterterrorism, to espionage.'' And finally he said he didn't
think a diplomat could be targeted.
So we need you all, in addition to protecting the liberties
of the American people, to tell us who the targets are.
Thank you, Chairman.
Director Coats. Well, I would like to respond to that by
saying some of those targets are classified, highly classified.
Senator Wyden. I understand that.
Director Coats. Some of those targets, by revealing those
names of those targets, release the methods that we use, and
then it's turned against us and could cost the lives--or put
some of our agents in significant----
Senator Wyden. Director Comey listed a number of targets,
which is why there's confusion. He said that on the record. We
need you to tell us on the record as well, consistent with
protecting sources and methods.
Chairman Burr. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Director Coats, first let me thank you for a very cogent
explanation of Section 702 and the fact that it cannot be used
to target any person located in the United States, whether or
not that person is an American. I think there's a lot of
confusion about Section 702, and I appreciate your clear
explanation this morning.
Director Coats. Thank you.
Senator Collins. I have a question for each of you that I
would like to ask and I want to start with Admiral Rogers.
Admiral Rogers, did anyone at the White House direct you on how
to respond today or were there discussions of executive
privilege?
Admiral Rogers. Have I asked the White House is it their
intent to invoke executive privilege? Yes. The answer I gave
you today reflects my answer, no one else's.
Senator Collins. Director Coats.
Director Coats. My answer is exactly the same.
Senator Collins. Deputy Attorney General Rosenstein?
Mr. Rosenstein. I have not had any communications with the
White House about invoking executive privilege today.
Senator Collins. Director McCabe.
Director McCabe. I have not had any conversations with the
White House about executive privilege today either.
Senator Collins. Admiral Rogers, in January the FBI, the
CIA, and NSA jointly issued an Intelligence Committee
Assessment on Russian involvement in the presidential
elections. You've testified today that the IC relied in part on
702 authorities to support its conclusion that the Russians
were involved in trying to influence the 2016 elections. Can
you provide us with an update on NSA's further work in this
area?
Admiral Rogers. In terms of the Russian efforts largely?
Senator Collins. Yes.
Admiral Rogers. Yes, ma'am. We continue to focus analytic
and collection effort trying to generate insights as to what
the Russians and others are doing, particularly with respect to
efforts against U.S. infrastructure, U.S. processes like
elections. We continue to generate insights on a regular basis.
If my memory is right, I testified before the SSCI that we
did the open threat assessment, and in that hearing, which I
think was the 11th of May, I reiterated, we continue to see the
similar activity that we identified and highlighted in the
January report. Those trends continue. Much of that activity
continues.
Senator Collins. It's my understanding that President Obama
requested the report that was issued in January. Is that
correct?
Admiral Rogers. Yes, ma'am. He asked for a consolidated
single input from the IC as to the question, did the Russians
or did they not attempt to influence the U.S. election?
Senator Collins. So could you explain the difference
between the request from President Obama for that unclassified
assessment and the allegations that President Trump requested
that you publicly report on whether or not there was any
intelligence concerning collusion between the Russians and the
members of the Trump campaign, President Trump's campaign?
Admiral Rogers. So I apologize, I guess I'm confused by the
question. Again, I'm not going to comment on any interactions
with the President. I just don't feel that that is appropriate.
As I previously testified, I stand by that report.
Senator Collins. Let me ask a broader question that I truly
am trying to get a handle on. And that is, how does the
intelligence community reach a decision on whether or not to
comply with a request that comes from the President of the
United States?
Obviously, you report to the President of the United
States. And I'm interested in what process you go through to
decide whether or not to undertake a task that's been assigned
by the President, by any President.
Admiral Rogers. So, off the top of my head, I would say we
comply unless we have reason to believe that we are being
directed to do something that is illegal, immoral or unethical.
Senator Collins. Thank you.
Admiral Rogers. In which case, we will not execute that.
Chairman Burr. Senator Heinrich.
Senator Heinrich. Director McCabe, did Director Comey ever
share details of his conversations with the President with you?
In particular, did Director Comey say that the President had
asked for his loyalty?
Director McCabe. Sir, I'm not going to comment on
conversations the Director may have had with the President. I
know he's here to testify in front of you tomorrow. You'll have
an opportunity to ask him those----
Senator Heinrich. I'm asking you, did you have that
conversation with Director Comey?
Director McCabe. And I've responded that I'm not going to
comment on those conversations.
Senator Heinrich. Why not?
Director McCabe. Because--for two reasons. First, as I
mentioned, I'm not in a position to talk about conversations
that Director Comey may or may not have had with the President.
Senator Heinrich. I'm not asking you that. I'm asking about
conversations that you had with Director Comey.
Director McCabe. And I think that those matters also begin
to fall within the scope of issues being investigated by the
special counsel and wouldn't be appropriate for me to comment
on today.
Senator Heinrich. So you're not invoking executive
privilege, and obviously it's not classified. This is the
oversight committee. Why would it not be appropriate for you to
share that conversation with us?
Director McCabe. I think I'll let Director Comey speak for
himself tomorrow in front of this committee.
Senator Heinrich. We certainly look forward to that. But I
think your unwillingness to share that conversation is an
issue.
Director Coats, you've said as well that it would be
inappropriate to answer a simple question about whether the
President asked for your assistance in blunting the Russia
investigation.
I don't care how you felt. I'm not asking whether you felt
pressured. I'm simply asking, did that conversation occur?
Director Coats. And once again, Senator, I will say that I
do believe it's inappropriate for me to discuss that in an open
session.
Senator Heinrich. You realize--and obviously this is not
releasing any classified information. But you realize how
simple it would simply be to say, ``No, that never happened''?
Why is it inappropriate, Director Coats?
Director Coats. I think conversations between the President
and myself are for the most part----
Senator Heinrich. You seem to apply that standard
selectively.
Director Coats. No, I'm not applying it selectively. I'm
saying I don't think it's appropriate----
Senator Heinrich. You could clear an awful lot up by simply
saying that it never happened.
Director Coats. I don't share--I do not share with the
general public conversations that I have with the President or
many of my colleagues within the Administration that I believe
should not be shared.
Senator Heinrich. Well, I think your unwillingness to
answer a very basic question speaks volumes.
Director Coats. It's not a matter of unwillingness----
Senator Heinrich. Mr. Rosenstein----
Director Coats. Senator. It's a matter----
Senator Heinrich. It is a matter of unwillingness.
Director Coats. It's a matter of how I share it and whom I
share it to. And when there are ongoing investigations, I think
it's inappropriate to----
Senator Heinrich. So you don't think the American people
deserve to know the answer to that question?
Director Coats. I think the investigations will determine
that. And your part of the investigation----
Senator Heinrich. Mr. Rosenstein, did you know, when you
wrote the memo that was used as the primary justification for
firing Director Comey, that the Administration would be using
it as the primary justification?
Mr. Rosenstein. Senator, as I know you're aware, I have--
there are a number of documents associated with me that are in
the public record. The memorandum I wrote concerning Director
Comey is in the public record.
The order appointing the special counsel is in the public
record. The press release I issued accompanying that order is
in the public record. And a written version of the statement
that I delivered to 100 United States Senators----
Senator Heinrich. Were you aware that it would be the
primary justification for his firing by the----
Mr. Rosenstein. Pardon me, Senator--100 United States
Senators and 435 Congressmen is in the public record. I
answered many questions in the closed briefings of the 100
Senators...
Senator Heinrich. But you're not answering this question.
Mr. Rosenstein. And as I explained in those briefings,
Senator, I support Mr. McCabe on this. We have a special
counsel who is investigating, now responsible for the Russia.--
--
Senator Heinrich. Okay. At this point you filibuster better
than most of my colleagues, so I'm going to move on to another
question and say that, given that the President stated that the
FBI Director--that his firing was in response to investigations
into Russia, which he made very clear in Lester Holt's
interviews, you've talked with both the President and the
Attorney General about this firing.
In light of Mr. Sessions' recusal, what role did the
Attorney General play in that firing? And was it appropriate
for him to write the letter that he wrote in this case?
Mr. Rosenstein. I'm not trying to filibuster, Senator. I
think I only took about 30 seconds. But I am not going to
comment on that matter. I'm going to leave it to Special
Counsel Mueller to determine whether that is within the scope
of his investigation. And I believe that it's appropriate for
Mr. McCabe and me to do that, and we recognize----
Senator Heinrich. Okay, so you can't comment on the recusal
and what's in, inside and outside the scope of that recusal?
Senator McCain. Mr. Chairman, we ought to let the witness
answer the question.
Mr. Rosenstein. I'm sorry. Your specific question is what's
in the recusal, and my understanding is the recusal you're
referring to is also in the public record, and I believe it
speaks for itself.
Senator Heinrich. Thank you, Mr. Chair.
Chairman Burr. Senator Blunt.
Senator Blunt. Director McCabe, on May the 11th when you
were before this committee, you said that there has been no
effort to impede the Russian investigation. Is that still your
position?
Director McCabe. It is, but let me clarify, Senator. I
think you're referring to the exchange that I had with Senator
Rubio. And my understanding--at least my intention in providing
that answer was whether or not the firing of Director Comey had
had a negative impact on our investigation. And my response was
then, and is now, that the FBI investigated and continues to
investigate, and now of course under the rubric of the special
counsel, the Russia investigation in an appropriate and
unimpeded way, before Director Comey was fired and since he's
been gone.
Senator Blunt. Well, I think, as I recall that
conversation, it was a discussion about whether there were
plenty of resources, whether the funding was adequate. And what
you were reported to have said--I haven't looked at the exact
transcript, but I have looked at the news article--was that you
were aware of no effort to impede the Russia investigation.
Director McCabe. We did talk about resource issues and
whether or not we had asked for additional resources to pursue
the investigation. And I believe my response at the time was we
had not asked for additional resources, and that we had
adequate resources to pursue the investigation. That was true
then. It's still true today.
Senator Blunt. And you would characterize your quote as
``no effort to impede the Russian investigation'' as still
accurate?
Director McCabe. That's correct.
Senator Blunt. On the 702 issue, when the FBI wants to
follow up on or pursue a U.S. person in or outside the United
States, what court do you go to get that to happen? Do you go
to the FISA Court as well?
Director McCabe. If we are seeking collection under 702?
Senator Blunt. No, if--well, if you're--how do you relate
to 702? Do you ever seek collection under 702?
Director McCabe. Sure, yes, we do. So when--well, so let me
step back just a minute. So, of course, when the FBI seeks
electronic surveillance collection on a U.S. person, we go to
the FISA Court and get a Title I FISA order to do so.
If we have an open, full investigation on a foreign person
in a foreign place and the collection is for the purpose of
collecting foreign intelligence, we can nominate that person or
that, as we refer to it internally, the selector, whether it's
an e-mail address or that sort of thing, we can nominate that
for 702 coverage. We convey that nomination to the NSA and they
pursue the coverage under their authority.
Senator Blunt. But you would be the person that would
pursue coverage for a U.S. person, either here or outside the
United States?
Director McCabe. That's correct, Senator.
Senator Blunt. You the FBI.
Director McCabe. We are the U.S. person agency, that's
right.
Senator Blunt. And, Admiral Rogers, Senator Feinstein
mentioned that last year 1,139 U.S. persons were, the phrase
we're using now, unmasked for some purpose. Is that a number
you agree with?
Admiral Rogers. It's in the 2016 ODNI-generated
transparency report. From memory, the number is actually 1,934,
from memory. I could be wrong.
Senator Blunt. I'm sorry, so I misheard. But 1,900. What
would the number have been in 2015?
Admiral Rogers. To be honest, I don't know. I'd have to
take that one for the record. I do know that we didn't start
with the transparency commitment that we made, partnering with
the DNI, we didn't start that until the latter end of 2015. So
the 2015 data that's been published as a matter of public
record is a subset of the entire calendar year; 2016 is the
first calendar year where we have published all the data for
the entire year.
Senator Blunt. Director Coats, do you have any information
on that?
Director Coats. Well, I've seen the number. I don't recall
what it was, and I just asked my staff if we have it----
Senator Blunt. All right. I guess what I'm asking, and you
can take this for the record, is was there an increase in 2016?
Did you have significantly more requests, based on your subset
in 2015, happen in 2016 than you had had----
Admiral Rogers. I don't know off the top of my head. We'll
take it for the record. But I will say this: 702 collection has
continued. The amount of total collection has increased,
generally, every year. It's more and more impactful for us. It
generates more and more value.
Senator Blunt. And when you have--when 702 generates
information that would indicate there was a U.S. person
involved in criminal activity, what do you do with that
information?
Admiral Rogers. We report it to either, to DOJ and the FBI,
because we're not a criminal organization.
Senator Blunt. And what--what do you do if you get that
information at DOJ, Mr. Rosenstein? Information from a 702
collection that clearly indicates there's a crime involving a
U.S. person.
Mr. Rosenstein. I hesitate only because that's actually an
FBI issue, so I would defer to Mr. McCabe.
Senator Blunt. All right.
Mr. McCabe.
Director McCabe. Sure. So we take that referral, and if
that's a U.S. person we begin to build an investigation aiming
towards Title I FISA collection.
Senator Blunt. With adequate protections for U.S. persons
in that entire chain----
Director McCabe. Of course.
Senator Blunt [continuing]. Of transmission of----
Director McCabe. Of course.
Senator Blunt [continuing]. Of material?
Director McCabe. That's right.
Senator Blunt. Thank you, Chairman.
Chairman Burr. Senator King.
Senator King. Thank you, Mr. Chairman.
First on 702, like Senator Feinstein, I want to express my
support for this important tool for our intelligence agencies.
I do have a concern, which we can discuss perhaps in closed
session, about the process by which American names which are
incidentally collected are then queried. I'm concerned by the
distinction between query and search and where we run into the
Fourth Amendment.
It strikes me as bootstrapping to say we collected it
legally under 702 and then we can go and look at these American
persons, and I believe that the Fourth Amendment imposes a
warrant requirement in between that step, which is not present
in the present process. We can discuss that at greater length.
Mr. McCabe, I'm puzzled by your refusal to answer Senator
Heinrich's question about a conversation you may have had with
Director Comey. What's the basis of your refusal to answer that
question?
Director McCabe. Sir, as I stated, I think, first, I can't
sit here and tell you whether or not those conversations that
you're referring to----
Senator King. Why not? Do you not remember them?
Director McCabe. No, no. I'm sorry, sir. I can't--I don't
know whether conversations along the lines that you've
described fall within the purview of what the special counsel
is now investigating.
Senator King. Is there some prohibition in the law that I'm
not familiar with that you can't discuss an item in--that
you've been asked directly a question?
Director McCabe. It would not be appropriate for me, sir,
to discuss issues that are potentially within the purview of
the special counsel's investigation.
Senator King. And that's the basis of your refusal to
answer this question?
Director McCabe. Yes, sir, that and knowing, of course,
that Director Comey will be sitting behind this table tomorrow.
Senator King. So it's your position that the special
counsel's entitled to ask you questions about this, but not an
oversight committee of the United States Congress?
Director McCabe. It is my position that I have to be
particularly careful about not stepping into the special
counsel's lane, as they have now been authorized by the
Department of Justice to investigate these matters.
Senator King. I don't understand why the special counsel's
lane takes precedence over the lane of the United States
Congress in an investigative and oversight committee. Can you
explain that distinction? Why does the special counsel get
deference and not this committee?
Director McCabe. Sir, I'd be happy to----
Senator King. Is there some legal basis for the
distinction?
Director McCabe. I would be happy to take that matter back,
to discuss it more fully with my general counsel and with the
Department. But right now that's the----
Senator King. On the record, I would like a legal
justification for your refusal to answer the question today,
because I think it's a straightforward question. It's not
involving discussions with the President; it's involving
discussions with Mr. Comey.
Gentlemen, Director Coats and Admiral Rogers, I think you
testified, Admiral Rogers, that you did discuss today's
testimony with someone in the White House?
Admiral Rogers. I said I asked did the White House intend
to invoke executive privileges associated with any interactions
between myself and the President of the United States.
Senator King. And what was the answer to that question?
Admiral Rogers. To be honest, I didn't get a definitive
answer, and both myself and the DNI are still talking----
Senator King. Then I'll ask both of you the same question.
Why are you not answering these questions? Is there an
invocation by the President of the United States of executive
privilege? Is there or not?
Admiral Rogers. Not that I'm aware of.
Senator King. Then why are you not answering?
Admiral Rogers. Because I feel it is inappropriate,
Senator.
Senator King. What you feel isn't relevant, Admiral. What
you feel isn't the answer. The answer is, why are you not
answering the questions? Is it an invocation of executive
privilege? If there is, then let's know about it. If there
isn't, answer the questions.
Admiral Rogers. I stand by the comments that I've made. I'm
not interested in repeating myself, sir. And I don't mean that
in a--contentious way.
Senator King. Well, I do mean it in a contentious way.
Admiral Rogers. Yes, sir.
Senator King. I don't understand why you're not answering
our questions. You can't--when you were confirmed before the
Armed Services Committee, you took an oath: Do you solemnly
swear to give the committee the truth, the full truth and
nothing but the truth, so help you God?
Admiral Rogers. I do.
Senator King. You answered yes to that.
Admiral Rogers. And I've also answered that those
conversations were classified, and it is not appropriate in an
open forum to discuss those classified conversations.
Senator King. What is classified about a conversation
involving whether or not you should intervene in the FBI
investigation?
Admiral Rogers. Sir, I stand by my previous comments.
Senator King. Mr. Coats, same series of questions. What's
the basis for your refusal to answer these questions today?
Director Coats. The basis is what I've previously
explained. I do not believe it is appropriate for me to get
into it----
Senator King. What's that basis? I'm not satisfied with ``I
do not believe it is appropriate'' or ``I do not feel I should
answer.'' I want to understand a legal basis. You swore that
oath to tell us the truth, the whole truth, and nothing but the
truth. And today, you are refusing to do so. What is the legal
basis for your refusal to testify to this committee?
Director Coats. I'm not sure I have a legal basis, but I'm
more than willing to sit before this committee during its
investigative process in a closed session and answer your
question.
Senator King. Well, we're going to be having a closed
session in a few hours. Do you commit to me that you're going
to answer these questions in a direct and unencumbered way?
Director Coats. Well, that closed session you're going to
have in a few hours involves the staff going over the
technicalities of a number of these issues and doesn't involve
us. But I----
Senator King. Well, is it your testimony that when you are
before this committee in a closed session, you will answer
these questions directly and unequivocally and without
hesitation?
Director Coats. I plan to do that. But I do have to work
through the legal counsel at the White House relative to
whether or not they're going to exercise executive privilege.
Senator King. Admiral Rogers, will you answer these
questions in a closed session?
Admiral Rogers. I likewise respond as the DNI has. I
certainly hope that that is what happens. I believe that's the
appropriate thing. But I do have to acknowledge, because of the
sensitive nature and the executive privilege aspects of this, I
need to be talking to the general counsel and the White House.
I hope we come to a position where we can have this dialogue. I
welcome that dialogue, sir.
Senator King. I hope so, too. And I would just add in
conclusion that both of you testified you had never been
pressured under three years. I would argue that you have waived
executive privilege by in effect testifying as to something
that didn't happen. And I believe you opened the door to these
questions. And it is my belief you are inappropriately refusing
to answer these questions today.
Thank you, Mr. Chairman.
Chairman Burr. Before I turn to Senator Lankford, let me
say that the Vice Chairman and I have had conversations with
Acting Attorney General Rosenstein when the special counsel was
named; and, as I had shared with the members of this committee
prior to that, that as we carried out an investigation there
would come a point in time, either with an investigation that
was currently ongoing at the FBI or, if there was a special
counsel, with the special counsel, where there would be avenues
that this committee could not explore.
And it was my hope that already the Vice Chair and I would
have had that conversation with the special counsel. We have
not. We have made the request. We intend to have it. And I
think that both of us anticipated that we would reach this
point at some point in the investigation. We are there, where
there are some things that will fall into the special counsel
and/or an active investigation.
Vice Chairman.
Vice Chairman Warner. Let me just say, though, that at this
point we've not had that conversation with Mr. Mueller. We've
not been waved off on any subject, and the way I'm hearing all
of you gentlemen is that Mr. Mueller has not waved you off from
answering any of these questions. Is that correct?
Director Coats. I've had no conversations with Mr. Mueller.
I've been out of the country for the last nine days----
Vice Chairman Warner. I would just----
Director Coats [continuing]. So I haven't had an
opportunity to talk to him.
Vice Chairman Warner. Because if you've not have questions
waved off with Mr. Mueller, I think, frankly--and I understand
your commitment to the Administration--but that Senator King,
Senator Heinrich and my questions deserve answers, and at some
point the American public deserves full answers.
Chairman Burr. I'm going to ask Mr. Rosenstein to address
that.
Mr. Rosenstein. Thank you, Mr. Chairman. And I'm sensitive
to your desire to keep our answers brief, and my full answer
actually would be very lengthy. But my brief answer, from my
perspective at the Department of Justice--and I've been there
for 27 years, and Mr. McCabe also is a career employee of the
Department of Justice--our default position is that when
there's a Justice Department investigation we do not discuss it
publicly.
That's our default rule, so nobody needs to----
Vice Chairman Warner. Is that the rule for the President of
the United States as well?
Mr. Rosenstein. I don't know what----
Vice Chairman Warner. Because that is what the questions
are being asked about, reports that nobody has laid to rest
here, that the President of the United States has intervened
directly in an ongoing FBI investigation. And we've gotten no
answer from any of you.
And frankly, we've at least heard from Director Coats and
Admiral Rogers that they've not been asked to recuse an answer
because of Director Mueller. And I don't understand why we
can't get that answer.
Mr. Rosenstein. So, I'm not answering for Director Rogers
or Director Coats. I'm answering for Director McCabe and myself
with regard to the Department of Justice.
Chairman Burr. Senator Lankford.
Senator Lankford. Director McCabe, can I ask you, do you
feel confident at this point the FBI is fully cooperating with
the special counsel for any requests in communication and
setting up of the coordination between the offices for
documents, work products, insights, anything the special
counsel as they're trying to get organized and get prepared for
the investigations they're taking on? Is everyone in the FBI
fully cooperating with special counsel?
Director McCabe. Absolutely, sir. I'm absolutely confident
of that. We have a robust relationship with the special
counsel's office, and we are supporting them with personnel and
resources in any way they request.
Senator Lankford. Thank you.
Admiral Rogers, this spring the NSA decided to stop doing
``about'' queries. That was a long conversation that's happened
there. It's now come out into public about that conversation,
that that was identified as a problem. The court agreed with
that and that has been stopped.
What I need to ask you is who first identified that as a
problem?
Admiral Rogers. The National Security Agency did.
Senator Lankford. Okay. So how did you report that?
Reported that to who? How did that conversation go once you
identified, we're uncomfortable with this type?
Admiral Rogers. So in 2016, I had directed our Office of
Compliance, let's do a fundamental baseline review of
compliance associated with 702.
Senator Lankford. Okay.
Admiral Rogers. We completed that effort, and my memory is
I was briefed on something like October the 20th. That led me
to believe the technical solution that we put in place is not
working with the reliability that's necessary here. I then,
from memory, went to the Department of Justice and then on to
the FISA Court at the end of October--I think it was something
like the 26th of October--and we informed the court: we have a
compliance issue here and we're concerned that there's an
underlying issue with the technical solution we put in place.
We told the court we were going to need some period of time
to work our way through that. The court granted us that time.
In return, the court also said: We will allow you to continue
702 under the 2016 authorizations, but we will not--will not
reauthorize 2017 until you show us that you have addressed
this.
We then went through an internal process, interacted with
the Department of Justice as well as the court, and by March we
had come to a solution that the FISA Court was comfortable
with. The court then authorized us to execute that solution and
also then granted us authority for the 2017 702 effort.
Senator Lankford. So you reported initially to the court,
this is an issue, or the court initially came to you and said,
we have an issue?
Admiral Rogers. I went to the court and said, we have an
issue.
Senator Lankford. And the court said, we agree, we have a
problem as well?
Admiral Rogers. Check.
Senator Lankford. And then it got held up, went through the
process of review, and then the court has now signed off on the
other 16?
Admiral Rogers. That is correct.
Senator Lankford. So how does this harm your collection
capabilities, to be able to not do the ``about'' collections?
Admiral Rogers. So I acknowledged that in doing this we
were going to lose some intelligence value. But my concern was
I just felt it was important; we needed to be able to show that
we are fully compliant with the law. And the technical solution
we had put in place I just didn't think was generating the
level of reliability. And as a result of that, I said we need
to make the change.
I will say this, and the FISA Court's opinion also says the
same thing. I also told the court at the time, if we can work
that technical solution in a way it generates greater
reliability, I would potentially come back to the Department of
Justice and the court to recommend that we reinstitute it. And
in fact the court acknowledged that in their certification.
Senator Lankford. When you say greater reliability, tell me
what you mean by that?
Admiral Rogers. Because it was generating errors. Our
Office of Compliance highlighted the specific number of cases
in 2016. And I thought to myself, clearly it's not working as
we think it is. We were doing queries unknowingly to the
operator in a handful of situations against U.S. persons. And I
just said, hey, that is not in accordance with the intent of
the law.
Senator Lankford. Yes. Clearly it's not only the intent;
it's the actual statute itself that----
Admiral Rogers. Correct, right.
Senator Lankford [continuing]. That we protect U.S. persons
unless this is foreign directed.
Admiral Rogers. Yes, sir.
Senator Lankford. So what I'm hearing from you is the
accountability system worked.
Admiral Rogers. Yes, sir.
Senator Lankford. That the issue rose up, we're collecting,
we do have information on U.S. persons. We don't want to get
that information. Immediately, the process started going
through to be able to stop it. The court then put the final
stop on it. It was corrected, and then that's now cleared.
Admiral Rogers. Yes, sir. And, in fact, we're purging the
data as well. Not only have we stopped doing it, but we're
purging the data that we had collected under the previous
authorization.
Senator Lankford. So the issue on 702--most Oklahomans that
I interact with don't know the term ``702.'' But it--if I asked
them, should we collect information on terrorist organizations
and terrorists overseas who are planning to carry out attacks
on us and our allies, they don't hesitate. They say absolutely
we should do that.
Now, they don't want collection on themselves and their
mom, but they absolutely want us to be able to target
terrorists. And so the issue that I think we talk about when we
talk about 702 on this dais, is a normal conversation back home
that if we miss something internationally, everyone says: I
thought we were doing this. Why aren't we?
So I fully appreciate the civil liberties conversation, the
privacy questions. Those are things I'm also passionate about,
and it's very interesting for me to be able to hear from you
that you're passionate about and the NSA is passionate about,
to make sure that we're not collecting on Americans.
So I appreciate that, and in this case when it comes out in
the public media that this has occurred, it actually shows the
system itself worked. When there was a query going on that was
collecting on Americans, it was stopped immediately, data's
purged. But we're still continuing to be able to target on
threats internationally, and I do appreciate that.
Thank you. I appreciate and yield back the time.
Chairman Burr. Senator Manchin.
Senator Manchin. Thank you, Mr. Chairman.
I want to thank all four of you for your service, and you
all are held at the highest--I think, the highest regards by
your colleagues and your peers, and I think that speaks volumes
of the character of all four of you, and I appreciate that very
much.
We have a committee here, which I'm so proud to be serving
on. I'm brand new on the committee. This is my first time at
this, and I don't think there's a person up here that doesn't
want to find out the facts and the truth and be able to go back
home and explain to the Democrat and Republican colleagues and
no matter what political persuasion that we have gotten the
facts, we got it from our intel, which we truly appreciate and
respect the quality of the job and the work that you do, and
this is our findings.
We're having a hard time getting there, as you can tell,
and I respect where you all are coming from. And I hope you
could understand that, sooner or later, we're going to have
to--there has to be one element of this government that the
public can look at and say: this is not politically motivated.
This is not a witch hunt.
No one's trying to harm anybody. We just want to do the
business of our government and our country and do the best that
we can for that and make sure that they have the confidence in
the people that they've put at the head and have elected.
That's what we're trying to get to.
Today's been very difficult, me sitting here listening to
some of the answers and an inability to answer some of the
questions. If the Intelligence Committee in the Senate cannot
get answers we know in an open setting like this, are these
answers that we're asking, the questions that were simply asked
today, would they be given into a classified intel setting that
we would have? Could you answer differently than what you're
giving us in open session? I think, Director Coats, you said
that you would be able to answer differently.
Director Coats. I think I've made that very clear.
Senator Manchin. Yes.
Director Coats. I've tried to----
Senator Manchin. Admiral Rogers, would you be----
Admiral Rogers. And likewise, I certainly hope so.
Senator Manchin. Mr. Rosenstein, would you?
Mr. Rosenstein. Senator, speaking for Mr. McCabe and
myself, you know, we have been involved in managing the
criminal investigation. And so I would ask that, as Chairman
Burr suggested, it's really appropriate for Director Mueller,
since we've turned over control of that investigation to him,
to make the determination in the first instance about what we
can and can't speak about. So I would encourage you to use Mr.
Mueller as your point person as to whether or not it's
appropriate to reveal that information.
Senator Manchin. Well, let's just say that the questions
that were asked to Mr. McCabe, I think they weren't anything on
the investigation side. It was asked pretty personal and
directly. Could you answer differently in a classified setting,
sir?
Director McCabe. I would reiterate the DAG's comments that
at this point, with the special counsel involved, it would be
appropriate for the committee to have an understanding with the
special counsel's office as to where those questions would go.
But I would also point out that, as we have historically
when we are investigating sensitive matters in which
operational security is of utmost importance, members of the
intelligence community typically come and brief the leadership,
Congressional leadership, on sensitive investigative matters.
We have done so. I have done so. Director Comey has done so
prior to the appointment of the special counsel. And some of
the questions that you have asked this morning were addressed
in those closed, very restricted, very small settings.
Senator Manchin. Well, let me say this--that, if it would
be the desire of the Chairman and Vice Chairman, if we could,
since we have a classified hearing scheduled for 2:00 this
afternoon, would you all make yourselves available, since it
doesn't linger on? There's been a lot of questions, a lot of
anticipation and a lot of built-up anxiety, if you will. I
think you could really help an awful lot of us clear the day
up, if you will.
Chairman Burr. If I could address the Senator's question,
this afternoon is set with technical people to walk us through
702. Rest assured that we will take the first available
opportunity to have people back in closed session to address
those questions that they can address.
And, hopefully prior to that, the Vice Chair and I would
have an opportunity to meet with Director Mueller to determine
whether that fits within the scope of his current
investigation, and we will do that.
Senator Manchin. Well, Mr. Chairman, the only thing I'm
saying is that I know that you can tell by the intensity of the
questions here that there's a lot of concerns right now. And we
have both Director Coats and Admiral Rogers who are willing to
say in a classified hearing that they would be able to answer
differently. That's the only reason I was bringing that up. And
we have it this afternoon. I would hope that would maybe be
considered.
Let me ask a question. Does the President support Section
702, reauthorization of the FISA and expanded authority?
Director Coats. Absolutely.
Senator Manchin. Everyone?
Director Coats. Full support.
Senator Manchin. Full support there.
Did the President ask or was he given any specific
intelligence or info concerning the Russian active measures in
the 2016 presidential election? Was he briefed on that? Did he
ask for that briefing, or did--is it an automatic briefing that
you give?
Admiral Rogers.
Director Coats. Well all that took place before I was
Director.
Admiral Rogers. I will say yes, he was briefed on the
results of the intelligence community assessment. I was part of
that in January, prior to his assuming his duties. He and I
have discussed as well the specifics of that assessment
subsequent, after he had become the president and assumed the
duties.
Senator Manchin. Let me just say, just in finishing up, I
just would hope that you all, with your expertise and all of
your knowledge, would help us put closure to this sooner or
later. I mean, we need your help. We need your assistance, we
really do.
And this is a committee that I think will take the facts as
you give them to us and decipher that, and come up with some
appropriate action and a final report, which is I think what
the public is looking for. We can't do that without your
assistance. Thank you.
Director Coats. And, Senator, I fully understand that
statement. And, as the Chairman mentioned, the procedures he's
going to put in place relative to when we hold that hearing and
the relationship it is to the official investigation that's
going on by Director Mueller will dictate when and how we do
that.
Senator Manchin. I think we need you in the SCIF sooner
than later.
Thank you.
Chairman Burr. Senator Cotton.
Senator Cotton. Thank you, gentlemen. I want to talk about
the import of Section 702 to our national security. Admiral
Rogers, I'll direct most of these questions to you as the
subject matter expert on the panel on signals intelligence from
foreign threats, though I might turn to some of our lawyers for
legal questions.
Does Section 702, Admiral Rogers, allow you to collect
information on U.S. citizens?
Admiral Rogers. As intentionally targeted individuals? No.
Senator Cotton. Yes. Intentionally target them.
Admiral Rogers. No.
Senator Cotton. Does it allow you to target foreigners to
do what's called reverse targeting of U.S. citizens, knowing
those U.S. citizens are in communications?
Admiral Rogers. No, it does not.
Senator Cotton. Does it allow you to collect information on
foreigners who are on U.S. soil?
Admiral Rogers. No, 702----
Senator Cotton. It doesn't?
Admiral Rogers [continuing]. Is outside the United States.
Senator Cotton. So you can collect information on an ISIS
terrorist in Syria; and he comes to the United States and you
can no longer collect information on his cell phone or his e-
mail address?
Admiral Rogers. We're a foreign intelligence organization.
We coordinate with the FBI. But, yes, sir, we don't do
internal, domestic collection, broadly.
Senator Cotton. Mr. Rosenstein, do foreigners have
constitutional rights?
Mr. Rosenstein. When they're in the United States, Senator,
different rules apply. And that's why I think it's important
for people to understand that Section 702 applies only in
circumstances where it's a foreign national outside the United
States. If they're inside the United States, we would need to
rely on other provisions of FISA to do that collection. So,
yes, we can do it, but we need to apply different rules. And
Mr. McCabe, as the Director indicated, is responsible for that.
Senator Cotton. Mr. McCabe, what happens when an ISIS
terrorist comes from Syria to the United States and Director
Rogers, or Admiral Rogers, can no longer use Section 702 to
monitor his electronic communications?
Director McCabe. Admiral Rogers' folks notify mine and then
we work together to pursue coverage under different elements of
the FISA statute.
Senator Cotton. I'm sure you work as hard as you can to
make sure that is absolutely seamless, but it does seem to me
that Section 702, because it's limited to foreigners on foreign
soil without targeting any U.S. persons anywhere, goes the
extra mile to protect the constitutional rights of American
citizens and even the supposed constitutional rights of
foreigners when they come on U.S. soil.
That's one reason why I support the permanent extension of
Section 702, and I introduced legislation to that effect
yesterday with the support of all seven Republicans on this
committee.
Tom Bossert, the Counterterrorism and Homeland Security
Adviser to the President, writes in today's New York Times
about our legislation: ``The Trump Administration supports this
bill without condition.'' Admiral Rogers, is that your
position?
Admiral Rogers. Could you repeat that again? I apologize,
sir.
Senator Cotton. ``The Trump Administration supports this
bill without condition.''
Admiral Rogers. Yes.
Senator Cotton. On a scale of 1 to 10, how enthusiastic
would you be if this bill passed? You can go over 10, and be
excessively enthusiastic.
[Laughter.]
Admiral Rogers. I would be ecstatic that we would be in a
position to continue to generate significant insights for this
Nation's security.
Senator Cotton. So you'd dial it straight up to 11?
Admiral Rogers. Yes, sir.
Senator Cotton. Okay.
Director Coats.
Director Coats. My level's about 100.
Senator Cotton. Mr. Rosenstein.
Mr. Rosenstein. Senator, I'm not familiar with the rating
system. I do think it's very important.
Senator Cotton. Director McCabe.
Director McCabe. I'm at 11.
Senator Cotton. Director Coats, you had an exchange earlier
with Senator Wyden about the efforts to estimate and declassify
the number of persons who might be subject to incidental
collection under Section 702. This is when you have a lawful
702 order, but someone does in fact communicate with an
American citizen.
It's my understanding that it would be virtually impossible
to do so in a way that wouldn't further infringe on the rights
of American citizens. Is that correct?
Director Coats. Well that's--yes, and that's one of the
central reasons why I came to the conclusion. But the main
reason I came to the conclusion is that it just is not
conceivably possible. We could go through the procedures, we
could shift hundreds of people to go over and breach the rights
of hundreds if not thousands of American citizens to
determine--of individuals, to determine whether or not they are
American citizens or not. But we still, having done that, could
not get to an accurate number, the number that Senator Wyden
was trying to get us to.
My pledge to him was I would go out there, try to fully
understand why it was we couldn't get that. There will be
detailed discussions on that on the closed session with the
staff and the technicians from both NSA and from Senate staff,
here and others, relative to all of the efforts that have been
made to try to answer the question.
And as I said in my statement, even if we were to take
people off their regular jobs and say, get on this issue, even
if we could put other measures in place, we still would not be
able to come up. It's hard to explain how difficult this is or
why this is the case, but that is what is going to be discussed
in the closed session, because all this is classified
information, this afternoon. I assume the staff of members, all
the members here, will be there.
But my pledge was to do the best I could to try to get to
some answer. And the result was we couldn't get to an answer,
number one; and number two, trying to get to an answer would
totally disrupt the efforts of the agency.
Now, you know, you might be able to make the case, let's
hire a thousand more people and get to the answer, if you knew
that you would get to the answer. Admiral Rogers has told me--I
hope he doesn't mind me saying this--that if someone out there
knows how to get to it, he's welcome to have them come out and
tell NSA how to do it.
But everybody says, you can get to the number, it's easy,
there's all kinds of agencies out there that can do it. I think
you might welcome the advice if they wanted to do that. It
really raises the question of why there has to be an exact
number.
Senator Cotton. Well, if we're going to hire a thousand new
people, I'd sooner them focus on terrorists and foreign
intelligence services than violating the privacy rights of
American citizens.
My time is expired.
Chairman Burr. Senator Harris.
Senator Harris. Thank you.
Admiral Rogers, in response to the question from Senator
Manchin, you it appears felt free to discuss the conversations
you've had with the President in January about Russian active
measures. Can you share with this committee how you're
determining which conversations you can share and which you
don't feel free to share?
Admiral Rogers. Ma'am, the fact that we briefed the
President previously, both went up to New York and previously,
is a matter of public record.
Senator Harris. So if it's a matter of public record, then
you feel free to discuss those conversations?
Admiral Rogers. If it's not classified. You can keep trying
to trip me up----
Senator Harris. Is the----
Admiral Rogers. Senator, if you could, could I get to
respond, please, ma'am?
Senator Harris. No, sir. No, no.
Admiral Rogers. Okay.
Senator Harris. Are you saying that if it is classified you
will not discuss it? And then my follow-up question obviously
would be, do you believe that discussion of Russian active
measures is not the subject of classified information?
Admiral Rogers. I stand by my previous comments.
Senator Harris. Thank you.
Mr. Rosenstein, when you appointed a special counsel on May
17th, you stated, quote: ``Based upon the unique circumstances,
the public interest requires me to place this investigation
under the authority of a person who exercises a degree of
independence from the normal chain of command.''
The order you issued along with that statement provides
that 28 CFR 600.4 through 10 were applicable. Those are
otherwise known as the special counsel regulations. Is that
correct?
Mr. Rosenstein. Yes, Senator.
Senator Harris. And it states that the special counsel,
quote, ``shall not be subject to the day-to-day supervision of
any official of the Department.'' However, the regulations
permit you, as Acting Attorney General for this matter, to
override Director Mueller's investigative and prosecutorial
decisions under specified circumstances. Is that correct?
Mr. Rosenstein. Yes, Senator.
Senator Harris. And it also provides that you may fire or
remove Director Mueller under specified circumstances. Is that
correct?
Mr. Rosenstein. Yes.
Senator Harris. And you indicated in your statement that
you chose a person who exercises a degree of independence, not
full independence, from the normal chain of command. So my
question is this: In December of 2003, then-Attorney General
John Ashcroft recused himself from the investigation into the
leak that led to the disclosure of Valerie Plame's identity as
a CIA officer. The Acting Attorney General at the time was Jim
Comey. He appointed a special counsel, Patrick Fitzgerald, to
take over the matter.
In a letter dated December 30th of 2003, Mr. Comey wrote
the following to Mr. Fitzgerald, quote: ``I direct you to
exercise the authority as special counsel independent of the
supervision or control of any officer of the Department.'' In a
subsequent letter dated February 6, 2004, Mr. Comey wrote to
clarify the earlier letter, stating that his delegation of
authority to Mr. Fitzgerald was, quote, ``plenary.'' Moreover,
it said that ``my,'' quote, ``conferral on you of the title of
special counsel in this matter should not be misunderstood to
suggest that your position and authorities are defined or
limited by 28 CFR Part 600.'' Those are the special counsel
regulations we discussed.
So would you agree, Mr. Rosenstein, to provide a letter to
Director Mueller similarly providing that Director Mueller has
the authority as special counsel, quote, ``independent of the
supervision or control of any officer of the Department,'' and
ensure that Director Mueller has the authority that is plenary
and not, quote, ``defined or limited by the special counsel
regulations?''
Mr. Rosenstein. Senator, I'm very sensitive about time and
I'd like to have a very lengthy conversation and explain that
all to you. I tried to do that----
Senator Harris. Can you give me a yes or no answer, please?
Mr. Rosenstein [continuing]. In the closed briefing.
Well, it's not a short answer, Senator. The answer is----
Senator Harris. It is. Either you are willing to do that or
not----
Mr. Rosenstein. Well----
Senator Harris [continuing]. As we have precedent in that
regard.
Mr. Rosenstein. But the----
Senator McCain. Mr. Chairman, they should be allowed to
answer the question.
Mr. Rosenstein. It's a long question you pose, Senator, and
I fully appreciate the import of your question, and I'll get to
the answer.
My quibble with you is, Pat Fitzgerald is a very
principled, very independent person. I have a lot of respect
for him. Pat Fitzgerald could have been fired by the President
because he was a United States attorney. Robert Mueller cannot
because he's protected by those special counsel regulations.
So although it's theoretically true that there are
circumstances where he could be removed by the Acting Attorney
General, which for this case at this time is me, your assurance
of his independence is Robert Mueller's integrity and Andy
McCabe's integrity and my integrity, and those regulations----
Senator Harris. Sir, if I may, the greater assurance is not
that you and I believe in Director Mueller's integrity, which I
have no question about Mr. Mueller's integrity. It is that you
would put in writing an indication, based on your authority as
the Acting Attorney General, that he has full independence in
regards to the investigations that are before him. Are you
willing or are you not willing to give him the authority to be
fully independent of your ability statutorily and legally to
fire him?
Mr. Rosenstein. He is--he has the----
Senator Harris. Yes or no, sir?
Mr. Rosenstein. He has the full independence as authorized
by those regulations and, Senator, as I said----
Senator Harris. Are you willing to do as has been done
before----
Chairman Burr. Would the Senator suspend? The Chair is
going to exercise its right to allow the witnesses to answer
the question, and the committee is on notice to provide the
witnesses the courtesy, which has not been extended all the way
across, extend the courtesy for questions to get answered.
Senator Harris. Mr. Chairman, respectfully, I would----
Chairman Burr. Mr. Rosenstein, will you----
Senator Harris [continuing]. Point out that this witness
has joked, as we all have, at his ability to filibuster.
Chairman Burr. The Senator will suspend.
Mr. Rosenstein, would you like to thoroughly answer the
question?
Mr. Rosenstein. Thank you, Mr. Chairman.
Senator, I am not joking. The truth is I have a lot of
experience with these issues and I could give--I could speak to
you for a very long time about it, and I'm sympathetic--I
appreciate the five-minute limit. That's not my limit.
But the answer is this originated, as you may know, with
the independent counsel statute. And I worked for an
independent counsel, and I worked in the Department during the
independent counsel era, when independent counsels were
appointed by authorization of the Senate, they were appointed
by Federal judges, and they had essentially the authority
equivalent to the Attorney General.
That statute sunsetted and the majority of members of this
body concluded that that was appropriate because they did not
want special--independent counsels who were 100 percent
independent of the Department of Justice. That was a
determination made by the legislature.
Now, I know the folks at the Department who drafted this
regulation under Janet Reno and they drafted it to deal with
this type of circumstance. And the idea was that there would be
some circumstances where, because of unusual events, it was
appropriate to appoint somebody from outside the Department,
not somebody like Pat Fitzgerald, who was a U.S. Attorney who
could be fired, but somebody from outside the Department, who
could be trusted to conduct this investigation independently
and could be given an appropriate degree of independence.
Now, under the regulation he has, I believe, adequate
authority to conduct this investigation. And your ultimate
check, Senator, is, number one, the integrity of the people
involved in the investigation, but, number two, the fact that
if he were overruled or if he were fired we would be required
under the regulation to report to the Congress.
And so I believe that's an appropriate check. And so, while
I realize that theoretically anybody could be fired and so
there's a potential for undermining an investigation, I am
confident, Senator, that Director Mueller, Mr. McCabe, and I
and anybody else who may fill those positions in the future
will protect the integrity of that investigation. That's my
commitment to you, and that's the guarantee that you and the
American people have.
Chairman Burr. Senator Cornyn.
Senator Harris. So is that a no?
Chairman Burr. Senator Cornyn.
Senator Cornyn. Well, there seems to be one thing we all
agree on, at least so far, based on the questions and the
comments, and that is that 702 is an important tool for the
intelligence community and one that needs to be preserved. And
I agree with Senator Cotton that it should be extended without
a sunset provision, as currently written. So it's good to have
one, one thing we agree on.
But I want to ask Director Coats, and perhaps, Admiral
Rogers, if you want to comment on this as well: as I understand
the framework of 702, it is to intentionally not target
American citizens. It is to intentionally target foreign
persons and to not collect information from American citizens,
except by way of incidental collection. And I think you've
described, Admiral Rogers, the extensive procedures that the
law requires and that NSA practices have in place to minimize
the access of anybody in the intelligence community to that
U.S. person. And indeed you've talked about purging incidental
collection that was made in the course of the 702
investigation.
So it strikes me, Director Coats--the question that Senator
Wyden has asked you, and it's come up several times--to
intentionally target American citizens in order to generate a
number is just the opposite of what the structure of 702
provides, because the whole idea is to not collect, not to be
able to gather information about American citizens, except in
the course, incidental course of collecting information against
a foreign intelligence target. Is that a fair statement?
Director Coats. That's fair in my mind. And it was an
essential piece of the information, of fact, that caused me to
come to the conclusion that this would do just exactly what you
said. You're breaching someone's privacy to determine whether
or not they are an American person.
Senator Cornyn. To generate a list for Congress.
Director Coats. It potentially could, yes, generate a list
for Congress. That wasn't the only basis on which we made the
decision, but that was an essential basis.
Senator Cornyn. Thank you.
I want to ask a little bit more about the minimization
procedures and the importance of those and a little bit about
unmasking of U.S. persons' names that Admiral Rogers and
others, Director Coats, you've talked about. You've explained
the process and the elaborate procedures that are in place to
make sure that this is not done accidentally or casually. And I
think that's very important to reassuring the American people
that in the collection of foreign intelligence we are
extraordinarily protective of the privacy of U.S. citizens who
might be incidentally collected against. And so to me the
minimization procedures are very important. The internal
policies of the NSA, when it comes to collecting foreign
intelligence that happens to incidentally impact American
citizens is absolutely critical to this balance between
security and individual privacy.
Perhaps this is a question for Mr. Rosenstein, though, and
maybe Director McCabe. If someone is to use the unmasking
process for a political purpose, is that potentially a crime?
Mr. Rosenstein. Yes, Senator.
Senator Cornyn. And, Director McCabe perhaps or Deputy
Attorney General Rosenstein, for somebody to leak the name of
an American citizen that is unmasked in the course of
incidental collection, to leak that classified information, is
that also potentially a crime?
Mr. Rosenstein. Yes, I think that's a most significant
point, Senator. I think it's important for people to
understand. Unmasking is done in the course of ordinary,
legitimate intelligence gathering, when the identity of the
person on the other end of the phone, the other end of the
message, may be relevant to understand the intelligence
significance of the communication.
Leaking is a completely different matter. Leaking is a
crime. Disclosing information to somebody without a legitimate
purpose, need to know that information, that will be prosecuted
in appropriate circumstances. And there have been cases where
we've been able to determine there was a willful violation of
Federal law, a disclosure that was not authorized, and
prosecutions have been brought and will be brought.
Senator Cornyn. And, Mr. Rosenstein, not to pick on you or
Director McCabe, but I think there's some confusion when we
talk about, generically about Russian investigations. We've
described the role of the special counsel, which I think you've
discussed in great detail. But that's primarily to investigate
potential criminal acts and counterintelligence activities, is
it not?
Mr. Rosenstein. The answer to that is yes. The idea of the
Russian investigation, that has much broader significance, I
know, to many of you than the piece that Director McCabe and I
are referring to and the piece that Director Mueller is
investigating.
Senator Cornyn. Right. Well, that's enormously helpful, at
least to me, because when people speak generically of the
Russian investigation, I think they're also including things
like our responsibility as the Intelligence Committee to do
oversight of the intelligence and of the potential
countermeasures we might undertake to deal with the active
measures campaign of the Russian government, which were clearly
documented in the intelligence community assessment.
But by my count there are multiple committees of the United
States Senate, including the Judiciary Committee on which I
serve, which has different jurisdiction and oversight
responsibilities. It's our job to do the investigation and
write legislation. We're not the FBI, we're not the special
counsel, we're not the Department of Justice.
And I'm afraid in the conversation that we've been having
here people have been conflating all of those and those are
very distinct and importantly distinct functions.
Thank you.
Chairman Burr. Senator Reed.
Senator Reed. Well, thank you very much, Mr. Chairman.
Director McCabe, on May 11th you testified, quote,
``Director Comey enjoyed broad support within the FBI, and
still does to this day.'' And you added that you hold him in
the absolute highest regard. Is still that the case?
Director McCabe. It is, sir.
Senator Reed. Thank you.
Director McCabe, I'm trying to understand the rationale for
your unwillingness to comment upon your conversations with
Director Comey. First, you have had, I would presume--and
correct me if I'm wrong--conversations with Mr. Mueller. You've
had those conversations?
Director McCabe. Yes, sir.
Senator Reed. You're fully familiar with the scope of the
investigation, since you've dealt with not only Mr. Mueller,
but also with----
Director McCabe. I am, sir, but I think it's important to
note that Mr. Mueller and his team are currently in the process
of determining what that scope is. And much in the way that
Senator Cornyn just referred to, the FBI maintains a much
broader responsibility to continue investigating issues
relative to potential Russian counterintelligence activity and
threats posed to us from our Russian adversaries.
So determining exactly where those lanes in the road are,
where does Director Mueller's scope overlap into our pre-
existing and long-running Russian responsibilities, is somewhat
of a challenge at the moment. And that is why I am trying to be
particularly respectful of his efforts and not to take any
steps that might compromise his investigation.
Senator Reed. But, getting back to your rationale for not
commenting on the conversation between you and Mr. Comey, it
seems to me that what you've said is that either that is part
of a criminal investigation or likely to become part of a
criminal investigation, the conversation between the President
of the United States and Mr. Comey, and therefore you cannot
properly comment on that. Is that accurate?
Director McCabe. That's accurate, sir.
Senator Reed. What about the conversations between Director
Coats and Admiral Rogers with the President of the United
States? Is that likely to become or is part of an ongoing
criminal investigation?
Director McCabe. I couldn't comment on that, sir. I'm not
familiar with that, and it wouldn't be--for the same reasons
it's not appropriate for me to comment on Director Comey's
conversations, I certainly wouldn't comment on those that I'm
further away from.
Senator Reed. Mr. Rosenstein, are you aware of the
possibility of an investigation of the conversations that
Director Coats and Admiral Rogers have had with the President?
Mr. Rosenstein. My familiarity with that, Senator, is
limited to what I read in the newspaper this morning and what
we heard here today.
Senator Reed. Director Coats, have you had any contact with
the special prosecutor or any----
Director Coats. I have not.
Senator Reed. Have you been advised by any of your
counsels, private or public, that this conversation that you
had with the President could be subject to a criminal
investigation?
Director Coats. No, I have not.
Senator Reed. Admiral Rogers, same question.
Admiral Rogers. For the last question, no, I have not.
Senator Reed. Let me just return again to the points that I
think Senator King made very well, which is this unwillingness
to comment on the conversation with the President, but to
characterize it in a way that you didn't feel pressured, yet
refusing to answer very specific and non-intelligence-related
issues that I don't see how it would impact on the
classification and our status whether or not you were
specifically asked by the President to do anything. Do you
still maintain that you can't comment on whether you were asked
or not?
Director Coats. Nothing has changed since my initial
response.
Admiral Rogers. I stand by my previous answer.
Senator Reed. I just must say, the impression that I have
is that, if you could say that, you would say that.
Thank you. I have no further questions.
Chairman Burr. Senator McCain.
Senator McCain. Well, gentlemen, you're here at an
interesting time. It's funny how sometimes events run together.
This morning's Washington Post, ``Top intelligence official
told associates Trump asked him if he could intervene with
Comey on FBI Russia probe.'' It goes into some detail. I'm sure
you've read the article. And it's more than disturbing.
Obviously, if it's true that the President of the United States
was trying to get the Director of National Intelligence and
others to abandon an investigation into Russian involvement,
it's pretty serious.
I also understand the position that you're in, because it
is classified information and yet here it is on this morning's
Washington Post in some detail. I'm sure you've read it.
So I guess if I understand you right, Director Coats, it is
that in a closed session you are more than ready to discuss
this situation. Is that correct?
Director Coats. I would hope we'd have the opportunity to
do that.
Senator McCain. Well, I hope we can provide you with that
opportunity.
You know, it just shows what kind of an Orwellian existence
that we live in. I mean, it's detailed, as you know from
reading the story, as to when you met, what you discussed, et
cetera, et cetera. And yet, here in a public hearing before the
American people we can't talk about what was described in
detail in this morning's Washington Post. Do you want to
comment on that, Dan?
Director Coats. Are you asking me to comment on the
integrity of the Washington Post reporting? I guess I've been
around town long enough----
Senator McCain. It's pretty detailed.
Director Coats. I guess I've been around town long enough
to say not take everything at face value that's printed in the
Post. I served on the committee here and often saw that
information that we had discussed had been reported, but that
it wasn't always accurate.
But I think this is--the response that I gave to the Post
was that I did not want to publicly share what I thought were
private conversations with the President of the United States,
most of them, almost all of them, intelligence-related and
classified. I didn't think it was appropriate to do so in an
open--for the Post to report what it reported or to do that in
an open session.
Senator McCain. Well, it's an unfortunate situation that
you're sitting there because it's classified information and
this morning's Washington Post describes in some detail, not
just outline but times and dates and subjects that are being
discussed. And I'm certainly not blaming you, but it certainly
is an interesting town in which we exist.
Director Coats. Just because it's published in the
Washington Post doesn't mean it's now unclassified.
Senator McCain. But unfortunately, whether it's classified
or not, it's now out to the world, which is obviously not your
fault, but it describes dates and times and who met with whom.
And so, well, do you want to tell us any more about the
Russian involvement in our election that we don't already know
from reading the Washington Post?
Director Coats. I don't think that's a position that I'm
in. I do know that there are ongoing investigations. And I do
know that we continue to provide all the relevant intelligence
we have to enable those investigations to be carried out with
integrity and with knowledge.
Senator McCain. Well, it must be a bit frustrating to you,
in protecting what is clearly sensitive information, and then
to read all about it in the Washington Post. You have my
sympathy, and I expressed that at your confirmation hearing,
doubting your sanity.
So, Admiral, have you got anything to say about it?
Admiral Rogers. No, sir, other than, boy, some days I sure
wish I was an ensign on the bridge of that destroyer again.
Senator McCain. I can understand that. I feel the same way.
Mr. Rosenstein.
Mr. Rosenstein. Senator, I can't speak for anybody else,
but I'm proud to be here. I'm proud to be here with Director
McCabe and I'm sure he feels the same way.
Director McCabe. I do.
[Laughter.]
Senator McCain. Whatever that might mean.
Thank you, Mr. Chairman.
Chairman Burr. Thank you, Senator McCain.
The Chair is going to recognize Senator Wyden for one
question on 702.
Senator Wyden. Thank you very much, Mr. Chairman. I
appreciate the courtesy.
This one, Director Coats, I'd like a yes or no answer on.
Can the government use FISA Act Section 702 to collect
communications it knows are entirely domestic?
Director Coats. Not to my knowledge. It would be against
the law.
Senator Wyden. Thank you, Mr. Chairman.
Chairman Burr. Senator Warner.
Vice Chairman Warner. Again, I want to thank all the
witnesses. But I come out of this hearing with more questions
than when I went in.
Gentlemen, you were both willing to somehow characterize
your conversations with the President that you didn't feel
pressure, but you wouldn't share the content. In the case of
Admiral Rogers, we will have an independent third party that
will at least provide some level of contemporaneous description
of that conversation and obviously why there was concern enough
to commit that to writing.
I'm pretty frustrated that there is this deference to the
special prosecutor, even though the special prosecutor has not
talked to you. I'm concerned that the Deputy Attorney General,
also deference to the special prosecutor. But there doesn't
seem to be--in this committee, and the Chairman I have
committed to making sure that we appropriately de-conflict.
What we don't seem to have is the same commitment to find
out whether the President of the United States tried to
intervene directly with leaders of our intelligence community
and ask them to back off or downplay. You've testified to your
feelings response. Candidly, your feelings response is
important, but the content of his communication with you is
absolutely critical.
And I guess I would just say the President is not above the
law. If the President intervenes in a conversation and
intervenes in an investigation like that, would that not be
subject of some concern, Mr. Rosenstein?
Mr. Rosenstein. Senator, if anybody obstructs a Federal
investigation, it would be a subject of concern. I don't care
who they are. And I could commit to you, if you're looking for
commitment from Mr. McCabe and from me, that if there is any
credible allegation that anybody seeks to obstruct a Federal
investigation, it will be investigated appropriately, whether
it's by Mr. McCabe, by me, by the special counsel. That's our
responsibility and we'll see to it.
Vice Chairman Warner. Well, I thank the Chairman for the
fact that we've been working on this in a bipartisan way. We
will ultimately have to get to the content of those
conversations.
Thank you.
Chairman Burr. Director Coats, I know you've got to go.
Give me 90 more seconds, if you could.
And this question probably to you, Admiral Rogers. Have our
partners globally used 702 intelligence to stop a terrorist
attack?
Admiral Rogers. Yes, sir, and if we were to lose the 702
authority I would fully expect leaders from some of our closest
allies to put out one loud scream.
Chairman Burr. And in most cases didn't they take credit
for our intelligence?
Admiral Rogers. They don't publicly talk about where it
comes from, but we acknowledge NSA is a primary provider of
insights----
Chairman Burr. I just wanted to get it on the record
there----
Admiral Rogers. Yes, sir. A host of nations rely on it.
Chairman Burr [continuing]. That this is a global asset----
Admiral Rogers. Yes.
Chairman Burr [continuing]. That the war on terror has in
702.
Admiral Rogers. Yes, sir.
Chairman Burr. Now----
Director Coats. Mr. Chairman, if I could just take----
Chairman Burr. Yes, sir?
Director Coats [continuing]. The time you were trying to
protect for me for my next appointment to just say, following--
and I just want to repeat--following my interaction with my
contemporaries in a number of European countries, they are
deeply, deeply grateful to us, for the information derived from
702 has saved, what they said, literally hundreds of lives.
Chairman Burr. Well, certainly the committee is privy to
those instances in a lot of cases and we're grateful for that.
Gentlemen, I want to thank you for your testimony. But
before we adjourn, I would ask each of you to take a message
back to the Administration. You're in positions whereby you're
required to keep this committee fully and currently informed of
intelligence activities. In cases where the sensitivity of
those activities would not be appropriate for the full
committee or open session, there's a mechanism that you may use
to brief the appropriate parties. It's sometimes, often,
referred to as the ``Gang of Eight notification briefing.'' And
I think without exception everybody at the table has utilized
that tool before.
Congressional oversight of the intelligence activities of
our government is necessary and it must be robust. Thus the
provisions of this unique briefing mechanism. Given the
availability of that sensitive briefing avenue, at no time
should you be in a position where you come to Congress without
an answer. It may be in a different format, but the
requirements of our oversight duties and your agencies demand
it.
With that, again I thank you for being here.
This hearing's adjourned.
[Whereupon, at 12:38 p.m., the hearing was adjourned.]
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