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Senators Grill Intel Chiefs on Russia Probe. Aired 10-10:30a ET

Aired June 7, 2017 - 10:00   ET



POPPY HARLOW, CNN ANCHOR: Gloria, the White House completely changed their narrative within that 24 hours, first, using the memo is justification for firing Comey, then you would think there was quite a back and forth between Rosenstein and the White House and then they completely changed their narrative. Now, he's going to say what it is.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Well, he's probably not thrilled with the way the White House used his memo. I think he's clearly going to stand by what he said. I mean, I think he wrote a memo that said that he thought Comey had behaved inappropriately during the whole Hillary Clinton e-mail scandal. There is a lot in there, of course, the Democrats would agree with and that's probably why the president was surprised when Democrats didn't applaud, you know the firing of Comey.

It will be interesting to see if they get to the question of whether he thought he was used inappropriately by the president and by this White House. I mean, after all, he is new to his job and there's clearly got to be an awful lot of friction there. And we'll see if they -- if they get that, if they get him to discuss that. I doubt he wants to discuss that publicly.

JOHN BERMAN, CNN ANCHOR: By the way, get used to this scene right now, get used to these characters because the Senate Intelligence Committee will be -- holding the hearings tomorrow for James Comey tomorrow, as well.

And Jeffrey Toobin, along those lines, you know if this were a legal case, it's not, it's a Congressional hearing. What would prosecutors be trying to get from the witnesses if they were trying to prove obstruction of justice which is what a lot of Democrats are after here?

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, the real question about obstruction of justice is intent. It's the question of intent. Is the subject of the investigation here, it's obviously the President of the United States, was he trying to shut down the FBI investigation of Russia because he thought it was against national security? He thought he had, you know, motives that were appropriate or was he trying to protect his personal and political interests which would be improper which was the reason Richard Nixon was impeached, trying to use the FBI to cover up crimes -- to cover up things that were damaging politically to the White House.

So, we're not only looking at what the president said to these various people, Comey, Coats, et cetera, about the FBI investigation. But what his motive was in trying to shut down this investigation.

HARLOW: Jim Sciutto, Gloria's reporting about what Comey will say and what he won't say, that is going to be -- he's going to be very fact based. He's going to answer this is what was said, this is what I said, and not draw a legal conclusion from it. There is a nuance to it and that is whether or not there was a misinterpretation by the president. You think that's a stretch. That the president could have misinterpreted that three times the FBI director said it or not under investigation.

JIM SCIUTTO, CNN CHIEF NATIONAL SECURITY CORRESPONDENT: Well, he's not a lawyer and there are legal terms, target, subject and even person of interest which has no legal meaning, right? That said, the president's statement in his letter in firing James Comey was pretty definitive and it was pretty clear in what the president was trying to do and that statement to say, you exonerated me. By the way, I'm firing you, right?

I mean, the intent there was clear was what kind of public message he had. So, just personally, I'm a little skeptical that he was like, I'm not really sure what he's communicating to me because it sounds like James Comey is going to be very definitive about what he did and did not tell the president.

Another thing that strikes me is that beyond the hearings today and tomorrow that these presidential requests to a number of senior administration and law enforcement officials will become certainly a subject of the special counsel's investigation. Robert Mueller is going to need to look into this and that means that the players involved are, I think, probably going to be finding themselves interviewed by the FBI on these questions going forward. So, you will have public hearing. What is their answer to the public here, important and then, at some point you're going to have it in a legal setting.

BERMAN: Guys, stand by for one minute because there is other breaking news today, which is the president announced he will nominate Christopher Wray, former Justice Department official, to be the new FBI director. Our Manu Raju just caught up with the ranking member of the House - sorry, the Senate Judiciary Committee, which will be very concerned obviously about this FBI nomination, Dianne Feinstein. Manu Raju, what did she tell you?

MANU RAJU, CNN SENIOR CONGRESSIONAL REPORTER: You know, she actually said that he may be fine. I asked her specifically what do you think about the new nominee. Her quote was, quote, "He may be fine." She said, well, she has learned about the nomination a couple of hours ago. So, of course, she needs to do her vetting and look through his qualifications. But a positive signal from the top Democrat on the committee that will vet the nomination. That will vote on the nomination and will have the first say before he goes to the full Senate for confirmation, so a positive reception from Dianne Feinstein.

Now, in another piece of news, Marco Rubio, who is one of the members on the Senate Intelligence Committee, actually dined with President Trump last night and raised a lot of questions and eyebrows about that given - of the investigation that's happening, given the James Comey testimony on Thursday.

[10:05:00] I asked him if it was appropriate for him to dine with President Trump last night. He dismissed it and said it's not a serious question. I said, well, did you guys discuss James Comey at all at the dinner last night. He said it did not come up. He did not expand on that and went up to the hearing room.

So, again, some early reactions here from Rubio and as well as from Feinstein about that FBI director nominee signaling that she may be OK with him presuming he passes muster in the vetting process, but an early positive sign from a very influential Democrat, guys.

HARLOW: And just building on Manu's reporting, our Laura Jarrett is reporting that Christopher Wray, the nominee, now signed a letter in 2015, Jeffrey Toobin, to the Senate Judiciary Committee applauding Sally Yates and saying that she had extraordinary legal skills and judgment.

TOOBIN: Sally Yates, of course, was fired by President Trump as acting attorney general. Sally Yates and Christopher Wray were assistant U.S. attorneys together in Atlanta in the '90s. When you look at the possibilities who were raised as FBI directors, John Cornyn, the Republican senator from Texas -

BERMAN: He's right there.

TOOBIN: There he is. What a coincidence -- and Joe Lieberman, the sort of Democratic senator from Connecticut.

You know, Christopher Wray is a much less political choice and I think many people in the Senate will find that a relief barring any surprising disclosures in the vetting process. It seems like he's very likely to be confirmed. He was head of the criminal division in the George W. Bush administration and the Justice Department. That's a job that is a highly respected job, but it's not an especially political job. So, I think that's something that this choice is likely to be very popular on both sides.

BERMAN: We're looking at the hearing room right now for the Senate Intelligence Committee. There's Marco Rubio right there. We were just discussing him.

Brian Fallon, you know, one observation, it seems to me that the Democratic members got there a lot earlier than some of the Republican members.


Maybe they were more eager -- for this questioning and some of the people testifying are now sitting down, so we may have to break out the minute that they start talking. But Brian is there a risk today and tomorrow for the Democrats seeming overeager here?

BRIAN FALLON, CNN POLITICAL COMMENTATOR: Yes, I think that they need to approach it with the goal of getting as many facts entered into evidence as possible and then let the political chips fall where they may, not try to make political speeches. Sometimes in these hearings, you see senators not actually even ask questions -- just go on a long soliloquy.

BERMAN: Sometimes?

FALLON: But some of these - we mentioned Senator Harris, you have prosecutor types that are among the Senate Democrats that are on this panel. I think that they will seek to elicit information rather than preach from the roster.

HARLOW: Congressman Kingston, to you, we've learned that the president may live tweet during the hearing tomorrow. I would not be surprised if he does the same today. Do you want to see that from the president? Would that behoove him at all or would you rather see the president just talk about infrastructure, just talk about his new FBI pick and not weigh in at all on these hearings?

JACK KINGSTON, CNN POLITICAL COMMENTATOR: I believe that the White House is more focused right now on, actually, Obamacare and infrastructure. --

HARLOW: I'm asking about the president, not his staff, OK? I know what his staff wants him to do. What do you want the president to do?

KINGSTON: I think he should talk about tax reform and infrastructure and Obamacare. As Brian said, I think a lot of times on these hearings, it's best not to grab the headline. I mean, you might be the partisan darling of the day, one side or the other, but it is better just quietly ask questions and lay the groundwork with the long-term pick. --

BERMAN: That's Senate Intelligence Chairman Richard Burr.

SEN. RICHARD BURR (R), CHAIRMAN INTELLIGENCE COMMITTE: -- 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, counter proliferation, counterintelligence and many other issues that affect us.

[10:10:00] It is subject to multiple layers of oversight and reporting the requirements from the executive, the judicial and the legislative branches. The Foreign Intelligence Surveillance Court must approve minimization procedures for each relevant ISA 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 a 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 the Congress in February 2012 to urge us to pass a straight, re-authorization 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 I.C. 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.

SEN. MARK WARNER (D), VICE CHAIRMAN INTELLIGENCE COMMITTEE: 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 oath 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 of 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.

[10:15:00] 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 Russia 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 told him, 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 I.C., as I've grown to know over the last seven and a half years that 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 here being asked.

Now let me return to the subject of our hearing. Mr. Chairman, I agree that the re-authorization 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 re-authorizing 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 re- authorize it before the end of this year. A re-authorization 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.

BURR: Thank you, Vice Chairman. Let me say for all members. Votes are no longer scheduled for 10:30 a.m. if you've not gotten that word. Votes have been moved to 1:45 p.m. 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 p.m. 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.

DAN COATS, DIRECTOR OF NATIONAL INTELLIGENCE: 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 am here with my colleagues. I would like to take the opportunity to explain in some detail Section 702, given this as 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 need 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.

[10:20:00] Intelligence collection under Section 702 of the FISA Amendment 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 had 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 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 re- authorization 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 Qaeda 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 subway lines. After Zazi and his co-conspirators were arrested, the privacy and civil liberties oversight board stated in its report and I quote, "Without the initial tip-off 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 ten years ago, FISA has -- 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 is 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 re-authorized. 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.

[10:25:00] 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 ten 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 ten years since Congress enacted the amendments to the Freedom Act, the act that established the 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 providing electronic surveillance based on the technology of the time. In the 1970s overseas communication 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 -