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Coats, Rogers, Rosenstein and McCabe Senate Intel Hearing. Aired 12-12:30p ET
Aired June 7, 2017 - 12:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
[12:00:00] SEN. JOE MANCHIN (D), WEST VIRGINIA: If you will.
UNIDENTIFIED MALE: 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.
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?
UNIDENTIFIED MALE: Absolutely.
UNIDENTIFIED MALE: Full sport.
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 is it an automatic briefing that you give?
UNIDENTIFIED MALE: Well, all that took place before I was (INAUDIBLE) director.
ADM. MICHAEL ROGERS, DIRECTOR, NATIONAL SECURITY AGENCY: So 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 to whom - after he had become the president and assumed the duties. 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. 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 all.
DAN COATS, DIRECTOR OF NATIONAL INTELLIGENCE: 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.
MANCHIN: I think we need you in the skiff (ph) sooner than later. Thank you.
UNIDENTIFIED MALE: Senator Cotton.
SEN. TOM COTTON (R), ARKANSAS: 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 us 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?
ROGERS: As intentionally targeted individuals?
COTTON: Yes, intentionally target them.
ROGER: No. No.
COTTON: Does it all - 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?
ROGERS: No, it does not.
COTTON: Does it allow you to collect information on foreigners who are on U.S. soil?
COTTON: It doesn't?
ROGERS: 702 is outside the United States.
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?
ROGERS: We're a foreign intelligence organization. We coordinate with the FBI. And, yes, sir, we don't do internal domestic collection broadly.
COTTON: Mr. Rosenstein, do foreigners have constitutional rights?
ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: 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 the 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.
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.
ANDREW MCCABE, ACTING FBI DIRECTOR: Admiral Rogers' folks notify mine and we work together to pursue coverage under different elements of the FISA statute.
COTTON: I'm sure you work as hard as you can to make sure that it 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.
[12:05:03] Admiral Rogers, is that your position?
ROGERS: Could you repeat it again? I apologize, sir. (INAUDIBLE) somewhere else.
COTTON: The Trump administration supports this bill without condition?
COTTON: On a scale of one to 10, how enthusiastic would you be if this bill passed? You can go over 10 to be excessively (ph) enthusiastic.
ROGERS: I would be ecstatic that we'd be in a position to continue to generate significant insights for this nation's security.
COTTON: So you'd dial it straight up to 11?
ROGERS: Yes, sir.
COATS: My level is about 100.
COTTON: Mr. Rosenstein?
ROSENSTEIN: Senator, I'm not familiar with the rating system. I do think it's very important.
COTTON: Director McCabe?
MCCABE: I'm at 11.
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 back 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?
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 - is 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 100s if not thousands of American citizens to determine what - whether - 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 - to get us to. And I'm just - my - my pledge to him is I would go out there, try to fully understand why it was we couldn't get that. There will be detailed discussions on that in 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 the 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 of 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 the - 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 1,000 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 - have them come out and tell NSA how to do it.
COTTON: Well -
COATS: But everybody says get to - 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 a question why there has to be an exact number.
COTTON: Well, if we're going to hire 1,000 new people, I would sooner them focus on terrorists and foreign intelligence services than violating the privacy rights of American citizens.
My time has expired.
UNIDENTIFIED MALE: Senator Harris.
SEN. KAMALA HARRIS (D), CALIFORNIA: 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?
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.
HARRIS: So if it's a matter of public record, then you feel free to discuss those conversations?
ROGERS: If it's not classified. You can keep trying to trip me up -
HARRIS: It does - it does not -
ROGERS: Senator, if you could, could I get to respond, please, ma'am.
HARRIS: No, sir. No. No.
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?
ROGERS: I stand by my previous comments.
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 28CFR600.4 through 10 were applicable. Those are otherwise known as the special council regulations. Is that correct?
[12:10:14] ROSENSTEIN: Yes, 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?
ROSENSTEIN: Yes, senator.
HARRIS: And it also provides that you may fire or remove Director Mueller under specified circumstances. Is that correct?
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 delegates 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 authors are defined or limited by 28CFR 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?
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 in a closed briefing.
HARRIS: Can you give me a yes or no answer, please?
ROSENSTEIN: Well, it's not a short answer, senator. The answer is -
HARRIS: It is. Either you are willing to do that or not as - we have precedent in that regard.
ROSENSTEIN: Well, the - but answer -
SEN. JOHN MCCAIN (R), ARIZONA: Chairman, they should be allowed to answer the question. ROSENSTEIN: It's a long question you posed, senator, and I fully
appreciate the import of your question and I'll get to the answer. My quibble are you is, Pat Fitzgerald is a very principled, very independent person and 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 remove 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 -
HARRIS: Sir, if I - 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 you are not willing to give him the authority to be fully independent of your ability, statutorily and legally, to fire him?
ROSENSTEIN: He is - he has the -
HARRIS: Yes or no, sir.
ROSENSTEIN: He has the full independence as authorized by those regulations. And, senator, as I said -
HARRIS: Are you willing to do, as has been done before -
UNIDENTIFIED MALE: Would the - 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.
HARRIS: Mr. Chairman, respectfully -
UNIDENTIFIED MALE: Mr. Rosenstein, will you -
HARRIS: Can I just point out that this witness has joked with the - as we all have, with the capability to filibuster.
UNIDENTIFIED MALE: The senator will suspend - Mr. Rosenstein, would you like to thoroughly answer the question?
ROSENSTEIN: Thank, 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, it's - 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 the - 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 counsels - independent counsels who were 100 percent independent of the Department of Justice. That was a determination made by the legislature.
[12:15:25] 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 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.
UNIDENTIFIED MALE: Senator Cornyn.
HARRIS: So is that a no?
UNIDENTIFIED MALE: Senator Cornyn.
SEN. JOHN CORNYN (R), TEXAS: Well, seems to be one thing that 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 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 its 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 - is that a fair statement?
COATS: That's fair in my mind. And it was a central piece of the information of fact that caused me to come to the conclusion that this would - this would do just exactly what you said. You're breaching someone's privacy to determine whether or not they are an American person.
CORNYN: To generate a list for Congress.
COATS: It potentially could - yes -
COATS: To generate a list for Congress. That wasn't the only basis on which we made the decision -
COATS: But that was an essential basis.
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 have - 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 in reassuring the American people that in a 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.
[12:20:18] 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?
ROSENSTEIN: Yes, 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?
ROSENSTEIN: Yes. And I think that's the 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 the appropriate circumstances. And there have been cases where we've been able to determine there's a willful violation of federal law, a disclosure that was not authorized and prosecutions have been brought and will be brought.
CORNYN: And, Mr. Rosenstein, not to pick on you or Director McCabe, but I - I think there's some confusion when we talk about - generically about Russian investigations. We 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?
ROSENSTEIN: The answer to that is, yes. It is - the idea of the Russian investigation, that has much broader significance I know too many of you than the piece the Director McCabe and I are referring to and the piece that Director Mueller is investigating.
CORNYN: Right. Well, that's - 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 responsibilities as the Intelligence Committee to do oversight of the intelligence and of the counter potential - counter measures 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.
UNIDENTIFIED MALE: Senator Reed.
SEN. JACK REED (D), RHODE ISLAND: Thank you very much, Mr. Chairman.
Director McCabe, on May 11th you testified, quote, "Director Comey enjoyed broad support with the FBI and still does to this day," and then you added that you hold him in the absolute highest regard. Is still that the case?
MCCABE: It is, sir.
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?
MCCABE: Yes, sir.
REED: You're fully familiar with the scope of the investigation. Since you've dealt with now in Mr. Mueller but also with -
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 in - much in the way that Senator Cornyn just referred to, the FBI maintains a broad - much broader responsibility to continue investigating issues relative to potential Russian counter intelligence activity and threats posed to us from our Russian adversaries.
REED: OK. Yes.
MCCABE: 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.
REED: But getting back to your rationale for not commenting on the conversation between you and Mr. Comey, there's - it seems to me that what you say is that their - 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?
[12:25:10] MCCABE: That's accurate, sir.
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?
MCCABE: I couldn't comment on that, sir. I'm not - I'm not familiar with that and it wouldn't be - for the same reasons it's not appropriate for meet to comment on Director Comey's conversations, I certainly wouldn't comment on those that I'm further away from.
REED: Mr. Rosenstein, are you aware of the possibility of an investigation into these conversations that Director Coats and Admiral Rogers had with the president?
ROSENSTEIN: My familiarity with that, senator, is limited to what I read in the newspaper this morning and what we heard here today.
Director Coats, have you had any contact with the special prosecutor or any -
COATS: I have not.
REED: Have you been advised by any of your counsels or private or public that this conversation that you had with the president could be subject to a criminal investigation?
COATS: I have - no, I have not.
REED: Admiral Rogers, same question.
ROGERS: To the last question, no, I have not.
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 characterize it in a way that you didn't feel pressured, yet, refusing to answer very specific and non- intelligence related issue, 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?
COATS: Nothing has changed since my initial response.
ROGERS: I stand by my previous answer.
REED: I just must say the impression I have is that if you could say that, you would say that.
Thank you. No further questions.
UNIDENTIFIED MALE: Senator McCain.
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, is that in a closed session you are more than ready to discuss this situation. Is that correct?
COATS: I would hope we'd have the opportunity to do that.
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?
COATS: Are you -
COATS: Are you asking me? Comment on "The Washington" -- the integrity of "The Washington Post" reporting? I guess I've been around town a long -
MCCAIN: It's pretty - it's pretty detailed.
[12:29:25] 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 been discussed had been reported, but that 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.