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FBI and Defense Officials Testify on Deadly Insurrection. Aired 11:30a-12p ET

Aired March 03, 2021 - 11:30   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

SEN. ROY BLUNT (R-MO): Was on the way, unless I was specifically told, well, they're mobilized but they really won't be there until we make a decision.

[11:30:08]

Hours later, at 4:32, the acting secretary of defense provides verbal authorization to remission D.C. National Guard to conduct perimeter and clearance operations. So that's 4:32. That's an hour and ten or so minutes later. Is that the moment when the Guard was told they could move forward?

ROBERT SALESSES, SENIOR DEFENSE DEPARTMENT OFFICIAL: Yes, Senator, it is.

BLUNT: Do you agree with that, General Walker?

MAJ. GEN. WILLIAM J. WALKER, COMMANDING GENERAL, D.C. NATIONAL GUARD: No, Sir. I didn't get approval until a little bit after 5:00. And I got that from the secretary of the army, who it was relayed to me. I never talked to Secretary of Defense Miller and I didn't talk to secretary of the army.

Army senior leaders told me at about 17:08, 5:08 P.M., that the secretary of defense has authorized our approval to support the Capitol.

SALESSES: But, Senator, if I could, in fairness to General Walker too, that's when the secretary of defense made the decision, at 4:32. As General Walker has pointed out, because I've seen all the timelines, he was not told that until 5:08. That's what --

BLUNT: How is that possible, Mr. Salesses? Do you think the decision, in the moment we were in, was made at 4:32 and the person that had to be told wasn't told for more than a half hour after the decision was made?

SALESSES: Senator, I think that's an issue. There was decisions that were being made, there was communications that needed to take place and then there was actions that had to be taken. All of that was happening at simultaneous times by different individuals, and I think that part of the challenge is that some of the delayed communications probably put some of the challenges that we had that day. BLUNT: Oh, I would think so. If you have to have the communication before General Walker and the National Guard can take the action, and the communication doesn't occur for over half an hour, that's a significant problem for the future, if we don't figure out how the decision, the communication and the action all happen as nearly to the same time as they possibly can.

Thank you, Chairwoman.

SEN. AMY KLOBUCHAR (D-MN): Thank you very much. Senator Hassan.

SEN. MAGGIE HASSAN (D-NH): Thank you very much, Chairwoman Klobuchar and Chair Peters, and our ranking members Blunt and Portman, for this hearing. And I want to thank all of our witnesses for being here today. And I want to thank you all for your service to our country.

I want to start with a question for Ms. Smislova, please. It's about a topic that I asked about last week. The secretary of homeland security has the authority to designate events with national significance as national special security events. And these designated events receive expanded support for event security. Factors used to determine national special security event designations, include the attendance of U.S. officials, as well as the size and significance of the event.

In our hearing last week, the former officials in charge of security here at the Capitol testified that DHS did not reach out to U.S. Capitol officials about designated January 6th's joint session of Congress as a national special security event.

So, Ms. Smislova, to your knowledge, did any Department of Homeland Security officials ever consider or recommend designating the January 6th joint session of Congress as a national special security event?

MELISSA SMISLOVA, ACTING UNDER SECRETARY OF OFFICE OF INTELLIGENCE AND ANALYSIS, DHS: Thank you, Senator. No. To my knowledge, no one at the Department of Homeland Security did consider designating January 6th as an NSSE. Also to my knowledge, no one responsible for protecting the Capitol asked for such a designation.

HASSAN: Right. But when we're talking about an NSSE, you don't need a request from the Capitol, correct?

SMISLOVA: That's correct.

HASSAN: DHS could have initiated it. So what is the department's current policy and process for designating national special security events? And were there any procedural issues blocking such a designation in spite of the growing evidence of intelligence available to federal security officials prior to the event?

SMISLOVA: I'm sorry, senator. I am running currently the Office of Intelligence and Analysis for DHS. We have a small role in the NSSE process, but I am not qualified to speak about the whole process. It's fairly complicated. I'm happy to have Secret Service reach out to you, Ma'am, if you'd like me to follow up with that.

HASSAN: Well, I think it's really important for us to understand what the processes are.

[11:35:01]

We had, as has been pointed out, the vice president, the vice president-elect, all members of Congress in one location at an event where there was clear intelligence that might turn violent and there appears to have been no communication or effort by DHS to designate this in a way that would have had the security that we're now standing about stood up ahead of time in an effective way.

So I look forward to following up with you on that.

SMISLOVA: Yes.

HASSAN: I want to turn to Ms. Sanborn now. According to a recent report, the FBI has currently charged 257 people associated with the events on January 6th. Of the individuals charged to-date in relation to the attacks of January 6th, how many were already under investigation by the bureau?

JILL SANBORN, ASSISTANT DIRECTOR, FBI'S COUNTERTERRORISM DIVISION: Ma'am, I'd have to get you the specific number, but I can only recall from my memory one of the individuals that was under investigation prior.

HASSAN: And was that because the FBI is limited in its tools or capacity to monitor, charge or arrest these individuals prior to January 6? Was this a manpower issue? I'm just trying to understand -- understanding -- looking back now, what might have made a difference in being able to move against some of those individuals sooner?

SANBORN: Yes, I think that's a great question. I think it's twofold. So it's the complexity of trying to gather the right intelligence that helps us predict indicators and warnings. And I spoke earlier about, while there's a volume out of there of rhetoric, trying to figure out that intent is very challenging for us in the intel community because it happens in private coms and encryption. So that's one aspect.

And then the other aspect is, of the people that we were investigating, so predicated investigations, we don't necessarily have the ability to mitigate the threat they might pose by travel if we don't have a charge. And you're tracking that we were aware of some of the subjects that intended to come here. We took overt action by going and talking to them and trying to get them to not to come. And that worked in the majority of our already predicated cases.

HASSAN: Thank you. I'd look forward to following up with the FBI more about that.

I also have another question for you about the FBI's information sharing practices. On January 5th, the FBI Norfolk Field Office issued a report that some extremists were preparing to travel to Washington and commit acts of violence. That report eventually made it to a U.S. Capitol Police analyst but it didn't make it to the former Capitol Police chief, Mr. Sund. So I think it's important for us to understand whether this was a failure in information sharing policy or practice. What's the standard policy for disseminating reports like that?

SANBORN: Yes, Ma'am. That's a great question. And I'd just like to segue into that that part of the reason we were able to get that intelligence report from the Norfolk office is because we made it a national collection priority for all 56 field offices to collect whatever they could on the joint session as well as inauguration. And so when they collected that information, they did follow our normal process. And I think we heard yesterday from the director, and went above and beyond that process.

So they documented it quickly within the situational information report and they disseminated it three different ways, in writing, via email, verbally and then also put it in what we call the leap portal, which is available to all state and local partners across the United States.

HASSAN: So I'm trying to understand though how it didn't get elevated or communicated to the highest level. Who was the highest official in the FBI to be informed of the intelligence?

SANBORN: So, I, similar to Director Wray, found out about it days after. And so I think it's very important to also caveat what that was. It was raw, unvetted information. And only because of the collection message did it get as quickly elevated to the Washington Field Office and disseminated to the task force officers.

So, thousands and thousands of tips come in just like this on every day and not all of those get elevated to senior leadership.

HASSAN: Except that this was tips about violence at the United States Capitol, where we were going to have all members of Congress, the current vice president, the vice president-elect.

And so, given the gravity of the threat, it is very hard for me to understand why somebody didn't pick up the phone. And I'd like to understand too whether any of the following were informed of the intelligence, the president, the White House chief of staff, the attorney general of the United States, the speaker of the House or the Senate majority leader.

SANBORN: Not to my knowledge, Ma'am. And I think you heard the director say this yesterday and I echo it 100 percent. Any time an attack happens, we're going back and we're going to figure out what we could have done better and differently. So there's always processes that could be improved.

HASSAN: Look, I will just say this, that one of the things before a major event that one should always do is figure out who the leadership is, and they should be talking twice a day on the phone for the week leading up at least. That's kind of standard practice, at least in the states that I'm familiar with. It's certainly standard practice for governors.

[11:40:01]

And it is astounding to me that even if it's raw intelligence, given what the stakes were on January 6th, that that kind of sharing wasn't routine and that it didn't happen.

So I hope very much that we will look back at this and develop kind of standard operating procedures so that the leadership of security at the Capitol, the leadership of security in all the various agencies are sharing this kind of information person-to-person rather than relying on standard emails and the like. Thank you very much.

SANBORN: I will say that's the purpose of the command post, and 100 percent echo your point, which is let's go back and figure out what we can do differently.

HASSAN: Thank you.

KLOBUCHAR: Thank you. Thank you, Senator Hassan.

And for members of the Rules Committee, we're following the order set forth by the Homeland Security Committee, how they do their order. So if there's questions about that, that's how we're doing it today.

And next is Senator Feinstein.

SEN. DIANNE FEINSTEIN (D-CA): Thanks very much, Madam Chairman.

I'd like to ask this question. In August of 2017, DHS Office of Intel and Analysis and the Virginia Fusion Center issued a report days before the violent protests in Charlottesville, Virginia. The report warned that the protests could be among the most violent to-date. It warned that anarchist extremists and white supremacist extremists are calling on supporters to be prepared for and to instigate violence at the 12 August rally.

Now, this was very similar to what we saw in the lead-up to the January 6th insurrection when groups were actively planning to come to Washington and commit violence. Yet, there was no similar intelligence report by the Department of Homeland Security for this occasion.

My question is why and what happened to change this procedure?

SMISLOVA: Yes, Senator. Thank you for that question. Between before the election and into the inauguration, INA did publish 15 separate unclassified reports that did discuss specifically that there was a heightened threat environment, that the threat could come from lone actors or small cells. We assessed that those that were motivated by concerns about the election and grievances associated largely with COVID-19 restrictions, would also appear to be armed. And we also warned that they could transition quickly from a peace-time situation into a violent situation.

I actually, in preparation for this hearing, did review all of these reports and was impressed with how well the team did. They were very well written and very specific. The point, Senator, is that we thought we had provided that warning. We did not have anything specific about an attack on the Capitol to occur on January 6th. So we did not issue a separate report.

In hindsight, we probably should have, but we had just issued a report on December 30th with our colleagues at FBI and the National Counterterrorism Center, where we thought, Ma'am, that that was sufficient.

FEINSTEIN: I'd like to ask that you make those reports available to this committee.

SMISLOVA: Happy to, Ma'am.

FEINSTEIN: Please.

Also, press reports indicate that acting Defense Secretary Christopher Miller issued a memo on January 4th preventing the D.C. National Guard from receiving weapons or protective gear, interacting with protesters or employing riot control agents without his personal authorization.

Do you know of any other instance where a defense secretary required personal authorization before allowing National Guard troops to respond to an emergency?

And I'd like to put the letter from Christopher Miller, Madam Chairman, in the file, if I could.

KLOBUCHAR: Yes, without objection.

FEINSTEIN: Could someone answer that question?

SALESSES: I'm sorry, Senator. I'll answer that question. I was waiting.

Senator, I'm not aware of another letter from a secretary. But, again, based on events in the spring, and Secretary Miller being new to the department at that time, and some of the things mindful that happened, he issued that direction.

That direction though, again, I would come back to the point that in order for National Guard members to deploy in civil disturbance operations, it requires the secretary of defense's approval. So just to be clear, there is no ability for the military to respond without the secretary's approval for civil disturbance operations.

[11:45:09]

FEINSTEIN: Well, if I may, Madam Chairman, I'm looking at a memo for secretary of the army, employment guidance for the District of Columbia National Guard dated January 4, 2021, I received it. And it responds to a memorandum regarding the district's request for support for the planned demonstrations from January 5th to 6th, 2021. And you are authorized to approve the requested support subject to my guidance below, subject to consultation. And then it points out a number of things that are not authorized.

So this letter of January 4, I'd like to be in the record, because somewhere, there's a problem here. And I've been listening carefully trying to find out what the problem is. But there were certain reports that just were not issued, and they were of an intelligence nature. And I'm curious about finding out which ones essentially did what.

So if you have any response to that, other reports, and could let this committee know, it would be appreciated.

SANBORN: Yes, Ma'am, happy to do so. I think the key thing here, and I think my DHS colleague mentioned this, is the intelligence we had articulated we knew people were coming to the D.C. area, we knew there was a possibility they would come armed and potentially have conflict amongst themselves.

What we lacked, and I think you heard this last week from all those folks that testified as well, none of us had any intelligence that suggested individuals were going to storm and breach the Capitol. And that was the intelligence we lacked.

FEINSTEIN: Well, I think that remains to be seen, but I appreciate the comment. And I think that's what this committee has to look for and make a determination whether there was, in fact, adequate pre- question, pre-interest. And there is a record and I thank you, Madam Chairman.

KLOBUCHAR: Thank you.

SEN. GARY PETERS (D-MI): Senator Johnson, you're recognized for your questions.

SEN. RON JOHNSON (R-WI): Thank you, Mr. Chairman.

Before I get into my line of questioning for today's subject, Ms. Smislova, I received sitting here in the hearing a press release from Capitol Police that said that we have obtained intelligence that shows a possible plot to breach the Capitol by an identified militia group on Thursday, March 4th. Is that a threat that you're aware of?

SMISLOVA: Senator, we issued a bulletin last night co-authored with the FBI about extremists discussing March 4th and March 6th. Is that what you're referring to? It's a joint intelligence bulletin we released last night around -- it was very late, midnight, I think. Yes.

JOHNSON: Okay. Well, again, so the threats are ongoing.

SMISLOVA: Yes.

JOHNSON: General Walker, to review the timeline, at 1:49, Chief Sund contacted you. At 2:15, the Capitol was breached. I think in your testimony, you said you had available 340 D.C. National Guard troops. Is that correct?

WALKER: Well, Sir, it was actually half of that. So, half were on the streets helping the Metropolitan Police Department. The other half would have came in to relieve them. But we would have called them in to come in. JOHNSON: Okay. So you had 40 in the quick reaction force, correct?

WALKER: Yes, Sir.

JOHNSON: So had you been able -- had this all been preapproved by the secretary of defense? And I'm mindful of the considerations of having military involved in civil disturbances. I think that's part of the issue, some of the blowback that occurred with the spring instances. How quickly could you have gotten how many people to the Capitol?

WALKER: 20 minutes.

JOHNSON: How many people?

WALKER: 150.

JOHNSON: Okay. I mean, that's important information to have.

I think, quite honestly, what we need to do here is completely reconstruct what happened. And, I mean, completely reconstruct it, we need to obtain eyewitness testimony from different vantage points, from different perspectives, and that's something what I tried to do.

[11:50:05]

Ms. Sanborn, how many points of confrontation occurred during the riot? I mean, in other words, were these primarily choke points, doors, windows that were breached, and then inside the Capitol, again, outside the House chamber? Or was there -- the Capitol is 751 feet long. Was this a 751-long line that Capitol Police and other law enforcement were battling protesters?

SANBORN: Thank you for the question. I think we're still in the process of gathering that data. Obviously, the folks that we have charged, we've charged for breaching and getting inside. And so we at least know that, at some point, they got through a choke point. The actual distance of how long that was is still part of what we're examining, Sir.

JOHNSON: But we've got all kinds of video, all kinds of photographs. So you obviously are examining that. And from that video, you've been able to arrest 300 people. 300 people have been charged. 18 have been charged with conspiracy. 40 have been arrested for assault on law enforcement officers.

So have you, looking at those videos, maybe not being able to identify the people, but have you counted the number of people that you want to identify, for example, that will probably be charged with assault?

SANBORN: So we're still doing that. And that number increases just like the arrests every day. And so far, we have identified hundreds of people that we are trying to still identify.

JOHNSON: Okay. Well again, we've got 300 individuals who have been charged. 40 have been charged by assault. Do you expect the hundreds of people to be charged with assault or will those be disorderly conduct, unlawful entry? I mean, give me some sort of sense of the extent of this.

SANBORN: Absolutely. It's a fair question. So I think the charges have ranged from everything from trespassing to obstruction, to definitely assault on federal officers. We have a fair number of those. And so the charges based on the actual behavior that the individual partook that day definitely vary.

JOHNSON: How many firearms were confiscated in the Capitol or on Capitol grounds during that day?

SANBORN: To my knowledge, we have not recovered any on that day from any other arrests at the scene at this point. But I don't want to speak on behalf of Metro and Capitol Police, but, to my knowledge, none.

JOHNSON: So, nobody has been charged with an actual firearm weapon in the Capitol or on Capitol grounds?

SANBORN: Correct. The closest we came was the vehicle that had Molotov cocktails in it. And when we did a search to that vehicle later on, there was a weapon. But --

JOHNSON: How many shots were fired of that we know of?

SANBORN: I believe the only shots that were fired were the ones that resulted in the death of one lady.

JOHNSON: Okay. Well, again, I appreciate the Chair's comments about a bipartisan/nonpartisan investigation here of seeking out the truth. That's what I'm trying to do.

Cognizant of how I was reacted to by offering an eyewitness account at the last, I'll risk entering another piece of a reporting for the record. This is from The New York Times. Hopefully, that will be viewed more favorably. The title is a small group of militants outsized role in the Capitol attack.

In that report, it says federal prosecutors have said members of the Oath Keepers militia group planned and organized their attack and, quote, put into motion the violence that overwhelmed the Capitol. The reason I am entering this into the record and read that quote is it really does seem to align with the eyewitness account that I read portions of in the record last week. No conspiracy theory, just an eyewitness account from a knowledgeable observer.

I didn't get to the point of the actual attack and I want to just read a couple excerpts. This is the title, provocateurs turn unsuspecting marches into an invading mob. Again, these provocateurs are primarily white supremacist groups. (INAUDIBLE) bellowing sharp from behind, quote, forward, do not retreat, forward. Then two other men standing across from one another on the high granite curbs on either side of the footpad bellowed variations of, forward, do not dare retreat. Some made direct eye contact and people pointed directly at them as if trying to cite them into submitting.

A third man standing on a chair also shouted, forward, reached down and grabbed me by the shoulder and barked, don't retreat, get back up there. It wasn't an expression of enthusiasm or solidarity. It sounded like a military order. And it wasn't from a wild-eyed kid. This guy was probably in his 50s. He looked furious with me.

Nobody seemed to aware the Capitol was physically under attack. The tear gas caused pandemonium. But there are still most stampeded, and people helped create or widen paths to allow others to leave the area.

Then from the north, a column of uniformed agile younger men walked briskly single filed toward the inaugural stand. They came within two feet of me. Their camouflaged uniforms were clean, neat (ph) and with a pattern I couldn't identify. These were the disciplined uniformed column of attackers I had seen.

[11:55:02]

There were a good three dozen of them moving in a single snake-like formation. They were organized, they were disciplined, they were prepared. We're taking the Capitol, the first and second announced. You're going to get arrested, someone called.

Ms. Sanborn, does that tie into with what you're uncovering as you investigate exactly what happened in the Capitol that day, that you had these armed militia groups that had conspired and organized to be there, maybe dozens, we don't know how many, but that they were organized and knew how to use the mob to storm the Capitol? Is that kind of what you're seeing?

SANBORN: We definitely so far are seeing a mixture of that, absolutely. We are seeing people that got caught up in the moment, got caught up in sort of the energy, et cetera, and made their way into the Capitol. And those are probably the ones that you're seeing the charges simply of trespassing. And then we're definitely seeing that portion that you're pointing out, which is small groups in cells now being charged with conspiracy that coalesced either on site or even days or weeks prior and had sort of an intent that day, and they too probably caught people up in the energy.

JOHNSON: So just one final comment. I would urge anybody that criticize me for entering an eyewitness account to the record last week to please read the eyewitness account to take a look at actually what the truth is. Thank you.

KLOBUCHAR: Thank you.

Before I call on Senator Merkley, I just want to ask you, Ms. Sanborn one thing. These people that were assaulting the Capitol in military gear and were pinning an officer between a door and were using bear spray on officers in the Capitol, would you title them provocateurs?

SANBORN: Ma'am, it would all depend on the evidence behind the case, right? So as we're going through and we're figuring out what actually we know about each individual, it would just depend on what the facts and what we know of holistically about that to be able to be put a label on it.

KLOBUCHAR: Do you think there were some very serious violent people involved in this insurrection?

SANBORN: 100 percent. A lot of officers were injured and a lot of damage was done.

KLOBUCHAR: And would you describe the atmosphere as festive?

SANBORN: Absolutely not.

KLOBUCHAR: Thank you. Senator Merkley.

SEN. JEFF MERKLEY (D-OR): Thank you, Madam Chair. And thank you to all for your information.

Assistant Secretary Salesses, if I understood your earlier comment, you thought the quick reaction team was only for reinforcing assistance to those of the National Guard providing traffic control. Did I hear your comment correctly?

SALESSES: Yes, Senator, you did.

MERKLEY: Thank you. Major General Walker, I believe that, if I heard your comments correctly, that quick reaction team was there to respond as needed, including protection of the Capitol. Is that correct?

WALKER: No, Senator. They were to actually provide support to the Guardsmen out there. What I would have wanted to do was remission them and get them to the Capitol immediately as a quick reaction force.

MERKLEY: I see. So, they weren't necessarily planned to help protect the Capitol. But you would reassign them to that in that type of emergency?

WALKER: Yes, sir.

MERKLEY: Okay. Thank you for that clarification.

I was really struck by the complexity of the chain of command for trying to get a decision for response. It starts with the Capitol Police board, which goes to the chief of the Capitol Police, Steven Sund, who goes to the commanding general of the D.C. National Guard, who goes to the secretary of army, who then consults with people within department of army about whether it's appropriate, which then goes to the secretary of defense who then consults Christopher Miller to study that, who then gives an order back to the commanding general of the D.C. National Guard.

This six-step process seems totally unsuited to the situation of responding quickly to an emergency. And I just wanted to ask you, Commander Walker, if I'm reading this chain of command correctly, and do you share the view that this is way too complex for a moment when you need to respond quickly?

WALKER: So, Senator, it's a longstanding process, but it can work in minutes. So, for example, during the first week of June, the secretary of the army was with me. I watched him call the secretary of defense and consult with the attorney general and respond back to me with an approval within minutes. So, it's an elaborate process, but it doesn't always have to be when in extremist circumstances we can get it done over the phone very, very quickly.

[12:00:06]

MERKLEY: If I understand it right, it's normally an elaborate process done in advance.