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At This Hour

Intel Chiefs Testify On Surveillance Authority, Privacy. Aired 11-11:30a ET

Aired June 07, 2017 - 11:00   ET



DAN COATS, DIRECTOR OF NATIONAL INTELLIGENCE: 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 and I have never felt pressure to intervene or interfere in any way with shaping intelligence in a political way or in relationship of an ongoing investigation.

UNIDENTIFIED MALE: All I would 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's even asking, to me that is a very relevant piece of information. With Admiral Rogers, I think we will get another individual's version, but at some point these facts have to come out. Thank you, Mr. Chairman.


SENATOR JAMES RISCH (R), IDAHO: Thank you very much, Mr. Chairman and thank you, Senator Coats -- excuse me, Director Coats and Admiral Rogers for your testimony and 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 Section 702 which is what this hearing was supposed to be all about. It's becoming obvious that those of us that work in the intelligence community that we're in a different position than Europe is. Europe is -- 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 particularly as it relates to Section 702. 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 I'll throw it up for anybody else that wants to comment on this.

How important is 702, the continuation of Section 702 and its related parts to doing what we have been 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, I'll start with you.

COATS: Well, having just returned a few weeks ago from major capitals in Europe and discussing this very issue with my counterparts, 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 collection that we have received through 702 authorities and our notification of them on 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 take it either through inspiration or direction from ISIS or other terrorist groups have chosen to take violent action against citizens of those countries.

The purpose of the trip was to ensure them that they 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's 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's happening.

[11:05:13]And so that threat exists here also and let me lastly say that the nations 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 intelligence agencies better collection because they think they need it to protect their citizens.

RISCH: Thank you very much. And just a few seconds that I've got left, Mr. Rosenstein, could you -- 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, could you tell the American people what's in store who these guys catch intentionally misusing 702 since you're the highest ranking member of the Department of Justice here.

ROD ROSENSTEIN, DEPUTY ATTORNEY GENERAL: Yes, Senator. I can assure you, Senator, within the Department of Justice we treat with great seriousness, any violations regarding classified information so if there were 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. We recognize and we have an obligation to the American people to make sure that these authorities are used appropriately and responsibly and we comply with the constitution and the laws and the procedures and we're committed to devote whatever resources required to make sure that if there are willful violations people are held accountable for them.

RISCH: And this is your commitment and the Department of Justice's commitment to the American people?

ROSENSTEIN: That's correct.

BURR: Senator Feinstein?

SENATOR DIANNE FEINSTEIN (D), CALIFORNIA: 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 search of an amicus.

I would like your response to the fact that the question, the program sun sets 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 --

UNIDENTIFIED MALE: I could. The DOJ will be smarter on the amicus. Would you take that piece and I'll --

ROSENSTEIN: I'm not sure I am smart on the amicus piece, Senator. I can tell you this, though, with regard to the question of unmasking this is actually primarily a question not for the department, and 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.

And that unmasking is done within the cloak of confidentiality within the community. If someone's identity is disclosed because it's relevant for intelligence purposes because that's the goal of this collection is to understand --

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's done politically, and that, of course, is not the case.

[11:10:09]And so what I'm looking for is the definition of how this is done and under what circumstances.

ROSENSTEIN: I think, Senator, because that's really a decision made by the IC, the intelligence community and not by the department, it would be appropriate for them to respond to that.

ADMIRAL MICHAEL ROGERS, DIRECTOR, NATIONAL SECURITY AGENCY: I can do that. 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 of the director.

Secondly, we outline in writing what that 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 the report, we will not use a name or an identity, we say U.S. person one, U.S. person two, U.S. person three. That report is then promulgated.

Some 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 and 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 duty, and 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 is 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 criterion. We do it in writing and one of those 20 individuals then agrees or disagrees. 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.

FEINSTEIN: Thank you.

COATS: Senator, if I can just add something to that, given the nature of this issue and it's a legitimate question that you've asked, I talked with my colleagues at NSA and CIA and FBI and so forth and suggesting that we might ask our civil liberties and privacy protection agencies to take a look at this, to see if admiral Rogers laid out the procedures.

Are these the right procedures? Would they be doing something different? Would they have recommendations that better protected people from misuse of this? 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?

ROGERS: If I could, I have an internal review that I've directed given the attention and the focus, let's step back and let's reassess this and ask ourselves is there anything that suggests we need to do something different in the process.

FEINSTEIN: Good. Thank you.

ROSENSTEIN: Mr. Chairman, with your permission, I would like to more thoroughly answer the first question the senator asked, which is Senator Feinstein, my understanding is that an amicus was used in 2015 and that decision was made by the court, 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 was done in 2015. Thank you.

FEINSTEIN: Well, would you feel it would be helpful to make it a part of the regular certification process?

ROSENSTEIN: 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 would leave it up to the judges to decide whether it's appropriate to do so.

FEINSTEIN: Thank you. Thanks, Mr. Chairman.

BURR: Senator Rubio?

SENATOR MARCO RUBIO (R), FLORIDA: Thank you all for being here. I understand 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 with its work that its doing is in the national security interest of the United States and also the importance of its independence.

That it's not an extension of politics no matter which administration is at play and in 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 apparently work for you that are not and are constantly speaking to the media about things and saying things.

[11:15:02]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, and 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 true, then 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've 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 or been asked by the president or the White House to influence an ongoing investigation?

COATS: 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 is what I think is confidential information that ought to be protected in an open hearing. So I'm not prepared to answer your question today.

RUBIO: Director Coats, I will say 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.

COATS: I understand but I am just not going to go down that road 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. I likewise, stand by my previous comment.

RUBIO: OK, 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?

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 --

RUBIO: Not directed, asked. ROGERS: That I felt to be inappropriate nor have I felt pressured to do so.

RUBIO: Have you ever been asked to say something that isn't true?

ROGERS: I stand by my previous statement, sir.

RUBIO: Director Coats?

COATS: I do likewise.

RUBIO: Well, let me ask this with 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?

ROSENSTEIN: My answer is absolutely no, Senator.

RUBIO: No one has anything to add to that?

ROGERS: I don't understand the question.

RUBIO: Are you aware of 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?

ROGERS: Are you talking about me? No.

RUBIO: OK. Who wants to answer? I'm sorry.

UNIDENTIFIED MALE: I'm not sure I understand the question, but if you're asking whether we -- I'm aware of requests to other people in the intelligence community, I am not.

RUBIO: Seeking advice on how to potentially influence someone? You are not aware of anyone saying or reporting that to you?


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?

ROSENSTEIN: I've never received anything. I have no direct knowledge of a call.

RUBIO: It's an allegation made in one of the press reports and that's why I asked. On a separate topic, I'm sorry. Who does?

ROSENSTEIN: I'm confused, sorry. I 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 you're referring to.

RUBIO: I'm running out of the 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?

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.

RUBIO: Did under -- the Obama administration, was there a significant uptick in efforts and incidents of unmasking from 2012 to 2016?

ROGERS: I don't know that.

RUBIO: Who would know that?

ROGERS: We have the data and I wouldn't know that off the top of my head on I year by year basis. I just don't know off the top of my head.

BURR: Senator Wyden?

SENATOR RON WYDEN (D), OREGON: 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 otherwise record yours or anyone else's interactions with the president related to the Russia investigation?

[11:20:12]UNIDENTIFIED MALE: I don't take any notes.

WYDEN: Let's just get the four of you on the record.

ROSENSTEIN: Senator, I rarely take notes and I've taken a few today, but I am not going to answer questions regarding the Russia investigation. I think it's important if you understand.

WYDEN: Not on whether you wrote a memo.

ROSENSTEIN: I'm not going to answer any questions about the --

WYDEN: My time will be short. Whether you wrote memo, notes or anything.

UNIDENTIFIED MALE: I'm not going to comment on conversations I had or notes taken or not taken relevant to the Russia investigation.

COATS: Likewise, I take the same position.

WYDEN: Director Coats, on March 23rd, you testified to the Arms Services Committee that you are 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?

COATS: Senator, I am -- I will say once again, I am not going to get into any discussion on that in an open hearing.

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 were 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 element would jeopardize national security. I think that is a very, very damaging position to stake out.

We will 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. You rejected that this morning. You went back on a pledge, and I think it is damaging to the public. Now let me --

COATS: Senator, could I answer the question?

WYDEN: Mr. Director, my time is short, and I want to ask you about one other --

COATS: Well, I would like to answer your question.

WYDEN: Briefly.

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, and 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 get you an appropriate answer. We were not able to do that.

WYDEN: 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.

COATS: But we were not able to do that, to achieve it. Working to do it is different than doing it.

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. Here is my other question. We are trying to sort out --

UNIDENTIFIED MALE: Can the witness respond?

WYDEN: Who are the targets -- UNIDENTIFIED MALE: Apparently not.

WYDEN: -- 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?

COATS: Well, I can't speak for former Director Clapper. Targets, as I understand are non-U.S. persons, foreign individuals are the targets in terms of 702 is directed and prohibited from directing targets on U.S. persons.

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.

[11:25:07]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.

COATS: I would like to respond to that by saying some of those targets are classified, highly classified.

WYDEN: I understand that.

COATS: Some of those targets by revealing those names of those targets release the methods that we use and then have them turned against us and could cost the lives or put some of our agents in significant --

WYDEN: Director Comey listed a number of target which is why there's confusion. He said that on the record. We need you to tell us on the record, as well, consistent of protecting sources and methods.

BURR: Senator Collins?

SENATOR SUSAN COLLINS (R),MAINE: 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.

COATS: Thank you.

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 to -- were there discussions of executive privilege.

ROGERS: Have I asked the White House, is it their intent to invoke executive privilege? Yes. The answer I gave today reflects my answer. No one else's.

COLLINS: Director Coats?

COATS: My answer is the exact same.

COLLINS: Deputy Attorney General Rosenstein?

ROSENSTEIN: I have not had any communications with the White House about invoking executive privilege today.

COLLINS: Director McCabe?

ANDREW MCCABE, ACTING DIRECTOR, FBI: I have not had any conversations with the White House about executive privilege today either.

COLLINS: Admiral Rogers, in January, the FBI and the CIA and NSA jointly the issued an intelligence committee assessment on Russian involvement in the presidential elections. The -- 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?

ROGERS: In terms of the Russian efforts largely? 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 (inaudible) we did the open threat assessment and in that hearing which I think was the 11th of May, I reiterated we continued to see similar activity that we identified and highlighted in the January report and much of those trends continue and much of that activity continues.

COLLINS: It's my understanding that President Obama requested the report that was issued in January, is that correct?

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?

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?

ROGERS: I apologize. I'm confused by the question. I'm want going to comment on any interactions with the president. I don't think that is appropriate. As I previously testified I stand by that report.

COLLINS: Let me ask a broader question that I'm truly trying to get a handle on, and that is how the intelligence community reach a decision on whether or not to comply with the 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?