Intelligence Chiefs Testify Amid New Trump and FBI Probe Claims
DAN COATS, DIRECTOR NATIONAL INTELLIGENCE: -- both times with significant bipartisan support, Congress corrected this anomaly, restoring the balance of protections established by the original FISA statute. And although I will not go into great detail here regarding the legal framework for FISA's Section 702 I would simply note a few key items. First, the statute requires annual certifications by the attorney general and by the director of National Intelligence regarding the categories of foreign intelligence that the Intelligence Community will acquire under this authority. Second, the statute requires targeting procedures that set forth the rules by which the Intelligence Community ensures that only foreign persons abroad are targeted for collection. Thirdly, the statute requires minimization procedures protecting U.S. persons' information that may be incidentally acquired while targeting foreign persons. And finally, each year the FISA court reviews this entire package of material to make sure the government's program is consistent with both the statute and with the Fourth Amendment of the Constitution. We have publicly released slightly redacted versions of all these documents including the most recent FISC opinion to ensure the public has a good understanding of how we use this authority. The Government Section 702 Program as we have said is subject to rigorous and frequent oversight by all three branches of government. The first line of oversight and compliance is within the agencies themselves whose offices of general counsel, privacy and civil liberties offices and inspectors general all have a role in FISA's 702 program oversight. The majority of the incidence of non-compliance that are reported to my office and to the Department of Justice are self-reported by the participating agencies. In addition, the office of the DNI and the Department of Justice conduct regular audits, focusing on compliance with the targeting procedures as well as on -- querying of collected data and on dissemination of information under the minimization procedures. Also, we have regular engagements with an extensive reporting to Congress about the FISA 702 program. For example, the Judiciary and Intelligence Committees receive relevant orders of the FISA court and associated pleadings, description and analysis of every compliance incident and certain statistical information such as the number of intelligence reports in which a known U.S. person was identified. And finally, of course, the FISA court regularly checks our work both through the annual recertification process and through regular interactions on particular incidents of non-compliance. Members of the FISA court who are all appointed by the chief justice of the Supreme Court represent the best of the best of our judicial community. They have vast judicial experience and are committed to the constitutional responsibilities of protecting the privacy of U.S. persons. We are particularly proud of our oversight and compliance track record. The audits of the program conducted by the ODNI and DOJ have shown that unintended error rates are extremely low, substantially, substantially less than 1 percent. Further, and I want to emphasize this, we have never, not once, found an intentional violation of this program. There have been unintended mistakes, but I would note that any system with zero compliance incidents is a broken compliance system because human beings make mistakes. The difference here is that none of these mistakes has been intentional. When do we -- and when we do find unintentional errors and compliance incidents we ensure that they are reported and corrected. This is an extraordinary record of success for the diligent men and women of the Intelligence Community who are committed to ensuring that -- their neighbor's privacy is protected in the course of their national security work. And with that I'd like it turn to the most recent compliant incident which resulted in a significant change in how the National Security Agency conducts a portion of its FISA 702 collection. A recent example of the oversight process at work, as a recent example, NASA identified a compliance incident involving queries of U.S. persons identifiers into Section 702 acquired upstream data. Upstream data refers to when NASA receives communications directly from the Internet with the assistance of companies that maintain these backbone networks. The FISC-FISA court was promptly notified and DOJ and ODNI worked with NSA and scope and causes of the problem as well as to identify potential solutions to prevent the problem from reoccurring. The details of the incident are publicly available and Admiral Rogers will go or can go into more detail during the question and answer session if you would like, but just allow me briefly to state what happened. NASA identified and researched a compliance issue. NASA -- excuse me, NSA reported that issue to DOJ, ODNI and ultimately the FISA court. The court delayed its consideration of the 2016 certifications on that basis until the government was able to correct the issue. NSA determined that a possible solution to the compliance problem was to stop conducting one specific type of upstream collection. So ultimately, we decided that the most effective way to address the court's concerns was to stop collecting on this basis that's called the abouts portion of upstream collection and by abouts collection I'm referring to NSA's ability to collect communication where the foreign intelligence target is neither the sender nor the recipient of the communication that's made, but is referenced within the communication itself. The FISA court agreed with our solution and approved the program as a whole on the basis of the NSA proposal. In short, what I'm trying to say here is, is that a compliance issue was identified and after a great deal of hard work, the Department of Justice and the Intelligence Community proposed to the FISA court an effective solution that took the relevant collection costs and compliance benefits into account and the court agreed with the proposed solution. That is how the process works and it works well. Before I conclude, I would like to speak briefly about an issue that has been the subject of much public discussion. There have been requests, numerous requests from both Congress and the advocacy community for NSA to attempt to count the number of United States persons whose communications have been incidentally acquired in the course of FISA 702 collection. During my confirmation hearing and in the subsequent hearing before this committee I committed to sitting down with Admiral Rogers and the subject matter experts in the Intelligence Community to understand why this has been so difficult. Within my first few weeks on the job I visited NSA, discussed with Admiral Rogers and his technical people and followed through on my commitment. What I learned was that the NSA has made -- this is hard for me to say. They have made extensive efforts. Herculean I think is the --</s>UNIDENTIFIED MALE: Herculean.</s>COATS: Say that again for me.</s>UNIDENTIFIED MALE: Herculean.</s>COATS: Herculean. Herculean. All right. I had to turn to -- you know what I mean? I mean really tough effort, all right? To devise accounting strategy that would be accurate and that would respond to the question that was asked, but I also learned that it remains infeasible to generate an exact, accurate and meaningful and responsive methodology that can count how often a U.S. persons communications may be incidentally collected under 702. I want to be clear here to determine if communicants are U.S. persons, NSA would be required to conduct significant additional research trying to determine whether individuals who may be of no foreign intelligence interest are U.S. persons, and from my perspective as the director of National Intelligence, this raises two significant concerns. First, I would be asking trained NSA analysts to conduct intense identity verification research on potential U.S. persons who are not targets of an investigation. From a privacy and civil liberties perspective, I find this unpalatable. Second, those scores of analysis that would have to be shifted from key focus areas such as counterterrorism, counterintelligence, counter proliferation, issues with nations in which such as North Korean and Iran, we need -- and Iran, we need continuous and critical intelligence missions. I can't justify such a diversion of critical resources and the massive critical resources that we would need to try to attempt to reach this peak even without the ability to reach a definitive number. I can't justify that at a time when we face such a diversity of serious threats. And finally, even if we decided the privacy intrusions were justified and if I had unlimited staff to tackle this problem, we still do not believe it is possible to come up with an accurate, measurable result. I'm aware that the Senate Intelligence Committee staff will be meeting following this public hearing in a classified session and Admiral Rogers has instructed his experts to address this issue in greater detail. Before I wrap up my remarks I want to provide one final example that I have for the purposes of today's hearing chosen to declassify using my authority as the director of National Intelligence to further illustrate the value of Section 702. Before rising through the ranks to become at one point the second in command of the self-proclaimed Islamic State of Iraq in Al Sham, ISIS, Haji Iman was a high school teacher and imam. His transformation from citizen to terrorist caused the U.S. government to offer a $7 million reward for information leading to him. It also made him a top focus of the NSA's counter terrorism efforts. NSA, along with its IC partners, spent over two years from 2014 to 2016 looking for Haji Iman. This search was ultimately successful primarily because of FISA section 702. Indeed, based almost exclusively on intelligence activities under Section 702, NSA collected a significant body of foreign intelligence about the activities of Haji Iman and his associates beginning with non-Section 702 collection, NSA learned of an individual closely associated with Haji Iman. NSA used collection, permitted and authorized under Section 702 to collect intelligence on the close associates of Haji Iman which allowed NSA to develop a robust body of knowledge concerning the personal network of his -- of Haji Iman and his close associates. Over a two-year period, using FISA Section 702 collection and in close collaboration with our IC partners, NSA produced more intelligence on Haji Iman's associates including their location. NSA and its tactical partners then combined this information, the Section 702 collection which was continuing and other intelligence assets to identify the reclusive Haji Iman and track his movements. Ultimately this collaboration enabled U.S. forces to attempt an apprehension of Haji Iman and two of his associates. On March 24th, 2016, during the attempted apprehension operation shots were fired at the U.S. forces aircraft from Haji Iman's location. U.S. forces returned fire killing Haji Iman and the other associates at that location. Subsequent Section 702 collection confirmed Haji Iman's death. As you can see from this sensitive example, Section 702 is an extremely valuable intelligence collection tool and one that is subject to a rigorous, effective oversight program and therefore, allow me to reiterate my call on behalf of the Intelligence Community without hesitation, my call for permanent reauthorization of the FISA Amendments Act without further amendment. Mr. Chairman, thank you for your patience and we would be willing to be open to your questions.</s>SEN. RICHARD BURR (R), CHAIRMAN, INTELLIGENCE COMMITTEE: Thank you, Director Coats. The chair would recognize itself now for five minutes of questions. In 2012 I mentioned in my opening statement the director of intelligence James Clapper and Attorney General Eric Holder wrote a letter to the congressional leadership asking the Congress to pass straight re-authorization of FISA. In September 2012 a statement of administration policy also urged the same. This would be to Director Coats, and A.G. Rosenstein. Has the ODNI or the Department of Justice position changed at all since the time of the February 2012 letter?</s>COASTS: No. We strongly support the 2012 letter and request.</s>BURR: Admiral Rogers.</s>ADM. MIKE ROGERS, DIRECTOR, NATIONAL SECURITY AGENCY: We agree 100 percent.</s>BURR: Great. This is to Admiral Rogers and to Director McCabe. Since Congress last authorized this authority in 2012, again, have there been any instances involving a deliberate or intentional compliance violation. Admiral Rogers?</s>ROGERS: Not that I'm aware of.</s>BURR: Director McCabe?</s>ANDREW MCCABE, ACTING FBI DIRECTOR: No, sir.</s>BURR: Admiral Rogers, this is to you. If FISA's 702 statutory authorities were to end or even be diminished, what would be the impact on our national security?</s>ROGERS: I could not generate the same level of insight that the nation, our friends and allies around the world count on with respect to counterterrorism, counter proliferation. I could not, for example, be able to recreate the insights on the Russian efforts to influence the 2016 election cycle. Without 702, we could not have produced that level of insight.</s>BURR: This is a jump ball. April 26, 2017, the Foreign Intelligence Surveillance Court commonly known as FISC, Section 702 certifications including its targeting and minimization procedures are lawful both under FISA statute and the Fourth Amendment. As former director Comey testified last month the only reason our laws even require the certification to cover, and I quote, "These non-Americans who aren't in our country is because their communications transiting U.S.-based networks and systems, yet others have suggested imposing a Fourth Amendment warrant requirement on foreigners who are located outside of the United States. This is really NSA and Justice, would imposing such a warrant requirement impact our national security tools to protect America?</s>ROD J. ROSENSTEIN, DEPUTY ATTORNEY GENERAL: If I would be happy to take the ball. Yes, it would, Senator. I think what's important to recognize is that in the absence of Section 702 the Department of Justice and the Intelligence Community in every case in which we wanted to obtain foreign intelligence information to collect against a particular target, we'd be required to obtain a court order that would need to be supported by probable cause. The consequence of that is, number one, it would be very time consuming because these are very thorough investigations and we produce very lengthy documents. In fact Director McCabe and I spend a fair amount of our time every morning reviewing a stack of documents with our career agents and prosecutors in which they have determined that it's appropriate to seek those orders. So it would be time consuming. It would require significant commitment of resources and in addition to that, it would require showing a probable cause. And as you know, the probable cause showing which his required under the Constitution in circumstances in which privacy interests of Americans are at stake and it's required by the Fourth Amendment, that's a relatively higher threshold than we require for foreign intelligence information so we think it's important, Senator, that we not apply that Fourth Amendment constitutional standard to foreigners who are not in the United States.</s>BURR: Thank you, Mr. Rosenstein. Admiral Rogers, this is to you. There's a lot of news reporting, much of it inaccurate, that characterize that Section 702 as a means of targeting U.S. persons. We know that targeting U.S. persons is prohibited. Is it -- as is, what is termed reverse targeting. Can you explain and clarify the reverse targeting prohibition and what does it prevent the IC from targeting and collecting?</s>ROGERS: So reverse targeting is designed to preclude our ability to bypass the law, and what do I mean by that? The law is expressly designed to ensure that we are not using this legal framework as a capability to target U.S. persons. Reverse targeting is the following scenario. Say we're interested in generating insight on U.S. person A. We know that we can't get a title one. We can't get a FISA warrant. So under the idea of reversal -- reverse target the theory would be well, why don't you just target a foreign entity that that U.S. person talks to and then you'll get all the insights you want on the U.S. person, but you'll have bypassed the court process, you'll have bypassed the entire legal structure. 702 specifically reminds us we cannot do that. We cannot use 702 as a vehicle to bypass other laws or to target U.S. persons.</s>BURR: Can you -- last question, can you please clarify for members and for the public what's meant by incidental collection?</s>ROGERS: Incidental collection and the statute itself, if you read the law, the statute acknowledges that in the execution of this framework we will encounter U.S. persons. We call that incidental collection. That happens under two scenarios. Number one, which is about 90 percent of the time, we are monitoring two foreign individuals and those foreign entities talked about or referenced a U.S. person. The second scenario that we do -- that we encounter what we call incidental collection is we are targeting a valid foreign individual, and that valid foreign individual, a foreign intelligence target, ends up having a conversation with a U.S. person. That's not the target of our collection, it's not why we are monitoring it in the first place, we're interested in that foreign target. That happens of the times we have incidental collection, that scenario happens about 10 percent of the time.</s>BURR: And were the incidental collection that happened, you have a procedure in place in both instances to minimize that --</s>ROGERS: We do. The law specifically gives us a set of processes that we have to follow so we do encounter a U.S. person incidentally in the course of our collection. We ask ourselves several questions, number one, are we looking at potential criminal activity? If we do that we have a requirement to report or to inform the Department of Justice and the FBI and they make the determination if it's illegal or not. We are an intelligence organization, not a law enforcement organization. The second question we ask ourselves, is there anything in this conversation that would lead us to believe that we're talking about harm to individuals. In that case, we do report it. If we think we're dealing with something that is criminal or there's harm to individuals, we report it. Other than that, unless there is a valid intelligence purpose depending on the authority and the case of 702 we specifically purge the data. We remove it. We don't put it in to our holdings. If we don't assess that there's intelligence value and it's a U.S. person, we have to purge the data.</s>BURR: Thank you for that. Vice Chairman?</s>SEN. MARK WARNER (D), VICE CHAIRMAN, INTELLIGENCE COMMITTEE: Thank you, Mr. Chairman. As I indicated I've got questions on another matter and Director Coats and Admiral Rogers, they'll mostly be directed at you gentlemen. Thank you for your testimony this morning. And we all know now in March then-director Comey testified about the existence of an ongoing FBI investigation into links between the Trump campaign and the Russian government. And there are reports out in the press that the president separately appealed to you, Admiral Rogers and to you, Director Coats, to downplay the Russia investigation and now we've got additional reports and we want to give you a chance to confirm or deny these, that the president separately addressed you, Director Coats, and asked you to in effect intervene with Director Comey again to downplay the FBI investigation. Admiral Rogers, you draw the short straw, I'm going to start with you. Before we get to the substance of whether this call or request was made, you've had a very distinguished career, close to 40 years. In your experience, would it be in any way typical for a president to ask questions or bring up an ongoing FBI investigation, particularly if that investigation concerns associates and individuals that might be associated with the president's campaign or his activities?</s>ROGERS: So today I am not going to talk about theoreticals. I am not going to discuss the specifics of any interactions or conversations I may --</s>WARNER: Can you --</s>ROGERS: If I can finish, sir, please. That I may or may not have had with the president of the United States but I will make the following comment. In the three plus years that I have been the director of the National Security Agency, to the best of my recollection, I have never been directed to do anything I believe to be illegal, immoral, unethical or inappropriate, and to the best of my recollection during that same period of service I do not recall ever feeling pressured to do so.</s>WARNER: In your course prior to the incident that we're going to discuss, was it in any regular course where a president would ask you to comment or intervene in any ongoing FBI investigation? Not talking about this circumstance, but any prior experience of that?</s>ROGERS: I'm not going to talk about theoreticals today.</s>WARNER: Let me ask you specifically, did the president, from reports that are out there, ask you in any way, shape or form to back off or downplay the Russian investigation?</s>ROGERS: I'm not going to discuss the specifics of conversations with the president of the United States, but I stand by the comment that I just made to you, sir.</s>WARNER: Do you feel that that -- those conversations were classified? We know there was an ongoing FBI investigation.</s>ROGERS: Yes, sir.</s>WARNER: No pressure points.</s>ROGERS: Yes, sir.</s>WARNER: I understand your answer. I'm disappointed with that answer, but I may indicate and I told you I was going to bring this up.</s>ROGERS: Sure.</s>WARNER: There is -- we have facts that there were other individuals that were aware of the call that was made to you, aware of the substance of that call and that there was a memo prepared because of concerns about that call. Will you comment at all --</s>ROGERS: I stand by the comments that I have made to you today, sir.</s>WARNER: So you will not confirm or deny the existence of a memo?</s>ROGERS: I stand by the comments I have made to you today, sir.</s>WARNER: I think it would be essential, Mr. Chairman, that other individual who served our country as well with great distinction who is no longer a member of the administration has a chance to relay his version of those facts.</s>ROGERS: Yes, sir.</s>WARNER: Again, I understand your position, but I hope you'll also understand the enormous need for the American public to know. You have the administration saying there's no there-there, we have these reports and yet we can't get confirmation. I want to go to you, Director Coats. When you appeared before SASC, you said and I quote, "If called before the investigative committee I certainly will provide them with what I know and what I don't know." I have great respect for you. You served on this committee. I remember as well when we confirmed you. I was proud to support your confirmation. You said that you would cooperate with this committee in any aspects that we request of the Russia investigation. We now have press reports and you can lay them to rest if they're not true, but we have press reports of not once, but twice, that the president of the United States asked you to either downplay the Russia investigation or to directly intervene with Director Comey. Can you set the record straight about what happened or didn't happen?</s>COATS: Well, Senator, as I responded to a similar question during my confirmation in the second hearing before the committee, I do not feel it's appropriate for me to in a public session in which confidential conversations between the president and myself. I don't believe it's appropriate for me to address that in a public session.</s>WARNER: Gentlemen, I understand --</s>COATS: I stated that before, and</s>I -- WARNER: I thought you also said at SASC if brought before the investigative committee you would, quote, "certainly provide them with what I know and what I don't know." We are before that investigative committee.</s>COATS: Well, I stand by my previous statement that we are in a public session here and I do not feel that it is appropriate for me to address confidential information. Most of the information I've shared with the president obviously is directed toward intelligence matters during our Oval briefings every morning at the White House or most mornings when both the president and I are in town, but for intelligence-related matters or any other matters that have been discussed, it is my belief that it's inappropriate for me to share that with the public.</s>WARNER: Gentlemen, I respect all of your service, and I understand and respect your commitment to the administration you're serving. We will have to bring forward that other individual about whether the existence of the memo that may document some of the facts that took place in the conversation between the president and Admiral Rogers, but I would only ask as we go forward, this is my final comment, Mr. Chairman, that we also have to weigh in here the public's absolute need to know. They're wondering what's going on. They're wondering what type of activities. We see this pattern that without confirmation or denial appears that the president not once, not twice -- but we will hear from Director Comey tomorrow -- this pattern where the president seems to want to interfere or downplay or halt the ongoing investigation, not only that the Justice Department is taking on, but this committee's taking on, and I hope as we move forward on this you realize the importance that the American public deserves to get the answers to these questions. Thank you, Mr. Chairman.</s>COATS: Well, Senator, I would like to respond to that if I could. First of all, I'm always -- I told you, and I committed to the committee that I would be available to testify before the committee. I don't think this is the appropriate venue to do this in, given that this is an open hearing and a lot of confidential information relative to intelligence or other matters. I just don't feel it's appropriate for me to do that in this situation.