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29 January 2014 Senate Spying Committee Hearing 14-0129 Part 1
Wednesday, January 29, 2:27 PM The Senate Intelligence Committee held an annual hearing on the nation’s most significant security threats. SENATOR DIANNE FEINSTEIN (D-CA): (Sounds gavel.) The committee will come to order. Let me say at the outset that we hold this hearing to provide information to the public on the intelligence community’s assessments of threats facing our nation. I ask that everyone in this room remove any signs you may have and refrain from any disruptions during the hearing, so that the committee can conduct the hearing and people sitting behind you can see. I will ask the Capitol Police to remove anyone who disrupts this proceeding. This committee meets today in open session to hear the annual report from the United States intelligence community on the range of threats to the nation’s security, and let me start by welcoming the witnesses. They are the director of national intelligence, James Clapper; the director of the Central Intelligence Agency, John Brennan; the director of the Federal Bureau of Investigation, Jim Comey; the director of the Defense Intelligence Agency, Lieutenant General Michael Flynn; and the director of the National Counterterrorism Center, Matt Olsen. Every year at this hearing members and intelligence officials alike talk about how the threats to the United States are more varied and complex than ever before, and this year is no exception. Rather than listing all the sources of instability and proliferation of weapons capable of causing physical and computer damage, I’d like to focus my opening remarks on the threats posed by terrorism. Thanks in large part to the efforts of the women and men of the intelligence community, there have no terrorist attacks against -- in the United States homeland since our last threat hearing, and numerous plots against United States interests overseas have been prevented. I’m concerned that this success has led to a popular misconception that the threat has diminished. It has not. The presence of terrorist groups, including those formally affiliated with al-Qaida and others, has spread over the past year. While the threat emanating from Pakistan’s tribal areas has diminished due to persistent counterterrorism operations, the threat from other areas has increased. In fact, terrorist is at an all-time high worldwide. If you include attacks by groups like the Taliban against the United States military and our coalition forces, according to the nation’s Consortium for the Study of Terrorism and Response to Terrorism at the University of Maryland, which is the source for the State Department’s official tallies, there were more than 8,400 terrorist attacks, killing 15,400 people, in 2012. The instability that spread through North Africa and the Middle East during the Arab Spring has continued to lead to an increase in the terrorist presence and terrorist safe havens throughout the region. Libya, Egypt and Mali continue to see regular violence. Recent terrorist attacks and control of -- control now parts of western Iraq are of great concern. While governance in Yemen and Somalia have improved, two of the most dangerous terrorist groups continue to find safe havens in these countries, where they remain virulent. Al-Qaida in the Arabian Peninsula, known to us as AQAP, remains intent on attacking the United States, and al-Shabab, which publicly merged with al-Qaida in February of 2012, continues to plot against Western targets in East Africa. But I think the most notable development since last year’s hearing is actually in Syria, which has become a magnet for foreign fighters and for terrorist activity. The situation has become so dire that even al-Qaida’s central leader, Ayman al-Zawahiri, has renounced the activities of one group as being too extreme to countenance. Because large swaths of the country of Iraq are beyond the regime’s control or that of moderate -- excuse me -- of Syria are beyond the regime’s control or that of the moderate opposition, this leads to the major concern of the establishment of a safe haven and the real prospect that Syria could become a launching point or way station for terrorists seeking to attack the United States or other nations. Not only are fighters being drawn to Syria, but so are technologies and techniques that pose particular problems to our defenses. I think -- I am also concerned about Afghanistan and the drawdown of U.S. and ISAF forces. The committee has heard the intelligence community’s assessment of the likely outcomes for the future of Afghanistan, especially if the bilateral security agreement is not signed and the United States in unable to commit significant personnel and resources beyond 2014. I am particularly concerned that the Afghan government will not be able to prevent the return of al-Qaida elements to some parts of the country and that the Taliban’s control over Afghan territory will grow. The vice chairman and I were in Afghanistan in 2012, and he has just returned. I saw schoolgirls walking home with their white headdress and brilliant smiles on their faces in -- on the streets of Kabul, and I also met women serving in the Afghan parliament. I saw their courage and devotion to their country. And I am deeply concerned that in the years following 2014, if President Karzai or someone else doesn’t sign the bilateral security agreement, all the gains for democracy, for women’s rights will evaporate. I’m going to skip some of this and put it in the record. As your testimony, gentlemen, makes clear today, there are numerous confounding and complicated threats out there need devoted attention. And the intelligence community, with sequester and furloughs, has been through a very difficult time. And I’d very much like to thank the men and women of the United States intelligence community for their service to this country. It is very much appreciated by this committee. I also like to note to colleagues that Director Clapper came before us in closed session two weeks ago and went through a series of classified matters, and we discussed what the IC is doing about them. He and other witnesses are available to answer classified questions in closed sessions. But the point of today’s hearing is to focus on the unclassified details of the threats we face and to provide the American people with a better sense of how our intelligence community views them. Mr. Vice Chairman. SENATOR SAXBY CHAMBLISS (R-GA): Well, thanks very much, Madam Chair. And I join you in welcoming all our witnesses back to this open hearing this morning. This has been an especially difficult year for the men and women in the intelligence community. The constant stream of press articles as a result of the largest intentional disclosure of classified information has without a doubt compromised our national security and complicated our foreign partnerships. As Director Olsen recently acknowledged, these disclosures have caused terrorist groups to change their communication methods and in other cases drop out of our collection altogether. But there’s another piece to these leaks that each one of you is seeing on a daily basis. The inaccuracies and insinuations about intelligence activities that are in place to protect this country are especially frustrating and demoralizing to the men and women on the front lines. This committee knows from our oversight that the intelligence community takes very seriously its obligation to preserve the rights and privacy of Americans. Director Clapper, I implore you to convey our thanks and appreciation to the entire intelligence community and those men and women that serve under each and every one of you. Senator Burr and I recently returned from a trip to Jordan and Afghanistan, where we met some of the men and women of our military and our intelligence community. Many of them are serving in isolated units in very dangerous parts of Afghanistan and are conducting very dangerous but very important missions. In our meetings, it became very clear that we cannot let Afghanistan suffer the same fate as Iraq. We must not withdraw from the fight before we finish what we went there to do. Recent press articles suggest that we may leave behind a force of 8(,000) to 12,000 American military personnel, which would likely require continued support from the intelligence community. We’ve come a long way denying a safe haven to al-Qaida and building up the security forces of our Afghan partners, but we must not commit the same mistake of losing what the president termed a must-win war. Assuming we have a signed bilateral security agreement, we must ensure that Afghanistan has adequate support and military assistance to ensure that it doesn’t quickly go the way of Iraq. As we continue to pressure core al-Qaida, the growth of local and regional affiliates remains a big concern. The reason we went into Afghanistan in the first place was to remove the safe haven that it, the Taliban -- and the Taliban provided to al-Qaida. Yet the instability in the Middle East and North Africa seems to be fueling a new breeding ground for terrorism, especially in places like Syria. As we fight these changing terrorist threats, we must not lose sight of the national security challenges caused by our nation-state adversaries and regional instability. As we look to the intelligence community to give us a clear reading on what is happening now, we also expect that you will look over the horizon to tell us about the impending threats. In this context, recent discussions to limit your abilities to gather information are troubling, and I’d like an honest assessment from each of you of the potential impact of these decisions. We have to make sure that the community can effectively provide warning and protection for all of this country’s national security interests now and in the future. It is a joint responsibility of Congress and the administration to ensure that we prioritize our efforts appropriately. State and nonstate cyber actors, international and homegrown terrorists and an ever-evolving list of aggressors, proliferators and criminals will continue to try to do us harm. At any given time, the intelligence community has to know which of these threats presents the greatest potential harm. I look forward to hearing the details of what those threats are, what is being done to address them and how we as your partners in this effort can assist. Thanks, Madam Chair. SEN. FEINSTEIN: And I thank you, Mr. Vice Chairman. I’d like to announce to the committee that last night -- excuse me -- we announced that the early bird rules would prevail today. And I want to welcome the panel. And Director Clapper, it’s my understanding you have a joint statement for the four gentlemen and yourself. Please proceed. DIRECTOR JAMES CLAPPER: Madam Chairman, Vice Chairman -- (inaudible) -- and distinguished members of the committee, my colleagues and I are here today to present the intelligence community’s worldwide threat assessment, as we do every year. I’ll cover five topics in about eight minutes, on behalf of all of us. As DNI, this is my fourth appearance before the committee to discuss the threats we face. I’ve made this next assertion previously, but it is, if anything, even more evident and relevant today. Looking back over my more than half a century in intelligence, I have not experienced a time when we have been beset by more crises and threats around the globe. My list is long. It includes the scourge and diversification of terrorism loosely connected and now globally dispersed, to include here at home, as exemplified by the Boston Marathon bombing; the sectarian war in Syria, its attraction as a growing center of radical extremism, and the potential threat this poses to the homeland; the spillover of conflict into neighboring Lebanon and Iraq; the destabilizing flood of refugees in Jordan and Turkey and Lebanon; the implications of the drawdown in Afghanistan; the deteriorating internal security posture in Iraq; the growth of foreign cybercapabilities; the proliferation of weapons of mass destruction; aggressive nation-state intelligence efforts against us; an assertive Russia, a competitive China; a dangerous, unpredictable North Korea, a challenging Iran, lingering ethnic divisions in the Balkans, perpetual conflict and extremism in Africa; violent political struggles in, among others, the Ukraine, Burma, Thailand and Bangladesh; the specter of mass atrocities; the increasing stress of burgeoning populations; the urgent demands for energy, water and food; the increasing sophistication of transnational crime; the tragedy and magnitude of human trafficking; the insidious rot of inventive synthetic drugs; the potential for pandemic disease occasioned by the growth of drug-resistant bacteria. I could go on with this litany, but suffice to say we live in a complex, dangerous world, and the statements for the record that we’ve submitted, particularly the classified version, provide a comprehensive review of these and other daunting challenges. My second topic is what has consumed extraordinary time and energy for much of the past year in the intelligence community, in the Congress, in the White House and, of course, in the public square. I’m speaking, of course, about the most massive and most damaging theft of intelligence information in our history by Edward Snowden, and the ensuing avalanche of revelations published and broadcast around the world. I won’t dwell on the debate about Snowden’s motives or legal standing, or on the supreme ironies associated with his choice of freedom-loving nations and beacons of free expression from which to rail about what an Orwellian state he thinks this country has become. But what I do want to speak to, as the nation’s senior intelligence officer, is the profound damage that his disclosures have caused and continue to cause. As a consequence, the nation is less safe and its people less secure. What Snowden has stolen and exposed has gone way, way beyond his professed concerns with so-called domestic surveillance programs. As a result, we’ve lost critical foreign intelligence collection sources, including some shared with us by valued partners. Terrorists and other adversaries of this country are going to school on U.S. intelligence sources, methods and tradecraft, and the insights that they are gaining are making our job much, much harder. And this includes putting the lives of members or assets of the intelligence community at risk, as well as our armed forces, diplomats and our citizens. We’re beginning to see changes in the communications behavior of adversaries, which you alluded to, particularly terrorists -- a disturbing trend which I anticipate will continue. Snowden claims that he’s won and that his mission is accomplished. If that is so, I call on him and his accomplices to facilitate the return of the remaining stolen documents that have not yet been exposed, to prevent even more damage to U.S. security. As a third and related point, I want to comment on the ensuing fallout. It pains me greatly that the National Security Agency and its magnificent workforce have been pilloried in public commentary. I started in the intelligence profession 50 years ago, in SIGINT, and members of my family and I have worked at NSA, so this is deeply personal to me. The real facts are, as the president noted in his speech on the 17th, that the men and women who work at NSA, both military and civilian, have done their utmost to protect this country and do so in a lawful manner. As I and other leaders in the community have said many times, NSA’s job is not to target the emails and phone calls of U.S. citizens. The agency does collect foreign intelligence -- the whole reason NSA has existed since 1952 -- performing critical missions that I’m sure the American people want it to carry out. Moreover, the effects of the unauthorized disclosures hurt the entire intelligence community, not just NSA. Critical intelligence capabilities in which the United States has invested billions of dollars are at risk or likely to be curtailed or eliminated either because of compromise or conscious decision. Moreover, the impact of the losses caused by the disclosures will be amplified by the substantial budget reductions we’re incurring. The stark consequences of this perfect storm are plainly evident. The intelligence community is going to have less capacity to protect our nation and its allies than we’ve had. In this connection, I’m also compelled to note the negative morale impact this perfect storm has had on the IC workforce, which are compounded by sequestration furloughs, the shutdown and salary freezes. And in that regard, I very much appreciate -- we all do -- your tributes to the women and men of the intelligence community, and we will certainly convey that to all of them. This leads me to my fourth point. We are thus faced with collectively -- and by collectively, I mean this committee, the Congress at large, the executive branch and, most acutely, all of us in the intelligence community -- with the inescapable imperative to accept more risk. This is a plain, hard fact and a circumstance that the community must and will manage, together with you and those we support in the executive branch. But if dealing with reduced capacities is what we need to ensure the faith and confidence of the American people in their elected representatives, then we in the intelligence community will work as hard as we can to meet the expectations before us. And that brings me to my fifth and final point. A major takeaway for us -- and certainly for me -- from the past several months is we must lean in the direction of transparency wherever and whenever we can. With greater transparency about these intelligence programs, the American people may be more likely to accept them. The president set the tone and direction for us in his speech as well as in his landmark presidential policy directive, a major hallmark of which is transparency. I have specific tasking in conjunction with the attorney general to conduct further declassification, to develop additional protections under Section 702 of the FISA act, to modify how we conduct bulk collection of telephone metadata under Section 215 of the Patriot Act, and to ensure more oversight of sensitive collection activities. And clearly, we’ll need your support in making these changes. Through all this, we must and will sustain our professional tradecraft and integrity, and we must continue to protect our crown- jewel sources and methods so that we can accomplish what we’ve always been chartered to do, protect the lives of American citizens here and abroad from the myriad threats I described at the beginning of this statement. With that, I’ll conclude. And we’re ready to address your questions. SEN. FEINSTEIN: Thank you very much, Director Clapper. And thank you for being so up-front. I wanted to ask you one question about Syria, and then Mr. Olsen a question about Sochi. Your written statement for the record, I believe, states, Director Clapper, that Syria has become a significant location for independent or al-Qaida-aligned groups to recruit, train and equip a growing number of extremists, some of whom might conduct external attacks. Could you respond to this? And how concerned should we be, also, about Europeans or even Americans training in Syria and traveling back to the West to carry out attacks? DIRECTOR CLAPPER: Well, we should be very concerned about this, Senator Feinstein. Syria has become a huge magnet for extremists, first those groups who are engaged in Syria itself, some 1,600 different groups, and we estimate somewhere in the neighborhood of between 75,000 and 110,000, of which about 26,000 we grade as extremists. We estimate at this point in excess of 7,000 foreign fighters have been attracted from some 50 countries, many of them in Europe and the Mideast. And this is of great concern not only to us but to those countries. In our recent engagements with our foreign interlocutors, and particularly in Europe, tremendous concern here for these extremist who are attracted to Syria, engage in combat, get training -- and we’re seeing now the appearance of training complexes in Syria to train people to go back to their countries and, of course, conduct more terrorist acts. So this is a huge concern to all of us. SEN. FEINSTEIN: Thank you very much. Mr. Olsen, on Sochi, I’d like to know what your assessment is of the threat to the Olympic games and whether you believe our athletes will be safe. And I’d like Director Comey to respond to the level of cooperation between the Russians and the FBI with respect to security at the Olympic games. Mr. Olsen -- (inaudible) -- MR. OLSEN: Thank you very much, Madam Chairman and Vice Chairman. And let me just say at the outset, I appreciate your leadership, and in particular, your focus on terrorism and leadership of the entire committee. And if I may say just as well, I fully agree with Director Clapper’s assessment of the situation in Syria. And as you laid out in your opening statement, the combination of a permissive environment, extremist groups like al-Nusra and the number of foreign fighters combine to make Syria a place that we are very concerned about -- in particular, the potential for terrorist attacks emanating from Syria to the West. Now, with respect to your question about Sochi, we are very focused on the Sochi Olympics, and we have seen an uptick in the threat reporting regarding Sochi. And this was what we expected given where the Olympics are located. There are a number of extremists in that area, and in particular, a group, Imirat Kavkaz, which is probably the most prominent terrorist in Russia. The leader of that group last July announced in a public message that the group would intend to carry out attacks in Sochi in connection with the Olympics, and we’ve seen a number of attacks stemming from last Fall -- suicide bombings in Volgograd that took a number of lives. So we’re very focused on the problem of terrorism in the run-up to the Olympics. I would add that I traveled to Sochi last December and met with Russian security officials. They understand the threat; they are very focused on this and devoting substantial resources. The biggest issue, from my perspective, is not the games themselves, the venues themselves; there is extensive security at those locations -- the sites of the events. The greater threat is to softer targets in the greater Sochi area and in the outskirts, beyond Sochi, where there is a substantial potential for a terrorist attack. SEN. FEINSTEIN: Thank you very much. Mr. Comey, would you tell us what you can about cooperation between Russia and your organization? DIR. COMEY: Certainly, Senator. The cooperation between the FSB and the FBI in particular has been steadily improving over the last year. We’ve had exchanges at all levels, particularly in connection with Sochi, including me directly to my counterpart at FSB, and I think that we have a good level of cooperation there. It can always improve; we’re looking for ways to improve it, as are they, but this, as Director Olsen said, remains a big focus of the FBI. SEN. FEINSTEIN: Thank you. Mr. Vice Chairman? SEN. CHAMBLISS: Thanks, Madam Chair. Director Clapper, you assess in your statement for the record that core al-Qaida has been on a downward trajectory since 2008, and that their ability to conduct complex, sophisticated and large-scale attacks against the homeland is significantly degraded. However, at the same time, you assess that AQAP poses a significant threat and remains intent on targeting the United States and U.S. interests overseas. What I’d like to do is to have you first start off, Director Clapper, but I want kind of a general discussion about al-Qaida -- not just core al-Qaida -- but their threat to the United States, both domestically as well as overseas, and each of you have kind of a different interest there, even down to you, Director Comey, obviously, with respect to homegrown terrorists and the future there. So these are kind of the questions I’d like for you to address. One, how would you characterize the probability of an al-Qaida sponsored or inspired attack against the U.S. homeland today as compared to 2001? If al-Qaida is evolving from a centralized, core group to a decentralized, global movement of multiple organizations capable of attacking the United States? Would you say the threat has decreased or increased? Third, has the threat against the U.S. interests overseas increased or diminished over the past decade? And then, lastly, what is the impact on limitations that are proposed to be put on Sections 215 and 702 likely to have on the future of the intelligence community with regard to collection? Director Clapper. DIR. CLAPPER: Thank you, Vice Chairman Chambliss. Let me -- let me -- (inaudible) -- I’ll turn to others. I think -- in fact, NCTC probably said it best recently that the -- while the ideological center of the al-Qaida movement, I think, still remains in the -- in the Fatah, the operational locus and the locus for operational planning dispersed. There are some five different franchises at least and 12 countries that this movement has morphed into, and we see sort of chapters of it, of course, in Yemen, Somalia, North Africa, in Syria, et cetera. And many of these movements, while essentially locally focused, probably the most -- still, I think, the most prominent one that has a(n) external focus, specifically in the homeland, remains AQAP, which I think we still continue to view as a wall of franchises, the one that has the most -- poses the most immediate threat to -- for a potential attack on the homeland. The probability of attack now compared to 2001 is -- at least, for me, is a -- is a very hard question to answer, because -- principally because of this very dispersion and diffusion of the threat, whereas we’re very, very focused initially in the -- particularly in that -- in that time period on al-Qaida -- al-Qaida Core, now we are facing a much more dispersed threat. The -- what we spoke about before in Syria -- what’s going on there is a -- in maybe some respects, a new Fatah force. And the -- and what’s going on there and the attraction of these foreign fighters is very, very worrisome. Aspirationally, al-Nusra Front, to name one, is -- does have aspirations for attacks on the homeland. So I can’t say that you know, the threat is any less; I think our ability to discern it is much improved over what it was in the -- in the early part of the -- of the 2000 period. So I think that dispersion and decentralization actually creates a different threat and a harder one to watch and detect, because of its dispersion. It’s clear as well that our collection capabilities are not as robust, perhaps, as they were, because the terrorists -- and this is not specifically because of the Snowden revelations -- but generally have gotten smarter about how we go about our business and how we use trade craft to detect them and to thwart them. As far as what impacts the changes that will accrue, hopefully, we can, particularly, with respect to 215 and the other tools that we have that we can minimize the threat by -- as we make these modifications and alterations, but in general, this is big-hand, little-map, we are in toto going -- certainly have less capacity than we had in the past, and that’s occasioned by the changes we’re going to make, as well as the -- you know, the significant budget cuts we’re taking. And those two things together, as I alluded to in my oral statement, kind of the perfect storm that we’re going to -- we’re going to contend with. And the bottom line, at least for me, is that we’re going to have to identify and be -- eyes wide open -- I say we, all of us -- about identifying risk and managing it. Let me turn to my colleagues, John? DIRECTOR JOHN BRENNAN: Just agree with General Clapper. The diversity and dispersion has made it much more challenging for us. We need to rely heavily on partners and building of capacity in a number of countries throughout the world. The terrorists are becoming more sophisticated and they’re going to school on the repeated disclosures and leaks so that is has allowed them to burrow in. It has it much more difficult for us to find them and to address the threat that they pose. So when I look at the threat relative to 9/11, we as a country have done, I think, a great job of addressing some of the vulnerabilities that exist in our system and of putting together an information-sharing architecture that allows us to move information very quickly, but you never know what you don’t know. And with the increasing diversity of the threats and with the growth, as you pointed out, of terrorist elements in places like Syria and Yemen, we have a number of fronts that we need to confront simultaneously. SEN. FEINSTEIN: Thank you very much, Vice Chairman. Senator Heinrich. SENATOR MARTIN HEINRICH (D-NM): Thank you, Chairman. Thank you all for joining us today. And I want to thank you for participating in this open hearing on worldwide threats. I know it’s not always easy to talk about some of these things in an unclassified setting, but I certainly appreciate your willingness to try. I also want to publicly thank the men and women of the intelligence community who, day in and day out, dedicate themselves to keeping us all safe. It’s a thankless job that a simple expression of gratitude can’t fully capture, but we deeply appreciate their efforts. Before I get to my questions today, Mr. Brennan, I just want to publicly note my continued disappointment with how the CIA, under your leadership, has chosen to engage and interact with this committee, especially as it relates to the committee’s study of the CIA’s detention and interrogation program. Recent efforts undertaken by the CIA, including but not limited to inaccurate public statements about the committee’s study, are meant to intimidate, deflect and thwart legitimate oversight. It only makes me firmer in my conviction that the committee should release and declassify the full 6,300-page study with minimal redactions so that the public can judge the facts for themselves. I want to applaud my colleague Senator Rockefeller for making significant efforts to bridge the chasm between the committee and the -- and Director Brennan on some of these issues. But it doesn’t appear to be in the director’s nature to accept these overtures, frankly. And I think that’s incredibly unfortunate. I am fully confident in the factual accuracy of the report, and nothing in your response so far has persuaded me otherwise. Director Brennan, let me get to a few questions. On March 16th, 2009, one of your predecessors, CIA Director Leon Panetta, announced the creation of a Director’s Review Group for Rendition, Detention and Interrogation, to be led by a well-respected senior CIA officer and advised by Senator Warren Rudman, who passed away, as you know, in 2012. According to the press release at the time, the group was tasked with assembling data and formulating positions on the, quote, “complex, often controversial questions that define rendition, detention and interrogation,” unquote. Do you know when and why the Panetta review group was disbanded? DIR. BRENNAN: Senator, first of all, I respectfully but vehemently disagree with your characterization of the CIA’s cooperation with this committee. I am fully prepared to come forward to this committee at any time that it requests my appearance to talk about that study. And I think -- related to the issue that you just raised in terms of the question, I think all committee members are in receipt of some information that I have provided recently to the chairman and vice chairman on this issue, and I look forward to addressing these matters with the committee at the appropriate time and not at a threat assessment hearing. SEN. FEINSTEIN: Thank you, Mr. Brennan. I believe that’s appropriate. SEN. HEINRICH: Actually, it doesn’t fully answer the question of whether -- and I’m not sure that I do know, actually, when and why the Panetta review group was disbanded. DIR. BRENNAN: I’ll be happy to address that question at the time when the committee leadership requests that information from me. SEN. FEINSTEIN: Thank you. I think that’s appropriate, Senator, for a classified session. SEN. HEINRICH: OK. Let me move on to Director Clapper and change gears a little bit to Edward Snowden. The revelations by Edward Snowden regarding U.S. intelligence collection have obviously caused some tensions with our European allies. Have our European allies ever collected intelligence against U.S. officials or businesspeople or those of other allied nations? DIR. CLAPPER: Yes, they have. And I could go into more detail on that in a classified session. SEN. HEINRICH: That’s fine, Director Clapper. Russia recently announced that it would extend Edward Snowden’s asylum and not force him to leave their country. Do you believe that the Russians have gained access to the documents that Edward Snowden stole, which -- obviously, many of which have not been released publicly, fortunately? DIR. CLAPPER: I think this might be best left to a classified session, and I don’t want to do any -- say or do anything that would jeopardize a current investigation. SEN. HEINRICH: That’s fine, Director. Thank you, Chairman. SEN. FEINSTEIN: Thank you very much, Senator Heinrich. Senator Wyden. SENATOR RON WYDEN (D-OR): Thank you very much, Madam Chair. Let me start by saying that the men and women of America’s intelligence agencies are overwhelmingly dedicated professionals, and they deserve to have leadership that is trusted by the American people. Unfortunately, that trust has been seriously undermined by senior officials’ reckless reliance on secret interpretations of the law and battered by years of misleading and deceptive statements that senior officials made to the American people. These statements did not protect sources and methods that were useful in fighting terror. Instead, they hid bad policy choices and violation of the liberties of the American people. For example, the director of the NSA said publicly that the NSA doesn’t hold data on U.S. citizens. That was obviously untrue. Justice Department officials testified that Section 215 of the Patriot Act is analogous to grand jury subpoena authority, and that deceptive statement was made on multiple occasions. Officials also suggested that the NSA doesn’t have the authority to read Americans’ emails without a warrant. But the FISA Court opinions declassified last August showed that wasn’t true either. So for purposes of trying to move this dialogue along, because I don’t think this culture of misinformation is going to be easily fixed, I’d like to get into several other areas where the government’s interpretation of the law is still unclear. Director Clapper, law-abiding Americans want to protect the privacy of their communication, and I see a clear need to strengthen protections for information -- for information sent over the Web or stored in the cloud. Declassified court documents show that in 2011 the NSA sought and obtained the authority to go through communications, collect it with respect to Section 702 of the Foreign Intelligence and Surveillance Act, and conduct warrantless searches for the communications of specific Americans. Can you tell us today whether any searches have ever been conducted? DIR. CLAPPER: Senator Wyden, I think at a threat hearing, this would -- I would prefer not to discuss this and have this as a separate subject that -- because there are very complex legal issues here that I -- I just don’t think this is the appropriate time to discuss them. SEN. WYDEN: When would that time be? I tried with written questions, Director Clapper, a year ago to get answers, and we were stonewalled on that. And this committee can’t do oversight if we can’t get direct answers. So when will you give the American people a(n) unclassified answer to that question that relates directly to their privacy? DIR. CLAPPER: As soon as we can -- soon, sir. I-- I’ll -- (inaudible) -- that. SEN. WYDEN: What would be wrong with 30 days? DIR. CLAPPER: That’s fine. SEN. WYDEN: All right. Thank you. That’s making some progress. Director Brennan, a question with respect to policy. Does the Federal Computer Fraud and Abuse Act apply to the CIA? Seems to me that’s a yes or no question. DIR. BRENNAN: I would have to look into what that act actually calls for and its applicability to CIA’s authorities, and I’ll be happy to get back to you, Senator, on that. SEN. WYDEN: How long would that take? DIR. BRENNAN: I’ll be happy to get it back to you as soon as possible, but certainly no longer than -- SEN. WYDEN: A week? DIR. BRENNAN: I think that I could get that back to you, yes. SEN. WYDEN: Very good. Let me ask a question of you, then, if I might, Director Comey. I’d like to ask you about the government’s authority to track individuals using things like cell site location information and smartphone applications. Last fall the NSA director testified that we, the NSA, identify a number; we can give that to the FBI. When they get their probable cause, then they can get the locational information they need. I’ve been asking the NSA to publicly clarify these remarks but it hasn’t happened yet. So is the FBI required to have probable cause in order to acquire America’s cell site location information for intelligence purposes? DIR. COMEY: I don’t believe so, Senator. We -- in almost all circumstance we have to obtain a court order, but the showing is a reasonable basis to believe it’s relevant to the investigation. SEN. WYDEN: So you don’t have to show probable cause; you have cited another standard. Is that standard different if the government is collecting the location information from a smartphone app rather than a cellphone tower? DIR. COMEY: I don’t think I know. I probably ought to ask someone who’s a little smarter on what the standard is that governs those. I don’t know the answer, sitting here. SEN. WYDEN: My time is up. Can I have an answer to that within a week? DIR. COMEY: You sure can. SEN. WYDEN: All right. Thank you, Madam Chair. SEN. FEINSTEIN: Thank you, Senator Wyden. Senator Udall, let me apologize to you. I inadvertently skipped over your name and called on Senator Wyden. But it’s your moment. SENATOR MARK UDALL (D-CO): No apologies, Madam Chair. Good morning to all of you. Thank you for being here. I too want to make it clear how much this committee respects and admires the hardworking members of the intelligence community. And I know everyone on this committee keeps this worldwide threat assessment handy. It’s not reading that puts you to sleep; it’s reading that gets your attention. I want to thank you and your teams for putting this together. I did want to pick up on Senator Heinrich’s line of questioning. (Pausing for microphone adjustment.) We’re back in operation here. Director Brennan, you know the long history of this committee’s study of our detention and interrogation programs, and I’d like to put my statement in the record that walks us through that record. But I did want to focus initially on the CIA internal review. Some people call it the Panetta review. Were you aware of this CIA internal review when you provided the CIA’s official response to this committee in June of last year? I don’t have much time, so I’d appreciate a yes or no answer. DIR. BRENNAN: It wasn’t a review, Senator; it was a summary. And at the time, no, I had not gone through it. SEN. UDALL: It strikes me as a bit improbable, given that you knew about the internal review and you spoke to us and stated that your obligation as the CIA director was to make sure that the CIA’s response was as thorough and accurate as possible. But in that context, let me move to the next question. Does the information in the internal review contradict any of the positions included in your June 2013 response to the committee? DIR. BRENNAN: Senator, I respectfully would like to say that I don’t think this is the proper format for that discussion because our responses to your report were in classified form. And I look forward to addressing these questions with the committee at the appropriate time. SEN. UDALL: Let me make sure I understand. Are you saying that the CIA officers who were asked to produce this internal review got it wrong, just like you said the committee got it wrong? We had 6,300 pages, 6 million documents, 35,500 footnotes. DIR. BRENNAN: Senator, as you well know, I didn’t say that the committee got it wrong. I said there were things in that report that I disagreed with, there were things in that report that I agreed with. And I look forward to working with the committee on the next steps in that report. And I stand by my statement. I’m prepared to deal with the committee to make sure that we’re able to address the issue of the detention, rendition, interrogation program at the appropriate time. Look forward to it. SEN. FEINSTEIN: (Off mic.) SEN. UDALL: Madam Chair, I still have two minutes remaining. SEN. FEINSTEIN: (Off mic) -- do. SEN. UDALL: Let me move to the Snowden disclosures and what I think’s been a -- clearly outlined as a trust deficit that exists between the public and the intelligence community. This committee was created to address a severe breach of trust that developed when it was revealed that the CIA was conducting unlawful domestic searches. The Church committee went to work, found that to be true. I want to be able to reassure the American people, especially given what’s been happening, that the CIA and the director understand the limits of their mission and of its authorities. We all are well aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of U.S. citizens within our borders. Can you assure the committee that the CIA does not conduct such domestic spying and searches? DIR. BRENNAN: I can assure the committee that the CIA follows the letter and the spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes, Senator, I do. SEN. UDALL: Let me finish on this note. I think we have an important opportunity when it comes to this vital review that we undertook. We can set the record straight. America is at its best when we acknowledge our mistakes and learn from those mistakes. It’s clear that the detention, rendition and interrogation programs of the CIA went over the line over the last -- during the first decade of this century. Director Brennan, I just don’t understand why we can’t work together to clarify the record, to move forward and in so doing acknowledge the tremendous work of those you lead and those that we’re tasked in this -- on this committee to oversee. I’m hopeful that we can find a way forward on this important, important matter. Thank you. DIR. BRENNAN: I hope we can too, Senator. SEN. FEINSTEIN: Thank you very much. I want to apologize to Senator Collins because I didn’t indicate initially that we would go back and forth, and so the list is actually who got here first. But it’s Senator Mikulski next, and then Senator Collins. SENATOR BARBARA MIKULSKI (D-MD): I’d be happy to yield to Senator Collins. SENATOR SUSAN COLLINS (R-ME): The chairman of the Appropriations Committee always goes first. (Laughter.) Senator, please proceed. SEN. MIKULSKI: First of all, to those here at the panel and other members of agencies representing the intelligence community, like Homeland Security, I too want to echo my thanks and support for all the employees who work in the intelligence community. And General Clapper, I want to say to you, I recall in last year’s hearing you asked for flexibility for the Intel Committee as we face sequester. During these, at times, even intense hearing today, I want you to know that both the chairman and the vice chairman, supported by (the entire ?) members of this committee, worked with me to try to get flexibility for you. We were stopped by the House of Representatives during the CR to get you that flexibility. But I want you to know today we were united to try to get you, and therefore the intelligence community, that. So we’re on the side of the employees facing furloughs, sequester and so on. Thanks now to the budget agreement and what we were able to do and the consolidated appropriations, we think that part’s behind. So we look forward to working with you as we listen to those needs. I want to come, though, to the employees there. And no group of employees has been battered more than the men and women who work at the National Security Agency. Because of the illegal leaks by Eric Snowden (sic; Edward Snowden), NSA has been battered and, by de facto, so have the employees at the National Security Agency. We’re all well aware that the morale is extremely low there because of budget impacts and the impacts of Snowden. Let me go to my point, though. The men and women who work at the National Security Agency surely believe that what they did -- do, particularly under 215 and 702 -- is constitutional, is legal, was authorized and was necessary. So they felt they were doing a good job defending America. I’d like to come to the constitutionality and engage in your support and get your views. There are now several legal opinions about the constitutionality of these programs. And now as we engage upon these reform efforts -- which I support review and reform being led by many members in this committee, that we need to determine the constitutionally -- would you -- because if it’s not constitutional, that’s it -- would -- General Clapper, have -- would you, consulting with the Department of Justice, the White House, ask for an expedited review by the Supreme Court of the United States to determine the constitutionality of these programs so that we don’t continually shop for the legal opinion that we want, either one side or the other? DIR. CLAPPER: I’ll discuss this with the attorney general. I am not up on the -- what the protocol is for us seeking a reading by the Supreme Court. But -- SEN. MIKULSKI: Is there a sense of urgency within the administration to seek such a constitutional determination? DIR. CLAPPER: I think there’s -- well, I can’t speak for the administration. I don’t know. I would think there would be since we, to your point, I think, throughout all of this, and with all the controversy, that we all felt and still feel that what we were doing was legal, was oversighted, both -- by all three branches of the government. There is a current court ruling on -- a Fourth Amendment ruling, which, of course -- (inaudible) -- date is provided to a third party. It doesn’t -- SEN. MIKULSKI: General Clapper, there are 36 different legal opinions. DIR. CLAPPER: I realize that. SEN. MIKULSKI: Thirty-six say the program’s constitutional. Judge Leon said it’s not. I’m not avoiding -- (inaudible). DIR. CLAPPER: Exactly. And nor are we. SEN. MIKULSKI: And I respect the appeals process, but I think we’ve got to get a constitutional ruling on this as quickly as possible. I think the American people are entitled to knowing that, and I think the men and women who work at NSA need to know that, and I think those of us who want to embark upon a review and reform effort need to know that. DIR. CLAPPER: I could not agree with you more about the need for clarity on these issues for the women and men of the intelligence community who are trying to do the right thing. SEN. MIKULSKI: Now, I’d like to come to cybersceurity and Director Comey. As you know, Target’s been hit, Neiman-Marcus has been hit, Michaels -- who knows what else. What I find is in the public’s mind, there is a confusion now between cybersecurity and surveillance -- it’s kind of co-mingled these words. But my question to you is that -- is two things. Is the impact of the Snowden affair slowly us down in our work to be more aggressive in the cybersecurity area, particularly as it relates to American people, their identity, the safety of their credit cards, our grid, et cetera? And has the failure for us to pass cybersecurity regulatory efforts really aided and abetted these -- has been a contributing factor to the fact that international crime is now targeting us? DIR. COMEY: Thank you, Senator. With respect to the work being done by the men and women in law enforcement to respond to cyberthreats, especially those around financial fraud and theft, we’re working as hard as ever to try and address those threats. What the storm around surveillance and the leaks has done is just complicated the discussion about what tools we use to do that. So in that respect, it’s made our life more complicated. I think that people need to realize that there is threat of fraud and theft because we’ve connected our entire lives to the Internet. And that’s a place where we, using our law enforcement authorities, have to be able to respond robustly. SEN. MIKULSKI: Do you think Congress needs to pass legislation in this area? DIR. COMEY: Yes, I do. SEN. MIKULSKI: Do you feel that there’s an urgency around that and we should review those original legislation, even as a starting point for negotiation? DIR. COMEY: There is. One of the critical parts of responding to cybercriminals is the information sharing. The private sector sees the bad guys coming in. We need to make sure that the private sector understands the rules of the road and how they share that information with the government. SEN. MIKULSKI: My time is up. I just want to say also, during the sequester and so on, I read these wonderful documents that came from voluntary organizations associated with the FBI. It was called voices from the field. They were really quite poignant. And it shows that, you know, when they say, with sequester, they didn’t want to exempt the fence, but our first line of defense in many ways is what we see at this table. So would you thank the agents for us? DIR. COMEY: I will. Thank you, Senator. SEN. FEINSTEIN: Thank you, Senator Mikulski. And now our very -- (inaudible) -- Senator Collins
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