Transcript: Rep. Mike Rogers’s Q&A with DNI James Clapper & NSA Director Gen. Keith Alexander on surveillance programs – Oct. 29, 2013

Partial transcript of Rep. Mike Rogers’s (R-Michigan) Q&A with Director of National Intelligence James Clapper and National Security Agency Director Gen. Keith Alexander on NSA’s surveillance programs before the House Intelligence Committee on Oct. 29, 2013:

Rep. Mike Rogers (R-Michigan):
…Director Clapper, can you tell me how the intelligence community sets its collection priorities?

Director of National Intelligence James Clapper:
It’s all centered around what’s called a National Intelligence Priorities Framework. This is a document – both a document and a process that has existed in its current form since about 2003. It started during the Bush administration.

But in my time in intelligence, every administration has had some form of overarching intelligence requirements in a document.

So what the current version is called the NIPF, which incorporates the amalgam of the government’s intelligence both analysis and collection requirements. And there is a fairly rigorous inter-agency process in which the requirements of all the departments are gathered – the Department of Defense, Treasury, State, et cetera, as well as those on the national security staff and accordingly the President’s requirements are embedded in this document. That then represents the totality of the broad intelligence requirements laid on the intelligence community.

The intelligence community then in turn conveys those out to each of the respective functional managers for whatever collection discipline is applicable.

So to name a case that isn’t here, in the case of imaging requirements, that is translated to NGA [National Geospacial-Intelligence Agecy] and there are mechanisms then for actually translating those broad intelligence requirements into each one of the collection disciplines and then there are determinations made in terms of access and capability to actually fulfill that requirement.

NSA, in turn, has its own variation of this as it translates those NIPF requirements to SIGINT [signal intelligence] – actual specific SIGINT needs.

And so, that process is then – there are updates that are done once each quarter, and the totality of that is of course made available to both of our oversight committees. So that in general is how it works.

Rep. Mike Rogers (R-Michigan):
So would the CIA or the NSA be able to go out and establish its own collection parameters outside of the framework?

Director of National Intelligence James Clapper:
No, absolutely not. That is – part of the system, of course, is to ensure discipline and so we do only what the policymakers writ large have actually asked us to do. And of course, there’s a resource implication here as well, and that we’re not going to do things extemporaneously if we’re going to eat up resources, which in this day and age is getting scarcer.

Rep. Mike Rogers (R-Michigan):
I went back and checked, and we’ve had since I’ve been chairman of this committee, 294 oversight events just with the National Security Agency alone. In your estimation, Director Clapper, have they misled the committee on the parameters of going outside the parameters of the National Intelligence Priorities Framework?

Director of National Intelligence James Clapper:
I’m not aware of a case of that at all across any of the collection disciplines.

Rep. Mike Rogers (R-Michigan):
And would it be fair to say that the White House should know what those collection priorities are?

Director of National Intelligence James Clapper:
They can and do but I have to say that that does not necessarily extend down to the level of detail – and we’re talking about a huge enterprise here with thousands and thousands of individual requirements. So we don’t necessarily review with the White House what the forthcoming collection deck is, say, for overhead collection for tomorrow or which HUMINT [human intelligence] asset is recruiting which source or in the case of NSA which selector is being used to fulfill specific requirements. That is done at levels below the White House and the National Security staff. What they do – their engagement though is the output of all this in the form of intelligence analysis and production, and that is what they then use to tune the requirements, to update them, and to refine them.

Rep. Mike Rogers (R-Michigan):
So part of that framework, as my understanding, is that plans and intentions of foreign leaders would be important for the United States to know.

Director of National Intelligence James Clapper:
That’s a hearty perennial as long as I’ve been in the intelligence business – 50 years. Leadership intentions in whatever form that’s expressed is kind of a basic tenet of what we’re going to collect and analyze.

Rep. Mike Rogers (R-Michigan):
And why would that be important for policymakers to know what the intentions of foreign leaders might or might not be?

Director of National Intelligence James Clapper:
Well, for one, to determine if what they’re – from the intelligence perspective, if what they’re saying gels with what’s actually going on. It’s invaluable to us to know where countries are coming from, what their policies are, how that would impact us across a whole range of issues.

And it isn’t just leaders themselves. It’s what goes on around them and the policies that they convey to their governments.

Rep. Mike Rogers (R-Michigan):
And in certainly my time since being in this business as an FBI agent and since 2004 on this committee always found that the best way to determine a foreign leader’s intentions is to somehow get close to a foreign leader or actually get communications of a foreign leader. Would that be accurate?

Director of National Intelligence James Clapper:
Yes, it would.

Rep. Mike Rogers (R-Michigan):
And is, say for how many years you’ve been in the intelligence business for a very long time, is this something new and different that the intelligence community might try to target foreign leaders’ intentions to try to determine what the best policy might be for the United States?

Director of National Intelligence James Clapper:
It’s one of the first things I learned in intel school in 1963 that this is a fundamental given in the intelligence business is leadership intention no matter what level you’re talking about. That can be military leaders as well.

Rep. Mike Rogers (R-Michigan):
Do you believe that the allies have conducted or at any time any type of espionage activity against the United States of America – our intelligence services, our leaders, or otherwise?

Director of National Intelligence James Clapper:
Absolutely.

Rep. Mike Rogers (R-Michigan):
Are you familiar with a story recently from the former French head of the DCRI? Are you familiar with – ?

Director of National Intelligence James Clapper:
Essentially the French domestic intelligence organization.

Rep. Mike Rogers (R-Michigan):
Let me read you a quote from that gentleman. “I’m amazed by such disconcerting naivete”, he said in the interview. “You’d almost think our politicians don’t bother to read the reports they get from their intelligence services.” He’s talking about French spying on our allies, including the United States of America. Would you find that consistent with what you know as the Director of National Intelligence?

Director of National Intelligence James Clapper:
Yes, it is. And I have to say, Chairman Rogers, that some of this reminds me a lot of the classic movie – Casablanca. “My God, there’s gambling going on here!” You know, it’s the same kind of thing.

Rep. Mike Rogers (R-Michigan):
Director Alexander, in your experience as the Director of the National Security Agency, have the allies of the United States ever during the course of that time engaged in anything that you would qualify as an espionage act targeted at the United States of America?

NSA Director Gen. Keith Alexander:
Yes.

Rep. Mike Rogers (R-Michigan):
And that would be consistent with most of our allies’ – well, let’s just pick a place – the European Union.

NSA Director Gen. Keith Alexander:
Yes, it would, Chairman.

Rep. Mike Rogers (R-Michigan):
Okay. So – and this is ongoing today. This didn’t stop 2 years ago or last year or maybe last week? To the best of your knowledge?

NSA Director Gen. Keith Alexander:
Not to, to the best of my knowledge.

Rep. Mike Rogers (R-Michigan):
So you would argue that the ongoing counter-intelligence activities that we participate in both at all levels – and maybe both of you can answer this – that members of Congress go through, that our policy folks overseas go through, is still up to date and consistent that we should all be protected against espionage activities including when traveling amongst our allies in the European Union. Is that correct?

NSA Director Gen. Keith Alexander:
That’s correct, Chairman.

Director of National Intelligence James Clapper:
I agree and this is kind of a, I think, standard fare for anyone who travels overseas. And it’s also, I think, your comments and manifestation of the instances that I have tried to place since I’ve been in this job on our own counter-intelligence resources which I believe are still underfunded.

Rep. Mike Rogers (R-Michigan):
And this may be out of your bounds. I’ll ask it anyway. It’s striking to me that the parliament – certainly the parliamentary members who come in good faith and have discussions on these issues are not really fully aware of what their intelligence services are up to. Is that consistent with your career since 1963 when you talk about overseas intelligence services and their operations and how they’re compartmentalized away from their legislative bodies?

Director of National Intelligence James Clapper:
Yes, absolutely, Chairman. I think that comports with my experience that oftentimes policymakers who come and go may not have familiarity with exactly how their intelligence operations work. And I would also tell you that there is no other country on this planet that has the magnitude of oversight over our intelligence enterprise as we do.

Rep. Mike Rogers (R-Michigan):
And to that end, if I can, Mr. Alexander, there were some reporting that the story about French citizens being spied on by a particular slide that was leaked on a slide deck concluded that French citizens were being spied on. Can you expound on that a little bit? By the United States? By the way, specifically the National Security Agency?

NSA Director Gen. Keith Alexander:
Chairman, the assertions by reporters in France – Le Monde – Spain – El Mundo – in Italy – L’Expresso that NSA collected tens of millions of phone calls are completely false. They cite as evidence screen shots of the results of a web tool use for data management purposes but both they and the person who stole the classified data did not understand what they were looking at. The web tool counts metadata records from around the world and displays the totals in several different formats. The sources of the metadata include data legally collected by the NSA under its various authorities as well as data provided to NSA by foreign partners. To be perfectly clear, this is not information that we collected on European citizens. It represents information that we and our NATO allies have collected in defense of our countries and in support of military operations.

Rep. Mike Rogers (R-Michigan):
So if I understand you correctly, this information was likely collected external to the country of which it may have been reported in defense of operations ongoing in the world in which NATO participates. Is that correct?

NSA Director Gen. Keith Alexander:
That is correct.

Rep. Mike Rogers (R-Michigan):
And so let me just ask you this. If, as you’ve studied the networks of the world and let’s just talk about the European Union for a second, if I may. Is it possible for Chinese intelligence services military or otherwise to use networks you would find in any nation-states in the European Union?

NSA Director Gen. Keith Alexander:
Absolutely, Chairman.

Rep. Mike Rogers (R-Michigan):
How about Russian intelligence services? Is it possible that they could use networks – communications networks, computer networks – inside the European Union for what they’re up to?

NSA Director Gen. Keith Alexander:
Absolutely, Chairman.

Rep. Mike Rogers (R-Michigan):
How about Al Qaeda? Would they use – could they use – is it possible for them to use the networks found in the European Union to conduct planning operations or execution of operations?

NSA Director Gen. Keith Alexander:
Absolutely, Chairman.

Rep. Mike Rogers (R-Michigan):
And would it be in the purview of the National Security Agency to try to prevent those activities, especially if it went through the European Union and maybe even targeted at the United States or targeted at one of our allies?

NSA Director Gen. Keith Alexander:
It is, Chairman, and it is something that we share with our allies.

Rep. Mike Rogers (R-Michigan):
So you would collect information in those cases and share it with our allies in a way that was appropriated, is that correct?

NSA Director Gen. Keith Alexander:
That’s correct. And it may not be actually collected in Europe because it’s a global network.

Rep. Mike Rogers (R-Michigan):
But it could be in Europe but it could be somewhere else. Could be in the Middle East, could be in Asia, could be in the United States by a FISA warrant collected by the FBI. Is that correct?

NSA Director Gen. Keith Alexander:
That’s correct.

Rep. Mike Rogers (R-Michigan):
And so you share information with our European allies and if I understood you a minute earlier they share sometimes information they have with us.

NSA Director Gen. Keith Alexander:
They do, Chairman.

Rep. Mike Rogers (R-Michigan):
So the very certain accusation that the National Security Agency was collecting information on these citizens of the respective nation-states – I just want to get on the record again – is false. That did not happen, is that correct?

NSA Director Gen. Keith Alexander:
That’s correct. Those screen shots that show or at least lead people to believe that we – NSA or the United States – collected that information is false. And it’s false that it was collected on European citizens. It was neither.

Rep. Mike Rogers (R-Michigan):
Well, it certainly has created an international row but what I would argue is very poor, inaccurate reporting. Something that we’re going to have to deal with here in the future. I’m glad you clarified that – incredibly important.

Director Clapper, I’m going to ask you this: Given the recent row about leaders that may or may not have been collected or numbers that may have been in the possession of the U.S. intelligence services, what in fact any value of that information find its way to at least the National Security Council in the White House?

Director of National Intelligence James Clapper:
Well, it certainly could if you’re speaking – I’d rather not speak specifically but speaking in totality, clearly leadership intentions are an important dimension of the landscape out there for all policymakers, whether in the White House or elsewhere.

Rep. Mike Rogers (R-Michigan):
So just given your history – given that the likelihood that the intelligence committee – the House intelligence committee was aware of information that may be of value on any foreign leadership intention plan, wouldn’t it logically the administration would have access to that same information?

Director of National Intelligence James Clapper:
Well, as I indicated earlier in my description of the NIPF, it may not have information specifically related to a specific selector or any specific collection target. What they would see though would be the output of this in its total dimension.

Rep. Mike Rogers (R-Michigan):
Well, we’re dancing around the bush, but I can imagine if there were specific output on any of that – and we’re all talking almost hypothetical – it would be by certainly a trained intelligence professional would clearly understand that maybe the intelligence services were following the National Intelligence Priority Framework, is that correct?

Director of National Intelligence James Clapper:
Yes.

Rep. Mike Rogers (R-Michigan):
You know, we’re going to get on to the privacy issues. I just thought that was important to get out of the way out front.

I am a little concern about where we are that we’ve decided that we’re going to name our intelligence services at the earliest opportunity as the bad guys in the process of trying to collect information lawfully and legally and with the most oversight that I’ve ever seen. And as a matter of fact, we’re the only intelligence service in the world that’s forced to go to a court before they even collect on foreign intelligence operations, which is shocking to me. And yet, the very folks who have no view into their intelligence services have been screaming the loudest, including candidly some in the United States.

I hope we shake ourselves out of this.

When you look at Syria embroiled in a proxy war, the world that China is now threatening our Pacific allies, the fact that Iran is aggressively working toward a nuclear weapon, the Middle East is collapsing in front of us, heading towards sectarian violence in a way that we have never seen in the history of our country, and what that portends for those folks trying to find their way back both to our European allies and the United States. We have criminal gangs with access to technology that we’ve never seen before operating in every sector, every country of the globe. We have proliferators of chemical and radiological materials that certainly keep us up at night, working in every major nation-state in the world.

I’m a little taken aback that we’ve decided our intelligence services are to blame for what we have found again and again and again is absolutely inaccurate reporting.

And if we’re going to have this debate – and we should – then we should do it on the facts that are presented before us. And if you’ve all done something wrong, I think Gen. Alexander put it best, he knows we can bring out the wire brush, and we have done it. But the way we go forward is to make sure that our programs are protected and the people, by the way, who have taken those oaths and who are doing their best not be demonized in the process.

This is the time for leadership in a very dangerous and chaotic world. It is not a time to apologize.

I would hope that you will pass along to the individuals that hopefully they can keep doing the work and we’ll fight out the politics up here and we’ll get it right. We know that that 9/11 road was paved with a lot of very good intentions. We ought not to walk down that same road again.

Rep. Mike Rogers (R-Michigan):
…Some have talked about a permanent advocate in the FISA court. It makes me scratch my head a little bit. I can’t find that anywhere else where we might do it. Matter of fact, in a criminal grand jury, there’s no advocate on behalf of the person they’re seeking indictment. Is that correct?

Deputy Attorney General James Cole:
That’s correct. There’s no advocate. And even when a witness goes into a grand jury, they don’t go in and are not allowed to go in with an attorney. And in particular, probably the closest analogy is the acquisition of a wiretap for domestic criminal law enforcement and that doesn’t involve any sort of adversary process at all. That’s an ex parte process with just the government or the agent going in. Very similar to the FISA process that we have now.

Rep. Mike Rogers (R-Michigan):
And by design the court was supposed to be that – adversary is too strong a word – but they’re to check the compliance with the law and the constitution. Isn’t that correct?

Deputy Attorney General James Cole:
That’s correct. This is the constitutional protection – that a neutral magistrate who’s not involved in the investigation themselves is the one to make sure that there is in fact probable cause and all the legal and constitutional requirements are met before they’ll issue that order. That’s the role of the judge.

Rep. Mike Rogers (R-Michigan):
And so just to clarify, U.S. citizen is either – you decide that they have risen to the standard of probable cause, you would go to that particular judge, you make that articulation of what you believe that probable cause is. The judge would review that for legal propriety and either grant or deny the ability for the FBI – let’s say in this case – to get a wiretap on a particular phone on a United States citizen?

Deputy Attorney General James Cole:
That’s correct.

Rep. Mike Rogers (R-Michigan):
And committing a crime in the United States?

Deputy Attorney General James Cole:
That’s correct.

Rep. Mike Rogers (R-Michigan):
…Wouldn’t we be adding a higher level of protection for foreign citizens suspected of being terrorists overseas by giving them an advocate in the court that the U.S. citizen doesn’t get in criminal court?

Deputy Attorney General James Cole:
We would be adding a level of protection that goes much higher than what is given right now to U.S. citizens in the criminal courts, and we would also be delaying the process in a considerable – with a considerable amount of time added to it.

Rep. Jim Himes (D-Connecticut):
Mr. Chairman, I appreciate your line of questioning. But I’d suggest that actually the example is not really analogous because in an Article III court, while there’s no pre-trial adversarial process, when a criminal is brought to prosecution there is an adversarial process in which the defense can use a procedural error in that pre-trial process to have that case thrown out. So there is actually in an Article III court a very powerful incentive for an adversarial mode of thinking even when there’s not an adversarial process.

Rep. Mike Rogers (R-Michigan):
I understand you but now we’re talking about a new level of standard for a terrorist on foreign soil that we don’t provide to a U.S. citizen on any investigation, and if they’re brought to a Article III court, which has happened just recently they have all the same rights and responsibilities within the guidelines of court, including discovery. Is that correct?

Deputy Attorney General James Cole:
Including discovery and including the ability to challenge the FISA warrants that were issued in the case to determine whether they were issued properly.

Rep. Jim Himes (D-Connecticut):
But if I may, a very small minority of the FISA-oriented queries ultimately wind up in an Article III court.

Deputy Attorney General James Cole:
This is true, but again, I think as it’s been pointed out in the hearing in many other countries when they go to do intelligence collection, they don’t go to a court at all.

Rep. Mike Rogers (R-Michigan):
…There’s been another suggestion as opposed to having an advocate in the court without standing and create some constitutional problems there, that maybe you’d treat it like just a U.S. citizen would be treated in the sense that you would go to a U.S. Attorney with that [reasonable, articulable suspicion] standard for approval to the court versus the National Security Agency taking the [reasonable, articulable suspicion] standard to the court. Would that make sense? Would that be too cumbersome? Would that not be workable?

Deputy Attorney General James Cole:
You know, again, if you look at the analogy, the other place that the reasonable articulable suspicion standard is used in our system is for police officers to determine whether they can stop and frisk somebody. They have to have reasonable, articulable suspicion that that person is engaged in some sort of activity that could be illegal, and that’s a decision that’s made by the cop on the street at the time and it’s meant to be a relatively low standard but a protective standard to allow them to do this for public safety. So we’re in an area where we’re applying it in an area where there’s not any constitutional protection and we’re applying it in a way that I think needs to be nimble and needs to be consigned to the people who are actually applying it day-to-day.

Rep. Adam Schiff (D-California):
Just a follow-up to Mr. Hime’s point. I think most of the analogies to the criminal court process are really not on point for the reason that when you go to get a wiretap on a criminal court case, you’re not asking the court to grant the authority to wiretap the whole country or engage in a whole new broad program of collection. You have a specific target. Here, no one is, I think, suggesting that in the garden variety FISA case when you’re going up on a single target or it’s a garden variety warrant that we need an adversary in that court room. But when you are asking the court to bless an entirely new program like bulk metadata, that’s an action that I’m not aware of any other court undertaking without at least hearing from another party. And that’s why I don’t think the criminal analogy is really on point.

Deputy Attorney General James Cole:
Well, as I understood the Chairman’s question, he was looking at the individual warrant that would be issued for people in the United States, be they citizens or non-citizens where there’s the court involved in the probable cause determination in making that comparison. We’ve said all along that in something like a novel issue or a bulk collection issue where there is significant privacy concerns that are implicated that we see an appropriate role for an amicus that can come in at that point as the court sees fit in order to give the court the benefit of another perspective. We’ve always talked in terms of that being something that could be beneficial.

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