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

Partial transcript of Rep. Adam Schiff’s (D-California) 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. Adam Schiff (D-California):
Thank you gentlemen for being here. Thank you for your service. I have a question for Director Clapper and one for Director Alexander.

Director Clapper, under the National Security Act of 1947 the intelligence community is required to keep Congress informed – the intelligence committees informed – of significant intelligence activities. Without confirming or denying the most recent press reports of eavesdropping on the leaders of allied countries, would you consider the wiretap on the leader of an allied country to be a significant intelligence activity required to be reported to the intelligence committee?

Director of National Intelligence James Clapper:
In the context of what we try to keep the Congress informed on, in the totality of what we are charged to do in the the NIPF, and in what we submit in our congressional justification books, we think we by in large met – complied with the spirit and the intent of the law. It’s not to say we couldn’t do more. I have put a lot of emphasis on written congressional notifications to the Congress since I’ve been in this job and I think the statistics would bear that out. The fact that we don’t necessarily report each and every selector and that we’re dependent on the general rubric of leadership intentions, I mean, I guess that’s something we could discuss as to whether that level of detail is required in the form of congressional notification. But I believe – and I have striven to make this happen – that we have lived up to the letter and spirit of that requirement.

Rep. Adam Schiff (D-California):
Director, I’m not perfectly sure what to make of that answer. I think that if you’re tapping the phone line of a foreign leader and ally that is a significant intelligence activity that should be reported to the committee. And I don’t mean reported in general terms. In other words, telling the committee – and I’m not saying this is the case – but if you were to tell the committee that you have high confidence that this country – Germany or France or another – would continue its troop commitment in Afghanistan after a certain date but you don’t tell us why you have that high confidence, I wouldn’t consider that informing us of something that is a very significant intelligence activity. And I would certainly think in an intelligence activity we undertake that has the potential for the kind of blowback we’re seeing today would be something that you would want to report in considerable detail to the committee.

Director of National Intelligence James Clapper:
Well, sir, there are many things we do in intelligence that, if revealed, would have the potential for all kinds of blowback.

Rep. Adam Schiff (D-California):
I don’t doubt that. But those are exactly the things that should be reported to the committee because it’s a policy decision ultimately for us to make. Is it worth the risk? Is it worth the risk of that blowback in light of the information that we gather? So I think we have a lot more work to do with you to make sure that we’re getting the information that we need.

Director of National Intelligence James Clapper:
Well, the conduct of intelligence is premised on the notion that we can do it secretly and we don’t count on it being revealed in the newspaper. So that would change the criteria obviously. And if what we embark on in the way of a collection activity because of its potential blowback if revealed publicly, that’s a higher threshold or a lower one, I guess, for providing more notification.

Rep. Adam Schiff (D-California):
Well, I find it very hard to understand why if this information was deemed too sensitive to be shared with the intelligence committee, it was not so sensitive that it wasn’t accessible to a low-level systems analyst like Mr. [Edward] Snowden. That makes no sense to me whatsoever.

Director Alexander, if I could ask you on the metadata program. If you believe that this could be done technologically, that is, move the data to the telecommunications providers, allow them to retain their data and we can get all the information we need when we have a need to get it, why not undertake that now on your own? Why wait for legislation to require it? Why not go to the FISA court order and say we’re going to request instead a program in which we go to the communications providers with a particular number, with a selector, when we have reason to believe it’s connected to a plot? And why not announce to the country “We hear you. We’re making this restructuring. We can get the information we need and we can do so in a way that’s more protective of the privacy concerns that have been raised”?

NSA Director Gen. Keith Alexander:
So the issue would be…right now, in terms of – we would have to have a change in statute in order for them to keep it, I believe, at the service providers. So that’s where you come in. We couldn’t compel them or get them to keep this data, and the courts could not do that as I understand it.

Deputy Attorney General James Cole:
That would be correct. There’s no statutory requirement for them to keep it for the length of time that we’re looking at. Be it either 3 years or 5 years, we would have to have that as a separate piece of legislation to give us that kind of longevity confidence.

Rep. Mike Rogers (R-Michigan):
I just want to clarify the record on this that this committee is briefed on the National Intelligence Priority Framework and its changes – ongoing changes. As an example, the NSA has in the last 3 years 292 different occasions been a part and engaged by this committee – both members, staff or both. We go through this through our budget planning, which is extremely thorough, which also in our classified annex talks about activities that are sensitive to the national security of the United States. All of the products of the intelligence community of which we are consumers are available to the committee. Sources and methods unlike any other committee here in this Congress are available to this committee.

I would argue to make the case that somehow we are in the dark is mystifying to me. Some members spend a lot more time on this committee than others based on their schedules, which are significant in this Congress. But it is disingenuous to imply that this committee did not have a full and complete understanding of activities of the intelligence community as was directed under the National Intelligence Priority Framework to include sources and methods.

Rep. Adam Schiff (D-California):
…Mr. Chairman, are you suggesting that you and the committee were informed of the wiretapping of foreign leaders if that report is correct?

Rep. Mike Rogers (R-Michigan):
Well, I wouldn’t confirm any specific activity by the intelligence community, but as the gentleman knows – as I have highlighted – that we have access to all sources and methods, and there is lots of products to be reviewed by the intelligence committee through the intelligence committee and through the members of the committee. And any implications that through those reviews that this committee would not be informed to the status that has been in question is not correct.

[Overlapping audio]

Rep. Adam Schiff (D-California):
…And I think it would be disingenuous, Mr. Chairman, to suggest we have information if we don’t have it. So I would like to find out just what we were informed by the intelligence community and I would also like to find out if this is in the posture that you sometimes see in litigation where you’re given a warehouse full of documents…

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