Nomination of J. Patrick Rowan to be Assistant Attorney General for National Security (September 25, 2008)

[Senate Hearing 110-936] [From the U.S. Government Printing Office] S. Hrg. 110-936 NOMINATION OF J. PATRICK ROWAN TO BE ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY ======================================================================= HEARING BEFORE THE SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION __________ SEPTEMBER 25, 2008 __________ Printed for the use of the Select Committee on Intelligence Available via the World Wide Web: http://www.access.gpo.gov/congress/ senate U.S. GOVERNMENT PRINTING OFFICE 53-268 PDF WASHINGTON : 2009 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 SELECT COMMITTEE ON INTELLIGENCE [Established by S. Res. 400, 94th Cong., 2d Sess.] JOHN D. ROCKEFELLER IV, West Virginia, Chairman CHRISTOPHER S. BOND, Missouri, Vice Chairman DIANNE FEINSTEIN, California JOHN WARNER, Virginia RON WYDEN, Oregon CHUCK HAGEL, Nebraska EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine BILL NELSON, Florida RICHARD BURR, North Carolina SHELDON WHITEHOUSE, Rhode Island HARRY REID, Nevada, Ex Officio MITCH McCONNELL, Kentucky, Ex Officio CARL LEVIN, Michigan, Ex Officio JOHN McCAIN, Arizona, Ex Officio ---------- Andrew W. Johnson, Staff Director Louis B. Tucker, Minority Staff Director Kathleen P. McGhee, Chief Clerk CONTENTS ---------- SEPTEMBER 25, 2008 OPENING STATEMENTS Rockefeller, Hon. John D., IV, Chairman, a U.S. Senator from West Virginia....................................................... 1 Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from Missouri....................................................... 3 WITNESS Rowan, J. Patrick, Nominee to be Assistant Attorney General for National Security.............................................. 4 Prepared statement........................................... 5 SUPPLEMENTAL MATERIAL Prehearing Questions and Responses............................... 20 Questionnaire for Completion by Presidential Nominees............ 51 Letter from Don W. Fox, Office of Government Ethics, Dated June 26, 2008 Transmitting Public Financial Disclosure Report....... 69 July 23, 2003 Congressional Testimony............................ 80 July 20, 2006 Congressional Testimony............................ 84 January 29, 2008 Congressional Testimony......................... 92 NOMINATION OF J. PATRICK ROWAN TO BE ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY ---------- THURSDAY, SEPTEMBER 25, 2008 U.S. Senate, Select Committee on Intelligence, Washington, DC. The Committee met, pursuant to notice, at 2:39 p.m., in Room SDG-50, Dirksen Senate Office Building, the Honorable Jay Rockefeller (Chairman of the Committee) presiding. Committee Members Present: Senators Rockefeller, Wyden, Bond, and Warner. Chairman Rockefeller. The Committee will come to order. We meet to consider the nomination of J. Patrick Rowan to be Assistant Attorney General for National Security. I would like to begin by congratulating the nominee and asking whether--as I sorely suspect is the case--he has anybody he'd like to introduce. Mr. Rowan. Yes, Senator. Thank you for providing me that opportunity. Behind me here is my mother, Anne Rowan, a retired math teacher, and my father, William J. Rowan, who is a judge in the Montgomery County Circuit Court in Maryland. I'm also joined by a number of my colleagues from the Department of Justice, including a number of colleagues from the National Security Division. I really appreciate that they're able to come as well. Chairman Rockefeller. Good. We welcome you. A math teacher and judge. Mr. Rowan. A lot to live up to. Chairman Rockefeller. Yes. OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A U.S. SENATOR FROM WEST VIRGINIA In the PATRIOT Act Reauthorization in 2006, Congress established the National Security Division of the Department of Justice and the position of Assistant Attorney General to head that division. That legislation also established a somewhat unique, at least rare, procedure which brings to our Intelligence Committee the nomination of a Justice Department official. The nomination was first considered by the Judiciary Committee, which favorably reported it two weeks, glad to say. It was then automatically referred to our Committee. There is an important reason why the 2006 statute provided for an automatic sequential referral to the Intelligence Committee. The Assistant Attorney General for National Security carries out intelligence-related functions that are at the heart of the legislative and oversight responsibilities of this Committee. These include representing the government before the FISA Court and being the government's chief counterterrorism and counterespionage prosecutor. Mr. Rowan is a career Department of Justice prosecutor who has rendered very important service in the U.S. District Attorney's Office in the District of Columbia, at the FBI, and in several offices in the Department of Justice. Of particular relevance to the nomination that brings him here today, Mr. Rowan has been in the leadership of the National Security Division from its beginning in 2006. He first served there as Principal Deputy Assistant Attorney General. In that capacity, he managed the Department of Justice's national security investigations and prosecutions. And from April, 2008 to the present he has been the Acting Assistant Attorney General. That's the only thing I don't like about the Justice Department, is all the assistant levels. It's difficult for those of us who aren't in that profession. But that's not your fault. Mr. Rowan. It certainly is. Thank you. Chairman Rockefeller. Mr. Rowan has obviously earned the confidence of Attorney General Mukasey, and I am advised that the Director of National Intelligence, DNI, strongly supports his nomination. We treat both as high recommendations. If confirmed, Mr. Rowan will head his office at a time of important challenges and responsibilities for the National Security Division. The National Security Division has a leading role in implementing the recently-passed FISA Amendments of 2008--a very noncontroversial matter--in a manner that is true to the twin objectives of the law--providing for the effective collection of intelligence and preserving the liberties and privacy of Americans, if those two are entirely reconcilable. And that's, I would think, one of the fascinations of what probably lies before you. Robust congressional oversight of the new law, as well as older parts of FISA that were unchanged by that law, is essential. Our ability to conduct this oversight will depend on full and informative reporting by the Attorney General, which will rely in turn on comprehensive and penetrating reviews and reporting by the National Security Division. Our oversight responsibilities will be particularly important in areas that are not subject to judicial review. Key among them is the adequacy and adherence to the Attorney General's guidelines required by the FISA Amendments to ensure adherence to the Act's limitations, including the prohibition on reverse targeting. We will be looking forward to the National Security Division's full participation in that effort. It is not too soon to note that several FISA provisions added by the 2001 PATRIOT Act, and extended in the 2006 reauthorization, will sunset at the end of 2009. One is the business records title of FISA. A challenge Congress will face that will also occur when provisions of the FISA Amendments sunset at the end of 2013 is how to enable public considerations of interpretations of these laws by the FISA Court and its Court of Review. We would welcome the nominee's thoughts on what he would do, if confirmed, to work with those courts and the intelligence community to release publicly any opinions on important issues of law, to the extent consistent with national security. There are important challenges for the National Security Division apart from FISA. The Assistant Attorney General is the government's chief counterterrorism prosecutor. The time is rapidly approaching when, in my opinion, this Senator's opinion, there needs to be a thorough reconsideration of the effort to substitute military commissions for military court martial or federal criminal trials. Simply put, seven years have passed since the terrorist attacks of September 11th, and more than that since the USS COLE attack. And it is clear that the effort to bypass established ways, both military and civilian, for trying terrorism cases has failed to bring to justice the participants in those attacks. While the nominee may be limited in what he can say at this time, I hope that if confirmed he will quickly and energetically make the National Security Division an active participant in the search for a better course. I now turn to the distinguished Vice Chairman for his opening remarks. OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A U.S. SENATOR FROM MISSOURI Vice Chairman Bond. Thank you, Mr. Chairman. I join with you in welcoming Mr. Rowan, his parents, Judge and Mrs. Rowan. You have adequately described, Mr. Chairman, very eloquently how we got to this position. I add just a few comments about Mr. Rowan's predecessor, Ken Wainstein, now serving as the President's Homeland Security advisor. We provided an outline for this position, but there are many competing visions and some very strong opinions on what the NSD should look like. And I think Ken sifted through them and made some very tough decisions. So far, overall it appears to me that they were good decisions, and for that we owe Ken our country's gratitude and praise. There is still a lot to be done. Executive Order 12333 and its implementation to NSD will be on the frontline. As the Chairman said, the IC continues to implement this summer's FISA Act amendments and the new extensive oversight and reporting requirements on the IC and the NSD. As I understand it, virtually on a daily basis the FBI seeks FISA applications for physical search, electronic surveillance on terrorists, spies inside the U.S. It has to be drafted by the NSD in coordination with the FBI. And that's why I think it's important that we get a permanent leader at the helm. Having a Senate-confirmed AAG would enable him to act in the place of the Attorney General to certify FISA applications or authorize emergency FISAs when the Attorney General is not available. And if we cannot confirm him, that means there could be lengthy delays while we wait to track down General Mukasey. There are also a number of other issues we'll get into on the proposed new guidelines for FBI criminal national security investigations. And I'd like any wisdom you have as a career prosecutor and solid security experience if this works well, and I also look forward to hearing your opinion on the impact the FISA Act amendments have had on the National Security Division in its processing of FISA applications. But Mr. Chairman, since we're running very short of time, I hope we can move it quickly to the floor, assuming that none of the people here have any problems with this nominee, that we could get him confirmed before we leave town to give the Attorney General the resources he needs. I thank the Chairman and thank our witness. Chairman Rockefeller. I agree with the Vice Chairman. Mr. Rowan, we will welcome your opening statement at this point. STATEMENT OF J. PATRICK ROWAN, ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY-DESIGNATE Mr. Rowan. Thank you, Chairman Rockefeller, Vice Chairman Bond. It's my pleasure to appear before you today as the President's nominee to be the second Assistant Attorney General for National Security. As a federal prosecutor and attorney for the FBI and in my work in the last several years at the Department of Justice, I've devoted much of my career to protecting the security of this nation and its citizens while defending our civil liberties. I hope to have the opportunity to continue this service as the Assistant Attorney General for National Security. At the outset, I'd like to thank you for holding this hearing, knowing the many pressing demands you face at the end of this Congress and in this period of financial crisis. I appreciate your support for the critical mission of the National Security Division. Since the attacks of September 11th, 2001, the first priority of the Department of Justice has been combating terrorism and other threats to our national security. The department worked hard in the years immediately following September 11th to fulfill this mission, but it became clear that a restructuring of the department was needed. The President and the Congress authorized the creation of the National Security Division, and we've been up and running for almost two years now. We've made significant strides in realizing the benefits of bringing together the department's prosecutors and its counterterrorism and counterespionage sections with its intelligence lawyers in the Office of Intelligence Policy Review to form a new, streamlined national security organization. As one who's been there since the beginning, I'm proud to report that the transition has gone well. Our new structure enables us to provide quick, fully coordinated responses to national security threats. Of particular importance to this Committee, the creation of the division makes the department more responsive to the needs of the intelligence community by having the Assistant Attorney General for National Security provide a single Justice Department point of coordination and contact for our colleagues in the intelligence community. If confirmed, I will act as the primarily liaison to the Director of National Intelligence, and I look forward to developing further the already strong relationship between our offices. I recognize that congressional oversight plays an important role in promoting accountability and improving government operations, especially those of the intelligence community. I'm committed to ensuring that we provide information responsive to Congress's oversight needs, consistent with our law enforcement and national security responsibilities, in a thorough and expedited manner. Specifically, I look forward to discussing national security issues of significant interest to this Committee, including what the National Security Division has done and is planning to do to implement the FISA Amendments Act. I'd like to pause here to thank this Committee for its invaluable and tireless efforts in pursuing the modernization of FISA. It was a historic achievement, and I'm proud that the NSD was a part of it. In conjunction with the DNI and the agencies of the intelligence community, the NSD has made significant strides in implementing the FISA Amendments Act. And in particular, consistent with Section 702 of the FISA Amendments Act, the NSD has taken appropriate steps to ensure there's an efficient and effective transition from the Protect America Act to the newly enacted authority. The specific details of the certifications and related procedures are necessarily classified and must remain so. Staff members of this Committee have been fully briefed on these certifications and related procedures and any court action on them. In addition, the NSD has implemented other provisions of the FAA, including provisions that streamline the applications under FISA. In closing, I want to thank the President and the Attorney General for the trust they have placed in me. I want to assure this Committee that if I'm confirmed I'll continue to devote all my energies to the mission of protecting our national security and defending the civil liberties and freedoms that give meaning to our security. I look forward to working with the Committee should I be confirmed as an Assistant Attorney General, and I welcome any questions that members of the Committee may have. [The prepared statement of Mr. Rowan follows:] Prepared Statement of J. Patrick Rowan Chairman Rockefeller, Vice Chairman Bond, Members of the Committee: It is my pleasure to appear before you today as the President's nominee to be the second Assistant Attorney General for National Security. As a federal prosecutor, Special Counsel for the Office of General Counsel of the Federal Bureau of Investigation, Associate Deputy Attorney General, Principal Deputy Assistant Attorney General in the National Security Division, and Acting Assistant Attorney General for National Security, I have devoted much of my career to protecting the security of this nation and its citizens and defending our civil liberties. I hope to have the opportunity to continue this service as the Assistant Attorney General for National Security. At the outset, I would like to thank the Chairman, Vice Chairman, and the Members of the Committee for holding this hearing knowing the many pressing demands you face at the end of this Congress and in this period of financial crisis. I appreciate your support for the critical mission of the National Security Division. Since the attacks of September 11, 2001, the first priority of the Department of Justice has been combating terrorism and other threats to our national security. The Department worked hard in the years immediately following September 11th to fulfill this mission, but it became clear that a restructuring of the Department was needed. The President and Congress authorized the creation of the National Security Division. The Division has been up and running now for almost two years and we have made significant strides in realizing the benefits of bringing together the Department's prosecutors in its Counterterrorism and Counterespionage Sections with its intelligence lawyers in the Office of Intelligence Policy and Review to form a new, streamlined national security organization. I am proud to report that the transition has gone well and the National Security Division now consists of the fully integrated Office of Intelligence (01) (formerly the Office of Intelligence Policy and Review), the Counterterrorism and Counterespionage Sections, and a new Office of Law and Policy devoted to national security issues. Our new structure enables us to provide quick, imaginative, and agile responses to national security threats. Of particular importance to this Committee, the creation of the Division makes the Department more responsive to the needs of the Intelligence Community by having the Assistant Attorney General for National Security provide a single Justice Department point of coordination and contact for our colleagues in the Intelligence Community The Attorney General expects that the National Security Division will continue to pursue the following primary objectives that led to the creation of this new division: the centralization of the management of the Department's national security program; the coordination of operations and policy across the national security spectrum; the implementation of comprehensive national security oversight; and the further development of national security training and expertise. If confirmed, I will act also' as the primary liaison to the Director of National Intelligence (DNI) and I look forward to developing further the already strong relationship between our offices. In addition, the Attorney General expects that if confirmed I will help ensure that our national security responsibilities are met during the first transition of government following September 11, 2001. I recognize that congressional oversight plays an important role in promoting accountability and improving government operations, especially those of the Intelligence Community and, if confirmed as the Assistant Attorney General for National Security plan to actively participate in the congressional oversight process. In my previous positions at the National Security Division I have participated directly in the oversight process by testifying at hearings before House Committees and by briefing numerous members of the Senate and House, as well as the staff of their committees. I am committed to ensuring that we provide information responsive to Congress's oversight needs, consistent with our law enforcement and national security responsibilities, in a through and expedited manner. Specifically, I look forward to discussing national security issues of significant interest to this Committee, including what the National Security Division has done and is planning to do to implement the FISA Amendments Act (FAA). I would like to pause here to thank this Committee for its invaluable and tireless efforts in pursuing the modernization of FISA. It was an historic achievement, and I am proud that the NSD was a part of it. It will always serve as a reminder of what we can achieve when we work together. In conjunction with the DNI and the agencies of the Intelligence Community, the NSD has made significant strides in implementing the FISA Amendments Act. In particular, consistent with Section 702 of the FAA, the NSD has taken appropriate steps to ensure there is an efficient and effective transition from the Protect America Act to the newly enacted authority. The specific details of the certifications and related procedures are necessarily classified and must remain so. Staff members of this Committee have been fully briefed on these certifications and related procedures and any court action on them. In addition, the NSD has implemented other provisions of the FAA including provisions that streamline applications under FISA. In closing, I want to thank the President and the Attorney General for the trust they have placed in me. I want to assure this Committee that if I am confirmed, I will continue to devote all my energies to the mission of protecting our national security and defending the civil liberties and the freedoms that give meaning to our security. I look forward to working with this Committee should I be confirmed as the Assistant Attorney General for National Security and I welcome any questions the members of this Committee may have. Chairman Rockefeller. Thank you, sir. We have our tradition, Mr. Rowan, and we always ask individual questions of our members before we get to that. We have several questions that we ask all of our nominees. Do you agree to appear before the Committee here or in other venues when invited? Mr. Rowan. Yes, Senator. Chairman Rockefeller. Do you agree to send officials from the National Security Division to appear before the Committee and designated staff when invited? Mr. Rowan. Yes, Senator. Chairman Rockefeller. Do you agree to provide documents or any other material requested by the Committee in order for it to carry out its oversight and legislative responsibilities? Mr. Rowan. I do, Senator. Chairman Rockefeller. You're sure about that? Mr. Rowan. Yes. Chairman Rockefeller. Will you ensure that the National Security Division provides such material to the Committee when requested? Mr. Rowan. I will, Senator. Chairman Rockefeller. Good. Well, you're virtually confirmed. As I said in my opening statement, seven years after the attacks on 9/11, eight years--seems a lot longer since the attack on the USS COLE--it's clear that the effort to bypass established ways, both military and civilian, for trying terrorism cases has failed to bring to justice the participants in those attacks, and it's a rather stunning fact, because they were very large events. From your long experience in the U.S. Attorney's Office, at the FBI, in the Criminal Division at Justice, and now in the National Security Division, can you describe both the challenges and the successes that the Department of Justice has had in trying terrorism cases in the United States district courts? Specifically, I would like your comments on the risks posed by abusive interrogation methods to the ability of the United States to successfully prosecute terrorists. Mr. Rowan. Well, Senator, there are, obviously, quite a few examples in which we've been able to successfully prosecute in the federal criminal courts individuals involved in international terrorism. There's obviously been a number of successful trials in the Southern District of New York. The most recent case involving something associated with the 9/11 attacks, of course, is Mr. Moussaoui's prosecution and conviction in the Eastern District of Virginia. And that case is actually, I think, an example of, on the one hand, how we have very talented, very dedicated prosecutors who are dealing with very experienced judges, and they work their way in a very impressive fashion through some very difficult problems--problems with the classified information that is put at risk by a prosecution, problems with a defendant who doesn't accept our courts as being legitimate in the first instance, the myriad of issues that everybody who watched the Moussaoui case saw arise. And the court and the prosecutors and the defense attorneys, all being very professional, worked their way through them, and of course, he's been convicted. At the same time, I think it's fair to say that wasn't an easy road. There were a lot of difficulties that were encountered along the way. So I think it demonstrates that these cases do present unique challenges for our courts, particularly in the context of protecting classified information. Mr. Moussaoui was someone who obviously was caught here in the United States and quickly placed in immigration custody. I think it's even more challenging when you consider the examples of individuals who are detained and there's a concern that they have urgent threat information. And so the first interest of the government is what kind of intelligence information can we get from this person? So I think that wrinkle is what adds a great deal of complexity to the problem that we face. And I think that that issue is one that we have tried to work on on a case-by-case basis, but we struggle with that in each instance. Chairman Rockefeller. Okay. That doesn't sort of get at the--I know it's a popular subject, and I don't want you to think that I'm starting out in a badgering mood, but the whole question of the so-called abusive techniques thing. Because, as you know, there are schools of thought on that, some saying, particularly the FBI and the military officials, JAG officials, et cetera, that you don't get your best information that way, and others saying that that may be true in a variety of cases, but sometimes you just have to--if there's an imminent national security--something that you see on the horizon, and this person might be able to tell you about that. How that would be surmised I don't know. Do you have any thoughts on that? Mr. Rowan. Again, my experience has been as a federal prosecutor, and in that context I've certainly seen how effective an experienced FBI agent can be in building rapport and extracting information from a defendant when it's clearly not in his interest to provide that information. So I certainly have a great deal of respect for a rapport-building technique. I think that they are difficult issues when you're trying to--when you're on the front line of trying to determine how to interrogate a person where there's a concern about them having imminent information. I do think that, regardless of what technique you're pursuing, that we need to keep in mind that the Miranda model, which we obviously use here in the United States, is a difficult one to apply. I'm not talking about coercion. I'm talking about like the traditional set of protections that we have expected to be provided to detainees when we want to use their statement in an Article 3 court. I think that the Miranda protections are difficult to square with some of the urgencies of overseas interrogations. You know, I think there's plenty of room, obviously, over and above Miranda, to determine how an interrogation should take place, and I think that we are now in a better position than we've ever been to judge the relative adequacy and effectiveness of rapport-building techniques against more coercive techniques. And we're obviously also working through in the military commissions context how do we address statements that were obtained in the aftermath of techniques that were certainly more aggressive than the classic FBI rapport-building techniques. So to the extent that there continues to be a substantial disagreement about how to go about this, I would hope that we would at least be able to draw on everything that we've learned over the last years since 9/11 as the entire intelligence community and the law enforcement community was mobilized to try to extract information. We've got a lot more experience now than we did on 9/11. Chairman Rockefeller. I want to pursue that a little bit, but my time is up. Vice Chairman Bond. Vice Chairman Bond. Thank you very much, Mr. Chairman. I am concerned about some of the implications of trying to apply all of our constitutional protections for U.S. citizens to people we may detain on the battlefield. Obviously, we have standards by which they must be handled, but exposing in public witnesses who may be undercover assets--there are a lot of things that I'm concerned about. So we will get into the discussion of what kind of justice system is appropriate. I would like to turn to the new Attorney General guidelines. As I said, you're a prosecutor. You were with the FBI in the National Security Division. What's your personal opinion of it, or did you have such a big hand in writing it that that's your handiwork? Mr. Rowan. Senator, the National Security Division, we did have plenty of opportunity to input into the new guidelines, so I am somewhat biased, but I believe even if I did not have that bias I would have little trouble concluding that the basic premise of the guidelines--which is we should have one set of guidelines for all investigations--is a rock solid point. I think it really is the case that FBI agents in the field are very concerned about following the guidelines properly. The amount of confusion that can result when you don't know which box you're in, and so therefore you're not sure which guidelines to pull out and refer to, can be maddening at the least, if not dangerous to agents in the field. Vice Chairman Bond. Good. Quick question. Since the FISA Act Amendments were signed earlier this summer, have you seen any benefit in attorney resources, improved oversight? How is that working? Mr. Rowan. Well, it's a little bit early, I think, to say with any certainty, but so far we are starting to see numbers that would suggest that we're going to enjoy--that the amount of work that's going to be done under Section 702 is such that our attorneys are going to have a little bit more time for the oversight work that is also, obviously, required by the FISA Amendments. So I think we are going to find over time that it will reduce the demands on our resources, particularly in the context of Section 702 coverage, and we will hopefully then have more of an opportunity to pursue other FISAs that maybe people haven't been in a position to pursue in the past, and more generally, we'll certainly have more time for our oversight work. Vice Chairman Bond. Well, we really want to make sure you are exercising oversight to accomplish the additional duties and observe the additional limitations placed in the amendments. I think that's important. I understand the Executive Order has been drafted. Do you know when it will be signed by the President to designate a Deputy Director of the FBI to certify FISA applications? Do you know where that stands? Mr. Rowan. Senator, I don't. Like you, I'm aware that it has not yet been signed, but I'm not certain of where beyond that it is. Vice Chairman Bond. Can you tell us briefly the steps you're taking to ensure that the privacy interests of U.S. persons are being protected when the government requests or implements a FISA order? Mr. Rowan. Well, Senator, you know, obviously, we have minimization procedures that we were required to put into place under FISA, and those procedures are something we've spent a lot of time working on. It's an issue that we want to make sure that the procedures themselves are up to date, that they are consistent with the age of information sharing that we are in now. I think we are doing a reasonably good job of updating them to ensure that U.S. person information is properly protected under those procedures while at the same time giving the members of the intelligence community, the FBI and the other agencies, the opportunity to share the proper information. Vice Chairman Bond. NSD has reviewed FBI's use of national security letters. Have you identified any abuses? Mr. Rowan. Nothing--you know, Senator, we've been doing these field office reviews since 2007, since the IG determined that there had been abuses of national security letters. And to my knowledge, while we've done a number of those reviews in field offices, both in 2007 and so far in 2008, we do provide feedback to the FBI. Certainly what we have observed so far is that the FBI is learning the lessons of what happened with national security letters. And I don't have knowledge that we've uncovered anything like a systemic problem that existed. Vice Chairman Bond. Thank you. We'll be interested to hear if you do, and, Mr. Chairman, I'm going to have some other routine questions, informational questions, I'm going to submit to the nominee for his reply. One or two of them may require a classified answer. I apologize, but not surprisingly, I've got a few other things to do this afternoon for a change. Chairman Rockefeller. Are you the one with the $700 billion in your hip pocket? Vice Chairman Bond. No, but I've got a couple of strings on it. I want to make sure that it works right. Chairman Rockefeller. Thank you. Vice Chairman Bond. Thank you. Chairman Rockefeller. Senator Wyden. Senator Wyden. Thank you, Mr. Chairman, and let me thank the nominee. I've very much enjoyed our visit and the chance to get together. As I indicated to you, when the Committee was writing the Foreign Intelligence Surveillance Act Amendments, I authored the legislation to expand privacy protections for the law- abiding Americans who travel overseas. It was co-authored with Senator Feingold and Whitehouse. Senator Rockefeller and Vice Chairman Bond were all involved. So it was a great deal of effort from our Committee on it. The amendment said if the government wants to target the communications of an American overseas, the government would have to get a warrant, just like it would if the American was located in the United States. So my first question is, now that the amendment has become law, is the process of implementing it going smoothly? Mr. Rowan. Thank you, Senator, for that question, and I do appreciate the opportunity to have met with you the other day. As I told you then, we have implemented--the provision you're referring to we know as Section 704. We have implemented Section 704, and we have not encountered any obstacles in the course of implementing that provision. Senator Wyden. And this is an open session, but because I want this to be a learning experience, let's see how much additional information we can put on the record. Has the Department gotten warrants already? Mr. Rowan. We have used Section 704 to get warrants. I would be uncomfortable getting into a number, but I'm certainly comfortable telling you that we have used it to get warrants. Senator Wyden. And it's fair to say--and again, I want to respect the fact we're an open session you all have used it multiple times already. Mr. Rowan. Certainly more than once. Senator Wyden. Okay. With respect to the timeliness question--this was something we worked with the Vice Chairman on, we worked with the Department on, because we all felt very strongly about making sure that when we really were dealing with those individuals that represented a threat to our country we had to be in a position to move in a timely fashion--have you all felt that you could pursue these warrants and still protect the security interests of the United States in a timely way? Mr. Rowan. Senator, I'm not aware of us having any timing problems in connection with our implementation of Section 704. Senator Wyden. Very good. Let me just ask you one other question, again because you in the private session did really address many of my concerns. I want to see what can be done in cooperation with the Executive Branch and the Judicial Branch to provide greater access to the opinions of the Foreign Intelligence Surveillance Court. As we talked about, it seems clear to me that you've got to make sure that any matter that goes to targets or collection methods, the kinds of things that are operational, absolutely has to remain classified. But at the same time I want to make sure that when you're talking about legal analysis, for example, interpretations, matters that don't go to these operational matters involving targets and collection methods, I think that that kind of area ought to be something that there could be opportunity for more understanding by the people of this country and how the courts handle these matters. First, do you think that that's the case? Do you think that more of this can be given broader access? And two, if confirmed, would you be willing to work with me--and we'll do this in a bipartisan fashion here under the Chairman and the Vice Chairman--work with this Committee to try to strike the right balance, to keep classified court matters that absolutely must be classified, but get these issues of legal analysis and interpretations--to find a way to make more of that accessible. Mr. Rowan. Senator, with respect to the second question, I certainly would be willing to work with you and other members of the Committee on the issue. We are aware of the importance of trying to identify those decisions that can be released to the public. The problem that we've run into on occasion when we've looked at this in connection with specific decisions is that the analysis and the facts are so intertwined that there's really nothing left that's meaningful once we declassify it. That's not to say that we wouldn't continue to look at this and work on this, but it's a bit more of a challenge than I think one would have imagined in the abstract. We do recognize it's an important issue. Obviously, the FISA Court of Review decision from 2003 is very important, that that's a matter of public record, and so we do feel that we need to keep a very close eye to determine if there are decisions that we can assist in getting released so the public will get some sense of what's going on with the FISA Court. Senator Wyden. My time is expired. I understand that there are a number of these areas that are intertwined, where you're talking about legal analysis and you're talking about facts. At the same time, I think that to have the kind of informed, reasonable debate about national surveillance law, people have got to understand how these laws are interpreted by the courts. And I will especially look forward to the fact that you're willing to work with us, because I think it is possible to strike a balance and expand access and still be sensitive to protecting matters that absolutely have to be protected to ensure the security of the country. Thank you, Mr. Chairman. I've been very impressed with Mr. Rowan in both our private session and this afternoon. Chairman Rockefeller. Thank you, Senator Wyden. Senator Warner. Senator Warner. Thank you, Mr. Chairman. I share my colleague's high professional regard for our nominee, Mr. Rowan. I enjoyed a rather lengthy office consultation that we had here this week. So I wish you well. I'd also like to have the record reflect my view, and I think the view of many on this Committee, that his predecessor, Kenneth Wainstein, discharged his responsibilities very professionally and capably. I'd like to return to the general subject that my colleague raised, Vice Chairman, the Chairman, all of us, this question of privacy interest. You have a division in your organization that does oversight, correct? Mr. Rowan. That's correct, Senator. Senator Warner. So perhaps we should have in this record a little description of that and what supervision you have over that division, and what mission do they have? Mr. Rowan. Senator, one of the clear mandates that when we had when we set up the National Security Division was to create a more robust and systematic oversight mechanism in connection with our intelligence work. So our Office of Intelligence Policy and Review, which is what it was called back then, basically the core problem was they had always had an oversight function, but they had been drowning in FISA work post-9/11 and they hadn't been in a position to do as much as they would have liked because of the urgency of the FISA work. So one of the things that my predecessor, Ken Wainstein, did working with the Deputy Assistant Attorney General Matt Olsen and others in the Division, was to reorganize that office--we actually now call it the Office of Intelligence--to have a dedicated oversight section within it. And the attorneys in that section, they are able to call on other resources of the Division, but their whole job is to do oversight. And in particular, they do national security reviews, which is a new concept that we've begun in the Division where they go out to an FBI field office. They look through all the case files on their intelligence matters. And they try to ensure that the predication is there for every step in an investigation, try to ensure that the facts that are pleaded in the FISA application are accurate, try to make sure that the national security letters that have been obtained in the course of an investigation were properly obtained, a sort of searching review of investigations, intelligence investigations. Those reviews, we did--I think in 2007 we did 15 of those. Fifteen separate field offices were reviewed. We're going to hopefully do even more in 2008. We also do what we call minimization reviews where we go to the FBI to make sure that they're properly handling the information that they're getting from FISA collection. And of course we also, in the context of the FISA Amendments Act, have a new obligation to work with the ODNI and members of the intelligence community to do six-month reviews of the operations of the intelligence community as they relate to how they're collecting under the FISA Amendments. Senator Warner. That's reassuring, but I'd like to point out that our records here in the Committee show that since September 11th, the terrorist attacks, the number of applications for electronic surveillance and physical search that have been approved by the FISA court have increased from 934 to 2,370. Now, that's understandable in view of the absolutely extraordinary attack on our country, and I think it doesn't reflect any weakness to the FISA court. So we'd like to have your impression of the FISA court, how it functions, and what steps you would take to oversee that so that it doesn't ever have a foundation in fact that would give rise to the infamous term that it's a rubber stamp. Mr. Rowan. Senator, I think it's actually far from a rubber stamp in my experience. The judges of the FISA court-- obviously, these are Article 3 judges who are taking on an additional duty. They're very familiar with the probable cause standard from their work in Article 3 cases. And they quickly learned the intelligence community and the nature of the work they're doing on the FISA court. We have a great deal of back and forth with the court where we will come to understand that a judge believes that our application is deficient in some way, and we work with the agents and the members of the intelligence community to try to make sure our applications are solid. And for that reason I think we have a fairly high success rate when it comes time for the court to actually sign an application. But that's not an indication that they're a rubber stamp there. They put us through our paces every day, and we understand and appreciate the importance of their work, and we have learned to live under that kind of a regime. Chairman Rockefeller. I thank you. I thank the witness. Senator Warner. Mr. Chairman, will you indulge me for a minute? Chairman Rockefeller. Of course. Senator Warner. Mr. Chairman and members who are absent and the staff, this is my last meeting with this Committee. I complete very shortly 30 years of service in the Senate, and I was on one six-year term, another term for a couple of years, and now I've enjoyed with your chairmanship several more years, actually had the title of Vice Chairman. I took a lot of pride in that title, but I just talked to my colleague here about it, and I don't want to put in the record his remarks about it, but I think it's a very important recognition. I recall one time making arrangement that the title was given to you. Do you recall that? Chairman Rockefeller. I do. Senator Warner. I do, indeed. And I also just want to take this opportunity. It's been a marvelous, marvelous perspective of my life here in the Senate for these many years, and that's been largely possible through the extraordinary men and women who've served on this Committee. And I also want to recognize the tremendous support that has been given me and the means by which I've been able to learn from a superb professional staff. So I thank all present, and with that, I bid you all a fond farewell. Chairman Rockefeller. Not yet. Senator Warner. Oh. Chairman Rockefeller. I gave a fairly lengthy peroration filled with truth and sobriety and some emotion about Senator Warner's leaving, as well as Senator Hagel's leaving, and the sadness of that, not knowing that we would be doing this today simply because when you're dealing with a $700 billion crisis you don't know what you're doing the next ten minutes, much less the next day and who's going to be at the hearing. Senator Warner, I don't think you can dismiss yourself so easily. We cry out in this Congress for comity, for statesmanship, for civility, all of which seems to flow from you as from springs of Dunmore, which is very near a farm that Sharon and I have in Pocahontas County, West Virginia, just on the Virginia border right across from Highland County. And it isn't just the colleagues that you work with, because you've got some contentious colleagues on both sides. I think a lot of this hope stems that there will be more people like you, Senator Warner, who are profoundly engaged in public service and who will commit themselves, as you have for a period of 30 years, in many areas and gain through your nature your--simply, it's just within you. You either have it or you don't, and you do, a special kind of integrity. And it's been an enormous honor for me to be associated with you, if I reach that level of praise, because you're honest. You vote your convictions. You're not afraid to break when you want a break and to not break when you don't want a break. You're real. Some people would say that you're old school. Some people would say that Thomas Jefferson was old school. And I don't think that you would be unhappy with that comparison. I think you're remarkable, and frankly I'm just going to miss you enormously in spite of the fact that when you had your picture taken in your recent marriage that you invited my wife to join the photograph, but not me. I'm a forgiving man, so I only remember the nobility of your service. [Laughter.] Senator Warner. I thank you, Mr. Chairman. We have enjoyed a very close working friendship and professional relationship these many years. I think some of the staff might be interested to know I first came to know you--not having met you, but having the privilege of working with your father for some several years on a project of mutual interest. And you have carried on the traditions and the heritage of an extraordinary family with great dignity and modesty, if I may say. You serve your state as well, and our states adjoin. And in the few remaining days I have here I wonder if once again we could determine whether or not we could put the two states back together. I'm stepping down; therefore, you could continue on. They'll have to replace me. Simple as that. Chairman Rockefeller. And you do have a Democratic governor, don't you? [Laughter.] Senator Warner. Yes, yes. Thank you, Mr. Chairman. I thank the witness and the guests present for this indulgence. Thank you very much. Chairman Rockefeller. Thank you, Senator Warner. I just want to pursue one matter, Mr. Rowan, that I brought up before in outline, and that is this really quite interesting and amazing debate which takes place in public, but really takes place much more in sort of private conversations, about ways of interrogation. How do you best get information out of people? And the feelings are very, very strong. I think the CIA, if you want to be cynical about it, you can say that they have a facility down at Guantanamo, and therefore, they're going to hold on to that facility. They say there are things they don't do anymore which they used to. But that doesn't get into the nature of how you interrogate. And it is very interesting to me how SERE, those who say that you can get interrogation and then your, the Department of Justice and particularly the FBI is one of those. When you treat people with dignity, they will tell you things because they don't expect that, particularly because they've read the recent history since 2001 of what we do do, that they're surprised and are willing to cooperate. Now, I guess in one sense I have two questions. One is, people are dug in. That's human nature. If you've done it a certain way for the FBI--we've had so many--I'm just thinking of so many people who've come before us, open session and closed session, and talked about how they extracted information. And there's groups from the outside, there's professionals who've been doing it all their lives. And they talk about the way to be respectful and yet end up with that because of persistence, and I'm not going anywhere, and I'll be here a month from now. And, you know, they're tough, but they're respectful. And then you hear from the other side. Well, if there's going to be--and I mentioned this before--an incident, and we think there is that chance, we don't want to take the chance of letting somebody get it by without saying something. And then you get into the question of how much can people take? And the fact that the Koran, in fact, actually provides a method by which you can say I can take one more of these things but I can't take anymore, so if you do it once again, I'll tell you what you want--and it gets very confused. And if what you want is what the truth is, there's also a very important consideration of that. My question of you is, is this a debate which has no solution, or ought not to have a solution, or is this a debate which as we get further in, as our soldiers are subjected to some of this and the American people learn about it, where there can be some kind of reconciliation? Is that possible in this business? Mr. Rowan. I think that it may be very hard to have a reconciliation. One of the things that's always struck me is there's--it seems from what I have heard--there seems to be some value--unfortunately, for the public debate there seems to be some value in leaving the capabilities and powers of our interrogators vague--in other words, that I do believe that al- Qaida trains to meet in those interrogation techniques. And to the extent that they are able to get on the web and understand exactly what they are and what they are not, I fear that we lose a little bit by that kind of openness, which is the kind of thing that you'd want to have---- Chairman Rockefeller. May I interrupt? I'd like to take that aspect of it off the table. I'd like to pretend that these discussions have all been held behind closed doors, classified, and that therefore the business of informing the enemy, which your case is hands down--if they don't already know--I'd like to take that off the table, just have your view. Mr. Rowan [continuing]. Right. Well, I think that one of the things I said before is, you know, we really didn't have any experience in this from what I can see at 9/11 except for the rapport-building experience that the FBI and other law enforcement agencies had. And now we do have much more of a record to look back upon and try to determine--you know, if a certain set of techniques, if one of the arguments in favor of those techniques is, yeah, but--I understand rapport building may work over time, but we need the information urgently, then I think we now have a little bit better handle on it. I can't say I've seen anything systematically used to examine this, but I think we'd be in a better position now to look back and say, well, how long did it take to get that, how long did it take to get that, and get a better handle on whether or not the sort of urgency argument is one that the evidence supports or the evidence doesn't support it. As I sit here, I don't know the answer to that. But it does strike me that that's a critical fact in favor of those who say rapport-building isn't viable in all instances. But if in fact it is the case that you look back and you say you know what, it took some lengthy period of time before these other techniques worked also, then I think that that would obviously be an important factor that I'm not sure has really been analyzed in any systematic way. I also think that since we have more experience, we have more experienced interrogators, it's clear to me that some people just have a talent for this. And I'm really talking about here rapport-building techniques. I think sometimes rapport-building techniques don't work because the person who's conducting the interrogation just isn't very good at it. I mean, it's something that you see even in a law enforcement setting as a prosecutor in the District of Columbia. Some Metropolitan Police detectives were good at getting a confession. Others were not good. And it's a skill like other skills. And I think that some of what occurred after 9/11, particularly in the context of DOD interrogators, may have been sort of frustration and inexperience that manifested itself, frankly, in abusive techniques, the kind of things that have been studied and reported on in the Schmidt-Furlow Report and the various studies that have been done. So I think that the people need to come up with rules, with the understanding that either these are going to be used by a small and an elite group of interrogators who are very well trained, very disciplined, and very good at what they do, or you're going to have a set of rules for a much larger set of people who don't have the experience, and you don't want to give them nearly as much flexibility because it will probably go bad at some point. So I think those are some things that we've learned, and I think that if we looked more at this in the context of a classified setting it may be that there's other factors that we could tease out that would help us to understand where the balance ought to be struck to determine what's the appropriate system for us going forward? I also think at some point we need to determine how we use intelligence interrogations in the context of prosecutions, because the problem arises that even in a rapport-building context it's hard to go in and advise somebody of their Miranda rights and hope to get useful information. So we need to sort of decide that we're either going to give up an admissible statement, in the case of an Article 3 court, or we're going to use the military commissions because that doesn't require--these statements, we need to be able to prove that they're reliable, that they were--just under all circumstances use them, but we don't have to prove that there was a waiver of Miranda. So I think it's a very difficult issue, and I don't think that it would be easy to nail down, but I still believe there's a possibility of having a consensus that's clearer than may exist right now about the way we ought to do this. Chairman Rockefeller. That's helpful and thoughtful. I have other questions and I'll submit them; I won't give them now. I do want to call particular attention to the math teacher and to the judge. And I think you've been very fortunate to start out in life with that. And I think there's a lot of respect for you in this Committee. It's interesting when people say what they feel before they've even talked to you. That means they have a judgment, and the judgment's been on the circuit, and they hear their--people they hear that they respect, what they have to say. And I think you've come out very well on that. And with that in mind, under Committee Rule 5.5, a Committee vote on a confirmation shall not be sooner than 48 hours, which is not in your favor the way things appear to be going on this bailout. After the Committee receives transcripts of the confirmation hearing, unless the time limit is waived by unanimous consent to provide us with the flexibility in proceeding with this nomination in the closing days of Congress, closing hours of Congress, whatever it might be, I ask unanimous consent that this time limit be waived. And since I'm the only person here, it is waived without objection. And this hearing is adjourned, and I thank you. [Whereupon, at 3:37 p.m., the Committee adjourned.]

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