Open Hearing: Nomination of Mr. Kenneth Wainstein to be Under Secretary for Intelligence and Analysis, Department of Homeland Security

[Senate Hearing 117-248] [From the U.S. Government Publishing Office] S. Hrg. 117-248 NOMINATION OF KENNETH L. WAINSTEIN TO BE UNDER SECRETARY FOR INTELLIGENCE AND ANALYSIS, U.S. DEPARTMENT OF HOMELAND SECURITY ======================================================================= HEARING BEFORE THE SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES SENATE ONE HUNDRED SEVENTEENTH CONGRESS SECOND SESSION __________ JANUARY 12, 2022 __________ Printed for the use of the Select Committee on Intelligence [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://www.govinfo.gov ______ U.S. GOVERNMENT PUBLISHING OFFICE 46-624PDF WASHINGTON : 2022 SELECT COMMITTEE ON INTELLIGENCE [Established by S. Res. 400, 94th Cong., 2d Sess.] MARK R. WARNER, Virginia, Chairman MARCO RUBIO, Florida, Vice Chairman DIANNE FEINSTEIN, California RICHARD BURR, North Carolina RON WYDEN, Oregon JAMES E. RISCH, Idaho MARTIN HEINRICH, New Mexico SUSAN COLLINS, Maine ANGUS KING, Maine ROY BLUNT, Missouri MICHAEL F. BENNET, Colorado TOM COTTON, Arkansas BOB CASEY, Pennsylvania JOHN CORNYN, Texas KIRSTEN E. GILLIBRAND, New York BEN SASSE, Nebraska CHUCK SCHUMER, New York, Ex Officio MITCH McCONNELL, Kentucky, Ex Officio JACK REED, Rhode Island, Ex Officio JAMES INHOFE, Oklahoma, Ex Officio ---------- Michael Casey, Staff Director Brian Walsh, Minority Staff Director Kelsey Stroud Bailey, Chief Clerk C O N T E N T S ---------- JANUARY 12, 2022 OPENING STATEMENTS Page Warner, Hon. Mark R., a U.S. Senator from Virginia............... 1 Rubio, Hon. Marco, a U.S. Senator from Florida................... 2 WITNESS Wainstein, Kenneth L., Nominee to be Under Secretary for Intelligence and Analysis, U.S. Department of Homeland Security 22 Prepared statement........................................... 25 SUPPLEMENTAL MATERIAL Nomination material for Kenneth L. Wainstein Questionnaire for Completion by Presidential Nominees........ 54 Additional Prehearing Questions.............................. 73 Post-hearing Questions....................................... 108 Letter of support from former U.S. Department of Justice Officials dated January 11, 2022........................... 4 Letter of support from Law Enforcement and Criminal Justice Leaders dated January 11, 2022............................. 11 Letter of support from bipartisan group of former Government Officials and National Security Experts dated January 12, 2022....................................................... 14 NOMINATION OF KENNETH L. WAINSTEIN TO BE UNDER SECRETARY FOR INTELLIGENCE AND ANALYSIS, U.S. DEPARTMENT OF HOMELAND SECURITY ---------- WEDNESDAY, JANUARY 12, 2022 U.S. Senate, Select Committee on Intelligence, Washington, DC. The Committee met, pursuant to notice, at 2:03 p.m., in Room SD-50 of the Dirksen Senate Office Building, Hon. Mark R. Warner (Chairman of the Committee) presiding. Present: Senators Warner, Rubio, Wyden, Heinrich, King (via WebEx), Casey (via WebEx), Gillibrand (via WebEx), Blunt, Cornyn, and Sasse. OPENING STATEMENT OF HON. MARK R. WARNER, A U.S. SENATOR FROM VIRGINIA Chairman Warner. I call this hearing to order. Welcome, Mr. Wainstein. It's great to see you. Welcome as well to Elizabeth and three of your daughters, Mackie, Cecily, and Natalie. Mackie had the good sense to be an intern for the Committee last summer and we are grateful for her service. I understand your daughter, Ellie, who's at Berkeley Law School, is watching remotely. And I would ask, Ken, that you would give us some evidentiary proof that she did actually tune in for this couple of hours. And hopefully, if she's watching now, she's appropriately embarrassed. So, we'll see in the aftermath. Before we begin formally, though, I do want to commend you on your excellent judgment as evidenced by both your attending UVA and living in the Commonwealth. I will question your choice of law school, though. But congratulations on your nomination to serve as the Under Secretary for Intelligence and Analysis, or I&A, at the Department of Homeland Security. This position sits at a critical juncture between the analytic work of the Intelligence Community and the information-sharing role of the Department of Homeland Security. If confirmed, your job will be to receive and analyze intelligence and law enforcement information relating to the homeland security and to ensure its prompt dissemination throughout the Department, as well as to your partners at the Federal, state, local, and tribal departments and agencies. You come to this hearing with a strong background as an intelligence and law enforcement professional who has faithfully served our country throughout your career as a Federal prosecutor, at the highest levels of the FBI, as General Counsel both from Chief of Staff to Director Mueller, as a U.S. Attorney for the District, and the first-ever Assistant Attorney General of the DOJ's National Security Division. And as Homeland Security Adviser to President Bush. I mean, you've had virtually every job across the justice and homeland security and intel world. So, the fact that after a decade in private practice, you've made the admirable decision to return to public service, I think it is important. And as I said in our conversation before this, your appointment comes at a pivotal moment and it's going to clearly have some challenges. While the I&A mission is defined, it continues to evolve and mature since its creation in the aftermath of 9/11. And I think for many of us on the Committee, there's a sense that the I&A, at least recently, has been a bit unfocused and stuck between its dual missions: national intelligence and departmental priorities. You have some Members, not just Senator Wyden, but me as well, who were very unhappy with the I&A's operations in Portland in 2020. And then we were disappointed that the I&A provided next to no warning about what was to come on January 6th. We just had the one year anniversary of that date. And the recognition of what domestic violent extremists can do from either end of the political spectrum, I believe, needs to be a focus of some of your work. Obviously, at the same time, particularly if they're domestic violent extremists, the First Amendment protects Americans' right to free speech and nonviolent peaceful protest. And obviously, part of your role would be to defend the Constitution and those First Amendment rights. As head of DHS intelligence operations, you'll be squarely at the center of those two imperatives, both protecting our country and protecting the Constitution. And I'd like to hear today a little bit how you hope to navigate that important work while not politicizing I&A's activities. And obviously, when I submit for the record in a moment the kind of Who's Who of law enforcement and intelligence officials who are supporting your nomination from both political parties, I think that is a good endorsement that you're the right guy at the right time. Thank you for appearing before the Committee this afternoon. I look forward to your testimony. I now recognize the Vice Chairman. OPENING STATEMENT OF HON. MARCO RUBIO, A U.S. SENATOR FROM FLORIDA Vice Chairman Rubio. Thank you, Mr. Chairman. Thank you, Mr. Wainstein, for being here and for your willingness to serve as the Under Secretary for Intelligence and Analysis of the Department of Homeland Security. I think the Chairman has gone through your extensive public service record, the landscape. We have all the same challenges that we had when you last were in public service. And now we've got a few ones that have emerged that are relatively new in scale and scope, not the least of which, of course, is the threat to the United States from the Chinese Communist Party and, in particular, their plan--which is now, I think, abundantly clear--to work both through licit and illicit means to dominate global emerging technologies, to displace the United States and reshape the rules-based international order in ways that benefit them. So, I'll be very interested to hear your views on China and more importantly on how they would inform your approach to intelligence and analysis should you be confirmed. I also would hope to hear a little bit about how you'll ensure that DHS Intelligence and Analysis isn't being used or even reasonably perceived--which is in many ways as important-- perceived to be used by either party or whoever is in power for political purposes under the guise, for example, of pursuing domestic violent extremists. It's a very fine line. The worst times in the history of our intelligence agencies have been when they were either used or perceived to be used for purposes of political advantage. And this comes at a time in which there's a broader crisis of confidence in institutions in this country. But again, none, I think, has been more damaged over the last few years, rightly or wrongly in many cases, than the Intelligence Community. And so I think it's more important than ever that we do everything possible to ensure that there's both the perception and the reality that the IC operates beyond the bounds of partisan politics so that both policymakers--but ultimately the American public--can have confidence that their assessments are real. And so those are important points I hope you'll touch upon. With that, again, thank you for being here. We look forward to hearing your testimony and your answers to our questions. Chairman Warner. Thank you, Mr. Vice Chairman. I now ask unanimous consent that letters of support for the nominee be included in the record. I would simply point out, Ken has got letters from a kind of Who's Who across law enforcement and criminal justice leaders, and then his list of supporters from national security and intel. I won't go down the whole list by any means, but for my colleagues and for those who are tuning in, that includes Mike Chertoff, Keith Alexander, Jim Clapper, Saxby Chambliss, Mike Hayden, Bill Evanina, Mike McConnell, Mike Morell, Leon Panetta, Tom Ridge and a host of others. So, very impressive group and I ask these---- Vice Chairman Rubio. Mr. Chairman, the Chambliss one concerns me deeply, but . . . Chairman Warner. I will note this. Vice Chairman Rubio. For the record, that's a joke. Chairman Warner. The only thing that would be worse is if Burr submitted a letter as well. Vice Chairman Rubio. Well, that would be a devastating death blow to the nomination. Chairman Warner. So, without objection, I'll submit those letters for the record. [Letters of support for the Witness follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Warner. Will the witness please stand and raise your right hand? [Witness stands and raises right hand.] Do you solemnly swear to give this Committee the truth, the full truth, and nothing but the truth, so help you God? Mr. Wainstein. I do. Chairman Warner. Please be seated. Before moving to your opening statement, I will ask you to answer five standard questions the Committee poses to each nominee who appears before us. They just require a simple yes or no for the record. First, do you agree to appear before the Committee here or in other venues when invited? Mr. Wainstein. Yes, I do. Chairman Warner. If confirmed, do you agree to send officials from your office to appear before the Committee and designated staff when invited? Mr. Wainstein. Yes. Chairman Warner. Do you agree to provide documents or any other materials requested by the Committee in order for it to carry out its oversight and legislative responsibilities? Mr. Wainstein. Yes. Chairman Warner. Will you ensure that your office and your staff provide such material to the Committee when requested? Mr. Wainstein. Yes. Chairman Warner. Do you agree to fully inform and fully brief to the fullest extent possible all Members of this Committee, rather than simply the Chairman and Vice Chairman? Mr. Wainstein. Yes. Chairman Warner. Thank you very much. And now we'll proceed with your opening statement after which I'll recognize Members for five minutes by seniority. STATEMENT OF KENNETH L. WAINSTEIN, NOMINEE TO BE UNDER SECRETARY FOR INTELLIGENCE AND ANALYSIS, U.S. DEPARTMENT OF HOMELAND SECURITY Mr. Wainstein. Thank you, Chairman Warner, Vice Chairman Rubio, Members of the Committee. I'm profoundly honored to appear before you today as the nominee for Under Secretary for Intelligence and Analysis at the Department of Homeland Security. I'm joined here today by my wife, Elizabeth, and my daughters Mackie, Cecily, and Natalie. And I'd also like to recognize, as you mentioned, my daughter Ellie, who purportedly is watching this from Berkeley back at school today. It means a lot to me that they are with me today and it's meant a lot to me that they've been with me throughout my career. I'm also grateful to President Biden for giving me this opportunity to serve and the opportunity to work with his strong national security team. I'm also grateful to him for looking beyond political optics and selecting someone who previously served in a Republican Administration. In a small but important way, that is a reaffirmation of the non-partisan approach to national security that has traditionally been and must always remain a bedrock principle of our government. That is the same nonpartisan approach I always took during my 21 years of government service. I first served as a Federal prosecutor for about a dozen years, handling a range of homicide, gang conspiracy, and white collar criminal cases, and doing so without any consideration of politics and with a clear focus on protecting civil liberties and due process rights. I then pivoted after the 9/11 attacks to focus primarily on national security matters: helping the FBI reorient itself toward its intelligence mission after 9/11, establishing the new National Security Division with my colleagues at the Justice Department, running the Homeland Security Council as President Bush's Homeland Security Advisor, and once again, taking the same non-partisan approach I'd learned as a prosecutor and making every decision with full regard for its effect on civil liberties. During this government service, I worked closely with DHS and admired how the Department established itself under the exceptional leadership of Governor Tom Ridge and how it responded then to a constant stream of natural and homeland security threats. I'm clear-eyed, however, that those threats have multiplied in the years since, and that the DHS of today faces an increasingly complex threat environment from nation-state adversaries like China and Russia, and others who target our elections and steal our sense of technology, and from cyber criminals and transnational criminal organizations that victimize our communities. I&A is absolutely critical to the Department's ability to meet each and every one of those threats. To use Secretary Mayorkas's words, DHS is fundamentally a department of partnerships and it is I&A's mission to make those partnerships effective by ensuring that relevant intelligence is fully circulated throughout the whole homeland security enterprise. I&A performs a number of functions to accomplish that mission. It manages the information and intelligence sharing with our state, local, tribal, territorial, and private sector partners. It serves the intelligence needs of the DHS components and leadership. It leverages the information holdings of the DHS components to identify and address threats to our national security and it coordinates information-sharing within the department. If I'm confirmed, I will work hard to enhance I&A's ability to accomplish each of those tasks. First, I intend to focus on the workforce of I&A, which, as I have seen, is a very strong and impressive group of dedicated intelligence professionals. As a manager, I've always believed that it's my first duty to support my personnel. And as a leader of an intelligence agency, I'll be particularly vigorous in defending their ability to deliver objective, unvarnished analysis that is completely free from any political influence. I'll also carefully review I&A's operational role in the homeland intelligence enterprise in order to identify and eliminate any unnecessary duplication or overlap, and to focus I&A's role in those areas where it adds particular value. I'll maintain a constant focus on the implications of I&A's activities on civil liberties and privacy and the need for strong safeguards, oversight, and transparency in our intelligence operations. As we all know, we can only be successful at safeguarding our people, our homeland, and our values if we maintain the trust of our fellow citizens. And importantly, I will work in close collaboration with Congress and with this Committee in particular. I've long had a strong relationship with the Members and staff of this Committee and I've always had deep respect for it. And if confirmed, you can count on my being a very willing and very collaborative partner in our joint effort to make I&A as effective as possible. Thank you, again for the opportunity to appear before you today and for the honor of considering me for this position. And I'm happy to answer any questions that you might have. [The prepared statement of Mr. Wainstein follows:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Chairman Warner. Thank you, Mr. Wainstein. For planning purposes, if any Members of the Committee wish to submit questions for the record after today's hearing, please do so by 5 p.m. this Friday, January 15th. I'd like to start, and this is one of the questions we had when we had a chance to visit over Zoom. You've had positions in prior Administrations that, at least in terms of the outside hierarchical approach, appeared to be higher in the food chain. You've had an extraordinary, successful private-sector career. Share with the Committee why you're willing, at this moment in time, to come back to a part of DHS that I think really needs strong leadership, but it would not be viewed as a conventional choice. Mr. Wainstein. I appreciate that question, Mr. Chairman, and once again, thank you for the opportunity to talk to you the other day. Well look, it was the honor of my life and career to work in government for the 21 years that I did. And yet the titles and the positions and the responsibility at higher levels is great and it's exciting, but it's really the substance of the job and the people you do the job with that make it so important. I've often been asked, what's my favorite job I've ever had? And my answer, honestly, is being an AUSA--working with trial teams, prosecuting cases. That's the low end of the totem pole, but it was the substance of it, the meaningfulness of it, and the camaraderie of it were the best. And that's the way I look at this. It's a wonderful team from Secretary Mayorkas on down and then the larger constellation of national security leadership in this Administration. As you pointed out, we're at a critical time in our history. I&A has an important role to play in a lot of really important missions. So, I couldn't be more proud and more excited about this opportunity. Chairman Warner. Well, I accept that answer, and I appreciate your willingness to serve. I promise I won't reveal to either President Bush or Bob Mueller that you said the AUSA job was better than working for both those individuals directly. Talk to me a little bit, and I think many Members may want to get into this. And it's one of the reasons why I think you're such the right choice right now. This is a piece of DHS that a lot of us were concerned about in terms of what happened in Portland. A lot of us were concerned it didn't do a very good job in terms of alerting prior to January 6th. There are enormous challenges in terms of how you set up your role vis-a- vis the FBI and what kind of collections. Can you talk about how you can work with the FBI, but also de-conflict with the FBI? Mr. Wainstein. Thank you, Mr. Chairman. Look, there are issues with I&A as there are with any organization. I just want to say, I spent a lot of time with the folks in I&A over the last few weeks and I've been tremendously impressed, as I said in my remarks, with their quality and their dedication. They're good people and that's the key. I mean, when you have good people on the team, the team can succeed. It's had some headwinds. For a number of reasons, they had largely acting leadership, which is a problem. That's not anybody's fault. That's just happened. And then a variety of things have happened that have made things difficult. But the makings of a strong team and a strong operation are there and they're doing great things right now. In terms of, specifically, the work with the FBI, I think that's an important issue. When you look at the intelligence enterprise in our government, the lines, very intentionally, are not clearly delineated. There's overlap. There should always be some overlap between the different agencies. But you have to keep a focus on that because you don't want overlap to mean duplication. Or for that, even worse, confusion. Because if two intelligence agencies are working in the same space and come up with different analyses, that just confuses the customers. So, the FBI and I&A need to work very closely together. I understand they have a strong relationship. And I expect that, if I'm fortunate to be confirmed, one of my first visits will be to go down to FBI headquarters to talk about the state of the relationship--where we can coordinate better and where we can make the lines clearer. Chairman Warner. Yes. I'll give you the benefit of the doubt here, I do wonder at what point do you throw a case, an investigation, over the transom to the FBI to pursue potentially for criminal charges versus how far you might pursue a matter? I also think you're going to have challenges with de- confliction with CISA, as well. I think one of the things that Chris Krebs did a great job for President Trump--and I think Jen Easterly is doing a good job right now, is really building up those capabilities at CISA. But there's going to be some of those--you're going to have some rub with CISA as well. Do you want to speak to that for a moment? Mr. Wainstein. Look, you just sort of look at the org chart and look at the responsibilities and you see there's going to be some overlap. And in fact, my sense is that the two entities have done a good job trying to coordinate and making sure that I&A is providing the intelligence advantages, both within DHS and CISA, as well as the state and locals, and that CISA is helping to operationalize that. I've been in touch with Jen Easterly. She and I talked at length just the other day and we're going to be focusing on that overlap. And, frankly, on the need for that coordination to be even stronger, because it's got to be the intelligence and operational sides working together. Chairman Warner. Senator Rubio. Vice Chairman Rubio. Thank you. As we discussed on the phone, and this would come up today, so I want to give you an opportunity to address it. There's some reason to address, I believe, the very few but nonetheless billable hours on behalf of the China National Offshore Oil Corporation. And the reason why it's of concern is because it fits the fact pattern for how the Chinese Communist Party aggressively plays abroad, and in particular--. Here are the basic facts as I understand them. So, I think the first thing is, I want to make sure I understand the facts and the Members of the Committee do. In April 2018, a partner at the firm, I believe in the China office, asked for help because he was working for their client, the CNOOC, China National Offshore Oil Corporation. And it was related to a March 2018 release by the U.S. Trade Representative of something with the findings of the investigation into China's acts, policies, practices related to technology transfer. The report included the government's evidence for how the Chinese government provided competitive intelligence through cyber-intrusions to Chinese state-owned enterprises and further and sub its ``Made in China 2025'' goals and as part of its military civil fusion. And the report explicitly stated that in 2012, this company twice requested and received intelligence from Chinese intelligence services that helped them in negotiations with five U.S. companies. In fact, the report specifically found that these examples illustrate how China uses the intelligence resources at its disposal to further the commercial interests of Chinese state-owned enterprises to the detriment of their foreign partners and competitors. So, the core nugget in the report is there is no distinction really between a Chinese company and the government. American corporations competing with a foreign corporation don't get to go to the CIA, or NSA, or whatever and get intelligence information to negotiate and compete. And these guys do. But the fact pattern about you being asked by a partner at the firm to look into it, I believe, is correct. So, if you could just tell us what was the nature of the work and why were you called in to do it? What did you do? Mr. Wainstein. Thank you, Senator Rubio. And thanks for raising this and flagging it in our call the other day. That was very good of you and I appreciate you asking about it. And I think it's an appropriate thing, an important thing, to ask about. Just in terms of the facts, I think you have the facts largely right. It was actually a partner here in the States who does trade stuff. So, that partner was looking to see what trade sanctions kind of consequences there could be because of these allegations. And he thought, to be complete, he wanted to find out if there was any criminal exposure. So, he asked me to have an associate write a memo that just said, these are the criminal laws that could be implicated. That associate did that. I passed the memo back and, as you said, it was 2.8 hours of work. I had no contact with the client, did no advocacy, talked to nobody, didn't call anybody in the government. It was literally sort of like almost a law school exercise by the associate. But it was on behalf of the Chinese oil company. And look, you raise, I think, very legitimate concerns about--and not just here, but you are leader in this area. I know that you and Senator Warner have done a roadshow with members of academia and industry to raise the alarm about what China's doing. And I agree with you on the need to do that and the fact that that's happening. We're seeing now an assault across the board in every space--political, economic, military--by China to try to become dominant over the United States and change the world order. So, I agree with that. And in fact, I think I mentioned this the other day, harking back to my time in the National Security Division at DOJ, 2006 to 2008, that's when there was just a dawning realization that in terms of technology theft, that the Chinese were rapacious. And so my colleagues and I were really banging the drum, sounding the alarm about that back then to try to get academia and industry to pay attention. So, this is consistent with what I've seen over the last 15 years. And I can assure you that if I get into the position at I&A, I'll keep sounding that alarm. Vice Chairman Rubio. Yes. And so my time is about to expire. But I'm curious, what did you know about this company before this work came to you? The way you described it is: a partner came to you and said, ``Can I get answers to this?'' You handed it off to an associate who did a law-school-type exercise; came back with a memo. You reviewed it and you submitted it to the partner that requested it. But what did you know about this company at the time? And I'm just curious: obviously, would it make you sort of queasy in any way or concern that the firm was advocating or trying to help a company that undertakes these sorts of actions that implicate national security concerns? Mr. Wainstein. Well, a couple things. I think when I thought about it, I thought this was--he was looking at a range of sanctions. He didn't have the expertise to look at white collar. I was just the one through whom the assignment would go to somebody in the white collar space to look at that and say, these are the possible laws that can be implicated. Just to clear one thing; you said `àdvocate.'' I don't think there's any advocating that went on. This was a sort of an explanatory exercise. And actually when you think about it-- -- Vice Chairman Rubio. But I meant the firm. The firm representative was an advocate on behalf of this entity, not necessarily you directly or even the associate. Mr. Wainstein. I believe they were doing trade work with them, but I honestly don't know for sure. But to answer your question, I should have thought more about it than I did that day. Chairman Warner. Senator Wyden. Senator Wyden. Thank you, Mr. Chairman. And Mr. Chairman, first, let me express my thanks to you for your responsiveness to my concerns about what's happened in Portland. And to Mr. Wainstein, I appreciated visiting with you, and as you know, I believe in making sure witnesses know what we're going to talk about. And so you're aware of these questions. Mr. Wainstein. I appreciate that very much. Senator Wyden. When the Trump administration sent Department of Homeland Security troops into my hometown in the summer of 2020, the Department's Office of Intelligence and Analysis was there too. According to a report by the Department's Office of General Counsel, the Intelligence Office sent untrained, inexperienced personnel to Portland without a plan or clear management. So, I spent months battling to get the General Counsel's report released to the public so that Oregonians would know about the abuses that took place. The report was finally released last October, but because of redactions, I am still pushing to get the full picture out for Oregonians. One issue in particular I have focused on, is the General Counsel's finding that dossiers were developed on people, presumably including my constituents, who apparently were no threat to homeland security. According to the report, some junior personnel were so upset about this, they refused to even work on them. So, that's why Oregonians want to know what went into these dossiers that were distributed around the Department of Homeland Security. But so far, that information is just being withheld. So, do you believe the Department of Homeland Security intelligence personnel ought to be collecting and distributing dossiers on Americans? Mr. Wainstein. Thank you again for that meeting the other day, and thank you for your practice of giving a heads up for all the questions that you're going to ask a nominee like myself. I was troubled by what I read in that report. The part that's been made public. I've been heartened to hear about a number of the changes that have been put in place to address some of the lack of training, lack of guidance, and, as you pointed out, lack of ability on the part of some who were concerned about what was going on but who felt that they couldn't raise the alarm. I can assure you that that will not be the situation if I'm heading I&A. People will feel fully comfortable to step forward and raise their concern. In terms of---- Senator Wyden. But what about these dossiers, though? Should there be dossiers? What information ought to be in them? Who should get to see them? Because that's what my constituents want to know. Mr. Wainstein. Yes. And that goes with the guidelines and it's very clear. Now, let me step back for a second. As you and I discussed, open-source collection, which is what I&A does--it can be fraught, especially if it's done in a context of protests or demonstrations. And so, there are clear guidelines about what DHS/I&A can and cannot do. So, for example, they can only collect information and distribute it if it's relevant to a departmental mission, like protecting against terrorism. They cannot collect just if somebody is exercising their First Amendment rights; you can't do that. You have to use the least- intrusive means of collecting information. And then, once that information is collected, in terms of disseminating it, this is U.S. person information that needs to be carefully handled pursuant to Executive Order and pursuant to law. And so it shouldn't be just distributed without regard to privacy. And what I read in that report is that there was insufficient training and guidance as to how information about those U.S. persons could and couldn't be distributed. Senator Wyden. I'm getting ready to run out of time. If you're confirmed, would you release to the public this and other information about this office in Portland that I have been pushing to get unredacted? That's a simple yes or no question. Would you be willing to release it to the public? Mr. Wainstein. I won't have the authority to release, but I will assure you that I will push hard to release it to the maximum ability of the Department. Senator Wyden. Is there any reason why it shouldn't be released? Mr. Wainstein. I know there's some redactions that might have to do with personal information, private information, there might be sources and methods, but I can assure you that your concerns have been passed on. Folks at DHS are already engaged as of last week with folks in the General Counsel's office, and they're working hard to try to absolutely minimize the amount that's withheld. Senator Wyden. I will only tell you, you got to think-- because this is what happened in my hometown. We saw what the Office of General Counsel said. You've got to think it's going on elsewhere. And I will tell you, there's a pretty ominous history in this Committee, as Chairman Warner knows, about the use of dossiers. So, I'm going to get to the bottom of it. We'll continue to work with you between now and the time this Committee votes on your nomination. I'll have additional questions, and I hope we can have a second round, as well, Mr. Chairman. Thank you. Mr. Wainstein. Appreciate it, Sir. Chairman Warner. On this issue, I do think there's so many questions raised about Portland. I want to add my voice to Senator Wyden's. Obviously, you got to see this, you got to go through your appropriate channels once you get confirmed. But I hope as much as possible can be released as well. And I think we should frankly give Members extra credit for actually being here in person, but that's not the rules. So, we'll now go to Senator Cotton on WebEx. [No response.] Senator Cornyn. Mr. Chairman, we appreciate the extra credit. Chairman Warner. Well, if Tom doesn't poke his head up soon, then I'm going to go to you. Senator Cotton, are you out there in ether land? Mr. Vice Chairman, I'm going to make an executive ruling and go to Senator Cornyn. Senator Cornyn. Thank you, Mr. Chairman. Mr. Wainstein, congratulations on your nomination and thank you for your lengthy, distinguished public service. And I'm glad your family could be here. I'm sure they're very proud of you. And I'm sure your service is a family affair. And you're not just hanging out there on your own. Senator Rubio talked about the work you did for Chinese clients and I don't imagine you had to register, I don't think you had to register, under the Foreign Agents Registration Act, did you? Mr. Wainstein. No. And I've never lobbied. Senator Cornyn. Have you had some experience with the Foreign Agents Registration Act during your service? Mr. Wainstein. When I was in government, yes. The enforcement, that was under me or under our division. Senator Cornyn. I think we've seen a number of instances that certainly have been disturbing to me where foreign governments have hired lobbyists here in Washington, DC, who have not registered under the Foreign Agents Registration Act, but rather under the Lobbyist Disclosure Act in order to obscure their representation of foreign governments. But we're here because we were elected by our constituents to serve the people of this county and not foreign countries, and certainly not without our knowledge of who is advocating for policy changes in Congress. Could you expand upon your views of the role of the Foreign Agents Registration Act and whether you believe that it is adequately serving its purpose? Mr. Wainstein. Thank you, Senator. Look, I think you're putting a finger on a very critical issue. FARA has been around for a long time, but it hasn't been enforced with sufficient energy for decades, for as long as it's been around. There has been a focus on FARA over the last few years. I know that the Justice Department has added resources to that, the National Security Division, and they're focusing on bringing cases. And I think they need to, because I think you're right: we need to know whom people are speaking for when they're advocating for a legislative change and the like. So, I agree with that. And to the extent that I'll have any role in that at I&A, will be minimal, but to the extent I would, I would do everything I can to encourage strong enforcement. Senator Cornyn. Well there have been bipartisan bills knocking around here for a while now and we haven't been able to get those passed yet, but I would hope you would use the benefit of your experience and your perspective to advocate within the Administration for those changes so we can know it. When we were considering the Foreign Sovereign Immunity Act to allow the 9/11 families an opportunity to file litigation over foreign financing of the terrorist attack on 9/11, one foreign government went so far as not just to hire U.S. lobbyists here in Washington, DC, but also to enlist the aid of veterans who came up here without disclosing who was paying for their hotel room and who was financing their presence here and purported to be advocating on behalf of United States military veterans. So, this takes a lot of different shapes and forms, but I think it's an insidious problem and one that I hope you will help us in whatever way you can to address. I want to ask you, there's been an increased focus on domestic terrorism, obviously, since the events of a year ago on January the 6th. But what part of the U.S. Government in terms of law enforcement, particularly insofar as it affects the Intelligence Community, would have jurisdiction to investigate cases of so-called domestic terrorism? Mr. Wainstein. Well that's a good question, Sir. And it sort of goes to the point that we talked about, that I talked with the Chairman about--sort of the areas of overlap. And this is an area where there is shared jurisdiction--there are shared responsibilities--to do intelligence and law enforcement work, vis-a-vis the domestic terrorism threat. Obviously, the FBI takes point on domestic terrorism when it comes to doing investigations, building cases. And in fact, they will not do-- and I think Jill Sanborn has testified to this, in fact--that they will not do intelligence work absent some predicate. There has to be some predication under the FBI guidelines for them to do that. I&A approaches it from a different vantage point. It doesn't have that predicate responsibility. It has limitations I discussed earlier--that it has to be pursuant to the departmental mission, it can't be focused on First Amendment rights, et cetera. But, they can do the open source searching or collection if it relates to a threat that DHS is actually tasked with protecting against. And so it's a complementary assignment of responsibility to the FBI and DHS and I&A. And then the additional piece is that I&A plays a critical role in tying the Federal Government's responsibilities and efforts against domestic terrorism with the state, local, tribal, territorial, and private sector. And that's really the important piece and real huge value add that I&A brings to the domestic terrorism fight and, frankly, to the whole intelligence enterprise. Senator Cornyn. Mr. Chairman, I have a few more questions and I'll wait for a second round, if that's your preference. Chairman Warner. I think that's probably Senator Heinrich's preference as well. Senator Heinrich. Senator Heinrich. I'll try to be brief. Mr. Wainstein, when the American public found out that Section 215 had been interpreted by the FISA Court to allow the collection of millions of Americans' phone records with a single court order, there was an understandable amount of disbelief and outrage in the public. And that precipitated Congress stepping in, passing the USA Freedom Act, which banned the bulk collection of American records, including those under 215, the FISA Pen Register Statute and National Security Letters. And so USA Freedom Act codified a national consensus that the government's collection of Americans' records in bulk infringed on the privacy and civil liberties of ordinary Americans. Do you agree that this national consensus and the USA Freedom Act have it right in prohibiting open-ended bulk collection? Mr. Wainstein. Well, thank you, Senator. And thank you for having that question passed on to my colleagues at DHS, who passed it on to me. This is also a topic that Senator Wyden and I had a good discussion about. Senator Heinrich. I can imagine. Mr. Wainstein. Yes. And, look, let me say that bulk collection is a very difficult fraud issue because bulk collection by definition, as I understand it, means you might be looking for one bad guy--there might be one bad guy in the group--but you're going to then collect information that involves innocent people. So, you can imagine a situation where there's a crime in a bus station at 2:00 in the morning and you want to get the manifest for the buses that pulled in at 1:00, because they might have contained the person who committed the murder or whatever. Well, you know that everybody in that bus didn't commit the murder, so you know you're getting the information of innocent people. That's the dilemma of bulk collection. And so the question then is, is a particular collection--I think most people agree that that would be an appropriate investigative step to try to solve that murder in the train station. But is it appropriate then to take that to millions of people's telephone records? And that's the issue that came up with the use of the 215 order for the telephone metadata program. And just, I guess, two main points about that that occurred to me and that we discussed in our call with Senator Wyden. One is, even if that was arguably lawful--I mean different people, scholars agree about whether it was lawful and the FISA Court judges should have signed the order or not--there is an additional step there which is, is it appropriate? Does it meet the expectations of the American people and does it meet the expectations of Congress to use that tool in that aggressive way? That deliberation, that analysis, wasn't really done. And the second piece to that--related to that--is this idea of secret law. That the reason why those expectations weren't measured against that program is because the program is classified, the FISA Court opinion authorizing the use of 215 for all that metadata was classified, and it couldn't be discussed openly in Congress--couldn't be discussed openly with the American people. So, people couldn't see, couldn't make their arguments one way or the other. And that really handicapped the use of that tool and makes it understandable why people reacted as they did when it got disclosed by leaking. And I think it's a lesson. It's a lesson that I've taken from that. And that's not the only instance, I think. There are other instances post 9/11 where there was too much of a reliance on classification when there should have been more transparency. Live and learn. I'll tell you that if I go back into government, that's a lesson that I'll keep front and center. Senator Heinrich. Do you think Congress got it right in passing the USA Freedom Act as a response to those revelations? Mr. Wainstein. I think it's understandable why Congress did that. In terms of the need for 215 for non-bulk collection, I still see that that might be a need. I'm looking at it from the outside and whether that's a need. Senator Heinrich. Yes. But not for metadata that involves enormous numbers of innocent Americans. Mr. Wainstein. Exactly. It's just the fact that on the criminal side you have a grand jury subpoena; on the national security side, you don't have a comparable tool. And is that a problem? And I honestly don't know where the Administration is on that issue. Senator Heinrich. One of the challenges, obviously, at I&A is just that the challenges with workforce morale. That was true even before some of the things that you heard about in recent years with my colleagues in Portland, politicization of intelligence, et cetera. So, if you're confirmed, what are your plans to turn that around? Because no organization can function well without high- quality morale in its ranks. Mr. Wainstein. No, that's a very important question. And, really, at the end of the day my main responsibility is as a manager, is helping to manage that organization. And as I said, that means supporting the people. When I mean support, I mean, it's my job to help them do their jobs as well as they possibly can. They're really good people in I&A, and I've been in organizations where morale ebbs and flows for a variety of reasons. The nice thing about that is that the right reasons come into play, that morale can go back up. And I think I know morale might have taken some hits at I&A, and I've heard about it. But I can tell you, the people are pretty energized as I've been dealing with them. I think in terms of how to deal with any morale issues, one of the points is what you just put your finger on. They have to know that I have their back, that I'm going to ask them to do nothing more than give objective, straightforward analysis. That's all I want. And that politics is going to play no role in it. That approach--just as I felt as a prosecutor for years doing national security law work at DOJ--that's what people want to hear. They want to know that they're being valued for their work, for their contribution to national security, and not for whether their work butters the bread of one political party or another. Chairman Warner. And for Members who are going to be around for second round, I'll be happy to give up my time so we can get to them, but there are four, five Members who are on WebEx, so it will be a while. Senator Blunt. Senator Blunt Thank you, Chairman. Mr. Wainstein, talking on personnel issues, what do you see as the right balance between contractors and permanent employees? Particularly on the contractor side, what do they bring with them that it may be hard to replicate in the agency on a permanent basis? Mr. Wainstein. That's talking about management, Sir. That's exactly one of the first management questions I'm going to need to address, I think. And I've heard issues or concerns raised about an overreliance on contractors at I&A. But look, there should always be a balance. Contractors provide really important value. They allow you to surge. If you have a need to surge personnel, as you know takes forever to hire people, go through the standard process of hiring folks into the Federal service. You can get contractors and surge quickly. They also are very helpful if you have particular needs or areas of expertise that you need to satisfy. Contractors can be brought in; you don't have to go train somebody else. So, there's real value to the contractors. By the same token, especially when you're talking about analysts, the optimal is to have a traditional government employee who takes over the position, learns the area of analysis, and really develops expertise. It isn't somebody who comes in and out on six month assignments. That's the optimum, right? But there should be a balance. And in positions that I've held or offices I've run I've always looked at that and made sure there's a balance. Here, my sense is there might have been an overreliance on contractors. I think that's being rectified. But one of the first things I do as a manager is to look at that on day one. Senator Blunt As we think about the growing importance of artificial intelligence and machine learning, and all of the public data that's out there, do you think we'll be able to keep up with the new techniques we need to sort this information down to where a career individual can look at it? Or are we going to need some help just dealing with all of the information that's publicly available? It's not anything that we're getting some other way, but how do you propose we go through that in the most effective way and know what we can know from the publicly available information that's out there? Mr. Wainstein. Right. Well, I think you're raising sort of the dilemma of intelligence and the intelligence enterprise in general, which is there's always too much intelligence. And if you can't zero in on what you need, you'll lose the significance of the intelligence you need to focus on. And especially when you're talking about an entity like I&A that's looking at open source information, I mean, it's everywhere and there's so much of it. So, there are a couple of things. One, you've identified one issue or one solution, which is artificial intelligence. I have not gotten a deep dive on what I&A is doing with artificial intelligence to try to get rid of the noise and focus on the important information. But my sense is that's an important part of their operations. And then also training and guidelines--making sure especially when we're talking about looking at people who might be somewhere around the line that separates violent extremists from just political extremists who have First Amendment rights to do what they're doing. You've got to be very careful about hoovering up everything about these people, because we're talking about U.S. person information. So, those guidelines have to provide strict guidelines or guardrails in terms of collection. So, that also helps to winnow down what you pull in. But that's a real challenge. Senator Blunt That's helpful. I think you're right. It's going to be one of the first things you have to deal with if you're confirmed for this job, is how are we later going to explain, looking back--and there's lots of information there-- and we just couldn't figure out how to find it, even though it was publicly available information. And then the topic that you got into earlier--that's a different topic in my view of the things that aren't as available to the public as other things are. And the mix of the contractors and the full-time employees. Is it your view that you can find the full-time professionals that you now need for the skill set that are willing to do this job as their career? Mr. Wainstein. Well, yes. And the main reason is because the people that I've been dealing with at I&A are top notch. And the way you recruit the best is that you perform the best. If you're known for performing, for being a strong entity, people want to join you. They want to be part of your team. And so we will be, obviously--based on resources and we'll be talking to you about resources as well--resources permitting, we'll be looking for the best and the brightest. So, generally, we'll have access to them. But also there are others in the Intelligence Community who might be interested in coming over and doing some time on the domestic front. Senator Blunt Right. Thank you. Thank you, Chairman. Chairman Warner. Senator King on WebEx. [No response.] All right. If Senator King is not going to join us, how about Senator Bennet on WebEx? [No response.] Going once, going twice. Senator Casey? Senator Casey (via WebEx). Mr. Chairman, thank you very much. I'm happy to be jumping in the shoes of those Senators who you just named. Chairman Warner. Yes. Senator Casey. But thanks very much for this opportunity. I'm going to thank the nominee, the candidate for nomination, Mr. Wainstein, for his public service. His service to the country has already been distinguished and we're grateful that he's willing to serve again. Certainly grateful that his family is helping him do that, as I know every public servant depends upon. I wanted to ask about one topic and that's hospital security and especially ransomware attacks on hospitals. We know that increasingly, hospitals across the country have been targets for these ransomware attacks because of the patient data that these systems hold and the dependence we all have on telemedicine and what happens in those hospital systems when they have a ransomware attack. They have, of course, caused severe disruptions to patient care and have caused and will continue to cause problems for health care generally. So, for Mr. Wainstein, I have two questions. One is to what extent does I&A's Cyber Mission Center support and provide analysis to the DHS Cybersecurity and Infrastructure Security Agency to track cyber threats to hospitals and health care networks throughout the country? Mr. Wainstein. Thank you, Senator. And I appreciate your question. It's going to a very, very serious threat. Before I get into hospitals and health care, specifically, yes, the Cyber Mission Center. I've gotten briefed up on that. I'm generally familiar with how it operates and how it works closely with CISA. In fact, I had a long talk just recently with Jen Easterly, who is heading up CISA, doing a great job there. And we talked specifically about the integration of our office--with the I&A with CISA and how I&A needs to focus or channel targeted intelligence to CISA, as one of its customers, but also to the state and local authorities to let them know about threats they see in terms of specific attacks, specific types of ransomware attacks and techniques. About parties and groups that are engaging in ransomware and techniques for dealing with ransomware. So, my understanding is I&A is working on all those fronts. Working in a very good collaboration with CISA. And Jen and I agree that if I get on board, that one of the first things we'll do is sit down and see how that relationship is working and how it can work better. In terms of, well, I'll let--you say the second question and I assume that's about hospitals specifically. Senator Casey. Yes. I mean, obviously that's going to be critical, that coordination, so that you can provide both support and analysis. The other question just pertains to a similar concern is if you're confirmed, will you commit to enhancing I&A's both the collection and analysis on cyber threats to health care networks, to ensure that Federal agencies writ large are providing networks with the most up-to-date and actionable information? Mr. Wainstein. Yes. Senator. I can commit. I will commit to focusing like a laser on that issue. I mean, I can't think of-- look, ransomware is terrible directed at anybody. But particularly, when it's directed at a health care organization, where health care organization is going to be threatened to be shut down, putting people's lives at risk. So, I would imagine that folks at I&A and CISA are very focused on this issue and that resources are being put to it. I know that ransomware is a big priority of Secretary Mayorkas. But I will, when I get in, I'll sit down and make sure I get a full briefing of what we're doing on the health care front and make sure that we're surging resources as needed. Senator Casey. Thank you very much. Thanks, Mr. Chairman. Chairman Warner. Thank you. Mr. Wainstein. Thank you, Sir. Chairman Warner. The ever-patient and attentive Senator Sasse. Senator Sasse. Felt like it was dripping with sarcasm, Mr. Chairman, but thank you. Mr. Wainstein, congratulations on your nomination. Thanks for your past service. And not just thanks to you but your wife and daughters. I know one's away. But many times in the years, the decades of your government service, particularly after 9/ 11, I'm sure dad was away a lot. So, thanks to your family for the sacrifices you all made, as well. Mr. Wainstein. Thank you for that. Senator Sasse. Do you believe that China sees themselves as engaged in a zero-sum technological race with the U.S.? Mr. Wainstein. Yes. I think they see themselves in a zero- sum technological race with us. And not just technological. Other aspects as well. Senator Sasse. Can you explain to the American people what you think the CCP's goals are vis-a-vis America and how they seek to exploit America's open society, and to the degree that your views have probably changed over the last couple of decades? Everybody in 2000 had a much more benign view of what the CCP or what China and the U.S. might be able to do in cooperative competition. But we're in a different place now. Can you explain to us how you see their goals and how your view has changed, and when? Mr. Wainstein. That's a great question. I was talking to a friend about that just yesterday. Look, I did, sort of, have-- maybe it's Pollyannaish--but I had some optimism that China would sort of come into the League of Nations, would operate as a responsible member of the world order, would respect the rules of the world order, and would compete fairly and become maybe a capitalist democracy of some sort. I had retained vestiges of those hopes for quite some time after the turn of the century. I'll say that--and I mentioned this earlier--I'll say that sort of a rude shock that, kind of, made me realize that that was a pipe dream. When I was heading up the National Security Division, we started seeing this just sort of frontal assault by China on stealing our technology. And they're very methodically going industry-to-industry, hoovering up as much as technology and stealing it. Chinese nationals and others are being deployed to do that. And it was clear to me that they were not playing according to the rules. In fact, they were starting a campaign to play in violation of the rules. And that's why we sounded the alarm, very much so in the time we were at National Security Division. Started up an Export Control Initiative that was focused largely on China. Doing speeches and press conferences and bringing cases, because I think a lot of people were slow to pick up that lesson. But I was probably slow to pick up, too. And then since that time, in the last decade or 15 years, I think we've seen that that focus on stealing technology and intellectual property and willingness to bend the rules there is now pervasive--throughout sort of their whole approach to the west and the United States--military, political, and otherwise. And so I find it to be a very alarming situation. And I agree with your characterization of their feeling that this is a zero-sum game against the United States. Senator Sasse. Thank you. I appreciated your back and forth with the Vice Chairman about three hours of work you did via a partner for the China National Offshore Oil Corporation. I think it's important for other Members of the Senate, maybe who are not on the Intelligence Committee, to understand what the National Offshore Oil Corporation does. They're essentially a bully for the PLA in the South Sea that tries to intimidate China's neighbors and help the CCP benefit from their civil-military fusion and try to harm other nations that believe in open navigation of the seaways, the rule of law, free trade, human rights, et cetera. And so, I've been satisfied in the back and forth that you and I have had with how those three hours of billable work came about. I don't mean to speak for the Vice Chairman, but I appreciated the back and forth that you had with him. Would you be willing to pledge that you would do no work for CCP- affiliated organizations after your term of government service ends? Mr. Wainstein. Yes. I'm very willing to make that commitment. I'll make that commitment right now. Senator Sasse. Thank you. I'm satisfied and look forward to supporting your nomination. And I think that our colleagues on this Committee have had a lot of discussions in a classified space in the past. And I think we should be evolving toward a standard where certain types of work with Chinese government- affiliated organizations in the past are not necessarily inexcusable if we understand the context, as yours was. But I think we should be moving toward a standard where all nominees for all national security affiliated organization--or affiliated responsibilities--agree that they would do no work for CCP-affiliated organizations in the future. So, I look forward to supporting your nomination. I appreciated the distinction you drew about domestic political extremism versus violent extremism. And I know Senator Cornyn has more questions on that. So, I'm happy to move to that second round. Chairman Warner. I thank you, Senator. And I think the point you've made--worthy of consideration--that there are many of our colleagues, as well as many businesses, that still don't understand this. And one of the critical reasons--and I appreciate so many Senators on both sides of the dais--who've been part of our so-called roadshows as we make the case in a classified setting to business and other entities about the other challenges the CCP poses. There are two more Senators on WebEx and then we'll go to second round. So, we're going back to Senator King. Senator King. Thank you, Mr. Chairman. Sorry, I wasn't there the first time. The network dropped out. None of us have ever had that happen before. I appreciate the opportunity to talk to you, Mr. Wainstein. I want to talk about coordination and sharing. We have a huge sprawling intelligence enterprise, as you know. It involves something like 17 different agencies. On the domestic side, your most important counterpart I think is the FBI as well as local law enforcement. I would urge you to establish a regular systematic relationship with the FBI to be sure that you are sharing information, that you're not duplicating. Is that something that you'd be interested in pursuing? Mr. Wainstein. Absolutely, Senator. And let me thank you for the meeting the other day. And thank you, specifically, for that particular suggestion, where you suggested that I reach out to the FBI and my FBI counterparts and suggest that we have a, whatever it was--a monthly lunch. Besides enjoying a lunch, I think it's a great idea for purposes of making sure that we're knitting up and coordinating and sharing information sufficiently. So, absolutely, I agree with the sentiment. I agree with that specific recommendation. Senator King. Well, in serving on this Committee now for going on 10 years, it's been my observation that one of the tendencies in the Intelligence Community is to hold close the information that's gathered. Intelligence isn't any good unless it's shared, but particularly with the people that need to see it. So, I think we classify too much. And I think, of course, sources and methods has to be top of mind. That has to be a consideration. But I hope as you work with the other agencies, and for example, we learn on September 11th, I mean, I'm sorry--on January 6--that there was intelligence somewhere in the system about potential violence, but it just never got to the Capitol Police. So, the other issue about coordination is to be sure that there's serious sharing and that the I&A doesn't consider intelligence that it gathers as something that it owns, but it could certainly be helpful to either the FBI or local law enforcement. Mr. Wainstein. Thank you, Sir. I think you've addressed a couple of points there that I just would like to expand on. One is just information sharing generally, and as we discussed the other day, I lived and breathed the issues surrounding lack of information-sharing post-9/11 where--and just as you said with January 6, even more so. I think before 9/11, there was an inability to connect the dots. That was sort of the terminology that was used to characterize it. But a large part of it was just failure to share information that could have been shared. And it wasn't shared for a variety of procedural reasons, cultural reasons, and the like. And we really had to go to work after 9/11 to break those walls down. And I think in the counterterrorism space, especially in the international counterterrorism space between the Bureau and the CIA and others, the government has come a long way on that front. But, look, it's endemic in government work that siloing happens. People guard information, and don't think ``sharing first.'' They think raising it up their chain before sharing. And so that's something that needs to be focused on. Another issue you mentioned is classification and that's also an issue that's near and dear to my heart. I've been a member of the Public Interest Declassification Board for about seven years. I believe that Senator Wyden was involved in establishing that board. And our focus was on trying to increase transparency. And part of the transparency--part of the reason for that is to establish--give a basis for public trust, but also so that information can be more easily usable by our partners in the national security and law enforcement enterprise, especially--like state and locals. And so that's an issue that I&A is going to be very focused--is very focused on--since it really is the intelligence bridge to the state and locals. Senator King. Well, thank you. And I have some other questions about just how you deal with domestic violent extremists or domestic terrorism--and separated from politics-- but I think other people are going to discuss that in a second round. So, I appreciate your willingness to re-enter government service and the straightforward answers you've given us today. Thank you, Mr. Chairman. Chairman Warner. Thanks, Senator. We have Senator Gillibrand on WebEx. Senator Gillibrand (via WebEx). Thank you, Mr. Chairman. Mr. Wainstein, thank you for being here. A ``Cyber Scoop'' article published this Monday describes 20 current Federal law enforcement contracts totaling $7 million, which includes facial recognition services and software. A GAO report last year documented the expanding use of facial recognition technology in the U.S. Government for a variety of purposes, some of which have the potential for abuse. Privacy advocates and technologists have identified biases in facial recognition technology which stand to disproportionally impact Black and Asian people. Such mistakes could not only be discriminatory to our citizens but potentially disastrous to law enforcement and border patrol efforts. If confirmed, will you commit to providing full and accurate accounting of I&A's collection, retention, and exploitation of intelligence information derived from the use of facial recognition technology, including listing all contracts and subcontractors used by DHS I&A, to this Committee? Mr. Wainstein. Thank you, Senator. Yes. I'll make that commitment pursuant to our obligation to keep the Senate Intelligence and House Intelligence Committees fully and currently informed about our intelligence activities. And I know that is--I don't know from being on the inside-- there was no facial recognition technology I don't think when I was last in the government--but just reading about it, I've heard about the concerns, about biases in the technology. And then just general concerns whenever you have a powerful new technology being used for intelligence purposes, it needs to be very carefully vetted, needs to be subject to careful constrains and safeguards and guidance. And so, I will make sure to be looking into that and working with the various parties, the privacy officer, civil liberties, and Civil Rights Office, et cetera, to make sure that any use of that kind of technology is going to be done in an appropriate way. Senator Gillibrand. If I have time for one more question, I don't have a time keeper here. Chairman Warner. You've got it, go ahead. Senator Gillibrand. Surveys among Federal workers, the Intelligence Community members in particular, have consistently rated DHS as one of the least satisfactory intelligence agencies to work for. I'll quote the 2014 GAO report. `Ì&A has also faced challenges in providing professional development opportunities for its workforce and experienced low morale scores and high rates of attrition, particularly among its lower level analysts. Regarding professional development, I&A historically did not institutionalize a commitment to investing in its workforce, according to I&A officials.'' If confirmed, what steps will you take immediately to address workforce morale and training issues? Mr. Wainstein. Thanks, Senator. That is a fundamental question, a fundamental issue and a challenge for me to--if I walk into I&A--is to assess what the morale of the workforce is and take every measure I can to improve that morale, which improves the effectiveness of the organization. Look, I've just stepped into management positions to a number of different entities throughout my government career. And as I mentioned earlier, morale can change. It can turn on a dime, but it also can improve on a dime. And it's a matter of doing some of the blocking and tackling management. Making sure that the line people have career path--career paths laid out, opportunities for details, training--that kind of thing. It's making sure the tone at the top is right, as I alluded earlier. That everybody on the line realizes that the supervisors and the head of I&A have their back, so that so long as they do their job right and honestly and objectively, they'll be supported. They'll never get a message from the front office that they need to do anything for political reasons, which is antithetical to good morale in an intelligence agency. And, look, I think there are good people at I&A, really good people. And I think the word will get out, and is getting out to the rest of the Intelligence Community that, yes, those surveys are out there. But they are playing an important role in a critical mission of our government. And I think we're seeing that now. And so, when you have criticality, you have good work, and you have strong management, those are the makings of good morale. So, I actually expect the morale to end up being high. But thank you for that question. It's an important part of my job. Senator Gillibrand. Thank you. And thank you, Mr. Chairman. Chairman Warner. Senator Cornyn? Senator Cornyn. Mr. Wainstein, you were a co-founder of Former Republican National Security Officials for Biden and obviously engaged in the political process during the last election. You organized and led a public letter calling the previous President a threat to the rule of law. Certainly, you were within your rights to express your point of view and support the candidate of your choice. But can you assure Americans with whom you disagree politically that you do not view them as a threat to the rule of law, absent some criminal conduct? Mr. Wainstein. Absolutely, Senator. And thank you for that question. And I want to thank Senator Rubio for letting me know that question might be coming. And if you permit me, I'll spend a minute or so just giving you my position on that. That is a completely fair and appropriate thing for you to be asking about. You should ask about the political activities of people who come before you to take these positions in the national security and the law enforcement enterprises, because the last thing, as I said earlier, the last thing we need is anybody in these positions of authority in the national security apparatus who is allowing, injecting politics, into decisionmaking, it undercuts the effectiveness and the credibility of the national security apparatus. So, fair for you to look back at it, at political past. The thing about me is there really is not much political past up until 2020. I've been a government guy, was promoted by Administrations on both sides and basically my job was to do what was best for the American people and not for a particular political party. I felt strongly about the last election. And I think an important point here is the thing that I felt most strongly about--and you alluded to that letter I organized--was the concern that there was politicization of the law enforcement enterprise at the Justice Department and that's the centerpiece of that letter. And it was that concern that really made me feel like I should be vocal. And that's the concern that I think you have, right? That's what I'm worried about, politicization. So, I've spent my life as a public servant resisting politicization. I did that with my advocacy last year and you can be sure if I end up at I&A, that's the position and the principle I'm going to adhere to. So, thank you for that question, Sir. Senator Cornyn. We talked a little bit about domestic terrorism and whose purview that falls within in terms of law enforcement. And I think you said the FBI would certainly take the lead and absent some foreign nexus, you would agree with me that that would not be within the purview of organizations like the Central Intelligence Agency and other parts of the IC, correct? Mr. Wainstein. Certainly. Domestic-focused intelligence work would not fall within the purview of the CIA, yes. Senator Cornyn. And that would include use of the Foreign Intelligence Surveillance Act, correct? Mr. Wainstein. By the CIA, yes. Senator Cornyn. Yes, well, the FBI---- Mr. Wainstein. Against the domestic terrorism threat, yes. Senator Cornyn. As you know, having worked with the FBI-- it's the FBI that fills out the applications for FISA warrants. And indeed one of the concerns that I think everybody should have is about the abuse of some of those tools like the Foreign Intelligence Surveillance Act to surveil American citizens, particularly based on perjured testimony. When you read Inspector General Horowitz's report on Crossfire Hurricane as it documented the perjury of one of the FBI lawyers and the various other abuses of the process, did that cause you concern? Mr. Wainstein. Yes, it certainly did. Senator Cornyn. And one of the problems we have here--you talked about 215--I support the reinstatement of Section 215 of the Foreign Intelligence Surveillance Act, but as I've told the Director of National Intelligence, every time that the skeptics talk about the power that is given to the Intelligence Community under the supervision of the Foreign Intelligence Surveillance Court and Members of Congress, every example of an abuse of that power makes it harder and harder for us as a political matter to get Congress to pass or reinstate those authorities. So, let me turn to the border. Obviously, when you see two million people roughly plus coming across the border during this last year, and instances of drug trafficking and seizures, people with criminal records, potentially people from other countries of special concern, for example, in the Del Rio sector. When I was there last, they said they detained people from 150 different countries coming across the Del Rio sector alone. From a national security perspective, is that a concern of yours? Mr. Wainstein. Absolutely. Look, the border as long as I've been engaged in national security has been an area of concern because of the possibility that wrongdoers are going to get into the country that way, and then contraband and the like, also from a law enforcement perspective. So, yes, that is a concern. Senator Cornyn. And I realize this is not necessarily within your authority or your bailiwick, but I want to use the opportunity to highlight the fact that the Secretary of Homeland Security has actually signed a non-enforcement directive saying that the border patrol should not, and ICE should not, detain anybody who was guilty of illegal entry into the country--unless they've committed other crimes. And the problem remains that that the non-enforcement posture of this Administration and the Department of Homeland Security are operating as a substantial pull factor for people to leave their homes and come into the country illegally. Are you aware of some of the most recent statistics with regard to those who have come here and been released on notice to report? Are you familiar with that process when somebody claims asylum? They're given a either a notice to appear in court or a notice to report to an ICE office. Are you familiar with that? Mr. Wainstein. Yes, Sir. I'm generally familiar with it. Yes. Senator Cornyn. And does it concern you that the---- Chairman Warner. Senator, Senator, I will get you a third round. Senator Cornyn. Pardon me? Chairman Warner. You are at seven and a half minutes now. Can I get you back on the third round? Senator Wyden is next. Senator Cornyn. I just have one more question, but I am happy to do a third round. Senator Wyden. Thank you, Mr. Chairman. Just two quick points, Mr. Wainstein. First, I'm going to be asking you written questions with respect to the dossiers and whether they're going to be released, and how they're going to be used. And I'm going to need those answers before this Committee moves forward. That's number one. Number two, there's another part to this 215 debate. This of course is the bulk collection of the phone records on millions and millions of law-abiding people, where I am trying to square your public testimony with the written answers that you gave us to the pre-hearing questions. Let me make sure we walk through this quickly. In your public testimony about the bulk collection, all these phone records, you said and I quote, ``that this part of the law was significantly more protective of civil liberties than grand jury subpoenas.'' You also testified that if the government wanted to collect--and this is a quote--`àn obviously innocent day-to-day action, I think you're going to have some questions from the FISA Court judge.'' Now, on the basis of the written answers to the pre-hearing questions, you knew that the government was secretly using Section 215 to collect the phone records of millions of innocent Americans without any subsequent review by the FISA Court. So, for the Committee--and I'll be asking more about this in writing as well--reconcile what you knew at the time, based on your answers in your public testimony, because I'm having trouble reconciling the two. And maybe there's something else I need to have information from you on. Mr. Wainstein. Thank you. I think I can help you a little bit. And I appreciate you raising this the other day and giving me a heads up about this. So, let me just, so everybody's on the same page, you're asking about testimony I gave in September, 2009, that was after I left government. Senator Wyden. In public. Mr. Wainstein. In public testimony, that was in a hearing that related to the reauthorization of certain parts of the Patriot Act, including the 215 provision. I was asked to testify as somebody who had worked in that area. I had left the National Security Division where I had direct responsibility for that area as of late 2007 or early 2008. But I opined about the importance of reauthorizing those three--I think it was three sections that were up for reauthorization at the time, including 215. And the point that I was making was actually a fairly simple point, and as you and I discussed, the premise for 215--for enacting 215 as it was enacted in the Patriot Act in 2001--was on the side of--on the criminal side, criminal investigators and prosecutors could use a grand jury subpoena when they needed to get records--any physical document, or any physical thing, but really records. A prosecutor could just issue a grand jury subpoena and say I want those intel records, I want those bank records, what have you. And I did that thousands of times in my career. You don't have to go to a judge. The comparable provision for getting records on the national security side under FISA was 215 that required the Justice Department attorneys to go to a judge, explain to the judge why there was information that was relevant to a terrorism investigation, and get--persuade that judge to authorize that order. So, in my mind it's always better to have a judge in the process, and that that's more protective of civil liberties because someone couldn't just go use 215 for an innocent purpose, as I was explaining, to find out about his girlfriend's whatever--records or something like that. So, that was the point I was making. That it's more protective of the civil liberties. The issue that we're talking about in terms of the fact that it had been used and authorized by, I think, a series of FISA Court judges--that the 215 order could be used to get all this metadata, telephone metadata--that was actually raised earlier in the hearing that I testified in. David Kris, who was then the sitting Assistant Attorney General for National Security, made the exact same points I just made about the value of having a judge in the process and the importance of that to civil liberties. He also mentioned in his written statement--he specifically singled out to the Members that there was a classified collection under 215 that some Members knew about, that he was happy to brief those Members about that classified collection. And that's the metadata program. And so, that was already out there; that was sort of the baseline for the hearing. I was there for that. And so, when I was talking about it, I was talking about how Section 215 was designed vis- a-vis how the grand jury subpoenas were designed and that's still, I think, a valid argument for 215. Senator Wyden. I will just tell you my time is up. I continue to find it hard to reconcile what you knew, and at the time you gave this public testimony, when you talked, and I quote here, about how 215 was ``significantly more protective of civil liberties,'' you knew that the government was secretly using Section 215 to collect all these phone records on millions of innocent Americans without any subsequent review by the FISA Court. And so, this is not just a policy question. With respect to 215, Members have differing opinions. I'm going to have to get some more information from you with respect to reconciling what you now have indicated you knew at the time, which does not seem to me to be consistent with what you said publicly. We'll continue this discussion. And thank you for the extra round, Mr. Chairman. And Mr. Wainstein, we are going--on both dossiers and this 215 matter--we're going to need some additional information. And as I told you when you came in, I'll continue the discussion with you. Thank you, Chairman. Mr. Wainstein. And if I may, Senator, just a couple of points. One, at that point--by the way--I'd been out of the National Security Division for two years. I didn't know actually what was still running or not. I knew that it had been authorized. At some point I learned it had been authorized previously, before my coming into the National Security Division. But also you said that there's--these collections were done without review of the FISA Court. My understanding is the FISA Court authorized and reauthorized it a number of times, so I think there was sort of continuing review of the-- -- Senator Wyden. Well, I'm not sure. I'm not sure that's helpful to you because your written answers to the pre-hearing questions indicated that you knew that the government was secretly using 215 in a way that didn't have any subsequent review by the FISA Courts. So, we're going to have to go over this some more, and I'll continue that discussion. Thank you, Mr. Chairman. Chairman Warner. Before I go back to Senator Cornyn, Senator Blunt, do you have anything else? Senator Cornyn? We're in the seven minute round area. Senator Cornyn. Mr. Wainstein, we were talking about the border. Mr. Wainstein. Yes. Senator Cornyn. And as Under Secretary for Intelligence and Analysis, what will be your role in an official capacity with regard to border enforcement and threats to the Homeland coming across the border? Mr. Wainstein. I believe, and I'll have still a lot to learn about what I&A's role is at the border--my understanding is it's sort of twofold. One is to provide intelligence and information to the range of people or actors, enforcement agencies, that are involved with law enforcement at and around the border. So, making sure that state and local, territorial, and tribal partners who are down around the border are getting as much intelligence as we can find, about what they can expect to be seeing crossing the border illegally. What kind of migration patterns there are, this kind of thing. So, on one hand I&A's job is to provide that intelligence to those agencies as well as among the Federal agencies and within DHS. But then also to collect intelligence that might be gleaned from people who are coming across the border. So, with whether there's people who are brought, taken to secondary and asked questions, this kind of thing, intelligence, important information that can be helpful to the Intelligence Community, to DHS, to our state and local partners, is developed and we then are responsible for helping to channel that intelligence into I&A, and then make that into actionable analytical product. Senator Cornyn. As you know, given the volume of people that have come across the border in the last year--some two million--that by the way doesn't count the so-called ``getaways.'' It's always struck me as odd that we try to estimate people we never see. The number--but we know it's more than are actually detained along the border. And among those law enforcement has, identified--people with criminal records, multiple offenses, drug smuggling, sex offenders, and the like. Currently there's no process in place to actually do biometric identification of all the people who are coming across the border. As a law enforcement professional, does it concern you that people are coming across the border for whom we have no record, positive or negative, and then they are released into the heartland of the country and given a notice to report or a notice to appear? And just in the last six months, 50,000 of them did not show up at an ICE office, given their notice to report and thus violating the terms of their release. Do you view that as a national security and a law enforcement vulnerability? Mr. Wainstein. It is clearly. It's always a concern for those in national security and in the Intelligence Community when you have a blank space, when there is a lack of information about people here in the United States and what they might do. And so, the more that we can learn about and from the people who are coming across the border the better. So, yes, as an intelligence guy, I want to know more rather than less. And so, whether that's from interviews, from making sure they go through the process, or what have you, absolutely. It's better to know more. And whether it's coming across the southern border, whether it's coming through our airports and ports, we want to know more rather than less about the people who are here in the United States. Senator Cornyn. And do you, finally, consider our lack of knowledge about those individuals a national security vulnerability? Mr. Wainstein. I guess I'd say that a lack of knowledge about people coming into our country is troubling because we want to know more about these people than less. We want to have an understanding whether somebody is coming in for malign purposes, whether it's to launch a terrorist attack, or what have you. So, absolutely whether it's people coming across the border, whether it's people coming through airports, whether it's people coming in as refugees, what have you. I know this is the approach that DHS would want to have more of than less. Senator Cornyn. So, that would be a yes, it is a vulnerability? Mr. Wainstein. Well, vulnerabilities arise from lack of intelligence and information. And the intelligence enterprise is all about, as you know, as this Committee and you know all too well, is all about minimizing vulnerabilities. You minimize that by having information before a threat becomes a reality. So, my feeling is that we reduce our level of vulnerability, the more knowledge we have. Senator Cornyn. Thank you. Mr. Wainstein. Thank you, Sir. Chairman Warner. I believe Senator King has one more question from WebEx. Senator King (via WebEx). Thank you, Mr. Chairman. Mr. Wainstein, I want to take you back to law school. You get confirmed in this position. One of your analysts walks in one day and says we have information on a group called Sons of Liberty out in one of the Midwestern states. They seem to be very strong supporters of conservative causes. We've heard a tip that they may be planning some kind of action involving violence at the U.S. Supreme Court. What do you do? Mr. Wainstein. That's a great question. And I have a very vague recollection of law school. But I remember getting a few of those questions in classes and getting called on and hopefully I'll do better than I did in law school. That's a very realistic scenario, and that goes to the issue that I think we discussed earlier, which is, given where domestic terrorism is coming from--it's coming from a range of motivations--but some of it is coming from attitudes about politics and political views. That makes the intelligence operations in that space incredibly fraught, incredibly difficult, because you cannot--you're forbidden at DHS and every part of the Intelligence Community and law enforcement community in the Federal Government--you're forbidden from doing investigative, taking investigative steps just because somebody is exercising First Amendment rights. And you can exercise your First Amendment rights by saying something that other people would think is completely absurd and extreme, but so long as it's not inciting violence, you're allowed to do it. I&A cannot and should not be involved in collecting against that person or that party. It's the last piece of what you said, the analyst came in with that got my attention: that there's an indication that this group is planning some kind of violence, because that's the dividing line. If there is sufficient basis to believe that this group is planning a violent act of some kind, especially a violent act like this which is sort of very clearly terrorism seemingly, if it's intended to influence the government by attacking the Supreme Court, then that makes it a fitting and appropriate target for intelligence collection. So, it really would come down to how much of a factual basis is there to believe that that group is going over that line into violence. And it can't be that there's some remote possibility that it could happen or that similar groups in the past have gone from being politically extreme to being violent. It has to be that there's some evidence that this group is in fact crossing over that line. Senator King. I think you're right. I think violence is the dividing line. I will share you my favorite interchange with the law professor who once asked me a question. I didn't know the answer but I bravely guessed and said ``yes,'' and the professor said, Mr. King, a shorter and more accurate answer would have been ``no.'' Thank you, Mr. Wainstein. Mr. Wainstein. Thank you, Sir. Chairman Warner. Mr. Wainstein, welcome back to the arena. You have proven me completely wrong. I thought we would glide through this hearing in 45 minutes. And you saw from both sides of the dais enormous amount of interest. I personally want to look forward to supporting you. I think you have absolutely the right experience at this moment in time for a part of the IC and law enforcement that I kind of understand its role, but candidly still don't fully understand. In the hypothetical that Senator King posed, if this group which had been maybe throwing out violent threats, but somehow move from violent threats to a plan of action, at what point you continue at I&A versus turn it all over to FBI? And I don't expect you to frankly have that whole answer, because I think that this part of DHS is probably an area that's still evolving, particularly in light of the fact that when it was set up after 9/11, I think the general presumption was these kind of threats were going to be generally foreign-originating. And the unfortunate circumstances that we have right now is that there are some of these instances where these threats may be domestic-oriented. How we work that all through will be one of your responsibilities, as well. I appreciate the fact that you are constantly affirming the workforce. I think that's the right thing to do, but clearly the data indicates you've got a workforce that is at least at this moment in time needs a strong leader, needs a permanent leader, needs a Senate-approved leader. I appreciate your candor. I do think some of the comments, again, my colleagues have raised--and Senator Sasse and I work really well together on a lot of issues around China--but I think we're all evolving on China. I think it's really important that when we talk about China as well, we put that extra asterisk in there, that our beef is with the CCP and leadership of Xi Jinping and it's not with the Chinese people or the Chinese Diaspora, wherever they are. But as I kind of dig into this a little bit, maybe I have a little more understanding why this kind of job with this kind of challenge--even though on the org chart is not as high as some of the jobs you've had in the past--it might be the kind of thing to bring you back into government service. So, I thank you for your testimony. I thank you for your thoughtful answers. I thank your wife and your three daughters, and I will still be expecting validation that Ellie, I think, is the fourth--that she is actually giving up time at Berkeley to watch this hearing. You can quiz her on the fact that I mentioned her twice or you can see if she actually did follow through. Mr. Wainstein. I will put her to the test. Chairman Warner. As I mentioned to Members and staff, if people have got additional questions please submit them by Friday the 15th, at close of business, and clearly you'll get some of those. And my hope is that we can move quickly on this nomination. And my hope is we can get some help from some of my Republican friends because there have been too many people held up for too long. I think the sooner you get into this job, the better for DHS, the better for our I&A, and the better for our country. And with that--any last comments? Mr. Wainstein. No, I just want to thank you for holding this hearing. I appreciated the engagement of you and all the Members. And I join with you in the fervent hope that I'll get confirmed, and then I'll get in there quickly. There's a lot of work to do and I'm anxious to get in there and work with DHS, and work with you and your colleagues. Chairman Warner. Thank you so much. The hearing is adjourned. [Whereupon at 3:39 p.m., the hearing was adjourned.] Supplemental Material [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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