Hearing Type: 
Date & Time: 
Wednesday, June 7, 2017 - 10:00am
Hart 216


Daniel R.
Director of National Intelligence
Acting Director
Director of the Federal Bureau of Investigation
Michael S.
Director of the National Security Agency
Deputy Attorney General
Rod J.
Deputy Attorney General of the Department of Justice

Full Transcript

[Senate Hearing 115-84]
[From the U.S. Government Publishing Office]

                                                         S. Hrg. 115-84




                               BEFORE THE


                                 OF THE

                          UNITED STATES SENATE


                             FIRST SESSION


                        WEDNESDAY, JUNE 7, 2017


      Printed for the use of the Select Committee on Intelligence


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           [Established by S. Res. 400, 94th Cong., 2d Sess.]

                 RICHARD BURR, North Carolina, Chairman
                MARK R. WARNER, Virginia, Vice Chairman

JAMES E. RISCH, Idaho                DIANNE FEINSTEIN, California
MARCO RUBIO, Florida                 RON WYDEN, Oregon
SUSAN COLLINS, Maine                 MARTIN HEINRICH, New Mexico
ROY BLUNT, Missouri                  ANGUS KING, Maine
JAMES LANKFORD, Oklahoma             JOE MANCHIN III, West Virginia
TOM COTTON, Arkansas                 KAMALA HARRIS, California
                 MITCH McCONNELL, Kentucky, Ex Officio
                  CHUCK SCHUMER, New York, Ex Officio
                    JOHN McCAIN, Arizona, Ex Officio
                  JACK REED, Rhode Island, Ex Officio
                      Chris Joyner, Staff Director
                 Michael Casey, Minority Staff Director
                   Kelsey Stroud Bailey, Chief Clerk


                              JUNE 7, 2017

                           OPENING STATEMENTS

Burr, Hon. Richard, Chairman, a U.S. Senator from North Carolina.     1
Warner, Hon. Mark R., Vice Chairman, a U.S. Senator from Virginia     2


Coats, Hon. Dan, Director of National Intelligence; Accompanied 
  by: Andrew McCabe, Acting Director, Federal Bureau of 
  Investigation; Admiral Michael S. Rogers (USN), Director, 
  National Security Agency, and Commander, U.S. Cyber Command; 
  and Rod J. Rosenstein, Deputy Attorney General.................     4
    Prepared Statement...........................................    11



                        WEDNESDAY, JUNE 7, 2017

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:08 a.m. in 
Room SH-216, Hart Senate Office Building, Hon. Richard Burr 
(Chairman of the Committee) presiding.
    Committee Members Present: Senators Burr (presiding), 
Warner, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, 
McCain, Feinstein, Wyden, Heinrich, King, Manchin, Harris, and 


    Chairman Burr. I'd like to thank our witnesses today: 
Director of National Intelligence Dan Coats--Dan, welcome back 
to your family here in the United States Senate--Department of 
Justice Deputy Attorney General Rod Rosenstein; Director of 
National Security Agency Admiral Mike Rogers; and Acting 
Director of the Federal Bureau of Investigation Andrew McCabe. 
Welcome to all four of you.
    I appreciate you coming today to discuss one of our most 
critical and publicly debated foreign intelligence tools. Title 
VII of the Foreign Intelligence Surveillance Act, commonly 
known as FISA, is set to expire on December 31, 2017. Title VII 
includes several crucial foreign intelligence collection tools, 
including one known primarily as Section 702. Section 702 
provides the capability to target foreigners who are located 
outside the United States, but whose foreign communications 
happen to be routed to and acquired inside the United States.
    Section 702 collection is exceptionally critical to 
protecting Americans both at home and abroad. It is integral to 
our foreign intelligence reporting on terrorist threats, 
leadership plans, intentions, counterproliferation, 
counterintelligence, and many other issues that affect us.
    It is subject to multiple layers of oversight and reporting 
requirements from the Executive, the Judicial and the 
Legislative Branches. The Foreign Intelligence Surveillance 
Court must approve minimization procedures for each relevant IC 
agency before the agency can review collected information. At 
the end of the day, FISA collection provides our government 
with the foreign intelligence that our Nation needs to protect 
Americans at home and abroad, and in many cases our allies.
    I understand there is an ongoing debate pitting privacy 
against national security, and there are arguments within the 
debate that have merit.
    As we all too painfully know, the intelligence community's 
valuable FISA collection was thrust into the public spotlight 
following the illegal and unauthorized disclosures by former 
NSA analyst Edward Snowden. As a result, the United States 
government and this committee redoubled its efforts to oversee 
FISA collection authorities, which already were subject to 
historical robust oversight.
    But I also think it's fair to say that some entities 
overreacted following Snowden's disclosures. And now Congress 
must justify what courts repeatedly have upheld as 
constitutional and lawful authorities. And I also think that 
it's fair to say that nothing regarding this lawful status has 
changed since Director Clapper and Attorney General Holder 
wrote to Congress in February 2012 to urge us to pass a 
straight reauthorization of FISA, and since the Obama 
Administration followed suit in September 2012.
    What has changed, however, is the intensity, scale and 
scope of the threats that face our Nation. This is not the time 
to needlessly roll back and handicap our capabilities. I know a 
lot of people will use this hearing as an opportunity to talk 
about the committee's Russian investigation. I'd like to remind 
everyone that 702 is one of our most effective tools against 
terrorism and foreign intelligence targets. I hope my 
colleagues and those closely watching this hearing realize 
that, at the end of the day, our constitutional obligation is 
to keep America and our citizens safe.
    The intelligence community needs Section 702 collection to 
successfully carry out its mission. And it is this committee's 
obligation to ensure that the IC has the authorities and the 
tools it needs to keep us safe at home and abroad.
    Gentlemen, I look forward to your testimony and continued 
efforts to maintain the integrity of this vital collection 
    I now turn to the Vice Chairman for any comments he might 


    Vice Chairman Warner. Thank you, Mr. Chairman. And thank 
you for hosting this hearing on the very important 702 program 
and ways that we might ensure its effectiveness, and I will get 
to that in a moment. However, given the panel of witnesses here 
and given the recent news about ongoing investigations into 
Russian interference in our 2016 elections, I'm going to have 
to take at least part of my time to pose some questions during 
my question time.
    Each of you here today, we all know, have taken oaths to 
defend the Constitution. As leaders of the intelligence 
community, you've also committed to act and to provide advice 
and counsel in a way that is unbiased, impartial, and devoid of 
any political considerations. This is the essence, quite 
honestly, of what makes our intelligence community and all the 
men and women who work for you so impressive. You tell it 
straight, no matter which political party is in charge.
    And that's why it's so jarring to hear recent reports of 
White House officials, perhaps even the President himself, 
attempting to interfere and enlist our intelligence community 
leaders in any attempt to undermine the ongoing FBI 
    Obviously, tomorrow there's another big hearing. We'll be 
hearing from former FBI Director Comey. I imagine he'll have 
something to say about the circumstances surrounding his 
dismissal. We have now heard the President himself say that he 
was thinking about the Russia investigation when he fired 
Director Comey, the very individual who was overseeing that 
same investigation.
    Today we'll have an opportunity to ask Deputy Attorney 
General Rosenstein about his role in the Comey firings as well. 
Additionally, we've seen reports, some as recently as 
yesterday, that the President asked at least two of the leaders 
of our Nation's intelligence agencies to publicly downplay the 
Russian investigation. The President is alleged to have also 
personally asked Director Coats and CIA Director Pompeo to 
intervene directly with then Director Comey to pull back on his 
    I'll be asking, as I've told them, DNI Director Coats and 
NSA Director Admiral Rogers about those reports today, because 
if any of this is true, it would be an appalling and improper 
use of our intelligence professionals, an act, if true, that 
could erode the public's trust in our intelligence 
    The IC, as I've grown to know over the last seven and a 
half years I've been on this committee, prides itself, 
appropriately, on its fierce independence. Any attempt by the 
White House or even the President himself to exploit this 
community as a tool for political purposes is deeply, deeply 
    I respect all of your service to the Nation. I understand 
that answering some of the questions that the panel will pose 
today may be difficult or uncomfortable, given your positions 
in the Administration. But this issue is of such great 
importance, the stakes are so high, I hope you will also 
consider all of our obligation to the American people, to make 
sure that they get the answers they deserve to so many 
questions that are being asked.
    Now let me return to the subject of our hearing. Mr. 
Chairman, I agree that the reauthorization of Section 702 is 
terribly important. As the attacks in London, Paris, 
Manchester, Melbourne--and the list unfortunately goes on and 
on--all those attacks have demonstrated, terrorists continue to 
plot attacks that target innocent civilians. Section 702 under 
court order collects intelligence about these potential 
terrorist plots.
    It authorizes law enforcement and the intelligence 
community to collect intelligence on non-U.S. persons outside 
the United States, where there is reasonable suspicion that 
they seek to do us harm.
    I've been a supporter of reauthorizing Section 702 to 
protect Americans from terrorist attacks. And I'm eager to work 
with my colleagues on both sides of the aisle to make sure that 
we reauthorize it before the end of this year. A 
reauthorization of Section 702 should ensure also that there is 
robust oversight and restrictions to protect the privacy and 
civil liberties of Americans. Those protections remain in 
place, and if there are areas where those protections can be 
strengthened, we ought to look at those, as well.
    So thank you, Mr. Chairman. I look forward to our hearing.
    Chairman Burr. Thank you, Vice Chairman.
    Let me say for all members, votes are no longer scheduled 
for 10:30, if you've not gotten that word. Votes have been 
moved to 1:45. When this hearing adjourns, we will reconvene at 
2:00 p.m. for a closed-door session on Section 702. I intend to 
start that hearing promptly at 2:00. Today, members will be 
recognized by seniority for questions up to five minutes.
    With that, gentlemen, thank you for being here today. 
Director Coats, you are recognized to give testimony on behalf 
of all four of you. The floor is yours.


    Director Coats. Thank you, Mr. Chairman. Chairman Burr, 
Chairman Warner, members of the committee: We are pleased to be 
here today, at your request, to talk about an important and 
perhaps the most important piece of legislation that affects 
the intelligence community. I'm here with my colleagues.
    I would like to take the opportunity to explain in some 
detail Section 702, given this is a public hearing and 
hopefully the public will be watching. Our efforts to provide 
transparency in terms of how we protect the privacy and civil 
liberties of our American citizens needs to be explained. The 
program needs to be understood, and so I appreciate your 
patience as I talk through in my opening statement the value of 
702 to our intelligence community and to keeping Americans 
    Intelligence collection under Section 702 of the FISA 
Amendments has produced and continues to produce significant 
intelligence that is vital to protect the Nation against 
international terrorism, against cyber threats, weapons 
proliferators and other threats. At the same time, Section 702 
provides strong protections for the privacy and civil liberties 
of our citizens.
    Today, the horrific attacks that recently have occurred in 
Europe are still at the top of my mind. I was just in Europe 
days before the first attack in Manchester, followed by other 
attacks that have subsequently taken place. I was in discussion 
with my British colleagues through this, as well as colleagues 
in other European nations. And my sympathies go out to the 
victims and families of those that have received these heinous 
attacks and to the incredible resilience that these communities 
affected by this violence have shown.
    Having just returned from Europe less than three weeks ago, 
I'm reminded of why Section 702 is so important to our mission 
of not only protecting American lives, but the lives of our 
friends and allies around the world. And although the many 
successes enabled by 702 are highly classified, the purpose of 
the authority is to give the United States intelligence 
community the upper hand in trying to avert these types of 
attacks before they transpire, which is why permanent 
reauthorization of the FISA Amendments Act without further 
amendment is the intelligence community's top legislative 
    And based on the long history of oversight and transparency 
of this authority, I would urge the Congress to enact this 
legislation at the earliest possible date, to give our 
intelligence professionals the consistency they need to 
maintain our capability.
    Let me begin today by giving an example of the impact of 
Section 702 of FISA. It's been cited before, but I think it is 
worth mentioning again. An NSA FISA Section 702 collection 
against an e-mail address used by an Al Qaida courier in 
Pakistan revealed communications with an unknown individual 
located within the United States. The U.S.-based person was 
urgently seeking advice on how to make explosives.
    NSA passed this information on to the FBI, which in turn 
was able to quickly identify the individual as Najibullah Zazi. 
And as you know, Zazi and his associates in fact had imminent 
plans to detonate explosives on Manhattan's subway lines.
    After Zazi and his coconspirators were arrested, the 
Privacy and Civil Liberties Oversight Board stated in its 
report, and I quote, ``Without the initial tipoff about Zazi 
and his plans, which came about by monitoring an overseas 
foreigner under Section 702, the subway bombing plot might have 
succeeded.'' This is just one example out of many of the 
impacts this authority has had on the IC's ability to thwart 
imminent threats and plots against United States citizens and 
our friends and allies overseas.
    Since it was enacted nearly 10 years ago, the FISA Act has 
been subject to rigorous and constant oversight by all three 
branches of government. Indeed, we regularly report to the 
Intelligence and Judiciary Committees of both the House and the 
Senate how we have implemented the statute, the operational 
value it has afforded, and the extensive measures we take to 
ensure that the government's use of these authorities complies 
with the Constitution and the laws of the United States.
    Further, over the past few years we have engaged in an 
unprecedented amount of public transparency on the use of these 
authorities. In the interest of transparency and because this 
is a public hearing, allow me to provide an overview of the 
framework for Section 702 and the reasons why the Congress 
amended FISA in 2008.
    I will then briefly address why 702 needs to be 
reauthorized. And finally, I will discuss oversight and 
compliance, and how we are ensuring and continue to ensure the 
rights of U.S. citizens, rights that need to be protected.
    At the outset, I want to stress three things as a backdrop 
to everything else that my colleagues and I are presenting 
today. First, as I mentioned at the outset, collection under 
702 has produced and continues to produce intelligence that is 
vital to protect the Nation against international terrorism and 
other threats.
    Secondly, there are important legal limitations found 
within Section 702 of FISA and let me note four of these legal 
limitations. First, the authorities granted under Section 702 
may only be used to target foreign persons located abroad for 
foreign intelligence purposes. Secondly, they may not be used 
to target U.S. persons anywhere in the world. Third, they may 
not be used to target anyone located inside the United States, 
regardless of their nationality. And fourth, they may not be 
used to target a foreign person when the intent is to acquire 
the communications of a U.S. person with whom a foreign person 
is communicating. This is generally referred to as the 
prohibition against reverse targeting.
    The third item I would like to stress is that we are 
committed to ensuring that the intelligence community's use of 
702 is consistent with the law and the protection of the 
privacy and civil liberties of Americans. And to that end, in 
the nearly 10 years since Congress enacted the FAA, there have 
been no instances of intentional violations of Section 702. I'd 
like to repeat that. In the nearly 10 years since Congress 
enacted the amendments to the Freedom Act, the act that 
established FISA, there have been no instances of intentional 
violations of Section 702.
    With those points as a backdrop, now let me turn to a 
discussion of why it became necessary for Congress to enact 
Section 702. I do this so that the American public can 
hopefully better understand the basis for this important law.
    The Foreign Intelligence and Surveillance Act was first 
passed in 1978, creating a way for the Federal Government to 
obtain court orders for electronic surveillance of suspected 
spies, terrorists, and foreign diplomats located inside the 
United States. When originally enacting FISA, Congress decided 
that collection against targets located abroad would generally 
be outside of their regime, FISA's regime. That decision 
reflected the fact that people in the United States are 
protected by the Fourth Amendment, while foreigners located 
abroad are not. Congress accomplished this in large part by 
defining electronic surveillance based on the technology of the 
time. In the 1970s, overseas communications were predominantly 
carried by satellite. FISA, as passed in 1978, did not require 
a court order for the collection of these overseas satellite 
    So, for example, if in 1980 NASA intercepted a satellite 
communication of a foreign terrorist abroad, no court order was 
required. However, by 2008 technology had changed considerably. 
First, U.S.-based e-mail services were being used by people all 
over the world.
    Second, the overseas communications that in 1978 were 
typically carried by satellite were now being carried by fiber 
optic cables, often running through the United States. So, to 
continue the same example, if in 2008 a foreign terrorist was 
communicating by using a U.S.-based e-mail service, a 
traditional FISA court order was required to compel a U.S.-
based company to help with that collection.
    Under traditional FISA, a court order can only be obtained 
on an individual basis, by demonstrating to a Federal judge 
that there is probable cause to believe that the target of the 
proposed surveillance is a foreign power or an agent of a 
foreign power. This had become an ever more difficult and 
extremely resource-intensive process.
    And therefore, due to these changes in technology, the same 
resource-intensive legal process was being used to conduct 
surveillance on terrorists located abroad, who are not 
protected by the Fourth Amendment, as was being used to conduct 
surveillance on U.S. persons inside the United States, who are 
protected by the Fourth Amendment.
    By enacting 702 in 2008 and renewing it in 2012, both times 
with significant bipartisan support, Congress corrected this 
anomaly, restoring the balance of protections established by 
the original FISA statute. And although I will not go into 
great detail here regarding the legal framework for FISA's 
Section 702, I will simply note a few key items.
    First, the statute requires annual certifications by the 
Attorney General and by the Director of National Intelligence 
regarding the categories of foreign intelligence that the 
intelligence community will acquire under this authority.
    Second, the statute requires targeting procedures that set 
forth the rules by which the intelligence community ensures 
that only foreign persons abroad are targeted for collection.
    Thirdly, the statute requires minimization procedures 
protecting U.S. persons' information that may be incidentally 
acquired while targeting foreign persons.
    And finally, each year the FISA Court reviews this entire 
package of material to make sure the government's program is 
consistent with both the statute and with the Fourth Amendment 
of the Constitution.
    We have publicly released lightly redacted versions of all 
these documents, including the most recent FISC opinion, to 
ensure the public has a good understanding of how we use this 
authority. The government's Section 702 program, as we have 
said, is subject to rigorous and frequent oversight by all 
three branches of government.
    The first line of oversight and compliance is within the 
agencies themselves, whose offices of general counsel, privacy 
and civil liberties offices, and inspectors general all have a 
role in FISA 702 program oversight. The majority of the 
incidents of noncompliance that are reported to my office and 
to the Department of Justice are self-reported by the 
participating agencies.
    In addition, the Office of the DNI and Department of 
Justice conduct regular audits, focusing on compliance with the 
targeting procedures, as well as on querying of collected data 
and on dissemination of information under the minimization 
procedures. Also, we have regular engagements with and 
extensive reporting to Congress about the FISA 702 program.
    For example, the Judiciary and Intelligence Committees 
receive relevant orders of the FISA Court and associated 
pleadings, descriptions and analysis of every compliance 
incident, and certain statistical information, such as the 
number of intelligence reports in which a known U.S. person was 
    And finally, of course, the FISA Court regularly checks our 
work, both through the annual recertification process and 
through regular interactions on particular incidents of 
noncompliance. Members of the FISA Court, who are all appointed 
by the Chief Justice of the Supreme Court, represent the best 
of the best of our judicial community. They have vast judicial 
experience and are committed to the constitutional 
responsibilities of protecting the privacy of U.S. persons.
    We are particularly proud of our oversight and compliance 
track record. The audits of the program conducted by the ODNI 
and DOJ have shown that unintended error rates are extremely 
low, substantially, substantially less than 1 percent.
    Further, and I want to emphasize this, we have never--not 
once--found an intentional violation of this program. There 
have been unintended mistakes, but I would note that any system 
with zero compliance incidents is a broken compliance system, 
because human beings make mistakes. The difference here is that 
none of these mistakes has been intentional. When do we--and 
when we do find unintentional errors and compliance incidents, 
we ensure that they are reported and corrected.
    This is an extraordinary record of success for the diligent 
men and women of the intelligence community, who are committed 
to ensuring that their neighbors' privacy is protected in the 
course of their national security work.
    And with that, I'd like to turn to the most recent 
compliance incident, which resulted in a significant change in 
how the National Security Agency conducts a portion of its FISA 
702 collection. A recent example of the oversight process at 
work--as a recent example, NSA identified a compliance incident 
involving queries of U.S. persons' identifiers into Section 
702-acquired upstream data. ``Upstream data'' refers to when 
NSA receives communications directly from the Internet, with 
the assistance of companies that maintain these backbone 
networks. The FISC, FISA Court, was promptly notified and DOJ 
and ODNI worked with NSA to understand the scope and causes of 
the problem, as well as to identify potential solutions to 
prevent the problem from reoccurring.
    The details of the incident are publicly available, and 
Admiral Rogers will go or can go into more detail during the 
question and answer session if you would like. But just allow 
me briefly to state what happened. NSA identified and 
researched a compliance issue.
    NASA--excuse me. NSA reported that issue to DOJ, ODNI, and 
ultimately the FISA Court. The court delayed its consideration 
of the 2016 certifications on that basis until the government 
was able to correct the issue.
    NSA determined that a possible solution to the compliance 
problem was to stop conducting one specific type of upstream 
collection. So ultimately we decided that the most effective 
way to address the court's concerns was to stop collecting on 
this basis. It's called the ``abouts'' portion of upstream 
collection. And by ``abouts collection,'' I'm referring to 
NSA's ability to collect communications where the foreign 
intelligence target is neither the sender nor the recipient of 
the communication that's made, but is referenced within the 
communication itself. The FISA Court agreed with our solution 
and approved the program as a whole on the basis of the NSA 
    In short, what I'm trying to say here is that a compliance 
issue was identified and after a great deal of hard work the 
Department of Justice and the intelligence community proposed 
to the FISA Court an effective solution that took the relevant 
collection costs and compliance benefits into account, and the 
court agreed with the proposed solution. That is how the 
process works, and it works well.
    Before I conclude, I would like to speak briefly about an 
issue that has been the subject of much public discussion. 
There have been requests, numerous requests, from both Congress 
and the advocacy community for NSA to attempt to count the 
number of United States persons whose communications have been 
incidentally acquired in the course of FISA 702 collection. 
During my confirmation hearing and in a subsequent hearing 
before this committee, I committed to sitting down with Admiral 
Rogers and the subject matter experts in the intelligence 
community to understand why this has been so difficult.
    Within my first few weeks on the job, I visited NSA, 
discussed with Admiral Rogers and his technical people, and 
followed through on my commitment. What I learned was that the 
NSA has made--it's hard for me to say. They have made extensive 
    ``Herculean'' I think is the--say that again.
    Mr. Rosenstein. Herculean.
    Director Coats. Herculean. Herculean. All right. I had to 
turn to----
    Senator Risch. We know what you mean.
    Director Coats. You know what I mean? I mean really tough 
efforts, all right, to devise a counting strategy that would be 
accurate and that would respond to the question that was asked. 
But I also learned that it remains infeasible to generate an 
exact, accurate, meaningful, and responsive methodology that 
can count how often a U.S. person's communications may be 
incidentally collected under 702.
    I want to be clear here. To determine if communicants are 
U.S. persons, NSA would be required to conduct significant 
additional research trying to determine whether individuals who 
may be of no foreign intelligence interest are U.S. persons. 
And from my perspective as the Director of National 
Intelligence, this raises two significant concerns.
    First, I would be asking trained NSA analysts to conduct 
intense identity verification research on potential U.S. 
persons who are not targets of an investigation. From a privacy 
and civil liberties perspective, I find this unpalatable.
    Second, those scores of analysts that would have to be 
shifted from key focus areas such as counterterrorism, 
counterintelligence, counterproliferation, issues with nations 
in which, such as North Korea, we need--and Iran--we need 
continuous and critical intelligence missions. I can't justify 
such a diversion of critical resources and the mass of critical 
resources that we would need to try to attempt to reach this, 
even without the ability to reach a definite number. I can't 
justify that at a time when we face such a diversity of serious 
    And finally, even if we decided the privacy intrusions were 
justified, and if I had unlimited staff to tackle this problem, 
we still do not believe it is possible to come up with an 
accurate, measurable result.
    I'm aware that the Senate Intelligence Committee staff will 
be meeting following this public hearing in a classified 
session, and Admiral Rogers has instructed his experts to 
address this issue in greater detail.
    Before I wrap up my remarks, I want to provide one final 
example that I have, for the purposes of today's hearing, 
chosen to declassify using my authority as the Director of 
National Intelligence to further illustrate the value of 
Section 702. Before rising through the ranks to become at one 
point the second in command of the self-proclaimed Islamic 
State of Iraq and al-Sham, ISIS, Haji Iman was a high school 
teacher and imam. His transformation from citizen to terrorist 
caused the U.S. government to offer a $7 million reward for 
information leading to him.
    It also made him a top focus of the NSA's counterterrorism 
efforts. NSA, along with its IC partners, spent over two years, 
from 2014 to 2016, looking for Haji Iman. This search was 
ultimately successful, primarily because of FISA Section 702. 
Indeed, based almost exclusively on intelligence activities 
under Section 702, NSA collected a significant body of foreign 
intelligence about the activities of Haji Iman and his 
    Beginning with non-Section 702 collection, NSA learned of 
an individual closely associated with Haji Iman. NSA used 
collection permitted and authorized under Section 702 to 
collect intelligence on the close associates of Haji Iman, 
which allowed NSA to develop a robust body of knowledge 
concerning the personal network of Haji Iman and his close 
    Over a two-year period, using FISA Section 702 collection 
and in close collaboration with our IC partners, NSA produced 
more intelligence on Haji Iman's associates, including their 
location. NSA and its tactical partners then combined this 
information, the Section 702 collection which was continuing 
and other intelligence assets, to identify the reclusive Haji 
Iman and track his movements.
    Ultimately, this collaboration enabled U.S. forces to 
attempt an apprehension of Haji Iman and two of his associates. 
On March 24th, 2016, during the attempted apprehension 
operation, shots were fired at the U.S. forces aircraft from 
Haji Iman's location. U.S. forces returned fire, killing Haji 
Iman and the other associates at that location. Subsequent 
Section 702 collection confirmed Haji Iman's death.
    As you can see from this sensitive example, Section 702 is 
an extremely valuable intelligence collection tool and one that 
is subject to a rigorous, effective oversight program. And 
therefore, allow me to reiterate my call on behalf of the 
intelligence community without hesitation, my call for 
permanent reauthorization of the FISA Amendments Act without 
further amendment.
    Mr. Chairman, thank you for your patience and we would be 
willing to be open to your questions.
    [The prepared statement of Director Coats follows:]

    Chairman Burr. Thank you, Director Coats.
    The Chair would recognize himself now for five minutes of 
    In 2012, I mentioned in my opening statement, Director of 
National Intelligence Jim Clapper and Attorney General Eric 
Holder wrote a letter to the Congressional leadership asking 
Congress to pass a straight reauthorization of FISA. The 
September 2012 statement of administration policy also urged 
the same. This would be to Director Coats and AG Rosenstein: 
Has the ODNI or the Department of Justice position changed at 
all since the time of the February 2012 letter?
    Director Coats. No. We strongly support the 2012 letter and 
    Chairman Burr. Mr. Rosenstein.
    Mr. Rosenstein. We agree 100 percent.
    Chairman Burr. Great.
    This is to Admiral Rogers and to Director McCabe. Since 
Congress last authorized this authority in 2012, again, have 
there been any instances involving a deliberate or intentional 
compliance violation?
    Admiral Rogers.
    Admiral Rogers. Not that I'm aware of.
    Chairman Burr. Director McCabe.
    Director McCabe. No, sir.
    Chairman Burr. Admiral Rogers, this is to you.
    Admiral Rogers. Yes, sir.
    Chairman Burr. If FISA 702 statutory authorities were to 
end or even be diminished, what would be the impact on our 
national security?
    Admiral Rogers. I could not generate the same level of 
insight that the Nation, our friends and allies around the 
world count on with respect to counterterrorism, 
counterproliferation. I could not, for example, be able to 
recreate the insights on the Russian efforts to influence the 
2016 election cycle. Without 702, we could not have produced 
that level of insight.
    Chairman Burr. This is a jump ball. April 26, 2017, the 
Foreign Intelligence Surveillance Court, commonly known as 
FISC, held that Section 702 certifications, including its 
targeting and minimization procedures, are lawful both under 
FISA statute and the Fourth Amendment.
    As former Director Comey testified last month, the only 
reason our laws even require the certification to cover, and I 
quote, ``these non-Americans who aren't in our country'' is 
because of their communications transiting U.S.-based networks 
and systems. Yet others have suggested imposing a Fourth 
Amendment warrant requirement on foreigners who are located 
outside of the United States. This is really NSA and Justice: 
Would imposing such a warrant requirement impact our national 
security tools to protect America?
    Mr. Rosenstein. He's deferring to me. I'll be happy to take 
the ball.
    Yes, it would, Senator. I think what's important to 
recognize is that in the absence of Section 702 the Department 
of Justice and the intelligence community, in every case in 
which we wanted to obtain foreign intelligence information, to 
collect against a particular target we'd be required to obtain 
a court order that would need to be supported by probable 
    The consequence of that is, number one, it'd be very time-
consuming because these are very thorough investigations and we 
produce very lengthy documents. In fact, Director McCabe and I 
spend a fair amount of our time every morning reviewing a stack 
of documents with our career agents and attorneys, in which 
they have determined that it's appropriate to seek those 
orders. So it'd be time-consuming, it would require a 
significant commitment of resources, and in addition to that it 
would require a showing of probable cause. And, as you know, 
the probable cause showing which is required under the 
Constitution in circumstances in which privacy interests of 
Americans are at stake and it's required by the Fourth 
Amendment, that's a relatively higher threshold than we require 
for foreign intelligence information.
    And so we think it's important, Senator, that we not apply 
that Fourth Amendment constitutional standard to foreigners who 
are not in the United States.
    Chairman Burr. Thank you, Mr. Rosenstein.
    Admiral Rogers, this is to you. There's a lot of news 
reporting, much of it inaccurate, that characterizes Section 
702 as a means of targeting U.S. persons. We know that 
targeting U.S. persons is prohibited, as it is what is termed 
``reverse targeting.'' Could you explain and clarify the 
reverse targeting prohibition? And what does it prevent the IC 
from targeting and collecting?
    Admiral Rogers. So reverse targeting is designed to 
preclude our ability to bypass the law. And what do I mean by 
that? The law is expressly designed to ensure that we are not 
using this legal framework as a capability to target U.S. 
    Reverse targeting is the following scenario: Say we're 
interested in generating insight on U.S. person A. We know that 
we can't get a Title I, we can't get a FISA warrant. So under 
the idea of reverse targeting, the theory would be, well, why 
don't you just target a foreign entity that that U.S. person 
talks to, and then you'll get all the insights you want on the 
U.S. person, but you'll have bypassed the court process, you'll 
have bypassed the entire legal structure. 702 specifically 
reminds us we cannot do that. We cannot use 702 as a vehicle to 
bypass other laws or to target U.S. persons.
    Chairman Burr. Can you--last question. Can you please 
clarify for members and for the public, what's meant by 
``incidental collection''?
    Admiral Rogers. Incidental collection--and the statute 
itself, if you read the law, the statute acknowledges that in 
the execution of this framework we will encounter U.S. persons. 
We call that incidental collection.
    That happens under two scenarios. Number one, which is 
about 90 percent of the time: We are monitoring two foreign 
individuals, and those foreign entities talk about or reference 
a U.S. person. The second scenario that we encounter what we 
call incidental collection is we are targeting a valid foreign 
individual and that valid foreign individual, a foreign 
intelligence target, ends up having a conversation with a U.S. 
person that's not the target of our collection. It's not why we 
are monitoring it in the first place. We're interested in that 
foreign target. That happens, of the times we have incidental 
collection, that scenario happens about 10 percent of the time.
    Chairman Burr. And were that incidental collection to 
happen, do you have a procedure in place in both instances to 
minimize that?
    Admiral Rogers. We do. The law specifically gives a set of 
processes that we have to follow. So if we do encounter a U.S. 
person incidentally in the course of our collection, we ask 
ourselves several questions. Number one, are we looking at 
potential criminal activity? If we do that, we have a 
requirement to report or to inform the Department of Justice 
and the FBI, and they make the determination if it's illegal or 
not. We are an intelligence organization, not a law enforcement 
    The second question we ask ourselves: Is there anything in 
this conversation that would lead us to believe that we're 
talking about harm to individuals? In that case, we do report 
it. If we think we're dealing with something that is criminal 
or there's harm to individuals, we report it.
    Other than that, unless there is a valid intelligence 
purpose, depending on the authority in a case of 702, we 
specifically purge the data. We remove it. We don't put it into 
our holdings. If we don't assess that there's intelligence 
value and it's a U.S. person, we have to purge the data.
    Chairman Burr. Thank you for that.
    Vice Chairman.
    Vice Chairman Warner. Thank you, Mr. Chairman.
    As I indicated, I've got some questions on another matter 
and, Director Coats and Admiral Rogers, they're mostly going to 
be directed at you gentlemen. And thank you for your testimony 
this morning.
    We all know now that in March then-Director Comey testified 
about the existence of an ongoing FBI investigation into links 
between the Trump campaign and the Russian government. And 
there are reports out in the press that the President 
separately appealed to you, Admiral Rogers, and to you, 
Director Coats, to downplay the Russia investigation. And now 
we've got additional reports, and we want to give you a chance 
to confirm or deny these, that the President separately 
addressed you, Director Coats, and asked you to, in effect, 
intervene with Director Comey, again to downplay the FBI 
    Admiral Rogers, you draw the short straw. I'm going to 
start with you. Before we get to the substance of whether this 
call or request was made, you've had a very distinguished 
career, close to 40 years. In your experience, would it be in 
any way typical for a President to ask questions or bring up an 
ongoing FBI investigation, particularly if that investigation 
concerns associates and individuals that might be associated 
with the President's campaign or his activities?
    Admiral Rogers. So today I am not going to talk about 
theoreticals. I am not going to discuss the specifics of any 
interaction or conversations I may or may not----
    Vice Chairman Warner. Can you----
    Admiral Rogers. If I could finish, please--that I may or 
may not have had with the President of the United States. But I 
will make the following comment. In the three-plus years that I 
have been the Director of the National Security Agency, to the 
best of my recollection I have never been directed to do 
anything I believe to be illegal, immoral, unethical, or 
inappropriate. And to the best of my recollection, during that 
same period of service I do not recall ever feeling pressured 
to do so.
    Vice Chairman Warner. But in your course prior to the 
incident that we're going to discuss, was it in any regular 
course where a President would ask you to comment or intervene 
in any ongoing FBI investigation? Not talking about this 
circumstance, but is there any prior experience with that?
    Admiral Rogers. I'm not going to talk about theoreticals 
    Vice Chairman Warner. Well, let me ask you specifically. 
Did the President--the reports that are out there--ask you in 
any way, shape, or form to back off or downplay the Russia 
    Admiral Rogers. I'm not going to discuss the specifics of 
conversations with the President of the United States, but I 
stand by the comment I just made to you, sir.
    Vice Chairman Warner. Do you feel that those conversations 
were classified? We know that there was an ongoing FBI 
    Admiral Rogers. Yes, sir.
    Vice Chairman Warner. There are press reports.
    Admiral Rogers. Yes, sir.
    Vice Chairman Warner. I understand your answer. I'm 
disappointed with that answer, but I may indicate--and I told 
you I was going to bring this up--there is----
    Admiral Rogers. Yes, sir.
    Vice Chairman Warner. We have facts that there were other 
individuals that were aware of the call that was made to you, 
aware of the substance of that call, and that there was a memo 
prepared because of concerns about that call.
    Will you comment at all about the----
    Admiral Rogers. I stand by the comments that I have made to 
you today, sir.
    Vice Chairman Warner. So you will not confirm or deny the 
existence of a memo?
    Admiral Rogers. I stand by the comments I have made to you 
today, sir.
    Vice Chairman Warner. I think it will be essential, Mr. 
Chairman, that that other individual, who has served our 
country as well with great distinction, who's no longer a 
member of the Administration, has a chance to relay his version 
of those facts.
    Again, I understand----
    Admiral Rogers. Yes, sir.
    Vice Chairman Warner [continuing]. Your position, but I 
hope you'll also understand the enormous need for the American 
public to know. You've got the Administration saying there's no 
there there, we have these reports, and yet we can't get 
    I want to go to you, Director Coats. When you appeared 
before SASC, you said, and I quote, ``If called before the 
investigative committee, I certainly will provide them with 
what I know and what I don't know.'' I have great respect for 
you. You served on this committee. I remember as well when we 
confirmed you, and I was proud to support your confirmation, 
you said that you would cooperate with this committee in any 
aspects that we request of the Russia investigation.
    We now have press reports, and you can lay them to rest if 
they're not true, but we have press reports of, not once, but 
twice, that the President of the United States asked you to 
either downplay the Russia investigation or to directly 
intervene with Director Comey. Can you set the record straight 
about what happened or didn't happen?
    Director Coats. Well, Senator, as I responded to a similar 
question during my confirmation and in a second hearing before 
the committee, I do not feel it's appropriate for me to, in a 
public session in which confidential conversations between the 
President and myself--I don't believe it's appropriate for me 
to address that in a public session.
    Vice Chairman Warner. Gentlemen, I understand----
    Director Coats. I stated that before and I----
    Vice Chairman Warner. Well, I thought you also said at 
SASC, if brought before the investigative committee, you would, 
quote, ``certainly provide them with what I know and what I 
don't know.'' We are before that investigative committee.
    Director Coats. Well, I stand by my previous statement that 
we are in a public session here and I do not feel that it is 
appropriate for me to address confidential information. Most of 
the information I've shared with the President obviously is 
directed toward intelligence matters during our Oval briefings 
every morning at the White House, or most mornings when both 
the President and I am in town.
    But for intelligence-related matters or any other matters 
that have been discussed, it is my belief that it's 
inappropriate for me to share that with the public.
    Vice Chairman Warner. Gentlemen, I respect all of your 
service, and I understand and respect your commitment to the 
Administration you're serving. We will have to bring forward 
that other individual about whether the existence of the memo 
that may document some of the facts that took place in the 
conversation between the President and Admiral Rogers.
    But I would only ask, as we go forward--this is my final 
comment, Mr. Chairman--that we also have to weigh in here the 
public's absolute need to know. They're wondering what's going 
on. They're wondering what type of activities.
    We see this pattern that, without confirmation or denial, 
appears that the President, not once, not twice, but we will 
hear from Director Comey tomorrow, this pattern where the 
President seems to want to interfere or downplay or halt the 
ongoing investigation, not only that the Justice Department's 
taking on, but this committee's taking on.
    And I hope as we move forward on this you'll realize the 
importance, that the American public deserves to get the 
answers to these questions.
    Thank you, Mr. Coats.
    Director Coats. Well, Senator, I would like to respond to 
that, if I could. First of all, I'm always--I told you and I 
committed to the committee that I would be available to testify 
before the committee. I don't think this is the appropriate 
venue to do this in, given that this is an open hearing, and a 
lot of confidential information relative to intelligence or 
other matters--I just don't feel it's appropriate for me to do 
that in this situation.
    And then, secondly, when I was asked yesterday to respond 
to a piece that I was told was going to be written and printed 
in the Washington Post this morning, my response to that was, 
in my time of service which is in interacting with the 
President of the United States or anybody in his 
Administration, I have never been pressured, I've never felt 
pressure to intervene or interfere in any way with shaping 
intelligence in a political way, or in relationship to an 
ongoing investigation.
    Vice Chairman Warner. All I'd say, Director Coats, is there 
was a chance here to lay to rest some of these press reports. 
If the President is asking you to intervene or downplay--you 
may not have felt pressure, but if he is even asking, to me 
that is a very relevant piece of information.
    And again, at least in terms of the conversation with 
Admiral Rogers, I think we will get at least some--another 
individual's version. But at some point, these facts have to 
come out.
    Thank you, Mr. Chairman.
    Chairman Burr. Senator Risch.
    Senator Risch. Well, thank you very much, Mr. Chairman.
    Thank you, Senator Coats--excuse me, Director Coats, and 
Admiral Rogers, for your testimony. With all due respect to my 
colleague from Virginia, I think you have cleared up 
substantially your direct testimony that you have never been 
pressured by anyone, including the President of the United 
States, to do something illegal, immoral, or anything else. 
Thank you for that.
    Let's go back to----
    Director Coats. Thank you, Senator.
    Senator Risch. Let's go back to Section 702, which is what 
this hearing was supposed to be all about. It's becoming 
patently obvious, I think, to those of us that work in the 
intelligence community that we're in a different position than 
Europe is. Europe, their risks are obviously very high and 
they're suffering these attacks on a very regular basis, and 
becoming more regular.
    So let's talk about our collection efforts versus the 
European collection efforts and particularly as it relates to 
Section 702. And obviously we hear in the media frequently 
about spats between us and the Europeans regarding intelligence 
matters. But we all know that there is a robust communication 
and cooperation between our European friends and ourselves. So 
I want to talk about it in--I want to talk about 702 in that 
    Why don't we start, Director Coats, with you and then I'll 
throw it up for anybody else who wants to comment on this. How 
important is 702, the continuation of Section 702 and its 
related parts, to doing what we have been doing as far as 
helping the Europeans and the Europeans helping us and doing 
the things that we're doing here in America to see that we 
don't have the kind of situations that have been recently 
happening in Europe?
    Director Coats, start with you.
    Director Coats. Well, having just returned a few weeks ago 
from major capitals in Europe and discussing this very issue 
with my counterparts throughout the intelligence communities of 
these various countries, they voluntarily, before I could even 
ask the question, expressed extreme gratitude for the ability--
for the information we have been able to share with them 
relative to threats. Numerous threats have been avoided on the 
basis of collection that we have received through 702 
authorities and our notification of them of these impending 
threats, and they have been deterred or intercepted.
    Unfortunately, what has happened just recently, 
particularly in England, shows that, regardless of how good we 
are, there are bad actors out there that have bypassed the more 
concentrated, large attack efforts and taken it, either through 
inspiration or direction from ISIS or other terrorist groups--
have chosen to take violent action against the citizens of 
those countries.
    The purpose of the trip was to ensure them that that we 
would continue to work and share together. Their collection 
activities, capabilities, in many cases are good, but in some 
cases lack the ability that we have. And so this ability to 
share information with them that helps keep their people safe 
also is highly valued by them.
    But I don't think we should take for granted that, just 
because Europe has been the recent target of these attacks, 
that the United States is safe from that. We know through 
intelligence that there is plotting going on and we know that 
there's lone-wolf issues and individuals that are taking 
instructions from ISIS through social media or that, for 
whatever reason, are copycatting what is happening. And so that 
threat exists here also.
    And let me lastly say that the nations that I've talked to, 
many of which have been extremely concerned about violating 
privacy rights, have initiated new procedures and legislation 
and mandates relative to getting the intelligence agencies 
better collection, because they think they need it to protect 
their citizens.
    Senator Risch. Thank you very much.
    In just the few seconds that I've got left, Mr. Rosenstein, 
could you tell me, please--we get a lot of pushback from the 
privacy people, and we've now heard testimony that there's been 
no intentional violation over the 10 years. Could you tell the 
American people what's in store for someone who these guys 
catch intentionally misusing 702, since you're the highest 
ranking member of the Department of Justice here?
    Mr. Rosenstein. Yes, Senator. I can assure you, Senator, 
that in Department of Justice we treat with great seriousness 
any allegations of violations regarding classified information. 
So if there were a credible allegation that someone had 
willfully violated Section 702 in a way that was in violation 
of a criminal law, we would investigate that case and if 
prosecution were justified we would prosecute it.
    I know Director McCabe shares with me that commitment. And 
we recognize that we have an obligation to the American people 
to make sure that these authorities are used appropriately and 
responsibly, that we comply with the Constitution and the laws 
and the procedures. And we're committed to devote whatever 
resources are required to make sure that, if there are willful 
violations, people are held accountable for them.
    Senator Risch. And this is your commitment, and the 
Department of Justice's commitment, to the American people?
    Mr. Rosenstein. That's correct.
    Senator Risch. Thank you, Mr. Rosenstein.
    Mr. Rosenstein. Thank you.
    Senator Risch. Thank you, Mr. Chairman.
    Chairman Burr. Senator Feinstein.
    Senator Feinstein. Thanks. Thank you, Mr. Chairman.
    Just a couple of comments on Section 702. It's a program 
that I support. It's a program that I believe has worked well. 
It's a big program. It's an important one. It is a content 
collection program involving both internet and phone 
communications, so it can raise concerns about privacy and 
civil liberties.
    In the year 2016, there were 106,469 authorized targets out 
of 3 billion internet users. That's the ratio. The question of 
unmasking has been raised. It's my understanding that 1,939 
U.S. person identities were unmasked in 2016 based on 
collection that occurred under Section 702.
    So my question is going to be the following, and I'll ask 
it all together and hopefully you'll answer it. I would like a 
description of the certification process and the use of an 
amicus. I would like your response to the fact that--the 
program sunsets after five years--about raising that sunset 
versus no sunset. Because of the privacy concerns, it's my 
belief there should be a sunset--and the use of an amicus, 
which is currently used as part of the certification process, 
and whether that should be continued and formalized.
    So, Admiral, the program's under your auspices.
    Admiral Rogers. If I could, DOJ is going to be smarter on 
the amicus piece, please.
    Senator Feinstein. Okay.
    Admiral Rogers. Will you take that piece?
    Mr. Rosenstein. I'm not sure I am smarter on the amicus 
piece, Senator. I can tell you this, though, that with regard 
to the question of unmasking--now, this is actually primarily a 
question not for the Department. The determination is made by 
the intelligence agencies if there is a situation where a 
foreign person has been communicating about an American person, 
and a decision is made whether or not the identity of the 
American person is necessary in order for that intelligence to 
be properly used.
    I think what's important for people to recognize, Senator, 
is that's an internal issue. That is, that unmasking is done 
internally, you know, within the cloak of confidentiality 
within the intelligence community. That's a different issue 
from leaks. In other words, if somebody's identity is disclosed 
internally because it's relevant for intelligence purposes, 
because that's the goal of this collection, is to understand--
    Senator Feinstein. Mr. Rosenstein, let me just tell you, I 
just listened to somebody who should have known better talking 
about unmasking in a political sense, that it's done 
politically. And that of course is not the case. And so what 
I'm looking for is the definition of how this is done and under 
what circumstances.
    Mr. Rosenstein. Right. And I think, Senator, that, because 
that's really a decision made by the IC, the intelligence 
community, not by the Department, it would be appropriate for 
them to respond to that.
    Admiral Rogers. I can do that. So, with respect to 
unmasking, the following criteria apply. First, for the 
National Security Agency, we define in writing who has the 
authority to unmask a U.S. person identity. That is 20 
individuals in 12 different positions. I am one of the 20 in 
one of those 12 positions, the Director.
    Secondly, we outline in writing what the criteria that will 
be applied to a request to unmask in a report. And again, part 
of our process under 702 to protect the identity of U.S. 
persons, as part of our ``minimization procedures,'' when we 
think we need to reference a U.S. person in a report, we will 
not use a name. We will not use an identity. We say, ``U.S. 
Person One, U.S. Person Two, U.S. Person Three.''
    That report is then promulgated. Some of the recipients of 
that report will sometimes come back to us and say, ``I'm 
trying to understand what I am reading. Could you help me 
understand who is Person One or who is Person Two, et cetera?'' 
We apply two criteria in response to their request. Number one, 
you must make the request in writing. Number two, the request 
must be made on the basis of your official duties, not the fact 
that you just find this report really interesting and you're 
just curious. It has to tangibly tie to your job. And then 
finally--I said two, but there's a third criterion, and that is 
the basis of the request must be that you need this identity to 
understand the intelligence you're reading.
    We apply those three criteria, we do it in writing, and one 
of those 20 individuals then agrees or disagrees. And if we 
unmask, we go back to that entity who requested it--not every 
individual who received the report, but that one entity who 
asked for us. We then provide them the U.S. identity, and we 
also remind them the classification of this report and the 
sensitivity of that identity remains in place. By revealing 
this U.S. person to you, we are doing it to help you understand 
the intelligence, not--not--so that you can use that knowledge 
indiscriminately. It must remain appropriately protected.
    Senator Feinstein. Thank you.
    Director Coats. And, Senator, if I could just add something 
to that. Given the nature of this issue--and it's a legitimate 
question that you've asked--I've talked with my colleagues at 
NSA and CIA, FBI and so forth, suggesting that we might ask our 
civil liberties and privacy protection agencies to take a look 
at this, to see if there--Admiral Rogers laid out the 
procedures. Are these the right procedures, should we be doing 
something different, would they have recommendations that 
better protected people from misuse of this? So--and they've 
all agreed to do that. So I think it's a legitimate issue to 
follow up on. I've talked to the agency heads about doing so, 
and they're willing to do it.
    Admiral Rogers. And if I could, I also have an internal 
review that I have directed. Given all the attention, given the 
focus, let's step back, let's reassess this and let's ask 
ourselves, is there anything that would suggest we need to do 
something different in the process?
    Senator Feinstein. Good, good. Thank you.
    Mr. Rosenstein. Mr. Chairman, with your permission I'd like 
to more thoroughly answer the first question the Senator asked, 
which is that, Senator Feinstein, my understanding is that an 
amicus was used in 2015, and that decision was made by the 
court, the Foreign Intelligence Surveillance Court, which has 
the statutory authority, if the court believes it's appropriate 
in a particular case, to appoint an amicus. So my understanding 
is that that was done in 2015. Thank you.
    Senator Feinstein. Well, would you feel it would be helpful 
to make it a part of the regular certification process?
    Mr. Rosenstein. Well, my understanding, Senator, is that 
the statute permits the court to do it if the court believes 
it's appropriate. So I believe the court has that authority, 
and I'd leave it to the judges to decide when it's appropriate 
to exercise that.
    Senator Feinstein. Thank you.
    Thanks, Mr. Chairman.
    Chairman Burr. Senator Rubio.
    Senator Rubio. Thank you all for being here. I understand 
fully the need of the President of the United States to be able 
to have conversations with members of the intelligence 
community that are protected, particularly in a classified 
    I also understand that the ability of this community to 
function depends both on its credibility that its work that 
it's doing is in the national security interest of the United 
States, and also the importance of its independence--that it is 
not an extension of politics, no matter which administration is 
at play.
    And the absence of either one of those two things impacts 
everything we do, including this debate we're having here 
today. And the challenge that we have now is that, while the 
folks here with us this morning are constrained in what they 
can say, there are people that work--apparently work for you 
that are not, and are constantly speaking to the media about 
things and saying things.
    And it puts the Congress in a very difficult position, 
because the issue of oversight on both your independence and on 
your credibility falls on us. I actually think if what is being 
said to the media is untrue, then it is unfair to the President 
of the United States. And if it is, then it is--that if it is 
true, that it is something the American people deserve to know 
and we as an oversight committee need to know in order to 
conduct our job.
    And so my questions are geared to Director Coats and 
Admiral Rogers. You have testified that you have never felt 
pressured or threatened by the President or by anyone to 
influence any ongoing investigation by the FBI. Are you 
prepared to say that you have never felt--that you've never 
been asked by the President or the White House to influence an 
ongoing investigation?
    Director Coats. Well, Senator, I just hate to keep 
repeating this, but I'm going to do it. I am willing to come 
before the committee and tell you what I know and what I don't 
know. What I'm not willing to do is to share what I think is 
confidential information that ought to be protected in an open 
hearing. And so I'm not prepared to answer your question today.
    Senator Rubio. Director Coats, I would just say, and with 
the incredible respect that I have for you, I am not asking for 
classified information. I am asking whether or not you have 
ever been asked by anyone to influence an ongoing 
    Director Coats. I understand, but I'm just not going to go 
down that road----
    Senator Rubio. Okay.
    Director Coats [continuing]. In a public forum.
    And I also was asked the question, if the special 
prosecutor called upon me to meet with him to ask his 
questions. I said I would be willing to do that.
    Admiral Rogers. I likewise stand by my previous comment.
    Senator Rubio. Okay. Well then, in the interest of time let 
me ask both of you, has anyone ever asked you, now or in the 
past, this Administration or any administration, to issue a 
statement that you knew to be false?
    Admiral Rogers. For me, I stand by my previous statement. 
I've never been directed to do anything in the course of my 
three-plus years as the director of the National Security 
    Senator Rubio. Not directed. Asked.
    Admiral Rogers [continuing]. That I felt to be 
inappropriate, nor have I felt pressured to do so.
    Senator Rubio. Have you ever been asked to say something 
that isn't true?
    Admiral Rogers. I stand by my previous statement, sir.
    Senator Rubio. Director Coats.
    Director Coats. I do likewise.
    Senator Rubio. Well, let me ask this of everyone on this 
panel. Is anyone aware of any effort by anyone, in the White 
House or elsewhere, to seek advice on how to influence any 
    Mr. Rosenstein. My answer is absolutely no, Senator.
    Senator Rubio. No one has anything to add to that?
    Admiral Rogers. I don't understand the question.
    Senator Rubio. The question is, are you aware of any 
efforts by anyone in the White House or the Executive Branch 
looking for advice from other members of the intelligence 
community about how to potentially influence an investigation?
    Admiral Rogers. Are you talking about me? No.
    Director Coats. No.
    Senator Rubio. Okay.
    Who wants to answer? I'm sorry.
    Director McCabe. I'm not sure I understand the question, 
but if you're asking whether I'm aware of requests to other 
people in the intelligence community, I am not.
    Senator Rubio. Seeking advice on how he could potentially 
influence someone. You're not aware----
    Director McCabe. I'm not aware of it.
    Senator Rubio [continuing]. Of anyone ever saying or 
reporting that to you?
    Director McCabe. No, sir.
    Senator Rubio. Has anyone ever come forward and said, ``I 
just got a call from someone at the White House asking me what 
is the best way to influence someone on an investigation''?
    Director Coats. I've never received anything.
    Admiral Rogers. I have no direct knowledge of such a call.
    Senator Rubio. It was an allegation made in one of the 
press reports and that's why I asked.
    On a separate topic--I'm sorry.
    Mr. Rosenstein.
    Mr. Rosenstein. Our confusion, Senator. We just want to 
make sure we're clear on the question. The answer is no, as I 
understand it. But I'm not sure I'm familiar with the 
particular media report that you're referring to.
    Senator Rubio. All right. I'm running out of time. I do 
want to ask this, because this is important. Did the NSA 
routinely and extensively and repeatedly violate the rules that 
were put in place in 2011 to minimize the risk of collection of 
upstream information?
    Admiral Rogers. Have we had compliance incidents? Yes. Have 
we reported every one of those to the court? Yes. Have we 
reported those to our Congressional oversight in Congress? Yes. 
Have we reported those to the Department of Justice and the 
Director of National Intelligence? Yes.
    Senator Rubio. Did--under the Obama Administration, was 
there a significant uptick in efforts--in incidents of 
unmasking, from 2012 to 2016?
    Admiral Rogers. I don't know that. I'd have to take that 
for the record, to be honest.
    Senator Rubio. Who would know that?
    Admiral Rogers. We have the data, but I don't know that off 
the top of my head. I couldn't tell you unmasking on a year-by-
year basis for the last five years. I apologize, I just don't 
know off the top of my head.
    Senator Rubio. Thank you.
    Chairman Burr. Senator Wyden.
    Senator Wyden. Thank you very much, Mr. Chairman.
    I've noted the conversations you've had with my colleagues 
with respect to the content of conversations that you may have 
had with the President. My question is a little different. Did 
any of you four write memos, take notes, or otherwise record 
yours or anyone else's interactions with the President related 
to the Russia investigation?
    Director Coats. I don't take any notes.
    Senator Wyden. Let's just get the four of you on the 
    Mr. Rosenstein. Senator, I rarely take notes. I've actually 
taken a few today. But I am not going to answer questions 
concerning the Russia investigation. I think it's important for 
you to understand, when I----
    Senator Wyden. Not on whether you wrote a memo.
    Mr. Rosenstein. I'm not going to answer any questions, 
Senator, about the Russia----
    Senator Wyden. Okay. My time's going to be short.
    Whether you wrote a memo, notes, anything?
    Director McCabe. I also am not going to comment on any 
conversations I may have had or notes taken or not taken 
relative to the Russia investigation.
    Senator Wyden. Okay.
    Admiral Rogers. And likewise, I take the same position.
    Senator Wyden. Director Coats, on March 23rd you testified 
to the Armed Services Committee that you were not aware of the 
President or White House personnel contacting anyone in the 
intelligence community with a request to drop the investigation 
into General Flynn. Yesterday, the Washington Post reported 
that you had been asked by the President to intervene with 
Director Comey to back off of the FBI's focus on General Flynn. 
Which one of those is accurate?
    Director Coats. Senator, I will say once again I'm not 
going to get into any discussion on that in an open hearing.
    Senator Wyden. Both of them can't be accurate, Mr. 
    Mr. Director, as recently as April you promised Americans 
that you would provide what you called a ``relevant metric'' 
for the number of law-abiding Americans who are swept up in the 
FISA 702 searches. This morning, you went back on that promise 
and you said that even putting together a sampling, a 
statistical estimate, would jeopardize national security. I 
think that is a very, very damaging position to stake out.
    We're going to battle it out in the course of this, because 
there are a lot of Americans who share our view that security 
and liberty are not mutually exclusive. We can have both. And 
you rejected that this morning. You went back on a pledge, and 
I think it is damaging to the public. Now, let me----
    Director Coats. Senator, could I answer the question?
    Senator Wyden. Mr. Director, my time is short and I want to 
ask you about one other----
    Director Coats. Well, I would like to answer your question.
    Senator Wyden. Briefly.
    Director Coats. What I pledged to you in my confirmation 
hearing is that I would make every effort to try to find out 
why we were not able to come to a specific number of collection 
on U.S. persons. I told you I would consult with Admiral 
Rogers. I told you I would go to the National Security Agency 
to try to determine whether or not I was able to do that.
    I went out there. I talked to them. They went through the 
technical details. There were extensive efforts on the part of, 
I learned, on the parts of NSA to try to come to, to get you an 
appropriate answer. We were not able to do that.
    Senator Wyden. Mr. Director, respectfully, that's not what 
you said. You said, and I quote, ``We are working to produce a 
relevant metric.''
    Now, let me go to my other question----
    Director Coats. We were, but we were not able to do that, 
to achieve it.
    Senator Wyden. You told----
    Director Coats. Working to do it is different than doing 
    Senator Wyden. You told the American people that even a 
statistical sample would be jeopardizing America's national 
security. That is inaccurate and I think detrimental to the 
cause of ensuring we have both security and liberty.
    Now, here's my other question. We are trying to sort out--
    Senator McCain. Can the witness respond?
    Senator Wyden [continuing]. Who are the targets, who are 
the targets of a 702 investigation. Director Comey gave three 
different answers in a hearing a month ago, and I think it 
would be very helpful if you would tell us who in fact is a 
target of these investigations.
    I want to go after serious foreign threats, but we don't 
know as of now, with Director Comey having given three 
different answers, who the targets are.
    Mr. Director.
    Director Coats. Well, I can't speak for Director--former 
Director Clapper. Targets, as I understand, are non-U.S. 
persons. Foreign individuals are the targets in terms--702 is 
directed and prohibited from directing targets on U.S. persons.
    Senator Wyden. My time is up. I will tell you, Director 
Comey gave three answers. He finally said: ``I could be wrong, 
but I don't think so. I think it's confined to 
counterterrorism, to espionage.'' And finally he said he didn't 
think a diplomat could be targeted.
    So we need you all, in addition to protecting the liberties 
of the American people, to tell us who the targets are.
    Thank you, Chairman.
    Director Coats. Well, I would like to respond to that by 
saying some of those targets are classified, highly classified.
    Senator Wyden. I understand that.
    Director Coats. Some of those targets, by revealing those 
names of those targets, release the methods that we use, and 
then it's turned against us and could cost the lives--or put 
some of our agents in significant----
    Senator Wyden. Director Comey listed a number of targets, 
which is why there's confusion. He said that on the record. We 
need you to tell us on the record as well, consistent with 
protecting sources and methods.
    Chairman Burr. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Director Coats, first let me thank you for a very cogent 
explanation of Section 702 and the fact that it cannot be used 
to target any person located in the United States, whether or 
not that person is an American. I think there's a lot of 
confusion about Section 702, and I appreciate your clear 
explanation this morning.
    Director Coats. Thank you.
    Senator Collins. I have a question for each of you that I 
would like to ask and I want to start with Admiral Rogers. 
Admiral Rogers, did anyone at the White House direct you on how 
to respond today or were there discussions of executive 
    Admiral Rogers. Have I asked the White House is it their 
intent to invoke executive privilege? Yes. The answer I gave 
you today reflects my answer, no one else's.
    Senator Collins. Director Coats.
    Director Coats. My answer is exactly the same.
    Senator Collins. Deputy Attorney General Rosenstein?
    Mr. Rosenstein. I have not had any communications with the 
White House about invoking executive privilege today.
    Senator Collins. Director McCabe.
    Director McCabe. I have not had any conversations with the 
White House about executive privilege today either.
    Senator Collins. Admiral Rogers, in January the FBI, the 
CIA, and NSA jointly issued an Intelligence Committee 
Assessment on Russian involvement in the presidential 
elections. You've testified today that the IC relied in part on 
702 authorities to support its conclusion that the Russians 
were involved in trying to influence the 2016 elections. Can 
you provide us with an update on NSA's further work in this 
    Admiral Rogers. In terms of the Russian efforts largely?
    Senator Collins. Yes.
    Admiral Rogers. Yes, ma'am. We continue to focus analytic 
and collection effort trying to generate insights as to what 
the Russians and others are doing, particularly with respect to 
efforts against U.S. infrastructure, U.S. processes like 
elections. We continue to generate insights on a regular basis.
    If my memory is right, I testified before the SSCI that we 
did the open threat assessment, and in that hearing, which I 
think was the 11th of May, I reiterated, we continue to see the 
similar activity that we identified and highlighted in the 
January report. Those trends continue. Much of that activity 
    Senator Collins. It's my understanding that President Obama 
requested the report that was issued in January. Is that 
    Admiral Rogers. Yes, ma'am. He asked for a consolidated 
single input from the IC as to the question, did the Russians 
or did they not attempt to influence the U.S. election?
    Senator Collins. So could you explain the difference 
between the request from President Obama for that unclassified 
assessment and the allegations that President Trump requested 
that you publicly report on whether or not there was any 
intelligence concerning collusion between the Russians and the 
members of the Trump campaign, President Trump's campaign?
    Admiral Rogers. So I apologize, I guess I'm confused by the 
question. Again, I'm not going to comment on any interactions 
with the President. I just don't feel that that is appropriate. 
As I previously testified, I stand by that report.
    Senator Collins. Let me ask a broader question that I truly 
am trying to get a handle on. And that is, how does the 
intelligence community reach a decision on whether or not to 
comply with a request that comes from the President of the 
United States?
    Obviously, you report to the President of the United 
States. And I'm interested in what process you go through to 
decide whether or not to undertake a task that's been assigned 
by the President, by any President.
    Admiral Rogers. So, off the top of my head, I would say we 
comply unless we have reason to believe that we are being 
directed to do something that is illegal, immoral or unethical.
    Senator Collins. Thank you.
    Admiral Rogers. In which case, we will not execute that.
    Chairman Burr. Senator Heinrich.
    Senator Heinrich. Director McCabe, did Director Comey ever 
share details of his conversations with the President with you? 
In particular, did Director Comey say that the President had 
asked for his loyalty?
    Director McCabe. Sir, I'm not going to comment on 
conversations the Director may have had with the President. I 
know he's here to testify in front of you tomorrow. You'll have 
an opportunity to ask him those----
    Senator Heinrich. I'm asking you, did you have that 
conversation with Director Comey?
    Director McCabe. And I've responded that I'm not going to 
comment on those conversations.
    Senator Heinrich. Why not?
    Director McCabe. Because--for two reasons. First, as I 
mentioned, I'm not in a position to talk about conversations 
that Director Comey may or may not have had with the President.
    Senator Heinrich. I'm not asking you that. I'm asking about 
conversations that you had with Director Comey.
    Director McCabe. And I think that those matters also begin 
to fall within the scope of issues being investigated by the 
special counsel and wouldn't be appropriate for me to comment 
on today.
    Senator Heinrich. So you're not invoking executive 
privilege, and obviously it's not classified. This is the 
oversight committee. Why would it not be appropriate for you to 
share that conversation with us?
    Director McCabe. I think I'll let Director Comey speak for 
himself tomorrow in front of this committee.
    Senator Heinrich. We certainly look forward to that. But I 
think your unwillingness to share that conversation is an 
    Director Coats, you've said as well that it would be 
inappropriate to answer a simple question about whether the 
President asked for your assistance in blunting the Russia 
    I don't care how you felt. I'm not asking whether you felt 
pressured. I'm simply asking, did that conversation occur?
    Director Coats. And once again, Senator, I will say that I 
do believe it's inappropriate for me to discuss that in an open 
    Senator Heinrich. You realize--and obviously this is not 
releasing any classified information. But you realize how 
simple it would simply be to say, ``No, that never happened''? 
Why is it inappropriate, Director Coats?
    Director Coats. I think conversations between the President 
and myself are for the most part----
    Senator Heinrich. You seem to apply that standard 
    Director Coats. No, I'm not applying it selectively. I'm 
saying I don't think it's appropriate----
    Senator Heinrich. You could clear an awful lot up by simply 
saying that it never happened.
    Director Coats. I don't share--I do not share with the 
general public conversations that I have with the President or 
many of my colleagues within the Administration that I believe 
should not be shared.
    Senator Heinrich. Well, I think your unwillingness to 
answer a very basic question speaks volumes.
    Director Coats. It's not a matter of unwillingness----
    Senator Heinrich. Mr. Rosenstein----
    Director Coats. Senator. It's a matter----
    Senator Heinrich. It is a matter of unwillingness.
    Director Coats. It's a matter of how I share it and whom I 
share it to. And when there are ongoing investigations, I think 
it's inappropriate to----
    Senator Heinrich. So you don't think the American people 
deserve to know the answer to that question?
    Director Coats. I think the investigations will determine 
that. And your part of the investigation----
    Senator Heinrich. Mr. Rosenstein, did you know, when you 
wrote the memo that was used as the primary justification for 
firing Director Comey, that the Administration would be using 
it as the primary justification?
    Mr. Rosenstein. Senator, as I know you're aware, I have--
there are a number of documents associated with me that are in 
the public record. The memorandum I wrote concerning Director 
Comey is in the public record.
    The order appointing the special counsel is in the public 
record. The press release I issued accompanying that order is 
in the public record. And a written version of the statement 
that I delivered to 100 United States Senators----
    Senator Heinrich. Were you aware that it would be the 
primary justification for his firing by the----
    Mr. Rosenstein. Pardon me, Senator--100 United States 
Senators and 435 Congressmen is in the public record. I 
answered many questions in the closed briefings of the 100 
    Senator Heinrich. But you're not answering this question.
    Mr. Rosenstein. And as I explained in those briefings, 
Senator, I support Mr. McCabe on this. We have a special 
counsel who is investigating, now responsible for the Russia.--
    Senator Heinrich. Okay. At this point you filibuster better 
than most of my colleagues, so I'm going to move on to another 
question and say that, given that the President stated that the 
FBI Director--that his firing was in response to investigations 
into Russia, which he made very clear in Lester Holt's 
interviews, you've talked with both the President and the 
Attorney General about this firing.
    In light of Mr. Sessions' recusal, what role did the 
Attorney General play in that firing? And was it appropriate 
for him to write the letter that he wrote in this case?
    Mr. Rosenstein. I'm not trying to filibuster, Senator. I 
think I only took about 30 seconds. But I am not going to 
comment on that matter. I'm going to leave it to Special 
Counsel Mueller to determine whether that is within the scope 
of his investigation. And I believe that it's appropriate for 
Mr. McCabe and me to do that, and we recognize----
    Senator Heinrich. Okay, so you can't comment on the recusal 
and what's in, inside and outside the scope of that recusal?
    Senator McCain. Mr. Chairman, we ought to let the witness 
answer the question.
    Mr. Rosenstein. I'm sorry. Your specific question is what's 
in the recusal, and my understanding is the recusal you're 
referring to is also in the public record, and I believe it 
speaks for itself.
    Senator Heinrich. Thank you, Mr. Chair.
    Chairman Burr. Senator Blunt.
    Senator Blunt. Director McCabe, on May the 11th when you 
were before this committee, you said that there has been no 
effort to impede the Russian investigation. Is that still your 
    Director McCabe. It is, but let me clarify, Senator. I 
think you're referring to the exchange that I had with Senator 
Rubio. And my understanding--at least my intention in providing 
that answer was whether or not the firing of Director Comey had 
had a negative impact on our investigation. And my response was 
then, and is now, that the FBI investigated and continues to 
investigate, and now of course under the rubric of the special 
counsel, the Russia investigation in an appropriate and 
unimpeded way, before Director Comey was fired and since he's 
been gone.
    Senator Blunt. Well, I think, as I recall that 
conversation, it was a discussion about whether there were 
plenty of resources, whether the funding was adequate. And what 
you were reported to have said--I haven't looked at the exact 
transcript, but I have looked at the news article--was that you 
were aware of no effort to impede the Russia investigation.
    Director McCabe. We did talk about resource issues and 
whether or not we had asked for additional resources to pursue 
the investigation. And I believe my response at the time was we 
had not asked for additional resources, and that we had 
adequate resources to pursue the investigation. That was true 
then. It's still true today.
    Senator Blunt. And you would characterize your quote as 
``no effort to impede the Russian investigation'' as still 
    Director McCabe. That's correct.
    Senator Blunt. On the 702 issue, when the FBI wants to 
follow up on or pursue a U.S. person in or outside the United 
States, what court do you go to get that to happen? Do you go 
to the FISA Court as well?
    Director McCabe. If we are seeking collection under 702?
    Senator Blunt. No, if--well, if you're--how do you relate 
to 702? Do you ever seek collection under 702?
    Director McCabe. Sure, yes, we do. So when--well, so let me 
step back just a minute. So, of course, when the FBI seeks 
electronic surveillance collection on a U.S. person, we go to 
the FISA Court and get a Title I FISA order to do so.
    If we have an open, full investigation on a foreign person 
in a foreign place and the collection is for the purpose of 
collecting foreign intelligence, we can nominate that person or 
that, as we refer to it internally, the selector, whether it's 
an e-mail address or that sort of thing, we can nominate that 
for 702 coverage. We convey that nomination to the NSA and they 
pursue the coverage under their authority.
    Senator Blunt. But you would be the person that would 
pursue coverage for a U.S. person, either here or outside the 
United States?
    Director McCabe. That's correct, Senator.
    Senator Blunt. You the FBI.
    Director McCabe. We are the U.S. person agency, that's 
    Senator Blunt. And, Admiral Rogers, Senator Feinstein 
mentioned that last year 1,139 U.S. persons were, the phrase 
we're using now, unmasked for some purpose. Is that a number 
you agree with?
    Admiral Rogers. It's in the 2016 ODNI-generated 
transparency report. From memory, the number is actually 1,934, 
from memory. I could be wrong.
    Senator Blunt. I'm sorry, so I misheard. But 1,900. What 
would the number have been in 2015?
    Admiral Rogers. To be honest, I don't know. I'd have to 
take that one for the record. I do know that we didn't start 
with the transparency commitment that we made, partnering with 
the DNI, we didn't start that until the latter end of 2015. So 
the 2015 data that's been published as a matter of public 
record is a subset of the entire calendar year; 2016 is the 
first calendar year where we have published all the data for 
the entire year.
    Senator Blunt. Director Coats, do you have any information 
on that?
    Director Coats. Well, I've seen the number. I don't recall 
what it was, and I just asked my staff if we have it----
    Senator Blunt. All right. I guess what I'm asking, and you 
can take this for the record, is was there an increase in 2016? 
Did you have significantly more requests, based on your subset 
in 2015, happen in 2016 than you had had----
    Admiral Rogers. I don't know off the top of my head. We'll 
take it for the record. But I will say this: 702 collection has 
continued. The amount of total collection has increased, 
generally, every year. It's more and more impactful for us. It 
generates more and more value.
    Senator Blunt. And when you have--when 702 generates 
information that would indicate there was a U.S. person 
involved in criminal activity, what do you do with that 
    Admiral Rogers. We report it to either, to DOJ and the FBI, 
because we're not a criminal organization.
    Senator Blunt. And what--what do you do if you get that 
information at DOJ, Mr. Rosenstein? Information from a 702 
collection that clearly indicates there's a crime involving a 
U.S. person.
    Mr. Rosenstein. I hesitate only because that's actually an 
FBI issue, so I would defer to Mr. McCabe.
    Senator Blunt. All right.
    Mr. McCabe.
    Director McCabe. Sure. So we take that referral, and if 
that's a U.S. person we begin to build an investigation aiming 
towards Title I FISA collection.
    Senator Blunt. With adequate protections for U.S. persons 
in that entire chain----
    Director McCabe. Of course.
    Senator Blunt [continuing]. Of transmission of----
    Director McCabe. Of course.
    Senator Blunt [continuing]. Of material?
    Director McCabe. That's right.
    Senator Blunt. Thank you, Chairman.
    Chairman Burr. Senator King.
    Senator King. Thank you, Mr. Chairman.
    First on 702, like Senator Feinstein, I want to express my 
support for this important tool for our intelligence agencies. 
I do have a concern, which we can discuss perhaps in closed 
session, about the process by which American names which are 
incidentally collected are then queried. I'm concerned by the 
distinction between query and search and where we run into the 
Fourth Amendment.
    It strikes me as bootstrapping to say we collected it 
legally under 702 and then we can go and look at these American 
persons, and I believe that the Fourth Amendment imposes a 
warrant requirement in between that step, which is not present 
in the present process. We can discuss that at greater length.
    Mr. McCabe, I'm puzzled by your refusal to answer Senator 
Heinrich's question about a conversation you may have had with 
Director Comey. What's the basis of your refusal to answer that 
    Director McCabe. Sir, as I stated, I think, first, I can't 
sit here and tell you whether or not those conversations that 
you're referring to----
    Senator King. Why not? Do you not remember them?
    Director McCabe. No, no. I'm sorry, sir. I can't--I don't 
know whether conversations along the lines that you've 
described fall within the purview of what the special counsel 
is now investigating.
    Senator King. Is there some prohibition in the law that I'm 
not familiar with that you can't discuss an item in--that 
you've been asked directly a question?
    Director McCabe. It would not be appropriate for me, sir, 
to discuss issues that are potentially within the purview of 
the special counsel's investigation.
    Senator King. And that's the basis of your refusal to 
answer this question?
    Director McCabe. Yes, sir, that and knowing, of course, 
that Director Comey will be sitting behind this table tomorrow.
    Senator King. So it's your position that the special 
counsel's entitled to ask you questions about this, but not an 
oversight committee of the United States Congress?
    Director McCabe. It is my position that I have to be 
particularly careful about not stepping into the special 
counsel's lane, as they have now been authorized by the 
Department of Justice to investigate these matters.
    Senator King. I don't understand why the special counsel's 
lane takes precedence over the lane of the United States 
Congress in an investigative and oversight committee. Can you 
explain that distinction? Why does the special counsel get 
deference and not this committee?
    Director McCabe. Sir, I'd be happy to----
    Senator King. Is there some legal basis for the 
    Director McCabe. I would be happy to take that matter back, 
to discuss it more fully with my general counsel and with the 
Department. But right now that's the----
    Senator King. On the record, I would like a legal 
justification for your refusal to answer the question today, 
because I think it's a straightforward question. It's not 
involving discussions with the President; it's involving 
discussions with Mr. Comey.
    Gentlemen, Director Coats and Admiral Rogers, I think you 
testified, Admiral Rogers, that you did discuss today's 
testimony with someone in the White House?
    Admiral Rogers. I said I asked did the White House intend 
to invoke executive privileges associated with any interactions 
between myself and the President of the United States.
    Senator King. And what was the answer to that question?
    Admiral Rogers. To be honest, I didn't get a definitive 
answer, and both myself and the DNI are still talking----
    Senator King. Then I'll ask both of you the same question. 
Why are you not answering these questions? Is there an 
invocation by the President of the United States of executive 
privilege? Is there or not?
    Admiral Rogers. Not that I'm aware of.
    Senator King. Then why are you not answering?
    Admiral Rogers. Because I feel it is inappropriate, 
    Senator King. What you feel isn't relevant, Admiral. What 
you feel isn't the answer. The answer is, why are you not 
answering the questions? Is it an invocation of executive 
privilege? If there is, then let's know about it. If there 
isn't, answer the questions.
    Admiral Rogers. I stand by the comments that I've made. I'm 
not interested in repeating myself, sir. And I don't mean that 
in a--contentious way.
    Senator King. Well, I do mean it in a contentious way.
    Admiral Rogers. Yes, sir.
    Senator King. I don't understand why you're not answering 
our questions. You can't--when you were confirmed before the 
Armed Services Committee, you took an oath: Do you solemnly 
swear to give the committee the truth, the full truth and 
nothing but the truth, so help you God?
    Admiral Rogers. I do.
    Senator King. You answered yes to that.
    Admiral Rogers. And I've also answered that those 
conversations were classified, and it is not appropriate in an 
open forum to discuss those classified conversations.
    Senator King. What is classified about a conversation 
involving whether or not you should intervene in the FBI 
    Admiral Rogers. Sir, I stand by my previous comments.
    Senator King. Mr. Coats, same series of questions. What's 
the basis for your refusal to answer these questions today?
    Director Coats. The basis is what I've previously 
explained. I do not believe it is appropriate for me to get 
into it----
    Senator King. What's that basis? I'm not satisfied with ``I 
do not believe it is appropriate'' or ``I do not feel I should 
answer.'' I want to understand a legal basis. You swore that 
oath to tell us the truth, the whole truth, and nothing but the 
truth. And today, you are refusing to do so. What is the legal 
basis for your refusal to testify to this committee?
    Director Coats. I'm not sure I have a legal basis, but I'm 
more than willing to sit before this committee during its 
investigative process in a closed session and answer your 
    Senator King. Well, we're going to be having a closed 
session in a few hours. Do you commit to me that you're going 
to answer these questions in a direct and unencumbered way?
    Director Coats. Well, that closed session you're going to 
have in a few hours involves the staff going over the 
technicalities of a number of these issues and doesn't involve 
us. But I----
    Senator King. Well, is it your testimony that when you are 
before this committee in a closed session, you will answer 
these questions directly and unequivocally and without 
    Director Coats. I plan to do that. But I do have to work 
through the legal counsel at the White House relative to 
whether or not they're going to exercise executive privilege.
    Senator King. Admiral Rogers, will you answer these 
questions in a closed session?
    Admiral Rogers. I likewise respond as the DNI has. I 
certainly hope that that is what happens. I believe that's the 
appropriate thing. But I do have to acknowledge, because of the 
sensitive nature and the executive privilege aspects of this, I 
need to be talking to the general counsel and the White House. 
I hope we come to a position where we can have this dialogue. I 
welcome that dialogue, sir.
    Senator King. I hope so, too. And I would just add in 
conclusion that both of you testified you had never been 
pressured under three years. I would argue that you have waived 
executive privilege by in effect testifying as to something 
that didn't happen. And I believe you opened the door to these 
questions. And it is my belief you are inappropriately refusing 
to answer these questions today.
    Thank you, Mr. Chairman.
    Chairman Burr. Before I turn to Senator Lankford, let me 
say that the Vice Chairman and I have had conversations with 
Acting Attorney General Rosenstein when the special counsel was 
named; and, as I had shared with the members of this committee 
prior to that, that as we carried out an investigation there 
would come a point in time, either with an investigation that 
was currently ongoing at the FBI or, if there was a special 
counsel, with the special counsel, where there would be avenues 
that this committee could not explore.
    And it was my hope that already the Vice Chair and I would 
have had that conversation with the special counsel. We have 
not. We have made the request. We intend to have it. And I 
think that both of us anticipated that we would reach this 
point at some point in the investigation. We are there, where 
there are some things that will fall into the special counsel 
and/or an active investigation.
    Vice Chairman.
    Vice Chairman Warner. Let me just say, though, that at this 
point we've not had that conversation with Mr. Mueller. We've 
not been waved off on any subject, and the way I'm hearing all 
of you gentlemen is that Mr. Mueller has not waved you off from 
answering any of these questions. Is that correct?
    Director Coats. I've had no conversations with Mr. Mueller. 
I've been out of the country for the last nine days----
    Vice Chairman Warner. I would just----
    Director Coats [continuing]. So I haven't had an 
opportunity to talk to him.
    Vice Chairman Warner. Because if you've not have questions 
waved off with Mr. Mueller, I think, frankly--and I understand 
your commitment to the Administration--but that Senator King, 
Senator Heinrich and my questions deserve answers, and at some 
point the American public deserves full answers.
    Chairman Burr. I'm going to ask Mr. Rosenstein to address 
    Mr. Rosenstein. Thank you, Mr. Chairman. And I'm sensitive 
to your desire to keep our answers brief, and my full answer 
actually would be very lengthy. But my brief answer, from my 
perspective at the Department of Justice--and I've been there 
for 27 years, and Mr. McCabe also is a career employee of the 
Department of Justice--our default position is that when 
there's a Justice Department investigation we do not discuss it 
    That's our default rule, so nobody needs to----
    Vice Chairman Warner. Is that the rule for the President of 
the United States as well?
    Mr. Rosenstein. I don't know what----
    Vice Chairman Warner. Because that is what the questions 
are being asked about, reports that nobody has laid to rest 
here, that the President of the United States has intervened 
directly in an ongoing FBI investigation. And we've gotten no 
answer from any of you.
    And frankly, we've at least heard from Director Coats and 
Admiral Rogers that they've not been asked to recuse an answer 
because of Director Mueller. And I don't understand why we 
can't get that answer.
    Mr. Rosenstein. So, I'm not answering for Director Rogers 
or Director Coats. I'm answering for Director McCabe and myself 
with regard to the Department of Justice.
    Chairman Burr. Senator Lankford.
    Senator Lankford. Director McCabe, can I ask you, do you 
feel confident at this point the FBI is fully cooperating with 
the special counsel for any requests in communication and 
setting up of the coordination between the offices for 
documents, work products, insights, anything the special 
counsel as they're trying to get organized and get prepared for 
the investigations they're taking on? Is everyone in the FBI 
fully cooperating with special counsel?
    Director McCabe. Absolutely, sir. I'm absolutely confident 
of that. We have a robust relationship with the special 
counsel's office, and we are supporting them with personnel and 
resources in any way they request.
    Senator Lankford. Thank you.
    Admiral Rogers, this spring the NSA decided to stop doing 
``about'' queries. That was a long conversation that's happened 
there. It's now come out into public about that conversation, 
that that was identified as a problem. The court agreed with 
that and that has been stopped.
    What I need to ask you is who first identified that as a 
    Admiral Rogers. The National Security Agency did.
    Senator Lankford. Okay. So how did you report that? 
Reported that to who? How did that conversation go once you 
identified, we're uncomfortable with this type?
    Admiral Rogers. So in 2016, I had directed our Office of 
Compliance, let's do a fundamental baseline review of 
compliance associated with 702.
    Senator Lankford. Okay.
    Admiral Rogers. We completed that effort, and my memory is 
I was briefed on something like October the 20th. That led me 
to believe the technical solution that we put in place is not 
working with the reliability that's necessary here. I then, 
from memory, went to the Department of Justice and then on to 
the FISA Court at the end of October--I think it was something 
like the 26th of October--and we informed the court: we have a 
compliance issue here and we're concerned that there's an 
underlying issue with the technical solution we put in place.
    We told the court we were going to need some period of time 
to work our way through that. The court granted us that time. 
In return, the court also said: We will allow you to continue 
702 under the 2016 authorizations, but we will not--will not 
reauthorize 2017 until you show us that you have addressed 
    We then went through an internal process, interacted with 
the Department of Justice as well as the court, and by March we 
had come to a solution that the FISA Court was comfortable 
with. The court then authorized us to execute that solution and 
also then granted us authority for the 2017 702 effort.
    Senator Lankford. So you reported initially to the court, 
this is an issue, or the court initially came to you and said, 
we have an issue?
    Admiral Rogers. I went to the court and said, we have an 
    Senator Lankford. And the court said, we agree, we have a 
problem as well?
    Admiral Rogers. Check.
    Senator Lankford. And then it got held up, went through the 
process of review, and then the court has now signed off on the 
other 16?
    Admiral Rogers. That is correct.
    Senator Lankford. So how does this harm your collection 
capabilities, to be able to not do the ``about'' collections?
    Admiral Rogers. So I acknowledged that in doing this we 
were going to lose some intelligence value. But my concern was 
I just felt it was important; we needed to be able to show that 
we are fully compliant with the law. And the technical solution 
we had put in place I just didn't think was generating the 
level of reliability. And as a result of that, I said we need 
to make the change.
    I will say this, and the FISA Court's opinion also says the 
same thing. I also told the court at the time, if we can work 
that technical solution in a way it generates greater 
reliability, I would potentially come back to the Department of 
Justice and the court to recommend that we reinstitute it. And 
in fact the court acknowledged that in their certification.
    Senator Lankford. When you say greater reliability, tell me 
what you mean by that?
    Admiral Rogers. Because it was generating errors. Our 
Office of Compliance highlighted the specific number of cases 
in 2016. And I thought to myself, clearly it's not working as 
we think it is. We were doing queries unknowingly to the 
operator in a handful of situations against U.S. persons. And I 
just said, hey, that is not in accordance with the intent of 
the law.
    Senator Lankford. Yes. Clearly it's not only the intent; 
it's the actual statute itself that----
    Admiral Rogers. Correct, right.
    Senator Lankford [continuing]. That we protect U.S. persons 
unless this is foreign directed.
    Admiral Rogers. Yes, sir.
    Senator Lankford. So what I'm hearing from you is the 
accountability system worked.
    Admiral Rogers. Yes, sir.
    Senator Lankford. That the issue rose up, we're collecting, 
we do have information on U.S. persons. We don't want to get 
that information. Immediately, the process started going 
through to be able to stop it. The court then put the final 
stop on it. It was corrected, and then that's now cleared.
    Admiral Rogers. Yes, sir. And, in fact, we're purging the 
data as well. Not only have we stopped doing it, but we're 
purging the data that we had collected under the previous 
    Senator Lankford. So the issue on 702--most Oklahomans that 
I interact with don't know the term ``702.'' But it--if I asked 
them, should we collect information on terrorist organizations 
and terrorists overseas who are planning to carry out attacks 
on us and our allies, they don't hesitate. They say absolutely 
we should do that.
    Now, they don't want collection on themselves and their 
mom, but they absolutely want us to be able to target 
terrorists. And so the issue that I think we talk about when we 
talk about 702 on this dais, is a normal conversation back home 
that if we miss something internationally, everyone says: I 
thought we were doing this. Why aren't we?
    So I fully appreciate the civil liberties conversation, the 
privacy questions. Those are things I'm also passionate about, 
and it's very interesting for me to be able to hear from you 
that you're passionate about and the NSA is passionate about, 
to make sure that we're not collecting on Americans.
    So I appreciate that, and in this case when it comes out in 
the public media that this has occurred, it actually shows the 
system itself worked. When there was a query going on that was 
collecting on Americans, it was stopped immediately, data's 
purged. But we're still continuing to be able to target on 
threats internationally, and I do appreciate that.
    Thank you. I appreciate and yield back the time.
    Chairman Burr. Senator Manchin.
    Senator Manchin. Thank you, Mr. Chairman.
    I want to thank all four of you for your service, and you 
all are held at the highest--I think, the highest regards by 
your colleagues and your peers, and I think that speaks volumes 
of the character of all four of you, and I appreciate that very 
    We have a committee here, which I'm so proud to be serving 
on. I'm brand new on the committee. This is my first time at 
this, and I don't think there's a person up here that doesn't 
want to find out the facts and the truth and be able to go back 
home and explain to the Democrat and Republican colleagues and 
no matter what political persuasion that we have gotten the 
facts, we got it from our intel, which we truly appreciate and 
respect the quality of the job and the work that you do, and 
this is our findings.
    We're having a hard time getting there, as you can tell, 
and I respect where you all are coming from. And I hope you 
could understand that, sooner or later, we're going to have 
to--there has to be one element of this government that the 
public can look at and say: this is not politically motivated. 
This is not a witch hunt.
    No one's trying to harm anybody. We just want to do the 
business of our government and our country and do the best that 
we can for that and make sure that they have the confidence in 
the people that they've put at the head and have elected. 
That's what we're trying to get to.
    Today's been very difficult, me sitting here listening to 
some of the answers and an inability to answer some of the 
questions. If the Intelligence Committee in the Senate cannot 
get answers we know in an open setting like this, are these 
answers that we're asking, the questions that were simply asked 
today, would they be given into a classified intel setting that 
we would have? Could you answer differently than what you're 
giving us in open session? I think, Director Coats, you said 
that you would be able to answer differently.
    Director Coats. I think I've made that very clear.
    Senator Manchin. Yes.
    Director Coats. I've tried to----
    Senator Manchin. Admiral Rogers, would you be----
    Admiral Rogers. And likewise, I certainly hope so.
    Senator Manchin. Mr. Rosenstein, would you?
    Mr. Rosenstein. Senator, speaking for Mr. McCabe and 
myself, you know, we have been involved in managing the 
criminal investigation. And so I would ask that, as Chairman 
Burr suggested, it's really appropriate for Director Mueller, 
since we've turned over control of that investigation to him, 
to make the determination in the first instance about what we 
can and can't speak about. So I would encourage you to use Mr. 
Mueller as your point person as to whether or not it's 
appropriate to reveal that information.
    Senator Manchin. Well, let's just say that the questions 
that were asked to Mr. McCabe, I think they weren't anything on 
the investigation side. It was asked pretty personal and 
directly. Could you answer differently in a classified setting, 
    Director McCabe. I would reiterate the DAG's comments that 
at this point, with the special counsel involved, it would be 
appropriate for the committee to have an understanding with the 
special counsel's office as to where those questions would go.
    But I would also point out that, as we have historically 
when we are investigating sensitive matters in which 
operational security is of utmost importance, members of the 
intelligence community typically come and brief the leadership, 
Congressional leadership, on sensitive investigative matters.
    We have done so. I have done so. Director Comey has done so 
prior to the appointment of the special counsel. And some of 
the questions that you have asked this morning were addressed 
in those closed, very restricted, very small settings.
    Senator Manchin. Well, let me say this--that, if it would 
be the desire of the Chairman and Vice Chairman, if we could, 
since we have a classified hearing scheduled for 2:00 this 
afternoon, would you all make yourselves available, since it 
doesn't linger on? There's been a lot of questions, a lot of 
anticipation and a lot of built-up anxiety, if you will. I 
think you could really help an awful lot of us clear the day 
up, if you will.
    Chairman Burr. If I could address the Senator's question, 
this afternoon is set with technical people to walk us through 
702. Rest assured that we will take the first available 
opportunity to have people back in closed session to address 
those questions that they can address.
    And, hopefully prior to that, the Vice Chair and I would 
have an opportunity to meet with Director Mueller to determine 
whether that fits within the scope of his current 
investigation, and we will do that.
    Senator Manchin. Well, Mr. Chairman, the only thing I'm 
saying is that I know that you can tell by the intensity of the 
questions here that there's a lot of concerns right now. And we 
have both Director Coats and Admiral Rogers who are willing to 
say in a classified hearing that they would be able to answer 
differently. That's the only reason I was bringing that up. And 
we have it this afternoon. I would hope that would maybe be 
    Let me ask a question. Does the President support Section 
702, reauthorization of the FISA and expanded authority?
    Director Coats. Absolutely.
    Senator Manchin. Everyone?
    Director Coats. Full support.
    Senator Manchin. Full support there.
    Did the President ask or was he given any specific 
intelligence or info concerning the Russian active measures in 
the 2016 presidential election? Was he briefed on that? Did he 
ask for that briefing, or did--is it an automatic briefing that 
you give?
    Admiral Rogers.
    Director Coats. Well all that took place before I was 
    Admiral Rogers. I will say yes, he was briefed on the 
results of the intelligence community assessment. I was part of 
that in January, prior to his assuming his duties. He and I 
have discussed as well the specifics of that assessment 
subsequent, after he had become the president and assumed the 
    Senator Manchin. Let me just say, just in finishing up, I 
just would hope that you all, with your expertise and all of 
your knowledge, would help us put closure to this sooner or 
later. I mean, we need your help. We need your assistance, we 
really do.
    And this is a committee that I think will take the facts as 
you give them to us and decipher that, and come up with some 
appropriate action and a final report, which is I think what 
the public is looking for. We can't do that without your 
assistance. Thank you.
    Director Coats. And, Senator, I fully understand that 
statement. And, as the Chairman mentioned, the procedures he's 
going to put in place relative to when we hold that hearing and 
the relationship it is to the official investigation that's 
going on by Director Mueller will dictate when and how we do 
    Senator Manchin. I think we need you in the SCIF sooner 
than later.
    Thank you.
    Chairman Burr. Senator Cotton.
    Senator Cotton. Thank you, gentlemen. I want to talk about 
the import of Section 702 to our national security. Admiral 
Rogers, I'll direct most of these questions to you as the 
subject matter expert on the panel on signals intelligence from 
foreign threats, though I might turn to some of our lawyers for 
legal questions.
    Does Section 702, Admiral Rogers, allow you to collect 
information on U.S. citizens?
    Admiral Rogers. As intentionally targeted individuals? No.
    Senator Cotton. Yes. Intentionally target them.
    Admiral Rogers. No.
    Senator Cotton. Does it allow you to target foreigners to 
do what's called reverse targeting of U.S. citizens, knowing 
those U.S. citizens are in communications?
    Admiral Rogers. No, it does not.
    Senator Cotton. Does it allow you to collect information on 
foreigners who are on U.S. soil?
    Admiral Rogers. No, 702----
    Senator Cotton. It doesn't?
    Admiral Rogers [continuing]. Is outside the United States.
    Senator Cotton. So you can collect information on an ISIS 
terrorist in Syria; and he comes to the United States and you 
can no longer collect information on his cell phone or his e-
mail address?
    Admiral Rogers. We're a foreign intelligence organization. 
We coordinate with the FBI. But, yes, sir, we don't do 
internal, domestic collection, broadly.
    Senator Cotton. Mr. Rosenstein, do foreigners have 
constitutional rights?
    Mr. Rosenstein. When they're in the United States, Senator, 
different rules apply. And that's why I think it's important 
for people to understand that Section 702 applies only in 
circumstances where it's a foreign national outside the United 
States. If they're inside the United States, we would need to 
rely on other provisions of FISA to do that collection. So, 
yes, we can do it, but we need to apply different rules. And 
Mr. McCabe, as the Director indicated, is responsible for that.
    Senator Cotton. Mr. McCabe, what happens when an ISIS 
terrorist comes from Syria to the United States and Director 
Rogers, or Admiral Rogers, can no longer use Section 702 to 
monitor his electronic communications?
    Director McCabe. Admiral Rogers' folks notify mine and then 
we work together to pursue coverage under different elements of 
the FISA statute.
    Senator Cotton. I'm sure you work as hard as you can to 
make sure that is absolutely seamless, but it does seem to me 
that Section 702, because it's limited to foreigners on foreign 
soil without targeting any U.S. persons anywhere, goes the 
extra mile to protect the constitutional rights of American 
citizens and even the supposed constitutional rights of 
foreigners when they come on U.S. soil.
    That's one reason why I support the permanent extension of 
Section 702, and I introduced legislation to that effect 
yesterday with the support of all seven Republicans on this 
    Tom Bossert, the Counterterrorism and Homeland Security 
Adviser to the President, writes in today's New York Times 
about our legislation: ``The Trump Administration supports this 
bill without condition.'' Admiral Rogers, is that your 
    Admiral Rogers. Could you repeat that again? I apologize, 
    Senator Cotton. ``The Trump Administration supports this 
bill without condition.''
    Admiral Rogers. Yes.
    Senator Cotton. On a scale of 1 to 10, how enthusiastic 
would you be if this bill passed? You can go over 10, and be 
excessively enthusiastic.
    Admiral Rogers. I would be ecstatic that we would be in a 
position to continue to generate significant insights for this 
Nation's security.
    Senator Cotton. So you'd dial it straight up to 11?
    Admiral Rogers. Yes, sir.
    Senator Cotton. Okay.
    Director Coats.
    Director Coats. My level's about 100.
    Senator Cotton. Mr. Rosenstein.
    Mr. Rosenstein. Senator, I'm not familiar with the rating 
system. I do think it's very important.
    Senator Cotton. Director McCabe.
    Director McCabe. I'm at 11.
    Senator Cotton. Director Coats, you had an exchange earlier 
with Senator Wyden about the efforts to estimate and declassify 
the number of persons who might be subject to incidental 
collection under Section 702. This is when you have a lawful 
702 order, but someone does in fact communicate with an 
American citizen.
    It's my understanding that it would be virtually impossible 
to do so in a way that wouldn't further infringe on the rights 
of American citizens. Is that correct?
    Director Coats. Well that's--yes, and that's one of the 
central reasons why I came to the conclusion. But the main 
reason I came to the conclusion is that it just is not 
conceivably possible. We could go through the procedures, we 
could shift hundreds of people to go over and breach the rights 
of hundreds if not thousands of American citizens to 
determine--of individuals, to determine whether or not they are 
American citizens or not. But we still, having done that, could 
not get to an accurate number, the number that Senator Wyden 
was trying to get us to.
    My pledge to him was I would go out there, try to fully 
understand why it was we couldn't get that. There will be 
detailed discussions on that on the closed session with the 
staff and the technicians from both NSA and from Senate staff, 
here and others, relative to all of the efforts that have been 
made to try to answer the question.
    And as I said in my statement, even if we were to take 
people off their regular jobs and say, get on this issue, even 
if we could put other measures in place, we still would not be 
able to come up. It's hard to explain how difficult this is or 
why this is the case, but that is what is going to be discussed 
in the closed session, because all this is classified 
information, this afternoon. I assume the staff of members, all 
the members here, will be there.
    But my pledge was to do the best I could to try to get to 
some answer. And the result was we couldn't get to an answer, 
number one; and number two, trying to get to an answer would 
totally disrupt the efforts of the agency.
    Now, you know, you might be able to make the case, let's 
hire a thousand more people and get to the answer, if you knew 
that you would get to the answer. Admiral Rogers has told me--I 
hope he doesn't mind me saying this--that if someone out there 
knows how to get to it, he's welcome to have them come out and 
tell NSA how to do it.
    But everybody says, you can get to the number, it's easy, 
there's all kinds of agencies out there that can do it. I think 
you might welcome the advice if they wanted to do that. It 
really raises the question of why there has to be an exact 
    Senator Cotton. Well, if we're going to hire a thousand new 
people, I'd sooner them focus on terrorists and foreign 
intelligence services than violating the privacy rights of 
American citizens.
    My time is expired.
    Chairman Burr. Senator Harris.
    Senator Harris. Thank you.
    Admiral Rogers, in response to the question from Senator 
Manchin, you it appears felt free to discuss the conversations 
you've had with the President in January about Russian active 
measures. Can you share with this committee how you're 
determining which conversations you can share and which you 
don't feel free to share?
    Admiral Rogers. Ma'am, the fact that we briefed the 
President previously, both went up to New York and previously, 
is a matter of public record.
    Senator Harris. So if it's a matter of public record, then 
you feel free to discuss those conversations?
    Admiral Rogers. If it's not classified. You can keep trying 
to trip me up----
    Senator Harris. Is the----
    Admiral Rogers. Senator, if you could, could I get to 
respond, please, ma'am?
    Senator Harris. No, sir. No, no.
    Admiral Rogers. Okay.
    Senator Harris. Are you saying that if it is classified you 
will not discuss it? And then my follow-up question obviously 
would be, do you believe that discussion of Russian active 
measures is not the subject of classified information?
    Admiral Rogers. I stand by my previous comments.
    Senator Harris. Thank you.
    Mr. Rosenstein, when you appointed a special counsel on May 
17th, you stated, quote: ``Based upon the unique circumstances, 
the public interest requires me to place this investigation 
under the authority of a person who exercises a degree of 
independence from the normal chain of command.''
    The order you issued along with that statement provides 
that 28 CFR 600.4 through 10 were applicable. Those are 
otherwise known as the special counsel regulations. Is that 
    Mr. Rosenstein. Yes, Senator.
    Senator Harris. And it states that the special counsel, 
quote, ``shall not be subject to the day-to-day supervision of 
any official of the Department.'' However, the regulations 
permit you, as Acting Attorney General for this matter, to 
override Director Mueller's investigative and prosecutorial 
decisions under specified circumstances. Is that correct?
    Mr. Rosenstein. Yes, Senator.
    Senator Harris. And it also provides that you may fire or 
remove Director Mueller under specified circumstances. Is that 
    Mr. Rosenstein. Yes.
    Senator Harris. And you indicated in your statement that 
you chose a person who exercises a degree of independence, not 
full independence, from the normal chain of command. So my 
question is this: In December of 2003, then-Attorney General 
John Ashcroft recused himself from the investigation into the 
leak that led to the disclosure of Valerie Plame's identity as 
a CIA officer. The Acting Attorney General at the time was Jim 
Comey. He appointed a special counsel, Patrick Fitzgerald, to 
take over the matter.
    In a letter dated December 30th of 2003, Mr. Comey wrote 
the following to Mr. Fitzgerald, quote: ``I direct you to 
exercise the authority as special counsel independent of the 
supervision or control of any officer of the Department.'' In a 
subsequent letter dated February 6, 2004, Mr. Comey wrote to 
clarify the earlier letter, stating that his delegation of 
authority to Mr. Fitzgerald was, quote, ``plenary.'' Moreover, 
it said that ``my,'' quote, ``conferral on you of the title of 
special counsel in this matter should not be misunderstood to 
suggest that your position and authorities are defined or 
limited by 28 CFR Part 600.'' Those are the special counsel 
regulations we discussed.
    So would you agree, Mr. Rosenstein, to provide a letter to 
Director Mueller similarly providing that Director Mueller has 
the authority as special counsel, quote, ``independent of the 
supervision or control of any officer of the Department,'' and 
ensure that Director Mueller has the authority that is plenary 
and not, quote, ``defined or limited by the special counsel 
    Mr. Rosenstein. Senator, I'm very sensitive about time and 
I'd like to have a very lengthy conversation and explain that 
all to you. I tried to do that----
    Senator Harris. Can you give me a yes or no answer, please?
    Mr. Rosenstein [continuing]. In the closed briefing.
    Well, it's not a short answer, Senator. The answer is----
    Senator Harris. It is. Either you are willing to do that or 
    Mr. Rosenstein. Well----
    Senator Harris [continuing]. As we have precedent in that 
    Mr. Rosenstein. But the----
    Senator McCain. Mr. Chairman, they should be allowed to 
answer the question.
    Mr. Rosenstein. It's a long question you pose, Senator, and 
I fully appreciate the import of your question, and I'll get to 
the answer.
    My quibble with you is, Pat Fitzgerald is a very 
principled, very independent person. I have a lot of respect 
for him. Pat Fitzgerald could have been fired by the President 
because he was a United States attorney. Robert Mueller cannot 
because he's protected by those special counsel regulations.
    So although it's theoretically true that there are 
circumstances where he could be removed by the Acting Attorney 
General, which for this case at this time is me, your assurance 
of his independence is Robert Mueller's integrity and Andy 
McCabe's integrity and my integrity, and those regulations----
    Senator Harris. Sir, if I may, the greater assurance is not 
that you and I believe in Director Mueller's integrity, which I 
have no question about Mr. Mueller's integrity. It is that you 
would put in writing an indication, based on your authority as 
the Acting Attorney General, that he has full independence in 
regards to the investigations that are before him. Are you 
willing or are you not willing to give him the authority to be 
fully independent of your ability statutorily and legally to 
fire him?
    Mr. Rosenstein. He is--he has the----
    Senator Harris. Yes or no, sir?
    Mr. Rosenstein. He has the full independence as authorized 
by those regulations and, Senator, as I said----
    Senator Harris. Are you willing to do as has been done 
    Chairman Burr. Would the Senator suspend? The Chair is 
going to exercise its right to allow the witnesses to answer 
the question, and the committee is on notice to provide the 
witnesses the courtesy, which has not been extended all the way 
across, extend the courtesy for questions to get answered.
    Senator Harris. Mr. Chairman, respectfully, I would----
    Chairman Burr. Mr. Rosenstein, will you----
    Senator Harris [continuing]. Point out that this witness 
has joked, as we all have, at his ability to filibuster.
    Chairman Burr. The Senator will suspend.
    Mr. Rosenstein, would you like to thoroughly answer the 
    Mr. Rosenstein. Thank you, Mr. Chairman.
    Senator, I am not joking. The truth is I have a lot of 
experience with these issues and I could give--I could speak to 
you for a very long time about it, and I'm sympathetic--I 
appreciate the five-minute limit. That's not my limit.
    But the answer is this originated, as you may know, with 
the independent counsel statute. And I worked for an 
independent counsel, and I worked in the Department during the 
independent counsel era, when independent counsels were 
appointed by authorization of the Senate, they were appointed 
by Federal judges, and they had essentially the authority 
equivalent to the Attorney General.
    That statute sunsetted and the majority of members of this 
body concluded that that was appropriate because they did not 
want special--independent counsels who were 100 percent 
independent of the Department of Justice. That was a 
determination made by the legislature.
    Now, I know the folks at the Department who drafted this 
regulation under Janet Reno and they drafted it to deal with 
this type of circumstance. And the idea was that there would be 
some circumstances where, because of unusual events, it was 
appropriate to appoint somebody from outside the Department, 
not somebody like Pat Fitzgerald, who was a U.S. Attorney who 
could be fired, but somebody from outside the Department, who 
could be trusted to conduct this investigation independently 
and could be given an appropriate degree of independence.
    Now, under the regulation he has, I believe, adequate 
authority to conduct this investigation. And your ultimate 
check, Senator, is, number one, the integrity of the people 
involved in the investigation, but, number two, the fact that 
if he were overruled or if he were fired we would be required 
under the regulation to report to the Congress.
    And so I believe that's an appropriate check. And so, while 
I realize that theoretically anybody could be fired and so 
there's a potential for undermining an investigation, I am 
confident, Senator, that Director Mueller, Mr. McCabe, and I 
and anybody else who may fill those positions in the future 
will protect the integrity of that investigation. That's my 
commitment to you, and that's the guarantee that you and the 
American people have.
    Chairman Burr. Senator Cornyn.
    Senator Harris. So is that a no?
    Chairman Burr. Senator Cornyn.
    Senator Cornyn. Well, there seems to be one thing we all 
agree on, at least so far, based on the questions and the 
comments, and that is that 702 is an important tool for the 
intelligence community and one that needs to be preserved. And 
I agree with Senator Cotton that it should be extended without 
a sunset provision, as currently written. So it's good to have 
one, one thing we agree on.
    But I want to ask Director Coats, and perhaps, Admiral 
Rogers, if you want to comment on this as well: as I understand 
the framework of 702, it is to intentionally not target 
American citizens. It is to intentionally target foreign 
persons and to not collect information from American citizens, 
except by way of incidental collection. And I think you've 
described, Admiral Rogers, the extensive procedures that the 
law requires and that NSA practices have in place to minimize 
the access of anybody in the intelligence community to that 
U.S. person. And indeed you've talked about purging incidental 
collection that was made in the course of the 702 
    So it strikes me, Director Coats--the question that Senator 
Wyden has asked you, and it's come up several times--to 
intentionally target American citizens in order to generate a 
number is just the opposite of what the structure of 702 
provides, because the whole idea is to not collect, not to be 
able to gather information about American citizens, except in 
the course, incidental course of collecting information against 
a foreign intelligence target. Is that a fair statement?
    Director Coats. That's fair in my mind. And it was an 
essential piece of the information, of fact, that caused me to 
come to the conclusion that this would do just exactly what you 
said. You're breaching someone's privacy to determine whether 
or not they are an American person.
    Senator Cornyn. To generate a list for Congress.
    Director Coats. It potentially could, yes, generate a list 
for Congress. That wasn't the only basis on which we made the 
decision, but that was an essential basis.
    Senator Cornyn. Thank you.
    I want to ask a little bit more about the minimization 
procedures and the importance of those and a little bit about 
unmasking of U.S. persons' names that Admiral Rogers and 
others, Director Coats, you've talked about. You've explained 
the process and the elaborate procedures that are in place to 
make sure that this is not done accidentally or casually. And I 
think that's very important to reassuring the American people 
that in the collection of foreign intelligence we are 
extraordinarily protective of the privacy of U.S. citizens who 
might be incidentally collected against. And so to me the 
minimization procedures are very important. The internal 
policies of the NSA, when it comes to collecting foreign 
intelligence that happens to incidentally impact American 
citizens is absolutely critical to this balance between 
security and individual privacy.
    Perhaps this is a question for Mr. Rosenstein, though, and 
maybe Director McCabe. If someone is to use the unmasking 
process for a political purpose, is that potentially a crime?
    Mr. Rosenstein. Yes, Senator.
    Senator Cornyn. And, Director McCabe perhaps or Deputy 
Attorney General Rosenstein, for somebody to leak the name of 
an American citizen that is unmasked in the course of 
incidental collection, to leak that classified information, is 
that also potentially a crime?
    Mr. Rosenstein. Yes, I think that's a most significant 
point, Senator. I think it's important for people to 
understand. Unmasking is done in the course of ordinary, 
legitimate intelligence gathering, when the identity of the 
person on the other end of the phone, the other end of the 
message, may be relevant to understand the intelligence 
significance of the communication.
    Leaking is a completely different matter. Leaking is a 
crime. Disclosing information to somebody without a legitimate 
purpose, need to know that information, that will be prosecuted 
in appropriate circumstances. And there have been cases where 
we've been able to determine there was a willful violation of 
Federal law, a disclosure that was not authorized, and 
prosecutions have been brought and will be brought.
    Senator Cornyn. And, Mr. Rosenstein, not to pick on you or 
Director McCabe, but I think there's some confusion when we 
talk about, generically about Russian investigations. We've 
described the role of the special counsel, which I think you've 
discussed in great detail. But that's primarily to investigate 
potential criminal acts and counterintelligence activities, is 
it not?
    Mr. Rosenstein. The answer to that is yes. The idea of the 
Russian investigation, that has much broader significance, I 
know, to many of you than the piece that Director McCabe and I 
are referring to and the piece that Director Mueller is 
    Senator Cornyn. Right. Well, that's enormously helpful, at 
least to me, because when people speak generically of the 
Russian investigation, I think they're also including things 
like our responsibility as the Intelligence Committee to do 
oversight of the intelligence and of the potential 
countermeasures we might undertake to deal with the active 
measures campaign of the Russian government, which were clearly 
documented in the intelligence community assessment.
    But by my count there are multiple committees of the United 
States Senate, including the Judiciary Committee on which I 
serve, which has different jurisdiction and oversight 
responsibilities. It's our job to do the investigation and 
write legislation. We're not the FBI, we're not the special 
counsel, we're not the Department of Justice.
    And I'm afraid in the conversation that we've been having 
here people have been conflating all of those and those are 
very distinct and importantly distinct functions.
    Thank you.
    Chairman Burr. Senator Reed.
    Senator Reed. Well, thank you very much, Mr. Chairman.
    Director McCabe, on May 11th you testified, quote, 
``Director Comey enjoyed broad support within the FBI, and 
still does to this day.'' And you added that you hold him in 
the absolute highest regard. Is still that the case?
    Director McCabe. It is, sir.
    Senator Reed. Thank you.
    Director McCabe, I'm trying to understand the rationale for 
your unwillingness to comment upon your conversations with 
Director Comey. First, you have had, I would presume--and 
correct me if I'm wrong--conversations with Mr. Mueller. You've 
had those conversations?
    Director McCabe. Yes, sir.
    Senator Reed. You're fully familiar with the scope of the 
investigation, since you've dealt with not only Mr. Mueller, 
but also with----
    Director McCabe. I am, sir, but I think it's important to 
note that Mr. Mueller and his team are currently in the process 
of determining what that scope is. And much in the way that 
Senator Cornyn just referred to, the FBI maintains a much 
broader responsibility to continue investigating issues 
relative to potential Russian counterintelligence activity and 
threats posed to us from our Russian adversaries.
    So determining exactly where those lanes in the road are, 
where does Director Mueller's scope overlap into our pre-
existing and long-running Russian responsibilities, is somewhat 
of a challenge at the moment. And that is why I am trying to be 
particularly respectful of his efforts and not to take any 
steps that might compromise his investigation.
    Senator Reed. But, getting back to your rationale for not 
commenting on the conversation between you and Mr. Comey, it 
seems to me that what you've said is that either that is part 
of a criminal investigation or likely to become part of a 
criminal investigation, the conversation between the President 
of the United States and Mr. Comey, and therefore you cannot 
properly comment on that. Is that accurate?
    Director McCabe. That's accurate, sir.
    Senator Reed. What about the conversations between Director 
Coats and Admiral Rogers with the President of the United 
States? Is that likely to become or is part of an ongoing 
criminal investigation?
    Director McCabe. I couldn't comment on that, sir. I'm not 
familiar with that, and it wouldn't be--for the same reasons 
it's not appropriate for me to comment on Director Comey's 
conversations, I certainly wouldn't comment on those that I'm 
further away from.
    Senator Reed. Mr. Rosenstein, are you aware of the 
possibility of an investigation of the conversations that 
Director Coats and Admiral Rogers have had with the President?
    Mr. Rosenstein. My familiarity with that, Senator, is 
limited to what I read in the newspaper this morning and what 
we heard here today.
    Senator Reed. Director Coats, have you had any contact with 
the special prosecutor or any----
    Director Coats. I have not.
    Senator Reed. Have you been advised by any of your 
counsels, private or public, that this conversation that you 
had with the President could be subject to a criminal 
    Director Coats. No, I have not.
    Senator Reed. Admiral Rogers, same question.
    Admiral Rogers. For the last question, no, I have not.
    Senator Reed. Let me just return again to the points that I 
think Senator King made very well, which is this unwillingness 
to comment on the conversation with the President, but to 
characterize it in a way that you didn't feel pressured, yet 
refusing to answer very specific and non-intelligence-related 
issues that I don't see how it would impact on the 
classification and our status whether or not you were 
specifically asked by the President to do anything. Do you 
still maintain that you can't comment on whether you were asked 
or not?
    Director Coats. Nothing has changed since my initial 
    Admiral Rogers. I stand by my previous answer.
    Senator Reed. I just must say, the impression that I have 
is that, if you could say that, you would say that.
    Thank you. I have no further questions.
    Chairman Burr. Senator McCain.
    Senator McCain. Well, gentlemen, you're here at an 
interesting time. It's funny how sometimes events run together. 
This morning's Washington Post, ``Top intelligence official 
told associates Trump asked him if he could intervene with 
Comey on FBI Russia probe.'' It goes into some detail. I'm sure 
you've read the article. And it's more than disturbing. 
Obviously, if it's true that the President of the United States 
was trying to get the Director of National Intelligence and 
others to abandon an investigation into Russian involvement, 
it's pretty serious.
    I also understand the position that you're in, because it 
is classified information and yet here it is on this morning's 
Washington Post in some detail. I'm sure you've read it.
    So I guess if I understand you right, Director Coats, it is 
that in a closed session you are more than ready to discuss 
this situation. Is that correct?
    Director Coats. I would hope we'd have the opportunity to 
do that.
    Senator McCain. Well, I hope we can provide you with that 
    You know, it just shows what kind of an Orwellian existence 
that we live in. I mean, it's detailed, as you know from 
reading the story, as to when you met, what you discussed, et 
cetera, et cetera. And yet, here in a public hearing before the 
American people we can't talk about what was described in 
detail in this morning's Washington Post. Do you want to 
comment on that, Dan?
    Director Coats. Are you asking me to comment on the 
integrity of the Washington Post reporting? I guess I've been 
around town long enough----
    Senator McCain. It's pretty detailed.
    Director Coats. I guess I've been around town long enough 
to say not take everything at face value that's printed in the 
Post. I served on the committee here and often saw that 
information that we had discussed had been reported, but that 
it wasn't always accurate.
    But I think this is--the response that I gave to the Post 
was that I did not want to publicly share what I thought were 
private conversations with the President of the United States, 
most of them, almost all of them, intelligence-related and 
classified. I didn't think it was appropriate to do so in an 
open--for the Post to report what it reported or to do that in 
an open session.
    Senator McCain. Well, it's an unfortunate situation that 
you're sitting there because it's classified information and 
this morning's Washington Post describes in some detail, not 
just outline but times and dates and subjects that are being 
discussed. And I'm certainly not blaming you, but it certainly 
is an interesting town in which we exist.
    Director Coats. Just because it's published in the 
Washington Post doesn't mean it's now unclassified.
    Senator McCain. But unfortunately, whether it's classified 
or not, it's now out to the world, which is obviously not your 
fault, but it describes dates and times and who met with whom.
    And so, well, do you want to tell us any more about the 
Russian involvement in our election that we don't already know 
from reading the Washington Post?
    Director Coats. I don't think that's a position that I'm 
in. I do know that there are ongoing investigations. And I do 
know that we continue to provide all the relevant intelligence 
we have to enable those investigations to be carried out with 
integrity and with knowledge.
    Senator McCain. Well, it must be a bit frustrating to you, 
in protecting what is clearly sensitive information, and then 
to read all about it in the Washington Post. You have my 
sympathy, and I expressed that at your confirmation hearing, 
doubting your sanity.
    So, Admiral, have you got anything to say about it?
    Admiral Rogers. No, sir, other than, boy, some days I sure 
wish I was an ensign on the bridge of that destroyer again.
    Senator McCain. I can understand that. I feel the same way.
    Mr. Rosenstein.
    Mr. Rosenstein. Senator, I can't speak for anybody else, 
but I'm proud to be here. I'm proud to be here with Director 
McCabe and I'm sure he feels the same way.
    Director McCabe. I do.
    Senator McCain. Whatever that might mean.
    Thank you, Mr. Chairman.
    Chairman Burr. Thank you, Senator McCain.
    The Chair is going to recognize Senator Wyden for one 
question on 702.
    Senator Wyden. Thank you very much, Mr. Chairman. I 
appreciate the courtesy.
    This one, Director Coats, I'd like a yes or no answer on. 
Can the government use FISA Act Section 702 to collect 
communications it knows are entirely domestic?
    Director Coats. Not to my knowledge. It would be against 
the law.
    Senator Wyden. Thank you, Mr. Chairman.
    Chairman Burr. Senator Warner.
    Vice Chairman Warner. Again, I want to thank all the 
witnesses. But I come out of this hearing with more questions 
than when I went in.
    Gentlemen, you were both willing to somehow characterize 
your conversations with the President that you didn't feel 
pressure, but you wouldn't share the content. In the case of 
Admiral Rogers, we will have an independent third party that 
will at least provide some level of contemporaneous description 
of that conversation and obviously why there was concern enough 
to commit that to writing.
    I'm pretty frustrated that there is this deference to the 
special prosecutor, even though the special prosecutor has not 
talked to you. I'm concerned that the Deputy Attorney General, 
also deference to the special prosecutor. But there doesn't 
seem to be--in this committee, and the Chairman I have 
committed to making sure that we appropriately de-conflict.
    What we don't seem to have is the same commitment to find 
out whether the President of the United States tried to 
intervene directly with leaders of our intelligence community 
and ask them to back off or downplay. You've testified to your 
feelings response. Candidly, your feelings response is 
important, but the content of his communication with you is 
absolutely critical.
    And I guess I would just say the President is not above the 
law. If the President intervenes in a conversation and 
intervenes in an investigation like that, would that not be 
subject of some concern, Mr. Rosenstein?
    Mr. Rosenstein. Senator, if anybody obstructs a Federal 
investigation, it would be a subject of concern. I don't care 
who they are. And I could commit to you, if you're looking for 
commitment from Mr. McCabe and from me, that if there is any 
credible allegation that anybody seeks to obstruct a Federal 
investigation, it will be investigated appropriately, whether 
it's by Mr. McCabe, by me, by the special counsel. That's our 
responsibility and we'll see to it.
    Vice Chairman Warner. Well, I thank the Chairman for the 
fact that we've been working on this in a bipartisan way. We 
will ultimately have to get to the content of those 
    Thank you.
    Chairman Burr. Director Coats, I know you've got to go. 
Give me 90 more seconds, if you could.
    And this question probably to you, Admiral Rogers. Have our 
partners globally used 702 intelligence to stop a terrorist 
    Admiral Rogers. Yes, sir, and if we were to lose the 702 
authority I would fully expect leaders from some of our closest 
allies to put out one loud scream.
    Chairman Burr. And in most cases didn't they take credit 
for our intelligence?
    Admiral Rogers. They don't publicly talk about where it 
comes from, but we acknowledge NSA is a primary provider of 
    Chairman Burr. I just wanted to get it on the record 
    Admiral Rogers. Yes, sir. A host of nations rely on it.
    Chairman Burr [continuing]. That this is a global asset----
    Admiral Rogers. Yes.
    Chairman Burr [continuing]. That the war on terror has in 
    Admiral Rogers. Yes, sir.
    Chairman Burr. Now----
    Director Coats. Mr. Chairman, if I could just take----
    Chairman Burr. Yes, sir?
    Director Coats [continuing]. The time you were trying to 
protect for me for my next appointment to just say, following--
and I just want to repeat--following my interaction with my 
contemporaries in a number of European countries, they are 
deeply, deeply grateful to us, for the information derived from 
702 has saved, what they said, literally hundreds of lives.
    Chairman Burr. Well, certainly the committee is privy to 
those instances in a lot of cases and we're grateful for that.
    Gentlemen, I want to thank you for your testimony. But 
before we adjourn, I would ask each of you to take a message 
back to the Administration. You're in positions whereby you're 
required to keep this committee fully and currently informed of 
intelligence activities. In cases where the sensitivity of 
those activities would not be appropriate for the full 
committee or open session, there's a mechanism that you may use 
to brief the appropriate parties. It's sometimes, often, 
referred to as the ``Gang of Eight notification briefing.'' And 
I think without exception everybody at the table has utilized 
that tool before.
    Congressional oversight of the intelligence activities of 
our government is necessary and it must be robust. Thus the 
provisions of this unique briefing mechanism. Given the 
availability of that sensitive briefing avenue, at no time 
should you be in a position where you come to Congress without 
an answer. It may be in a different format, but the 
requirements of our oversight duties and your agencies demand 
    With that, again I thank you for being here.
    This hearing's adjourned.
    [Whereupon, at 12:38 p.m., the hearing was adjourned.]