Senate Hearing Transcript on National Intelligence Nominations July 22

Marco Rubio: (00:00)
… College, and he’s also a graduate of the Naval College of Command and Staff and the Army War College. Began his military career as an enlisted infantry men in the army reserve in 1983, and also served in the District of Columbia National Guard. In 1993, Christopher transferred to special forces and served with the 5th Special Forces Group. He participated in combat operations in Afghanistan and Iraq. Upon retiring from the army in 2014, he worked as a defense contractor before serving as the Special Assistant to the President and Senior Director of Counterterrorism and Transnational Threats at the National Security Council. He currently serves as the Deputy Assistant Secretary of Defense for Special Operations and for Combating Terrorism.

Mr. Hovakimian graduated from Occidental College and received his law degree from Stanford University in 2010. He then served as a law clerk on the United States Court of Appeals for the 11th circuit. Thereafter, he entered private practice for several years before joining the US Department of Justice as an Assistant US Attorney for the Southern District of California. During this time, Patrick served multiple roles here in Washington to include… During this time with DOJ, he served in multiple roles here in Washington to include as the department’s Director of Counter Transnational Organized Crime. Mr. Hovakimian currently serves as the Associate Deputy Attorney General and Chief of Staff to Deputy Attorney General Jeffrey Rosen.

Gentlemen, you’ve been asked to lead NCTC and the ODNI’s office of General Counsel respectively at a time when we are engaged in a debate and a robust debate about the Intelligence Community and our collection tools and authorities. At the same time, however, the nation continues to confront a growing array of threats from state and non-state actors. Navigating this tension will require judgment, wisdom, integrity, and I expect that you will both provide sound counsel and advice to the Director of National Intelligence, Ratcliffe, as he takes on these complex and at times divisive challenges.

The satisfaction of this committee’s oversight mandate will at times require transparency and responsiveness from your respective offices should you be confirmed. You can expect us to ask difficult and probing questions of you and of your staff. And in turn, we will expect honest, complete and timely answers. That said, we also want you to feel free to come to the committee with situations that necessitate our working in partnership with you. I look forward to supporting your nominations and ensuring their consideration without delay. I thank you both for being here for your years of service to our country and for your willingness to continue in that service, and I look forward to your testimony. I recognize the Vice Chairman.

Mark Warner: (02:40)
Well, thank you Mr. Chairman, and I want to also join in welcoming Mr. Miller and Mr. Hovakimian. I had the opportunity to talk with both of them prior to this hearing. Congratulations on your respective nominations to serve as Director of the National Counterterrorism Center and General Counsel for the Office of the DNI. Both of these positions are important positions in the Intelligence Community during a time of unprecedented national challenge and peril. The National Counterterrorism Center… Was that Huawei coming in already?

His Huawei phone was going off. I apologize.

The National Counterterrorism Center was created to prevent these kinds of efforts of the bad guys listening into our meetings, was created in the wake of 9/11 to connect the dots and ensure a terrorist attack never again occurs on our soil. The ODNI’s General Counsel is critical to ensuring that the Intelligence Community abide by the laws of this country, including protecting American civil liberties and privacy interests. The job of America’s Intelligence Community is to uncover and anticipate threats and to provide warning to the nation. The Intelligence Community is, first and foremost, America’s eyes and ears against scoring threats.

And you, just as all of the professional men and women of the IC, are mandated to be nonpolitical and to speak truth to power, making those difficult calls based not on what those in power wish to hear, but on the facts. Unfortunately, under this president, the men and women of the Intelligence Community have increasingly come under attack, not only from abroad, but without justification from within the leadership of our very own government. Those who’ve had the temerity to do what all Americans expected of them, simply to tell the truth, have found themselves similarly dismissed, disparaged on Twitter and retaliated against.

Because this president so often finds the truth unwelcome, he has fired DNI Coats, Acting DNI Admiral Maguire, his acting deputy DNI, Mr. Hallman, Deputy DNI Sue Gordon, and I see Inspector General Michael Atkinson. Acting NCTC Director Russ Travers, a 40 year intelligence veteran was dismissed by Mr. Trump’s Acting DNI. Intelligence professionals who volunteer to do difficult, dangerous jobs, including those who risk their lives every day around the world must know that our country’s leaders have their backs. Instead, they’ve been subject to disrespect. For a significant period of this year, there was not a single Senate-confirmed senior official at the Office of the DNI. This alarms me, and it should alarm the American public. The leadership roles you have agreed to undertake are challenging under the best of circumstances.

Mr. Miller, our terrorist adversaries have not simply disappeared. Those of us on this committee know that plots continue every day. American men and women deployed in harm’s way in Syria, Iraq, Afghanistan, and elsewhere are terrorist targets, and some never made it back to their families. I look forward to hearing from you today about how your thoughts as to how to confront the evolving, increasingly sophisticated threat from ISIS and other rogue organizations you’ll take on in this role and how you will define success, should you be concerned. In particular, I’d like to hear what you think about the role of the NCTC in confronting these threats and how you plan to make sure the center is sufficiently resourced to carry out its job.

Mr. Hovakimian, the General Counsel advises the DNI on the letter and spirit of the law, including the legal mandate to keep the intelligence committees fully and currently informed, and to ensure American civil liberties are protected. But as we saw with the Ukraine whistleblower, those who complied with their obligations to inform Congress have faced consequences. I expect to engage with you today on your perspective of what whistleblowers, and in particular your perspective on the involvement of the Office of Legal Counsel at the Department of Justice. Unfortunately, because of how this administration has approached the IC, your already difficult responsibilities will be even more challenging.

In addition to asking how you will undertake these responsibilities today, I will also wish to hear how you will stand up to political pressure, how you will ensure that analysis is apolitical and performed without fear or favor, how you will reassure your workforce that you will not face consequences for simply doing their jobs and how you’ll make sure that this committee is fully and currently informed. Former DNI, Dan Coats, a former member of this committee, set a high bar for telling truth to power, even in public when necessary, for which he was eventually fired. I will want to understand how you plan to live up to his example. Thank you again both for agreeing to take up these challenging positions during a difficult time. I look forward to today’s hearing. Thank you Mr. Chairman.

I understand the President pro tempore of the Senate, Senator Grassley, is here to introduce and speak on behalf of Mr. Miller. Senator Grassley, please proceed.

Chuck Grassley: (08:28)
Thank you very much Mr. Chairman and Mr. Vice Chairman for the opportunity to introduce to the committee a native of my home state of Iowa, Mr. Christopher Miller. I congratulate both of the nominees for their appointment. It is not every day that an Iowan with such a distinguished service record comes before the Senate for consideration. So it’s a special privilege for me to give this introduction. Chris’s parents and much of his family still live in Iowa City and/or Eastern Iowa. I’m sure his family is very proud that he will be testifying before this committee today and be recognized for his accomplishments and service to our country.

Chris was raised in Iowa City. After graduating from City High School, he attended George Washington University where he majored in history and enrolled in the ROTC program. He graduated from George Washington in 1987, and then he immediately accepted a commission in the US army as an infantry officer. In the army, Chris had an impressive and distinguished career. He served in Afghanistan in 2001 and in Iraq in 2003, and in the following years, like a lot of other military people, he served on numerous additional deployments to both of those countries. On behalf of the people of Iowa, we thank you, and other people for your service to the country, particularly in those difficult times.

Following his time in the army, Chris went on to become a Deputy Assistant Secretary of Defense for Special Operations and Combating Terrorism, where he is currently performing the duties of the Assistant Secretary of Defense for Special Operations. Whether as a member of the armed forces or in public service, Chris has given the best of himself for the American people on the defense of our country. Of course that should be no surprise. After all, he’s got Iowa roots. I’m certain that this committee will give him a proper review of his record and his service and how that fits into his new position. I believe he is fully qualified, being nominated now to be Director of National Counterterrorism Center Office of the Director of National Intelligence. So now, it is again my pleasure to introduce to this committee Mr. Christopher Miller. Congratulations. Thank you Mr. Chairman.

Thank you Senator Grassley. Before we begin, Mr. Miller and Mr. Hovakimian, would you please each stand and raise your right hand? Do you solemnly swear to give this committee the truth, the full truth and nothing but the truth, so help you God.

Christopher Miller: (11:41)
I do.

Patrick Hovakimian: (11:42)
I do.

Thank you. Please be seated. Gentlemen, before we move to your statements, I want to ask you to answer the five standard questions that we ask of every nominee who appears before us. They generally require a simple yes or no answer. The only reason why we need to hear it is so it can be transcribed. So from each of you, make sure your microphones are on. The first question is, do you agree to appear before the committee here or in any other venues when invited.

I do.

Yes.

Yes.

If confirmed, do you agree to send officials from your office to appear before the committee and designated staff when invited?

Yes.

Yes.

Do you agree to provide documents or any other materials requested by the committee in order for it to carry out its oversight and legislative responsibilities?

Yes.

Yes.

Will you ensure that your office and your staff provides such material to the committee when requested?

Yes.

Yes.

And finally, do you agree to inform and fully brief to the fullest extent possible all members of this committee of intelligence activities and covert actions rather than only the chairman and the vice chairman?

Yes.

Yes.

Thank you very much. We will now proceed to your opening statements after which I’ll recognize members. I believe we’ll go by order of seniority today. Christopher, I understand you’re going to go first, so the floor is yours.

Yes. Thank you Senator.

Your microphone there, yeah.

I think I have it on. Thank you Senator. I want to highlight what a thrill it was for Senator Grassley to make those opening comments. My folks are in Iowa City watching. I hope they got C-SPAN too up. I was a little bit worried, but I’m sure my sister helped them out. My uncle Floyd Booth and aunt Arlene of Alburnett, Iowa, I know are smiling down, who were huge supporters of Senator Grassley. When I was 14 years old, I went to an event at their farm in Alburnett. I will admit that I did not hear his remarks. I was out along the fence line plinking with my BB gun, but it was awfully special. Senator Warner, with highest regards, I am now a citizen of the Commonwealth, but when people ask me where I’m from, I proudly say that I’m from Iowa. And I really, words can’t describe how honored I am in all the work that Senator Grassley has done for the state of Iowa and his leadership. Acting Chairman Rubio, Vice Chairman Warner, and distinguished members of the Committee, thank you for taking the time today to consider my nomination to be the Director of the National Counterterrorism Center. I appreciate the opportunity to appear before you. It is both humbling and surreal to sit before you today as the President’s nominee for this position. I am grateful to have the support and confidence of President Trump and Director of National Intelligence, Ratcliffe. Along with the overwhelming privilege to lead and command America’s sons and daughters in combat as an Army Special Forces officer, being considered for this position is the distinct honor of my professional life.

When Al Qaeda declared war on the United States in 1997 and attacked us in force on September 11th, 2001, I, like many of my generation, answered the call to fight and defeat them. It was not a war we sought, but in the defense of this nation, we selflessly sacrificed our youth and our innocence. Many dear friends and comrades also sacrificed their health, their marriages, and in some cases their lives. We have no regrets. The war has been long, but our efforts have been remarkably successful. The commitment of tens of thousands of professionals has taken the fight to the enemy, protected the United States and developed a global network of partnerships that have prevented another cataclysmic attack.

When we set out on this journey as a country, we envisioned our campaign against violent extremist organizations as a generational war, not a multigenerational war. It would be, in my view, the height of irresponsibility to lead this conflict for our children to fight. It’s my life’s goal, whether confirmed for this position or in another capacity, to defeat Al Qaeda and its affiliates, transition this war to a sustainable effort, laser focused on monitoring terrorist threats in the United States, attacking those that generate the will and capability to do us harm, developing and nurturing the next generation of counterterrorism professionals and technologies, and expanding relationships with like-minded partners around the world who are committed to the elimination of this scourge to peaceful coexistence. I still see myself as a kid from Iowa who wants nothing more than to serve his country and make his parents proud. My father believes strongly in the nobility of public service and I try every day to follow in his footsteps. In addition to my mother’s wisdom and example of citizenship, that’s what my sister and I aspire to emulate in all facets of our lives. Most importantly, I want to recognize my wife, Kate, and our three children that are here with me today.

Kate stood steadfastly with me through this 32 year odyssey and raised our three children into magnificent adulthood. Their character, optimism for the future, and goodness are my motivation. They give me hope for the continued greatness of this wonderful experiment that is the United States of America. If confirmed, I will lead the patriotic men and women of the National Counterterrorism Center with honor and integrity, advocate for the no-fail requirements of our counter-terrorism enterprise and provide my frank, honest and unvarnished opinions and advice to the president, the DNI, this committee, and other policy makers and leaders in order to guarantee that we never again experience the indescribable loss of September 11th, 2001.

Mr. Acting Chairman, Mr. Vice Chairman and members of this committee, thank you for your unparalleled leadership in protecting the United States. I look forward to responding to your questions.

Thank you. Mr. Hovakimian.

Acting chairman Rubio, Vice Chairman Warner, and distinguished members of the committee, thank you for taking the time this morning to consider my nomination to serve as General Counsel for the Office of the Director of National Intelligence. I am honored to appear before you today. I also extend my thanks to the president for the opportunity to serve, to Director Ratcliffe for his confidence in me, and to my current bosses, Attorney General-

Mr. Hovakimian, this room is not great. Could we turn your volume up a little bit? And if maybe you could bring your mic a little bit closer to you-

I’ll bring it closer.

… that’d be great. Thank you so much.

Sure.

We’re all kind of getting used to these new things.

And to my current bosses Attorney General Bill Barr and Deputy Attorney General Jeff Rosen for their support throughout this nomination process. Acting Chairman Rubio and Vice Chairman Warner, I am a first generation American and a proud civil servant. My background and my family experiences shaped who I am today and they compel me to put my hand up when called upon to serve. This great country of ours has given me everything.

My parents, Eric R.A. Hovakimian and Lita Hovakimian came to the San Francisco Bay Area. They built a life. They raised two boys and they instilled in me a deep appreciation of the freedom and rights our country provides, and an equally strong duty to serve. Without their love and support, I simply would not be here today. I thank my mom who is watching from home. My dad, who I know is watching from above, my entire extended family and the many close friends, both from back home in California and those from later in life who have supported me and lived life beside me through the years.

I’ve been fortunate in my career. After graduation from law school, I joined an international law firm where I worked alongside and learned from some of the finest lawyers anywhere in the world. After a few years at the firm and after clerking for Judge J.L. Edmondson on the 11th circuit, I accepted what I thought could well be the last job I ever had. As an AUSA in San Diego, I worked alongside talented federal agents and prosecutors building cases from the ground up. I handled matters in diverse contexts and across the federal criminal code.

For the last couple of years I served as a prosecutor, I worked primarily on a series of cases involving a former foreign defense contractor, his firm, and the US Navy. Investigating and litigating these multinational defense procurement fraud and bribery cases was rewarding work to say the least. It implicated our national security interest and those of our military. Working hand in hand with law enforcement agents and military personnel, it felt like we were standing up for the interests of the United States. It felt righteous because it was. I look back on those days fondly and I carry the experiences with me. They motivate me to continue to serve.

Just as I have great respect for the dedicated professionals who comprise our federal law enforcement agencies, I have tremendous respect for the members of our IC. They too do righteous work. They work every day on behalf of the United States, often in unheralded if not completely anonymous ways. I am here because I want to support them and their mission. I am here because I want to do what I can, particularly at this consequential time to ensure that the women and men of the IC get the support they need to help keep our country safe and secure. I’ve seen the IC’s work in action serving as DOJ’s Director of Counter Transnational Crime. I was an avid consumer of IC products. I participated in FBI and CIA briefings on counter-narcotics efforts, terrorism finance, country-specific and region-specific threats, and the various interconnections between nation states and organized crime around the globe.

As I worked to implement the substance of these briefings into action, I experienced firsthand the value the IC provides and the mission critical nature of the work that they do. I’ve also seen firsthand the way the law interacts with the activities of the IC. As an associate deputy attorney general, I regularly participate in counter-intelligence and counter-terror briefings, consult on operational matters and review investigation and litigation strategy in national security cases.

Senators, the General Counsel position that I’ve been nominated for is at its core, of course, a legal job. In addition to the everyday tasks that any CLO would perform, I regard the overarching duties of the ODNI GC to be in principle threefold. First, the GC must speak truth to decision makers. Everything else flows from that basic proposition. The only legal advice I will ever give is that which comports entirely with the constitution of the United States and the laws of the United States. Even when it results in outcomes or advice that others may not want to hear, I will only ever deliver what I consider to be lawful, objective, clear and complete advice and counsel. My oath to the constitution, if I’m confirmed, would require it, and my professional judgment and moral compass demand it.

Second, the General Counsel must promote transparency because the IC must keep Congress fully and currently informed of its intelligence activities. For me, cultivating a relationship with the Congressional Intelligence Committees is of paramount importance. Oversight provides the American people, through their elected representatives, a channel through which to review and evaluate. Specifically with regards to the intelligence activities of the IC, robust and thorough congressional oversight is vitally important. The IC engages in activity critical to the national security of the country…

The IC engages in activity critical to the national security of the country and with implications on many other important values that we rightly prize, like civil liberties and privacy. If confirmed I’ll work with the director and other senior leaders to facilitate and maintain a cooperative process with this committee.

Third, the General Council is uniquely situated to promote collaboration across the IC offices and should do so. The GC should take a leading role in promoting collaboration and ensure that the IC activities are conducted lawfully and that the full panoply of statutory rights are protected for IC employees.

I’ll close by saying public service is a high privilege. I remember standing in court and saying for the first time, “Good morning, Your Honor, Patrick Hovakimian on behalf of the United States.” That feeling never got old. If I’m confirmed, I’ll have a different, but similarly significant opportunity to serve. I look forward, if confirmed, to working with a talented professionals of the IC. So Acting Chairman Rubio, Vice Chairman Warner, and members of the committee, thank you for your consideration of my nomination. I look forward to your questions.

Thank you both. I’m going to defer my opening questions to the back end of the hearing, and I’ll recognize Senator Burr to begin.

Thank you, Mr Chairman, Mr Miller, Mr Hovakimian?

Hovakimian, sir.

Hovakimian. I’ve got a question for both of you, but I want to make a statement if I can at the beginning. Most on this committee were indirectly involved in creating, not just NCTC, but the DNI. So they have their own vision of what the responsibility and the mission of both were. I’ve had an opportunity to sit down with Mr Miller and I’ve looked at Patrick’s background in his resume. I’m not sure that we could have two more qualified people to fill the roles that they’ve been nominated for than these two individuals. And given that many on this committee crafted these agencies in legislation, it is absolutely crucial that we have people that can fulfill the mission that we thought NCTC was there to do. And that we can have somebody interpret the correct law in an agency that is still in its embryo stage.

So I encourage members that if there were ever a time where I would really like to see us expedite these nominees and hopefully get away from acting and have permanent, it would be before we leave for the next break. Mr Miller, as CT mission manager for the IC, how do you plan to ensure that the intelligence community’s counter-terrorism mission operated as efficiently as possible, given the limited resources and growing focus of hard target countries?

Thank you Senator, for that question. I hope everyone can hear me. It’s so important as rightfully we’ve had enormous success against countering violent extremist organizations. And I really see that we’re having this conversation about resourcing and prioritization for counter-terrorism at this time. It’s a real testament to the success that we’ve had. But the war’s not over yet. Al Qaeda and its affiliates still are committed to attacking us. First 30 days, get in there, look under the hood, see what’s going on, determine what our resourcing strategy is and how we are, Senator, and then take action after that. I feel right now, we’re in a pretty good place. I look at the macro perspective of the budget in my last job. However, it’s something we have to pay attention to and we can’t over-correct too soon, Senator.

Let me ask you a followup if I can. How do you plan to reduce any analytic duplication that’s going on currently?

Senator, as you know, 17 intelligence organizations within our federated enterprise always presents challenges. And I think I have some of the same concerns when I see products that are written that kind of contradicts another one. That’s kind of one of the challenges, but that’s the beauty of our federated enterprise. We have competitive analysis. The question is, how much? And I know we currently, within the counter-terrorism business, every day we have a meeting where we make sure we’re not doing that. I’m going to take that very seriously because duplication is all right to a point, but to use tax dollars correctly, we don’t need too much. That’s always the challenge and I’m going to take that one on loud and clear, sir.

Thank you. Patrick, the intelligence community’s often faced with the use of cutting edge technology in novel situations without a lot of precedent for us to draw on. What experience do you have in crafting legal solutions for cutting edge technology problems that have no legal precedent?

Senator, it’s a great question and one that, in many ways, as you’ve rightfully pointed out, will define the IC and the process of providing considered legal judgments to the IC in the near future. Working at DOJ, I’ve had the opportunity to consult and work with FBI and the National Security Division on matters relating to artificial intelligence and other cutting edge technologies like that. There are cross cutting legal issues that apply. Luckily, the IC is comprised of a number of talented GC offices. I would draw upon their experience and expertise. I would work with this committee and the professional staff. I would engage, as appropriate, industry and other stakeholders. And I would do my best to render complete, thorough and accurate legal advice, no matter how novel the context.

Thank you for that.

Mr Chairman, I yield.

Vice Chairman.

Thank you, Mr Chairman. And let me again say I really enjoyed my opportunity to meet with both of you gentlemen before this hearing. And I would echo what Senator Burr said, that you both bring, I think, very strong qualifications. But you’d be taking on these jobs in an extraordinarily difficult time, when I personally fear that the IC is under constant assault. I’ve got a couple of questions, not implying that you wouldn’t, but I want to get these for the record. Will you commit to report to Congress any evidence of political pressure on analysts or politization of the intelligence, and will you report to Congress any evidence of the use of so-called purge lists or loyalty tests within your respective areas?

Yes, I will.

Yes Senator. Politics has no place in the intelligence activities of the United States.

What will each of you do to reassure your workforce that you won’t allow the NCTC, or for that matter the ODNI writ large, not just within the general counsel’s office, that intelligence professionals will not face repercussions if they do their job and tell the truth?

Senator, I am a proud civil servant. I’ve worked alongside career public servants for the majority of my career now. I consider myself to be among them. If I’m confirmed for this job, I will engage with them daily. I will tell them that I’m the leader of the office, but that doesn’t mean that I’m not their peer. I am their peer. They can come to me and talk to me. And I expect and anticipate that, if confirmed, I’d have an open and collaborative relationship with the professionals in OGC and that we would work through the tough issues together and they would have my full support.

Mr Miller?

Vice Chairman Warner, really important question. The thing that I’m drawn to with the counter-terrorism enterprise is it is literally a apolitical nonpartisan. We used to have a statement, as many of us recall, that politics ended at the water’s edge. It’s the same way with counter-terrorism. Dedicated mission focused group of professionals. I will absolutely lead with integrity as I have throughout my career, and be very conscious of that and set the example in every way I can.

Thank you both. Mr Hovakimian, I’ve got a couple more questions for you. And again, we talked a little bit about this in our meeting. In your answers to the committee’s pre-hearing questions, you noted that you were not familiar with the specific intelligence underlying the January 2017 ICA assessment of the committee’s assessment that Russia interfered in the 2016 presidential election to then help candidate Trump. You’re chief of staff to the deputy attorney-general, which would seem to me that you would have had some access to that information, particularly since it appears that there are some within the attorney-general’s office that are trying to undermine the conclusions of this committee and of the ICA.

Do you have any doubts that Russia interfered in 2016 and continues to interfere or attempt to interfere in our 2020 elections?

Senator, I do not. As Director Ratcliffe said during his confirmation hearings, it’s clear that the Russians interfered in 2016. It’s clear they interfered in 2018. And it’s clear they are, or are attempting to, this year. Some of the things they did were extensive social media disinformation campaigns, some forms of hacking and other efforts aimed at sewing general discord and undermining our democracy. So I think it’s clear.

Do you have any questions about the assessment of the unanimous assessment of the intelligence community and of this committee’s report that, in 2016, they had a favorite candidate?

Senator, as I noted in the response to the pre-hearing questions, I haven’t had a chance to look at that intelligence. I don’t know what it says. I don’t know what’s there and what isn’t there. But what I can say is, sitting here today, I have no reason to doubt the ICA of January 2017, nor this committee’s confirmation of it.

I’ll take that is a careful answer. And I know you’re applying to be a lawyer, but I am concerned about … Let me get one last question, and I think my colleagues will or press you on that. One of the things that I’ve found maybe most outrageous was when the inspector general, Mr Atkinson’s, efforts were undermined by the OLC’s opinion that basically said that the ODNI has the ability to stop the ICIG from reporting a whistleblower matter of urgent concern to Congress, which I believe is clearly opposite to the plain letter intent of the law. Have you had a chance to review any of those activities and would you see, going forward, that if an inspector general was pursuing a matter in your role as GC for the ODNI, would you try to impede or stop any inspector general effort?

Senator, I have great respect for all acts of Congress, and among those, chiefly, is the enactment, government wide, of whistleblower protection act, and including the one that applies to the IC. If confirmed, Senator, I will ensure that whistleblowers receive all protections under the law to which they are entitled. I will work closely with the director and with other senior officials. I don’t know the new ICIG, Mr Monheim, but I know him by reputation. He’s a dedicated, decades long public servant. And if confirmed, I look forward to working with him, his office, and all lawyers at OGC to ensure that whistleblowers are afforded all the legal protections that they’re entitled to.

Thank you, Mr Chairman.

Senator Collins.

Susan Collins: (37:03)
Thank you, Mr Chairman. Mr Miller, as you know from our conversations on the phone, I have a very special interest in the NCTC because it was created by the Intelligence Reform and Terrorism Protection Act of 2004, which I drafted with Senator Lieberman. And we always considered NCTC as well as the creation of the DNI, as the chief components of that wide ranging bill. I am therefore concerned about Russ Travers’ recent comments in which he outlined his concerns that NCTC does not have the resources that are required to fulfill its mandate under IRTPA. He has communicated similar concerns to my staff and to this committee. I’ve also noted in recent years that it seems that agencies are no longer sending their very experienced analysts to the National Counter Terrorism Center. And so in some ways we’ve gone back to the pre NCTC days when President Bush first set up TTIC to try to do this kind of inter-agency analysis to ensure that we connect the dots. Do you believe that the NCTC has sufficient resources to fulfill its legal mandate?

Senator, first off thank you for your visionary leadership, with Senator Lieberman, in establishing the National Counterterrorism Center, which responded to the failures we had, of course, prior September 11, 2011.

Russ Travers is a dear friend and a mentor. And fundamentally, I actually very much agree with the broad outlines of Russ’s public statements. I have not, of course, seen anything. I understand he might have done a inspector general complaint, or however you term it that. We don’t want to return to pre 2001 stove pipes. We want to make sure we’re resource correctly. The other thing is the degree between centralization and decentralization. And that’s a really important question that we have to get right. And of course, Russ’s last thing is let’s have a public discussion about that, which we’re having here today.

I don’t want to speak for Russ Travers. I need to go in there and look. I know that the general budget lines and analytical capacity is something that is important. And I know that there is stress on pulling analysts out of counter-terrorism and moving them to other accounts that are of higher priority. I haven’t seen that at the macro level yet, ma’am. As I said, I kind of look at the gross numbers. It’s a huge concern. We can’t return back to the problems we had in the past. But I just don’t have a level of detail and look forward to talking to Russ Travers again, as soon as I can, to get more specificity of that. And of course, I’ll talk to a bunch of them, all the former directors to get their views too.

Thank you. I think that’s really important. We intended for the dots to be connected after reading the 9/11 Commission’s report, which suggested that the 20 some intelligence agencies each had some information that perhaps, had it been pooled, might have led us to be able to thwart the 9/11 attack. And as we shift towards a focus more on China and Russia, we cannot forget that the terrorist threat is still very real. So, I appreciate your commitment.

Mr Hovakimian. I didn’t do as well as the chairman on that.

That’s very close, Senator. Thank you.

Last year the DNI received a whistleblower complaint that the intelligence community inspector general decided was credible and of an urgent concern. Despite a legal requirement to transmit the complaint to this committee within seven days, the ODNI did not do so. Under what circumstances do you believe that it’s appropriate to not send a whistleblower complaint to Congress that the ICIG decides is credible and an urgent concern?

Senator, generally speaking, all whistleblower complaints should be forwarded to Congress. If confirmed, I’ve said it in other contexts and I’ll say it again, I will do everything I can to ensure that whistleblowers are afforded all the statutory rights to which they’re entitled. And I will do everything I can to work with the career professionals, both in the inspector general’s office and the general counsel’s office, to ensure that the Whistleblower Protection Act is applied fairly and consistently.

Thank you.

Thank you, Mr Chairman.

Thank you. Senator Feinstein. Senator Feinstein, you’re next.

Dianne Feinstein: (42:39)
Thanks very much, Mr Chairman. You’re very young, and back in 2014 this committee-

Which one?

Not you, sir. Sorry, I couldn’t resist that. Back in 2014, this committee put out a study, a report, on the CIA’s detention and interrogation program. That was very important to me. I was chairman of the committee at the time. Do you believe that any of the CIA’s former enhanced interrogation techniques are consistent with the Detainee Treatment Act?

Senator, I’ve reviewed the executive summary.

I can’t hear you.

I’ve reviewed the executive summary of the report that was released while you were chairman. It is a very detailed and thorough report. And really, from my perspective and where I sit, a model of congressional oversight. Senator, the law today is clear. The National Defense Authorization Act of 2016 says that only interrogation techniques that are authorized in the army field manual are legal. And only those techniques. I support that law fully. And, if confirmed, I will ensure that that law is complied with.

Good. You’ve done your homework. Let me ask you about the Detainee Treatment Act, which is the set of conditions and techniques that really can be used. Have you read that?

I’ve reviewed it Senator, yes.

Because that’s the standard that is used, is my understanding. And so as chief legal counsel for the most important intelligence office, I’m really very interested in what your position on torture would be. You’re very young.

Senator, torture is wrong. And, if confirmed, I will enforce the law, I will ensure that the law is complied with. I’ve read the executive summary of the report that your committee put together when you were chairman, I found it to be illuminating and terrifying at the same time, Senator.

Thank you. Let me ask, if confirmed as general counsel in the ODNI, how would you approach questions about using Title 50 intelligence authorities domestically as part of law enforcement operations?

Senator, a bedrock principle of our country is that Americans who are engaging in activities that are entirely protected by the first amendment or other parts of the constitution ought not to be targeted or surveilled solely on the basis of that protected activity. So although in Executive Order 12333, there’s a section that allows for certain coordination, technical assistance, things like that, between IC elements and domestic law enforcement. In a word, that kind of stuff happening here, not to be too colloquial about it, is very serious. And to answer your question directly, I would review it soberly, I would look at activities like that with a skeptical eye. And I would work with the career professionals at OGC and across the intelligence community to ensure that the law, and of course, of paramount concern, the constitution is complied with in all contexts.

Are you aware of the president’s firings of recent inspector generals to include Inspector General Michael Atkinson?

I am aware of that Senator, yes.

Do you see any issues in that firing that would undermine the IC’s confidence in whistleblower protections?

Senator, I’m familiar with Mr Atkinson being fired. I don’t know all the facts there. What I do know is that there’s a dedicated and committed core of civil servants who work both in the IC and across the United States government. I’m proud and honored to be among them. And my experience has been nothing shakes these folks, they just do their job on behalf of the United States, day in and day out. And I anticipate that if confirmed, I will have their back and help them do just that.

I’m sorry. I missed that. You will have the back of whom?

I will have their back. I will support them in their mission on behalf of the United States.

Do you see any issues with the recent firing of ICIG Michael Atkinson that would undermine the IC’s confidence in whistleblower protections?

Senator, whistleblower protections are of paramount importance. It’s important that the rights of all whistleblowers are protected. I was a prosecutor. I worked with confidential informants. They are like whistleblowers in many ways. They put everything on the line. Sometimes they work at a company and they have a job and a career and a family and they put everything on the line to come forward and tell-

… career and a family and they put everything on the line to come forward and tell what they believe to be the truth and to disclose what they see as wrongdoing. It is important to protect whistleblower rights. And I know the dedicated servants of the IC and across the government work to do just that. And if confirmed, I look forward to helping them do that.

Ms. Feinstein: (48:23)
Thank you. Thank you, Mr. Chairman.

Thank you, Senator.

Senator Cornyn?

Mr. Hovakimian, I’m surprised nobody’s asked you about what I consider to be one of the greatest scandals that’s affected the intelligence community, including the FBI, in American history, where the resources of the FBI and the intelligence community were directed against a candidate for president of the United States and obviously produced a long and lengthy narrative about Russian collusion, ultimately resulted in the appointment of special counsel and a report from Mr. Mueller. And now we’re learning as results of declassification of lot of previously classified materials about the nature of the fraud being committed on the FISA Court in securing FISA warrants, abuse of the FBI’s authorities to conduct counter- intelligence investigations, which are very, very important, and frankly, reckless disregard at the highest levels of the FBI during the previous administration for the rules and procedures governing fair and impartial investigations of …

I wonder if you could characterize your reaction to the revelations that we’ve seen, recognizing of course there are some ongoing investigations by Mr. Durham and we’re anticipating his report. But it strikes me that this is one of the greatest scandals in American history.

Senator, all I can say is that I was shocked, as were many Americans, when I read Inspector General Horowitz’s report on the FISA situation. As a lawyer and as a public servant, the idea that, just for example, an office of general counsel lawyer would alter an email and then that altered email would serve as the basis, even partly, for an affiant in a FISA application. It’s deeply, deeply troubling. The Attorney General has called it an abuse. Senator, I will say over the course of my career as a prosecutor, and now as an employee at Main Justice, I’ve had the pleasure and honor of working with any number of FBI agents and law enforcement personnel. They too seek to do the right thing by and large on a daily basis. They help protect this country. I’m honored to work with them. I know Director Ray and FBI leadership are implementing reforms and changes to address the situation that Mr. Horowitz described in his report. It’s an ongoing and important conversation. And thank you for the question.

Senator Feinstein raised the issue of enhanced interrogation and the investigation that was made. Unfortunately, the report ended up being a minority report and a majority report on partisan lines. And indeed there was not a fulsome investigation in terms of talking, actually interviewing witnesses as opposed to reviewing paper and reports. But clearly, this was a novel legal challenge for the Department Of Defense and for the intelligence community. The CIA and other aspects of the intelligence community had to adapt to a novel situation and try to get actionable intelligence to save American lives and hopefully preempt future terrorist attacks.

Could you just describe for us how you, as the chief lawyer for the Director Of National Intelligence, would approach these sort of novel legal questions? Because we know exactly what happens once the officials responsible for protecting the American people act consistent with the legal advice provided at the time. There is invariably a second guessing and an attempt then to hang those very people out to dry when they have tried to do the very best they can in a novel circumstance to understand what the law is and follow the law. Can you address how you would approach those sort of novel legal questions?

Senator, as I said in my opening, I want to do this job because I believe in the mission of the IC. I believe in the mission of those who are deployed overseas, who are fighting on behalf of this country every day, some in unheralded if not completely anonymous ways. Senator, if confirmed, I would talk to, consult, and work with personnel and the intelligence community and people who’ve sort of been there, done that, and seen it because I believe that legal advice is informed and is delivered when it takes into account facts on the ground. In addition to principles of law that are inviolable and can’t be violated, there are facts that can help guide analysis in situations. So I try to be a lawyer at all turns who operates on a fully informed basis and talking to all those who have skin in the game, so to speak, and to those who have at times their back up against a wall. I do believe facts inform legal judgements. If confirmed, I will work every day to ensure that I give the best legal advice I can.

Senator Wyden.

Thank you, Mr. Chairman. Mr. Hovakimian, my hometown of Portland has been invaded by militarized federal law enforcement. These federal forces are beating, tear gassing, and detaining my neighbors. On Monday, Donald Trump promised to expand this invasion to other cities. If the line is not drawn in the sand right now, America may be staring down the barrel of martial law in the middle of a presidential election. Now, Mr. Hovakimian, you’re a senior justice department official. You’re in a position to know what’s going on. And as you know, I informed you in advance that I would be asking questions this morning about the legality of what is happening in my hometown. So my first question is, do you believe that federal forces can patrol American cities over the objections of state and local officials and away from federal buildings?

Senator, I understand Portland is your hometown and I understand there’s a lot going on there right now. So I do extend my best wishes to your friends and family and constituents there. Senator, I will stand firm on the idea that American’s right to free speech, to free assembly under the first amendment are absolutely sacrosanct. Neither law enforcement nor the intelligence community should target or surveil Americans who are engaged in activity that’s entirely protected by the first amendment. This is a bedrock principle of our democracy. It’s one that I stand by.

Senator, peaceful protest is one thing and violence is another. And from where I sit, law enforcement helping to quell violence-

My time is short.

Yes, Senator.

Nobody condones violence. And I have repeatedly said that. That’s not the issue. The issue is whether that’s a smoke screen for a federal takeover of local authority and local law enforcement. So what is your reaction to what is going on in my hometown? Because I believe it is unconstitutional and I believe the country needs government lawyers who aren’t going to use the law as a smokescreen to justify this unconstitutional invasion over the objections of local officials.

Senator, as I began my remarks, I noted that the situation in Portland is volatile and I do extend my best wishes to your constituents there. I have to say-

My constituents are interested in more than your best wishes. What they want to know is that these forces can’t go wherever they want over the objections of local authorities.

Senator-

That’s what they want.

Senator, the department is committed to enforcing the law while respecting and promoting the constitutional rights of all people. On this issue specifically-

I will tell you, the department is throwing the law in the trash can. This morning, a Republican, the first secretary of the department, said there is no way, no way he would have allowed as a governor the federal government to do what is going on in my city. And you seem to want to extend best wishes to us and the like and you’re for the first amendment, but I don’t see any evidence that you’re going to do anything different. And I’d like to hear that you’re going to. So let me ask you one other question. Do you believe that unidentified federal forces in unmarked cars can drive around seizing and detaining American citizens? That’s a yes or no question.

Senator, I believe in fully protecting the constitutional rights of American citizens. And I’ve done that as a prosecutor. I’ve done that as a DOJ official, and-

That’s not what I’m asking. What I’m asking is do you believe that unidentified federal forces in unmarked cars can drive around seizing and detaining American citizens? That’s a yes or no.

Senator-

Can you lean in a little bit more?

Yes, vice chairman. My apologies. Generally speaking, Senator, it’s a great idea to identify oneself as a federal law enforcement officer. I will say that the department takes the constitutional rights of Americans very seriously. As you know, the state AG in Oregon has sued the federal government. And as is common, the federal programs branch of the civil division of the department is defending the lawsuit. The marshals are a named defendant in the lawsuit. So at this point, there is ongoing litigation and some of the matters you’re asking about cut to the heart of that litigation.

Dianne Feinstein: (01:00:09)
That, again, is ducking the question. These are practices that are going on now over the objection of local officials. And you have equivocated. I consider these practices a massive invasion of the constitutional rights of my constituents. I think that these practices are essentially fascist practices that until recently would have been unthinkable in America. And your refusal to condemn what is going on in my hometown, and people know all about it, the first secretary of Homeland Security was very clear about it this morning. These positions are not consistent with the position to which you’ve been nominated. As chairman, I intend to oppose his nomination.

Marco Rubio: (01:00:57)
Senator Heinrich. Senator Heinrich.

Mark Warner: (01:01:06)
Thank you, chairman. Mr. Hovakimian, in your current capacity at the Justice Department, I have a few questions that I’d like you to take for the record. You don’t have to answer them today. They’re fairly detailed, but I would appreciate a quick response. The US Attorney for New Mexico told me yesterday that federal law enforcement agents will be sent to Albuquerque as part of the expansion of Operation Legend. The Justice Department states on its website that this initiative is intended to “fight this sudden surge of violent crime.” But as Albuquerque Police Chief Geier has pointed out, homicides are down this year and protests in our city have been mostly peaceful.

The DOJ initiative is also intended to work in conjunction with state and local law enforcement officials. And yet, the mayor and the chief of police were not consulted. I’d like to ask you why now? What is the driving reason to send these agents to Albuquerque at this time? How is this initiative different than last year’s operation, Relentless Pursuit? How will DOJ work with city officials such as the chief of police and the mayor, to ensure cooperation, coordination, and some legal guardrails? Because we don’t want the Portland model coming to the city of Albuquerque, frankly. And finally, what will this operation actually look like on the ground? If it’s not intended to monitor protests, how exactly will these forces be utilized?

Now I’d like to get to some questions that I would appreciate your answers to today. On June 26, the president issued an executive order on protecting American monuments, memorials and statues and combating recent criminal violence. According to public reports this week, an unclassified Department of Homeland Security memo, which I have requested, authorizes DHS Office Of Intelligence And Analysis to engage in intelligence gathering against ordinary American citizens who may be participating in local protests. I’d like to ask you if you believe that the threat to property damage to monuments and statues specifically is a significant enough Homeland Security threat, not a local law enforcement threat, but Homeland Security threat, to warrant intelligence analysis and collection by federal agents?

Patrick Hovakimian: (01:03:44)
Senator, with respect, I can’t necessarily speak to what the Department of Homeland Security is or isn’t doing. I can say that American’s right to free speech and free expression, including free speech and free expression around statues and monuments, is of paramount importance to me. Those are bedrock principles-

In your personal judgment, do you believe that the threat of vandalism to particular monuments or statues rises to the level of necessitating intelligence analysis, especially given the fact that that comes at a opportunity cost? If we’re gathering information on protestors at monument sites, we’re not gathering information about white supremacy groups or other groups that have threatened violence.

Senator, I understand the question. My goal always as a lawyer, both in my current job and if confirmed in my future job, would be to provide considered legal judgements. And to do that, I need all the facts on the ground. It’s difficult to opine categorically on hypotheticals because it-

It seems to me though, you answered pretty straightforwardly Senator Feinstein’s question about Title 50 authorities. And this is the next logical step. This is the Title 50 authorities in action. Right? So why is it hard to connect the dots for you between those two things?

Senator, there’s a lot happening in the country right now, and there’s a lot of facts on the ground in different cities. And your question was specifically about vandalism near monuments and statues. And-

My question is specifically about gathering intelligence about protestors.

Senator, generally speaking, intelligence should not be gathered against Americans who are engaged in activity entirely protected by the first amendment.

Thank you, Mr. Chairman.

Senator Risch.

Chuck Grassley: (01:05:59)
Thank you, Mr. Chairman. I’ve got questions, but I’m going to reserve them for a closed session. They’re not matters to be taken out in public.

Okay. Thank you. Senator Harris.

Susan Collins: (01:06:10)
Thank you, Mr. Chairman. In your current role at the Department Of Justice, have you reviewed, approved or supervised the deployment of federal law enforcement officers to these protests?

The deployment of federal law enforcement officers?

Well, let’s not parse words. Were you in any way involved in the decision to send federal officers to these locations?

Senator, I’m a current DOJ official. There’s a lot happening right now.

If you can do a yes or no answer, that would be helpful.

Senator, I advise the Attorney General and the Deputy Attorney General on any number of topics.

Have you advised on this topic? Let’s focus on the subject that I’ve raised.

Yes, Senator. I have sight lines into a great many of the things DOJ does. This does not happen to be one of them. It’s-

So you were not involved in any of these decisions? Is that what you’re saying?

Like any major big organization, there’s a division of labor at the department.

I’m aware of that, sir. But it’s a very specific question I’m asking you. Were you involved in any way in the decision to deploy federal law enforcement officers to the various cities we’ve been discussing during the protests?

Senator, my understanding is that DOJ’s involvement has been relatively limited vis-a-vis that DHS-

Can you answer the question? Were you involved or not?

Senator? There are ongoing law enforcement operations around the country to protect the-

So you’re not going to answer this question directly, sir? I can move on if you’re not going to, or are you going to answer the question?

I’m attempting to answer the question, Senator.

Were you involved?

Senator, I advise the Attorney General and the Deputy Attorney General on everything under the sun. And I always bring to the table a respect for constitutional rights and the first amendment. That is something I turn to frequently when advising them.

Were you involved in the decision to remove peaceful protesters that were gathered in front of the White House, the incident in Lafayette Square?

In early June?

Yes.

Senator, I don’t know anything about who made that decision or when it was done.

So you were not involved?

Well, I just don’t know who made the decision and-

Were you involved in that decision?

Senator, I think I had a question for the record pre-hearing on that topic and I answered no, I was not.

And press reports indicate in June that DOJ granted the DEA extensive no authority to conduct covert surveillance. I think that’s what my colleague was speaking about earlier. Were you involved in the decision to grant these new authorities to DEA?

Senator, I’m not entirely sure. I know I got some questions for the record on that pre-hearing also.

You’re not sure if you were involved?

No. No, I’m not sure exactly what it is that you’re referring to. DEA is a federal law enforcement agency and under the United States code, there are delegations that are available to be made. I’m just giving you my-

Were you involved in this decision?

I’m just giving you my understanding of the law. Again, I have sight lines into a great number of things DOJ does. This, generally speaking, is not one of the.

In your role at DOJ, were you involved in any manner in the decision to fire Geoffrey Berman?

No. Geoff Berman-

You were not?

Geoff Berman was the US attorney up in New York. I knew Geoff Berman. I had worked with him on a number of things. The department has made statements on that and those will speak for themselves.

The previous ODNI general counsel consulted with the Department Of Justice regarding a whistleblower complaint that has been filed with the intelligence community’s inspector general. In your capacity at DOJ, did you have any awareness of this whistleblower complaint and the question of whether it should be shared with Congress?

Senator, you’re referring to the whistleblower complaint from the late summer and early fall of last year that resulted in all of the proceedings? Is that right?

Correct. Were you involved in that decision in any way?

Senator, that was something that occurred and the nation watched it.

Sir, were you involved in that decision in any way?

In what decision precisely, Senator

The decision to not share the whistleblower complaint with Congress.

Senator, my understanding was that the whistleblower complaint was shared with Congress at some point.

At some point, but there was also at some point a decision not to share it with Congress. And my question to you, sir, is were you involved in that decision?

Well, I guess my point in bringing that up, Senator, is that I am not exactly sure which decision you’re referring to because I don’t know who made it, if it was even made. I don’t know that there was a decision made not to share it with Congress because it was in fact shared with Congress.

And do you have any information or were you involved in any way in any of the decisions that were made around the Department Of Justice’s decision in the Michael Flynn case or the Stone case?

Senator, the matter involving General Flynn is in active litigation. It’s before the DC circuit [inaudible 00:23:29].

So were you involved in that decision in any way?

Senator, as a lawyer and an official at DOJ, it’s very difficult for me to comment on a ongoing matter.

What about the Stone case?

Senator, Roger Stone, that matter was litigated over course of years. The Department took positions in court filings.

Were you involved in that decision?

The Attorney General has made public statements about that case and I will allow those to speak for themselves.

Thank you, Mr. Chairman. My time is up.

Thank you. Since I deferred my questions to the end, I have to-

Thank you. Since I deferred my questions to the end, I have three. Let me start with Mr. Miller. The NCTC has an arrangement in which a lot of its work load is taken up by detailees from other agencies. In an era in which increasingly our foreign policy and therefore our intelligence work and, frankly, multiple areas of U.S. policy, including geopolitics, trade, commerce, diplomacy are increasingly focused on China and Russia and Iran and North Korea. And the concern, of course, is that even as we focus on these things, and rightfully so, that it could somehow detract from the importance of counter terror, which remains an active threat and in many ways has metastasized and moved into different theaters. What is your view of this arrangement in which the NCTC relies, the counter-terrorism mandate relies, heavily on detailees from other agencies whose increased workload in these other four areas, great power competition and the like, could potentially place a strain on our ability to focus on the counter terror mission?

Christopher Miller: (01:13:23)
Thank you, Acting Chairman Rubio. Great question and I really think the model works when resources are bountiful and everyone is committed to the mission. I think it’s something. The beauty of that model was you were constantly rotating in new folks with new views and you kept a degree of energy and individual thinking going. My gut instinct right now is we need to re-look at that because I’m concerned, as you note, that as resources get further constrained or other priorities take the fore that we really need to think if that’s the right model. Because I’ve done this one before, where you’re trying to get borrowed labor and, wow, it works great until it doesn’t. And I think we might be kind of getting to that point, sir.

And just to be clear, it’s not the aspect of having new people come into the role? It is the question of numbers and workload. If an agency is being told, “We need more product. We need more work. We need more focus on North Korea,” they may not be able to part with detailees at the same scale than in the past. The bigger concern is the numbers, not necessarily the fact that it’s new people rotating in it.

Yes, Senator. And I also think the National Counter Terrorism Center is doing some cutting edge work on using artificial intelligence and machine learning. I think we’re at baby steps right now. We’re a long way as a government writ large to exploiting those. But I’m really hopeful that they continue to be best in class at that and figure out whether there are efficiencies that can be gained, because that’s the goal and this. But right now, I completely hear what you’re saying and am going to look at that really closely if confirmed and am concerned as well.

We’re in this unprecedented situation where certain Foreign Intelligence Surveillance Act or FISA’s authorities expired in March and it’s leaving the intelligence community and the Department of Justice without FISA business records, lone wolf roving surveillance authorities. This question really is for both of you, what concerns do you have with the current expired status of these authorities?

Thank you, Acting Chairman Rubio, for another really, really important question. I’m not an expert on 702 and FISA. I will say this from an operations standpoint better, and I think this is one of the things we learned from the horrendous attacks in 2001 is, typically speaking, it’s better to have tools and not need them than to need and not have after the fact. Once again, I’m not an expert on FISA. I understand the broad outlines, and more tools are better, generally speaking, as long as they comport with the Constitution, with our laws, and in with AG guidelines.

Yeah, more specifically, my question is not so much about the legal arguments surrounding it or the political arguments, but whether it’s an impediment to our counter terrorism, the current status if it carries forward, whether that’s an impediment to the counter terror mission. Your answer is obviously the more tools the better, but how critical are those tools or have they been historically, in your view?

Senator, I know there’s the National Security Agency has some thoughts on that and, of course, support the operational elements. However, once again, I can’t speak specifically right now to what the impacts are on our intelligence take in regards to counter terrorism. Certainly, more is better, and I’ll look at that if confirmed, sir.

Mr. Hovakimian, do you have any insights?

Senator, yes. The provisions of FISA that expired on March 15th of 2020 have been very important and useful to law enforcement and to the national security community, and as Mr. Miller said, it’s always better to have more tools and not necessarily need to use them. One of those provisions, in fact, I think DIC has said as has never been used in history, but that doesn’t mean there aren’t a set of circumstances under which it would be useful. So if confirmed, I look forward to collaborating with this committee and with the legislative affairs professionals across the government to reauthorize those provisions.

All right. We’re going to follow up with any members that have any questions. I know the Vice Chairman had one.

Yes. Mr. Hovakimian, I’m pretty disappointed about how you answered a number of my colleagues’ questions or failed to answer. But the one that really bothered me the most because we talked about it …

Yes, sir.

… before Senator Harris came in, was we had a discussion during my questions about the OLC opinion that ruled, I think totally inappropriately, that the OLC could, in a sense, intervene, stop the IG from making a report to Congress. We talked about that. You said you thought it was very important that Congress gets the IG’s reports and then you left me with the impression that you thought that was inappropriate. And yet you wouldn’t even respond to Senator Harris whether you were involved in that matter at all and acted like she didn’t know what she was talking about.

No, Senator. Sorry for any misunderstanding. I think what I was referring to was when the decision was made not to send the report over, that didn’t compute for me because, of course, the complaint did eventually make its way over.

The complaint got over, but not through appropriate channels and was stopped and the Inspector General stopped from continuing the investigation that he was rightfully required to do by law. And so if you’re not willing to answer her, will you answer me? Were you involved in that in any way?

Senator, I was not. That decision was made by the Office of Legal Counsel. It was considered-

In your effort of they’re having sight lines and to all different things the Attorney General is involved in, were you involved in that through your various sight lines?

Senator, I’m not quite sure what you mean.

Sir, if you don’t understand what I mean, then I’m not sure you’re dealing with me or dealing with this committee in an appropriate, straight matter. I really enjoyed our conversation earlier. I think you are “a bright young man”, to quote my colleague, but I will hope I would like to get a written response from you on this subject.

Yes, Senator. I’m committed to ensuring the rights under the statute of all whistleblowers. I believe in it. I believe that whistleblowers serve an important role in the government. I believe Congress spoke to that and I’ve worked with confidential informants as a prosecutor and they are in many ways like whistleblowers. I respect whistleblowers and their statutory rights and if confirmed I will do my very best to respect those rights as I always have in every position, including my positions at DOJ.

I just want to give you an opportunity because there was confusion it appears on your part about the question. So let me just try to ask it a different way. I think that the question at its core that I believe they’re asking is, obviously, as you have sight lines, you work in an office, you understand that different things are going on in different places, if I understand the question, and then maybe what you want to respond to in writing, but as I understand the question is, whatever decision was made by the Office of Legal Counsel or the like, were you involved in that deliberative processing and giving legal advice as to what the outcome should be? Is that accurate.

No, Senator.

Can I amend? Yes, Chairman, I think that is right, but there was, and this is why you may want to take this for the record, my understanding was that you had OLC I believe in some consultation with the Attorney General reaching that conclusion, which then was referred to the IG, Inspector General, was then stopped from performing his duties, which at least some of us thought was in clear contradiction of the law. And I do recall the gentleman who had your position before in coming in and trying to defend that because of the ODNI GC tried to defend that, I thought unsuccessfully. So the clarity here is not whether you are simply, obviously, OLC is not inside the DOJ’s office, but you have left me with the impression that you are avoiding answering directly Senator Harris’s question. And if you were involved, particularly after I tried to pose questions on this matter about whistleblowers, you’ve left me with a very, very unsettled sense. So whether you want to address it today or in writing.

Just so I understood because it’s a question I want to give you a chance to answer. You don’t have to answer here. Maybe it’s better off in writing because the answer is complex. But as I understand, the question is, to the extent the Department of Justice was involved in this matter and in reaching some conclusion and determination, was that a process that you were involved in helping reach that determination?

Senator, I’d be happy to take the question for the record and do the best I can parsing it out and answering it. I will say that there’s an OLC opinion that is public. Its reasoning is out there. I am not an attorney who works in the Office of Legal Counsel. I did not inject myself into their deliberations. I did not try to steer things one way or another. And I did not try to give legal advice on what that opinion should look like. But I will be happy to take the question for the record and to answer it the best I can.

And again, if you could just address both whether you were involved in or aware of these deliberations at DOJ in terms of consulting with OLC. But thank you, Mr. Chairman.

Anybody else? Senator Burr. Do you have a follow up question? Senator Burr, did you have a follow up? Oh, you didn’t. Okay. Well, I want to thank you everyone for being here today. Let’s see. The record for planning purposes of any members wish to submit questions for the record, which sounds like we’re going to have some, after today’s hearing for either of the nominees, please do so by the close of business tomorrow, I think we know at least what one of those questions is. And so, again, I want to thank everybody for being here. And with that, this meeting is adjourned.

Senate Hearing Transcript on National Intelligence Nominations July 22

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