Hearing of the Senate Committee on Intelligence - DNI Authorities and Personnel Issues

Interview

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SEN. WHITEHOUSE: Thank you.

Admiral, first let me ask you to comment on this assertion, if you could tell me if it's true or false: Your surveillance of anyone affiliated with al Qaeda or any organization affiliated with al Qaeda, or any person affiliated with any organization affiliated with al Qaeda, will continue unimpeded through any period in which the so- called Protect America Act is not in effect, at least until August of this year. Is that correct?

ADM. MCCONNELL: I don't think that's correct, sir, but let me ask for some legal help. Let me tell you my understanding. We have certain procedures that are sort of loaded, been approved by the court and so on. In a dynamic situation, if there was someone outside that, I --

SEN. WHITEHOUSE: Someone outside al Qaeda or an organization affiliated with al Qaeda?

ADM. MCCONNELL: I'm using known to us or outside a specific list of identifiers or that sort of thing. I think if the Protect America Act expires it would put us back in a situation of probable cause if the collection was done in the United States on a wire. And I think that's the answer but let me get some --

SEN. WHITEHOUSE: Unless they were affiliated.

ADM. MCCONNELL: No, if it's done -- if PAA expires and it's done in this country it would require you to have a warrant, I believe. But let me get someone who actually knows the answer. Ben, are you here?

(Off mike.)

MR. : To the extent someone is covered under an existing authorization -- an authorization for an acquisition signed by the attorney general and the director of national intelligence and that has been issued, those continue for up to one year even beyond the expiration of the Protect America Act. Directives issued under those authorizations should also -- may also continue under those also.

SEN. WHITEHOUSE: And those authorizations may include organizational authorizations so that new individuals who are affiliated with the organization can nevertheless be surveilled, correct?

MR. : We would certainly take that position, Senator. What we could not do is the issues that are raised in the attorney general and DNI's letter are if we needed to modify or issue new directives pursuant to those authorizations to different electronic communication service providers or different methods than what are covered in existing directives, or modify those authorizations and directives, which we have done over the past six months.

Then, there's also a substantial question in the wording of the act, although we hope we have good arguments but it may be litigated, of whether the liability protection continues on because that is in the wording of what actually continues on. So as the AG laid out there's uncertainty in all those different areas.

SEN. WHITEHOUSE: But not as to your ability to surveil people who are affiliated with al Qaeda.

MR. : Certainly the authorization, if it covers a -- the authorization for the acquisition would continue. It's the implementation of it that creates concern with the private sector.

ADM. MCCONNELL: Oh, so there's an issue of compelling -- if you have assistance and it expires, can you now compel. That could be challenged. And so our worry is we're much better with certainty so we know what the rules are; if it changes, you never know how it might be ruled.

SEN. WHITEHOUSE: There was an incident recently in which the director of national intelligence, then John Negroponte, instructed the head of the CIA, then Porter Goss, that CIA interrogation tapes were not to be destroyed. As it turned out, they were in fact destroyed.

Is there anything out of that circumstance that bears on the authority of the DNI versus the director of the CIA? Do we need to strengthen the authority of the DNI so that when the DNI makes a statement like that to a CIA director it becomes clear that it is, in fact, a decision that the agency must comply with? There's a command gap between DNI Negroponte making that statement and the action that took place in contravention of the statement, and where is that command gap.

ADM. MCCONNELL: It's being investigated now and I haven't talked to Ambassador Negroponte, and I don't know all the circumstances. But if it were an order and if it were violated -- two big ifs -- then I would agree with the way you outlined it. But what I've heard just in people talking about it, it wasn't a direct order, it was an opinion; I don't know. But if the way you described it, it was an order and it --

SEN. WHITEHOUSE: Do you not see it as part of your DNI authority?

ADM. MCCONNELL: I do, indeed. If it was an order and violated, then you'd have to deal with that situation.

SEN. WHITEHOUSE: One last, just quick reaction. You said that the Army field manual was designed for young men, generally less experienced, less well-trained.

ADM. MCCONNELL: In uniform.

SEN. WHITEHOUSE: In uniform.

I frankly don't think that's true, and I would challenge it and urge you to maybe reconsider it because what I understand is that the military has very significant and very experienced intelligence operatives. Men who I've spoken to have 22 years of interrogation experience. They run military intelligence and interrogation schools of 10-, 18-weeks' duration; they have -- I guess you'd call it sort of graduate-level courses. This is a matter -- you have, you know, special-ops individuals, you have DIA folks. You have some of the very best intelligence and interrogation operators in the country in the United States military, and they are the ones who are telling us that they work very well within the confines of the Army field manual. And I think it's fair to have the discussion as to whether or not, at that level, the Army field manual is the right restriction or not.

What is not fair, I don't think, is to take the military interrogation and intelligence operation and denigrate it, as if it's a bunch of 18-year-olds running around who have got no experience doing this and the Army field manual has to protect them from their naivete and their ignorance because it's the same field manual that applies to highly trained, highly professional, highly experience individuals, many of whom have a lot more interrogation experience, it appears, than the folks in the CIA.

ADM. MCCONNELL: Sir, what you're referring to --

SEN. ROCKEFELLER: Please react to that.

ADM. MCCONNELL: -- is coercive techniques. And if you ask the FBI their opinion -- and we just did this recently in a hearing up here -- you get pretty much the same answer the way you just described it. The way I think of the Army field manual is primarily the lowest common denominator to protect the nation from what happened -- the heinous behavior at Abu Ghraib. So it is a course of action that was taken by this body and the executive branch to agree to how we're going to do that in the future, so that circle closed to be a smaller circle.

What you say is true; they're very experienced people, but now they live within that circle. The question is, do we want to make the same circle apply to all parties, and that's the question that you all have to wrestle with.

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