[Senate Hearing 110-936]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-936

                  NOMINATION OF J. PATRICK ROWAN TO BE
                       ASSISTANT ATTORNEY GENERAL
                         FOR NATIONAL SECURITY

=======================================================================

                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE

                                 OF THE

                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 25, 2008

                               __________

      Printed for the use of the Select Committee on Intelligence


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate





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                    SELECT COMMITTEE ON INTELLIGENCE

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

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
              CHRISTOPHER S. BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California         JOHN WARNER, Virginia
RON WYDEN, Oregon                    CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana                   SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland        ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
                     HARRY REID, Nevada, Ex Officio
                 MITCH McCONNELL, Kentucky, Ex Officio
                    CARL LEVIN, Michigan, Ex Officio
                    JOHN McCAIN, Arizona, Ex Officio
                              ----------                              
                   Andrew W. Johnson, Staff Director
                Louis B. Tucker, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk










                                CONTENTS

                              ----------                              

                           SEPTEMBER 25, 2008

                           OPENING STATEMENTS

Rockefeller, Hon. John D., IV, Chairman, a U.S. Senator from West 
  Virginia.......................................................     1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from 
  Missouri.......................................................     3

                                WITNESS

Rowan, J. Patrick, Nominee to be Assistant Attorney General for 
  National Security..............................................     4
    Prepared statement...........................................     5

                         SUPPLEMENTAL MATERIAL

Prehearing Questions and Responses...............................    20
Questionnaire for Completion by Presidential Nominees............    51
Letter from Don W. Fox, Office of Government Ethics, Dated June 
  26, 2008 Transmitting Public Financial Disclosure Report.......    69
July 23, 2003 Congressional Testimony............................    80
July 20, 2006 Congressional Testimony............................    84
January 29, 2008 Congressional Testimony.........................    92

 
                  NOMINATION OF J. PATRICK ROWAN TO BE
                       ASSISTANT ATTORNEY GENERAL
                         FOR NATIONAL SECURITY

                              ----------                              


                      THURSDAY, SEPTEMBER 25, 2008

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:39 p.m., in 
Room SDG-50, Dirksen Senate Office Building, the Honorable Jay 
Rockefeller (Chairman of the Committee) presiding.
    Committee Members Present: Senators Rockefeller, Wyden, 
Bond, and Warner.
    Chairman Rockefeller. The Committee will come to order.
    We meet to consider the nomination of J. Patrick Rowan to 
be Assistant Attorney General for National Security.
    I would like to begin by congratulating the nominee and 
asking whether--as I sorely suspect is the case--he has anybody 
he'd like to introduce.
    Mr. Rowan. Yes, Senator. Thank you for providing me that 
opportunity.
    Behind me here is my mother, Anne Rowan, a retired math 
teacher, and my father, William J. Rowan, who is a judge in the 
Montgomery County Circuit Court in Maryland. I'm also joined by 
a number of my colleagues from the Department of Justice, 
including a number of colleagues from the National Security 
Division. I really appreciate that they're able to come as 
well.
    Chairman Rockefeller. Good. We welcome you. A math teacher 
and judge.
    Mr. Rowan. A lot to live up to.
    Chairman Rockefeller. Yes.

 OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A 
                U.S. SENATOR FROM WEST VIRGINIA

    In the PATRIOT Act Reauthorization in 2006, Congress 
established the National Security Division of the Department of 
Justice and the position of Assistant Attorney General to head 
that division. That legislation also established a somewhat 
unique, at least rare, procedure which brings to our 
Intelligence Committee the nomination of a Justice Department 
official. The nomination was first considered by the Judiciary 
Committee, which favorably reported it two weeks, glad to say. 
It was then automatically referred to our Committee.
    There is an important reason why the 2006 statute provided 
for an automatic sequential referral to the Intelligence 
Committee. The Assistant Attorney General for National Security 
carries out intelligence-related functions that are at the 
heart of the legislative and oversight responsibilities of this 
Committee. These include representing the government before the 
FISA Court and being the government's chief counterterrorism 
and counterespionage prosecutor.
    Mr. Rowan is a career Department of Justice prosecutor who 
has rendered very important service in the U.S. District 
Attorney's Office in the District of Columbia, at the FBI, and 
in several offices in the Department of Justice. Of particular 
relevance to the nomination that brings him here today, Mr. 
Rowan has been in the leadership of the National Security 
Division from its beginning in 2006. He first served there as 
Principal Deputy Assistant Attorney General. In that capacity, 
he managed the Department of Justice's national security 
investigations and prosecutions. And from April, 2008 to the 
present he has been the Acting Assistant Attorney General.
    That's the only thing I don't like about the Justice 
Department, is all the assistant levels. It's difficult for 
those of us who aren't in that profession. But that's not your 
fault.
    Mr. Rowan. It certainly is. Thank you.
    Chairman Rockefeller. Mr. Rowan has obviously earned the 
confidence of Attorney General Mukasey, and I am advised that 
the Director of National Intelligence, DNI, strongly supports 
his nomination. We treat both as high recommendations.
    If confirmed, Mr. Rowan will head his office at a time of 
important challenges and responsibilities for the National 
Security Division. The National Security Division has a leading 
role in implementing the recently-passed FISA Amendments of 
2008--a very noncontroversial matter--in a manner that is true 
to the twin objectives of the law--providing for the effective 
collection of intelligence and preserving the liberties and 
privacy of Americans, if those two are entirely reconcilable. 
And that's, I would think, one of the fascinations of what 
probably lies before you.
    Robust congressional oversight of the new law, as well as 
older parts of FISA that were unchanged by that law, is 
essential. Our ability to conduct this oversight will depend on 
full and informative reporting by the Attorney General, which 
will rely in turn on comprehensive and penetrating reviews and 
reporting by the National Security Division.
    Our oversight responsibilities will be particularly 
important in areas that are not subject to judicial review. Key 
among them is the adequacy and adherence to the Attorney 
General's guidelines required by the FISA Amendments to ensure 
adherence to the Act's limitations, including the prohibition 
on reverse targeting. We will be looking forward to the 
National Security Division's full participation in that effort.
    It is not too soon to note that several FISA provisions 
added by the 2001 PATRIOT Act, and extended in the 2006 
reauthorization, will sunset at the end of 2009. One is the 
business records title of FISA. A challenge Congress will face 
that will also occur when provisions of the FISA Amendments 
sunset at the end of 2013 is how to enable public 
considerations of interpretations of these laws by the FISA 
Court and its Court of Review.
    We would welcome the nominee's thoughts on what he would 
do, if confirmed, to work with those courts and the 
intelligence community to release publicly any opinions on 
important issues of law, to the extent consistent with national 
security.
    There are important challenges for the National Security 
Division apart from FISA. The Assistant Attorney General is the 
government's chief counterterrorism prosecutor. The time is 
rapidly approaching when, in my opinion, this Senator's 
opinion, there needs to be a thorough reconsideration of the 
effort to substitute military commissions for military court 
martial or federal criminal trials.
    Simply put, seven years have passed since the terrorist 
attacks of September 11th, and more than that since the USS 
COLE attack. And it is clear that the effort to bypass 
established ways, both military and civilian, for trying 
terrorism cases has failed to bring to justice the participants 
in those attacks. While the nominee may be limited in what he 
can say at this time, I hope that if confirmed he will quickly 
and energetically make the National Security Division an active 
participant in the search for a better course.
    I now turn to the distinguished Vice Chairman for his 
opening remarks.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A 
                   U.S. SENATOR FROM MISSOURI

    Vice Chairman Bond. Thank you, Mr. Chairman. I join with 
you in welcoming Mr. Rowan, his parents, Judge and Mrs. Rowan.
    You have adequately described, Mr. Chairman, very 
eloquently how we got to this position. I add just a few 
comments about Mr. Rowan's predecessor, Ken Wainstein, now 
serving as the President's Homeland Security advisor.
    We provided an outline for this position, but there are 
many competing visions and some very strong opinions on what 
the NSD should look like. And I think Ken sifted through them 
and made some very tough decisions. So far, overall it appears 
to me that they were good decisions, and for that we owe Ken 
our country's gratitude and praise.
    There is still a lot to be done. Executive Order 12333 and 
its implementation to NSD will be on the frontline. As the 
Chairman said, the IC continues to implement this summer's FISA 
Act amendments and the new extensive oversight and reporting 
requirements on the IC and the NSD.
    As I understand it, virtually on a daily basis the FBI 
seeks FISA applications for physical search, electronic 
surveillance on terrorists, spies inside the U.S. It has to be 
drafted by the NSD in coordination with the FBI.
    And that's why I think it's important that we get a 
permanent leader at the helm. Having a Senate-confirmed AAG 
would enable him to act in the place of the Attorney General to 
certify FISA applications or authorize emergency FISAs when the 
Attorney General is not available. And if we cannot confirm 
him, that means there could be lengthy delays while we wait to 
track down General Mukasey.
    There are also a number of other issues we'll get into on 
the proposed new guidelines for FBI criminal national security 
investigations. And I'd like any wisdom you have as a career 
prosecutor and solid security experience if this works well, 
and I also look forward to hearing your opinion on the impact 
the FISA Act amendments have had on the National Security 
Division in its processing of FISA applications.
    But Mr. Chairman, since we're running very short of time, I 
hope we can move it quickly to the floor, assuming that none of 
the people here have any problems with this nominee, that we 
could get him confirmed before we leave town to give the 
Attorney General the resources he needs.
    I thank the Chairman and thank our witness.
    Chairman Rockefeller. I agree with the Vice Chairman. Mr. 
Rowan, we will welcome your opening statement at this point.

 STATEMENT OF J. PATRICK ROWAN, ASSISTANT ATTORNEY GENERAL FOR 
                  NATIONAL SECURITY-DESIGNATE

    Mr. Rowan. Thank you, Chairman Rockefeller, Vice Chairman 
Bond.
    It's my pleasure to appear before you today as the 
President's nominee to be the second Assistant Attorney General 
for National Security. As a federal prosecutor and attorney for 
the FBI and in my work in the last several years at the 
Department of Justice, I've devoted much of my career to 
protecting the security of this nation and its citizens while 
defending our civil liberties. I hope to have the opportunity 
to continue this service as the Assistant Attorney General for 
National Security.
    At the outset, I'd like to thank you for holding this 
hearing, knowing the many pressing demands you face at the end 
of this Congress and in this period of financial crisis. I 
appreciate your support for the critical mission of the 
National Security Division.
    Since the attacks of September 11th, 2001, the first 
priority of the Department of Justice has been combating 
terrorism and other threats to our national security. The 
department worked hard in the years immediately following 
September 11th to fulfill this mission, but it became clear 
that a restructuring of the department was needed. The 
President and the Congress authorized the creation of the 
National Security Division, and we've been up and running for 
almost two years now.
    We've made significant strides in realizing the benefits of 
bringing together the department's prosecutors and its 
counterterrorism and counterespionage sections with its 
intelligence lawyers in the Office of Intelligence Policy 
Review to form a new, streamlined national security 
organization. As one who's been there since the beginning, I'm 
proud to report that the transition has gone well. Our new 
structure enables us to provide quick, fully coordinated 
responses to national security threats.
    Of particular importance to this Committee, the creation of 
the division makes the department more responsive to the needs 
of the intelligence community by having the Assistant Attorney 
General for National Security provide a single Justice 
Department point of coordination and contact for our colleagues 
in the intelligence community. If confirmed, I will act as the 
primarily liaison to the Director of National Intelligence, and 
I look forward to developing further the already strong 
relationship between our offices.
    I recognize that congressional oversight plays an important 
role in promoting accountability and improving government 
operations, especially those of the intelligence community. I'm 
committed to ensuring that we provide information responsive to 
Congress's oversight needs, consistent with our law enforcement 
and national security responsibilities, in a thorough and 
expedited manner.
    Specifically, I look forward to discussing national 
security issues of significant interest to this Committee, 
including what the National Security Division has done and is 
planning to do to implement the FISA Amendments Act. I'd like 
to pause here to thank this Committee for its invaluable and 
tireless efforts in pursuing the modernization of FISA. It was 
a historic achievement, and I'm proud that the NSD was a part 
of it.
    In conjunction with the DNI and the agencies of the 
intelligence community, the NSD has made significant strides in 
implementing the FISA Amendments Act. And in particular, 
consistent with Section 702 of the FISA Amendments Act, the NSD 
has taken appropriate steps to ensure there's an efficient and 
effective transition from the Protect America Act to the newly 
enacted authority.
    The specific details of the certifications and related 
procedures are necessarily classified and must remain so. Staff 
members of this Committee have been fully briefed on these 
certifications and related procedures and any court action on 
them. In addition, the NSD has implemented other provisions of 
the FAA, including provisions that streamline the applications 
under FISA.
    In closing, I want to thank the President and the Attorney 
General for the trust they have placed in me. I want to assure 
this Committee that if I'm confirmed I'll continue to devote 
all my energies to the mission of protecting our national 
security and defending the civil liberties and freedoms that 
give meaning to our security.
    I look forward to working with the Committee should I be 
confirmed as an Assistant Attorney General, and I welcome any 
questions that members of the Committee may have.
    [The prepared statement of Mr. Rowan follows:]
                 Prepared Statement of J. Patrick Rowan
    Chairman Rockefeller, Vice Chairman Bond, Members of the Committee:
    It is my pleasure to appear before you today as the President's 
nominee to be the second Assistant Attorney General for National 
Security. As a federal prosecutor, Special Counsel for the Office of 
General Counsel of the Federal Bureau of Investigation, Associate 
Deputy Attorney General, Principal Deputy Assistant Attorney General in 
the National Security Division, and Acting Assistant Attorney General 
for National Security, I have devoted much of my career to protecting 
the security of this nation and its citizens and defending our civil 
liberties. I hope to have the opportunity to continue this service as 
the Assistant Attorney General for National Security.
    At the outset, I would like to thank the Chairman, Vice Chairman, 
and the Members of the Committee for holding this hearing knowing the 
many pressing demands you face at the end of this Congress and in this 
period of financial crisis. I appreciate your support for the critical 
mission of the National Security Division.
    Since the attacks of September 11, 2001, the first priority of the 
Department of Justice has been combating terrorism and other threats to 
our national security. The Department worked hard in the years 
immediately following September 11th to fulfill this mission, but it 
became clear that a restructuring of the Department was needed. The 
President and Congress authorized the creation of the National Security 
Division. The Division has been up and running now for almost two years 
and we have made significant strides in realizing the benefits of 
bringing together the Department's prosecutors in its Counterterrorism 
and Counterespionage Sections with its intelligence lawyers in the 
Office of Intelligence Policy and Review to form a new, streamlined 
national security organization. I am proud to report that the 
transition has gone well and the National Security Division now 
consists of the fully integrated Office of Intelligence (01) (formerly 
the Office of Intelligence Policy and Review), the Counterterrorism and 
Counterespionage Sections, and a new Office of Law and Policy devoted 
to national security issues. Our new structure enables us to provide 
quick, imaginative, and agile responses to national security threats. 
Of particular importance to this Committee, the creation of the 
Division makes the Department more responsive to the needs of the 
Intelligence Community by having the Assistant Attorney General for 
National Security provide a single Justice Department point of 
coordination and contact for our colleagues in the Intelligence 
Community
    The Attorney General expects that the National Security Division 
will continue to pursue the following primary objectives that led to 
the creation of this new division: the centralization of the management 
of the Department's national security program; the coordination of 
operations and policy across the national security spectrum; the 
implementation of comprehensive national security oversight; and the 
further development of national security training and expertise. If 
confirmed, I will act also' as the primary liaison to the Director of 
National Intelligence (DNI) and I look forward to developing further 
the already strong relationship between our offices. In addition, the 
Attorney General expects that if confirmed I will help ensure that our 
national security responsibilities are met during the first transition 
of government following September 11, 2001.
    I recognize that congressional oversight plays an important role in 
promoting accountability and improving government operations, 
especially those of the Intelligence Community and, if confirmed as the 
Assistant Attorney General for National Security plan to actively 
participate in the congressional oversight process. In my previous 
positions at the National Security Division I have participated 
directly in the oversight process by testifying at hearings before 
House Committees and by briefing numerous members of the Senate and 
House, as well as the staff of their committees. I am committed to 
ensuring that we provide information responsive to Congress's oversight 
needs, consistent with our law enforcement and national security 
responsibilities, in a through and expedited manner.
    Specifically, I look forward to discussing national security issues 
of significant interest to this Committee, including what the National 
Security Division has done and is planning to do to implement the FISA 
Amendments Act (FAA). I would like to pause here to thank this 
Committee for its invaluable and tireless efforts in pursuing the 
modernization of FISA. It was an historic achievement, and I am proud 
that the NSD was a part of it. It will always serve as a reminder of 
what we can achieve when we work together.
    In conjunction with the DNI and the agencies of the Intelligence 
Community, the NSD has made significant strides in implementing the 
FISA Amendments Act. In particular, consistent with Section 702 of the 
FAA, the NSD has taken appropriate steps to ensure there is an 
efficient and effective transition from the Protect America Act to the 
newly enacted authority. The specific details of the certifications and 
related procedures are necessarily classified and must remain so. Staff 
members of this Committee have been fully briefed on these 
certifications and related procedures and any court action on them. In 
addition, the NSD has implemented other provisions of the FAA including 
provisions that streamline applications under FISA.
    In closing, I want to thank the President and the Attorney General 
for the trust they have placed in me. I want to assure this Committee 
that if I am confirmed, I will continue to devote all my energies to 
the mission of protecting our national security and defending the civil 
liberties and the freedoms that give meaning to our security.
    I look forward to working with this Committee should I be confirmed 
as the Assistant Attorney General for National Security and I welcome 
any questions the members of this Committee may have.

    Chairman Rockefeller. Thank you, sir. We have our 
tradition, Mr. Rowan, and we always ask individual questions of 
our members before we get to that. We have several questions 
that we ask all of our nominees.
    Do you agree to appear before the Committee here or in 
other venues when invited?
    Mr. Rowan. Yes, Senator.
    Chairman Rockefeller. Do you agree to send officials from 
the National Security Division to appear before the Committee 
and designated staff when invited?
    Mr. Rowan. Yes, Senator.
    Chairman Rockefeller. Do you agree to provide documents or 
any other material requested by the Committee in order for it 
to carry out its oversight and legislative responsibilities?
    Mr. Rowan. I do, Senator.
    Chairman Rockefeller. You're sure about that?
    Mr. Rowan. Yes.
    Chairman Rockefeller. Will you ensure that the National 
Security Division provides such material to the Committee when 
requested?
    Mr. Rowan. I will, Senator.
    Chairman Rockefeller. Good. Well, you're virtually 
confirmed.
    As I said in my opening statement, seven years after the 
attacks on 9/11, eight years--seems a lot longer since the 
attack on the USS COLE--it's clear that the effort to bypass 
established ways, both military and civilian, for trying 
terrorism cases has failed to bring to justice the participants 
in those attacks, and it's a rather stunning fact, because they 
were very large events.
    From your long experience in the U.S. Attorney's Office, at 
the FBI, in the Criminal Division at Justice, and now in the 
National Security Division, can you describe both the 
challenges and the successes that the Department of Justice has 
had in trying terrorism cases in the United States district 
courts? Specifically, I would like your comments on the risks 
posed by abusive interrogation methods to the ability of the 
United States to successfully prosecute terrorists.
    Mr. Rowan. Well, Senator, there are, obviously, quite a few 
examples in which we've been able to successfully prosecute in 
the federal criminal courts individuals involved in 
international terrorism. There's obviously been a number of 
successful trials in the Southern District of New York. The 
most recent case involving something associated with the 9/11 
attacks, of course, is Mr. Moussaoui's prosecution and 
conviction in the Eastern District of Virginia.
    And that case is actually, I think, an example of, on the 
one hand, how we have very talented, very dedicated prosecutors 
who are dealing with very experienced judges, and they work 
their way in a very impressive fashion through some very 
difficult problems--problems with the classified information 
that is put at risk by a prosecution, problems with a defendant 
who doesn't accept our courts as being legitimate in the first 
instance, the myriad of issues that everybody who watched the 
Moussaoui case saw arise. And the court and the prosecutors and 
the defense attorneys, all being very professional, worked 
their way through them, and of course, he's been convicted.
    At the same time, I think it's fair to say that wasn't an 
easy road. There were a lot of difficulties that were 
encountered along the way. So I think it demonstrates that 
these cases do present unique challenges for our courts, 
particularly in the context of protecting classified 
information.
    Mr. Moussaoui was someone who obviously was caught here in 
the United States and quickly placed in immigration custody. I 
think it's even more challenging when you consider the examples 
of individuals who are detained and there's a concern that they 
have urgent threat information. And so the first interest of 
the government is what kind of intelligence information can we 
get from this person?
    So I think that wrinkle is what adds a great deal of 
complexity to the problem that we face. And I think that that 
issue is one that we have tried to work on on a case-by-case 
basis, but we struggle with that in each instance.
    Chairman Rockefeller. Okay. That doesn't sort of get at 
the--I know it's a popular subject, and I don't want you to 
think that I'm starting out in a badgering mood, but the whole 
question of the so-called abusive techniques thing. Because, as 
you know, there are schools of thought on that, some saying, 
particularly the FBI and the military officials, JAG officials, 
et cetera, that you don't get your best information that way, 
and others saying that that may be true in a variety of cases, 
but sometimes you just have to--if there's an imminent national 
security--something that you see on the horizon, and this 
person might be able to tell you about that. How that would be 
surmised I don't know. Do you have any thoughts on that?
    Mr. Rowan. Again, my experience has been as a federal 
prosecutor, and in that context I've certainly seen how 
effective an experienced FBI agent can be in building rapport 
and extracting information from a defendant when it's clearly 
not in his interest to provide that information. So I certainly 
have a great deal of respect for a rapport-building technique.
    I think that they are difficult issues when you're trying 
to--when you're on the front line of trying to determine how to 
interrogate a person where there's a concern about them having 
imminent information.
    I do think that, regardless of what technique you're 
pursuing, that we need to keep in mind that the Miranda model, 
which we obviously use here in the United States, is a 
difficult one to apply. I'm not talking about coercion. I'm 
talking about like the traditional set of protections that we 
have expected to be provided to detainees when we want to use 
their statement in an Article 3 court. I think that the Miranda 
protections are difficult to square with some of the urgencies 
of overseas interrogations.
    You know, I think there's plenty of room, obviously, over 
and above Miranda, to determine how an interrogation should 
take place, and I think that we are now in a better position 
than we've ever been to judge the relative adequacy and 
effectiveness of rapport-building techniques against more 
coercive techniques.
    And we're obviously also working through in the military 
commissions context how do we address statements that were 
obtained in the aftermath of techniques that were certainly 
more aggressive than the classic FBI rapport-building 
techniques.
    So to the extent that there continues to be a substantial 
disagreement about how to go about this, I would hope that we 
would at least be able to draw on everything that we've learned 
over the last years since 9/11 as the entire intelligence 
community and the law enforcement community was mobilized to 
try to extract information. We've got a lot more experience now 
than we did on 9/11.
    Chairman Rockefeller. I want to pursue that a little bit, 
but my time is up.
    Vice Chairman Bond.
    Vice Chairman Bond. Thank you very much, Mr. Chairman.
    I am concerned about some of the implications of trying to 
apply all of our constitutional protections for U.S. citizens 
to people we may detain on the battlefield. Obviously, we have 
standards by which they must be handled, but exposing in public 
witnesses who may be undercover assets--there are a lot of 
things that I'm concerned about. So we will get into the 
discussion of what kind of justice system is appropriate.
    I would like to turn to the new Attorney General 
guidelines. As I said, you're a prosecutor. You were with the 
FBI in the National Security Division. What's your personal 
opinion of it, or did you have such a big hand in writing it 
that that's your handiwork?
    Mr. Rowan. Senator, the National Security Division, we did 
have plenty of opportunity to input into the new guidelines, so 
I am somewhat biased, but I believe even if I did not have that 
bias I would have little trouble concluding that the basic 
premise of the guidelines--which is we should have one set of 
guidelines for all investigations--is a rock solid point. I 
think it really is the case that FBI agents in the field are 
very concerned about following the guidelines properly. The 
amount of confusion that can result when you don't know which 
box you're in, and so therefore you're not sure which 
guidelines to pull out and refer to, can be maddening at the 
least, if not dangerous to agents in the field.
    Vice Chairman Bond. Good. Quick question. Since the FISA 
Act Amendments were signed earlier this summer, have you seen 
any benefit in attorney resources, improved oversight? How is 
that working?
    Mr. Rowan. Well, it's a little bit early, I think, to say 
with any certainty, but so far we are starting to see numbers 
that would suggest that we're going to enjoy--that the amount 
of work that's going to be done under Section 702 is such that 
our attorneys are going to have a little bit more time for the 
oversight work that is also, obviously, required by the FISA 
Amendments.
    So I think we are going to find over time that it will 
reduce the demands on our resources, particularly in the 
context of Section 702 coverage, and we will hopefully then 
have more of an opportunity to pursue other FISAs that maybe 
people haven't been in a position to pursue in the past, and 
more generally, we'll certainly have more time for our 
oversight work.
    Vice Chairman Bond. Well, we really want to make sure you 
are exercising oversight to accomplish the additional duties 
and observe the additional limitations placed in the 
amendments. I think that's important.
    I understand the Executive Order has been drafted. Do you 
know when it will be signed by the President to designate a 
Deputy Director of the FBI to certify FISA applications? Do you 
know where that stands?
    Mr. Rowan. Senator, I don't. Like you, I'm aware that it 
has not yet been signed, but I'm not certain of where beyond 
that it is.
    Vice Chairman Bond. Can you tell us briefly the steps 
you're taking to ensure that the privacy interests of U.S. 
persons are being protected when the government requests or 
implements a FISA order?
    Mr. Rowan. Well, Senator, you know, obviously, we have 
minimization procedures that we were required to put into place 
under FISA, and those procedures are something we've spent a 
lot of time working on. It's an issue that we want to make sure 
that the procedures themselves are up to date, that they are 
consistent with the age of information sharing that we are in 
now. I think we are doing a reasonably good job of updating 
them to ensure that U.S. person information is properly 
protected under those procedures while at the same time giving 
the members of the intelligence community, the FBI and the 
other agencies, the opportunity to share the proper 
information.
    Vice Chairman Bond. NSD has reviewed FBI's use of national 
security letters. Have you identified any abuses?
    Mr. Rowan. Nothing--you know, Senator, we've been doing 
these field office reviews since 2007, since the IG determined 
that there had been abuses of national security letters. And to 
my knowledge, while we've done a number of those reviews in 
field offices, both in 2007 and so far in 2008, we do provide 
feedback to the FBI. Certainly what we have observed so far is 
that the FBI is learning the lessons of what happened with 
national security letters. And I don't have knowledge that 
we've uncovered anything like a systemic problem that existed.
    Vice Chairman Bond. Thank you. We'll be interested to hear 
if you do, and, Mr. Chairman, I'm going to have some other 
routine questions, informational questions, I'm going to submit 
to the nominee for his reply. One or two of them may require a 
classified answer. I apologize, but not surprisingly, I've got 
a few other things to do this afternoon for a change.
    Chairman Rockefeller. Are you the one with the $700 billion 
in your hip pocket?
    Vice Chairman Bond. No, but I've got a couple of strings on 
it. I want to make sure that it works right.
    Chairman Rockefeller. Thank you.
    Vice Chairman Bond. Thank you.
    Chairman Rockefeller. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman, and let me thank 
the nominee. I've very much enjoyed our visit and the chance to 
get together.
    As I indicated to you, when the Committee was writing the 
Foreign Intelligence Surveillance Act Amendments, I authored 
the legislation to expand privacy protections for the law-
abiding Americans who travel overseas. It was co-authored with 
Senator Feingold and Whitehouse. Senator Rockefeller and Vice 
Chairman Bond were all involved. So it was a great deal of 
effort from our Committee on it.
    The amendment said if the government wants to target the 
communications of an American overseas, the government would 
have to get a warrant, just like it would if the American was 
located in the United States. So my first question is, now that 
the amendment has become law, is the process of implementing it 
going smoothly?
    Mr. Rowan. Thank you, Senator, for that question, and I do 
appreciate the opportunity to have met with you the other day. 
As I told you then, we have implemented--the provision you're 
referring to we know as Section 704. We have implemented 
Section 704, and we have not encountered any obstacles in the 
course of implementing that provision.
    Senator Wyden. And this is an open session, but because I 
want this to be a learning experience, let's see how much 
additional information we can put on the record. Has the 
Department gotten warrants already?
    Mr. Rowan. We have used Section 704 to get warrants. I 
would be uncomfortable getting into a number, but I'm certainly 
comfortable telling you that we have used it to get warrants.
    Senator Wyden. And it's fair to say--and again, I want to 
respect the fact we're an open session you all have used it 
multiple times already.
    Mr. Rowan. Certainly more than once.
    Senator Wyden. Okay. With respect to the timeliness 
question--this was something we worked with the Vice Chairman 
on, we worked with the Department on, because we all felt very 
strongly about making sure that when we really were dealing 
with those individuals that represented a threat to our country 
we had to be in a position to move in a timely fashion--have 
you all felt that you could pursue these warrants and still 
protect the security interests of the United States in a timely 
way?
    Mr. Rowan. Senator, I'm not aware of us having any timing 
problems in connection with our implementation of Section 704.
    Senator Wyden. Very good. Let me just ask you one other 
question, again because you in the private session did really 
address many of my concerns.
    I want to see what can be done in cooperation with the 
Executive Branch and the Judicial Branch to provide greater 
access to the opinions of the Foreign Intelligence Surveillance 
Court. As we talked about, it seems clear to me that you've got 
to make sure that any matter that goes to targets or collection 
methods, the kinds of things that are operational, absolutely 
has to remain classified.
    But at the same time I want to make sure that when you're 
talking about legal analysis, for example, interpretations, 
matters that don't go to these operational matters involving 
targets and collection methods, I think that that kind of area 
ought to be something that there could be opportunity for more 
understanding by the people of this country and how the courts 
handle these matters.
    First, do you think that that's the case? Do you think that 
more of this can be given broader access? And two, if 
confirmed, would you be willing to work with me--and we'll do 
this in a bipartisan fashion here under the Chairman and the 
Vice Chairman--work with this Committee to try to strike the 
right balance, to keep classified court matters that absolutely 
must be classified, but get these issues of legal analysis and 
interpretations--to find a way to make more of that accessible.
    Mr. Rowan. Senator, with respect to the second question, I 
certainly would be willing to work with you and other members 
of the Committee on the issue. We are aware of the importance 
of trying to identify those decisions that can be released to 
the public.
    The problem that we've run into on occasion when we've 
looked at this in connection with specific decisions is that 
the analysis and the facts are so intertwined that there's 
really nothing left that's meaningful once we declassify it. 
That's not to say that we wouldn't continue to look at this and 
work on this, but it's a bit more of a challenge than I think 
one would have imagined in the abstract.
    We do recognize it's an important issue. Obviously, the 
FISA Court of Review decision from 2003 is very important, that 
that's a matter of public record, and so we do feel that we 
need to keep a very close eye to determine if there are 
decisions that we can assist in getting released so the public 
will get some sense of what's going on with the FISA Court.
    Senator Wyden. My time is expired. I understand that there 
are a number of these areas that are intertwined, where you're 
talking about legal analysis and you're talking about facts. At 
the same time, I think that to have the kind of informed, 
reasonable debate about national surveillance law, people have 
got to understand how these laws are interpreted by the courts. 
And I will especially look forward to the fact that you're 
willing to work with us, because I think it is possible to 
strike a balance and expand access and still be sensitive to 
protecting matters that absolutely have to be protected to 
ensure the security of the country.
    Thank you, Mr. Chairman. I've been very impressed with Mr. 
Rowan in both our private session and this afternoon.
    Chairman Rockefeller. Thank you, Senator Wyden.
    Senator Warner.
    Senator Warner. Thank you, Mr. Chairman. I share my 
colleague's high professional regard for our nominee, Mr. 
Rowan. I enjoyed a rather lengthy office consultation that we 
had here this week. So I wish you well.
    I'd also like to have the record reflect my view, and I 
think the view of many on this Committee, that his predecessor, 
Kenneth Wainstein, discharged his responsibilities very 
professionally and capably.
    I'd like to return to the general subject that my colleague 
raised, Vice Chairman, the Chairman, all of us, this question 
of privacy interest. You have a division in your organization 
that does oversight, correct?
    Mr. Rowan. That's correct, Senator.
    Senator Warner. So perhaps we should have in this record a 
little description of that and what supervision you have over 
that division, and what mission do they have?
    Mr. Rowan. Senator, one of the clear mandates that when we 
had when we set up the National Security Division was to create 
a more robust and systematic oversight mechanism in connection 
with our intelligence work. So our Office of Intelligence 
Policy and Review, which is what it was called back then, 
basically the core problem was they had always had an oversight 
function, but they had been drowning in FISA work post-9/11 and 
they hadn't been in a position to do as much as they would have 
liked because of the urgency of the FISA work.
    So one of the things that my predecessor, Ken Wainstein, 
did working with the Deputy Assistant Attorney General Matt 
Olsen and others in the Division, was to reorganize that 
office--we actually now call it the Office of Intelligence--to 
have a dedicated oversight section within it. And the attorneys 
in that section, they are able to call on other resources of 
the Division, but their whole job is to do oversight.
    And in particular, they do national security reviews, which 
is a new concept that we've begun in the Division where they go 
out to an FBI field office. They look through all the case 
files on their intelligence matters. And they try to ensure 
that the predication is there for every step in an 
investigation, try to ensure that the facts that are pleaded in 
the FISA application are accurate, try to make sure that the 
national security letters that have been obtained in the course 
of an investigation were properly obtained, a sort of searching 
review of investigations, intelligence investigations.
    Those reviews, we did--I think in 2007 we did 15 of those. 
Fifteen separate field offices were reviewed. We're going to 
hopefully do even more in 2008. We also do what we call 
minimization reviews where we go to the FBI to make sure that 
they're properly handling the information that they're getting 
from FISA collection.
    And of course we also, in the context of the FISA 
Amendments Act, have a new obligation to work with the ODNI and 
members of the intelligence community to do six-month reviews 
of the operations of the intelligence community as they relate 
to how they're collecting under the FISA Amendments.
    Senator Warner. That's reassuring, but I'd like to point 
out that our records here in the Committee show that since 
September 11th, the terrorist attacks, the number of 
applications for electronic surveillance and physical search 
that have been approved by the FISA court have increased from 
934 to 2,370. Now, that's understandable in view of the 
absolutely extraordinary attack on our country, and I think it 
doesn't reflect any weakness to the FISA court.
    So we'd like to have your impression of the FISA court, how 
it functions, and what steps you would take to oversee that so 
that it doesn't ever have a foundation in fact that would give 
rise to the infamous term that it's a rubber stamp.
    Mr. Rowan. Senator, I think it's actually far from a rubber 
stamp in my experience. The judges of the FISA court--
obviously, these are Article 3 judges who are taking on an 
additional duty. They're very familiar with the probable cause 
standard from their work in Article 3 cases. And they quickly 
learned the intelligence community and the nature of the work 
they're doing on the FISA court.
    We have a great deal of back and forth with the court where 
we will come to understand that a judge believes that our 
application is deficient in some way, and we work with the 
agents and the members of the intelligence community to try to 
make sure our applications are solid. And for that reason I 
think we have a fairly high success rate when it comes time for 
the court to actually sign an application. But that's not an 
indication that they're a rubber stamp there. They put us 
through our paces every day, and we understand and appreciate 
the importance of their work, and we have learned to live under 
that kind of a regime.
    Chairman Rockefeller. I thank you. I thank the witness.
    Senator Warner. Mr. Chairman, will you indulge me for a 
minute?
    Chairman Rockefeller. Of course.
    Senator Warner. Mr. Chairman and members who are absent and 
the staff, this is my last meeting with this Committee. I 
complete very shortly 30 years of service in the Senate, and I 
was on one six-year term, another term for a couple of years, 
and now I've enjoyed with your chairmanship several more years, 
actually had the title of Vice Chairman. I took a lot of pride 
in that title, but I just talked to my colleague here about it, 
and I don't want to put in the record his remarks about it, but 
I think it's a very important recognition. I recall one time 
making arrangement that the title was given to you. Do you 
recall that?
    Chairman Rockefeller. I do.
    Senator Warner. I do, indeed. And I also just want to take 
this opportunity. It's been a marvelous, marvelous perspective 
of my life here in the Senate for these many years, and that's 
been largely possible through the extraordinary men and women 
who've served on this Committee. And I also want to recognize 
the tremendous support that has been given me and the means by 
which I've been able to learn from a superb professional staff. 
So I thank all present, and with that, I bid you all a fond 
farewell.
    Chairman Rockefeller. Not yet.
    Senator Warner. Oh.
    Chairman Rockefeller. I gave a fairly lengthy peroration 
filled with truth and sobriety and some emotion about Senator 
Warner's leaving, as well as Senator Hagel's leaving, and the 
sadness of that, not knowing that we would be doing this today 
simply because when you're dealing with a $700 billion crisis 
you don't know what you're doing the next ten minutes, much 
less the next day and who's going to be at the hearing.
    Senator Warner, I don't think you can dismiss yourself so 
easily. We cry out in this Congress for comity, for 
statesmanship, for civility, all of which seems to flow from 
you as from springs of Dunmore, which is very near a farm that 
Sharon and I have in Pocahontas County, West Virginia, just on 
the Virginia border right across from Highland County.
    And it isn't just the colleagues that you work with, 
because you've got some contentious colleagues on both sides. I 
think a lot of this hope stems that there will be more people 
like you, Senator Warner, who are profoundly engaged in public 
service and who will commit themselves, as you have for a 
period of 30 years, in many areas and gain through your nature 
your--simply, it's just within you. You either have it or you 
don't, and you do, a special kind of integrity.
    And it's been an enormous honor for me to be associated 
with you, if I reach that level of praise, because you're 
honest. You vote your convictions. You're not afraid to break 
when you want a break and to not break when you don't want a 
break. You're real. Some people would say that you're old 
school. Some people would say that Thomas Jefferson was old 
school. And I don't think that you would be unhappy with that 
comparison.
    I think you're remarkable, and frankly I'm just going to 
miss you enormously in spite of the fact that when you had your 
picture taken in your recent marriage that you invited my wife 
to join the photograph, but not me. I'm a forgiving man, so I 
only remember the nobility of your service. [Laughter.]
    Senator Warner. I thank you, Mr. Chairman. We have enjoyed 
a very close working friendship and professional relationship 
these many years.
    I think some of the staff might be interested to know I 
first came to know you--not having met you, but having the 
privilege of working with your father for some several years on 
a project of mutual interest. And you have carried on the 
traditions and the heritage of an extraordinary family with 
great dignity and modesty, if I may say. You serve your state 
as well, and our states adjoin.
    And in the few remaining days I have here I wonder if once 
again we could determine whether or not we could put the two 
states back together. I'm stepping down; therefore, you could 
continue on. They'll have to replace me. Simple as that.
    Chairman Rockefeller. And you do have a Democratic 
governor, don't you? [Laughter.]
    Senator Warner. Yes, yes. Thank you, Mr. Chairman. I thank 
the witness and the guests present for this indulgence. Thank 
you very much.
    Chairman Rockefeller. Thank you, Senator Warner.
    I just want to pursue one matter, Mr. Rowan, that I brought 
up before in outline, and that is this really quite interesting 
and amazing debate which takes place in public, but really 
takes place much more in sort of private conversations, about 
ways of interrogation. How do you best get information out of 
people? And the feelings are very, very strong.
    I think the CIA, if you want to be cynical about it, you 
can say that they have a facility down at Guantanamo, and 
therefore, they're going to hold on to that facility. They say 
there are things they don't do anymore which they used to. But 
that doesn't get into the nature of how you interrogate.
    And it is very interesting to me how SERE, those who say 
that you can get interrogation and then your, the Department of 
Justice and particularly the FBI is one of those. When you 
treat people with dignity, they will tell you things because 
they don't expect that, particularly because they've read the 
recent history since 2001 of what we do do, that they're 
surprised and are willing to cooperate.
    Now, I guess in one sense I have two questions. One is, 
people are dug in. That's human nature. If you've done it a 
certain way for the FBI--we've had so many--I'm just thinking 
of so many people who've come before us, open session and 
closed session, and talked about how they extracted 
information. And there's groups from the outside, there's 
professionals who've been doing it all their lives. And they 
talk about the way to be respectful and yet end up with that 
because of persistence, and I'm not going anywhere, and I'll be 
here a month from now. And, you know, they're tough, but 
they're respectful.
    And then you hear from the other side. Well, if there's 
going to be--and I mentioned this before--an incident, and we 
think there is that chance, we don't want to take the chance of 
letting somebody get it by without saying something.
    And then you get into the question of how much can people 
take? And the fact that the Koran, in fact, actually provides a 
method by which you can say I can take one more of these things 
but I can't take anymore, so if you do it once again, I'll tell 
you what you want--and it gets very confused. And if what you 
want is what the truth is, there's also a very important 
consideration of that.
    My question of you is, is this a debate which has no 
solution, or ought not to have a solution, or is this a debate 
which as we get further in, as our soldiers are subjected to 
some of this and the American people learn about it, where 
there can be some kind of reconciliation? Is that possible in 
this business?
    Mr. Rowan. I think that it may be very hard to have a 
reconciliation. One of the things that's always struck me is 
there's--it seems from what I have heard--there seems to be 
some value--unfortunately, for the public debate there seems to 
be some value in leaving the capabilities and powers of our 
interrogators vague--in other words, that I do believe that al-
Qaida trains to meet in those interrogation techniques. And to 
the extent that they are able to get on the web and understand 
exactly what they are and what they are not, I fear that we 
lose a little bit by that kind of openness, which is the kind 
of thing that you'd want to have----
    Chairman Rockefeller. May I interrupt? I'd like to take 
that aspect of it off the table. I'd like to pretend that these 
discussions have all been held behind closed doors, classified, 
and that therefore the business of informing the enemy, which 
your case is hands down--if they don't already know--I'd like 
to take that off the table, just have your view.
    Mr. Rowan [continuing]. Right. Well, I think that one of 
the things I said before is, you know, we really didn't have 
any experience in this from what I can see at 9/11 except for 
the rapport-building experience that the FBI and other law 
enforcement agencies had.
    And now we do have much more of a record to look back upon 
and try to determine--you know, if a certain set of techniques, 
if one of the arguments in favor of those techniques is, yeah, 
but--I understand rapport building may work over time, but we 
need the information urgently, then I think we now have a 
little bit better handle on it. I can't say I've seen anything 
systematically used to examine this, but I think we'd be in a 
better position now to look back and say, well, how long did it 
take to get that, how long did it take to get that, and get a 
better handle on whether or not the sort of urgency argument is 
one that the evidence supports or the evidence doesn't support 
it.
    As I sit here, I don't know the answer to that. But it does 
strike me that that's a critical fact in favor of those who say 
rapport-building isn't viable in all instances. But if in fact 
it is the case that you look back and you say you know what, it 
took some lengthy period of time before these other techniques 
worked also, then I think that that would obviously be an 
important factor that I'm not sure has really been analyzed in 
any systematic way.
    I also think that since we have more experience, we have 
more experienced interrogators, it's clear to me that some 
people just have a talent for this. And I'm really talking 
about here rapport-building techniques. I think sometimes 
rapport-building techniques don't work because the person who's 
conducting the interrogation just isn't very good at it. I 
mean, it's something that you see even in a law enforcement 
setting as a prosecutor in the District of Columbia. Some 
Metropolitan Police detectives were good at getting a 
confession. Others were not good. And it's a skill like other 
skills.
    And I think that some of what occurred after 9/11, 
particularly in the context of DOD interrogators, may have been 
sort of frustration and inexperience that manifested itself, 
frankly, in abusive techniques, the kind of things that have 
been studied and reported on in the Schmidt-Furlow Report and 
the various studies that have been done.
    So I think that the people need to come up with rules, with 
the understanding that either these are going to be used by a 
small and an elite group of interrogators who are very well 
trained, very disciplined, and very good at what they do, or 
you're going to have a set of rules for a much larger set of 
people who don't have the experience, and you don't want to 
give them nearly as much flexibility because it will probably 
go bad at some point.
    So I think those are some things that we've learned, and I 
think that if we looked more at this in the context of a 
classified setting it may be that there's other factors that we 
could tease out that would help us to understand where the 
balance ought to be struck to determine what's the appropriate 
system for us going forward?
    I also think at some point we need to determine how we use 
intelligence interrogations in the context of prosecutions, 
because the problem arises that even in a rapport-building 
context it's hard to go in and advise somebody of their Miranda 
rights and hope to get useful information.
    So we need to sort of decide that we're either going to 
give up an admissible statement, in the case of an Article 3 
court, or we're going to use the military commissions because 
that doesn't require--these statements, we need to be able to 
prove that they're reliable, that they were--just under all 
circumstances use them, but we don't have to prove that there 
was a waiver of Miranda.
    So I think it's a very difficult issue, and I don't think 
that it would be easy to nail down, but I still believe there's 
a possibility of having a consensus that's clearer than may 
exist right now about the way we ought to do this.
    Chairman Rockefeller. That's helpful and thoughtful.
    I have other questions and I'll submit them; I won't give 
them now. I do want to call particular attention to the math 
teacher and to the judge. And I think you've been very 
fortunate to start out in life with that. And I think there's a 
lot of respect for you in this Committee. It's interesting when 
people say what they feel before they've even talked to you. 
That means they have a judgment, and the judgment's been on the 
circuit, and they hear their--people they hear that they 
respect, what they have to say. And I think you've come out 
very well on that.
    And with that in mind, under Committee Rule 5.5, a 
Committee vote on a confirmation shall not be sooner than 48 
hours, which is not in your favor the way things appear to be 
going on this bailout. After the Committee receives transcripts 
of the confirmation hearing, unless the time limit is waived by 
unanimous consent to provide us with the flexibility in 
proceeding with this nomination in the closing days of 
Congress, closing hours of Congress, whatever it might be, I 
ask unanimous consent that this time limit be waived. And since 
I'm the only person here, it is waived without objection.
    And this hearing is adjourned, and I thank you.
    [Whereupon, at 3:37 p.m., the Committee adjourned.]
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