[Senate Hearing 117-248]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 117-248
 
                   NOMINATION OF KENNETH L. WAINSTEIN
                         TO BE UNDER SECRETARY
                     FOR INTELLIGENCE AND ANALYSIS,
                  U.S. DEPARTMENT OF HOMELAND SECURITY

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

                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE

                                 OF THE

                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            JANUARY 12, 2022

                               __________

      Printed for the use of the Select Committee on Intelligence
      
      
      
      
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
     
      
      


        Available via the World Wide Web: http://www.govinfo.gov
        
        
        
        
        
                            ______                       


             U.S. GOVERNMENT PUBLISHING OFFICE 
46-624PDF           WASHINGTON : 2022        
        
        
                    SELECT COMMITTEE ON INTELLIGENCE

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

                   MARK R. WARNER, Virginia, Chairman
                  MARCO RUBIO, Florida, Vice Chairman

DIANNE FEINSTEIN, California         RICHARD BURR, North Carolina
RON WYDEN, Oregon                    JAMES E. RISCH, Idaho
MARTIN HEINRICH, New Mexico          SUSAN COLLINS, Maine
ANGUS KING, Maine                    ROY BLUNT, Missouri
MICHAEL F. BENNET, Colorado          TOM COTTON, Arkansas
BOB CASEY, Pennsylvania              JOHN CORNYN, Texas
KIRSTEN E. GILLIBRAND, New York      BEN SASSE, Nebraska

                  CHUCK SCHUMER, New York, Ex Officio
                 MITCH McCONNELL, Kentucky, Ex Officio
                  JACK REED, Rhode Island, Ex Officio
                   JAMES INHOFE, Oklahoma, Ex Officio
                              ----------                              
                     Michael Casey, Staff Director
                  Brian Walsh, Minority Staff Director
                   Kelsey Stroud Bailey, Chief Clerk
                   
                            C O N T E N T S

                              ----------                              

                            JANUARY 12, 2022

                           OPENING STATEMENTS

                                                                   Page

Warner, Hon. Mark R., a U.S. Senator from Virginia...............     1
Rubio, Hon. Marco, a U.S. Senator from Florida...................     2

                                WITNESS

Wainstein, Kenneth L., Nominee to be Under Secretary for 
  Intelligence and Analysis, U.S. Department of Homeland Security    22
    Prepared statement...........................................    25

                         SUPPLEMENTAL MATERIAL

Nomination material for Kenneth L. Wainstein
    Questionnaire for Completion by Presidential Nominees........    54
    Additional Prehearing Questions..............................    73
    Post-hearing Questions.......................................   108
    Letter of support from former U.S. Department of Justice 
      Officials dated January 11, 2022...........................     4
    Letter of support from Law Enforcement and Criminal Justice 
      Leaders dated January 11, 2022.............................    11
    Letter of support from bipartisan group of former Government 
      Officials and National Security Experts dated January 12, 
      2022.......................................................    14


                   NOMINATION OF KENNETH L. WAINSTEIN

                         TO BE UNDER SECRETARY

                     FOR INTELLIGENCE AND ANALYSIS,

                  U.S. DEPARTMENT OF HOMELAND SECURITY

                              ----------                              


                      WEDNESDAY, JANUARY 12, 2022

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:03 p.m., in 
Room SD-50 of the Dirksen Senate Office Building, Hon. Mark R. 
Warner (Chairman of the Committee) presiding.
    Present: Senators Warner, Rubio, Wyden, Heinrich, King (via 
WebEx), Casey (via WebEx), Gillibrand (via WebEx), Blunt, 
Cornyn, and Sasse.

 OPENING STATEMENT OF HON. MARK R. WARNER, A U.S. SENATOR FROM 
                            VIRGINIA

    Chairman Warner. I call this hearing to order.
    Welcome, Mr. Wainstein. It's great to see you. Welcome as 
well to Elizabeth and three of your daughters, Mackie, Cecily, 
and Natalie. Mackie had the good sense to be an intern for the 
Committee last summer and we are grateful for her service.
    I understand your daughter, Ellie, who's at Berkeley Law 
School, is watching remotely. And I would ask, Ken, that you 
would give us some evidentiary proof that she did actually tune 
in for this couple of hours. And hopefully, if she's watching 
now, she's appropriately embarrassed. So, we'll see in the 
aftermath.
    Before we begin formally, though, I do want to commend you 
on your excellent judgment as evidenced by both your attending 
UVA and living in the Commonwealth. I will question your choice 
of law school, though.
    But congratulations on your nomination to serve as the 
Under Secretary for Intelligence and Analysis, or I&A, at the 
Department of Homeland Security. This position sits at a 
critical juncture between the analytic work of the Intelligence 
Community and the information-sharing role of the Department of 
Homeland Security. If confirmed, your job will be to receive 
and analyze intelligence and law enforcement information 
relating to the homeland security and to ensure its prompt 
dissemination throughout the Department, as well as to your 
partners at the Federal, state, local, and tribal departments 
and agencies.
    You come to this hearing with a strong background as an 
intelligence and law enforcement professional who has 
faithfully served our country throughout your career as a 
Federal prosecutor, at the highest levels of the FBI, as 
General Counsel both from Chief of Staff to Director Mueller, 
as a U.S. Attorney for the District, and the first-ever 
Assistant Attorney General of the DOJ's National Security 
Division. And as Homeland Security Adviser to President Bush. I 
mean, you've had virtually every job across the justice and 
homeland security and intel world.
    So, the fact that after a decade in private practice, 
you've made the admirable decision to return to public service, 
I think it is important. And as I said in our conversation 
before this, your appointment comes at a pivotal moment and 
it's going to clearly have some challenges.
    While the I&A mission is defined, it continues to evolve 
and mature since its creation in the aftermath of 9/11. And I 
think for many of us on the Committee, there's a sense that the 
I&A, at least recently, has been a bit unfocused and stuck 
between its dual missions: national intelligence and 
departmental priorities.
    You have some Members, not just Senator Wyden, but me as 
well, who were very unhappy with the I&A's operations in 
Portland in 2020. And then we were disappointed that the I&A 
provided next to no warning about what was to come on January 
6th. We just had the one year anniversary of that date. And the 
recognition of what domestic violent extremists can do from 
either end of the political spectrum, I believe, needs to be a 
focus of some of your work.
    Obviously, at the same time, particularly if they're 
domestic violent extremists, the First Amendment protects 
Americans' right to free speech and nonviolent peaceful 
protest. And obviously, part of your role would be to defend 
the Constitution and those First Amendment rights. As head of 
DHS intelligence operations, you'll be squarely at the center 
of those two imperatives, both protecting our country and 
protecting the Constitution. And I'd like to hear today a 
little bit how you hope to navigate that important work while 
not politicizing I&A's activities.
    And obviously, when I submit for the record in a moment the 
kind of Who's Who of law enforcement and intelligence officials 
who are supporting your nomination from both political parties, 
I think that is a good endorsement that you're the right guy at 
the right time.
    Thank you for appearing before the Committee this 
afternoon. I look forward to your testimony.
    I now recognize the Vice Chairman.

  OPENING STATEMENT OF HON. MARCO RUBIO, A U.S. SENATOR FROM 
                            FLORIDA

    Vice Chairman Rubio. Thank you, Mr. Chairman.
    Thank you, Mr. Wainstein, for being here and for your 
willingness to serve as the Under Secretary for Intelligence 
and Analysis of the Department of Homeland Security. I think 
the Chairman has gone through your extensive public service 
record, the landscape.
    We have all the same challenges that we had when you last 
were in public service. And now we've got a few ones that have 
emerged that are relatively new in scale and scope, not the 
least of which, of course, is the threat to the United States 
from the Chinese Communist Party and, in particular, their 
plan--which is now, I think, abundantly clear--to work both 
through licit and illicit means to dominate global emerging 
technologies, to displace the United States and reshape the 
rules-based international order in ways that benefit them.
    So, I'll be very interested to hear your views on China and 
more importantly on how they would inform your approach to 
intelligence and analysis should you be confirmed.
    I also would hope to hear a little bit about how you'll 
ensure that DHS Intelligence and Analysis isn't being used or 
even reasonably perceived--which is in many ways as important--
perceived to be used by either party or whoever is in power for 
political purposes under the guise, for example, of pursuing 
domestic violent extremists. It's a very fine line.
    The worst times in the history of our intelligence agencies 
have been when they were either used or perceived to be used 
for purposes of political advantage. And this comes at a time 
in which there's a broader crisis of confidence in institutions 
in this country. But again, none, I think, has been more 
damaged over the last few years, rightly or wrongly in many 
cases, than the Intelligence Community.
    And so I think it's more important than ever that we do 
everything possible to ensure that there's both the perception 
and the reality that the IC operates beyond the bounds of 
partisan politics so that both policymakers--but ultimately the 
American public--can have confidence that their assessments are 
real. And so those are important points I hope you'll touch 
upon.
    With that, again, thank you for being here. We look forward 
to hearing your testimony and your answers to our questions.
    Chairman Warner. Thank you, Mr. Vice Chairman. I now ask 
unanimous consent that letters of support for the nominee be 
included in the record. I would simply point out, Ken has got 
letters from a kind of Who's Who across law enforcement and 
criminal justice leaders, and then his list of supporters from 
national security and intel. I won't go down the whole list by 
any means, but for my colleagues and for those who are tuning 
in, that includes Mike Chertoff, Keith Alexander, Jim Clapper, 
Saxby Chambliss, Mike Hayden, Bill Evanina, Mike McConnell, 
Mike Morell, Leon Panetta, Tom Ridge and a host of others. So, 
very impressive group and I ask these----
    Vice Chairman Rubio. Mr. Chairman, the Chambliss one 
concerns me deeply, but . . .
    Chairman Warner. I will note this.
    Vice Chairman Rubio. For the record, that's a joke.
    Chairman Warner. The only thing that would be worse is if 
Burr submitted a letter as well.
    Vice Chairman Rubio. Well, that would be a devastating 
death blow to the nomination.
    Chairman Warner. So, without objection, I'll submit those 
letters for the record.
    [Letters of support for the Witness follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
     
    Chairman Warner. Will the witness please stand and raise 
your right hand?
    [Witness stands and raises right hand.]
    Do you solemnly swear to give this Committee the truth, the 
full truth, and nothing but the truth, so help you God?
    Mr. Wainstein. I do.
    Chairman Warner. Please be seated.
    Before moving to your opening statement, I will ask you to 
answer five standard questions the Committee poses to each 
nominee who appears before us. They just require a simple yes 
or no for the record.
    First, do you agree to appear before the Committee here or 
in other venues when invited?
    Mr. Wainstein. Yes, I do.
    Chairman Warner. If confirmed, do you agree to send 
officials from your office to appear before the Committee and 
designated staff when invited?
    Mr. Wainstein. Yes.
    Chairman Warner. Do you agree to provide documents or any 
other materials requested by the Committee in order for it to 
carry out its oversight and legislative responsibilities?
    Mr. Wainstein. Yes.
    Chairman Warner. Will you ensure that your office and your 
staff provide such material to the Committee when requested?
    Mr. Wainstein. Yes.
    Chairman Warner. Do you agree to fully inform and fully 
brief to the fullest extent possible all Members of this 
Committee, rather than simply the Chairman and Vice Chairman?
    Mr. Wainstein. Yes.
    Chairman Warner. Thank you very much.
    And now we'll proceed with your opening statement after 
which I'll recognize Members for five minutes by seniority.

    STATEMENT OF KENNETH L. WAINSTEIN, NOMINEE TO BE UNDER 
  SECRETARY FOR INTELLIGENCE AND ANALYSIS, U.S. DEPARTMENT OF 
                       HOMELAND SECURITY

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

                         Supplemental Material
                         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]