[Senate Hearing 118-357]
[From the U.S. Government Publishing Office]
S. Hrg. 118-357
OPEN HEARING:
NOMINATION OF JOHN BRADFORD WIEGMANN
TO BE GENERAL COUNSEL OF THE OFFICE OF
THE DIRECTOR OF NATIONAL INTELLIGENCE
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HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
JUNE 5, 2024
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Printed for the use of the Select Committee on Intelligence
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Available via the World Wide Web: http://www.govinfo.gov
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U.S. GOVERNMENT PUBLISHING OFFICE
56-056 WASHINGTON : 2024
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SELECT COMMITTEE ON INTELLIGENCE
(Established by S. Res. 400, 94th Cong. 2d Sess.)
MARK R. WARNER, Virginia, Chairman
MARCO RUBIO, Florida, Vice Chairman
RON WYDEN, Oregon JAMES E. RISCH, Idaho
MARTIN HEINRICH, New Mexico SUSAN M. COLLINS, Maine
ANGUS S. KING, Jr., Maine TOM COTTON, Arkansas
MICHAEL F. BENNET, Colorado JOHN CORNYN, Texas
ROBERT P. CASEY, Jr., Pennsylvania JERRY MORAN, Kansas
KIRSTEN E. GILLIBRAND, New York JAMES LANKFORD, Oklahoma
JON OSSOFF, Georgia MIKE ROUNDS, South Dakota
MARK KELLY, Arizona
CHARLES E. SCHUMER, New York, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
JACK REED, Rhode Island, Ex Officio
ROGER F. WICKER, Mississippi, Ex Officio
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William Wu, Staff Director
Brian Walsh, Minority Staff Director
Kelsey Stroud Bailey, Chief Clerk
C O N T E N T S
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JUNE 5, 2024
OPENING STATEMENTS
Page
Mark R. Warner, U.S. Senator from Virginia....................... 1
Marco Rubio, U.S. Senator from Florida........................... 8
WITNESS
John Bradford Wiegmann, Nominee to be General Counsel, Office of
the Director of National Intelligence.......................... 10
Prepared Statement........................................... 12
SUPPLEMENTAL MATERIAL
Letter in Support of Nominee Submitted by Former U.S. Government
Officials...................................................... 4
Questionnaire for Completion by Presidential Nominees............ 25
Additional Pre-Hearing Questions................................. 41
Post-Hearing Questions........................................... 70
OPEN HEARING: ON THE NOMINATION OF JOHN BRADFORD WIEGMANN TO BE GENERAL
COUNSEL OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
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WEDNESDAY, JUNE 5, 2024
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:31 p.m., in
Room SH-216 in the Hart Senate Office Building, Hon. Mark R.
Warner, Chairman of the Committee, presiding.
Present: Senators Warner (presiding), Rubio, Wyden,
Heinrich, King, Casey, Gillibrand, Ossoff, Kelly, Risch,
Cornyn.
OPENING STATEMENT OF HON. MARK R. WARNER, A U.S. SENATOR FROM
VIRGINIA
Chairman Warner. Good afternoon, I want to call this
unclassified nomination hearing to order.
I welcome John Wiegmann, President Biden's nominee to be
the general counsel for the Office of the Director of National
Intelligence. And I want to welcome, too, your family. I had a
chance to meet your wife, Theresa, along with your kids,
Nicole, and Nat--you look intensely focused already--and your
mother, Carol. I'd like to extend my appreciation to each of
you because as somebody who's been in public service, I know
the family has to make sacrifices as well. And I'm grateful
that you're all here showing support for your son, husband, and
dad. I have to tell you, I was going to be very supportive, but
I was told that you actually part-time write the crossword
puzzles for the New York Times.
Mr. Wiegmann. That's right, Senator.
Chairman Warner. As somebody who's never been able to
finish one of them, I won't hold that against you in this
nomination hearing.
John Wiegmann. Well, sadly if I get this job, I have to
give up that career because of ethics rules.
Chairman Warner. The one good thing though is: No more
crosswords for me.
One thing that will balance that out--I know, clearly a
conflict--that you were born and grew up in Richmond.
Mr. Wiegmann. That's right. I'm a Richmond native.
Chairman Warner. Your mom reminded me that she actually
worked for a while in the General Assembly when I had a
previous job.
Mr. Wiegmann. That's right.
Chairman Warner. That will more than outdo the crossword
puzzle piece.
I want to congratulate you on your nomination. You
obviously have a distinguished record as a nonpartisan career
servant in the field of national security. While you currently
serve as senior advisor at the ODNI, I know you've also served
as principal deputy assistant attorney general at DOJ, as
assistant legal adviser at the Department of State, as deputy
legal adviser at the National Security Council under President
Bush, and as a law clerk for Judge Patrick Higginbotham of the
Fifth Circuit.
I highlight all this because the issues with which you will
wrestle--intelligence, national security, and the law--must
remain free from partisan politics. You and thousands of
dedicated public servants, both in and out of the Intelligence
Community, have chosen to dedicate yourselves to work
tirelessly on the behalf of the people of the United States.
For that, I thank you and the countless other men and women
who give the best of themselves as public service.
As you know, the general counsel of the ODNI is the
Intelligence Community's top lawyer. This position carries with
it the responsibility of making some tough calls, especially in
today's increasingly complicated security environment. One
perfect example is the debate that many of us on this dais had
recently during the 702 reauthorization about how we can
continue to preserve this critical tool for America's ability
to spy on foreign adversaries, while still preserving America's
civil liberties and in the field of evolving telecommunications
technologies.
At the end of the day, our intelligence professionals will
often turn to you for guidance on what they can do and more
importantly what they cannot do. To do this, you will need your
judgment and ethical compass to make the right decisions, even
in the face of political policy pressure. In recent years, we
have seen patriotic individuals come forward as whistleblowers
who have then been sidelined, fired, or even retaliated
against.
I'd like to hear your thoughts on how you will work to
ensure that such IC whistleblowers are going to be protected
regardless of who's in the White House. More broadly, we have
seen what happens when the expertise and judgment of America's
civil servants and intelligence professionals are discounted,
belittled, and outright ignored. When honest analysis is not
welcomed by policymakers regardless of party, the result is
often bad policy based on faulty analysis. I'd also like to
hear your thoughts on how we will work to continue to install
the utmost level of integrity in the IC workforce and ensure
that they continue to be able to speak truth to power.
No matter, again, who's in the White House, or for that
matter, who's in the DNI seat, should you be confirmed,
fulfilling this Committee's oversight obligations will require
transparency and responsiveness. And we'll expect you to
constantly deal with us in an honest, complete, and a timely
fashion. We also, though, encourage you to come to the
Committee when partnership is needed. You'll always count on us
to hear you out, treat you fairly--and usually without
partisanship you may see elsewhere. Now after the Vice Chairman
and I've given my opening statements, Members will be given
five minutes in order of seniority. In open hearings, go by
seniority rather than order of arrival.
And before I turn it over to the Vice Chairman, I would
like to submit for the record a letter of endorsement from a
whole series of intelligence and legal professionals from the
Bush, Obama, Trump, etc., Administrations, for the record, in
support of Mr. Wiegmann.
Without objection, so ordered.
With that I'll turn to the Vice Chairman.
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OPENING STATEMENT OF HON. MARCO RUBIO, A U.S. SENATOR FROM
FLORIDA
Vice Chairman Rubio. Thank you, Mr. Chairman. Thank you,
Mr. Wiegmann, to you, to your family. Congratulations on your
nomination. Thank you for your willingness to continue to
serve, since you've been serving in various capacities for a
number of years. I think it's working. The work of intelligence
is probably unique in all of our government.
It is the one place where the American people basically say
and admit our government needs to collect secrets and keep them
secret, not so much because they don't want us to know, but
because if they divulge those secrets they would divulge how
they acquired it, they would divulge who gave it to them, and
they would not be able to collect anything in the future.
And it's an extraordinary power, given the technical
advances today. We don't just operate in the realm of human
intelligence, we operate in the realm of technical intelligence
and the analysis of all kinds of things that are out there in
the open and the media. Suffice it to say the power that we now
have deployed in the pursuit of foreign secrets that apply to
our national security is an extraordinary power.
And the only way that that bargain with the American people
works is if they trust that that power will be used in three
ways. The first, in a way that the information is as accurate
as possible. Sometimes it's analysis, and analysis can be
wrong. But there's a difference between analysis that's wrong
because the analysis just made a wrong guess, an educated
guess. And the other trust they have to have, and that is they
have to have the trust that it's not being manipulated. That
someone is not going in and saying: I am going to either
analyze intelligence, or I'm going to manipulate the
intelligence that we pay attention to, in order to support a
policy outcome that a policymaker may want or that may be
popular. And the third trust is that it's not being weaponized.
That it's not being used as a tool to target, for example,
domestic political opponents.
You made reference, I believe--you made reference certainly
in your written comments--at the opening about the Church
Committee, which is ultimately what gave rise to the existence
of this very Committee and that--and it unraveled and disclosed
and revealed and uncovered all kinds of operations within the
Intelligence Community that almost destroyed our intelligence
agencies in this country. And part of that was that there were
Administrations in both political parties that had used our
intelligence agencies to conduct either domestic political
activities or to interfere in certain domestic political
activities. So, suffice it to say that this has been going on
for a while, but it was the reason why this Committee was
created, hence the role of general counsel, which should be--
especially now that the DNI didn't exist back in the day--it
acts as the conductor, the DNI that is basically the conductor
of the orchestra and it's a tough orchestra. Some of the
instruments in that orchestra are bigger and more powerful than
others, for example, the CIA. But it's an incredibly important
role in that regard. And I also think, and I mentioned this to
you in our meeting, although I'm not sure it's within your
purview, one of the things that most disturbs me is when I go
out and people say--and it bothers me because of what it
implies to the trusts that I raised--people will say to me: You
know, the CIA or the intelligence agencies interfered in this
or did that. And I remind people that often most of the time
what they're referring to are former officials who have left
the service of our country and then used that title as
credibility when they make statements that may have political
purposes, and in some cases do have political purposes behind
them. There's not much you can do about it, but it has eroded
trust in our intelligence agencies. And I fear what that means,
because we do face a lot of threats in this country--to our
country, to our national security. And the day cannot come--I
hope the day never comes--where, when a real stark warning is
made about some threat to our country, that people don't just
dismiss it because they don't believe who it is that's telling
them.
And so, that is why it's so critical that above everything
else, people can always have--we can preserve and build the
confidence that people can have in our agencies. That the work
they're doing is about our national security, not a tool for
internal, politics, not as a way to spy and abuse on Americans.
It's one of the resistances we have to the reauthorization of
702, as people are convinced it's being used to target
Americans and not because they think the information that's
being provided to policymakers or to the public is selectively
chosen to further one narrative or one political viewpoint
versus another.
And so, I do think that to the extent, as a general
counsel, you will be in a role to sort of see how agencies
conduct their activities, what they're allowed to do, what
they're permitted to do under the law, that will also keep in
mind not just what the law allows, but what the spirit of that
law should be about and that you will, as I know the Chairman
will ask you the routine questions we always do, but that
you'll always be cooperative and responsive with this
Committee. Because we and our House counterparts are literally
the only eyes and ears the American public has between them and
the secrets our government holds. And for us to be able to do
our job effectively and with confidence, we need to have that
level of cooperation.
So, thank you for your willingness to serve and we look
forward to your testimony and your answers.
Chairman Warner. Thank you, Mr. Vice Chairman.
And now will the witness please stand and raise his 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. Wiegmann. I do.
Chairman Warner. Please be seated.
Before we move to your opening statement, the Vice Chairman
made reference to this, we've got five standard questions. They
are routine, but they are critically important for the record
and in terms of the commitment you will make in your answers.
They just require a simple yes or no. And again, for the
record.
First, do you agree to appear before the Committee here or
in other venues when invited?
Mr. Wiegmann. Yes.
Mark Warner. Number two, if confirmed, do you agree to send
officials from your office to appear before the Committee and
designated staff when invited?
Mr. Wiegmann. Yes.
Chairman Warner. Do you agree to provide documents, or any
other materials requested by the Committee for it to carry out
its oversight and legislative responsibilities?
Mr. Wiegmann. Yes.
Chairman Warner. Will you ensure that your office and your
staff provide such materials to the Committee when requested?
Mr. Wiegmann. Yes.
Chairman Warner. Do you agree to inform and fully brief to
the fullest extent possible all Members of this Committee of
intelligence activities and covert actions, rather than only
the Chairman and the Vice Chairman?
Mr. Wiegmann. Yes.
Chairman Warner. Thank you very much. We'll now proceed to
your opening statement, which again, I'll then recognize
Members by seniority for up to five minutes each.
Mr. Wiegmann.
STATEMENT OF JOHN BRADFORD WIEGMANN, NOMINEE TO BE GENERAL
COUNSEL, OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Mr. Wiegmann. Thank you. Chairman Warner, Vice Chairman
Rubio, Members of the Committee, thank you for having this
hearing today to consider my nomination. I want to thank
President Biden and Director Haines for giving me this
opportunity, as well. I'd also like to thank my family, who are
here with me today. My mom Carol, my wife Theresa, my kids
Nicole and Nat, whose love and support means so much to me. I'd
also like to recognize my dad, who we all miss very much, but
who's with us in spirit.
So exactly 40 years ago this week I was graduating from
high school. It was 1984. And so, like thousands of other
students that year who were perhaps lacking in imagination, I
had written a college application essay on Orwell's famous
novel. I don't remember much about that essay, but it was
something about the benefits and risks of modern technology and
what the prospects were for an authoritarian surveillance
state.
I was just 17, and so I expressed great optimism that the
human spirit would prevent Orwell's vision from being realized.
Now as fate would have it about a dozen years later, I wound up
becoming a national security lawyer for the federal government.
And over the last 30 years, I've worked at the Pentagon, on the
NSC staff at the Department of State, and the National Security
Division at the Department of Justice.
Many of the issues I've worked on have to do in some way
with that same subject as that essay: technology and its
benefits and risks whether in the hands of our government, the
private sector, adversary nations, or criminal groups. Figuring
out how the law should address issues at the intersection of
technology and national security is a huge challenge and one
that's important for the ODNI general counsel and for this
Committee.
Since 1984, technological advances have catapulted forward
at an incredible speed. They've raised many tough but by now
familiar issues for national security policy and law. How
should the IC protect privacy and civil liberties regarding
vast quantities of data that are now commercially available to
anyone? And how do we prevent foreign adversaries from
exploiting this same data of U.S. persons? How should the law
address the challenges that encryption poses for law
enforcement and intelligence, while preserving privacy and
cybersecurity? And how should the law regulate the government's
use of artificial intelligence in ways that support national
security while ensuring it will not be misused? And how do we
defend against our adversaries' use of AI? These questions are
just the tip of the iceberg. Gene editing, quantum computing,
autonomous, drones, synthetic media, many other advances also
present novel questions. So, in wrestling with these issues,
one of the challenges for lawyers is that the law often doesn't
keep pace with the changing technological and threat landscape.
Traditional sources of law often don't provide clear
answers. So, national security law in this area is messy. The
policy implications can be major. No one wants a government
that operates like Big Brother, and you don't have to read
dystopian novels to be worried about this risk. As the Chairman
and Vice Chairman alluded to, you can just read the Church
Committee report.
At the same time, we all want a government that's effective
at protecting us from an array of very serious threats, which
this Committee knows very well. Our commitment to liberty will
be hollow if we can't rise to meet the challenges posed by
authoritarian regimes like China and Russia, and terrorists and
criminals, and others bent on wreaking havoc around the world.
So, national security law plays a major role in reconciling
these objectives. It both empowers us and constrains us as we
make decisions that affect the security and freedoms of the
American people. In my career, I've been privileged to work
with hundreds of dedicated lawyers and policymakers in the
Executive Branch to help our government both follow the law and
adapt it to meet new challenges.
If I'm confirmed, I hope to help the Intelligence Community
continue to perform its vital mission in a way that is fully
consistent with our Constitution and laws as well as our
values.
Unfortunately, I'm not 17 anymore, but I'm still optimistic
that the human spirit and, critically, our legal institutions
will allow us to continue to thrive as a society that's both
free and secure. I also strongly believe in the value of public
service. Promoting greater public confidence in our law
enforcement and intelligence agencies is a crucial objective
today, when such confidence appears to be eroding.
If I'm confirmed, I look forward to working closely with
this Committee, which has a uniquely important role to play in
overseeing the Executive Branch and thus helping us promote
that confidence.
Thanks again for having this hearing, and I'm happy to
answer your questions.
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Chairman Warner. Thank you very much, Mr. Wiegmann.
And again, for Members and staff, if you want to submit
questions for the record after the hearing, please do so by
5:00 p.m. on Friday, June 7.
Let me get at it. Many of us on this Committee have worked
on a topic that candidly, before I got on the Committee, I
didn't think I'd be spending as much time on which is
classification reform. In your response to the questions the
Committee put forward, you pointed out, I think, some of the
harms from over-classification. And what that does, as Senator
Rubio mentioned, we lose the public trust. The value of not
only our Committee but frankly of the IC's work is greatly
undermined.
You acknowledge that a White House-led process that is
currently underway is one way. One of the things we have
argued--some of us have argued--that the rules governing
classification and declassification must be also dealt with by
Congress, although at the end of the day, the President does
have the ability to do some of this on executive order.
Do you believe that Congress has a role in establishing the
rules that govern classification and declassification of
information?
Mr. Wiegmann. Thank you for that question. So, as you
alluded to, I know the DNI and I both share the concern about
over-classification; and as you said, there is a process
underway to work on, to try to address that problem. But it's
been a longstanding problem though, an intractable problem for
as long as I've been in government.
You can just look back at the old--there's a law passed in
2010. I know about the Over-Classification Act that Congress
passed at that time. And it goes back farther than that. So,
it's a huge challenge. I do think that historically, as you
know, the basis--the underlying legal basis for classification
has laid with the Executive: the series of Executive Orders
that successive Presidents have issued governing
classification. And that has a Constitutional basis underlying
it because of the President's role as Commander-in-Chief and
Chief Executive. But I don't think that that means that
Congress has no role. There are a number of places where
Congress has legislated in this area, including the Atomic
Energy Act including FOIA, for example, where exemption B(1)
talks about how and when the government can withhold
information; and that's an area that Congress has spoken to on
classification.
There's a number of other laws where Congress has directed
specific declassification reviews. Congress created the Public
Interest Declassification Board. So, I think there's a lot of
examples in place for Congress to assist the executive in
dealing with the over-classification problem.
Chairman Warner. I would just hope we took another crack at
this in the Intel Authorization Bill of 2025 that I think,
again, had huge broad bipartisan support.
Before you formally become a Senate-confirmed member of the
Executive Branch, I'd like to have your commitment to continue
to work with the Committee on this legislation, rather than
simply when confirmed opposed for separation of powers reasons.
Mr. Wiegmann. Absolutely, we'll work with you on it.
Chairman Warner. Okay, great. Thank you.
Next question. One of the things the Committee has really
taken on, both in a closed hearing and we'll shortly be doing
an open hearing, the question of foreign malign influence. I
believe very strongly that it is appropriate and responsible to
have communications between the intel community and the social
media platforms on a voluntary basis focused on foreign malign
influence--not on anybody's ability to limit First Amendment
rights. We're talking about foreign interference. This
Committee has spent an awful lot of time on that.
What are your views on the appropriate role that government
officials should play in engaging voluntarily with social media
platforms and other technology companies to make sure that we
are able to monitor and, if need be, report and inform the
American public about foreign malign influence?
Mr. Wiegmann. I think this is an area that it's important
for the government to act. The key is what you had just said,
Senator Warner, which is that we can't coerce companies to
remove First Amendment protected content. We can't be in the
position of censoring First Amendment protected speech online.
But that doesn't mean that we can't engage with the companies
when we see foreign governments or others engaging in malign
conduct on social media platforms. And so, I know the FBI has a
program to be able to flag accounts that we think are used by
our adversary governments to engage in foreign malign influence
activities, as long as they're making clear to the company that
what action, if any, they choose to take with respect to those
accounts is strictly voluntary and it's their choice as to
whether to do anything about it. Then, I think that is an
important dialog to have between the Executive Branch and the
companies. And it's one that we've engaged in for a number of
years, not only in the foreign malign influence context, but
also for terrorism and other ills as well.
So, yes, I think it's an important activity.
Chairman Warner. My last question is this. You know we just
had a spirited debate about section 702 reauthorization. I was
proud to have it reauthorized and I appreciate Committee
Members who support us, but also Committee Members who opposed
who raised some of the past problems we've had with compliance.
We're only two months in, but since we only got a two year
reauthorization, it's not that far in the future that we will
have to go through the reauthorization process again.
One of the reasons I think there was pushback was we didn't
do as good a job after the prior reauthorization on making sure
of compliance. Do you commit that if confirmed that you will
make 702 compliance one of your top priorities?
Mr. Wiegmann. Absolutely, I mean, we're viewing this as,
some of us joking in the Executive Branch about continuous
reauthorization. In other words, because we don't want to take
apart the good work that we've done over the last couple of
years, both in persuading people of the value of 702
collection, but also in working to ensure that we're on the top
of our game for compliance purposes.
And so, we're going to keep the mechanisms I have in place
to keep doing that and want to keep working with the Committee
and to report to you all as we go along about how it's going.
Chairman Warner. Well, thank you, Mr. Wiegmann. Thank you
for your service and I look forward to hearing the rest of your
answers.
Mr. Wiegmann. Thank you.
Chairman Warner. Senator Rubio.
Vice Chairman Rubio. You were in the DOJ's National
Security Division when the China Initiative was dissolved in
2022.
Mr. Wiegmann. Yes, Sir.
Vice Chairman Rubio. And I think you indicated that you
were not involved in the decision to terminate the initiative,
but you likely participated in discussions explaining the
rationale for the decision. What was the rationale?
Mr. Wiegmann. The rationale was that essentially the
problems that China posed were not unique to China. They were--
the malign activities that China engages in are also engaged in
by Iran, Russia, in terms of the theft of technology, the
malicious cyber activity, the transnational repression. Those
are all activities that a number of nation-states engage in.
And so, rather than have something focused only on China, we
wanted to broaden the focus to a number of different countries.
But it was intended in no way--no way--to signal a lack of
resolve towards continuing to pursue investigations of
malicious Chinese activity. And I think if you look at the FBI
and DOJ's record since that time, they've continued to pursue
bad actors in China with the same zeal.
Vice Chairman Rubio. So, the rationale was that all the
things that China does that are a threat to national interests
and national security of the United States are also activities
undertaken by other adversaries?
Mr. Wiegmann. That's right.
Vice Chairman Rubio. And therefore, we should just have a
big bucket that doesn't distinguish by country, but by
activity?
Mr. Wiegmann. That's right. We generally speaking haven't
most often had programs focused only on specific countries.
Vice Chairman Rubio. Do you recall in those conversations--
and you don't have to tell us who it was--anybody mentioning
that the scale, scope of Chinese efforts on multiple fronts
dwarfs that of any other actor? For example, the commercial
espionage conducted by the Chinese has no precedent among any
other nation-state power.
Mr. Wiegmann. I don't disagree with that. I think China is
the number one CI threat. Absolutely.
Vice Chairman Rubio. And certainly, their ability to use
supposedly private companies to sort of act as cutouts for the
government of China, be they running a port or providing
telecommunication services. I mean, there is no Russian Huawei,
there is no Iranian ZTE.
Do you recall anybody making those points in that
discussion that the Chinese threat is quite unique in both its
scale and reach?
Mr. Wiegmann. I don't remember that. I mean, I do know
that, for example Russia, we have had a number of cases.
There's a new task force set up since the China Initiative. The
name was changed about disruptive technology theft, and
certainly there have been a lot of cases of Russia stealing
technology--military technology to advance its efforts in
Ukraine. So, I think there are some of other countries, but I
don't disagree with you that China is number one.
Vice Chairman Rubio. All right the other question I had is
you've been on detail to the general counsel's office to ODNI
since April, right? And you're also nominated to this position
on the 18th. So, when did you start the detail position?
Mr. Wiegmann. April 1st.
Vice Chairman Rubio. Okay. I assume when you went over, you
had some inkling that you would be nominated to this post. It
almost sounds like some transitionary phase. What would you,
and I think just reading your biography, but I just want to
hear it from you, it would be accurate to characterize all of
your prior positions in government including in the Department
of Justice's career positions rather than political positions?
Mr. Wiegmann. That's right.
Vice Chairman Rubio. Okay. So, your current title and
detail to a senior adviser in the office of the general
counsel, so what exactly--not a trick question or hostile one--
what exactly does the senior advisor--will you have a
replacement, will the new----
Mr. Wiegmann. No. This is just--. There's not much to that
title. I'm just doing essentially special projects as assigned
by the general counsel and the DNI on different issues.
Vice Chairman Rubio. Are there any of those--just give us a
general understanding of what work you do.
Mr. Wiegmann. What kind of things I'm doing? So, for
example, as Senator Warner referred to, you all just gave us
the 702 reauthorization. There's a lot of work that needs to be
done to implement that, including some of the kind of new
operational authorities that we have. That's one of the
projects that I'm working on.
Another is the DNI has initiative focused on kind of
harmonizing the pre-publication review process, if you know
what that is. The process whereby former government officials
have to come in and if they're going to write something, write
an article or give a speech, or whatever they have--to have it
reviewed for classification. And the different agencies have
different standards and so forth. And so, there's an effort to
come up with a new directive to govern that.
So, those are examples of the types of things that I've
been working on.
Vice Chairman Rubio. Okay, all right. Thank you.
Chairman Warner. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
And Mr. Wiegmann, I enjoyed our conversation a couple of
days ago. It was very helpful, and I want to pick up, and I
think we can do it quickly, on some of the questions I asked
you with respect to gaps in FISA protection for law-abiding
Americans--that's my concern. So, current FISA law prohibits
the Intelligence Community from collecting GPS information on
Americans overseas without a warrant. Is there any reason why
that protection should not be extended to Americans in the
United States?
Mr. Wiegmann. No, Senator. As we talked about when we
spoke, if, for example, under 704 of FISA, if that authority
requires a warrant under 704 to obtain geolocation data for an
American abroad, then if the government is also trying to
compel a company to produce geolocation information in the
United States and that should also require a warrant in my
view.
Senator Wyden. So, following up on that, current FISA law
would require a warrant to search an American's apartment
overseas. But if that American visits the United States, it's
not clear that those provisions apply. Is there any reason why
a warrant shouldn't be required to search that American's
apartment overseas regardless of where that American is at that
moment?
Mr. Wiegmann. I agree with that as well. That is a gap I
think in the law. We sometimes refer to that as the vacation
home gap. But yes, I don't have any objection in principle to
requiring a warrant to search an American's home overseas for
foreign intelligence purposes.
Senator Wyden. We're making good progress. Let me now go to
this question of secret law and my colleagues here have heard
me describe this on a number of occasions. But, you know, I
feel very strongly that sources and methods have got to be
secret and that has got to be a sacrosanct principle in the
Intelligence Community.
I think the laws have got to be public, and that means
basically someone ought to be able to sit in a coffee shop
somewhere and read a public law because that's what our system
depends on, is people having knowledge of public laws.
And as you know, we had something that we Jewish people
call a kerfuffle with respect to some of the definitions in
702. Because on its face, it could allow the government to
force just about any American with access to a Wi-Fi or a cable
to participate in warrantless surveillance. That to me is what
it said on its face. Now to me, this isn't how legislation
should be written, and it adds to distrust. So, my question
here is, would you agree that the public has a significant
interest in knowing the boundaries, and I choose that word
specifically, of these authorities?
Mr. Wiegmann. I couldn't agree with you more. I think in a
democracy it's important that our laws be transparent and
public to the maximum extent possible. In the intelligence
area, as you know, that can pose challenges because the
activities are secret. And so, the legal basis for those
activities, we want that to be public to the maximum extent
that we can. But there can be challenges in doing so, while
to--in order to protect the activities that we need to keep
secret.
So, I think with respect to the specific issue that you're
referring to, which is the revision in the most recent reform
to the definition of electronic communications service provider
I think we've tried to do, working with the Committee and
working with the Chairman, is to make as much information as
possible public about what that new definition is intended to
mean.
It's a narrow change in the law to really address a change
in how the communications architecture has evolved since ECPA
was adopted in the 90s. And it was in response to a very
specific FISA Court decision that said that a particular type
of company was beyond the jurisdiction of the law. And so,
we've done as much as possible, including working with the
Chairman, to make clear that it was intended to be a very
narrow technical fix and my understanding is that in the draft
Intel Authorization Act, we're going to go another step farther
to try to link that definition to that court decision in a way
that will try to provide as much as we can possibly while
protecting the source of methods, as you said, Senator, that we
need to protect.
Senator Wyden. Let me get to my last question.
Mr. Wiegmann. Sure.
Senator Wyden. Because I work closely with the Chairman and
the Vice Chairman. And I think we made some progress on the
definition.
Mr. Wiegmann. Yes.
Senator Wyden. But this is still, as you and I talked, this
is a balancing act. So, here's my question. Under the Executive
Order that controls classification, the DNI is supposed to
weigh whatever sensitivities might exist against the public
interest in the information. Now, if you're confirmed, you're
going to be advising the DNI. I would like to know whether you
believe that when it comes to public law, those specific words,
the public has got a strong interest in knowing what it means?
Mr. Wiegmann. I absolutely think the public has a strong
interest. I know the DNI also believes in transparency, so I
certainly would advise her on that. But it can be challenging
sometimes given the interest in protecting our equities.
Senator Wyden. There's no question it's going to be
challenging, that's why I thought you were a smart guy at the
beginning, and I appreciated the questions. I just want to have
somebody in that room who's going to understand the difference
and I think you do. And this is going to be an ongoing kind of
process between, you know, sources and methods--got to be
secret--and public law so people can sit in a coffee shop and
figure out what in the world is going on back here.
Mr. Wiegmann. I get it. I understand.
Senator Wyden. Thank you. Thanks, Mr. Chairman.
Chairman Warner. Thank you, Senator Wyden. Senator Risch
agreed to pass on his time and move to Senator Cornyn.
Senator Cornyn. Congratulations, Mr. Wiegmann, on your
nomination.
Mr. Wiegmann. Thank you.
Senator Cornyn. And thank you for your service to our
Nation in various capacities before this.
I want to talk to you a little bit about 702 since it's
come up and that you're intimately familiar with it as well as
the operation of the Foreign Intelligence Surveillance Court.
Unlike a traditional adversarial process, a criminal trial, for
example, where you have a prosecution and defense, the Foreign
Intelligence Surveillance Court largely operates on an ex parte
basis, correct?
Mr. Wiegmann. That's right.
Senator Cornyn. And what does that mean?
Mr. Wiegmann. That means that the government is there, but
there's no party on the other side.
Senator Cornyn. And that means that the target of a, let's
say, warrant, somebody overseas or other interested party whose
rights may be involved, they're not invited to present an
argument to the court that's decided in a what I would call
traditional adversarial process, right?
Mr. Wiegmann. That's right, although I would point out that
that's the same in the criminal context if you were doing a
Title 3 wiretap or a search warrant. The other side doesn't
know about that in that context either.
Senator Cornyn. Thank you for pointing that out. Yes, this
is standard operating procedure in the criminal courts where
the government seeks a search warrant or a wiretap or something
of that nature. Of course those can be reviewed on appeal----
Mr. Wiegmann. That's right.
Senator Cornyn [continuing]. In the event of a conviction.
Mr. Wiegmann. Right.
Senator Cornyn. But, as you know, the current law on the
amicus curiae, friend of the court, allows the Foreign
Intelligence Surveillance Court to consult with an amicus on
novel questions of law. That is a process where the court
initiates it, asks the amicus, would you care to weigh in to
help us make a better decision? Is that what you understand to
be the current state of the law?
Mr. Wiegmann. Yes, that's right.
Senator Cornyn. And you're aware of the fact that there
were discussions leading up to the last authorization. And in
fact, those discussions continue about a, let's say, a more
amicus role that is much more of the nature of an adversary as
opposed to just a friend of the court. Are you familiar with
that?
Mr. Wiegmann. Yes, I am.
Senator Cornyn. For example, in the provisions that were
not included, but are now included in the Intelligence
Authorization Act, which is a public document, would allow the
amicus to actually appeal, from some of the decisions of the
Foreign Intelligence Surveillance Court. Is that right?
Mr. Wiegmann. I know that that's been proposed before.
Senator Cornyn. And, well, I would invite you to look at
what passed out of the Committee on the Intelligence
Authorization Act. I think you'll find that some of the
proposals that were not included were now included, which
provide for an amicus role, which basically makes them a party
to litigation and enables them to appeal, to an appellate
court, the decisions of the Foreign Intelligence Surveillance
Court.
But let me just ask you about the practical operation.
Frequently in an intelligence operation, is there a need for
speed?
Mr. Wiegmann. Yes, Sir.
Senator Cornyn. And would the prospect of a protracted
litigation, including an appeal to an appellate court, of
decisions made by the Foreign Intelligence Surveillance Court
that ordinarily would be made on an ex parte basis to allow
those appeals to proceed and perhaps slow down the collection
of national security intelligence. Is that a concern of yours?
Mr. Wiegmann. Yes, it would be, Sir.
Senator Cornyn. So, years ago, General Hayden, who was head
of the National Security Agency and, of course, CIA Director,
wrote a book, which I enjoyed quite a bit. The title of it was
called ``Playing to the Edge.'' And of course, it's your job to
say what the edge is, to the people that you work for. But
unfortunately, we've also seen a political consequence where
intelligence officials play to the edge that is based on sound
legal advice given to them, by people like you and others in
the national security interest, to try to get all the
information they can legally get under the current authorities.
And then, our leaders held to account, or I would say, hung
out to dry by the political branches, when maybe it turns
unpopular later on. Are you familiar with some of what I'm
referring to?
Mr. Wiegmann. Yes, Sir, unfortunately.
Senator Cornyn. And so, what's your view of playing to the
edge?
Mr. Wiegmann. So----
Senator Cornyn. The appropriate way to play to the edge as
a chief counsel for the director of National Intelligence.
Mr. Wiegmann. So, look, I see my job as a lawyer is
providing my best view of the law. Sometimes there are gray
areas. And when you can make legal arguments that you think are
supportable, that's something that becomes a policy choice
essentially for the client to make. If you have a good and
defensible legal argument that people may disagree with, and if
national security requires it, then that may be something that
you--that they can have discretion to do so. But there are
other cases where it's like there's really not an argument
here.
And it might advance your interest, you may have to do it,
or you may have to come back to this Committee or Congress to
get additional authorities or something different. So, that's
kind of how I see my job as making clear when the law draws a
red line and says that's just not something you could do and
when you have space to make a decision.
Senator Cornyn. Thank you.
Chairman Warner. Senator King.
Senator King. I want to follow up on that exact line of
questioning. My note says: is your role as a facilitator or a
watchdog? In other words, lawyers in their private practice
want to tell their clients how to legally do what they want to
do.
In this situation, it seems to me there's a little bit of a
difference because you're in a secret agency and you're one of
the only people watching whether your policy folks are
following the law. Ruminate on that distinction for me.
Mr. Wiegmann. So, I guess you could probably use a little
bit of both of those terms. It's a little bit of both. And I
have that in my current job. You're both an oversight official
to make sure that they're following the law and doing what they
need to do, but you're also trying to work creatively with your
client to come up with solutions to the very real world
problems that they have and the threats that we're trying to
confront.
Senator King. The question is whether working creatively
with your client facilitates illegal action? The classic
example that this Committee dealt with some years ago was the
torture----
Mr. Wiegmann. Yeah.
Senator King. Which was justified by, you'll pardon the
expression, some pretty tortured legal opinions.
Mr. Wiegmann. Yeah.
Senator King. Talk to me about that experience.
Mr. Wiegmann. So, that's when your judgment comes in. You
don't want to distort the law beyond all recognition. You have
to follow the law. In my experience, you want to collaborate
with other lawyers. One of my concerns back then was that those
decisions were made by a very small number of lawyers kind of
in secret. That wouldn't be my approach in general.
We have groups of lawyers that get together. We have
something led by the National Security Council legal adviser.
It's called The Lawyers Group. Includes lawyers from ODNI, from
the Office of Legal Counsel at DOJ, the Chairman's Legal, also
the military lawyers, the State Department lawyers. You know,
we get together to talk about hard issues and national security
law. And usually these are some of the most experienced lawyers
in the Executive Branch. And we come to kind of good
conclusions about what the law is and what arguments we can
make. And I feel like that's an effective process. But the key
is that it's collaborative, and you have a bunch of lawyers
bringing the best minds together on an issue.
Senator King. Well, you're going into one of the most
important positions in our government, and that is the legal
adviser to the Director of National intelligence. And the
question is, are you willing to say no to the Director of
National Intelligence or the President of the United States if
they're intent on a policy that you believe is in conflict with
the law?
Mr. Wiegmann. Absolutely.
Senator King. That's the right answer. Thank you. Thank
you, Mr. Chairman.
Chairman Warner. Senator Kelly.
Senator Kelly. Thank you, Mr. Chairman.
Mr. Wiegmann, congrats again on your nomination. We talked
a little bit about technology issues. And it's clear to me that
advancements in tech, you know, drive our national security,
including our intelligence capabilities from the rapid
advancement of AI and facial recognition and space-based
systems.
These technologies and the countries who excel at deploying
them determine the security landscape that we're going to live
in, and they're changing very quickly. You know, sometimes--I
mean a matter of weeks or months--we see today, we see dramatic
changes in technology. And I think a challenge that we face
here in Congress is grappling with the ability to legislate
effectively on a topic that requires a lot of technical
expertise. And sometimes the stuff is hard to understand, and I
imagine that's similar in the legal profession.
So, can you share with us a little bit about how you
overcome that kind of challenge when presented with some novel
legal questions on emerging or evolving technologies?
Mr. Wiegmann. So, it can be challenging for lawyers. I
mean, certainly. You're an engineer and astronaut. It's
probably a lot easier for you to assess these issues than
lawyers who sometimes really are wrestling with technologies
that they don't understand. And so, artificial intelligence is
a good example of that, at least to me. It's a new technology.
Understanding how a large language model works and what the
implications are for privacy and national security is
difficult. There are going to be questions, for example, that
we're wrestling with right now.
Under the Attorney General guidelines that govern
intelligence activities and how they would apply to the
Intelligence Community's use of large language models and
artificial intelligence.
So, generally speaking, in other words, the goal in the
Intelligence Community is to try to minimize your collection of
U.S. person information and get as little information as
possible consistent with your mission. A large language model
is the opposite premise, right? You need to have as much
information as possible to make that model effective and to
have the answers that it produces be the correct ones.
And so, how are we going to reconcile that kind of opposing
impulse? The way the guidelines are written right now, they
don't take into account--they weren't written with artificial
intelligence in mind. So, we're going to have to wrestle with
that and maybe come up with different guidelines as to how that
works.
So, we see in the Executive Branch, similar to what the
Congress would be facing, because we have our own rules and
regulations that we set for the Intelligence Community as an
Executive Branch matter, and face many of the same challenges
that this Committee or others in Congress would confront.
Senator Kelly. So, it sounds like you have a little bit of
experience in the AI field that you can use here in your new
role. But what other policies and legal issues that you worked
on at DOJ do you anticipate are going to be a continued focus
in your job in the Intelligence Community?
Mr. Wiegmann. Well, I mentioned the 702 reauthorization, so
that's one that we clearly will be working on closely with DOJ.
Another big issue that I partnered closely with ODNI on, I
don't know how familiar the Committee is with it, is the
fallout from the European Court of Justice's Schrems decision
from a few years back. This was a decision that basically held
that companies operating in Europe could not transfer data to
the United States because of concern that our surveillance
laws, whether those be FISA or under EO 12333, did not
adequately protect European citizens' privacy. So, we had to go
back to the drawing board in terms of our laws, come up with a
new executive order which ended up the--President Biden ended
up issuing EO 14086 to kind of provide new privacy protections.
It even included a new data privacy court that we established
at DOJ to hear claims of European nationals who believe they're
being unlawfully surveilled. So, those kinds of a creative
solutions. It's going to be an ongoing issue though because I'm
sure it's being challenged already in the European courts
again, and we're going to have another round of litigation. And
so, that's an issue that I think ODNI is going to have to
continue to work on.
Senator Kelly. With the exception of that example and maybe
FISA, do you have an example of maybe what you think another
really challenging legal issue is that the Intelligence
Community is going to face here going forward?
Mr. Wiegmann. I think if I could flag counternarcotics. I
know that an area of deep concern to the Congress is Fentanyl
and all the deaths that are resulting from Fentanyl and other
synthetic opiates in the United States. And I think it's an
area that the IC has always worked, in the counternarcotics
space. But we're going to be doing more in that space and how
to kind of merge and have law enforcement and the IC work
together on the counternarcotics threat in maybe ways that are
similar to how we've dealt with the counterterrorism threat. It
looks good on paper but is going to be a challenge in practice
to kind of translate some of those lessons that learned in the
terrorism context over to the counternarcotics context.
So, I think that's one that's going to be an ongoing
project for a number of years.
Senator Kelly. Well, thank you. And thank you, Mr.
Chairman.
Chairman Warner. Does any member wish to ask a second
round?
[No response.]
Well, Mr. Wiegmann, one, congratulations. We got through
this, and you have 45 minutes. Two, I think you heard maybe on
702, and one of the things I appreciate about this Committee is
Members feel very strongly in figuring out a way to get it
right. And as you've heard from other colleagues, how we sort
through things like AI is going to be enormously challenging.
You know, I look forward to supporting your nomination and
I want to, again, thank your family for being here and
supporting you in this. And I will, again, remind Members--and
for those Members who are not here--if they have questions for
the record, please get them in by 5:00 on Friday.
We are adjourned.
[Whereupon the hearing was adjourned at 3:17 p.m.]
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