[Congressional Record Volume 167, Number 11 (Wednesday, January 20, 2021)]
[Senate]
[Pages S69-S70]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   NOMINATION OF AVRIL DANICA HAINES

  Mr. WYDEN. Mr. President, I rise to discuss the nomination of Avril 
Danica Haines to be Director of National Intelligence. I think my 
colleagues know that in a few minutes, the Senate will be voting on her 
nomination for this key position.
  I briefly intend to outline where I think things stand on several 
sensitive issues with the 18 agencies that make up the intelligence 
community.
  The Biden administration and Ms. Haines have an opportunity and a 
duty to turn the page on the coverups and lawlessness of the outgoing 
administration. That is why I asked Ms. Haines at her confirmation 
hearing whether she would abide by a law that I authored requiring an 
unclassified report on who was responsible for the killing of 
Washington Post journalist Jamal Khashoggi.
  Jamal Khashoggi was a U.S. resident who was lured to the Saudi 
consulate in Istanbul and brutally murdered. Despite press stories that 
the Saudi Arabian leader was responsible for the killing, the Trump 
administration stayed mum, just stonewalled. For a whole year, the 
Trump administration just ignored the law that I wrote. So I asked Ms. 
Haines at our hearing whether she would follow the law and provide that 
unclassified report on who was responsible for Jamal Khashoggi's 
murder. Ms. Haines' response was straightforward. She said she would 
provide the report and comply with the law.
  That statement, frankly, as modest as it was, was a sea change, 
colleagues, from the obstructionism and stonewalling of the Trump 
administration. The Trump administration had basically taken the 
position on laws like this transparency measure that it was kind of 
optional for the executive branch to comply.
  So Ms. Haines' direct commitment to making that key report on the 
role the Saudi leaders in the murder of Jamal Khashoggi, in my view, 
was a real step forward for the rule of law, for accountability, and 
for human rights. And I will say as a journalist's kid that it was a 
real step forward for the freedom of the press everywhere.
  The second subject I discussed with Ms. Haines was a particularly 
troubling aspect of the CIA's recent history. The CIA spied on the 
staff of the Senate Intelligence Committee when the staff was writing 
the torture report. As Deputy Director, Ms. Haines didn't hold anyone 
accountable. In my view, this abuse, this spying on the Senate Select 
Committee on Intelligence, basically, colleagues, turns the whole 
concept of oversight on its head. The U.S. Congress is supposed to do 
oversight on the executive branch and not visa-versa.
  In response to my questions at the hearing, Ms. Haines admitted that 
the spying on the committee was wrong. She also agreed that she 
supported recommendations to expand accountability and would apply that 
expanded accountability to the intelligence community at large. And 
when she was asked about the CIA's baseless efforts to have committee 
staff prosecuted, she agreed that there ought to be guardrails against 
that happening again.
  The third area I explored with the nominee was the need to rebuild 
trust in the intelligence community, which, in my view, requires a new 
focus on transparency and openness. For example, there ought to be 
transparency so that the American people know what kind of surveillance 
is being conducted on them. The President of the Senate knows about the 
important vote we had on that amendment that I offered, the bipartisan 
amendment with Senator Daines, because we ought to get transparency on 
whether the government is spying on the browsing history of the 
American people.
  So this is really a critical and growing concern because we are all 
seeing data brokers and others selling people's data, and it is 
especially important that the American people are told if the 
government is using a legal loophole in the law in the warrant 
requirement of the Fourth Amendment So I asked Ms. Haines about 
circumstances in which the government, instead of getting an order, 
just goes out and purchases the private records of Americans from these 
sleazy and unregulated commercial data brokers who are simply above the 
law--literally above the law. I believe this practice is unacceptable, 
and soon I will be introducing legislation to make it clear that the 
Fourth Amendment is not for sale.

  Now, for Congress to tackle the topic, it is vitally important that 
there be an informed public debate about what the government is 
collecting right now and what it believes is a legal basis for the 
collection. And I was encouraged by how Ms. Haines responded to that 
question I asked. She said it was critical that the American people 
have an understanding of when and under what authorities the government 
is buying their private data.
  Now, Ms. Haines made a number of other commitments related to 
transparency issues, many of which relate to a problem that I have come 
to describe as ``secret law.''
  To my colleagues--I see our new Members here--people think when a law 
is written, they go to a coffee shop in Atlanta or Athens or Tucson, 
and they read about a law, and they think that is what the public law 
says. But secret law is based on the proposition that after the public 
law is put in place, the government often reinterprets the public law 
in secret and keeps the new interpretation secret under the pretext 
that this secrecy is just so key to keeping Americans safe.
  The reality is that the interpretation of public law ought to be 
transparent and public as well, and it comes down to a very 
straightforward principle. I am a strong opponent of secret law. I am a 
strong supporter of transparency. And I intend to remind Director 
Haines what she told me just a few days ago about transparency and to 
push hard for the public release of as much information as possible 
when Americans deserve to see it, and they can see it when it is 
consistent with the safety and well-being of their households and their 
loved ones.
  I also intend to push the Director of National Intelligence to fix a 
broken declassification system. For years, a

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flood of new, digitally classified information has overwhelmed the 
obsolete, paper-based declassification system. This system is so out of 
whack that in order to get a document declassified, government 
officials actually have to walk the document around Washington from 
agency to agency. I actually said at our open hearing that I wonder if 
it is getting to the point that to get a document declassified, someone 
who works for the government has to pack a lunch, put the document in a 
big black briefcase, and then make their way all over the Nation's 
Capital.
  So I have introduced with Senator Moran bipartisan legislation to 
authorize the Director of National Intelligence to fix the problem. Ms. 
Haines has acknowledged the seriousness of the problem and the DNI's 
role in fixing it. It is my intent to make sure that this also is not 
allowed to just continue as business as usual.
  Some of the starkest differences between the actions of the outgoing 
administration and the positions taken by Ms. Haines here a couple days 
ago relate to the crucial area of whistleblowers.
  The outgoing administration broke the law when it withheld from 
Congress the complaint of the Ukraine whistleblower, the whistleblower 
who identified abuses that resulted in the first impeachment of Donald 
Trump. This lawlessness undermined both the whistleblower system and 
the independence of the Intelligence Community Inspector General, who 
had determined that the complaint ought to be submitted to Congress. 
Ms. Haines has been clear--the law requires that when the inspector 
general determines that a whistleblower complaint is urgent, the 
Director of National Intelligence cannot keep it from the Congress.
  She made other commitments to whistleblowers. There are whistleblower 
protection laws--including some that have been approved by the Senate 
Intelligence Committee--that need to be enacted. There are procedures 
already required by law that the outgoing administration just didn't 
issue. They just stonewalled.
  After all the damage done by the Trump administration with respect to 
trampling on the public's right to know and transparency where the 
information can be made public to the American people without 
compromising sources and methods, I will state that the Biden 
administration has a lot of work to do to repair and improve 
whistleblower protections. They are going to have a lot on their plate. 
The country has massive cyber vulnerabilities that we saw just a couple 
of weeks ago. There is more to do in terms of preventing foreign 
interference in our elections. We have to ensure that other 
surveillance programs provide security without sacrificing our 
constitutional rights.
  I am going to close by way of saying I don't assume that I will 
always agree with the incoming administration. That has been true for 
me with Democrats and Republicans on these issues. When we disagree, we 
will have a vigorous debate--as vigorous as when I disagreed with the 
Trump administration.
  Ms. Haines as DNI and Ambassador Burns as CIA Director are beginning 
to shape up as a team that will be more open with the public, respect 
the law, and work with the Congress to repair the vast damage of the 
outgoing administration and respect what Ben Franklin talked about so 
many years ago. Liberty and security are not mutually exclusive. Smart 
policies get you both. Not-so-smart policies get you less of both. And 
that is our challenge.
  So tonight, because of her answers to me at the open Intelligence 
hearing a couple of days ago, I want to say I am going to be supporting 
Ms. Haines' nomination to be Director of National Intelligence.
  The PRESIDING OFFICER. The Senator from Virginia

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