call this meeting to order today we will examine how the intelligence community honors and implements its legal obligation to keep congress informed about intelligence activities this hearing is part of the full committee's investigation into the intelligence community's compliance with the national security act this is a a combined hearing of the oversight and investigation subcommittee and the management subcommittee chaired by congresswoman eshoo under the national security act the executive branch is required to keep the committee quote fully and currently informed of any of the intelligence activities unquote of the united states including any quote significant anticipated intelligence activity on quote and covert actions these requirements are critical the exacted executive branch's intelligence activities are secret and the american people rely on the congressional intelligence committees to scrutinize them they rely on this committee to make sure that those activities are consistent with the nation's best interests and values the committee is in the truest sense the people's representative when it comes to secret intelligence activities for the committee to perform these vital functions the committee must receive and the executive branch must provide truthful complete and timely information if this does not occur congress cannot adequately perform its constitutional obligation to authorize an appropriate money for intelligence activities in recent years various members of the committee from both sides of the aisle have expressed concern that the intelligence the community has failed to provide the committee with full and complete information recent revelations have raised yet more questions about whether the intelligence community has violated the national security act last week the intelligence community management subcommittee held a hearing focused on the national security expert visions that require the executive branch to keep the committee informed about intelligence activities that hearing was an important step in the committee investigation today's hearing represents another important step for the national security act to be effective the executive branch must properly implement and enforce it we need to understand how the intelligence community carries out this obligation whether its notification policies give rise to pass notification failures and what it is now doing to make sure that the committee is kept fully and currently informed in particular i look forward to hearing about the  his current review of the intelligence community's notification policies to discuss these matters we will hear from robert s lit the general counsel of the office of the director of national intelligence  has only been on the job for several months now he joined the odeon i after an already distinguished legal career which has included time as a senior justice department official and as a partner at one of washington d c as most prominent law firms as demonstrated by his substantial work on the subject since joining the odeon i know he takes the issue of congressional oversight seriously and i welcome him here today at this point i would like to recognize  chair of the intelligence community management subcommittee for any opening statement that she would like to make thank you madam madam chairwoman and good morning everyone and welcome mr lit thank you for being  willing to testify today on this joint session on congressional notification which is of course a very important topic and it's the reason that were here last week the intelligence a committee management subcommittee held a hearing examining the provisions in the national security act of one nine hundred forty seven that established how the executive branch keeps congress informed of intelligence activities this hearing comes as a i think a welcome follow up to that one so we can examine how the executive branch has implemented the provisions of the act and how they interpret the statute as i said last week at at our hearing the executive branch's obligation to keep the committee fully and currently informed is really a solemn obligation congress has a right to know and the executive branch has a duty to share the information necessary for congress to authorize an appropriate funds and oversee the activities of the federal government including intelligence activities to ensure that taxpayer funds are spent wisely and that the policy is really a sound one last week we heard that the relationship works best when the executive branch takes in good faith its obligation to share full and complete information about intelligence activities with the committee in many cases congress provides the only outside oversight on intelligence activities and thus its role is all the more crucial and checking executive excesses or strengthening its plants week zammit the statute and we focused on a number of phrases where the law is ambiguous some in the executive branch could use that lack of clarity to circumvent their obligations to inform congress we need to understand how the agency interpret their obligation to keep the committee quote fully and currently unquote informed what kinds of intelligence activities they consider quote significant and how they view the obligation to inform rather than merely notify and there is a big difference between the two i think all the members of the committee have a pretty deep appreciation of that i want to understand how the agencies interpret the phrase significant last week's witnesses explain the factors that make intelligence activity significant are those that are approved at high levels of leadership or are particularly sensitive or a likely to have serious foreign policy implications i'd also like to understand whether the agencies are basing any of their decisions to inform congress on whether an activity is operational as we heard last week that phrase is not in the statute and should not be used to decide what information should be shared with the intelligence committees i hope mr lit that you will shed light on how the intelligence community implements its obligation to keep the committees fully and currently informed i'm also looking forward to hearing about some of the changes that the intelligence community is considering to improve its congressional notification practices so that the failures of the past do not repeat themselves so thank you madam chairwoman i'm delighted that we're having this joint hearing thank you mr lead for testifying today and to everyone that's here in the audience were glad to see you and i look forward to working with all of you thank you and i'd like to recognize mr miller the ranking member of the oversight and investigation subcommittee for any opening statement he'd like to let's thank you for being here today i think this is the first time that you've had an opera kennedy to testify before this this subcommittee and as you might imagine they are going to be quite a few questions that we we have for you today we all believe that timely accurate notifications are vital to the work of this committee and in the past congress we've seen the negative effects and tensions created between the congress and the executive branch when the notification process breaks down no single case better illustrates my point than the peru program this intelligence program resulted in the deaths of two american citizens veronica and charity bowers their deaths directly affected friends and family members living in my district mishandling of this program is of great interest and of concern to me but beyond the ineptitude that led to the bowers deaths i'm stunned by the ease with which some at the cia kept this information from reaching congress the c inspector general has issued a report that detailed at length how certain intelligence officers deliberately misled the committees of jurisdiction on this very matter we have heard from the i g about their report we don't need to rehash those specifics today hopefully mr lay that you can provide some reassurance that this kind of misconduct cannot happen again and i'd like to hear what changes have been made to the congressional notification process not just a but in the i c community to prevent something like this from ever happening again i hope that the lessons learned from peru have been incorporated as best practices in your procedures that being i want to make it clear that i don't believe the cia or any element of the community lies all the time these kinds of statements made by senior members of congress are unhelpful to our efforts on this committee to foster a sense of trust and cooperation between the executive branch in congress and frankly such state that's are not accurate moreover i am also concerned about the level of partisanship that is attached to this issue in our bill a broadly supported bipartisan legislative proposal to fix the notification provisions of the national security act was scrapped by the majority in favor of a narrowly supported partisan provision a provision that actually drew a veto threat from the obama administration in this subcommittees efforts the majority has allowed oversight of critical matters of bipartisanship interest such as peru to flounder instead the majority has embarked on this b conceived investigation of notification issues with little input from or consultation with the republican members unfortunately i don't believe the majority will complete this investigation anytime soon i also don't believe this investigation will realize positive results that will justify the time and resources that we will spend on it in any case mr lynn i welcome your statements in this process and i hope that you can highlight for me how the process has been improved and i'll save the rest of my time for questions after your presentation  let me just say to my to my ranking member that well first i was about to associate myself with your remarks about halfway through but i do want to say that you know we were we were to  have a briefing this this week which is of great interest to me as the ranking member well knows from from day one the brief for that was supposed to khan was unable to make it so we have rescheduled for the week of  november fourth and i absolutely agree with you that we need to move forward there is no effort to delay or slow down this  you thank you mr let it is the policy and now of the oversight investigation subcommittee to swear all witnesses before they testify and if you would stand raise your right hand do you swear or affirm that the state make to the committee will be the truth the whole truth and nothing but the truth the record reflect that mr let answered in the affirmative and now we're ready for your open opening remarks thank you intelligence community uses to help ensure that the congressional intelligence committees are kept fully and currently informed of intelligence activities as a ranking member miller noted this is my first time testifying before you but i do look forward to many other opportunities to work with the committee in the future and i believe that congressional oversight of intelligence activities is critical because of the importance of intelligence in protecting our national security because of the power of the tools that are given to the intelligence community and their potential risks to privacy civil liberties and to foreign relations if they're not used properly and because much of what the intelligence community does necessarily has to be done in secret these this oversight is a valuable way of improving the quality of the intelligence and the effective and efficient and cost efficient operation of the intelligence community because members of congress often bring a different invaluable perspective to the the difficult issues that we in the intelligence community have to deal with in addition robust oversight can help assure the public and the congress give them confidence in the activities of the intelligence community that the value of this oversight would obviously be limited if the intelligence committees were not aware of significant intelligence activities and so the intelligence community does take seriously its statutory obligation to keep the intelligence committees fully and currently informed of intelligence activities and i know that this committee has met on numerous occasions with director blair and that he's expressed this view to you and i  s say the same thing in private that he really does believe that to important to keep the committee's fully informed and i share that view my written statement goes into more detail on the literally hundreds of occasions in which the intelligence community has provided information to the house and senate intelligence committees just since the beginning of this congress by way of written notification or briefings or hearings among other ways i think that this does show that the intelligence community is working hard to try to make sure that the intelligence committees do have timely and accurate and complete information to inform policy and to enable the committees to conduct oversight the notification process is subject to continued supervision and oversight by the office of the director of national intelligence in the exercise of its statutory responsibilities for example in january two thousand and six the odeon i issued what's called an intelligence community policy memorandum which is entitled reporting of intelligence activities to congress and this provides guidance to the intelligence community about the requirements of notification to the committees and then in march of this year director blair sent another memorandum to the heads of all the elements of the intelligence community both re affirming this memorandum and directing that notification of into significant intelligence activity should be provided to the community to the committees within fourteen days recently he also discussed the importance of timely and complete congressional notification at a meeting of what's called his executive committee the x com which is the heads of all of the sixteen elements of the intelligence community and finally last summer director blair directed that there be a comprehensive review of the congressional notification policies and procedures of each element of the intelligence community this review had two purposes first to examine whether all elements of the community were currently in compliance with their obligations of congressional notification and second whether they each had in place appropriate policies and procedures that would ensure that the communities going forward would be kept fully and currently informed at the conclusion of this review a couple of weeks ago the d n i strong sent a memorandum in which he strongly encouraged each element of the community to compare its current policies and procedures to a set of best practices that were derived from the results of this review and to make any necessary changes and from my conversations with the various elements of the intelligence community i know that they're they're taking th seriously they're going back they're reviewing their procedures and if appropriate they are strengthening them i can assure you that the d n i will continue to review compliance with the congressional notification requirements by the entire intelligence community and if necessary we'll go back and look at the the intelligence community policy memorandum and see whether that needs to be modified or strengthened or where other procedures need to be put in place in summary intelligence oversight is critical to the successful operation of the intelligence community but it can only effective if the intelligence community views the intelligence committees as partners and keeps them fully and currently informed of all intelligence activities and the d n i and the odeon i are working with the intelligence committees and the intelligence community to try to ensure that this happens i appreciate having the opportunity to come before this joint hearing today and i look forward to responding to your questions however because you know as since the facts surrounding many of these issues are five i won't be able to discuss specifics any great degree in the open session and i understand there's a there's a closed session planned for afterwards if we need to go into details thank you madam chair women exactly and so if you're asked a question that is best responded to in the closed session  you'll tell us thank you very much mr led under the national security act the committee must be kept quote fully and currently informed of any significant and significant anticipated intelligence activity  national security act defines the phrase intelligence activities to include covert actions accordingly does the national security act require the executive branch to notify the committee of anticipated covert  actions i think the national security act makes a division in the procedures and the standards appropriate to covert actions and to other kinds of intelligence activities you know section five zero two covers other intelligence activities section five zero three covers covert actions and there's a fairly specific standard in section five zero three setting forth what the president is required to notify the committees of in the case of covert actions it says that the president has to ensure that any finding with respect to covert action is reported to congressional and intelligence activities as soon as possible after the finding is approved and before the covert action is initiated and except  provided in some of the other sections and it further provides that the congressional intelligence committees have to be notified of any significant change in a previously approved covert action or any significant undertaking pursuant to a previously approved finding also before the activities are carried out and i think that that statutory language embodies the general command of section five zero one and sets forth the manner in which the it is supposed to inform the committee of significant anticipated activities in the area of covert action so the answer in short would be yes yes as set forth in section five of three when assessing whether an intelligence activity is significant what factors does the intelligence community take into consideration let me give you some examples if the president vice president or national security advisor have directed or approved an intelligence activity should that be considered evidence of significance yes that's that's specify the in the intelligence community policy memorandum that i mentioned and if an agency director such as the n s a or cia director has directed or approved a particular intelligence activity should that be considered evidence of significance i think that while that factor is unspecified it's obviously one of a number of factors that a an element of the intelligence community in exercising its judgment as to what's significant should take into account the level of approval yes so not alone if that n s a or cia director approves a particular intelligence activity that it's of significance but not i  wouldn't necessarily say that that would by itself you know all circumstances require know that it's considered evidence of significance i would think it would be yes in india d n i blair as october thirteenth memo two thousand and nine to the he noted that he's concerned quote that not all elements may be taking the appropriate steps to ensure every significant intelligence activity is identified in a timely manner and that congress is notified in a timely fashion what i want to know is who is responsible for ensuring that congress is properly notified of intelligence activities when we went out and the elements of the intelligence community generally speaking in each element of the intelligence community their office of legislative affairs has the primary responsibility for ensuring that congressional notification proceeds appropriately in almost every case i think the general counsel's office also plays a role in helping assess whether a particular particular issue meets the standard that requires notification or not but the primary you well in the odeon i that's me yes  their general counsel but the primary responsibility rests with the legislative affairs office my concern is that there isn't a name necessarily attached that everyone is clear about so at n s a for example who is responsible for ensuring that congress is properly notified of the intelligence activities or at cia the ira i can't give you the names i can tell you that one of the things one of the best practices that the d n i referenced in his most recent memorandum was that there should be a single point of contact for these purposes some of the agencies may have established their own individual points of contact i mean you know in in the case of the d it's the head of our legislative affairs office who has responsibility for it so i don't know the names of the individuals but if they don't have them yes ma'am they should have the money a single individual who is charged with that i thank  made and and there they have not been has not been common since i've been on the job when an issue wanted to start i started at the end of june of this year generally speaking neither have been common is would i expect to be consulted on that issue and i would i would hope that he would seek the judgment of his general counsel as to compliance with the law on that issue i'm not so sure i understand your answer maybe you could walk me through the process of how it happened well as have you experienced that yet i have not that ok well that's that's fair enough but my understanding is that the decision since june there have not been any  decisions to to brief members even of the the full committee on anything no no i'm the members of the full committee have been have been briefed on numerous matters i've been present i think it's one of those briefings  members of the full committee or the gang of eight ok well most most of the decisions about about notifying or briefing the full committee are to my knowledge are not made at the level of the n s c when and when issues of sufficient importance that the n s c gets involved it is my understanding although as i said i haven't participated in this process that the decision of whether the briefing should be done at the level of the full committee or more restricted briefing is it is asian in which the n i will play a role in the exercise of his responsibilities to protect sources and i say play a role are there others that play a role in that well i would i would assume for example that if it's if it's cia information that the cia would play a role if it's a gift it's a covert action obviously since since the white house owns covert actions they would play a role and as i also said i would hope that the d n i would consult his office of general counsel if such an issue came up to get a view our view on what the law requires in that   stated that he wants it to be broad and that that we not only examine the history of the law how it came about and the history that's been made ever since now in recent history we've had more than a real glitch and this is what i'd like to ask you about and i think that there are probably some things that we can't go into obviously in in an open session but my question to you is how can someone how can something how can there be a program that was established in two thousand and one and the cia director being informed in two thousand and nine what was broken in your view that would cause that to happen and the congress not ever being  informed well to the extent the issue was are you asking about the cia director being informed or the congress being informed because my understanding is that others earlier cia directors may have been informed and it was simply that the currency a director didn't learn about this until several months that well that's quite an extraordinary at least in my view because he's been on the job for a while and to have his own people not informing him i think should be a cause of concern for all of us but certainly the congress not ever being informed in terms of informing the what do you think is broken or do you think anything is broken do you think that it's a that it's a special case where for whatever reasons you might want to share with us that  it really should have been that way or do you think something is broken and if so what and and do you find there a lack of clear  direction relative to the language of the national security act whether whether something is a significant intelligence activity that requires notification and briefing of the committee is obvious what is significant well what would you  that it's always going to involve the exercise of judgment of the policy memorandum that was issued in two thousand and six sets forth some cite some criteria for what constitutes a significant action which includes issues as whether there's potential loss of life whether it's going to have an impact on foreign policy decisions there variety of criteria set forth in the air and some of the individual components of the intelligence community have their own supplemental memoranda that provide other standards but anything that involves an exercise of judgment over these leaves open the possibility that different people are going to have different judgments and it's my understanding that both director blair and director panetta have indicated that  they might have exercised their judgment differently and briefed this matter at an early see if it's not a question of finding out at a much later date and then the parties that are that have respons weigh in and say you know what if i'd known about that perhaps my judgment would have been different that's not what i don't think that's the way with we should be operating what i'm trying to find with you and maybe because you're you're new and it's it's really difficult for you to you know to make a call on this i mean that case says to me something is really broken something is really broken  now you mentioned what you you know that there are the therapy policy papers relative to definition for significant i'd like to ask that that we receive that that those memorandum so that we can review them and see how the determinations are being made based on those memorandums let me just ask one more question do you think that there should be one person that's primarily responsible responsible for ensuring that congress is properly notified of intelligence committees i mean obviously there's the oh d n i there's n s a cia and then the other  intelligence agencies do you think that this should be one from each or just one that is totally responsible for this i think that each agency should have a single point of contact responsible for that i also think that it's part of the odeon eyes responsibility to ensure that all of the components of the intelligence community are operating in accord with the law and so it's part of ody and i've responsibility to do what we're doing  for notification today how does it work does the head of each one of those agencies meet with the o d n i and then he's the one that's responsible or he makes the call as to who should come and notify you know generally speaking each agency is responsible for its own thank you thanks for your commitment and stated commitment to director blair keeping this committee fully informed with respect to intelligence activities and information needed to carry out policymaking responsibilities but given this commitment why has the administration continued to refuse to provide this committee with information regarding its planning with respect to one tom obey detainees and in your answer could you please say do you believe the congress should receive information on this planning substantial report that was provided to this committee recently going through all of the detainees in the information that we have about each of them and i know the committee is notified for example as individuals are transferred from guantanamo broad the the that this committee is going to be briefed fully and consulted on it but that i don't think that that obligation to inform that to keep the committee fully in currently informed of all intelligence activities is the same thing as requiring  the committee to be kept fully and currently informed of all internal executive branch so you don't think that anything in regards to the the disk committee has any jurisdiction over that no it's not that's not what i'm saying but that's what the law says in section five zero two of the national security act requires the d n i and the heads of departments and agencies to furnish the congressional intelligence committees any information or material concerning intelligence activities other than covert actions which is within their custody or control now the ranking member hoekstra has specifically requested information by letter regarding the planning for the relocation of motor trainees which affects the collection of intelligence from him and he hasn't received any response so how do you square the refusal to provide the information with the law well to the extent we're talking about the collection of intelligence information that's obviously not something that i can i can discuss open we're going to close  d facility i think that to the extent that there are significant intelligence activities that are affected that this committee is entitled to be informed and will be informed and i said on the hask as well as that committee been informed that i wouldn't know i think the answers and i'm does the o t and i believe the state governments and community should have some access to some appropriate versions of intelligence information about the background and any potential threat posed by detainees before they relocated to their towns and if not why doesn't the d n i believe that people have a right to know it's my understanding that the administration intends to work closely with federal and state and local law enforcement officials want to decision has been made to ensure that the detainees are held securely and that there is no threat to individuals in the area i would note that there may be say one hundred terrorist related defendants currently held in u s prisons without any of them ever having escaped but it's my understanding that there are in fact is an intention to work with state local law enforcement on that and on the matter you raise why do we keep state secrets we keep state secrets because there are often matters  where the protection of national security is paramount where there could be significant danger to net to the nation's interests if certain information came out do you concur with mr schwartz of the church's commission's statement in regards to sharing widely outside the intelligence community information well i'm not sure what his what his statement is i do know that that this administration and in fact both administrations in the congress since nine eleven have made efforts to ensure that information is shared more widely as necessary to protect our nation and i think that one of the things we learned was that if there's too much stove piping of information it can it can end up damaging national security so that it's important to try to share information as broadly and easily as you can consistent with the needs of protecting national security information do you think this is a true statement cia lies all the time to congress no thank you have very recently there were press reports ranking member bond over in the senate intelligence committee was concerned about the leaks and things that had happened and you read about in the press which we read about in the press before we know about it here on the committee and it just really that concerns me greatly and has i'm new to the committee so this is new to me but the bottom line of it is you know how does that affect the administration executive branch's willingness to share information sensitive information and what can be done about that and where is it coming from where were the leaks coming from this this kind of thing because you know  us on the committee aren't talking any press that i know well i share your frustration i know director blair does as well he has made very clear that he wants to find ways to deal with the leaks that they are in fact very great concern to him and he has asked me as a general counsel and others within the odeon i to work with the other elements of the intelligence community and the department of justice to try to find ways to to to tighten up to see if it's it's possible to move to more easily identify leakers which frequently is a tremendous challenge and to to prevent these leaks from happening or punish them when they do what is a punishment if they do well there's there's there's a variety of criminal statutes i don't how don't have the penalties right in front of me but but i mean do they lose their job or they just get slapped on the hand well it can range from a slap on the hand for some for for something that merits a slap on the hand to through loss of jobs through criminal prosecution and and incarceration when mr miller asked the question about state and local officials being notified of detainees from guantanamo coming to that into their area  maybe wasn't listening closely but did you say that they would be notified after the decision has been made to place them there they wouldn't be in any way included beforehand to know that was going to happen i don't think that any final decision has been made yet on how and when people are going to be notified i do know that they're going to be appropriately consulted on the process to ensure that there is no risk to national security or to local security from bringing people wherever but you don't know when time that would take place before i don't and i don't i don't i don't know that that decision has been made yet ma'am and one of the other concerns is yes there are people kept in state prisons etc all the time but these aren't your normal prisoners and then my concern is again what happens to them after that i know this is a little going a little beyond what we're talking about here but when he asked the question just brought it back to mind again well  thank you will be going back and forth now mr schiff thank mascara and i just want to follow up on the last series of questions just to clarify that for the purposes of today's hearing the decision where to detain the guantanamo detainees is a very important one but it's not necessarily per se an intelligence related activity correct it may be a decision about incarceration or compassion patient but not necessarily intelligence activity for the purpose of the se we're talking about today correct yes that's correct or i wanted to talk with you about the language of significant anticipated intelligence activity is there any indication from your research on this issue and how the various agencies within the intelligence community have dealt with this language that any of the community has viewed that statutory requirement of reporting or notification on significant anticipated intelligence activities as somehow legislative surplusage that it was superfluous that other language in the statute is actionable but there was really no obligation to inform congress of things that are only anticipated have you found any indication that any parts of the intelligence community have have used that as their modus operandi no not not at all quite the contrary policies make clear that anticipated have to report to congress that they are required to report anticipated intelligence activities as well as ongoing ones so far as i know that's correct and how do you interpret the term anticipated  you wouldn't conclude with you that something has to be operational before you're required to notify congress about an anticipated significant intelligence intelligence activity w operational as opposed to and i think that the term operational there was used to differentiate it from something that's just been in planning or not even not even at the stage of planning but that's a concept that people are working on i think that some that  anticipated the determine to support it involve some level of definiteness that goes beyond merely you know we're looking at a bunch of options and this is one possibility we're considering there has to be some level of commitment that this is going to happen before it rises to the level of something that's actually anticipated as opposed to possible or theoretical and i think that the the use of the term operational was meant to convey that that concept that there is not an obligation by by the use of the term anticipated in the statute that there's not an obligation to brief every time somebody at the agency comes up with an idea every time even they could they explore the idea to some extent it's when it actually becomes an anticipated operation now having said that as i said i think both director blair and director panetta have said that with respect to that particular operation they might have exercised their judgment differently but i think that the concept is a valid one that there's a difference between between a mere possibility or a theory on the one hand and something that's actually anticipated on the other you would agree though that if there are significant expenditures made in support of intelligence activity even if it's not operational yet even if there hasn't been a decision made to of the oversight involves oversight of how funds are spent and if there were a risk of disclosure of potential operation via arrest or some other means that would certainly trigger the requirement i th that the policy memorandum talks about a risk of exposure as one possibility but it's also you have to consider not only the degree of risk of exposure but the consequences from the exposure as well but yes that certainly is a factor to play in so you know what we're talking about then is if you're sitting in a room ruminating about several potential directions you could go in several potential operations that might not trigger requirement but when you start taking steps very concrete steps to determine you know whether you should go forward even though the decision hasn't been made yet you can still trigger the anticipated significant intelligence activity reporting requirement right you could it would depend upon the nature of the specific steps that you're talking about yes well what my time's  hard to have a real discussion about what is or is not broken what should or should not be briefed and where that threshold is but it brings to my mind kind of the othe half of the story that we don't talk about as much and that is the responsibility of congress in these briefings to fulfill our role in a responsible sort of way we've had instances in recent years where programs have been briefed and yet only when they become the leak then public new members come out and say oh i never knew that or i didn't i wasn't for that or so forth so so let me ask you talked about the process and the procedures as as as some of attempted been going to go back and reconstruct who was in briefings and what was briefed and so forth it's been fairly confusing sometimes administration records don't job exactly with the committee's records so since you've been there are there are written records of who was briefed on what and any concerns that they raised during those briefings i think that there be throughout the various agencies there are records of that that have a greater or lesser degree of  formality and detail i don't think there's a consistent rule across the entire intelligence community for that well do you think there should i mean i think it's definitely something that should be considered whether there ought to be more formality to that to that process would it be a good idea for the committee to keep better records of who is in what briefing and to see whether the committee's records in the administration records job as far as who was briefed on what how many times and on what program i was as a member of the executive branch i would not presume to give advice to the congress on what rules and procedures it should adopt there let me let me go mind are there any constitutional limits on the president from doing so i think that this area is one of those where you have t constitutional authorities bumping up against one another you have the congress's constitutional authority to exercise oversight and you have president's constitutional authority to protect national security information and i think that the statute recognizes the president's constitutional authority in this area explicitly in section five zero three so i'm not sure i would i would categorize it as a constitutional limit i would say that that there are  executive branch prerogatives that are affected here by this by the notification process well i'm trying to understand as as we talk about the way this works what's the difference in an executive parag of and a constitutional  power or authority that the president needs needs to needs to protect and let me get in to one specific in the statement of administration policy on the house authorization bill it says administration strong strongly objects to the provision as mr miller noted in the house bill now is that because it doesn't work or is it are there constitutional objections or exactly what are your objections to what's in the house bill now  e and legal advice within the executive branch and i believe that it is the opinion of the administration that that requirement does trench on executive parag it is that or that are afforded to the president that that's one example if i agree with you on that if it is there if there's a presumption that the administration will share all intelligence collection and covert action information with congress is does that cause you constitutional concerns i'm not i'm not enough of a of a scholar on the exact limits of constitutional  on constitutional concerns fundamentally i think that this this process like many of those where the constitutional powers are intentioned this process is one that has to be worked out by accommodation between the two branches and working out ways of ensuring that congress gets the information it needs while ensuring that the president retains the ability to protect national security when it's required explore several different points i understand you to say that there has been no gang of eight level briefings under this administration is that is can say as as the let's see let me make sure i have your title correct as the general counsel of the office of the director of national intelligence would there be or under what circumstances could there be the so called gang of eight the restricted briefings restricted to only eight members of the house in the senate without your knowledge well as i said earlier i would hope that the director would consult his legal counsel i suppose that there might be a program that is so compartmented that they feel that they felt they did not want to bring the office of general counsel into it  expectation would be that that would not happen that they would seek my legal advice do you think in any of the subunits the central intelligence agency or others that there might be restricted briefings that the director of national intelligence would not be aware of that should not happen now i know in the october memo from the director of national intelligence it's in title a follow up to reporting intelligence matters to congress he refers to the obligation to keep congress fully and currently informed lays out some recommendations for establishing in writing the obligation ensuring that personnel understand the duty and so forth he finishes by saying i strongly encourage you to compare your current procedures to those outlined above it had struck me odd phrasing for the director of national intelligence i encourage you to compare your current procedures do we need some  attention to the legislation or should the director of national intelligence be in the position to suggest to other agency heads this and that and the other thing i c d process for doing that that involves consultation throughout the community i think that you need that and before that's done and i think it was it was probably the appropriate judgment to say let's see if if the if the members of the intelligence community can do this on their own without having to you know instruct them or order them to do it and i've i'm hopeful that they will do that so you are not as a member of the office of the d n i you're not suggesting that there needs to director's interpretation of the wording of the obligation to keep congress fully and currently informed in many cases that has a practice a rather perfunctory meeting meaning in fact the the language that is used within the intelligence community is congressional notification it doesn't say anything about foley and currently informing i actually see a difference in meaning but i wanted to ask whether you and the director and the d n i office think of this says informing or notifying or briefing or consulting what is the obligation well i think that would respect to the obligation to keep the committees fully in currently informed that the obligation needs to be measured by the purposes for which the information is being provided and by that i mean we have an obligation to get you the information that you need to provide oversight and the scope of what we provide you need to be adequate to permit you to provide oversight of the into community and that should be the  dollars which is something that might constitute an activity that requires notification it might be to simply sending you a written notification of that would suffice in that instance i could conceive of other instances where simple written notification would suffice but you know again  as i said earlier both both director blair and i view this as a partnership and we do have an obligation as well to provide additional information if a member of the committee feels that the notification  on that we that the community look at the best practices did review find any exceptions to the policy where it wasn't being followed or are you talking about things that didn't wasn't working we didn't find anything systemic i think that when some of the agencies went back and looked at their at their records they found a couple of matters where they had determined not to brief and they relooked at and decided probably ought to be briefed but those were few isolated instances you could not find any systemic policy that's written out again you can have judgments as to what all this stuff means but if you're you're hiding behind the differences between you know subtle changes in wording between two thousand and five one hundred three and they are seven to  are they going to be the most informed group of everything that's happening if there was going to be held responsible for congressional notification they cleared the site i mean it's just one of those folks that with leon panetta cia all the time is to me if i'm going to be held responsible for something as important as this then does a legit faires team across this community are they in every single you know sensitive meeting that's obviously not not the case although it's my understanding for example in the cia they have led if there's people who are signed to the director it's to work with them but saying that the lead fairs people are responsible for their educations doesn't absolve the head of the agency of his or her responsibility as well and one how it really should be the head of agencies the focus and not alleged affairs well you the head of the agency had a lot of things to focus on washstand but one one of the one of the best practices that the d n i mentioned in  e more recent memo was was saying that the head of the agency on a periodic basis ought to sit down with all of his or her top people and canvass them and direct them to go back to their people so that so that there is that kind of things period of time to seed you've done the review for this best practice implementation and if you haven't implemented the best practices that the group thought you need to have good reasons as to why it doesn't work in your agency is that i that i think you're hearing on a bipartisan basis the need to be fully informed is that time after time we are learning from the television or newspapers about something that we were not briefed on that we then someone comes in the head of an agency or and does a me a call paw it was really my responsibility and so i want to get back to the issue that i raised and mr conaway raised also my concern is that if this is not a central part upfront not later i don't want to hear any more me a call but that someone is assigned and that every desk people know who that person is so that they can be contacted i'm fearful that it will never happen that you know  that that in fact what will happen is what we have heard that there's was a breakdown i mean that that word has been used before that there was a break down somehow in communications and and so and mr holder also was talking about i think this is not an area where there can be any fuzziness where people have to know what the procedure is who is in charge and of yes of course that had a division of an agency finally the d n i i'm cell is is responsible so i think what some of us are looking for is what is the clarity in this process what are the penalties for diverting from that if there is a breakdown what happens and do you feel that we're moving in that direction well i think you had your early on in your question you put your finger on what i think the most important solution to this issue is and that is getting it down to the desk level and getting everybody in the agency to treat this as a part of their responsibilities and i know in preparation for this hearing i talked with some of the other agencies about what kind of training they do and as you might expect it varies somewhat across agency but for example cia has as training modules for everybody where they instruct them in congressional notification and they have a brochure on their web where where is the where does the buck sap you know mr conway raised the question about le ferrous well fledge affairs is not him or herself informed of what's going on how do we make sure that there the breakdown doesn't occur there ultimately as i said the if you have an agency with  thousands of people out there the only way you can you know no matter who the individual person who is responsible is and as i said the d n i has has indicated that he thinks that there should be one person responsible in each component of the community but no matter who that person is if the rest of the agency doesn't have the in mind at all times is this something that needs to be notified and if i have any doubt let me call this point of contact  and discuss it with them and if it's compartmented so that so that i don't know if i can talk about this person let me raise it with my supervisor and let's talk about it if you don't have that kind of culture no kind of process that you set up is going to make this work it has to be something that the people in the agency understand is is a part of their job and b ultimately for their their benefit in the benefit of their agency well that then i would suggest that mr hall raise this idea of encouraging is not sufficient for culture change that there needs to be much stronger language and much stronger policies that follow that just encourage people to review their their policies i can only tell you that if you're woman and in the course of getting ready for this hearing in the discussions i have had with the other agencies it is my sense that they do recognize that there need to be additional steps taking and they are working on beefing up their training programs making their processes clearer and so on and i'm certainly hopeful that that that plus the commitment from the top which people like director blair and director  what you mine of cut but i think that this is far beyond that i really do we're looking at the language in the national security act does it provide does it  provide the direction that the intelligence community needs in order to meet the obligations that both the executive branch and the legislative branch have now  there is for the cia a regulation that came out in in march of ninety six that is absolutely clear about reporting of intelligence activities to congress so it's not a matter of what of of what someone feels like doing or going through multiple choice it's set forward and yet we are still experiencing things that should not be the way they are and i'm not looking for the congress mr lit to have more power than the executive branch or vice versa but when there is not when it's not equal there's a problem there really is a problem and i think that just even looking at this and it's in all of our three ring binders here i don't see why  w the two thousand and one to two thousand and nine incident could have taken place given what's in this statute i also want to on the  accountability for intelligence activities and general congressional oversight provisions you made mention earlier about the president having the responsibility to you know for national security and that the intelligence committees have responsibility for oversight but nowhere in this in this title five does it say anywhere that the withholding of information to the congress in any way shape about and it's based on the experience that we've had is because there is a lack of clarity or various interpretations of these terms then bring about requirements on the part of the executive branch that we're getting into multiple choice well it was this but it wasn't that so we can't wait we have an obligation to report this but we don't have an obligation to report that and i do think that there's a huge difference between notification and information if someone is informed than there is a discussion that's how information  shared it's not a drive by briefing where some information is just dropped off and there is sloppy at best and then it goes downhill from there record keeping both on the part of the congress and the executive branch so i think that we have some real work to do on this and while i krishi a your your your view about people being trained and people at desk jobs and whatever as i've had many deaths desk jobs in my life so i'm not diminishing the importance of those individuals but i think that this is this is really at a higher level and i don't know what actions have ever been taken relative to violations and the national security act doesn't have any penalties in it we know if something's gone wrong but there aren't any counties and i don't know who's exercised any when something hasn't in all of that general or is it up to each agency to come up with whatever it is they come up with generally speaking the intelligence community policy memorandum issued by the d n i applies across the intelligence community said generally are there exceptions know what the the standards are all the same and the same memorandum applies to all aides to all agencies what as i said that that at that level of generality that memorandum applies across all agencies agencies are free to develop their own standards consistent with that memorandum if they think it's necessary to give more specific guidance to their  community in their individual case but they all have to be concerned this is all relative to informing congress yes well i think that we need to see all of that not just you know what the i think we need to see what the interpretations are thank you madam chair and i'm prepared to go to close session to to deal with whatever needs to be dealt with i'm not appreciate the extra round  mr miller mr let you you said earlier that you were from the executive branch and you would not attempt to congress how to do its job and we appreciate that article one section five clause to the constitution gives congress the power to determine the rules of its proceedings in your view does the rule making clause give congress the authority to determine how to share classified information with and between its members and if not on what basis and to what extent do you believe the president's powers circumscribe the explicit constitutional authority so i'm getting a little bit out of my comfort zone here and the legal interpretation but i think my view on this is that this is one of those areas where each each branch has the right to exercise its own powers which is to say and the problem with that approach is that that frequently leads to collisions so that for example if the congress and this is a pure purely hypothetical example if the congress passed impose a rule that said you can do a limited briefing but were we retain the right to tell everybody else in the membership  or everybody else on the committee about it and the executive didn't like that the executive might say well then ok we're going to exercise our constitutional power to protect national security information and we're not going to brief you at which point the congress might exercise its constitutional power of the purse and say well we're not going to fund these activities and that's not a productive approach to governance in my view and that's why i said earlier i think in response to mr thornberrys question that these are the sorts of things that need to be worked out by a process of accommodation and compromise between the branches well and i agree i mean i think given the disrespect congress and and the executive branch need to work together to set out the framework for  apparatus i think the you know to a great extent it's delegated down i would be surprised if the president himself personally participates in a lot of these decisions but but ultimately as with everything in the executive branch it's his responsibility notification notification to congress is a practical matter carried out with a degree of latitude we just establish that and as a result of consultation and cooperation between the branches on how to handle sensitive matters do you think it helps such consultation and cooperation when members of congress say that the cia lies all the time i would hope that everybody would it would approach the consultation and notification process in a spirit of cooperation and follow up question to mr schiff's earlier round of questions as to what would trigger a notification and i think everybody was trying to go down the the route of when when they something is funded and i think there was a comment significant amount of dollars can you explain what significant amount of money as well that i think your question sir highlights why i keep saying this is a matter of judgment because obviously a significant amount of money that there's no algorithm that you can plug in to determine what significant and and what's a significant amount of money may differ depending upon what agency you're talking about what's what's a significant amount of money for the national reconnaissance office may be different than what the signet significant amount of money for the for the intelligence component of the department of energy or the department so i don't think you can you can quantify that with any number that would be meaningful across the entire intelligence community as well and i don't think you can either and i think that's that's why we are having the discussion that we're having today one final question other than the cia inspector general's report on the proof shoot down are you aware of any substantiated instance in which it has been established that congress was deliberately provided with false information with respect to intelligence activities and other than the cia inspector general's report on the proof shoot down are you awar substantiated finding that the intelligence community systematically mislead or has misled congress i am not aware of any such finding up you're not aware because you're new you're not aware because you haven't done the research you're just not aware well i consider myself you know i'm doing the job to be reasonably know i mean i suppose there is something out there so many specter general reports out there but but i preparations here and i asked about what sorts of reviews of congressional notification processes had been conducted and assuming that i was provided accurate information i'm not aware of anything thank you thank you i wanted to follow up what i was asking before about the leaking of classified information and people being prosecuted and i know you have to get back to me on this but i would appreciate very much if you would let me know when was the last time someone was prosecuted for leaking classified information and then was a guilty plea or did someone just throw in the towel or did the defendant fight it if you could let me know that i'd appreciate it very much thank you ma'am to you if you could inform the whole committee of that course mr holt thank thank you madam chair just a very brief preamble you should want this everyone in the intelligence community should want the fullest possible consultation with congress these are serious matters we want to get the best intelligence results we want to avoid horrific mistakes leader in the intelligence community to actively seek this consultation not perfunctory notification and if i if i am just and recognize and if i may finish and then i'll turn to you for comment  you know by oath and by the constitution although we are not commander in chief we have an equal responsibility to provide for the common defense and so you know if it if it comes to a  you know a push and a tug about how fully congress will be informed i think we stand on pretty pretty solid constitutional grounds let me ask one specific question and then if you could answer that question and then comment as as you might on on my comments have has the director undertaken a review of  previous gang of eight briefings previous restricted briefings from the from the reseating administration revisited those to see if any of them now  no longer need to be restricted has that review taken place is that if not is that review about to take place it hasn't taken place that i'm aware of and i'm not aware of any plans to do  it in response to your broader comments at the beginning i can only say that let me just jump in there and keeping with my earlier comment i would urge the director most strongly to undertake no i was just going to say that i understand that director blair shares your views of the importance of the oversight process and a full consultation with congress and and frankly the value to the intelligence community of having congress involved and i know he shares that i know he's trying to make it happen matt i'm sure you know something that mr holt just said just refresh my recollection on something i am aware of one instance in which there has been a limited briefing since i've since i've been involved here there was one and in fact the office of general counsel was consulted on it three need to be clarified to make a clearer standard an administration and a congress both have to live up to i think that it is not that it's it's a unrealistic expectation to think that we could create any standard that would not ultimately devolve to the exercise of judgment and i'm not i'm not i'm not disagreeing with that but there will be judgment but i guess if i could ask you do you think the statute itself needs to be clarified to help the exercises of judgment and to make it clearer about where the responsibility was and so forth i think that the i think that in my view the better approach as i said is in is in refocusing the intelligence community on the importance of complying with the statutes and statute as it's currently written if you read the statute it provides for gang of a limited notification procedures for covert action it does not on other intelligence collection activities and yet that happens sometimes so but if you read the statute it should do you agree well i think that th as providing some ability to the intelligence community not on whether to inform the committees but on how would how the committees are to be informing that that a practice has grown up that has been more or less tolerated by both sides of more limited briefings on unusual occasions at that obviously deception rather than the norm yeah yeah but that's helpful to me because so there is that provision that says to the extent necessary to protect sources and methods or whatever and and  so your view is that provide greater discretion on for any executive whether to brief and to whom to brief all intelligence activities  as as i said i think that the our view is that it doesn't provide discretion on whether to brief it provides discretion on perhaps on how to brief and who to brief but that if something rises to the level of a significant intelligence activity  to fully briefed congress and if there was if any administration felt there was a need to limit who got briefed it would be this matter of consultation back and forth with basically the decision resting between the fair and ranking member of the full committee on whether other whether it would be limited to fewer members of congress or whether the whole committee seemed to make sense to me seems to provide some clarification to me about going forward rather than this different structure set up under fabio two and three hope someday we can get back to kind of looking at this in a simpler easier way on a bipartisan basis and obviously one needs in the congress we need to work with with with your office administration to make that happen so i appreciate your being here and you mr conway as a man sure misled you mentioned the blind sheik shaikh i got great confidence in the bureau of prisons that wherever we held these guys whether in guantanamo bay or somewhere else that we're going to excavate but one lawyer convicted of material support for a terrorist organization by helping the she'd run the organization from prison can you talk just talk  about that case and also how does that impact bringing guantanamo bay detainees to united states where they may have to have a broader opportunity for visitors and other access that they currently don't have in guantanamo  bay my knowledge of that case is derived from reading newspaper reports and the case reports of it so i don't have any i don't i can't give you any more detailed information than that it is my understanding that that his lawyer was convicted of century passing coded messages it's also my impression from reading the case and i will tell you this is only my impression i have not i don't have any inside information on this but it's my impression that the that the monitoring systems that were in place picked up these conversations and and enabled the prosecution in a manner that was sufficient so that if there had been any genuine risk to national security it could've been taken care of that's just my impression from reading the reports i don't know that for certain i think that by and large the supermax prisons and the ministry of measures that can be put in are adequate to protect national security to protect individuals and that whatever process is put into place for bringing these people here will ensure that the safety of americans is not threatened when you noticeably that that more people getting to have access to the detainees here in united states is less preferable than a limited number of people getting access to them and in guantanamo bay well i'm i'm just not sure that that more people would have access to them here than in guantanamo bay and that's based on we'll move right there