The Chamber of Commerce loved the comedy bit. So did I. It was cathartic, and I believe I repeated it every time I traveled away from Washington for the rest of my tenure. It never failed to draw a laugh or to confirm what people have always suspected about Washington.
The situation in February 2013 was not funny. On February 20, DOD informed Congress of its revised proposal that, unless we avoided sequestration, it would furlough DOD civilian employees for one day of each two-week pay period, starting in April through the remainder of the calendar year, effectively cutting everyone’s salary by 10 percent. On the same day, I met with the agency directors to affirm our plans to manage sequestration, now that it was upon us. Among the topics we discussed was that I would exclude employees in NIP-funded billets from the furlough. The challenge we had been working through was figuring out which billets and which individuals were covered by which program. In many offices, an employee paid with NIP funds might be sitting next to someone paid with MIP funds. No one in a given office knew or cared about this distinction, including the two employees—although if I got my way, they would, very soon. We agreed it would be hard to sort out, and that the people funded by the MIP—who would be furloughed—would likely resent the situation, but it was the best I could do under the law, and so I signed and sent Rich Fravel’s masterful letter to DOD, which made what I felt was a compelling case that we could cover NIP-funded salaries, still absorb our share of the mandated (and mindless) cuts imposed by Congress, and not have to furlough those employees.
I had a series of phone calls with DOD officials over the next few days, including with Ash Carter on February 26—the same day that Chuck Hagel was finally confirmed as secretary. On February 27, between White House meetings, Ash and I met in the Eisenhower Executive Office Building—neutral turf. Not surprisingly, DOD had a different interpretation of my authorities than I did, and Ash challenged my decision to protect as many employees as I could. Ash and I had served together in the Pentagon in the early 1990s, and had great respect for each other, but the IC had made a commitment to protect our people at the off-site in August 2011, and I said we would honor it. I’d decided this was an issue on which I couldn’t and wouldn’t compromise, even if our differences would have to be settled by the White House.
On March 1, 2013, two days after this meeting, sequestration became the law of the land. And on that day—not much happened. Instead of plunging off a fiscal cliff, we slowly started slipping down a hill that just kept getting steeper. Congress didn’t grant us an exception to allow us to decide how to take cuts, so our resources would definitely be affected. I didn’t know yet if I’d managed to protect NIP-funded employees, but MIP-funded staff would take a cut in salary from mandatory furloughs, and they would still have the same workload with 10 percent fewer days to complete it. Our hiring pipeline would slow, as the perpetual backlog of security clearance investigations would balloon. Our ability to replace technology-based collection sources that became compromised or were overcome by the technological progress of the world would be severely undercut.
On Tuesday, March 12, I participated in the first worldwide threat assessment hearing of 2013, this one with the Senate Select Committee on Intelligence, chaired by Senator Feinstein. Feinstein truly was a trailblazer for women in government. She was the first woman to be elected mayor of San Francisco, the first to serve as senator from California, and the first to preside over a presidential inauguration. She was also the first woman to preside as chair of the Senate Select Committee on Intelligence, and she was proud of her legacy. In the summer of 2011, NGA director Tish Long, NRO deputy director Betty Sapp, and PDDNI Stephanie O’Sullivan were present to testify at a hearing, when Feinstein called a halt to it. She couldn’t let the moment go unnoted, and said on the official record, “I have never seen a panel sitting in front of me that was all women, all senior women in the IC.” Senator Feinstein and I had had some tense exchanges over the years, but I always felt I could work with her. In fact, I had grown to have great respect and affection for her.
She opened the hearing by cautioning, “As members know, we will immediately follow this session with a closed one, and I’ll ask that members refrain from asking questions here that have classified answers. This hearing is really a unique opportunity to inform the American public, to the extent we can, about the threats we face as a nation and worldwide.” She welcomed new CIA director John Brennan to his first threat assessment hearing and thanked Bob Mueller for appearing in what was likely his last after twelve years on the job.
She then yielded the floor to Vice Chairman Saxby Chambliss, who had been very angry about Benghazi and felt we were hiding something when Matt Olsen and I had briefed him, but we had all moved on since then. In his statement he focused on terrorism, advocating that we stop giving Miranda warnings to captured terrorists and start sending them to Guantanamo Bay for interrogations. I’m sure he realized that was a policy decision and not mine to make, because he didn’t bring it up later as a question.
Chairman Feinstein then turned the floor over to me to speak on behalf of John, Bob, and the other witnesses. First, I shared my personal feelings on doing televised hearings at all. I’d tried earlier that year to get us out of answering questions on camera and failed because John McCain, ranking member of the Senate Armed Services Committee (which held its own threat hearing), had responded that if I didn’t appear voluntarily, he’d subpoena me. Senator McCain and I had a lot of notable televised exchanges during which he was typically irascible, but we developed a mutually respectful, if sometimes testy, relationship when the red light above the camera wasn’t on, mostly because we were both old and crotchety Southeast Asia veterans.
In my opening statement on March 12, I noted that our foreign partners and adversaries watched these hearings, too, and warned, “While our statements for the record and your opening statements can be reviewed in advance for classification issues, our answers to your questions cannot. And our attempts to avoid revealing classified information sometimes lead to misinterpretation, or accusations that we’re being circumspect for improper reasons.” In fact, we had submitted a highly detailed written statement that laid out the extent of global threats in as many specifics as we could possibly publish in unclassified form. The 2013 statement was somewhat historic, as “cyber” had displaced “terrorism” as the first threat topic addressed.
Having expressed my reservations, I turned to the impact sequestration would have on national security, noting that the associated budget cut was “well over $4 billion, or about 7 percent of the NIP,” and that the way the cut was structured compounded its damage because it restricted our ability to allocate deductions in a balanced and rational way. Explaining that I would discuss the subject in greater detail in the classified session, I laid out examples in a carefully constructed script, explaining how sequestration would force the nation to accept unnecessary risk to our security as the IC scaled back global coverage, and because it would force us to restructure contracts, it absurdly would end up costing us more money in the long run. I talked about protecting the IC workforce, and that we recognized we were not immune to cuts, but that we needed the ability to manage cuts, rather than being forced to absorb them on a pro rata basis. I drew on my experience:
Unfortunately, I’ve seen this movie before. Twenty years ago, I served as director of the Defense Intelligence Agency, the job that Lieutenant General Mike Flynn has now. We were then enjoined to “reap the peace dividend” occasioned by the end of the Cold War. We reduced the Intelligence Community by 23 percent. During the mid- and late ’90s, we closed many CIA stations, we reduced HUMINT collectors, cut analysts, allowed our overhead architecture to atrophy, and we neglected basic infrastructure needs, such as power, space, and cooling, and let our facilities decay. And most damaging, most devastatingly, we badly distorted the workforce.
I concluded with the ominous note that people wouldn’t appreciate the extent of in
telligence losses from sequestration until they resulted in disaster: “Unlike more directly observable sequestration impacts, like shorter hours at public parks or longer security lines at airports, the degradation to intelligence will be insidious. It will be gradual and almost invisible—unless and until, of course, we have an intelligence failure.”
I then turned to the threats we’d cited in our statement for the record. I explained why “cyber” had been moved up to lead the report. I talked about how we’d added global shortages of food and water, along with disease and pandemics—all influenced by climate change—as drivers of instability in our list of threats. I spoke on how the terrorist threat had evolved, no longer driven by al-Qaida in Afghanistan, but was now more diversified, decentralized, global, and persistent. I discussed the fragile new governments in the Arab world, whose intentions we were still trying to understand. I talked about the proliferation of weapons of mass destruction, including the ambitions of North Korea and Iran to achieve nuclear state status and the huge volumes of chemical and biological agents in Syria, and how the civil war there had already turned into a humanitarian disaster unlike anything we’d seen since World War II. After describing the global picture, I turned to specific threats by region.
Over the next two hours, I answered questions on North Korean provocations, on the Benghazi attack and the talking points used by Ambassador Susan Rice, about cyber, about sanctions on Iran, about Iran and North Korea purportedly sharing ballistic missile technology, about Egypt and the Muslim Brotherhood, Egyptian unrest, the state of the opposition forces in Syria, the role of Iran in Syria, several more takes on the effect of Iranian sanctions, and more about politicization of the Benghazi talking points. I answered Senator Chambliss’s question on sequestration with “I am not, and none of us are suggesting that we won’t take our fair share of the cuts. All we’re asking for is the latitude on how to take them, to minimize the damage.”
Senator Mikulski asked to speak out of turn, as she was hurrying to the Senate floor, in her role on the Appropriations Committee, to introduce a continuing resolution to keep the government running. She said to me, “In terms of the flexibility that you’ve just asked for, that the Chair has spoken pretty firmly with me about, along with other members, we will not have that in our bill. We were told that was a poison pill,” meaning that any attempts to protect the IC would cause the government to shut down. I always appreciated Senator Mikulski’s candor about congressional dynamics, and that she always had both the IC’s interests and the big picture in mind.
When all committee members had used their allotted five minutes, Chairman Feinstein opened for a second round of questions on camera before we’d adjourn to the closed hearing. Only Senators Feinstein, Angus King, and Ron Wyden had “round two” questions, hers on Hezbollah and Senator King’s on extremism in North Africa. Senator Wyden’s seemed to come out of left field:
And this is for you, Director Clapper—again, on the surveillance front. And I hope we can do this in just a yes or no answer, because I know Senator Feinstein wants to move on. Last summer, the NSA director was at a conference and he was asked a question about the NSA surveillance of Americans. He replied, and I quote here, ‘‘The story that we have millions, or hundreds of millions, of dossiers on people is completely false.’’ The reason I’m asking the question is, having served on the committee now for a dozen years, I don’t really know what a dossier is in this context. So what I wanted to see is if you could give me a yes or no answer to the question, does the NSA collect any type of data at all on millions, or hundreds of millions, of Americans?
After nearly two hours in the “hot seat,” I was tired, and annoyed that, months after we’d settled the FISA Section 702 reauthorization, Wyden was bringing it up again at this particular hearing, and on television. I’d explained to him in November that I couldn’t give him a number of incidental collections, but he and I both knew it wasn’t “hundreds of millions.” Also, his question specifically mentioned “dossiers”—collections of multiple reports on an identified person or topic—not single inadvertent intercepts on someone whom we hadn’t identified.
I flipped the microphone on. “No, sir,” I replied and then flipped it off.
“It does not?” he asked incredulously.
We did have “dossiers”—although that’s not the word I would have chosen—on spies and suspected terrorists in the United States. The Foreign Intelligence Surveillance Court issued us approximately two thousand warrants for domestic surveillance every year, amounting to twenty thousand or so since 9/11, a number that was classified at the time. The number of foreign persons overseas we collected on was much, much larger—and definitely classified. As I’d explained in November, I didn’t—couldn’t—know the number of inadvertent, “incidental” intercepts without the IC intentionally trying to identify Americans in intercepted communications, and every other number I knew relating to surveillance I couldn’t reveal publicly. In ten minutes, we’d be in a secure hearing room, and then, without having to tap dance around classification while our adversaries were watching me on TV—something we knew they did—I could once again explain 702 procedures. On camera, I put my fingertips to my forehead, a gesture my staff says is a “tell” that I’m getting aggravated.
I flipped the mic back on and, controlling my voice, replied, “Not wittingly. There are cases where they could inadvertently perhaps collect, but not wittingly.”
Wyden again looked incredulous and responded, “All right. Thank you. I’ll have additional questions to give you in writing on that point, but I thank you for the answer.”
An hour or so later, after the classified follow-on hearing, as our car was crossing the Potomac on our way back to Liberty Crossing, Bob Litt brought up Senator Wyden’s question. Bob said that he knew what I had been thinking in my response, but explained that Senator Wyden’s question wasn’t about FISA Section 702 authorities. What he had actually been asking about was Section 215 of the Patriot Act, and in that context, Bob said I’d answered incorrectly.
After taking a moment to recall what, precisely, the Patriot Act Section 215 was, I pushed back. I replied that Wyden’s question made zero sense to me in the context of Section 215. NSA used the authorities under Section 215 to keep a database of phone call records that consisted only of metadata—phone numbers and times, not even the names associated with the numbers, much less the content of the calls. The rationale for the NSA database was that, if we discovered a terrorist was calling into the United States and knew the phone number he was calling from, we could look at the phone records to see what numbers he was calling to, and how long the connection had lasted. If the call records indicated something worth investigating, obtaining caller identities and actually listening to the content of the calls would require requesting a warrant from a court under a different authority than Section 215. In short, you can’t create a dossier on someone if you don’t know who the phone number belongs to or what was said on the call. In any case, because the NSA program under Section 215 was highly classified, Senator Wyden wouldn’t—or shouldn’t—have been asking questions that required classified answers on camera. He hadn’t even attended the closed briefing where we could have discussed the Patriot Act Section 215 in detail.
When I asked Bob if he was certain that Senator Wyden had been talking about Section 215, he apologized and said that he knew that Wyden’s question concerned Section 215, because the senator’s office had sent over a note just the day before that said he was going to ask about that subject. It was one of hundreds of questions the ODNI staff had planned to prep me for, but—between sequestration and the North Korea nuclear test—we hadn’t gotten to this particular obscure one in our limited time and on such short notice. I replayed Senator Wyden’s question in my head. He’d used the word “dossiers” several times, but his last sentence—the sound bite, the critical question at the end—was, “Does the NSA collect any type of data at
all on millions, or hundreds of millions, of Americans?” When I walked into the office, my administrative assistant, Stephanie Sherline, asked how the hearing had gone. “I screwed up,” I told her and followed that up with stronger language.
Months later, after my mistake had become a scandal, Bob would write letters to the New York Times and the New Yorker, reporting that I looked “surprised and distressed” when he’d told me my answer was incorrect. I was. Over the years I’d given plenty of answers that committees didn’t like, but I had never intentionally misrepresented the facts—which is precisely what this looked like.
A few days after the hearing, Bob spoke with John Dickas, a member of Senator Wyden’s staff, on a secure phone call and explained my mistake. Dickas asked Bob to have me correct the mistake on the public record, but Bob pointed out that I could not, because making a public correction would mean revealing a classified program. He said that my error had been forgetting about Section 215, but even if I had remembered it, there still would have been no acceptable, unclassified way for me to answer the question in an open hearing. Even my saying, “We’ll have to wait for the closed, classified session to discuss this” would have given something away. Looking back, I think Senator Wyden phrased his question in the obscure way he did because he was trying to avoid revealing the classified program himself. For the time, our offices let the matter drop. I ought to have sent a classified letter to Senator Wyden explaining my thoughts when I’d answered and that I misunderstood what he was actually asking me about. Yes, I made a mistake—a big one—when I responded, but I did not lie. I answered with truth in what I understood the context of the question to be.
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