[Senate Hearing 112-308]
[From the U.S. Government Publishing Office]
S. Hrg. 112-308
NOMINATION OF MATTHEW G. OLSEN TO BE
DIRECTOR, NATIONAL COUNTERTERRORISM CENTER
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
TUESDAY, JULY 26, 2011
__________
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
DIANNE FEINSTEIN, California, Chairman
SAXBY CHAMBLISS, Georgia, Vice Chairman
JOHN D. ROCKEFELLER IV, West OLYMPIA J. SNOWE, Maine
Virginia RICHARD BURR, North Carolina
RON WYDEN, Oregon JAMES E. RISCH, Idaho
BARBARA A. MIKULSKI, Maryland DANIEL COATS, Indiana
BILL NELSON, Florida ROY BLUNT, Missouri
KENT CONRAD, North Dakota MARCO RUBIO, Florida
MARK UDALL, Colorado
MARK WARNER, Virginia
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
David Grannis, Staff Director
Martha Scott Poindexter, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
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JULY 26, 2011
OPENING STATEMENTS
Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California. 1
Chambliss, Hon. Saxby, Vice Chairman, a U.S. Senator from Georgia 3
Conrad, Hon. Kent, a U.S. Senator from North Dakota.............. 5
WITNESS
Olsen, Matthew G., Director-Designate, National Counter-Terrorism
Center......................................................... 6
Prepared statement........................................... 9
SUPPLEMENTAL MATERIAL
Letter Dated July 22, 2011, from William Lynn to Senator Dianne
Feinstein...................................................... 15
Letter Dated July 22, 2011, from Keith Alexander to Senator
Dianne Feinstein............................................... 16
Letter Dated July 20, 2011, from Mike McConnell to Senators
Dianne Feinstein and Saxby Chambliss........................... 18
Letter Dated July 20, 2011, from Michael Mukasey to Senator
Dianne Feinstein............................................... 20
Letter Dated July 14, 2011, from David S. Kris to Senators Dianne
Feinstein and Saxby Chambliss.................................. 22
Letter Dated July 15, 2011, from Michael Leiter to Senators
Dianne Feinstein and Saxby Chambliss........................... 23
Letter Dated July 21, 2011, from Kenneth Wainstein to Senators
Dianne Feinstein and Saxby Chambliss........................... 25
Letter Dated July 22, 2011, from Timothy J. Heaphy to Senators
Dianne Feinstein and Saxby Chambliss........................... 28
Letter Dated July 25, 2011, from J. Patrick Rowan to Senators
Dianne Feinstein and Saxby Chambliss........................... 30
Letter Dated July 25, 2011, from Matthew W. Friedrich to Senators
Dianne Feinstein and Saxby Chambliss........................... 32
Letter Dated July 14, 2011, from Frank R. Wolf to Senator Dianne
Feinstein...................................................... 33
Letter Dated July 21, 2011, from Frank R. Wolf to Senator Dianne
Feinstein...................................................... 65
Letter Dated July 22, 2010, from Ronald Weich to Senators Dianne
Feinstein and Saxby Chambliss.................................. 79
Questionnaire for Completion by Presidential Nominees............ 98
Additional Prehearing Questions.................................. 207
Letter from Don W. Fox, Office of Government Ethics, Dated July
11, 2011, to Senator Dianne Feinstein Transmitting Public
Financial Disclosure Report.................................... 231
NOMINATION OF MATTHEW G. OLSEN TO BE
DIRECTOR, NATIONAL COUNTERTERRORISM CENTER
----------
TUESDAY, JULY 26, 2011
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 10:02 a.m., in
Room SD-562, Dirksen Senate Office Building, the Honorable
Dianne Feinstein (Chairman of the Committee) presiding.
Committee Members Present: Senators Feinstein, Wyden,
Mikulski, Conrad, Udall of Colorado, Warner, Chambliss, Snowe,
and Coats.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, CHAIRMAN, A U.S.
SENATOR FROM CALIFORNIA
Chairman Feinstein. The hearing will come to order.
The process will be as follows: I will make some remarks.
The Vice Chairman will make some remarks. We will then call on
the distinguished Senator from North Dakota for remarks. And
then we will proceed. I trust that is agreeable with everybody.
The Committee meets today to consider the President's
nomination of Matt Olsen to be the Director of the National
Counterterrorism Center.
Mr. Olsen is currently the general counsel of the National
Security Agency, and he's held a number of senior positions in
the Department of Justice, including the National Security
Division and the Federal Bureau of Investigation.
Mr. Olsen has appeared as a witness before this Committee
previously, and he has frequently briefed members and staff
over the last several years. I'd like to welcome him back to
this Committee.
I'd like to begin today by discussing the current terrorist
threat and the role of what we call NCTC, which Mr. Olsen will
be leading, if confirmed.
The NCTC is the central agency within the United States
government dealing with the identification, prevention,
disruption and analysis of terrorist threats. It's very
important. While it's best known for its role in consolidating
and analyzing terrorism-related intelligence, it also plays an
important role in conducting strategic planning for
counterterrorism actions across our government.
The NCTC grew significantly in size, capability and
maturity under the previous Director, Michael Leiter. Its
successes and those of the broader counterterrorism community
include numerous terrorist plots that were thwarted, both here
at home and abroad.
NCTC has also achieved less noticed but equally important
advances in the sharing of threat information across the
intelligence community--a streamlining, if you will, of
intelligence, an improved watch-listing capability, and greatly
improved analytic capability.
Despite improvements and reforms, especially in response to
the findings and recommendations of this Committee and others
after the Christmas Day attempted attack by Umar Farouk
Abdulmutallab, I'm still very concerned about the possibility
of terrorist attacks against the United States. I believe this
is a very critical time.
The period leading up to the 10th anniversary of 9/11 is a
period of heightened threat. Despite counterterrorism pressure
against al-Qa'ida in Pakistan, including the successful strike
against Usama bin Ladin in Abbottabad, the group remains
dangerous and vengeful.
At the same time, the threat from al-Qa'ida's affiliates
and adherents around the world has increased and presents
particular challenges. I'm especially concerned about the
threat to the United States homeland from al-Qa'ida in the
Arabian Peninsula--AQAP, we call it--as well as threats
emanating from terrorist safe havens in Somalia and elsewhere.
This means, at least to me, that this is a crucial time for
our counterterrorism establishment to be at full strength and
not to be leaderless. NCTC is a linchpin of this establishment.
So I'm very pleased that the President has moved quickly to
nominate Mr. Olsen, an individual serving in a senior
intelligence community position today, to take the helm of this
organization.
Let me take just a moment to read the first paragraph from
a letter of support for Mr. Olsen's nomination, written by
General Keith Alexander, the Director of the National Security
Agency.
``I am writing to wholeheartedly endorse the nomination of
Matthew G. Olsen to be the next Director of the NCTC. Matt has
served as the National Security Agency's general counsel for
the past year and has shown true leadership, outstanding
judgment and decisionmaking ability. He's been a key part of
the agency's efforts to provide intelligence that allows our
government to counter terrorist threats. In my opinion, Matt is
superbly qualified to hold this critical intelligence community
position.''
Before his current position at NSA, Mr. Olsen served in the
Department of Justice for 18 years, including 12 years as a
federal prosecutor. In a letter of support for Mr. Olsen's
nomination, former Attorney General Michael Mukasey wrote of
Mr. Olsen, ``He was not only an excellent lawyer and manager,
but also an exemplary person in dealing with his colleagues.
Matt has, in abundance, every personal and professional quality
and skill you could hope to find in a nominee to head the NCTC.
His nomination has my unqualified support.''
And finally, there is a letter from Mike McConnell in which
he also offers his strongest possible support. ``As a 44-year
veteran serving the nation as a member of the intelligence
community, I had many opportunities to work with professionals
of the Department of Justice. This was particularly true when
serving as the Director of the National Security Agency and as
the Director of National Intelligence. During those years of
service, I never met or served with a more accomplished or
dedicated professional than Matt Olsen. He understands the IC,
its processes and procedures, and has served with
distinction.''
Well, I can go on and on, and I have many more pages here.
I'm not going to do it. Suffice it to say that I believe that
we have an extraordinarily qualified professional which can
step into the leadership of NCTC and, at this very potentially
vulnerable period, provide it with the leadership it really
does deserve and merit.
So, with that, Mr. Vice Chairman, may I ask you to make
your remarks? Thank you.
OPENING STATEMENT OF HON. SAXBY CHAMBLISS, VICE CHAIRMAN, A
U.S. SENATOR FROM GEORGIA
Vice Chairman Chambliss. Thank you very much, Madam Chair.
Mr. Olsen, congratulations on being nominated to be the
Director of the National Counterterrorism Center. Thank you for
your service to this country, especially in some very demanding
roles over the last several years, and we also welcome your
family and thank them for their great support to you and thus
to our country. So we appreciate that very much.
I also want to just say a special word of thanks to Mike
Leiter, who you're going to be succeeding. You and I talked
about this the other day. You and Mike are good friends. You
know the kind of leadership he's provided in some very
difficult circumstances. And while we've still had some growing
pains at NCTC, Mike has brought us through some very tough
times and I think has kind of righted the ship at times when it
headed in a wrong direction. And I'm very appreciative of
Mike's service and of his leadership.
Mr. Olsen, your nomination comes at a critical point in our
history in our fight against terrorism. While we've made
considerable progress against al-Qa'ida in the FATA, we face
growing threats as al-Qa'ida continues to spread.
In my view, AQAP in Yemen poses the biggest threat to our
safety and I urge you to make dismantling that group your
primary focus before they strike us successfully here at home.
This past spring brought immense changes to the Middle
East, but it remains unclear what effect this may have on our
long-term counterterrorism efforts. This uncertainty is further
complicated by our own current fiscal condition, where resource
constraints will undoubtedly impact our national defense and
counterterrorism enterprise.
Amid these new threats it is critical to our national
security that the NCTC fully perform its mission. You and I
have talked about some of the failings leading up to the
Christmas Day bombing attempt, especially NCTC's inability to
connect the dots. While there has been much progress, a lot of
work remains, including on information-sharing and detainee and
data retention.
Whether it is an attack or an imminent threat like 12-25 or
Times Square, you will often be the first point of contact with
this Committee. We will expect your unvarnished analytic
judgments, the facts and frank assessments. In the past,
efforts to control the message for political purposes have
resulted in Congress being given little or inaccurate
information. That's not pointing a finger at this
administration; it's happened in other administrations. As the
NCTC Director, you will be expected to be forthright with this
Committee and to push back on any effort to keep information
from us.
Along these same lines, I have shared with you some of my
concerns about the recommendations made by the Guantanamo
Review Task Force, which you directed. It disturbs me that
under your leadership detainees were transferred or recommended
for transfer to Yemen throughout 2009, even as the intelligence
community warned the administration about the security
situation there.
We already knew that former Gitmo detainees were in AQAP
leadership in Yemen, but it was only after AQAP's failed
Christmas Day attack that the transfers stopped. In my mind
this was an unacceptable risk for us to take. You mentioned in
my office the pressure on the task force, in part because you
were guided by the executive order on closing Gitmo. I suspect
that the one-year deadline for closing Gitmo affected task
force analysis and decisions.
When the only original two options for each detainee were
prosecution or transfer, it seems like there would have been
significant pressure to lean towards transfer. I wonder if this
explains why, after the initial task force review found 92
detainees suitable for transfer, a second review came up with
40 more transferable detainees and another 30 for conditional
detention, which at the time was essentially delayed transfer.
Congressman Frank Wolf of Virginia has expressed similar
concerns about transfer decisions in a letter to the Committee,
and some of the interactions that he had with you regarding the
potential transfer of Uighurs into the United States. I am
concerned that a member of Congress thinks he has been misled
so I think it would be helpful if you explained your
interactions with Congressman Wolf, and you and I have talked
about this and I want to give you the full opportunity to do
that this morning.
But I urge you to be as forthcoming and direct about this,
including information provided to or withheld from Congress on
this issue. Ironically, in your new position one of your jobs
will be tracking former detainees who have re-engaged,
including some recommended for transfer by the task force. I
urge you to take a fresh look at any intelligence on Gitmo
detainees.
Given the threat from AQAP and a recidivism rate now over
26 percent, we are in no position to let any more dangerous
detainees go. Unfortunately, the drive to close Gitmo has had
the immediate and negative impact of leaving us with few
options to detain terrorists outside of Afghanistan. As we draw
down in Afghanistan, we will even lose that option.
I'm sure you have seen press stories noting that the United
States may be killing terrorists but we are not trying very
hard to capture them, mostly because Gitmo has been taken off
the table. Yet capturing and interrogating terrorists remains
one of the best ways to get actionable intelligence and to
prevent future threats.
Again, Mr. Olsen, I congratulate you on your nomination and
these issues need to be laid on the table and need to be
fleshed out because the direct point of contact with this
Committee is going to be you in so many instances, and we need
to certainly have that feeling of trust that we have developed
and need to develop stronger over the coming years while you're
in this position.
So thank you, Madam Chair.
Chairman Feinstein. Thank you very much, Mr. Vice Chairman.
And now I'd like to recognize the distinguished Senator from
North Dakota, the Chairman of our Budget Committee on the
Democratic side, Kent Conrad. Mr. Chairman, welcome.
STATEMENT OF THE HONORABLE KENT CONRAD, A U.S. SENATOR FROM
NORTH DAKOTA
Senator Conrad. I thank you, Chairman Feinstein. Thank you,
Vice Chairman Chambliss. Senator Coats, good to see you, and
Senator Wyden. Senator Udall, Senator Warner.
I am delighted to be able to introduce Matt Olsen. His
parents are from North Dakota, people I've known a very long
time. Matt's roots are deep in North Dakota. He returns there
every chance he gets with his family, his wife, Fern, and his
children, Ellie, Nate and Will. His sister Susan is with us as
well.
As I said, I've known this family for a very long time, and
they are the best that it gets. His father was the chief of
staff to the man that I defeated for the United States Senate--
and so I know how good he really is. Van passed away three
years ago, but I know he's looking down with a twinkle in his
eye today, proud of Matt and all that he has accomplished.
You know, after defeating Van's boss for the United States
Senate, I came here with some trepidation of what my
relationship might be like with Van and his wife Myrna. They
treated me with the greatest courtesy and over time became very
good friends--the highest quality people that our state has to
offer, and I believe the highest quality of people in the
country. These are Americans through and through.
Matt, your father would be so proud of you at this moment.
I know he'd be looking down and saying, the boy's done good.
And indeed you have. You've served your country with
distinction at the Justice Department, the FBI and the National
Security Agency, where you're currently the general counsel.
Your public service has spanned three presidential
administrations. That's a notable and impressive accomplishment
and it speaks volumes about your competency and your
professionalism.
Colleagues, Matt has already accomplished so much, and now
the President has asked him to assume one of the most important
and demanding jobs in the intelligence community, the Director
of the National Counterterrorism Center. We all know that the
NCTC's mission is vital to combat terrorism at home and abroad
by analyzing the threat, sharing the information with our
partners and integrating all instruments of national power to
ensure unity of effort. There is no doubt in my mind that Matt
has the experience and the character to lead the NCTC.
But don't just take my word for it. Admiral Mike McConnell
served as Director of National Intelligence in President Bush's
administration, and as Director of the NSA in the Clinton
administration.
Here's what Admiral McConnell had to say about Matt.
``Having known and worked with Mr. Olsen for over four years, I
have observed him to be the utmost professional, dedicated to
the security of the nation. He understands the intelligence
community and the law and processes needed to keep us safe. He
has great respect for the law, our values and the activities
needed to ensure the safety of the nation. I have every
confidence that, if confirmed, Mr. Olsen will serve the nation,
the Congress, the administration and the intelligence community
at the highest level of service and performance.''
Colleagues, Matt is smart. He is honest and he is a true
professional and an absolute patriot. I can't put it much
better than Admiral McConnell did. I hope very much that this
Committee will move quickly on his confirmation and that our
colleagues in the Senate will follow suit. It is really my
honor to be here with Matt Olsen.
Chairman Feinstein. Thank you very much, Mr. Chairman.
Appreciate the remarks. I know you have a busy day. Much is
happening, so you feel free to stay or leave, whichever you
wish.
Senator Conrad. I'll join you.
Chairman Feinstein. Thank you. Thank you very much.
Mr. Olsen, we will now turn to you. I was going to
introduce your family. Senator Conrad did to some extent, but
perhaps you'd go a little further and even ask them to stand
up.
STATEMENT OF MATTHEW G. OLSEN, DIRECTOR-DESIGNATE, NATIONAL
COUNTERTERRORISM CENTER
Mr. Olsen. Thank you. Thank you very much, Madam Chairman,
and thank you very much, Vice Chairman Chambliss.
I want to thank the entire Committee for taking the time to
consider my nomination this morning. I especially want to thank
Senator Conrad for that very warm and personal introduction. I
really appreciate that.
And I am grateful to the many members of the Committee that
have had the opportunity over the last two weeks to meet and
have conversations with. I really appreciate the thoughtful
consideration that the Committee is giving to my nomination.
At the outset, I want to thank the President for having the
confidence to nominate me for this position and the Director of
National Intelligence for supporting me. I am tremendously
honored and humbled to be considered for this position.
Let me also, if I may, take a moment to express my
condolences to the people of Norway in the aftermath of the
tragic attacks in Oslo last week. My grandfather emigrated to
North Dakota from Norway at the age of 16. I have extended
family that was in Oslo. I think that these heartbreaking
events serve as a reminder to all of us of the importance of
working together as an international community to prevent these
sorts of acts of terror.
And I appreciate very much, Madam Chairman, the opportunity
to introduce my family. So I sit here today before you because
of the support of my family and my friends and my colleagues,
many of whom are here today. My wife, Fern, is directly behind
me. My children--my daughter Elizabeth, my oldest son Nate, my
youngest son, Will--are all here with me.
I especially want to acknowledge my mother, Myrna, who is
sitting here on the end; my father, Van, who was warmly
remembered in Senator Conrad's remarks. Along with their love
and guidance, my parents, my mother and father, have provided
my sisters Susan and Jennifer with an example of how to live, I
believe, with honor and integrity and devotion to others, and I
couldn't be more grateful for them being here today.
Madam Chairman and Vice Chairman Chambliss, members of the
Committee, today, as we approach the 10th anniversary of al-
Qa'ida's attacks on September 11th, it is appropriate to
reflect on that day, the day that our nation suffered the
single most devastating attack in our nation's history.
It was in the aftermath of that attack of that day that
Congress established the National Counterterrorism Center. NCTC
is the primary organization in the federal government for
analyzing, integrating and sharing all-source intelligence
information pertaining to terrorism and counterterrorism. In my
view, no other organization is as singularly focused on
preventing acts of terrorism.
A decade after the September 11th attacks, we remain at war
with al-Qa'ida and its affiliates. Thanks to the leadership of
this Committee and to Congress, and thanks to the work of
thousands of dedicated men and women in the intelligence
community, including, as well, our men and women in uniform
across the globe, al-Qa'ida is weakened.
At the same time, al-Qa'ida and its adherents around the
world, as well as other terrorist organizations, continue to
pose a very significant threat to our country. Confronting this
threat and working with focus and resolve to prevent a
terrorist attack is NCTC's mission, first and foremost.
And to fulfill this solemn responsibility, NCTC brings
together a wide array of dedicated and talented professionals.
This diverse workforce is, in my view, NCTC's greatest asset.
In addition, NCTC embodies the principle that we all must
serve as one team to protect the nation. We must work
collaboratively and we must use every element of our national
power to bring relentless and focused pressure against al-
Qa'ida and its adherents, as well as other terrorist networks
around the globe.
I've been privileged to serve--as a number of comments that
were made this morning--in leadership positions dedicated to
national security during my almost 20 years of career
government service.
As the general counsel of the National Security Agency,
I've guided it and supported NSA's intelligence operations and
I've ensured that the agency's activities adhere to the
Constitution and the laws that govern its activities and that
protect civil liberties and privacy of Americans.
At the FBI, I was privileged to serve as counsel to
Director Mueller, and in that role I was able to contribute to
the transformation of the FBI into a world-class intelligence
organization focused on preventing and disrupting potential
terrorist plots.
As a career official of the Department of Justice, working
closely with this Committee and with Congress, I helped stand
up the new National Security Division at Justice, and I managed
the implementation of the landmark changes to the Foreign
Intelligence Surveillance Act that Congress passed in 2008.
I also supervised the Guantanamo Review Task Force,
bringing together national security professionals from across
the government to compile and analyze intelligence information
on detainees.
And, finally, I served for about 10 years in the District
of Columbia as a federal prosecutor. In that role I learned the
value of working as a team with investigators and operators,
and I learned the fundamental importance of finding and
following the facts wherever they lead.
If I am honored to be confirmed to this position, I can
assure you that I am committed to forging a strong and
cooperative relationship with Congress. I believe, based on
years of experience as a career government official, that
congressional oversight is essential to NCTC and the effective
conduct of intelligence activities.
Members of Congress and particularly members of this
Committee bring a vital perspective to the difficult issues
that the intelligence community faces. The role of Congress is
critical to building the trust of the American people in NCTC
and in the intelligence community. And if confirmed, I commit
to providing full and timely communication and transparency
with the Congressional oversight Committees.
NCTC's fundamental mission is to protect the nation from a
terrorist attack. We must pursue this mission with vigilance
and resolve. If confirmed, I pledge to do my very best to earn
your trust and to give this effort my all.
Madam Chairman, Vice Chairman, thank you very much for the
honor of appearing before you.
[The prepared statement of Mr. Olsen follows:]
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Chairman Feinstein. Thank you very much, Mr. Olsen.
I'd like the Members to know we have received the strongest
and largest collection of letters on behalf of this nominee,
certainly since I've been on this Committee, and it's from the
heads and deputy heads of many different agencies. So those
letters, along with the two letters from Congressman Frank Wolf
and the addendums to those letters will be placed in the
record.
[The information referred to follows:]
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Chairman Feinstein. A housekeeping duty, if I may. If you
would answer the following questions yes or no, please: Do you
agree to appear before the Committee here or in other venues
when invited?
Mr. Olsen. Yes.
Chairman Feinstein. Do you agree to send officials from the
NCTC and designated staff when invited?
Mr. Olsen. Yes.
Chairman Feinstein. Do you agree to provide documents or
any other materials requested by the Committee in order for it
to carry out its oversight and legislative responsibilities?
Mr. Olsen. Yes.
Chairman Feinstein. Will you ensure that the National
Counterterrorism Center and its officials provide such material
to the Committee when requested?
Mr. Olsen. Yes.
Chairman Feinstein. Do you agree to inform and fully brief,
to the fullest extent possible, all members of this Committee
of intelligence actions and covert actions rather than only the
Chairman and Vice Chairman?
Mr. Olsen. Yes.
Chairman Feinstein. Thank you very much.
Mr. Olsen, the ranking member brought up the questions that
have been raised by a Member of Congress. We discussed them in
our meeting. And in your prepared testimony, on page five, you
discuss them as well.
You indicate that in April of '09 you were part of a team
of officials who provided a briefing about the initial stages
of the process of reviewing detainees. And you were authorized
during the briefing to discuss the review process. You were not
authorized to discuss deliberations or decisions on specific
detainees.
And so, in accordance with those rules, you state, on page
five, ``We provided a full and candid briefing about the
detainee review process.'' So I would like you to address this
issue--you have read Congressman Wolf's letter--and address it
head on, if you will, for this Committee.
Mr. Olsen. Yes. Thank you very much, Madam Chairman, and,
as well, Vice Chairman Chambliss, for providing me with the
opportunity to address those questions that were raised.
Let me just say at the outset that there were essentially,
as I understand from Congressman Wolf's letter, two questions
or concerns.
One was that we altered threat information--that that
information was altered in the course of the task force review
and that there was intentional misleading of him during a
briefing. And I will say, just at the outset, that neither one
of those things occurred. And I appreciate the opportunity to
provide additional explanation of that.
First, the question of whether or not threat information
was changed or altered over the course of the task force
review--the job that I had as the executive Director of the
Guantanamo review task force in 2009 was to bring together
career professionals and compile all of the information that
had been obtained over the course of several years about each
detainee--something that hadn't been done before--and to bring
that information together in one place and to give that
information a fresh and independent and objective review.
We took that information and under my leadership, and under
guidelines that we adopted as part of an interagency effort, we
looked at that information. It was my responsibility to ensure
that that was done in an impartial and unbiased way, that all
the information was reviewed, that it was done with an
interagency approach, that every dissenting or disparate
opinion or view was fully aired.
And then we took that information and presented it to a
group of senior-level decisionmakers, along with our
recommendations. And then the decisions were made based on that
information by a senior-level group or review panel from six
different agencies. The result of that work over the course of
a year was that all 240 detainees were given a disposition, and
in every single case, every detainee was determined on a
unanimous basis on what the appropriate status was of that
detainee.
There was never, at any time, any effort to change threat
information, to hide from any fact. The explicit guidance--my
particular responsibility, I believed, was to follow every fact
and be as precise and specific and rigorous in analyzing those
facts and then presenting that information to the policy-level
decisionmakers.
There were occasions when we looked at facts and looked at
them differently than prior assessments had done. In
particular, JTF-GTMO--joint task force at Gitmo--had prepared
assessments. We looked at those. Those were all part of our
information. And in many cases--most cases, I believe--we
agreed with those assessments. But there were instances when we
looked at those facts and came to different conclusions. But
there was never, on any occasion, an effort to change, alter or
hide from those facts. Those were all fully aired.
On the second question, if I may--the question of whether
or not I intentionally misled Congressman Wolf in a briefing--
again, I did not. We met in April of 2009, in his office. I was
part of a team from the Department of Justice and the White
House that went to brief Congressman Wolf on not just the
Guantanamo review task force but all three of the task forces
that were set up under the three executive orders issued by
President Obama in January of 2009.
This was at the very early stages of our review process. We
had really just begun the effort to review the first set of
detainees. And it was made clear to Congressman Wolf before
that briefing and during that briefing that the ground rules
would be that we could discuss the process that we were
undertaking to conduct that review, but that we were not
authorized to discuss any particular decisions or any specific
detainees.
We did, in fact, lay out the process for him, and I
understand that now he has expressed concern that he was not
given full information about the actual decisionmaking status
with respect to the group of detainees known as the Uighurs,
the Chinese Uighurs, who were at Guantanamo. I did not discuss,
because I was not authorized to discuss or make a unilateral
decision as a career Department of Justice official, what the
status was of that decisionmaking process.
I certainly--as I've said to Congressman Wolf in a
conversation I had with him on the telephone a few months ago,
I understand his frustration and I very much, very much regret
that he has the view that I intentionally misled him. And I do
hope that if I'm confirmed, I would have the opportunity to
regain his trust and work with him in a collaborative and
cooperative way, moving forward.
I will say that as a general matter I have been candid,
honest and direct in all of my interactions with Congress. I
have met many times with staff and Members, particularly of
this Committee, over the course of my career as a career
government official, not only on the Guantanamo review but also
on the FISA Amendments Act and other matters.
And I have taken it as a matter of pride and a deeply held
view that I have been honest and candid and direct on all
occasions. And as I said, I do hope I have the opportunity to
regain the trust of Congressman Wolf and work with him.
Chairman Feinstein. Thank you very much. Mr. Vice Chairman.
Vice Chairman Chambliss. Thanks, Madam Chair.
Mr. Olsen, let me carry that question one step further
because, obviously, it's a very, very serious issue when you
have a member of Congress who thinks he's been misled. So I
want you to have full opportunity to explain it. And I want to
quote to you what Congressman Wolf's recollection of the
scenario was. In the memorandum that he prepared within the
last couple of weeks that I know you've had the opportunity to
look at, here's what he says:
He said, ``It has recently come to my attention that I was
misled about the status of the transfer of the Uighur detainees
in April, 2009. This information confirms the Newsweek report
that career federal employees were explicitly directed to hide
this information from Members of Congress, especially
Republican Members. During an April 22nd, 2009, meeting in my
office with members of the Guantanamo Bay detainee review task
force, including Mr. Olsen, I inquired about the status of the
potential transfer of Uighur detainees to the United States.''
``Mr. Olsen indicated that a decision had not yet been
reached on the transfer of the detainees. None of the other
career or political officials in the meeting countered Mr.
Olsen's assertion. That is why I was deeply concerned to learn,
in an April, 2011, Washington Post article, that the final
decision on the transfer of the Uighur detainees had been made
during a White House meeting eight days before my meeting with
Mr. Olsen.
``According to the Washington Post article, the first
concrete step toward closing the detention center was agreed
upon during an April 14, 2009, session at the White House. It
was to be a stealth move. `They were going to show up here and
we were going to announce it,' said one senior official
describing the swift, secretive operation that was designed by
the administration to preempt any political outcry that could
prevent the transfer.' ''
Mr. Wolf goes on, ``Following the publication of this
article in April, I personally called Mr. Olsen to ask whether
he was aware at the time of my meeting with him on April 22nd,
2009, that a decision had already been made on the transfer of
the detainees. He told me that he was aware of the decision
prior to our meeting. I believe that I was intentionally misled
by Mr. Olsen and other administration officials during my April
22nd meeting with the task force.
``I am also concerned that the Attorney General did not
acknowledge that a decision had been made when he appeared
before the House Commerce, Justice, Science Appropriations
Subcommittee the following day. That's why I was surprised when
my office was notified by a career federal employee that the
administration was misleading the Congress and planned to
secretly transfer the detainees around May 1, 2009.''
Now, I understand, Mr. Olsen, you're saying you were not at
liberty to discuss the details of any particular detainee, but
this goes beyond that. His comments go beyond that. So I want
to give you a full opportunity to address exactly what
Congressman Wolf remembers about that meeting.
Mr. Olsen. Yes, thank you very much, Vice Chairman. At the
time that that briefing occurred of Congressman Wolf on April
21st or 22nd, there had, at that point, been a decision by
senior-level members of the administration--again, our process
was to make recommendations to a senior review group. In this
case, this went to a very high-level group of senior officials.
And the decision at that point--I think April 14th is the
right date; I've gone back and looked at my notes--there had
been a decision to take, move, transfer a small number of
detainees--Uighur detainees--to the United States. There was
not, at that time, a decision on which detainees to move or, as
I recall, no decision about where, exactly, they would go. But
I remember, at the time of the briefing, that there had
actually been, as I said, a decision to move, I think two,
detainees--two Uighur detainees--to the United States, to
transfer those detainees to the United States.
So at that time, there had been that decision.
The FBI and the Department of Homeland Security, as I
recall, were given the responsibility--not my task force; not
the Guantanamo task force--to determine which detainees were
the right two to move, given a number of considerations, when
to do that, under what circumstances, and where they would go.
And those efforts were under way.
At no time did I say that there was no decision to
Congressman Wolf. I just believe that that is a misrecollection
or misperception. I did say that I was not--we were not
authorized to talk about specific decisions that were then
under way, and I was not authorized to talk about specific
detainees.
Again, so I do understand his frustration. I don't--I did
not mislead. I was not in a position to decide myself at that
time that I was going to lay out exactly where that
decisionmaking process was. We had met before that briefing and
talked about what we were going to say and what we were going
to talk about in terms of the review process. And I do very
much regret that he has taken that view and I do understand his
frustration with learning through the press later that that
decisionmaking process was well under way.
But Senator, that is exactly where that stood on that day.
When I briefed Congressman Wolf, there had been a decision to
bring two detainees. They had not been identified as to which
ones. And, as I recall, there was no decision about exactly
where they would go within the United States.
Vice Chairman Chambliss. In Congressman Wolf's memo, he
refers to other career political officials that were in that
meeting. Did you go back and visit with those individuals to
get their recollection of exactly what was said after
Congressman Wolf came forward with this?
Mr. Olsen. I've talked to others who were part of the
preparation for that briefing. I have not talked to--I have
talked to other members of that briefing team previously, so
several months ago I talked to, because I talked to Congressman
Wolf, I think, in April of this year. And around that time, I
talked to a number of the individuals who were part of that
briefing. And it was--and I think our recollections were the
same as to how that briefing went.
Vice Chairman Chambliss. Can you provide the Committee with
the names of those other individuals that were in that meeting
at that time, within the next 24 hours?
Mr. Olsen. Absolutely. Absolutely. And the other step I
took, Vice Chairman, was to talk to the Department of Justice
legislative affairs office. And I believe that the Assistant
Attorney General submitted a letter to the Committee along the
same lines, that the ground rules for that briefing were that
we would talk about the process, but not specific decisions or
detainees.
And, in fact, a letter was sent to Congressman Wolf in July
of 2009, so three months after the April 2009 briefing, which
reaffirmed that decision, and that specific detainees were not
the subject on which briefings would occur or had occurred, but
that we were able to talk about the process. And so even at
that time, in July of 2009, in a letter to Congressman Wolf,
that was made clear and presented to Congressman Wolf in a
letter from the Department of Justice.
Vice Chairman Chambliss. Thanks, Madam Chair.
Mr. Olsen. If I may, may I just add one other quick point
on this?
Chairman Feinstein. Please.
Mr. Olsen. Because I really want to address what I
understand is an understandable concern from the Committee if
I'm confirmed and I'm in a position such as the Director of
NCTC.
I believe wholeheartedly that, in that role, that I have an
absolute obligation, to the best of my ability, to provide all
intelligence information in a full and timely way to this
Committee. And I believe, if I am in that position, my
authority, my ability to make that judgment in an autonomous
and unilateral way, greatly exceeds what it was in April of
2009. And the Committee has my full commitment that I will live
up to that obligation.
Chairman Feinstein. Mr. Vice Chairman, there is a letter
dated July 22nd signed by Ron Weich, Assistant Attorney
General, which clearly states the career officials who provided
the briefing, including Mr. Olsen, were authorized by the
Department to discuss the review process in general but were
not authorized to discussion deliberations or decisions about
any specific detainees.
And it goes on to say, ``Consistent with the parameters set
for the briefing, he did not''--he, being Matt Olsen--``did not
discuss internal decisionmaking or the status of specific
detainees.'' This letter will go in the record and obviously be
available.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] T2744.064
[GRAPHIC] [TIFF OMITTED] T2744.065
Chairman Feinstein. The next one up was Senator Conrad and
he's not here.
Senator Wyden.
Senator Wyden. Thank you, Madam Chair.
And Mr. Olsen, thank you for our visit. I appreciated your
candor and also your taking extra time to go over and meet in a
secure facility so that we could discuss some sensitive
matters.
I have been on this Committee for more than a decade now,
and I believe this is the first time we've had the top lawyer
at the National Security Agency before the Committee in an open
session.
Now, I'm not going to get into any details of how the NSA
does business. But since you are the chief legal officer at one
of the country's largest intelligence agencies, it's safe to
say that you are an expert on surveillance law.
So I'd like to begin by asking a few questions about
several areas of surveillance law and about how you and your
colleagues have interpreted the laws so that we can get some of
this information on the public record.
The first question is, would you agree that key portions of
the USA PATRIOT Act have been the subject of significant secret
legal interpretations and that these interpretations are secret
today?
Mr. Olsen. Senator Wyden, thank you. If I may just say at
the outset, I did appreciate the opportunity to talk to you in
both your office and in the classified setting to talk about
some of these matters. And I appreciate your ongoing interest
and concern about them.
The direct answer to your question is that there are
provisions of the PATRIOT Act that are the subject of matters
before the Foreign Intelligence Surveillance Court, a court
that, by design, meets in a classified setting. And some of the
pleadings and opinions that relate to the PATRIOT Act that have
been part of proceedings before the Foeign Intelligence
Surveillance Court are classified.
Senator Wyden. So it is fair to say that key provisions of
the PATRIOT Act and how they're legally interpreted are being
kept secret as of today.
Mr. Olsen. It is certainly fair to say that there are
opinions from the court that are classified. I do feel it's
important to add that those opinions are part of what is
provided to this Committee and that the activities that are
undertaken in accordance with those orders of the court are
subject to extensive oversight from across the government.
Senator Wyden. Would you agree that key portions of the
FISA Amendments Act of 2008 have been the subject of
significant secret legal interpretations and that those are
secret today?
Mr. Olsen. Let me say yes, and then let me add that the
answer is that, similar to the PATRIOT Act, there are
particular provisions of the Foreign Intelligence Surveillance
Act that, in the course of implementing those provisions, the
government--and I was part of this effort--submits pleadings to
the FISA court. And then, by design, again, under the statute,
the FISA court issues--considers those pleadings in a
classified setting and then issues opinions authorizing or not
those activities.
And it is the case, if I may also add, that as we've
reviewed those opinions, as we've looked at those opinions,
working with you and others, that it's very difficult at times
to separate those portions of the opinions that are subject
to--could be disclosed because they only contained legal
information versus the linkage or intertwining of legal
analysis and facts.
Senator Wyden. So you have said that there are, in fact,
secret legal interpretations with respect to both the PATRIOT
Act and the FISA Amendments Act. And is there anything further
that you can tell us about their subject matter?
Mr. Olsen. I don't think there's anything further that I
can discuss in an open setting. I know you appreciate that,
Senator. I know you appreciate--obviously you do--the
importance of protecting the sources and methods that are
described in those opinions.
I would restate what I just said, that----
Senator Wyden. Let's--my time is very short.
Mr. Olsen [continuing]. Certainly.
Senator Wyden. You've given thoughtful answers. As you
know, we have a difference of opinion here. It's my view that
we have to keep operations and methods secret, but we've got to
also have public awareness of the laws on the books. We're
going to continue this discussion, I'm sure.
I need to ask you one other question, and that is on a
different legal topic. Do government agencies have the
authority to use cell-site data to track the location of
Americans inside the United States for intelligence purposes?
Mr. Olsen. Senator, I know that that's a question that
you've posed to the Director of National Intelligence, Director
Clapper. It is a question that is a complicated and difficult
question to answer, particularly in this setting.
I will say that the intelligence community is working as we
speak--I know we've talked to your staff--in developing a
comprehensive answer to that question, which will be provided
to you in writing.
Senator Wyden. Madam President, I know my time has expired,
but just a quick follow-up on that. You seem to be suggesting,
then, Mr. Olsen, that the executive branch has not yet settled
that question. Is that accurate?
Mr. Olsen. I think it's very important to be precise about
exactly what the question is. And I----
Senator Wyden. The question is, does the government have
the authority to use sell-site data to track the location of
Americans inside the country? I think you answered initially
that it had not yet been settled by the executive branch with
respect to whether or not there is that authority. I think this
is an extremely important point, and I just want to make that
clear, and I believe you're saying it has not yet been settled
by the executive branch that it has that authority.
Mr. Olsen [continuing]. I think there are certain
circumstances where that authority may exist. I do think it's a
very complicated and difficult question. And I would ask your
indulgence to allow that question to be prepared in an
unclassified setting in writing to you, Senator.
Senator Wyden. Thank you, Madam Chair.
Chairman Feinstein. And if I may, Senator, I well know of
your concerns, and we have discussed them. And what I'd like to
do in our first hearing, in September, when we come back--
assuming there is an August break--I'd like to have that
classified session, and would ask, Mr. Olsen, that you have
that memo prepared, that the answer's in writing, that you and
any authorities you wish to bring with you will attend the
hearing. Do I have your agreement?
Mr. Olsen. Yes, absolutely.
Chairman Feinstein. Thank you very much.
Senator Wyden. Madam Chair, just on this point, to wrap up,
I would just like to say to you and to colleagues that you have
been very fair in terms of handling this issue. As you know,
Senator Udall and I and other colleagues have had concerns
about it. We've been examining it in both classified and open
session. And I want to thank you for the way you're handling
it.
Chairman Feinstein. Oh, you're very welcome. Happy to do
it.
Senator Conrad.
Senator Conrad. Madam Chair and Vice Chair and Members of
the Committee, instead of asking questions, I'd like to make a
further statement, if I could, Madam Chair, about this nominee.
He comes from a family that I have known for 30 years, a family
that was on the other side of the aisle from me. As I indicated
before, his father was the chief of staff of the man I defeated
for the United States Senate.
And yet he treated me with the greatest generosity of
spirit that anybody could ask for.
Now, I just want to say, these are people of the highest
quality, of the very highest quality, in every single way. The
highest character--I would trust Matt Olsen with every penny
that I've got, because of the character of this family.
And I know around here it's all demolition derby. My God,
when does it end? If we can't take somebody who has, at every
step, been endorsed with the strongest praise--people from the
Republican side of the aisle, the Democratic side of the
aisle--the highest performance standard, the highest quality
standard, the highest character standard--and I understand we
have an oversight responsibility, we have a responsibility to
ask the tough questions.
But I just want to say to colleagues, I would put my entire
reputation on the line for this nominee. That's how strongly I
feel. So--you know, I've been here 25 years. I think I've
conducted myself with character. And I hope it counts for
something when we have a nominee of this quality.
Chairman Feinstein. Thank you very much, Senator. I think
those are very heartfelt remarks and very much appreciated. So
thank you.
Senator Coats.
Senator Coats. Thank you, Madam Chairman.
Mr. Olsen, I appreciate the discussion we had in my office
earlier, and your testimony today. Your educational background
is superb, and your experience background is, if not unmatched,
very impressive. And the recommendations that you've had from
former Attorney General Mukasey, Mr. McConnell and General
Alexander speak highly of you. And other people, very credible
people, including Senator Conrad, have spoken about your
character, your family, the kind of person you are. And I think
that's high recommendation, from my colleague as well as from a
number of other people.
As you know, we discussed in my office the same concerns
that Senator Chambliss discussed with you. I don't want to
repeat all of that. I do want to state that it's disturbing
that, assuming these new sources are credible about a secretive
plan, a stealth plan--it's disturbing if those are true. These
are reputable news organizations. I assume The Washington
Post--which I don't always agree with everything they do, but
they usually check very carefully before they make this type of
allegation. This is a serious allegation, some kind of
concocted White House stealthy, secret plan.
You've discussed and, for the record, explained your
position relative to this, where you were and your relationship
with Mr. Wolf and so forth.
But the larger question is, given the politics of the issue
at the time, the fact that a decision was made by someone at
the highest levels to bypass through a stealthy, secret plan is
a serious, serious charge and, if true, a serious, serious
offense.
My question to you is--and you made your pledge to us that
you will not withhold any type of intelligence that is
available to you from this Committee. And I take you at your
word for that.
What I want to ask you is the reverse of that: If you
become aware of some action, some policy decision, some piece
of intelligence that this Committee ought to know about but
that it is politically sensitive and perhaps there are concerns
that you might be sharing information that people at policy
levels don't want shared, are you willing to serve as an
independent Director of NCTC and provide us with your
independent opinion as to that? I just think it's critical that
we are aware of that.
And so I would like to get your reaction to that on the
reverse side of what you do know relative to intelligence, or
what you don't know but have some concerns about not knowing--
have something withheld from you that you've said, you know, I
don't feel like I've been given full information relative to
what this Committee ought to be aware of.
Mr. Olsen. Yes, thank you very much, Senator. The answer is
yes, I absolutely do pledge to the best of my ability to
provide my unvarnished views to the Committee; as I said, I
commit to providing full, timely intelligence information to
the Committee at all times. I commit to being an advocate for
providing as much information as possible to the Committee
within the executive branch. I wholeheartedly believe in the
essential role that the Committee plays, and that that role is
a partnership, particularly when it comes to intelligence
matters and national security; that there is no place for
political considerations when it comes to counterterrorism and
the fundamentally important mission of NCTC.
And so I would be both a person who would view that role as
a partnership with this Committee, that I would provide that
information and that I would be, as I said, an advocate for
leaning as far forward as possible, as my abilities allow, into
providing that type of information at all times to the
Committee.
And if I could maybe just address, sir, the specific issue,
I don't want the record to reflect that I view or had the
understanding that there was a stealthy or secret effort to
move detainees into the United States. I don't believe--I was
not aware that that was ever the case, and I don't believe that
ever was the case.
In other words, there was a decision to move two
detainees--two Uighur detainees to the United States. There was
an effort undertaken then by the FBI and DHS to determine who
and where.
But I never was under any impression--I never believed that
that effort had progressed to the point that it was going to be
a secret or stealthy move but rather that the time for
disclosing that was being discussed and was not something that
was my decision to make.
Senator Coats. Thank you for that answer. I just want to
restate how critically important it is that we have a trust
with each other----
Mr. Olsen. Yes.
Senator Coats [continuing]. Because we are dealing with
matters of incredible importance to the safety and security of
the American people. And if we lose that element of trust in
terms of how we communicate with each other within the
intelligence community--and we have a responsibility to ensure
that, you know, we live up to our part of the bargain on this
also.
And I'm hoping that we can do that with you. And I think
that perhaps this is a little warning sign here in terms of
let's be diligent to make sure that that level of trust exists
and that level of sharing of information with the Committee and
us with you exists.
With that, Madam Chairman, I yield back my time.
Mr. Olsen. I could not agree more, Senator. Thank you.
Chairman Feinstein. Thank you, Senator Coats.
Senator Snowe.
Senator Snowe. Thank you, Madam Chair.
And welcome, Mr. Olsen. You certainly come to this position
with an impressive array of credentials, and I congratulate
you. And certainly Senator Conrad's commendations on your
behalf certainly speaks volumes about what you represent and
what you bring to this position, which is obviously significant
as we continue to face a growing threat.
I'd like to just explore with you for a moment in the
aftermath of the assassination of Usama bin Ladin, how would
you describe the al-Qa'ida threat and what it poses today? I
know you have said it remains the most significant threat to
the United States, in combination with regional affiliates that
are dispersed.
And as you've mentioned, it's certainly a dynamic and
complex environment and certainly an asymmetrical threat, hard
to identify, hard to quantify. So where do you think we stand
today in terms of, one, mitigating that threat, and certainly
since the killing of Usama bin Ladin?
Mr. Olsen. Thank you very much, Senator.
The threat I think today is as diffuse and as complex and
challenging as it has been at any time. Certainly it is the
case that, again through the leadership of the Congress and the
hard work of thousands of men and women, both in the
intelligence community and the military, we've made substantial
progress against al-Qa'ida and its affiliates.
And the killing of Usama bin Ladin was a significant
milestone in that effort. And it is clear, I think, from the
threat information that I've seen, both beginning in 2004 when
I started working with the FBI through my time at the
Department of Justice and to my position now at the National
Security Agency, that al-Qa'ida in many ways is weakened. It
remains the case, however, that it is a more diffuse and
dispersed threat, as you made reference to.
And in particular, I think the concern that the Vice
Chairman made reference to with respect to al-Qa'ida's presence
in Yemen and in places like Somalia makes it particularly
challenging from a counterterrorism perspective.
I think that in some ways the opportunity that presents
itself now to the counterterrorism community in the United
States, as well as with our allies around the world, is that we
must actually redouble our efforts, that, as the President has
said, al-Qa'ida is on the path to defeat, but we have to look
at that threat in all of its various forms, not only in the
tribal regions of Yemen but in the FATA in Pakistan and also in
parts of North Africa, and in Somalia.
Ultimately the NCTC's mission is to stop another terrorist
attack. And if I may just say that the leadership of Mike
Leiter and now, in acting capacity, of Andrew Liepman, I think
NCTC has played a vital role in that effort. But it's a team
approach and we face as challenging a time, I think, as we ever
have.
Senator Snowe. Are you confident that we have the ability
to, you know, work across the agencies, as you--obviously the
obligation of the NCTC is to coordinate and to integrate all of
that analysis. Do you think we've got it?
Mr. Olsen. I think that we've made a lot of progress. I do
think as this Committee, in its report on the Abdulmutallab
attack of December 25, 2009, demonstrated, we still face
challenges. And particularly I reviewed the Vice Chairman's and
Senator Burr's separate opinion, which was quite critical, and
appropriately so I think, in certain ways, of NCTC.
Senator, if I may say, I think the greatest challenge
facing NCTC is in some way its greatest strength--that it
brings together analysts, planners, other professionals from
across the intelligence community and the military to bring all
these different viewpoints together.
How do we reconcile the different backgrounds and
perspectives? That's really its greatest strength. We need to
rely on the intelligence community to continue to provide those
professionals and provide an atmosphere and environment where
they are located together and collaborate.
So, in direct response to your question, I think that is
one of the greatest strengths of NCTC. I think we have some
progress to be made both with respect to the collaboration
feature but also information sharing and breaking down barriers
to sharing information not only within NCTC but with our
partners.
Senator Snowe. You mentioned that we've degraded the
capability of al-Qa'ida in Pakistan. How would you compare that
threat with respect to the regional affiliates? Which is
greater?
Mr. Olsen. It's difficult to answer a ``which is greater?''
I think I do agree with the Vice Chairman's observation that
recent events would suggest that the regional affiliates,
particularly al-Qa'ida in the Arabian Peninsula and its
presence in Yemen, have shown a willingness and a level of
capability to strike in the United States. I think that it must
be a primary focus of NCTC and of the counterterrorism
community broadly.
Senator Snowe. Do you think that that is the single
greatest goal of al-Qa'ida, is to strike the United States? Is
that their foremost goal?
Mr. Olsen. It certainly remains a significant goal. I think
that its goals are multivaried, and the threat--again, part of
the challenge is that threat is not so much the senior
leadership in Pakistan with one unified goal. It's now diffused
in various regional locations under various leaders and with
various goals. But it is certainly sufficiently a goal that it
has to be NCTC's number one mission.
Senator Snowe. How would you define the strategic defeat of
al-Qa'ida leadership?
Mr. Olsen. The strategic defeat of al-Qa'ida? I think I
would define it as ending the threat that al-Qa'ida and all of
its affiliates pose to the United States and its interests
around the world.
Senator Snowe. Okay, thank you.
Thank you, Madam Chair.
Mr. Olsen. Thank you.
Chairman Feinstein. Thank you very much, Senator Snowe.
Senator Wyden has some additional questions, and the Vice
Chairman and I also. So, Senator Wyden, why don't you go ahead?
Senator Wyden. Thank you, Madam Chair. And just two
additional matters.
Following up on Senator Snowe's questions, Mr. Olsen,
beyond al-Qa'ida's core leadership in Pakistan and the al-
Qa'ida affiliate in Yemen, which terrorist group, in your view,
poses the greatest threat to the country?
Mr. Olsen. I would say that beyond al-Qa'ida senior
leadership in Pakistan, its presence in Yemen, that probably
the next most significant terrorist threat may emanate from the
al-Qa'ida presence in Somalia in terms of the willingness and
apparent ability, or at least the intent, to strike outside of
that particular country.
We know that that country, that group, has successfully
mounted an attack in Uganda, and the apparent ability of a
regional affiliate such as that to move outside of the borders
of that country I think poses a significant threat. But the
threat goes beyond even just al-Qa'ida, of course, and its
affiliates, to other groups such as Hezbollah.
So I think, again, I have to say that I'm not in a position
at NCTC now so I approach these types of questions with some
humility and some deference to the professionals who are
looking at these questions on a daily basis.
Senator Wyden. One last question, if I might.
Earlier this year Under Secretary Cohen from the Treasury
Department told the Finance Committee, on which I serve, that
Kuwait has become one of the most challenging countries to deal
with when it comes to counterterrorism, and, in addition, that
as other Gulf states have improved their cooperation with U.S.
terrorist activity in the Gulf we are seeing, in effect, Kuwait
become more permissive--significantly more permissive.
Do you have an opinion on this yet?
Mr. Olsen. My answer, Senator, if I may, is somewhat
general, which--I would say that our relationships with
countries such as Kuwait, other Gulf states, certainly
countries like Pakistan are complex and have multiple
dimensions. I do think that the counterterrorism effort is a
central goal or central feature of those relationships. If I'm
confirmed, I would look forward to the opportunity in the role
of NCTC Director to provide my objective and unvarnished view
about the counterterrorism threat to contribute to the overall
discussion and development of a posture toward a country like
Kuwait.
Senator Wyden. Thank you, Madam Chair.
Chairman Feinstein. Thank you very much.
Mr. Vice Chairman, why don't you go ahead, and I'll finish
up.
Vice Chairman Chambliss. Sure. Mr. Olsen, I want to ask
you, on three or four different subjects here, to give us a
general discussion and response to some questions that I'm
going to lay out. But I'm more interested in your general
discussion on the issues. But obviously I think the questions
will throw out some ideas for you.
By December 2009, it had become clear that many transferred
Gitmo detainees had joined AQAP in Yemen. Additionally, the IC
and State Department took a dim view of the willingness or
capability of the Yemeni government to monitor detainees. And I
believe such assessments were made clear to the task force.
Yet in late 2009, the task force decided to transfer seven
Yemeni detainees back to Yemen, only one of whom was ordered
released by the court. And his case was not appealed. Now, my
questions are, in December 2009, did you personally believe it
was a good idea to transfer detainees to Yemen?
Secondly, you've told us before that you were trying to
test the system by sending the group of detainees back in
December of 2009. Do you think testing the system when the
result of a failed test could be an attack on Americans was a
good idea?
And lastly, in hindsight, in light of the fact that the
government is winning all of its habeas appeals, would you have
changed any of the task force transfer decisions? And do you
think dangerous detainees were transferred as a result of the
task force process?
Mr. Olsen. Senator, thank you. And I do very much
understand, of course, in our conversations--both my
conversation with you as well as the ongoing discussions I've
had with members of the Committee staff--the substantial
concern about the detainees from Yemen and the transfer
decisions that were made back in 2009. So if I may give you a
relatively general, longer answer, I appreciate your
indulgence.
The Yemen detainee population was a concern of the task
force's from its onset. When we started this process under the
President's executive order in February of 2009, there were 97
Yemeni detainees out of the 240 detainees at Guantanamo subject
to the review. So by far the single largest nationality
represented at Guantanamo were from Yemen. And this was a
problem that existed before 2009. In other words, prior to
2009, government officials had struggled with how handle the
disposition of this substantial number of Yemen detainees.
Over the course of that year, through our task force
effort, we were very aware of a number of different factors.
One, that the security situation in Yemen was continuing to
deteriorate over the course of that year, and by December of
2009 we were quite aware of the concerns that the intelligence
community and our military leaders were expressing about Yemen.
We were also quite aware that our record of success in the
habeas courts, that the number of Yemeni detainees as well as
others were challenging the lawfulness of their detention, and
we were being briefed by the Department of Justice about how
those cases were going. At one point in September of 2009, I
recall that we were approximately eight successful defenses
versus 31 losses in the federal courts. And there was a real
concern being expressed by the Department of Justice that not
only were we losing these cases, but we were losing our
credibility generally in a way that was affecting facts and
legal rulings that might impact cases down the road.
I think the other factor that was a significant one for us
with respect to Yemen was that there were no options that
appeared to be available in terms of other countries willing to
take detainees from Yemen, not countries that had
rehabilitation programs and not countries in Europe that had
been taking a number of detainees--I think over 50 over the
course of the last couple years--who had humane-treatment
concerns about being repatriated to their home country. So I
know I've just laid out to you a problem that you're well
familiar with. But those were the factors that were presented
to us as we conducted this review.
Our job on the task force, I felt--and my responsibility as
the executive Director--was to provide the best factual
information in the most precise, specific and rigorous way
possible to decisionmakers. We did that over the course of the
review. The decision to send seven detainees in December--now I
know an eighth Yemeni detainee has been repatriated to Yemen--
those decisions have all been made at very senior levels, and
all based on the unanimous judgment of representatives of six
different agencies, including the Department of Defense, the
intelligence community and the Joint Chiefs of Staff. Two of
those eight detainees were ordered released by the court.
I think when I said in our conversation that the six or so
that went in December--if that number's correct--or before, in
the fall of 2009--I don't remember the exact timeframe--but the
thought there--and I was present for some of the discussions,
although I wasn't a voting member or a decisionmaker--the
thought was we would never at any time send a significant
number of Yemeni detainees back. The question was, could the
Yemeni government and security forces handle the security
measures that would be necessary to ensure that those transfers
were handled responsibly?
Our process had a very strict standard. No detainee would
be eligible for transfer unless any threat that detainee posed
could be sufficiently mitigated through adequate and
appropriate security measures in the host country--in the
destination country. That standard never changed from the
beginning to the end of our task force review. And that was a
standard that the decisionmakers who made that decision
applied.
So if I may, in sum--I think those were very difficult
decisions. And I want to address your question before I forget.
It is true I cited the habeas record of eight and 31. We've
done much better from the executive branch's point of view
since that time. We've had a number of successful litigation
victories in the D.C. Circuit Court of Appeals.
The question whether or not that would have changed our
view or the view of the decisionmakers on a particular detainee
I think is hard to answer, and somewhat speculative on my part.
I do think that it would have lowered the significance of that
factor as it pertained to a particular detainee. So it would
have--you know, I suppose I could say it's possible that it may
have affected a decision. But it would be speculative for me to
say more about that.
Vice Chairman Chambliss. You mentioned in my office with
respect to the pressure on the task force that there was
pressure in part because the task force was guided by the
executive order on closing Gitmo. Can you explain now about how
that pressure existed and what you did to try to make sure your
decisions were not influenced by it? How many attorneys
assigned to the task force had represented detainees before
joining your staff? And did you feel pressure from any of those
attorneys, others in DOJ or other parts of the administration
to lean towards transferring as many detainees as possible?
Mr. Olsen. As I mentioned to you, Senator, in our meeting,
it certainly was the case that we had an executive order issued
by the President in January of 2009 and that we were duty bound
to follow that executive order. That executive order set forth
three potential options for each detainee: transfer, if such a
transfer could be accomplished consistent with the national
security and foreign policy interests of the United States.
That was the first option. If transfer was not available,
prosecution, if feasible. And if neither transfer nor
prosecution was an appropriate option, then select another
appropriate option, undefined in the executive order.
I wouldn't necessarily say that that was pressure. That was
guidance or direction from the President of the United States
to follow that. And I felt my obligation was to ensure that
everything that the task force did certainly followed that
direction but did not respond to any of the what was obvious at
the time, controversy from both sides about Guantanamo. It's
been a subject of controversy for many years.
I felt it was my obligation to insulate the career
professionals who worked on this review. Over the course of the
year in 2009, over a hundred people worked on this review from
the Department of Defense, from the intelligence community,
CIA, NCTC, Homeland Security, State, Justice. And every single
one of them was a career individual.
In response to your question, I don't believe that a single
one of the attorneys who worked on the review had ever played a
role in representing detainees. I know that's been a subject of
controversy and been reported in the press in the past with
respect to other Department of Justice attorneys. I don't
believe that anyone on our task force had ever worked in that
capacity.
Again, everyone who worked on my review came from the
career ranks. As I said, I felt it was my responsibility to
insulate that group from any of the types of controversy
surrounding Guantanamo. And I think, if I may, Senator, say the
results of the review, the recommendations and the analysis we
did, resulting in unanimous decisions on 240 detainees, speak
for themselves, I think, in this regard.
Out of those 240 detainees, there were 126 transfer
decisions. But there were also 48 decisions to hold those
detainees under the laws of war. When we started the review in
January of 2009, that was not necessarily even considered an
option. We pushed for that as the right option for 48
detainees--that they could not be tried, there was not evidence
to try them. They could not be transferred safely. They needed
to be held indefinitely under the laws of war.
That's 48 of those detainees; in addition, 36 detainees
referred either to the military commission or to federal courts
for prosecution, 36 in that category, and then 30 in the
category Yemeni detainees of conditional detention. Those 30
detainees, the decision was that they would not be transferred.
They would be detained until the security situation in Yemen
substantially improved, something that obviously has not
happened. So they are effectively in the same category as the
48 held under the laws of war.
Vice Chairman Chambliss. The Chairman and I are both very
concerned about the fact that we currently have no detention
and interrogation policy going forward with respect to
individuals who may be captured, high-value targets who may be
captured outside of Afghanistan.
As Director of NCTC, you will be integrally involved in the
deliberations relative to any proposal for a long-term plan on
detention and interrogation. And my question to you is, are you
prepared to give sound advice, number one, that you're going to
be asked to give?
And secondly, if the administration appears to be headed
down a road that you don't think is the right direction to go,
will you say to this Committee now that you're going to express
yourself in a very strong manner to help to try to develop the
best possible policy for detention and interrogation of high-
value targets, even though your opinion may be contrary to the
folks at the White House who are nominating you today?
Mr. Olsen. Yes, absolutely. And if I may, I do make that
pledge. I think, in my prior positions, I have taken that
position. In other words, I have given advice in an
unvarnished, objective, independent way. As a career government
official, I've made known my personal views and sought to move
positions based on my objective and independent and non-
political perspective.
I do think that these questions, Senator--if I may say,
some of these questions are some of the most difficult ones
that we face from a counterterrorism perspective, the question
of detention policy. I absolutely agree that it would be my
responsibility, if I'm honored to be confirmed, to give my
unvarnished and objective views, share the intelligence with
this Committee, and advocate for what I believe is the right
thing, to the best of my abilities within the executive branch.
Vice Chairman Chambliss. Some would argue that Gitmo should
be closed because it is used as a recruiting tool for al-
Qa'ida. And that may be true. But yet al-Qa'ida uses our Israel
policy, the Afghan war, the death of bin Ladin and a host of
other issues as recruiting tools, and no one suggests that we
should change these policies.
In your current position or positions you have held, have
you seen any evidence that we are safer or that recruits have
fallen off as a result of the President's announcement of his
intent to close Guantanamo?
Mr. Olsen. I've not seen, from, again, my perspective, both
on the task force and in a much more limited perspective in my
current role at the National Security Agency, anything, in
specific response to your question, to that effect, that
there's a change in recruiting based on the current government
policy.
Vice Chairman Chambliss. All right. Lastly, let me tell you
an issue that we've got that I know you're aware about and get
your thoughts on. In the past, NCTC has raised a number of
concerns about not having access to all the intelligence
information it needs.
Of particular concern is access to information in the
possession of the Department of Homeland Security. Generally,
DHS is reluctant to provide information relating to an
individual's asylum application or refugee status on the
grounds that sharing that information would violate U.S. person
restrictions. The specific legal basis for DHS's position is
unclear.
Have you got any thoughts on how we can address that
problem with DHS? And are asylum seekers U.S. persons or
considered U.S. persons? Is that an issue in your mind?
Mr. Olsen. Senator, I am generally familiar with this area
or this issue. I don't have the specifics of the particular
concern with DHS. I've had some briefings about this question.
If I may say, I do believe that, given my role at the
Department of Justice and my role now, that I have both an
understanding--actually, quite a deep understanding of the
rules that apply to protect civil liberties and privacy of U.S.
persons. But I also, I think, have a very strong view and a
record of finding the appropriate ways to overcome legal,
sometimes perceived legal, as well as the policy barriers to
sharing information.
I don't believe that there is a strong basis for, as a
policy matter, not allowing information to be shared when that
information is necessary to protect the American people. And if
I am honored to be confirmed, it will absolutely be my
commitment to find a way to overcome expressed concerns about
sharing information when that information is necessary to
support NCTC's mission, and that is to prevent another
terrorist attack. So the Committee certainly has my commitment
to look very hard at that question.
Vice Chairman Chambliss. Well, as you and I discussed in my
office, the critical role that NCTC plays is, for the most
part, centered around information sharing, both in its
requirement that you, as Director of NCTC, share information
you have, but you've got to get the information first.
And let me just say that the Chairman and I, I think, stand
without question ready to make sure that you've got all the
tools that you need. And from a policy standpoint, we're
prepared to do what's necessary to make sure that the
information that you have to be shared is all of the
intelligence information.
And let me just close by saying that, as the Chairman
stated, we've gotten inundated with letters of recommendation,
which you should feel very honored to be supported in that
respect. And I know you are.
The letter from General Alexander was very complimentary.
And not only did he write a letter, but he happens to be a good
friend, a guy that I have the utmost respect for, and he called
yesterday to reinforce that recommendation. And, because I have
such respect for General Alexander, that means a lot.
So we'll look forward to moving down the road. And the only
thing I would remind you of is if you could get us those names
of those individuals in that briefing. And hopefully we'll get
this nomination moved quickly.
Madam Chair, thank you.
Mr. Olsen. Thank you very much.
Chairman Feinstein. Thank you very much.
You know, I'd like to close off the briefing. I cannot
imagine a more thankless task than being Director of the policy
Committee of which you were Director, because you know, no
matter what, it's thankless. And no matter what, there's going
to be criticism, and particularly in those days, as I recall
them, where it was so very, very difficult. So I just want to
thank you for that. And in my book, you're a straight shooter.
And I think that's what matters here.
I would like to just talk about the vision thing for a
moment, if I might. One of NCTC's statutory responsibilities is
to conduct strategic operational planning for counterterrorism
activities and integrate all of the instruments of national
power.
However, when it granted NCTC this responsibility, Congress
didn't provide you with any authority to compel actions in
these areas. So we may have to go back and look at that again.
But the question is, what is your vision of NCTC's role in
conducting strategic operational planning for counterterrorism
activities and integrating all the instruments of national so-
called power into that planning?
Mr. Olsen. Thank you very much, Senator.
As you point out, one of the critical missions of NCTC is
the strategic operational planning mission. I do believe that
NCTC is uniquely positioned to conduct that mission. And my
vision for that is consistent with, I think, the effort and the
progress that NCTC has made in that regard over the last couple
years--that is, bringing together the various represented
entities, whether it's military or intelligence community,
combining those perspectives--and those perspectives vary--in a
way that will allow us to make sure that the efforts that the
U.S. government is undertaking to combat terrorism, whether it
is on a regional level, focusing on a particular region or a
particular problem or a particular topic such as countering
violent extremism--conducting an all-of-government approach to
address those issues, something that NCTC is, I think, as I
said, uniquely positioned to do, both because it has members
from all these different agencies brought together and because
it has the mission granted to it by Congress.
So I would consider that to be one of the focuses that I
would have. And I would also commit and I would not hesitate to
return to this Committee with updates on that effort and to
tell you if I think that there are authorities that are lacking
or necessary.
Chairman Feinstein. Good.
Now, you're also the national intelligence manager for
counterterrorism. And in that regard, you're going to be
responsible for evaluating the intelligence community's
performance on terrorism and recommending budget allocations
across agencies. In my book, this is a very important job. How
do you see yourself carrying this part of your responsibility
out?
Mr. Olsen. Thank you for that question. I have had an
opportunity to talk at least briefly with Director Clapper
about this very important role, particularly under the
leadership that he has for ODNI and the intelligence community
in general. I think that NCTC has done a good job in its role
as the NIM. It is, I think, a real focus because of the
challenges that we face----
Chairman Feinstein. I don't particularly like that acronym,
the NIM.
Mr. Olsen. It is not my favorite either, so I will----
Chairman Feinstein. Because this is a big deal.
Mr. Olsen. Yeah.
Chairman Feinstein. I mean, I don't think it should be
trivialized. And I think it's one area where not enough is done
and there is not enough central administration of budget
authority.
Mr. Olsen. Right. So I will stick with ``national
intelligence manager.''
Chairman Feinstein. Thank you.
Mr. Olsen. I think the challenge is that we do face a much
more difficult budgetary environment than we did in the last
few years. And I fully appreciate that reality. I've seen it in
my role at NSA, where I've been part of senior leadership
meetings about how NSA is going to react and respond to the
budget constraints that we are likely to face, that we will
face.
The question will be, how do we make sure that we are
focusing on the right priorities as a counterterrorism
community? And how do we achieve efficiencies where we can in
order to meet the challenge that the current budget environment
poses?
Chairman Feinstein. Well, you see, from my point of view,
counterterrorism is extraordinarily important. It is vital to
the protection of the homeland. Therefore, having a strategy
and an approach to it and a pattern and a practice that's well
established and carried out across the government is very, very
vital to have.
Candidly, I don't know whether we have that today. And so
this question is meant with a view that I think it's really a
prime mission of yours.
Mr. Olsen. Well, I appreciate that. And again, I will, for
that reason, make that a prime mission of mine and will, again,
commit to come back and talk to you and the Committee and the
staff and keep you apprised as often as necessary on the
progress we're making.
Chairman Feinstein. Right. One last thing. As you know, the
defense bill has some language on detention in it, some of
which is good and some of which we think is not good. We--you
know, as Chairman of the Committee--are trying to draft some
legislation. I'd like to ask that you help us and work with us
on that, if you will.
Mr. Olsen. Of course. I will, yes.
Chairman Feinstein. Okay. Thank you very much.
I see no other Member. So we would like to have the
Director of the NCTC in place actually before going on the
August recess. And I really think this is a very important
matter that we're able to do that. So I would like to ask that
any questions for the record be submitted by 5:00 on
Wednesday--that's tomorrow afternoon--so we can get answers and
vote on the nomination just as soon as possible. We do not want
to leave this agency leaderless.
So I thank you for your service to our country. I've been
watching the faces of your three children and your wife's
supervision in her eyes as this hearing has gone on. And I just
want you three to know how very proud we are of your father,
that he has been just of enormous service to this country and
has much more yet to do. And I hope you are very proud as well.
So, with that in mind, we'll conclude this hearing and move
your nomination onward. Thank you very much.
[Whereupon, at 11:36 a.m., the Committee adjourned.]
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