Tulsi Gabbard's Testimony on Snowden and Surveillance
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America's energy future begins now. More American oil and natural gas means more jobs, more security, and more innovation. America's moment is now. Learn more at LightsOnEnergy.org. Paid for by the American Petroleum Institute. From the opinion pages of The Wall Street Journal, this is Potomac Watch.

Tulsi Gabbard faces her Senate confirmation hearing, but doesn't seem to have put to rest questions about her nomination to be the next director of national intelligence. Plus unexpected, uneventful testimony by FBI Director-designate Kash Patel as even lower profile cabinet appointees sail through the Senate with uncontroversial votes.

Welcome. I'm Kyle Peterson with The Wall Street Journal. We're joined today by my colleagues, editorial board members Colin Levy and Mene'ukwe Berua. The Director of National Intelligence, or DNI, has oversight over the nation's 18 intel agencies. That person works directly with the president, including on the president's daily intelligence brief. President Trump has nominated former Hawaii Congresswoman Tulsi Gabbard

But it sounds as though there remains doubt about whether she is going to have the votes. Here's Utah Republican Senator John Curtis after Gabbard's testimony on Thursday. I leave today's hearing with more questions than answers. Some of her responses and non-responses created more confusion than clarity and only deepened my concerns about her judgment.

Let's dig into a couple substantive points here. Colin, the first of the concerns seems to be around this surveillance program called Section 702. As I understand it, this is a surveillance authority that targets foreigners abroad. That information gets swept up into a database, and then intelligence agencies, in some instances, can search that database for U.S. persons.

Tulsi Gabbard has said that she believes that a warrant ought to be required for those kind of US person queries. Though when pressed about whether that would be workable by Texas Senator John Cornyn, she didn't quite seem to have a strong view on even the realities of what it would take to show probable cause to get this kind of a warrant. Listen to this. What would be necessary to be shown in order to establish probable cause to a judge

in order to obtain a warrant? Again, Senator, that's not for me to say. That would be for you all to decide and for the Attorney General to weigh in on. Do you know?

what the elements of probable cause are and whether that's a practical and workable solution. This is the center of the debate, the high standard of probable cause that's required to get a warrant and why this will continue to be a conversation, again, with the Attorney General weighing in and all of you in Congress making this policy decision. Colin, not exactly a comforting answer. And one thing that was remarkable was almost simultaneously

Kash Patel was testifying to be the director of the FBI, and he gave a different answer. He said that these U.S. person queries of this Section 702 database is sometimes used to find and save American hostages, and a warrant requirement is not consistent with the need on a national security basis to go looking through that database in real time.

No, that's exactly right. And I agree with you. I mean, her answers yesterday, I think, really missed a pretty major opportunity. That clip that you mentioned where she's asked about the warrant requirement, which she said during questioning as well as in her written testimony that she supports a warrant requirement. And then she didn't seem to be particularly sure about what that warrant requirement would look

like. Now, she correctly said that, you know, some of these things are going to be handled by Congress, but that's not really what the discussion was about. The discussion within the intelligence community and within Congress has been about whether or not the warrant should have to meet the standard of probable cause or whether it should maybe have to meet a lower standard, you know, something like reasonable probability of producing useful intelligence information, which is a lower standard than probable cause.

And some people have said, look, combining that with exigent circumstances, exceptions would make this a more plausible way to do a warrant. I'm not saying I necessarily agree with that or that it would be adequate. But again, she failed, I think, to demonstrate that kind of facility with the basic issues

surrounding this position she's taken. And instead, you know, she comes out looking like she doesn't actually know that much about how FISA operates, except that she wants to make sure that she puts Fourth Amendment rights and privacy rights above the necessity of using these tools to our intelligence community. And as someone who's going to be head of the direct

of national intelligence, you know, with this massive budget and with the presidency and briefing him every day, for her not to be completely in favor of the tools that the intelligence community has said it very much needs in order to rebalance America's asymmetric

disadvantage, especially with terrorists. Yeah, I think it was just a major unforced error. One statistic that jumped out at me, Manay, from these intelligence committee hearings, the ranking member, Virginia Senator Mark Warner, said that 60% on average of the information that is in the president's daily briefs

on a day-to-day basis about foreign threats and whatnot comes from this Section 702 program. And he didn't specify that that was related to these U.S. person queries. That's the Section 702 program overall. I've also seen different numbers cited that were lower than 60%.

Still, gives a picture of how important this program is to the president's decision making and his understanding of the threats on the ground. And I would underline what Colin said there, a little bit worrying to have somebody nominated to be the director of national intelligence

who does not seem to have the facility with how the program actually operates. And by the way, this Section 702 program is something that requires reauthorization periodically. And one of the questions, if Tulsi goes into this job and believes in that kind of a requirement, is, is she going to have the president's ear and try to get Trump to come out for that kind of warrant requirement when the next reauthorization debate comes up in Congress?

Yeah, I think that statistic from Mark Warner in the hearing reveals a lot about the political conversation that surrounds 702 specifically and federal surveillance powers more broadly. It is very, very easy for critics of the intelligence community to come out and say, look at the breadth of the surveillance programs that the federal government has created. Americans are being caught in the web.

they are creating a surveillance state and threatening the privacy of ordinary Americans.

And part of the reason why so many people take that position is because it's so rare that the public actually gets to see the ways that these tools are being applied and the benefits that they can have. But they are vital to the intelligence community. You do have organizations like the FBI, for example, monitoring national security threats and through tools like 702, they're able to find people, both foreigners and Americans, who are participating actively in plots

to initiate terrorist attacks in the United States who never could have potentially been found if not for the webs of connection to terrorist groups that are located through surveillance. And so we never hear about the attacks that are being foiled every single day by the FBI because most of these things remain classified.

But Mark Warner and others who do favor these tools are able to reveal some of that information, at least in the form of broad statistics, and show people that this isn't about creating surveillance tools to just create a database on American citizens for no purpose in particular or for nefarious purposes.

This is something that helps them to identify terrorists that wouldn't be possible without it. And so I do think that Tulsi Gabbard's skepticism generally of these programs, obviously she has walked back some of her criticism over the course of the hearings and said, I support 702. But the fact that she staked her career as being one of these skeptics of U.S. surveillance power shows that she either doesn't understand or doesn't agree with how essential they are in the ordinary investigatory operations of

of the intelligence community in foiling some of these terrorist attacks. And she will be able to talk to President Trump and have the possibility of swaying him if she were confirmed to be director of national intelligence. Hang tight. We'll be right back. America's energy future begins now. More American oil and natural gas means more jobs, more security and more innovation. America's moment is now. Learn more at LightsOnEnergy.org. Paid for by the American Petroleum Institute.

Welcome back. The other point that I think is worth making, Colin, is that a warrant requirement is not the only way to attack worries about the way these programs are used. And there have been abuses of these U.S. person queries in this Section 702 database in the past.

But my recollection is that when Congress reauthorized this program the last time, they strengthened the oversight. And that, I think, is the way that the majority in Congress proposes to deal with those concerns

is by having strong safeguards within the agencies that are able to query that database, and then penalties if there are oversight, including by Congress, of the queries that are actually undertaken, and then penalties if there are any abuses that actually surface. No, that's exactly right, Kyle. The reauthorization that passed last year requires FBI personnel to get

prior approval from a supervisor or a staff attorney before running U.S. person queries. And it required audits of U.S. person queries to be run within 100 days after the query was initiated. And you also have retraining for FBI agents to make sure that they're doing this correctly. So it's not to say that there were no concerns with the way it's being used, but it is to say for certain that the program is vital. And again, there's so much misunderstanding

about Section 702 because the words are thrown around so casually that the program allows the government to spy on Americans as though if we authorize 702, they're somehow going to be putting a bug in your living room or there's going to be a camera somewhere, you know, or they're going to be reading your emails. That is not what the program does. And I really think it's worth underlining that the information that is gathered in 702 is from exclusively from foreigners who are overseas. And that information is lawfully gathered.

And sometimes it scoops up information regarding Americans who've communicated with foreigners overseas, which, by the way, we could pause for a second and just say, OK, if someone was communicating with a problematic foreigner overseas, maybe it's just a friend. You know, maybe it's just someone completely innocent, but also maybe it's not.

Anyway, all of that information is lawfully gathered. So, you know, to make the controversy about whether or not intelligence agencies should be able to search the names of Americans within that database of lawfully gathered information, I think is somewhat misleading. These are not all political targets. This is not all nefarious purposes. This is generally, hey, we have information that there may be some sort of terrorist plot afoot.

And we have this information and let's run that name through the database and see if anything pops up. And if something pops up, that's where the leads come in. That's where the real intelligence gathering is happening. So it's critically important. One of the other real flashpoints at these intelligence committee hearings on Thursday, Manet, was when the name of Edward Snowden appeared.

was brought up, given Tulsi Gabbard in the past has defended what he did, said that the U.S. should drop criminal charges against him, stop pursuing him. Let's listen to Colorado Senator Michael Bennett. SEN. MICHAEL BENNETT: So, let me ask you again. Do you believe, as the chairman of this committee believes, as the vast majority of members of our intelligence agencies believe, that Edward Snowden was a traitor to the United States of America?

Senator, I've confirmed as director of National Intelligence, I will work with you to make sure that there is not another Snowden-like leak. This is when the rubber hits the road. This is not a moment for social media. It's not a moment to propagate theories, conspiracy theories or attacks on journalism in the United States. This is when you need to answer the questions of the people whose votes you're asking for. Manet, what do you make of that? Senator James Lankford of Oklahoma, who also asked,

Tulsi, whether Edward Snowden was a traitor, said later that he thought it was going to be a softball question. Yeah, I think that it's extremely revealing that Tulsi Gabbard was unwilling to answer that question straightforwardly. It shows that even though on certain specific policy positions like 702 and others, she's been willing to backtrack a

and say things that she thinks will help reassure certain senators to get confirmed. She still has certain core convictions about the overreach of the American intelligence community. She still feels she has a constituency in the public that takes those views, and she didn't want to go on the record reversing herself and signal that she's shifted completely. And I think it's worthwhile

remembering exactly what Edward Snowden is accused of having done and in fact has taken credit publicly for having done because it's been so long. He, while working as a contractor for the NSA, stole troves of documents that showed the relationships that American intelligence agencies have with foreign ones and how the U.S. goes about collecting documents

intelligence on a whole bunch of national security suspects and targets around the world. This is something that revealed incredibly essential sources and methods for the United States government to our adversaries and made it much more difficult to gather this kind of crucial intelligence. And after being discovered, of course, he fled.

into the arms of one of America's adversaries, where he has now naturalized that being Russia. And so that essentially is the textbook definition of a traitor. He very clearly and intentionally undermined American national security and U.S. interests. And the fact that Tulsi Gabbard apparently sees it otherwise is extremely revealing about where her loyalties and perspective lie today. And I think that that dodge on the question in particular is something that's going to make it very hard for senators who

positioned themselves as being advocates of American national security to vote in favor of confirming her. Here is what a House Intelligence Committee review of the Snowden affair said in 2016. The vast majority of the documents he stole have nothing to do with programs impacting individual privacy interests.

They instead pertained to military, defense, and intelligence programs of great interest to America's adversaries. Also, this is notable from the now head of the Intelligence Committee, Senator Tom Cotton. He said in 2016, Edward Snowden was an egotistical serial liar and traitor whose unauthorized disclosures of classified information have jeopardized the safety of Americans and allies around the world. Snowden's close and continual contact

with Russian intelligence services speak volumes." Colin, notable that Tulsi Gabbard in 2020 introduced into the House a resolution calling for the United States to drop charges against Edward Snowden. Similarly, she introduced a House resolution calling for the United States also to drop charges against Julian Assange.

the head of WikiLeaks who had distributed all kinds of US secrets without redacting names and information that according to the US put people at real risk of serious danger. Colin, if a DNI nominee had done one of these things, it would be interesting. Two, it would be more interesting. Three, it starts to become a pattern.

And you wonder whether it's appropriate to have a director of national intelligence who seems to have a very deep held skepticism of the very agencies and programs and US intelligence services that she wants to go and be the head of. That's right. Frankly, I find her history on this with Snowden and Assange

I mean, just incredibly brutal. And I found the exchanges in the hearing even more so. The fact that she was asked point blank multiple times, is Snowden a traitor to the U.S.? And that she wasn't able to answer that, that she kept scurrying away from it.

you know, that she kept sort of hiding behind it and saying, there's no question he broke the law. There's no question he broke the law. You know, but we know from her history that she has defended his actions basically on the grounds that some of what he discovered was incriminating to the intelligence community and therefore that somehow justified his actions. And, you know, he got some kind of a halo from that. I think it's very disturbing. I think there's something here too about where her core beliefs are and what that will mean

as director of national intelligence in a broader way in terms of our relationships with other countries. She spent a decent amount of time during the hearing as well trying to say that she wasn't anyone's puppet, right? She wasn't the puppet Bashar al-Assad in Syria, you know, as some of her

history of meetings with him have been called into question. And she wasn't a puppet of Vladimir Putin, despite the fact that there have been stories about how she was parroting some of the basic arguments out of Russian propaganda operations. You know, and I think it just sort of misses the point because she doesn't have a North Star on these critical national security issues.

So when we look at the way that she has comported herself, and even if she seemed sort of Teflon at moments in the hearing, I think we don't have any sense that her heart is in the right place. She seems far more concerned with denying these tools to the intelligence community than to supporting the most important actions of the agency she's about to be voted or not voted to lead. Hang tight. We'll be right back after one more break.

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Welcome back. The other hearing that got some attention on Thursday was Kash Patel to lead the Federal Bureau of Investigation. Though, Manay, fewer fireworks at that confirmation hearing in front of the Judiciary Committee than I think many people were expecting. One thing he was pushed on was who won the 2020 election, and he would not say. He would say things such as Joe Biden was obviously inaugurated as our president.

But this is interesting. He did break with President Trump somewhat on pardons, mass pardons for January 6th rioters. Listen to this. I have always rejected any violence against law enforcement. And I have, including in that group, specifically addressed any violence against law enforcement on January 6th.

And I do not agree with the commutation of any sentence of any individual who committed violence against law enforcement. What was your takeaway? I guess mine was that Patel has a reputation as a inflammatory performer and maybe he has that side to him. But it seems to me that he brought a different, more serious lawyerly side to this confirmation hearing.

I think that that's really clear. I think that Kash Patel has been very savvy in the way that he's approached his nomination to head the FBI. He knows that Republicans have a majority in the Senate, that there's a lot of goodwill. People want to see him potentially get confirmed as long as he's

willing and able to say the right things at his hearing. And so he spent the time preparing and decided what approach he needed to take. Obviously, if you're heading the federal government's preeminent law enforcement agency, you have to show that you're willing to protect the agents who are on the ground actually doing the work.

And so that was a little way that he distinguished himself from President Trump by saying that by no means would he ever condone attacks against law enforcement officers. And I think that that probably gained him a lot of goodwill. And he knows that he has been loyal enough and close enough to President Trump that President Trump would forgive him for a little comment like that in the pursuit of getting confirmed. I think it's really fascinating to

think about the distinction between Kash Patel and Tulsi Gabbard. Tulsi Gabbard in the hearings has shown herself to be a true believer in some of these positions that she's staked out, again, with the refusal to renounce Edward Snowden, showing that she has deep convictions about the supposed overreach of the intelligence community and the value of exposing some of that even against American interests.

Whereas Kash Patel, I think, has shown himself to really fundamentally have been an opportunist in some of the outlandish positions that he took in the aftermath of 2020. He definitely was trying to position himself as someone who could have a future in the MAGA movement and in a potential next Trump administration by talking about election fraud, by talking about the supposed government gangsters on the left,

who were using the law as a tool to persecute President Trump. And there is certainly some truth in that, but he went very, very far in painting these people as enemies of the state. But now that he's gained goodwill with President Trump and with the mega movement and is in position to take on real responsibility, he's shown himself able to walk some of that back in a way that Tulsi Gabbard is completely unwilling to do. Meantime, some of Trump's other cabinet nominees getting confirmed this week, Treasury Secretary Scott Besant,

confirmed on January 27th with 68 Senate votes. Interior Secretary Doug Burgum, January 30 with 79 Senate votes. Transportation Secretary Sean Duffy, confirmed January 28th, 77 Senate votes for him. And one more this week.

to lead the Environmental Protection Agency, Lee Zeldin. 56 Senate votes for that. Colin, we'll give you the last word, but a couple of thoughts from me on that. It seems like the Senate is moving in pretty quick order to confirm some of these mainstream right of center conservative figures for these very key cabinet posts. And so remember when Trump was suggesting that the Senate should just go out of recess so he could get his people in quickly? It seems like they're getting in pretty quickly anyway.

Yeah, I agree. It's good to see them doing their basic advice and consent duty there where they can and picking their battles on some of these key nominees. I think, you know, when the EPA position is one that is getting through relatively unscathed, that Democrats are certainly directing their attention elsewhere. I think one that's going to be sort of interesting to watch in the coming weeks.

is the Transportation Secretary, Sean Duffy, because he's obviously dealing now with this plane crash that happened in Washington between the Army Blackhawk and that passenger flight. So I think he's going to have a lot of visibility, and I think there'll be some interesting developments in that area in coming weeks. Thank you, Colin and Manet. Thank you all for listening. You can email us at pwpodcast at wsj.com. If you like the show, please hit that subscribe button.

And we'll be back next week with another edition of Potomac Watch. America's energy future begins now. More American oil and natural gas means more jobs, more security, and more innovation. America's moment is now. Learn more at LightsOnEnergy.org. Paid for by the American Petroleum Institute.