9 months ago
On Tuesday night, Rep. Mike Turner, the chair of the House Permanent Select Committee on Intelligence, showed Rep. Jim Himes, the committee’s ranking Democrat, a short statement that he wanted to release.
Meeting behind closed doors, the committee had just voted to allow all House members access to a secret report that Turner (R-Ohio) found especially alarming. Now Turner wanted the public to know about it. His proposed statement described “a serious national security threat” and called on President Joe Biden to “declassify all information relating to this threat.”
Himes (D-Conn.) read Turner’s statement and told him that releasing it was a bad idea. “In the meeting, I objected to communicating this,” Himes told POLITICO. Turner held back that night, but on Wednesday morning, he hit send.
And then, of course, all hell broke loose.
The cryptic threat was quickly identified by reporters as a Russian anti-satellite nuclear weapon — a fact the White House eventually confirmed publicly.
All of this was taking place as the Intelligence panel dealt with a separate legislative crisis.
The foreign intelligence-gathering program known as Section 702 expires in April. According to Assistant Attorney General Matthew Olsen, renewing the program is “perhaps the single most consequential national security decision that this Congress will make.”
A group of House lawmakers from the right and left has proposed reforms to Section 702 that Turner, Himes and Biden’s top national security officials all say will cripple the program.
In one day, these two storylines — the new threat from Russia and Section 702 reauthorization — collided in spectacular fashion, when Speaker Mike Johnson pulled the plug on his plan to bring the 702 legislation to the floor just as a national freakout over Russian weapons in space hit a crescendo.
So, what’s next? On this week’s episode of Playbook Deep Dive, Ryan Lizza spoke to Himes to get answers to all your questions about Russian space weapons and Section 702 — and take a behind-the-scenes look at a committee that is not used to this much attention.
This conversation has been edited for length and clarity, with help from Deep Dive Senior Producer Alex Keeney.
What happened on Wednesday? Tell us the backstory from your perspective.
What an exciting day. The third attempt to get [Section] 702 on the floor, which is actually really important because it's our premier collection tool. And then, of course, the chairman releases his statement and “Dear Colleague” [letter], which had the effect of lighting the world on fire.
Where were you when it happened?
I think the press got word of what was going on in the late morning. So I'm in a lunch, and my phone is literally bouncing across the table.
He didn't give you a heads up that he was going to release that statement?
The way this played out was we had a business meeting to make an intelligence product available to the broader Congress. Now, often when we do that, it is a particular member request. And we've always shown great deference to each other. In other words, unless there's a really obvious reason to say “no,” we say “yes.”
That happened on Tuesday. Right?
Correct. There was a committee vote on that.
Because usually when that happens, there's just a sort of one word description of what's being voted on behind closed doors. Do I have that right?
Yeah. So again, these are pretty routine things. Making a product available to the whole Congress is slightly different than just to one individual member. But by the way, this particular product was out there for lots of committees to review.
Can you explain when you say “this product,” generally what does that mean?
It’s an intelligence report. I don't want to get too specific here, but in this case, there were a couple of intelligence reports on a potential threat that the intelligence community had been tracking for some time. This wasn't a shocker or a surprise. I make that point because I was getting phone calls at lunchtime about whether people needed to head for the hills of West Virginia. But it was a specific intelligence product, which I learned in retrospect is largely available to [House Armed Services] and Foreign Affairs anyway. And then the chairman showed me a statement that he wanted to make about it.
That was at the Tuesday meeting?
This was at the Tuesday meeting. And I looked at this statement and I said, “Mike, I think I disagree with you on this point because if this statement goes out” — I think I said, “you're going to spend the next four weeks talking to reporters.”
So I objected to that informally. But the committee approved the access, and all was quiet until the “Dear Colleague” from Chairman Turner and then the tweet. And that's when all hell broke loose.
What's the nature of the disagreement between you and him on this?
Well, it was really over whether we should publicize this.
But it seems like you were disagreeing a little about the characterization or imminence of this threat.
Again, without getting too specific about the intelligence, this is absolutely not an immediate or imminent threat. This is a threat that the intelligence community has been tracking for some time. And like so much of what we deal with, you get an inkling of a threat, and over a period of weeks or months, depending on what it is, if it's not imminent, the Executive thinks about the appropriate response and the way to deal with it.
I think people legitimately thought, “Oh my God, we're a day from the apocalypse” because of the language in the “Dear Colleague,” which I think used the adjective “destabilizing.” “Destabilizing” doesn't have a time indicator on it. Is this destabilizing 10 years from now? Maybe it is. Is it destabilizing today? No.
The mystery of it was a big part of the story, right?
Basic human psychology 101: Fewer facts and more mystery is more scary. More facts and less mystery is less scary. So of course what happened was going to happen. And that's why in the meeting, I objected to communicating this.
Do you think that Turner did this to light a fire under 702 or the Ukraine aid supplemental, since both have been having trouble?
This is a question for him to answer. But I will speculate because I know the chairman pretty well, and the chairman and I have a very strong relationship. I know there's a lot of conspiracy theories out there that this was somehow magically timed.
You don't have to be a conspiracy theorist to believe that there might be a motivation.
Well, it's just not very logical. I know that there's a theory running around that he did this to make it more urgent to pass 702. That just doesn't make a lot of sense to me.
What about Ukraine aid?
That's the other one I was going to mention. That would be a pretty indirect way of doing that.
He certainly got everyone's attention. We are all talking about 702 and Ukraine all of a sudden.
Let's talk about 702 for a second.
You know, we had a reasonably good base bill. I agree with Jim Jordan, which I've never done before, that the base bill was pretty good. And the conflict over at 702 was do we include a probable cause warrant [for surveillance]? There were a couple of other things too, but that was the big conflict. That's where Jerry Nadler and I were on opposite sides, and Mike Turner and Jim Jordan are on opposite sides.
Saying in the most sort of hazy way possible that Russia is a threat is hardly a way to address the fundamental question of a disagreement on a probable cause warrant.
So based on who I know Mike Turner is, I think he had been very concerned about this [threat]. I think that he believed that the administration or elements of the administration weren't focused enough on this particular issue, and I think that was his motivation.
And when he showed you the statement, he didn't say, “Hey, I'm going to put this out to finally get our bill passed?”
He absolutely did not.
You and Turner have done a good job of depoliticizing the Intelligence Committee. Do you see this as a sort of breach of your efforts there?
I don't. I think that the communication side of this led to a great deal of confusion. I would not have done it that way. But you know, it's our job to be bipartisan and to keep partisanship out of the Intelligence Committee, not to always agree.
Let's talk about the weaponization of space by Russia. How much has Russia militarized space already?
It's not just Russia, right? It is very much the Chinese. You know, there's some pretty high-tech stuff: exquisite satellites that can collect, not just pictures, but electromagnetic radiation. In some senses, that's the militarization of space.
Would you say that electromagnetic radiation could be used as a weapon?
Theoretically. I can't be too specific here, but as you might imagine, countries with good technical capability are thinking about how you might mess with other people's satellites.
You can't hide anything [in space]. In fact, not only is it in plain sight, but it is perfectly predictable, right? Because stuff up there is moving around purely as a mathematical result of physics, which we don't get to play with.
We can track everything in space?
With a telescope you might buy at a Walmart, you can see these things, and you can predict when they're coming. Now, can you see a tiny little thing on the side of a satellite? Probably not. Can you see something on the back of a satellite? Probably not. So, this is the kind of thinking that these people who think about this stuff are doing.
So, militarization means a lot of things.
One, can we protect our stuff up there? We’ve got a lot of valuable stuff up there, as do the Chinese and pretty much 12, 13, 14 other countries.
Can we shoot other people’s stuff down there? Well, if you can launch an intercontinental ballistic missile, you could probably shoot down a satellite. And there's a lot of people doing a lot of thinking about that.
And then there's the third question, which is what about weapons up there?
Weapons that are based in space?
Exactly. And I can't give you chapter and verse on this, but there's any number of international treaties that forbid putting weapons up there.
Some of our sources have told us to brush up on the Outer Space Treaty, which prohibits the nuclearization of space. What would be the consequences of violating that treaty?
We have real trouble when countries do things like try to shoot down their own satellites or create a problem up there because the stuff that is orbiting the Earth, it eventually comes down.
Meanwhile, you have stuff moving at whatever the number is — 25,000 mph — and a little bolt moving at that speed takes out a communication satellite in pretty spectacular fashion. So, as you might imagine, we spend an awful lot of time worrying about garbage circulating up there. Were you to detonate an explosion, much less a nuclear explosion, something I learned about space is that because there's no atmosphere, there's no boom and there's no pressure wave — what you're dealing with is radiation. And for reasons I can't explain to you, because I didn't do well in high school physics, the radiation lasts a very long time up there.
If Russia were interested in a space-based nuclear weapon, what would the options for the president be?
There's one approach which is you go to the U.N. and you make it really public. Hypothetically, if this were about activity in space, the U.N. would be a pretty good venue to do that because you can't mess around in space without messing up a whole lot of people's assets. So one possibility would be that you just sort of name and shame like, “Here's this thing happening up there that could put Indian, Malaysian, Canadian, French, British satellites [at risk].”
And you hope that those folks sort of cotton on and say, stop whatever it may be.
Or even China — you could see the ally of an offending country, like Russia, taking issue with this.
Sure. This is sort of the nature of space, right? You can put a missile on a Houthi rocket launcher without anybody else knowing about it. But anything you do in space is going to affect dozens of countries' equities up there.
With respect to the war in Ukraine, the Russians have previously talked about the possibility of retaliating against private, mesh network internet service providers that are helping the Ukrainians fight the Russians. They've argued that it might be a legitimate target. What do you think of that?
You're thinking of Starlink here?
Yes.
I understand the military thinking: “So Starlink is being used to some effect by the Ukrainians. Let's think about taking out these satellites.”
Strategically, that would be a pretty massively escalatory move because it's not [just] Ukrainian stuff up there. And, if all of a sudden Russia opens the door to taking out other people's stuff, what do you think the Chinese think about that?
And then the last thing on this, what's going to happen now? You have this request for the administration to declassify as much as possible on this. How do you see this playing out?
I think Chairman Turner wanted much more clarity on what the Executive Branch's options and thinking is around dealing with this particular threat. And I imagine that that's probably the subject of the meeting. So we'll see.
Are you with him on that in terms of declassifying more about this?
I was not happy with his conclusion that it should be declassified, not because he's obviously wrong, but the decision to declassify something has everything to do with the strategy. It is intimately wrapped up in — if we declassify, who or what gets exposed?
You should be really careful about saying something should be declassified, because you don't know what the downsides are to sources and methods.
And that's the conversation that Jake Sullivan is going to have with you guys?
I guess. I don't know that he's under any obligation to talk about sources and methods. And given that I suspect the committee is not in his good graces right now, I would understand why he might be a little bit reticent. But I think he does have an oversight obligation to talk about what they're doing.
What do you mean the committee is not in his good graces?
Because of the last 48 hours where the press is speculating on what this thing may be, where intelligence may have been exposed —
Jake is pissed at Turner.
I would be surprised if he weren't.
Quite apart from that, it's a huge oversight issue. Because if senior [intelligence community] professionals are thinking, “We really should tell Congress this, it's super sensitive. They need to know,” but there's some chance that on a Tuesday business meeting, they're going to give 435 yahoos access to the information and literally two hours later, there's going to be stuff in the press — if I'm that senior intelligence leader, I'm like, “You know, okay, I understand I have an obligation to disclose, but people could die.” You see the tension.
Just to clarify, the “435 yahoos” are the members of the U.S. House of Representatives?
I included myself in that number, didn't I?
No, but it's a serious issue. And look, I can't prove this, but one of the things I'm really proud of Chairman Turner and I having accomplished is that — when the Intelligence Committee was a highly politicized platform for pro-Trump, anti-Trump stuff, there's no question in my mind that the intelligence community leaders were thoughtful about what they should send our way, and that is not a good outcome.
There's much more trust now. Is that what you're saying?
Exactly.
Let's talk about a much simpler subject, 702. Give us the state of play on that before I ask you about why you're so worried about these Jim Jordan amendments.
You know the state of play, which is that we're kind of nowhere now. This is a program that must not be allowed to expire. It is probably our premier collection program. Sixty percent of the president's daily brief comes from 702. Every moment, every hour, we are using 702 collection. So it must not be allowed to expire.
And it's a hard one, legislatively speaking. The legalities are really hard, even for lawyers, of which I am not one. The technologies are hard. The equities are hard because largely — and this moves into the conversation about a probable cause warrant — but if this were a program that only collected the emails and texts or whatever of non-U.S. nationals, of foreign targets, we wouldn't be having this conversation. But it turns out you can't collect a target's email to an American without getting an American’s information.
And just to back up, so people understand, explain broadly what 702 is.
In the 702 program, we go to U.S.-based service providers, folks that run emails and text businesses, and we say, “Give us the emails and texts for these foreigners, only foreigners.” That's how the program works. Why does it need a special legal standing? Because if we want to steal somebody's emails in Brussels, we can just do that. The reason it needs a legal standing is because the demand of the email provider happens here in the United States. Now, that would all be okay if we only ever got information on foreigners. But as I said, there's always somebody on the other side of an email.
If I, as an American citizen, send a text to a foreigner and that foreigner is then a target of 702, obviously my communications are going to be collected?
Right.
And there's a warrant process to go to the service provider to get that information?
It's not technically a warrant.
You have to go to the FISA court?
It's compelled production. And every year, the FISA court looks at the whole program, warts and all, because there have been some real warts, which is one of the obstacles we've had to overcome. Every year, the FISA court reauthorizes this program, often with changes. So it gets good oversight. This is one of the ironies, right? This program is probably the most heavily scrutinized program we have because you've got the courts involved, and people say, “Oh, the FISA court, these are like shadowy judges.” No, they're not. They're regular federal judges who agree to join the FISA court for a period of time. So it gets scrutinized by the judges. It gets scrutinized by internal executive branch people, inspector generals, the attorney general, and it gets scrutinized by me. It has scrutiny from all three branches of government, which is one of the reasons that it is puzzling that it's so controversial.
It’s controversial, especially among some conservatives, because there was clear abuse by the FBI in obtaining a FISA warrant during one of the Russia investigations.
Well, here's the irony: The Carter Page story is well told and well understood. And yes, the affidavits that were filed for those FISA warrants were not adequate, [but] that was not 702.
If you want to criticize 702, which again, it's a program with some warts on it, you say, “Oh my gosh, the FBI has been really sloppy around how they did U.S person queries.”
That is true. That of course gets the Jim Jordans of the world pretty ginned up too, as it should. I don't mean to sound condescending about that. Any abuse is not okay. But the whole Carter Page thing, the whole Russia investigation had nothing to do with 702.
Fair point. It had to do with the FISA court, which also oversees 702.
So Jake Sullivan, before the controversy we were talking about in the earlier part of this conversation, was up on the Hill briefing about 702. Tell us about that meeting and what the administration's view is right now.
That was the other beautiful moment of yesterday. Just as the entire Capitol has decided that the aliens are landing with nuclear weapons and we all need to sell our belongings and move to Montana, Avril Haines and the national security advisers are going into HPSCI. And I made a point of telling people this has nothing to do with what Turner's been on about.
Well, maybe Turner knew that was going to happen.
All right. Okay. Whatever you think.
Tell us about that briefing. What did they say?
Let me distill a two-hour meeting down to a couple sentences. They said a warrant to query U.S. person information is not doable. And the reason it's not doable, you're hearing this from a non-lawyer, is that probable cause is a standard that says “we have evidence that a crime has been committed.” Very rarely is that true with the U.S. person query.
This all started with a conversation about the meeting with Jake Sullivan. And I don't want to try to climb inside Jim Jordan['s] and Jerry Nadler's head[s], but their attitude is, “We want a probable cause warrant.”
And Jake Sullivan says, “But that shuts the program down.”
And that's a weird impasse to be at.
And just be clear, both sides of this debate were in that meeting?
There were about 60 Democrats in there, some of whom I think were very sympathetic to their argument, some of whom were really not sympathetic to their argument. So again, when people understand that the probable cause standard simply doesn't work, I think they get it. It's frustrating to me that there are leaders of committees who hear that but don't grapple with it.
On the other amendment that you're concerned about, the advocates of that amendment say that the intelligence agencies are getting around the Fourth Amendment by buying these large, private databases.
“The Fourth Amendment is not for sale” amendment.
Explain that and what your view and the administration's view is on this.
I sort of want to light myself on fire because there's just a logical problem with people who say we should have it.
I have a very different view of the “Fourth Amendment is not for sale” amendment, which is, I think, a hugely worthy undertaking. If the Department of Defense, law enforcement at every level, and the intelligence community is buying commercially available data — I guess on Facebook or Twitter or whatever it is — they're buying that stuff just the way you and I could buy it. And, oh, by the way, just the way the Chinese and the Russians and Iranians can buy it.
And I think it's a hugely worthy conversation, but I feel adamantly — and this is what took down the 702 consideration yesterday — I feel really adamantly that we have that conversation, including the committees that should weigh in on it, not just Judiciary, but Energy and Commerce, and Intelligence. And then let's legislate. But please, please, please don't take something that has nothing to do with 702.
So the original idea, if I've got this right, was that the House would handle 702. You guys would work out some of these disagreements, and then it would go over to the Senate. Doesn't seem like that plan is working. Is it now better for the Senate to go first?
You ask a very big question here. Because if the House uses regular order, we can't tie our shoes, we can't get out of bed in the morning. So we have two mechanisms to get things done: passing things under suspension of the rules, which, by the way, Mr. Speaker, by definition means these things are going to be bipartisan, right?
Would 702 pass under suspension?
I don't think so. I think we would get an outcome that I would support in the majority, but I don't think we get to two-thirds. Especially by the way, with all of that data broker stuff. So it feels to me like — now I'm sort of speculating about the box that the Speaker's in — we either pass things under suspension of the rules because the Republicans can't get a rule passed, or we just end up eating whatever the Senate sends us until the Speaker figures out how to handle his raucous caucus.
Well, good luck waiting for that. So what's the process you recommend for 702? Do you have any faith that this is going to be solved, or are they going to need another extension passed?
I would have liked to have seen the House work its will. I think we could have defeated the probable cause amendment and passed a bill. I don't know how it would have come out with the data broker thing, but that wouldn't have been the last word, right? There would have been a Senate bill, there would have been a conference, we would have had other bites at the apple. Today we have nothing. And that makes me very sad, because we just can't put the existence of this program at risk.
I'm sure you've talked to Speaker Johnson about 702. Do you feel like he gets it and understands how important this program is?
I think he does. I've heard him say that. I've heard him say that he supports aid to Ukraine. I've heard him say that he supports aid to Israel. What Johnson thinks or feels is not relevant to the dysfunctionality of the House. It's a math problem.
Do you think there's a faction on either the left or the right that would have no problem with 702 expiring?
Yeah. I'd like to believe it's a tiny fraction, because that's dangerous. But look, we have a tiny faction in the House that is openly rooting for Vladimir Putin. So the question that you just asked — the answer to that question is always yes.
Thank you very much for this conversation. I don't think you broke any classification rules.
We'll see if I get dragged out in handcuffs next week
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