Open Hearing: Nomination of David S. Kris to be Assistant Attorney General for National Security

[Senate Hearing 111-163] [From the U.S. Government Printing Office] S. Hrg. 111-163 NOMINATION OF DAVID S. KRIS TO BE ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY ======================================================================= HEARING BEFORE THE SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES SENATE ONE HUNDRED ELEVENTH CONGRESS FIRST SESSION __________ MARCH 10, 2009 __________ Printed for the use of the Select Committee on Intelligence Available via the World Wide Web: http://www.access.gpo.gov/congress/ senate ---------- U.S. GOVERNMENT PRINTING OFFICE 52-740 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 SELECT COMMITTEE ON INTELLIGENCE [Established by S. Res. 400, 94th Cong., 2d Sess.] DIANNE FEINSTEIN, California, Chairman CHRISTOPHER S. BOND, Missouri, Vice Chairman JOHN D. ROCKEFELLER IV, West ORRIN G. HATCH, Utah Virginia OLYMPIA J. SNOWE, Maine RON WYDEN, Oregon SAXBY CHAMBLISS, Georgia EVAN BAYH, Indiana RICHARD BURR, North Carolina BARBARA A. MIKULSKI, Maryland TOM COBURN, Oklahoma RUSSELL D. FEINGOLD, Wisconsin JAMES E. RISCH, Idaho BILL NELSON, Florida SHELDON WHITEHOUSE, Rhode Island HARRY REID, Nevada, Ex Officio MITCH McCONNELL, Kentucky, Ex Officio CARL LEVIN, Michigan, Ex Officio JOHN McCAIN, Arizona, Ex Officio ---------- David Grannis, Staff Director Louis B. Tucker, Minority Staff Director Kathleen P. McGhee, Chief Clerk CONTENTS ---------- MARCH 10, 2009 OPENING STATEMENTS Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California. 1 Bond, Christopher S., Vice Chairman, a U.S. Senator from Missouri 2 WITNESS Kris, David S., Assistant Attorney General for National Security- Designate...................................................... 3 Prepared statement........................................... 4 SUPPLEMENTAL MATERIAL Prehearing Questions for the Record and Responses................ 20 Questionnaire for Completion by Presidential Nominees............ 52 March 6, 2009 Letter from Robert I. Cusick, Office of Government Ethics, to Senator Dianne Feinstein............................ 71 Public Financial Disclosure Report............................... 72 February 18, 2009 Letter from Benjamin A. Powell................. 99 January 30, 2009 Letter from Daniel Marcus....................... 101 January 30, 2009 Letter from Michael Chertoff.................... 102 February 2, 2009 Letter from Richard Cullen...................... 103 February 4, 2009 Letter from Larry D. Thompson................... 105 February 1, 2009 Letter from Janet Reno.......................... 106 February 3, 2009 Letter from Daniel Levin........................ 107 February 3, 2009 Letter from Robert S. Litt...................... 108 NOMINATION OF DAVID S. KRIS TO BE ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY ---------- TUESDAY, MARCH 10, 2009 U.S. Senate, Select Committee on Intelligence, Washington, DC. The Committee met, pursuant to notice, at 2:32 p.m., in Room SD-106, Dirksen Senate Office Building, the Honorable Dianne Feinstein (Chairman of the Committee) presiding. Committee Members Present: Senators Feinstein, Rockefeller, Wyden, Feingold, Bond, and Chambliss. OPENING STATEMENT OF HON. DIANNE FEINSTEIN, CHAIRMAN, A U.S. SENATOR FROM CALIFORNIA Chairman Feinstein. The hearing will come to order. I apologize for this large hearing room. It is not the most intimate of surroundings but it is public and that is our requirement. The Committee meets today to consider the nomination of David Kris to be Assistant Attorney General for National Security. Mr. Kris, at this time, are there any members of your family that you would like to introduce? Mr. Kris. Yes, Senator, there is my wife just behind me here, Jody Kris. Chairman Feinstein. Good. Welcome, Mrs. Kris. I had the opportunity to preside at a hearing of the Judiciary Committee on Mr. Kris' nomination on February 25 of this year, and the Judiciary Committee reported out the nomination unanimously on March 5. Because of a provision in the PATRIOT Act Reauthorization Act of 2006 that created this Assistant Attorney position, the nomination is now before the Committee. Now, given that the Judiciary Committee conducted its reviews and posted information on its website and that six of this Committee's members serve on Judiciary, I hope to be able to move this nomination quickly, and it would be my intention to try to mark it up at Thursday afternoon's meeting. The Assistant Attorney General for National Security is the bridge between our nation's intelligence community and the Department of Justice. The Assistant Attorney General represents the government before the FISA court and is also the government's chief counterterrorism and counterespionage prosecutor. The work of that official is, therefore, of great interest to our Committee. Among the important acts this year for Mr. Kris, if confirmed, will be to prepare the new certifications and supporting materials that the Executive Branch will submit to the FISA court under last year's FISA Court Act. As such, he would be the official at the Department of Justice most directly involved in questions of setting minimization, which is a very important part of that bill, and targeting procedures, also an important part, reviewing the Attorney General's guidelines under the Act, and making sure that intelligence collection is carried out faithfully under the law. The Assistant Attorney General is also highly involved in decisions concerning the information that the FBI is allowed to share with Congress, a matter I discussed recently with Director Muller. Another issue I raised with Mr. Kris at the Judiciary Committee is the authorities for detaining individuals currently held at Guantanamo Bay, and in particular what is allowed under the law of war and the Geneva Conventions. This Committee is very interested in prosecuting those involved in terrorism. But we are also concerned by the threat that detainees may pose if they are returned to nations that are unwilling or unable to keep them from resuming extremism. And although they may not be convictable of an instant attack, they can still be a future threat to our nation's security. And I believe that we consider that we have the proper procedures in place to be able to examine that. So I might say, Mr. Kris, we will look forward to working closely with you as we encounter these problems. I'd like now to turn to the distinguished Vice Chairman for his comments. OPENING STATEMENT OF CHRISTOPHER S. BOND, VICE CHAIRMAN, A U.S. SENATOR FROM MISSOURI Vice Chairman Bond. Thank you, Madam Chair. Although I didn't have the privilege of sitting in on the hearing of the Judiciary Committee, I've had a very good discussion with Mr. Kris and I welcome you here today on your nomination to be the next Assistant Attorney General for National Security. As I believe the Chair and I agree, it's extremely important that we establish early on a close working relationship, because your position is one which is critical in our relations with the Department of Justice and your advice and counsel and sometimes our advice, wanted or unwanted, is important to be able to exchange. I extend a very special welcome to your wife, Jody, and I commend you, Mrs. Kris, for your dedicated support. Most spouses only have to sit through one confirmation hearing for a given position, but two hearings, while necessary in this case, may border on, if not cruel and unusual punishment, at least excessive testing of one's sense of humor. You will be the third Assistant Attorney General, Mr. Kris. Ken Wainstein, Pat Rowan, and the dedicated men and women of the National Security Division really deserve our gratitude and praise for their tireless efforts to stand up this new division within the DOJ while continuing to provide crucial legal services to the intelligence community and in many instances to Congress. For example, NSD has already played an essential role in making important revisions to national security legislation and policy during the passage of the Protect America Act and its successor, the FISA Amendments Act, in which I was somewhat involved. Attorneys from that National Security Division provided key technical assistance to me and advice to the Committee. And the attorneys also participated in revision of Executive Order 12333 and the Attorney General's guidelines for domestic FBI operations. Just as important, NSD has essentially eliminated the pre- existing backlog of FISA applications so that the FISA process is now running smoothly. Now in your hearing with the Judiciary Committee, you laid out three procedural and three substantive areas on which you intend to focus on the short run, the procedural areas-- strengthening internal relationships within components of the NSD, the external relationships within the IC, including the FBI. These are necessary and important. And the three substantive areas you identified also are of particular concern to the Committee--Guantanamo Bay, the FISA Amendments Act and the FBI Domestic Operations Guidelines. I suggest there may be a fourth area requiring your immediate attention--the FISA provisions that are due to sunset this year as part of the USA PATRIOT Act. Now in our meeting we discussed these issues and I was very much impressed with your knowledge of the subject matter and by the caliber of the individuals who are supporting your nomination. You have some good friends and have some people on which you really have some goods. I believe that you're particularly well qualified for this position and therefore I welcome your nomination and look forward to supporting it. I agree with the Chair that, barring any reason that we don't know about, it's important for the Committee and the Senate to move quickly so you can get to work. And another advantage to moving quickly is that the Attorney General will be able to designate you as one of the officials who can certify FISA applications. Experience has shown that this added flexibility is essential. Mr. Kris, I congratulate you on your nomination, and look forward to your testimony and to working with you to ensure that the National Security Division continues to provide outstanding legal support to the Department of Justice, the intelligence community and Congress. Thank you, Madam Chair. Chairman Feinstein. Thank you. Thank you very much, Mr. Vice Chairman. I appreciate your comments. Before beginning the first round of questions, if you have an opening statement, would you like to give it at this time? STATEMENT OF DAVID S. KRIS, ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY-DESIGNATE Mr. Kris. Yes, thank you. Madam Chairman, Vice Chairman Bond and Senator Rockefeller, it's an honor to appear before you. In my opening statement to the Judiciary Committee a few weeks ago, I outlined these three sets of issues, procedural and substantive, and I agree with you Senator Bond, the FISA sunsetting provisions is probably a fourth area. And I won't elaborate on those here. I did also say before the Judiciary Committee that I wanted to respond appropriately and quickly to Congressional oversight and maintain strong cooperative relationships with the Judiciary Committee and other committees. And I do want to say the same thing, with some emphasis and elaboration, before this Committee. I haven't studied all of the history and law of intelligence oversight, but I think I do appreciate its fundamental importance to our democracy, and especially the critically important role of this Committee and its counterpart in the House in helping to resolve the tensions that sometimes inevitably will arise between, on the one hand, the need to protect classified sources and methods and, on the other hand, the fact that we live in a democracy that rests fundamentally on the knowledge and consent of the governed. And I think these committees--Americans depend on this Committee and the House Intelligence Committee to provide the kind of oversight that the public itself cannot provide. And I'm aware of the fact that the Committee cannot fulfill that function unless we in the Executive Branch in turn fulfill our requirement to keep it fully and currently informed. As CIA Director Panetta said, this is not optional; this is the law and it is our solemn obligation to meet it. And so I want to join Director Panetta and Admiral Blair, in expressing my desire to build a close working relationship with the Committee. I think this will be good for democracy, and I think it will be good for the National Security Division. So thank you very much. [The prepared statement of David S. Kris follows:] Prepared Statement of David S. Kris Madame Chairman, Vice Chairman Bond, and distinguished Members of the Committee, it is an honor to appear before you. I am grateful to President Obama for nominating me, to Attorney General Holder for supporting me, and to the Committee for considering me. I also appreciate the Members who met with me prior to this afternoon. In my opening statement before the Judiciary Committee two weeks ago, I identified three procedural issues, and three substantive issues, on which I hope to focus if confirmed, subject to the important caveat that I remain an outsider, without detailed knowledge of certain classified and operational matters. At the risk of repetition for the Members who serve on both Committees, I thought I would mention those issues again, and then devote the balance of my time to discussing what I see as the special and vital oversight role of this Committee. The three procedural issues I identified are (1) continuing to strengthen internal connections among NSD's various components; (2) focusing on NSD's relationships with the NSC and the Intelligence Community; and (3) continuing the positive evolution of NSD's working relationship with the FBI. My answers to some of your questions for the record address these issues in more detail. The three substantive issues I identified are (1) Guantanamo Bay; (2) the FISA Amendments Act; and (3) the new FBI Domestic Operations Guidelines. Again, my answers to questions for the record discuss these matters in more detail, and I am happy to discuss them here if there are additional questions. When I went before the Judiciary Committee, I said that I wanted to respond appropriately and quickly to Congressional oversight, and maintain strong, cooperative relationships with it and with other Committees. I want to say the same thing, with emphasis and elaboration, before this Committee. While I have not studied all of the history and law of intelligence oversight, I do understand its fundamental importance to our democracy. And I especially appreciate the critical role of this Committee (and its counterpart in the House of Representatives) in helping to resolve the tensions that sometimes arise from the need to protect classified sources and methods in a system of government that rests fundamentally on the knowledge and consent of the governed. Americans count on the Committee to provide oversight that the public cannot provide. The Committee, in turn, cannot fulfill that function unless we fulfill our requirement to keep it ``fully and currently'' informed. As Director Panetta said, this is not optional; it is the law; it is our solemn obligation. So I want to join Director Panetta, and Admiral Blair, in expressing my desire to rebuild a close working relationship with the Committee. I think this will be good for democracy, and also good for NSD--there is a lot of expertise in this hearing room. We maynot always agree on everything, and I know that you will question, challenge, and hold us accountable when appropriate, but I am quite sure that we are at our strongest, and our best, when we work together, and if confirmed I look forward to doing that. Again, I want to thank the Committee for holding this hearing. I would be pleased to answer your questions. Thank you. Chairman Feinstein. Thank you very much, Mr. Kris. Before beginning the first round of questions, I have some procedural questions to ask you. A yes-or-no answer will suffice. If confirmed, Mr. Kris, do you agree to appear before the Committee here or in other venues, if invited? Mr. Kris. Yes. Chairman Feinstein. Do you agree to send officials from the National Security Division to appear before the Committee and designated staff when invited? Mr. Kris. Yes. Chairman Feinstein. Do you agree to provide documents or any other material requested by the Committee in order for it to carry out its oversight and legislative responsibilities? Mr. Kris. Yes. Chairman Feinstein. Will you ensure that the National Security Division provides such material to the Committee when requested? Mr. Kris. Yes. Chairman Feinstein. And do you agree that you will inform and fully brief, to the fullest extent possible, all members of the Committee of intelligence activities, rather than only the Chairman and Vice Chairman? Mr. Kris. Yes, in keeping with law, yes. Chairman Feinstein. Thank you very much. Let me begin my questions. The FISA Amendments Act was signed into law in July 2008. It provides for annual authorizations by the Attorney General and the DNI for the collection of foreign intelligence targeted against persons reasonably believed to be located outside the United States. Starting this summer, the next Assistant Attorney General for National Security will have responsibility for presenting to the FISA court the certifications and supporting material for the annual renewal of collection authority. Having looked at the legislation, what questions do you intend to ask about the targeting and minimization procedures? Have you considered what the Attorney General guidelines, also required in the FISA legislation, should be? Mr. Kris. Well, Senator, I appreciate very much that question, and as we've discussed, the FISA Amendments Act is at the top of my list of things to do if I am fortunate enough to be confirmed. I'm a little bit at a disadvantage in anticipating all of the things that I will want to do if I am confirmed in this area, because in my current posture I am not aware of the classified information about the implementation of the FISA Amendments Act, and I do think that this is a statute that is both very complex, very broad and very important to understand the ground truth of the implementation. Chairman Feinstein. My question was limited to the minimization and targeting. Mr. Kris. Yes. With respect to the targeting procedures, I would really want to understand technologically what kinds of safeguards there are to ensure that there is a reasonable belief about the location of the target. There are provisions in the Act, as you know, that forbid the intentional acquisition of known domestic communications, and I would want to understand very much how those safeguards are being implemented. I have written publicly about the difficulty in identifying the location of communicating parties in the world of modern mobile communications and web-based communications, and I would be very interested to know how they are overcoming those kinds of difficulties to be able to form a reasonable belief about the location of a party. And, with respect to minimization, I think I would be particularly interested in, first, protection for U.S.-person identifiers, to the extent they are incidentally acquired, and how the minimization procedures differentiate between non-U.S.- person and U.S.-person identifiers and identities, because I think that's also increasingly challenging in the world that we're living in today. Chairman Feinstein. Well, I would hope to discuss this with you, and the Vice Chairman may want to as well, as soon as you become familiar. Vice Chairman Bond. I think we'd best discuss this in a classified session. Chairman Feinstein. Yeah. Well, that's what I essentially said. By its first anniversary in July, the FISA Amendments Act also requires completion of a comprehensive IG review of the terrorist surveillance program. The report is to be unclassified but may include a classified annex. Many in Congress supported the FISA legislation because there would be this review by the IG of the terrorist surveillance program. That was a way to ensure that there would be a fact-finding effort, given that the immunity provision in the bill ensured that the courts would not be a venue for this effort. The Assistant AG for National Security could well have an important role in the declassification process for the IG review. What do you expect that role to be in the declassification process? And secondly, what standards--and this is in general, but I think it's important because there's a lot of discussion among us on this point--what standards would you apply to the declassification process, including what weight, you mentioned this, should be given to the interest in public information about a program, particularly in light of the action of Congress to bring to a conclusion litigation against electronic communications service providers? Mr. Kris. Thank you, Senator. I feel very strongly that, in general, we are well served when information about our intelligence operations can be made public, consistent with the obvious need to protect classified information. And, as the author of a book in this area and a teacher of law school classes, I do feel personally sympathetic to the desire to produce as much information publicly as can be produced. So, I have a very strong sort of support for that general principle. In terms of the Inspector General reports and my role in them, I would think--obviously, subject to the Attorney General's direction--that the National Security Division and the Assistant Attorney General would play a role in reviewing and serving as a ``bridge,'' I think you said, between the agencies, whose operational equities may be at stake, and the Inspector General, who wishes to publicize as much as possible, and do a little testing on assertions that information is classified, and try to help facilitate and broker a constructive arrangement to settle any differences that might occur. So, that's, in the abstract, without having consulted with the people involved there, I think what I would see the role for NSD to be there. Chairman Feinstein. Thank you very much. My time is up. The Vice Chairman. Vice Chairman Bond. Thank you very much, Madam Chair. And I know that Mr. Kris has extensive experience in this area, and I believe you understand the declassification area. Last week this Committee initiated a bipartisan study of the CIA's detention and interrogation program--not designed for political theater, for a deconstruction of the legality of the program, which would fall outside of our Committee's jurisdiction. Rather, the Committee's focus should and will be on CIA's action, with our ultimate purpose being to shape detention and interrogation policies moving forward. But, you will be in a different position than we are, if confirmed, so I'd like to know, do you think the DOJ should conduct criminal investigations of individuals involved in the program, who acted in accordance with procedures approved by the Office of Legal Counsel and authorized by the President of the United States? Mr. Kris. Senator, a two-part answer to that question: The first is that, as your question indicates, no one is above the law---- Vice Chairman Bond. Right. Mr. Kris [continuing]. And prosecutorial judgments of this kind are always fact-intensive. But what you said was, can you imagine prosecution of people who followed in good faith and reasonably relied on authoritative pronouncements from the Justice Department about what the law is? I think there a second principle begins to apply, that I think, in light of settled doctrines--advice of counsel, due process concerns, not to mention the Military Commissions Act immunity provision that Congress enacted--I think it would be very difficult to imagine a prosecution of someone who really was told by the Justice Department ``what you're doing is legal,'' even if the Justice Department later changes its mind. Vice Chairman Bond. If senior Executive Branch officials authorized the detention and interrogation program, should they be prosecuted? Mr. Kris. I think the same answer would probably apply to that question, Senator. Vice Chairman Bond. What about the lawyers who wrote the OLC opinions? Mr. Kris. I am not aware--same answer, but with an additional modifier, which is I think that the lawyers, it's even, perhaps, more difficult to figure out how you would make that fit. Vice Chairman Bond. We lawyers always take care of our own and make it difficult to proceed against one another. On the PATRIOT Act, I know you were heavily involved in the passage of the PATRIOT Act. Three provisions of the Act related to FISA are due to sunset this year--the lone wolf, roving wiretap authority, and Section 215 business records court order. Do you believe that each of these provisions should be made permanent? And how much weight do you believe should be given to the frequency with which a particular provision has been used? Mr. Kris. This is an area where, being an outsider, it's difficult to know, because one of the things I'd want to know, if I am confirmed, would be: How have these been used? How often? Have they been misused? If so, how often? Are there possible uses that people can think of that actually haven't happened but could happen? Frequency of use would be one factor, but lack of frequency would not necessarily mean that the provision ought not be renewed or made permanent. I just would want to see what the operational environment is, and the importance of the provision, as well as its frequency of use. Vice Chairman Bond. Well, that leads me to a follow-up question. If a particular authority has not been used because of unnecessary administrative burdens, would you review that with an eye to cutting out extra red tape and analysts so that the authority would be usable, if it were held up by reason of excessive regulation? Mr. Kris. Yes. I would certainly want to look at that. Vice Chairman Bond. You were involved in the revision of 2003 National Security guidelines that knocked down the walls between criminal and national security. I think you've had an opportunity to review the newly revised AG guidelines for domestic FBI operations--which, in my opinion, hit home the point that the FBI should be able to use all of the tools in its toolbox. What are your opinions of these guidelines? Can you see any reason why the FBI shouldn't use the same tools to track down terrorists as it uses to catch white-collar criminals or drug dealers? Mr. Kris. As I said in my opening statement and in my questions for the record, I think there are several elements of the new guidelines that I support. One is the unification, the transparency--they're more public than they used to be. I think they reflect the FBI's evolution into a security service, which I think is a good thing; and I think they reflect an increasing evolution of the operational partnership between DOJ and the FBI, all of which is a good thing. I have some questions about how they apply in practice, and that's an area that I'd want to explore if I am fortunate enough to be confirmed, but I do think the elements that I mentioned are positive about these guidelines. Vice Chairman Bond. Thank you, Mr. Kris. Thank you, Madam Chair. Chairman Feinstein. Thank you very much, Mr. Vice Chairman. Senator Rockefeller. Senator Rockefeller. Thank you, Madam Chair. Mr. Kris, if you're an American citizen reading a newspaper, and you read that the leadership of Intelligence Committee has been fully briefed on a subject--I'm in FISA now, okay?---- Mr. Kris. Okay. Senator Rockefeller [continuing]. Fully briefed, what do you, as an American citizen, tend to feel? Mr. Kris. I think I feel good, if that's true. Senator Rockefeller. Well, that is my second question. Do you know anything about the briefing process? Mr. Kris. Yes, a little bit, yes. Senator Rockefeller. Do you feel the word ``fully briefed'' is applicable? Mr. Kris. I'm sorry, the standard is ``fully and currently informed,'' and I think that standard applies without---- Senator Rockefeller. And I was going to ask that to you about keeping the Intelligence Committee, in general, up to date. Mr. Kris. Yes, sir. Senator Rockefeller. I'll just tell you that the whole idea that we were fully briefed or fully advised is a farce. And it was from the beginning--the very first to the very end. Now, that, I just wanted to ask. When you use the words ``fully and currently informed'' as keeping the Intelligence Committee briefed, understanding that intelligence does not belong to the Intelligence Committee but it belongs to the Executive Branch and, therefore, the Executive Branch only gives us what they want to give us, a tactic which was used quite deftly in the last administration-- and I hope won't be in this--what is your understanding of ``fully and currently?'' Mr. Kris. Well, in my questions for the record, Senator, I gave some discussion of this and I actually quoted from the legislative history of FISA, where there's a discussion of the standard. I think it anticipates and it involves a very robust and cooperative relationship where the Committee gets access to a tremendous amount of information in a timely way. I mean, the details of it may depend in the particular circumstance. There's legislative history, for example, that the Committee may not always want to get the names of human sources or individuals involved, certain tactical information about troop movements. But, short of that, I think the standard, as I understand it, calls for a very robust exchange of information between the Executive branch and the Committees. That's why the Committees were established. Senator Rockefeller. Do you know the term ``gang of eight''? Mr. Kris. I do. Senator Rockefeller. Which could be gang of four, gang of eight, gang of whatever. Do you have any idea how often we met since---- Mr. Kris. Not really. Senator Rockefeller [continuing]. Senator Bond and I were both Chairman and Vice Chairman at different times, and we participated in these. Mr. Kris. I don't, honestly. I'm sorry. Senator Rockefeller. Very infrequently--very infrequently. And usually to inform us of something which was not actually germane to the overall intelligence purpose, except to pump us up a little bit. So is it your understanding that gang of eight notifications are meant to be rare and temporary or that the gang of eight is a little bit obsolete in that it gives you a way of going over the Intelligence Committee and just saying, well, you briefed two in the Senate and two in the House and so that's that? Mr. Kris. No. The former, Senator, is my understanding. Yes. Senator Rockefeller. That's fine. Thank you. Chairman Feinstein. Thank you very much, Senator. Senator Wyden. Senator Wyden. Thank you, Madam Chair. And Mr. Kris, welcome. Let me ask you first about national security letters. The Department of Justice's Inspector General uncovered in the past fairly significant levels of misuse of this authority. And my understanding is that some steps have been taken to address this concern. But I think what I'd like to know is, are you convinced at this point, based on what you know, that everything necessary has been done to prevent misuse of national security letter authority in the future? Mr. Kris. That's an excellent question and it's a very important area. The short answer is I am not--from where I sit now--thoroughly convinced that everything that should be done or that could be done has been done. I just don't know enough. I was also very troubled by the disclosures in the March 2007 IG report. I was somewhat heartened by the corrective measures identified in the March 2008 report, but I think that report contemplated that the work would be ongoing. This is something that I would want to look into if I was confirmed, but I'm not sitting here now totally confident that everything has been done. Senator Wyden. Can you get back to the Committee, through the Chair and our Vice Chairman, within, say, 30 days, if confirmed, with your opinion as to whether additional steps are necessary to prevent misuse of national security letter authority? Mr. Kris. I will certainly try to do that, yes. Senator Wyden. Very good. The second issue I want to ask you about involves a process for reviewing, redacting and publishing key opinions from the FISA court. These are, of course, authoritative rulings with enormous impact. And I very much would like to see a process for regular review of these opinions, taking steps to put in place redactions and whatever is necessary to protect operations and methods, but to make the opinions public. I think the American people have a right to this, as long as steps are taken to protect our national security and our nation's wellbeing. Would you be willing to work with this Committee to set in place a process of this nature? Mr. Kris. Absolutely, yes. I will work with you on that. Senator Wyden. All right. That's very helpful. And I think the last question involves what essentially are these Linder letters--these letters that reflect the FBI position with respect to briefing the Committee on terrorism and counterintelligence investigations. Now, my sense is that the FBI feels it shouldn't brief, the community shouldn't brief the Congress, because it in some way would jeopardize an ongoing criminal investigation or prosecution. I know of no member of this Committee--neither a Democrat or a Republican--who would ever want to get in the way of one of those ongoing investigations and prosecutions. But I've got to think there is a way to structure briefings from the FBI and the DOJ for this Committee that can go forward without compromising these investigations and prosecutions. If you're confirmed, would you commit to following up with the Committee and the FBI to address this issue? Mr. Kris. Yes, I will be happy to do that. Senator Wyden. All right. I look forward to working with you. I believe you're going to be confirmed. You're certainly going to have my support. And I appreciated our discussion, and my sense is that you're going to work in a very bipartisan way, which is something I feel very strongly about and I'll look forward to pursuing these issues with you. Thank you, Madam Chair. Chairman Feinstein. Thank you very much. Senator Rockefeller. And my support as well. Chairman Feinstein. Thank you very much, Senator Wyden. Senator Feingold, you're next, and then Senator Chambliss. Senator Feingold. I thank the Chair. Mr. Kris, let me congratulate you again. On September 25, 2001, John Yoo of the OLC sent you a memo purporting to analyze the constitutionality of proposed PATRIOT Act provisions. However, Yoo's memo, which the Department of Justice recently made public, also answered a question you hadn't actually asked. It argued that ``as national security concerns in the wake of the September 11th attacks have dramatically increased, the constitutional powers of the Executive branch have expanded, while judicial competence has correspondingly receded.'' As one of the Justice Department lawyers looking at that time right after 9/11 to work through the FISA court, what do you think of the assertion that judicial competence had receded? Mr. Kris. I think the Supreme Court has made very clear that September 11th did not trigger a radical rebalancing of our constitutional system of shared and separated powers. And I'm thinking of the decisions in Hamdi, Hamdan and Gumadeen. I think all reflect the view that judicial competence has not receded. Senator Feingold. Thank you. Mr. Kris, in response to written questions posed to you before this hearing, you indicated that there was nothing in the FISA statute to indicate that the President could disregard it. Is that accurate? Mr. Kris. Yes, it is. There is nothing in FISA to suggest the President may disregard the statute. On the contrary. Senator Feingold. Thank you. In other words, any violation of FISA would be clearly in the third category of the Jackson test, which you just alluded to and would constitute what you have called a ``grave and extraordinary'' act, one that has never been upheld by the Supreme Court. Is that a correct summary of your views? Mr. Kris. Yes. I am not aware of any case in which the Supreme Court has upheld the exercise of a commander-in-chief power in category three. Senator Feingold. Mr. Kris, you testified in the Judiciary Committee you could not evaluate the constitutionality of the warrantless wiretapping program without the facts. And I appreciate that as a careful lawyer you would not want to give advice to your client without access to all the relevant information. But for purposes of this hearing, let us work with the facts as stipulated by the Bush Administration. The government wiretapped communications into and out of the United States without the warrant required by FISA. It did so under a lesser standard than that which is required by the court. ``The trigger is quicker and a bit softer than it is for a FISA warrant'' was how General Hayden put it. And they did all this for over five years. Can you even imagine some fact known only to those read into the program that might render these acknowledged activities legitimate assertions of Article 2 authority? Mr. Kris. Senator, you're right. I do try to be a careful lawyer, in part because of the grave and extraordinary nature of the question that is being posed. But I will say, based on your description sitting here right now, I cannot think of any facts that would make that TSP constitutional in 2005 when it was revealed. And I think the FISA Amendments Act shows that Congress, when informed of a problem, is capable of responding, which moves the President from category 3, as you know, into category 1, where he's strongest and where I think, at least, the government as a whole is at its best. Senator Feingold. Thank you for your clear and encouraging answers and I wish you well. Chairman Feinstein. Thank you very much, Senator Feingold. Senator Chambliss. Senator Chambliss. Thank you, Madam Chairman. Mr. Kris, I don't want to duplicate what has been before, but you and I had a conversation about the PATRIOT Act and the provisions that are expiring. And I wish you'd just go back through that for the record and talk about these expiring provisions, what your position is on them, and your experience in helping actually draft those provisions. Mr. Kris. Yes, sir. Thank you, Senator. I did speak just briefly to this before. I think it's important to understand--and one of the things I would want to do if I'm confirmed is to understand the ground truth--how these provisions have been used or how they could be used and whether they've been misused or could have been misused. I'd want to understand the operational reality before making a judgment one way or the other about whether they ought to be changed or continued. And those are the kinds of things I would want to look into if I were fortunate enough to be confirmed. Senator Chambliss. One thing we talked about was the roving wiretap. And I remember your comment was just as you stated there. You wanted to see how it had functioned from an operational standpoint. But it may be one of those things that we might not need with the emergency procedures that are set forth in the revised Act. I would only comment to you that--and I know you will look at it closely--but those emergency procedures would not give the intelligence community the same ability to follow that individual phone-to-phone without going back to the FISA Court to get a new emergency warrant. So the roving wiretap still is one of the more valuable types of tools that I think--I hope at least--that you will find is something that is critically important to our folks. Mr. Kris. Yes sir. Senator Chambliss. With respect to Gitmo, again I don't want to duplicate what's been said but I know you understand the seriousness of the remaining prisoners that are there. You were very direct in our conversation that you want to make sure that the right thing is done and that the President has identified three different categories of prisoners that these folks at Gitmo would fall into. I would simply say that I am very much concerned about the potential for any of these remaining 240, or whatever the number may wind up being at the end of the day when there is final closure to Gitmo, coming to the United States, being on U.S. soil, having the benefit of not just the same criminal assets that any common criminal in the United States might have, but maybe even greater assets than a common criminal would have. And the potential for those folks being released on U.S. soil into our society scares me to no end. And I would simply say that--again, you and I talked about this but just for the record--any comments you have on the release of prisoners from Gitmo, where you think they may go, what may happen to them if they do come to U.S. soil. Mr. Kris. Yes, Senator. This is obviously a very important question and, as you mentioned, the Executive Order that the President issued calls for an ongoing thoughtful, careful review. And with respect to releasing any detainees at large into the United States, I think I am substantially bolstered and I think you should be and the Committee should be as well by the D.C. Circuit's decision in the Kayemba case--which I think really stands for the proposition and holds that unless there's a statute that compels the release, the courts don't have authority to order it. So I think to have someone released at large in the United States, if we believe they are genuinely dangerous, I think is not a very plausible outcome at all. Senator Chambliss. Thank you, Madam Chairman. Chairman Feinstein. You're welcome, Senator. I had one other question if I might, Mr. Kris. On March 2, 2009, as it was referred to earlier, the DOJ released a number of OLC opinions from 2001 to 2002, and that was during the time you were Associate AG. One of those opinions was addressed to you and that was dated September 25th, 2001, and entitled ``Constitutionality of Amending Foreign Intelligence Surveillance Act to Change the Purpose Standard for Searches.'' And this became the basis of a 15-page letter to the Senate Intelligence and Judiciary Committees on October 1 of 2001. On January 15, 2009, in a memorandum to the files also released on March 2 of this year, Steven Bradbury, who was then the Principal Deputy Assistant Attorney General for OLC, wrote that a portion of your September 25th opinion did not reflect the current views of OLC. The part that Mr. Bradbury addressed had asserted the view that judicial precedence--approving the use of deadly force in self-defense or to protect others-- justified the conclusion that warrantless searches conducted to defend the nation from attack would be consistent with the Fourth Amendment. Did you review the entire September 25th opinion when you received it? Mr. Kris. I'm sure that I did. Yes. Chairman Feinstein. Do you recall what your assessment was of the deadly force argument? Mr. Kris. Not really. I know I had some reservations about the opinion, but I was very much focused on working with the Congress to get the statutory change that we were seeking there with respect to the Purpose Amendment and really wasn't focused on at that time--especially in the immediate aftermath of September 11th--on sort of these other kinds of questions which, in hindsight, have taken on greater significance. Chairman Feinstein. Did you discuss with anyone at DOJ any reaction that you had at the time? Mr. Kris. I want to be careful, both because it's a while back and because I don't want to get into areas that might be inappropriate for a public hearing. Chairman Feinstein. I understand that. But you don't recall? You don't remember? Mr. Kris. Yes. I think I would like to take it up, if possible, in a different setting. Chairman Feinstein. Okay. What now is your assessment? Mr. Kris. I think the analogy to the law of self-defense--I agree at least with Mr. Bradbury's assessment of Mr. Yoo's analysis there. Chairman Feinstein. In what respect? Mr. Kris. Mr. Bradbury's recent memo rejects that analogy, and I certainly agree with that. Chairman Feinstein. And you do as well? Mr. Kris. Yes. Chairman Feinstein. Did you become aware of or read at that time any other opinions of OLC on matters relating to surveillance at any time after September 11th until you left the department in 2003? Mr. Kris. I can think of one other opinion that I believe has been made public that Mr. Yoo wrote for me which had to do with the authority of the Deputy Attorney General to issue approvals under Section 2.5 of 12333 with respect to U.S. persons abroad. I mean, there may have been other opinions that I've read. I have been authorized by the Department to say publicly--and I have said publicly--that I was not read into the terrorist surveillance program, the TSP, so I did not have access to and still haven't seen those opinions, if any. Chairman Feinstein. All right. Well, thank you very much and, again, it is my intent to mark up this appointment on Thursday. And if I may, Mr. Vice Chairman, I'm going to turn the gavel over to you. Vice Chairman Bond. It's exciting. Chairman Feinstein. It is exciting isn't it? You're welcome. Vice Chairman Bond [presiding]. Thank you very much, Madam Chairman. I think we're a very few minutes away from a vote, if they maintain the schedule. I would say, Mr. Kris, and for the record I had been advised informally by former members of the Big Eight that while the full Committee was not advised, the Gang of Eight was fully briefed at the inception and during the conduct at the Terrorist Surveillance Program prior to the time that those of us on the full Committee were advised. I also have a suspicion that you probably had a pretty good idea what was going on, as some of us who visited with our other particular locations where it was going on. But putting that aside, on the national security letters, I've been disappointed by some characterization of errors by the FBI contained in Inspector General reports as ``abuses'' of NSLs. I think we can all agree that exigent letters, which are not NSLs, weren't used properly but we need to be careful about what we characterize as abuses of the NSLs. A good solution to eliminating the administrative errors raised in the IG reports is one you presented to a House subcommittee last year--create a single statute providing for national security subpoenas to replace all of the current NSL provisions. If you are confirmed in this position, would you take a serious look at the merits of having a single NSL statute and report back to the Committee? Mr. Kris. Yes, I would be happy to do that. Vice Chairman Bond. I figured that was an easy one. Turning to the media shield, do you believe that those who leaked classified information, as well as journalists who release it, should be prosecuted to the fullest extent of the law? Mr. Kris. Yes. Vice Chairman Bond. There was a recent instance where there was a published acknowledgment by someone who had access to classified information and that they actually did release classified information. If there is a public affirmation of a leak, in general, is this the kind of thing that should initiate action with appropriate resolution? Mr. Kris. Yes, if I understand you correctly, yes. Vice Chairman Bond. During the last Congress we heard pretty strong objections from veteran DOJ prosecutors about the negative impact the proposed Free Flow of Information Act, known as Media Shield, could have on the ability to prosecute those who leak classified information. Have you spoken with veteran DOJ prosecutors and do you have a position on whether this legislation should be supported? Mr. Kris. Senator, I haven't spoken to any veteran prosecutors about leak investigations recently, although when I was there before I had some conversations, I'm thinking, with Mr. Fitzgerald perhaps. I don't have an opinion on the particular piece of legislation to which you refer. I do know the Attorney General, in his Judiciary testimony, expressed sort of a general support, subject to some important caveats, one of which is the need to consult with professional prosecutors in this area, and the other is the need not to cripple our ability to do these leak investigations. Vice Chairman Bond. Well, that was going to be my next question. Mr. Kris. Oh, sorry. Vice Chairman Bond. I think those are two caveats that are very important. Mr. Kris. Yes. Vice Chairman Bond. A couple of weeks ago, S.417, the State Secrets Protection Act, was introduced. This troubles me because it seems to water down the well-established state secrets privilege and imposes some pretty steep barriers for the government in trying to protect our national security secrets. I believe in the past the DOJ has said that this would harm our national security. Do you think we need to codify the state secrets privilege? Or should we preserve the long-standing common law approach? Mr. Kris. Senator, that's something that I would like to study if I am confirmed. I am aware of I believe it was a letter from the Attorney General and the DNI in the last Administration outlining some concerns, and I'd want to consider those and the views of the professionals at the Department before I would render an opinion on that question. Vice Chairman Bond. Thank you, Mr. Kris. I'll now turn to Senator Chambliss for his questions. Senator Chambliss. I don't have anything further. Vice Chairman Bond. Well, I do happen to have a few more. And for all of my colleagues who were not here we will ask that any--and I ask the staff present--if they have any further questions of Mr. Kris, please get them in by 5:00 today, so you have a full hour-and-a-half, if there's anything you really need to know. But as of that time our harassment and questioning will end. Mr. Kris, House version of the stimulus bill contained a version of whistleblower protection that has been opposed by both the Clinton and Bush Administrations, in part because of how the legislation handles issues like security clearances and classified information. Fortunately, the provision was stripped out. Do you see any need for modifying the current laws providing whistleblower protection? Mr. Kris. That is also an area that I would want to study and understand better before taking a position. Vice Chairman Bond. And on to my favorite area; do you believe the President has the inherent authority under Article II of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article II? Mr. Kris. I don't think any statute can trump the Constitution, Senator. Vice Chairman Bond. Thank you. What is your view of the FISA Amendment's Act, including carrier liability protections? Mr. Kris. Well, as a general matter, it appears to me that the FISA Amendments Act was the product of kind of a bipartisan compromise. I think it is a new and very important statute with a broad grant of authority and I think it underlies an extremely important collection program. I don't know, from where I sit now, exactly how it functions and that is something that I have said I would want to focus on very, very early on if I were to be confirmed. I think it's an important statute and I really want to understand how it operates and see whether there are improvements that need to be made in that area or whether everything is working well. With respect to the immunity, I think that's probably an issue that will be handled, in the first instance anyway, by the Civil Division rather than the National Security Division. But, as I understand it, Attorney General Mukasey has certified, Attorney General Holder has said he would not withdraw the certifications absent something truly extraordinary. And as I understand DOJ's public statements, they are not withdrawing and are defending the constitutionality of the immunity provision. Vice Chairman Bond. And when you have an opportunity to review the operation of it, I would ask for your comments, if you would share with us whether it was a good idea to put Section 2.5 from Executive Order 12333 into FISA. And I'd also like your advice on whether it should be made permanent. I will not be around to worry about the permanency but perhaps it would save the Department of Justice and quite a few members of the intelligence community some problems if it were made permanent, knowing that it can always be amended. Mr. Kris. Yes, sir. Vice Chairman Bond. When you were at the DOJ during the Clinton and Bush Administrations did you support the use of extraordinary renditions to other countries, including Egypt? Mr. Kris. I don't really recall ever working on rendition, so I don't think I had much involvement in it that I can remember anyway, sitting here today. Vice Chairman Bond. Do you have an opinion on whether extraordinary renditions should remain in the intelligence community toolbox? Mr. Kris. I think in talking about rendition, it's helpful to break it down a little bit. I mean, renditions, say, to this country for judicial process is one thing. Vice Chairman Bond. And rendition back to the country, the home country of the person who is detained. And another form of a rendition, extraordinary rendition refers to returning the person to a third country. Mr. Kris. I think there you have to be concerned about adhering to our international obligations and treaties, and you want to get assurances that there won't be improper action taken against the person in the receiving country. And I think this is part of the study that President Obama has ordered in the third of his Executive Orders on January 22. I don't want to prejudge the results of that study, but you can imagine the kinds of factors that would be considered--to include what kind of assurances, from whom, and to whom and so forth. And I imagine that will be part of that review. Vice Chairman Bond. Since the September 11 terrorist attacks, a number of applications for electronic surveillance or physical search approved by the FISA court have increased almost two-and-a-half times; the actual number I don't think we need to get into. We've heard some concerns the increase means that less attention is being given to U.S. persons privacy, that the FISA court is simply a rubber stamp. Based on your experience at DOJ and with the FISA court, do you have any reason to be concerned that FISA is not being utilized appropriately or administered appropriately by the FISA court? Mr. Kris. No. On the contrary, my experience when I was there was that the FISA court was not a rubber stamp. I can safely assert that. Vice Chairman Bond. Finally, it's been DOJ practice to present FISA business record applications to the FISA court. Unlike other FISA applications, Section 215 applications are submitted only by FBI officials, not by the DOJ. Now, I understand there have been delays in getting these applications through the DOJ administrative process, and I believe it would speed things up if the FBI national security law branch attorneys could appear before the FISA court and present the applications themselves, given that the business record applications are submitted only by the FBI without any need for Attorney General certification. Do you see any reason why FBI lawyers shouldn't be allowed to present applications directly to the FISA court? Mr. Kris. That is something I would certainly want to go back and discuss with the FBI lawyers and with the DOJ lawyers before taking a position on it. I do know about the delays that you've talked about. I've read about them in the unclassified IG reports. And I share your concern about that. It's something I would want to address if and when I'm confirmed. Vice Chairman Bond. Well, Mr. Kris, if you will answer any questions that come in promptly, we hope to vote on your nomination Thursday afternoon and get the confirmation process completed as quickly as possible so we can get to work on our areas of mutual concern. I thank you very much for being willing to undertake this position. I wish you well and look forward to working with you. The hearing is adjourned. Mr. Kris. Thank you very much, Senator. [Whereupon, at 3:27 p.m., the Committee adjourned.]

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