Open Hearing: Nomination of Kate Heinzelman to be General Counsel of the Central Intelligence Agency

[Senate Hearing 117-306] [From the U.S. Government Publishing Office] S. Hrg. 117-306 NOMINATION OF KATE E. HEINZELMAN TO BE GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY ======================================================================= HEARING BEFORE THE SELECT COMMITTEE ON INTELLIGENCE OF THE UNITED STATES SENATE ONE HUNDRED SEVENTEENTH CONGRESS SECOND SESSION __________ APRIL 6, 2022 __________ Printed for the use of the Select Committee on Intelligence [GRAPHIC NOT AVAILABLE IN TIFF FORMAT] Available via the World Wide Web: http://www.govinfo.gov __________ U.S. GOVERNMENT PUBLISHING OFFICE 47-984 PDF WASHINGTON : 2022 ----------------------------------------------------------------------------------- SELECT COMMITTEE ON INTELLIGENCE [Established by S. Res. 400, 94th Cong., 2d Sess.] MARK R. WARNER, Virginia, Chairman MARCO RUBIO, Florida, Vice Chairman DIANNE FEINSTEIN, California RICHARD BURR, North Carolina RON WYDEN, Oregon JAMES E. RISCH, Idaho MARTIN HEINRICH, New Mexico SUSAN COLLINS, Maine ANGUS KING, Maine ROY BLUNT, Missouri MICHAEL F. BENNET, Colorado TOM COTTON, Arkansas BOB CASEY, Pennsylvania JOHN CORNYN, Texas KIRSTEN E. GILLIBRAND, New York BEN SASSE, Nebraska CHUCK SCHUMER, New York, Ex Officio MITCH McCONNELL, Kentucky, Ex Officio JACK REED, Rhode Island, Ex Officio JAMES INHOFE, Oklahoma, Ex Officio ---------- Michael Casey, Staff Director Brian Walsh, Minority Staff Director Kelsey Stroud Bailey, Chief Clerk C O N T E N T S ---------- APRIL 6, 2022 OPENING STATEMENTS Page Warner, Hon. Mark R., a U.S. Senator from Virginia............... 1 Rubio, Hon. Marco, a U.S. Senator from Florida................... 3 Bennet, Michael F., a U.S. Senator from Colorado................. 5 WITNESS Heinzelman, Kate E., Nominee to be General Counsel, Central Intelligence Agency............................................ 6 Prepared statement........................................... 9 SUPPLEMENTAL MATERIAL Nomination material for Kate E. Heinzelman Questionnaire for Completion by Presidential Nominees........ 32 Additional Prehearing Questions.............................. 54 Post-hearing Questions....................................... 99 NOMINATION OF KATE E. HEINZELMAN TO BE GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY ---------- WEDNESDAY, APRIL 6, 2022 U.S. Senate, Select Committee on Intelligence, Washington, DC. The Committee met, pursuant to notice, at 10 a.m., in Room SH-216 in the Hart Senate Office Building, Hon. Mark R. Warner (Chairman of the Committee) presiding. Present: Senators Warner, Rubio, Wyden, Heinrich, King, Bennet, Casey, Burr, Collins, Blunt, Cotton, and Cornyn. OPENING STATEMENT OF HON. MARK R. WARNER, A U.S. SENATOR FROM VIRGINIA Chairman Warner. I'm going to call this hearing to order. I want to welcome our witness, Kate Heinzelman, the President's nominee to be General Counsel to the CIA. We want to welcome you and your family. I think you've got a number of members. I hope you will introduce them in your opening statement. I also want to thank my friend Senator Bennet who, when I'm done with my opening and Senator Rubio is done with his, is going to introduce the witness. We look forward to your testimony. Ms. Heinzelman comes to this position with a very impressive background. She is currently Chief Counselor in the Office of the Attorney General and has previously been Deputy General Counsel to the Department of Health and Human Services, as well as Special Assistant and Associate General Counsel to President Obama. She has also been counsel to the Assistant Attorney General for National Security. The General Counsel is the CIA's chief legal officer and plays a critical role in ensuring that the Agency's intelligence operations and collection adhere to the law, and ensuring that the rights and liberties of Americans are protected. The GC is also the principal legal advisor to the Director of the CIA. Ms. Heinzelman, should you be confirmed you'll need to provide both sound legal analysis and good judgment. As the CIA's top legal officer you would be responsible for ensuring that CIA operations, including covert operations, are both within the letter and the spirit of the law. The Director will often turn to your advice on difficult decisions that may involve, candidly, life and death and must be made expeditiously. I'd like to hear from you today about how you would go about providing such critical advice. The Agency has not confirmed a General Counsel for over a year, and it is vital that there be a confirmed GC in place. Looking at recent headlines, it seems as if global security and stability are increasingly in peril. I think every one of us on this Committee has been shocked by the Russian actions in Ukraine. I heard General Milley saying it may be some of the most dangerous times we have faced since World War II. We see some of these Russian actions, from the President on down and leaders all over the world, condemning Putin for war crimes. I mean, again that brings its own legal definition. But the truth is, as we've seen from the recent worldwide threats hearing, threats faced by the United States go well beyond Ukraine-Russia. Increasingly we've seen enormous competition. And all of us on this Committee have taken the lead on calling out the competition we face with China, especially in the area of technology. Iran and North Korea continue to pursue malign activities. And terrorist groups still present a formidable threat. And of course we all know the threat of cyberattacks, including against our critical infrastructure as well as misinformation and disinformation, continue to present serious concerns. The CIA and our other intelligence agencies have been critical in providing warning on these threats. I for one think that, frankly, the forward-leaning aspect of the community has really not only kept Vladimir Putin off guard in terms of being willing to declassify information in a timely manner, but also helped build the alliance. The Agency operates around the world in difficult and dangerous places. The CIA must also operate in strict compliance with United States law, including the Constitution, Acts of Congress, and treaties made under the authority of the United States. The General Counsel serves to ensure that compliance regardless of the particular situation or pressures that may be faced at that moment in time. This Committee, in performing its oversight function, relies on you to keep us fully and currently--and that currently is particularly important at this point--informed at all times. And to come forward without prompting to report any issues that could be a serious concern. We've seen over the years the importance of legal determinations in ensuring that the Agency's actions stay within the bounds of law, from ensuring that detainees are treated in a humane and legal manner, to ensuring that privacy and the civil liberties of Americans are protected. In the previous Administration, we know that a whistleblower came forward to the General Counsel to report wrongdoing. But instead of investigating that person's allegations, the then-GC instead contacted the White House. And I will need your assurance that should you ever be placed a similar situation, you would ensure that such concerns are addressed promptly in a way that also protects the whistleblower's identity. In sum, my colleagues and I who serve on this Committee see every day that we live in an obviously very dangerous world. And the CIA is clearly the point of the spear in terms of our Intelligence Community. Truth is, you've got to make sure you would do your job, should you be confirmed, with no pressure. So congratulations again on your nomination. Thank you for agreeing to step forward to serve our country. Now after the Vice Chairman has given his opening statement, I will call on Senator Bennet to make a formal introduction. We will then swear you in. We will go by seniority for the questioning. I ask all Members to observe the five minute limit. With that I look forward to the remarks of the distinguished Vice Chairman. OPENING STATEMENT OF HON. MARCO RUBIO, A U.S. SENATOR FROM FLORIDA Vice Chairman Rubio. Well thank you, Chairman Warner. And thank you Ms. Heinzelman for being here. Welcome to your family. Thanks for the chance yesterday to meet and to discuss your nomination. As I discussed with you, the General Counsel at the CIA is an important role given the work the Agency does on behalf of our country. The CIA can't execute its worldwide mission in accordance with the authorities provided to it without a General Counsel who provides both policy and legal advice to the Director. No agency in American government is above the law, certainly not the CIA. And it's important that their activities always be within the law. This Committee was created to provide oversight of the CIA and the entire Intelligence Community. And that said, it is important that counsels at the same time do not impede the operations of the Agency when working under Presidential authority and with congressional support through authorization and funding. And so the role of the General Counsel is to make sure they're following the law, but also not to become an unnecessary impediment to the very difficult work of acting on behalf of the national interest of our country. I do want to make a broader editorial point which, while related to this nomination, is not a direct statement about you, who I'm interested to learn more about--you and your background and so forth. But it really is more of an editorial statement about an ongoing pattern that we've seen of some of the nominees in this Administration, particularly in the Intelligence Community. I think what it reflects is both the difficulty of dealing with the holistic threat that's posed by the Chinese Communist Party and at the same--the holistic threat that it actually is as well. So since the President took office, we've now processed a number of nominees--by the way not just to the Intelligence Community but other agencies--who have at some point done work on behalf of either the Chinese Communist Party, or generally Chinese entities directly linked to the Chinese State. I understand people don't like it to be characterized as such, but it is what it is. And anyone who understands the nature of the threat posed by China understands that's what it is. And here's how the pattern generally has gone. These are highly credentialed folks, there's no doubt about it. And they begin their work in a position of trust and national security in the Executive Branch. They leave. They're even more highly credentialed, and they go work for an international corporate law firm. At that firm, despite having held positions in government which he or she should have known the true nature of the threat from China and all the ways they seek to influence American policy, they end up representing or doing work on behalf of some state-controlled entity in China, representing them generally on matters such as helping them understand U.S. law, right? And now, forth, this increasingly credentialed person who has worked in the Executive Branch, has worked outside of government, seeks to come back into government service at the highest levels in which trust and judgment are paramount. And then that individual is nominated for a position. So this pattern, the reason why I pointed it out is, I think, two things are at play here. The first is how difficult it's become to find highly qualified and credentialed individuals to serve, who haven't at some point in the private sector interacted with Chinese Communist Party-linked entities, because that's just the nature of the challenge that we face from China. I think the other--as a broader editorial, I really hope the Administration is more sensitive about this in the months to come and in the future nominations that await, because this is really a commentary on the U.S., and on our internationally based law firms and how their business model in many ways is now enabling and supporting the soft power and the subversive efforts of CCP-controlled entities. So look, this doesn't make any of these people who have been nominated in the past bad people. It doesn't even disqualify them from important or rewarding work on behalf of the government. But I think it begins to demonstrate for us two things, again--as I've already pointed out--how hard it is to find people that are in a position to serve who haven't at some point rubbed up against the influence efforts of the Chinese government. And I think it also potentially reflects how some are diminishing, how pervasive this has become, and what a difficult challenge this China threat has become for us. So with that said, obviously I look forward to learning more about you, your background, your qualifications, your views, and your role, should you be confirmed. As I said, the General Counsel position is a really important one, as we discussed yesterday. Yes, it's about making sure the CIA is following the law, but it's also about providing advice and counsel on options that exist to serve the national interest of our country, within the framework of what the Agency is authorized to do. I think that's just as important in this role. So thank you for your willingness to serve. And we look forward to hearing your testimony. Chairman Warner. Thank you, Senator Rubio. I'm now going to ask our colleague on the Committee, Senator Bennet, to make a formal introduction of the nominee. Senator Bennet? OPENING STATEMENT OF HON. MICHAEL F. BENNET, A U.S. SENATOR FROM COLORADO Senator Bennet. Thank you to the Chairman and the Vice Chairman for allowing me to introduce Kate Heinzelman, President Biden's nominee to serve as General Counsel of the Central Intelligence Agency. This Committee needs no reminder that we're at a crossroads for American national security. This moment, perhaps more than any in our lifetimes, challenges America to advance our national security while upholding our deepest values, including our commitment to the rule of law. Ms. Heinzelman has a rigorous combination of legal and national security experience to meet this moment. In one way, this nomination brings Ms. Heinzelman back to where she began. In 2003, she joined the CIA as an intern analyst. Today, she sits before this Committee having had nearly 20 years of experience in law and national security at the highest levels across both Republican and Democratic administrations. She graduated from Yale Law School and clerked for Merrick Garland on the D.C. Circuit, and for Chief Justice Roberts on the Supreme Court. Ms. Heinzelman's national security experience includes time serving on the WMD Commission, which was charged with examining the intelligence failures in the lead-up to the Iraq war. She also served with Ambassador Negroponte in his role as the first Director of National Intelligence and as Counsel in the National Security Division at the Department of Justice. She has since worked in other critical roles in the Federal Government, from Associate Counsel to the President, to Deputy General Counsel at HHS, to her current role as Chief Counselor for Attorney General Garland. She was a partner at Sidley Austin, where she worked on cybersecurity and privacy matters. Her colleagues, Mr. Chairman, say she's brilliant, generous with her time, and deeply patriotic. I had the good fortune of working with Merrick Garland many years ago at the Department of Justice and there are few people I hold in higher regard. I can tell you that Ms. Heinzelman has proven herself to be a much better lawyer than I ever was, but I also can say that it speaks volumes about her intellect and character that the Attorney General asked her to work with him for a second time. This Committee appreciates the challenging times ahead for our national security and for the Intelligence Community in particular. And at a time when democracy and the rule of law have come under attack, not only in Ukraine but across the globe, we know that defending our security and our values goes hand in hand. In this difficult time, I am confident that Ms. Heinzelman is up to the challenge. And I want to just close by thanking her for stepping forward to serve our country again. And I want to thank her husband Jonathan and their two children, Penelope and August, for supporting her in the days ahead. Thank you, Mr. Chairman. Chairman Warner. Thank you, Senator Bennet. Will the witness please stand and raise her right hand? Do you solemnly swear to give this Committee the truth, the full truth, and nothing but the truth, so help you God? Ms. Heinzelman. I do. Chairman Warner. Please be seated. Before moving to your opening statement, I will ask you to answer the following five standard questions the Committee poses to each nominee who appears before us. They require a simple yes or no for the record. First, do you agree to appear before the Committee here or in other venues when invited? Ms. Heinzelman. Yes. Chairman Warner. If confirmed, do you agree to send officials from your office to appear before the Committee and designated staff when invited? Ms. Heinzelman. Yes. Chairman Warner. Do you agree to provide documents or other materials requested by the Committee in order for it to carry out its oversight and legislative responsibilities? Ms. Heinzelman. Yes. Chairman Warner. Will you ensure that your office and your staff provide such materials to the Committee when requested? Ms. Heinzelman. Yes. Chairman Warner. Do you agree to inform and fully brief to the fullest extent possible all Members of this Committee of intelligence activities and covert actions rather than only the Chairman and Vice Chairman? Ms. Heinzelman. Yes. Chairman Warner. Thank you very much. We'll now proceed to your opening statement after which I'll recognize Members again by seniority for up to five minutes each. Ms. Heinzelman? STATEMENT OF KATE E. HEINZELMAN, NOMINEE TO BE GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY Ms. Heinzelman. Mr. Chairman, Mr. Vice Chairman, Members of the Committee, thank you for the opportunity to appear before you today. Senator Bennet, thank you for that generous introduction. I'm deeply honored by the President's nomination and by the trust that he, Director Burns, and Deputy Director Cohen have placed in me. Throughout my years in public service, I've been blessed to have had extraordinary mentors. These individuals, who have served across administrations, have taught me about the national security challenges we face and how to be a rigorous lawyer and effective partner. I believe this is a critical moment for the Intelligence Community. Intelligence is key to helping decisionmakers, and can serve as the country's best first-line of defense. Ensuring that CIA conducts its mission at all times within the bounds of the law is integral to that defense and an example to the world about rule of law in America. It would be a great privilege to serve as CIA's General Counsel. I first came to the Intelligence Community as a summer intern analyst at the Agency. That experience opened a window for me into the professionalism and dedication of CIA officers. It had a lasting impact. After graduating college, I joined the staff of President Bush's WMD Commission, which was charged with investigating the intelligence failures about Iraq's WMD program and recommending a path forward. I then served in the office of the first Director of National Intelligence. Following law school and two clerkships where I had the chance to see national security issues from another vantage point, I worked in the National Security Division at the Department of Justice, the creation of which had been one of the WMD Commission's recommendations. I then went to the White House Counsel's Office and later served as a Deputy General Counsel at the U.S. Department of Health and Human Services, where I helped lead an office of hundreds of lawyers. In 2017, I joined the law firm Sidley Austin, where my practice focused on cybersecurity and privacy issues. Since January 2021, I've been honored to serve as the Chief Counselor in the Office of the Attorney General at the Department of Justice. If I am fortunate enough to be confirmed, I will bring each of these experiences to bear in helping the CIA navigate the challenges from nation-state and non-state actors we face today; among these are Russia's invasion of Ukraine, China's efforts to expand its power worldwide, cyber threats against networks of all types, terrorist threats, and a multitude of others. Director Burns has established his priorities for the Agency: China, Technology, People, and Partnerships. The General Counsel's Office can play a critical role in enabling the CIA to do its vital work and implement its priorities in a manner that is fully consistent with the law. To this end, the first objective of the General Counsel's Office should, in my view, be to provide clear and accurate legal advice on the full range of legal matters confronted by the Agency. Just as we seek rigor and timeliness in intelligence, so too should we demand these things from the talented and dedicated lawyers at the Agency. Second, the Office should be an important contributor to the Agency's compliance work. I believe that lawyers should not just give advice on the law but that they should make sure their advice is actionable, and that they should anticipate to the extent possible what lies around the next corner. Third, the Office of the General Counsel should help maintain public trust and reinforce accountability to the American people. This includes working closely with this Committee to help enable the congressional intelligence committees' critical oversight work and helping to provide appropriate transparency about the basis for CIA's actions. This is particularly indispensable at the CIA, given that the Agency's activities are generally conducted outside the public view. To achieve these objectives, the General Counsel must maintain an office that invests in workforce and partnerships, two of Director Burns' priorities. If confirmed, I would view these two as foundational priorities. To provide top-notch legal counsel in this operational environment requires not only that lawyers have subject matter expertise and close relationships with their clients, but also the independence that enables them to deliver advice that at times clients may not want to hear. I am here, as I noted at the outset, because I have had the chance to learn from extraordinary public servants. I am also here because of the friends, teachers, and family who have supported me. My husband is the rock of our family; there are not words enough to thank him. And our children, with a third due to arrive any day, are a daily reminder of what we work as public servants to protect. I've brought my children with me here today in the hopes that seeing these halls and the great American tradition that these proceedings represent, will leave as indelible an impression on them as my encounters with the great institutions of our government have left on me. Thank you for considering my nomination and for holding this hearing today. I look forward to answering your questions. [The prepared statement of Ms. Heinzelman follows:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Chairman Warner. Well, thank you very much for that testimony. And my hope is that this hearing will not speed up the delivery of your future daughter. I want to make one comment. I think Senator Rubio's comments raise a bigger issue because we have seen a number of nominees come before this Committee who worked at big corporate firms. And I don't know if there are many corporate firms around that probably didn't have some clients at some point that touched China. This Committee took a real lead. In 2018 we did the first of what we call our classified roadshows with bipartisan presentations, where we met with business after business who candidly told us the government had done a pretty crummy job of explaining this threat. I remember once in Texas where one of the college presidents said, I thought when a student visa came in, the government had done their background screening. I do think we ought to rethink relationships with China. I think the CCP is one of our most major threats. But I do think the notion that even if you're a lawyer in a corporation, we need some guidance on this. And the vast majority of the Fortune 500 unfortunately still do business with China. I think they all candidly kowtow to the leadership of the CCP because they always say, ``It's too big a market to move past.'' And frankly, they turn a blind eye, whether it's human rights abuses in Hong Kong or the Uyghurs in China. But I do hope we would roll out a consistent policy on that on a going-forward basis. I want to go to a couple of my quick questions here. The CIA GC has been a job that's been unfilled over the last year. It's a large group of lawyers. How would you go in? And I know you've had some management experience, but how would you go in and reassert the role of the General Counsel and, frankly, make sure that you've got appropriate management principles in place? Ms. Heinzelman. Thank you, Chairman, for the question. You know, there is clearly a lot on the plate of the incoming General Counsel at CIA. As I mentioned in my opening statement, we are at a critical moment for the Intelligence Community. You don't have to look very far in the news to see the full array of both near-term and credibly pressing priorities, and some of the longer-term challenges like how the Agency deals with the many issues that new technologies are posing both as an intelligence matter, and as an internal management matter. So I have no doubt that the incoming GC has a very full calendar. I have had experience, as we've discussed Chairman--I appreciated the opportunity to meet with you the other day-- coming into a General Counsel's office operation at HHS, a considerable one, and figuring out how to be effective upon entering an organization that is already functioning without you. And I have every confidence that the acting leadership of the CIA General Counsel has been doing a terrific job in the meantime. But I would bring some of the lessons that I learned from that experience to bear here. I would have open ears and be observant. And I would want to take my first several weeks to really look at and assess what the Office needs. Chairman Warner. Thank you. My last question is that this Committee had to wrestle firsthand with the CIA whistleblower who came forward, went to the GC in the previous Administration. The GC then, rather than following traditional procedures, went to the DOJ and the White House. And many of us believe appropriate procedures were not followed. How do we, how do you, make sure that we protect whistleblowers? Have a culture that says, if you're going to come forward, there's not going to be retribution. That we try to protect your anonymity. This is something that I just think, on a going-forward basis, we need to make sure that those individuals are protected. But I'd like you to comment on that. Ms. Heinzelman. Chairman, I couldn't agree more with you about the importance of ensuring that we follow all of the laws and internal procedures that we have for appropriately protecting whistleblowers. I think that the way that the IC handles whistleblower complaints, and making sure that we are doing so in accordance with all of our procedures--appropriately protecting them, making sure that information is appropriately protected in the process, is a critical part of that goal of fostering and continually re-earning trust, both the trust of the American people, the trust of this Committee as a partner, and internally the trust of the workforce. So that will certainly be a priority of mine, if confirmed to the position. Chairman Warner. Thank you so much. Senator Rubio? Vice Chairman Rubio. Thank you. Well, I wanted to cut to the chase, because I thought we would talk about this today, and I want to give you an opportunity to describe the work you did when you were Counsel at the firm--to WuXi. Just for the information of everybody, WuXi Biologics--the Chinese State media has dubbed it as the ``Huawei of China's pharma sector.'' So clearly, it has deep connections to China's Communist Party and the State. So I want you to describe it basically. At the time you were not a partner; you were of Counsel at the firm? Ms. Heinzelman. That's correct. Vice Chairman Rubio. Okay. So just if you could walk us through. I'm familiar with it, but maybe not everybody is. How does that happen internally? How did you get the work? Who gave you the work? What was it? What did it entail? How much was it? That kind of thing. Ms. Heinzelman. Absolutely. Thank you, Mr. Vice Chairman. And thank you for the opportunity to meet and speak yesterday. To the best of my recollection, the matter that you are referring to came to me through a partner at the firm who asked me to work on it--I was a counsel at the time--who asked me to give the kind of advice to this company that I gave to a whole range of companies for whom I did work for while at the firm, which was privacy-compliance advice. In short--how to comply with the U.S. Federal and state privacy laws, the purpose of which is to protect U.S. consumer data. I did that work in particular for companies that handled health data, given a specialization that I developed in our statutes, our State and Federal laws that protect health data. And so that was the kind of advice that I gave to this company on this one matter. I don't think I had any other interactions with the company. Vice Chairman Rubio. So this was somebody else at the firm, some partner's client and they--because of your previous work-- they asked you to help advise the client on how to comply with privacy laws in the United States, regarding healthcare information? Ms. Heinzelman. That's correct. Vice Chairman Rubio. How many hours did you bill on that? Ms. Heinzelman. This was under 10 hours. I believe it was 7 hours, 7.1. Vice Chairman Rubio. Okay. We did ask you about, in your prehearing questionnaire, questions related to the current ODNI General Counsel's private sector representation of Huawei. You confirmed that you did not bill any hours or contribution to that representation while at the firm, but noted that out of an abundance of caution that you may have been part of an internal discussion related to a newer potential engagement for the company. Like I said, I appreciate your candor in mentioning it. Do you recall your contribution to that discussion? Ms. Heinzelman. I'm sorry, Mr. Vice Chair. Can you just repeat the end of your question? Vice Chairman Rubio. Yes. So basically we asked you a question in the prehearing process about the General Counsel at the ODNI, when he was at the same firm, representing Huawei. And you noted that you did not represent that client but that you said that out of an abundance of caution that you may have been part of some internal discussions related to a new or potential engagement for the company. Do you have anything further that at this point? I appreciate you mentioning that proactively in the questionnaire. I'm just curious whether you have any followup on whether that actually happened or what--for Huawei? Ms. Heinzelman. That's correct. Mr. Vice Chairman, I tried to provide as much information as possible knowing, understanding this Committee's interest. But consistent with my recollection, the firm records that I've consulted show that I never billed any time to that matter. Vice Chairman Rubio. Okay. One final question that I have is you've been acting or you've been serving as Chief Counsel to the Office of the Attorney General since the beginning of this Administration. During your time in this position, have you been involved at all in any of the investigations into what's called Anomalous Health Incidents that have impacted Department of Justice individual employees? Talking about Anomalous Health Incidents that have occurred abroad. Ms. Heinzelman. So I am familiar with the issue, of course, of Anomalous Health Incidents, or AHIs, and how they have affected public servants across the government at a high level. And I know that this is a priority for Director Burns, for DNI Haines, and that they are pursuing concurrently efforts to both attribute and understand the cause of the attacks, and to ensure that employees get the healthcare and the services that they need. And that would be a priority of mine if confirmed to this position as General Counsel. Vice Chairman Rubio. Have you conducted or overseen any of the investigative efforts on it? Has that been part of your portfolio? Ms. Heinzelman. Mr. Vice Chairman, in my role as Chief Counselor, I advise the Attorney General on a range of matters with a particular focus on national security issues. And you know, I'm afraid I can't get into specific matters more than that. Vice Chairman Rubio. Okay. Well, we'll followup in the appropriate setting. But again I'm not asking for the details of the matter. I'm simply asking if you have been involved in those in overseeing any of the efforts on that matter. It's--it's a matter of public record that the Department of Justice is interested in the matter. Ms. Heinzelman. Yes. Mr. Vice Chairman, if I can just answer that question. It is a matter of public record that the Department has taken its own action to ensure that it complies with directives to appoint people internal to the Department to handle complaints appropriately. But, Sir, I don't have much more to say about the Department's own handling of AHI matters. I'm not aware of further action that it's taken publicly on that. Chairman Warner. Senator Wyden. Senator Wyden. Thank you very much, Mr. Chairman. Ms. Heinzelman welcome. I very much enjoyed our conversation. I want to pick up on this issue of privacy for a moment; we talked a bit about this in the office. In the office we talked about the Supreme Court's Carpenter case which essentially lays out that access to a person's historical cell site records is a Fourth Amendment search because it would otherwise violate somebody's expectation of privacy when you're talking about physical movements. Now the Carpenter case really changed Americans' understanding of their Fourth Amendment rights. This was a significant development. And yet as far as I can tell, the public really has never been told whether it applies to the Intelligence Community. So my question is, if you're confirmed would you ensure that Americans are informed about whether and to what extent Carpenter applies to the Intelligence Community or the CIA? Ms. Heinzelman. Thank you, Senator Wyden. And thank you for taking the time to meet with me the other day. If I'm confirmed to the position, I would be very happy to look into whether the CIA has guidance on Carpenter, to determine whether or not it needs any guidance that it doesn't have. And to work with you on seeing what can be done to make public any significant interpretations, legal frameworks, about significant issues. As we discussed, I believe that's an important part of the CIA's accountability. And I would look forward to working on that issue more generally. Senator Wyden. What possible argument would there be to this major Supreme Court case laying out significant new privacy law? What argument would there be for it not applying to the Intelligence Community? Ms. Heinzelman. Senator, the Carpenter decision is in some ways, as self-described, a narrow ruling about CSLI or cell site location information data. It's been interpreted in other courts since, so one of the things I would want to look at, if I'm confirmed to the position, is not just Carpenter but also other subsequent Fourth Amendment case law interpreting Carpenter in the lower courts. And unfortunately I don't know enough, not being at the Agency now, about the potential relevance to CIA's particular activities. Senator Wyden. But you're not in fundamental disagreement with where the court is taking our country. Ms. Heinzelman. No, Senator. I don't have a--no. Senator Wyden. Good. One last question, if I might. Earlier this year CIA released a portion of the report from the Privacy and Civil Liberties Oversight Board. And this was dealing with how to reform the CIA's activities under Executive Order 12333. And as we talked about, I've been very concerned about this because we have two statutes out. The Foreign Intelligence Surveillance Act, pretty specific, fair amount of details. I'm certainly interested in some reforms but there's a fair amount of roadmap on how it works. Executive Order 12333, we're basically in a very barren area. There's virtually few guidelines and rules. And I and Senator Heinrich would like to change that. Now Director Burns, to his credit, said at our recent open hearing that he would address one of those key recommendations of the Privacy Board ensuring that when the CIA conducts searches for Americans' information, it documents a justification, so we have a real record. If the government is looking into people's records, we're going to have some documentation. Now the Privacy Board makes a number of other recommendations that I think are very important. And so my question is, would you make it a priority to make sure you review all of the Privacy Board's recommendations and let us know when and how they could be implemented? Ms. Heinzelman. Senator Wyden, I appreciate and understand your concern about this issue and would make it a priority to review the PCLOB's full reports and be in touch with you about it. Senator Wyden. I'll wrap up with this. Would it be acceptable to you, if confirmed--I hope you will be confirmed-- to report within six months of starting work on the status of those other Privacy Board recommendations so we can take that incomprehensible-to-the-public area, Executive Order 12333, and begin to get some transparency. Can we get a report within six months of your starting work? Ms. Heinzelman. Senator, I know that you and Director Burns have discussed undertaking a review and that I believe he and you set a six month deadline for that and I'm looking forward to supporting that effort and will---- Senator Wyden. My time is up. Just so you know, I think Director Burns is off to a strong start with respect to privacy and some new accountability. I'd like to see you build on it. Thank you. Thank you, Mr. Chairman. Chairman Warner. Senator Burr. Senator Burr. Thank you, Mr. Chairman. Kate welcome. Mr. Chairman, I hope we'll move this as expeditiously as we can. What do you see as the most important function of General Counsel at the Agency? Ms. Heinzelman. Senator Burr, thank you for the question. Thank you for meeting with me the other day. I enjoyed our opportunity to speak. I think the first obligation of the General Counsel's Office is to provide accurate, clear, rigorous, and timely legal advice to enable CIA's mission. Given the importance of all the work that CIA does, I think that is the first thing that the Agency should ask of its lawyers and they should view that as their first obligation. Senator Burr. And if the Director of the Agency disagrees with you, what do you do? Ms. Heinzelman. If the Director were to disagree--well I will say first that I welcome robust and rigorous discussion. And I welcome being challenged on legal views. I think that's one thing that clients and lawyers sometimes do for each other. But if I were to be confirmed as the Chief Legal Officer of the CIA, if it was my view that something was not lawful, and I so advised the Director, and he nonetheless proceeded to disregard my advice, I would have to consider of course resigning and taking other action. Senator Burr. So let's say that there's a gray area. And your recommendation is: brief the Committee. And the Agency or the Director chooses not to do that. Do you believe it's the role of the General Counsel if you felt strongly enough to come directly to the Committee? Ms. Heinzelman. Senator, yes. I think that the General Counsel has significant obligations under Sections 502 and 503 of the National Security Act, and under the CIA Act, to inform this Committee, timely, of significant intelligence developments and the legal basis for them. So I can see a circumstance like the one you're describing that would certainly fall within those obligations. To address the questions more generally, I think the fact that there's a lot of gray area in the law makes it all the more important that agency counsel be very clear with clients about areas where there are legal risks, and what those risks are, versus questions about legal permissibility and impermissibility. And one of the guiding principles that I have used throughout my career is to be very clear about the distinction between those two, to help enable clients to make the best decisions on the basis of my legal advice. Senator Burr. Well, thank you for today's testimony. I thank the Chair. Chairman Warner. Senator King. Senator King. I want to follow that series of questions. A secret agency is an anomaly in a democracy. And our government is built upon an elaborate set of checks and balances, many of which don't necessarily apply to a secret agency. And the law is one of those checks that does. And so to follow Senator Burr's questions and to go back to the very beginning of this hearing, you answered yes to the Chairman's questions about making information readily available on a timely basis to this Committee. I think that's critically important. And I hope--right now--I'd like to give you an opportunity to renew that commitment that you made earlier today, and that you just made to Senator Burr. Ms. Heinzelman. Yes, Senator King. And thank you for taking the opportunity to speak with me this week as well. I think the obligations that the CIA Director, that the General Counsel, are under to ensure that this Committee is fully and timely informed are critical. As I mentioned in my opening statement, I believe this is particularly critical at an agency like the CIA that necessarily has to conduct a lot of its work outside of the public view. And I will always do my utmost to comply with those obligations. And to bring matters to this Committee consistent with all obligations to protect sensitive information, because I view a partnership with this Committee as being absolutely essential to the success of the Agency's mission overall. Senator King. And it's part of the checks and balances in our system that this Committee has this responsibility. This isn't like the Department of Agriculture or the Department of Commerce that has outside commentators and newsletters and the press and all of those kinds of things. We're it. And that's why our relationship with you is so important. Lawyers, in these situations have two roles. The first is counsel to your client. And generally your job is to tell your client how to do legally what they want to do. But at some point, you have to say no. And my question is, are you willing to say no to the Director of the CIA, and the President of the United States, when you're in the Oval Office and the President says, We've got to do this in order to protect national security even though it's in violation of the law. Are you willing to say no in that situation? Ms. Heinzelman. Absolutely, Senator. Senator King. And at some point, report that to this Committee. One of the areas that it seems to me that we're going to have to be thinking about is that we've had this clear distinction in our intelligence laws and in our law enforcement between U.S. and abroad. The CIA doesn't operate in the United States. The FBI does. NSA doesn't operate with regard to U.S. persons. Here's the problem. We're entering an area where that line is harder to draw. For example, in the area of Cyber, there may be a cyberattack that originates in Russia or China but goes through servers in New Jersey or California. And the question is, is that a domestic issue or a foreign issue? Give me some thoughts about how we maintain the fencing-in, if you will, of our intelligence agencies with regard to Americans, and yet at the same time effectively respond to threats that are more complex and the lines are harder to draw? Ms. Heinzelman. Thank you, Senator King. That issue, particularly when it comes to technology, is as you note increasingly complex. And the CIA and the Intelligence Community have several tools to help them work through those issues. But fundamentally, a lot of those questions are our legal questions, or questions on which lawyers give guidance. And there are some of the types of issues that I think are the most challenging. It's one of the reasons why I think it is a huge advantage to have lawyers who really understand technology. You know, sometimes generalists--knowledge is not enough to help us answer those types of questions. I think that working with the Intelligence Community, writ large, as a community to figure out which agencies are best suited, consistent with their authorities, consistent with Executive Order 12333 guidelines, to be the lead on given issues, is one of the most important features of our community system of intelligence. Senator King. And to one final point. I hope that as you encounter gray areas or areas of indistinct legal distinction-- legal rules--that you'll come to the Committee and suggest this is a place where legislation might be necessary to clarify this issue. Again, we're all on the same team here. And to the extent you can advise us as to changes in authorities or other areas where legislation can help to clarify and deal with these difficult issues, I'd appreciate it if you would do so. Thank you. Thank you, Mr. Chairman. Chairman Warner. Senator Collins. Senator Collins. Thank you. First of all let me welcome you. I want to followup on questions that my colleagues have asked about when it is appropriate for you not to disclose the information to the Committee, because I'm a little bit concerned about your response to the first prehearing question in which you assert the CIA's obligation to keep the congressional intelligence committees fully and currently informed pursuant to the National Security Act, but say that that can be impeded on the grounds for protecting from unauthorized disclosure. And I realize that's in a clause in the same law. So your interpretation is really important. I want to go to the 2014 report from this Committee on the CIA's use of enhanced interrogation techniques. And I filed additional views in which I expressed my concern that Congress was only informed about the RDI program to the bare minimum. Later former CIA General Counsel, John Rizzo, reflected that, quote, ``The decision in 2002 to limit congressional knowledge of the EITs to the ``Gang of Eight,'' and to stick to that position for four long years, as the prevailing political winds were increasingly howling in the other direction was foolish and feckless.'' So my question to you is, how do you intend to draw the line on informing Congress on critical issues such as this one, particularly if they may be embarrassing to the Administration? Ms. Heinzelman. Thank you, Senator Collins, for that question, and for raising this issue that is so fundamental to the whole role of the Intelligence Community writ large. As we've been discussing here this morning, the CIA unlike other parts of our government has particular obligations to be forthcoming with the intelligence committees to ensure that these committees can carry out their functions. And Section 502 of the National Security Act of 1947, is a critical part of that. So I want to be very clear about the way that I interpret it. I'd like to start by saying that I would like to get to the Agency and--if confirmed, really understand how it's been applied historically. But the only exception--and it's not an exception--the only qualifier, I should say, that I see in that language about keeping the committees fully and currently informed is simply the admonition that the CIA must do that consistent with due regard for the protection from unauthorized disclosure of sensitive intelligence information. And I understand that language to be more of a question about the manner in which information is conveyed and not so much about the overall obligation, which is very clear from the text of both sections 502 and 503, to keep the committees fully and currently informed. Senator Collins. Thank you. Let me switch to a different issue. You went to the White House beginning in May, 2013. That happens to be right around the time that Edward Snowden illegally disclosed highly sensitive information and fled to Russia. Were you asked to go to the White House to work on the Administration's response to the many unauthorized disclosures by Mr. Snowden? Ms. Heinzelman. No. Senator Collins. And did you work on this issue while you were there? Ms. Heinzelman. Senator, as an Associate Counsel in the White House Counsel's Office, my portfolio included a broad range of national security issues. And as you note, I was there--I think my start date coincided just a couple of days or weeks before those disclosures. And so I did work on those issues for the White House Counsel. Senator Collins. Thank you. Chairman Warner. Senator Casey. Senator Casey. Thanks very much. And Ms. Heinzelman, grateful for your presence here today, and your willingness to serve again, to serve the Nation at a difficult time especially in this position. I want to ask you about the balance that you'll have to strike I guess on most days between legal advice and the engagement you have with the policy staff in matters of policy. Tell me how you'd manage those different responsibilities as General Counsel? Ms. Heinzelman. Thank you, Senator, for that question. I have been--as I think about the position and the extraordinary responsibility, I've been thinking about this question about how you balance all the priorities of the General Counsel, in particular how to balance being responsive to Agency leadership, and the amount of time that they need from the General Counsel, as well as effectively manage the office. But to address your question specifically, you know, I view the primary role of the General Counsel to advise on legal issues--but also the General Counsel can at times provide a non-legal counsel. And I view that principally as being counsel about risk, the kinds of things that are within the competence of a lawyer. But I do want to say in response to your question that the CIA is an intelligence agency, and they generally don't weigh in on matters of pure policy. And I think that's an important part of the ethos of the place. And as a lawyer, one of my reigning philosophies from the very first days when I was working as a junior staffer for judges, is to be very clear about my areas of competence and only advising within those areas. So even when giving non-legal counsel, I would be careful about ensuring that I am advising within my core areas of competence and not straying outside of them. Senator Casey. Thank you. And I know that when you serve as General Counsel, especially at a high level you've got to be a jack of all trades. And unlike the common understanding of that, you have to be a master of all. And it's difficult to do that when you're providing a range of advice on a wide array of topics or practice areas. But if this is in essence a job interview when you come before this Committee, tell us about what areas of your experience--which is substantial I believe--prepares you best to be able to provide that kind of broad-based advice on a range of legal issues and in difficult concepts for, I think, any General Counsel. Ms. Heinzelman. Thank you, Senator. I think there are three things--three features--of the experiences that I've had both in the public sector and the private sector that helped prepare me for this job in particular. The first is that I've had a series of positions over quite a considerable period of time in our Intelligence Community around our broader national security community. And from that I've taken away areas of specialization, particularly my work at the WMD Commission, at ODNI, and at Justice, on the domestic-focused authorities, law enforcement authorities, as they pertain to our national security community, but also more broadly as I've touched on other areas. So the first is the focus on national security issues specifically. The second is that I've been fortunate enough to be able to spend time at a variety of government entities. I've been on a commission that looked at intelligence failures. In a 20/20 hindsight kind of way, I've been able to think about what it means that the Intelligence Community is so often asked to act quickly in the moment, to respond to something, and then steps back and has time to look at what were the lessons learned. I think that's an important, very healthy but also difficult feature of being in our national security community. I've had the opportunity to be at a very large General Counsel's Office operation at HHS. I've had the opportunity to see these issues from a variety of perspectives, and across a variety of Federal practice areas. And I think that has enhanced my understanding of what it is to be the sort of jack- of-all-trades type General Counsel that you were mentioning. And the third feature of my experience that I think is important here is that throughout most of my career, I have spent time on technology and privacy issues, and often from a national security vantage point but sometimes not. My work at HHS was not national-security focused, but I had privacy-related responsibilities there. I think that broad understanding, both in the private sector and in the public sector, of privacy issues and technology issues is something that I would very much hope to bring to the Agency with me. And to think critically about how we can further strengthen the work that the Agency's lawyers are doing on those subjects. Senator Casey. Great. Thanks very much. Thanks, Mr. Chairman. Chairman Warner. Senator Blunt? Senator Blunt. Ms. Heinzelman, glad to have you here today. And glad that new baby didn't prevent you from being here. But hope the baby's here quickly and healthy. On your questionnaire, there was one area I wondered about that I think is particularly important that you said you hadn't had time to think about. The Presidential Memorandum of Notification really authorizes the scope of the CIA activity, and it can change and does change, I assume with frequency as new activities become available are more important than they have been before. If confirmed, do you commit to keep the Committee fully and currently informed on developments regarding these notifications and how they relate to CIA activities? Ms. Heinzelman. Yes, Senator Blunt. Consistent with the law, and I think the provisions of Section 503 which speak to, as you're describing, keeping the committees informed as programs evolve, is obviously of critical importance. Senator Blunt. Now, I'm not sure exactly what provision you cited there, but at what stage of the process do you think it would be your responsibility to let the Committee know that there was a new definition of scope of activity? Ms. Heinzelman. Senator, I don't have the text in front of me, but I believe that Section 503 speaks about notifying the committees before an action is undertaken and the obligation to keep the Committee fully and currently informed. That currently part is an integral part of the obligation and one that I would take seriously. Senator Blunt. All right, good. On another area that you have thought about, Section 702--I think you've actually published an article on 702, which is the Foreign Intelligence Surveillance Act, known as FISA. It authorizes the government to collect intelligence on non-U.S. persons located outside the United States, as this particular definition of what--how that Act can be applied. The authority expires at the end of 2023. In 2012, when it was about to expire, Attorney General Holder and the Director of Intelligence Clapper wrote a joint letter to Congress supporting a clean reauthorization. In 2017, the DIA and Attorney General Sessions did the same thing. Having looked at this, do you support a clean reauthorization of the FISA authorities? Ms. Heinzelman. Senator, I understand Section 702 to be a critical intelligence tool. And I would look forward to working with this Committee on reauthorization of Title 7 of FISA, and would also be happy to work with this Committee, as Director Haines committed, to discuss any modifications that would enhance privacy and civil liberties without diminishing our national security. But I strongly support reauthorization. Senator Blunt. What do you see as the CIA's role in using the FISA authorities? Ms. Heinzelman. Senator, as you know, the CIA has minimization procedures that allow it to use FISA information that's been collected as part of its operations, and it has a robust and multi-layered oversight system for ensuring that the Agency does so consistent with the law and with the FISC approved minimization procedures and other internal agency guidance. And I would look forward, if confirmed, to helping to advise the Agency on that whole compliance framework. Senator Blunt. All right. Thank you, Chairman. Vice Chairman Rubio. Senator Cotton. Senator Cotton. Ms. Heinzelman, on September 29th, the National School Board Association sent the Biden administration a letter asking it to target, using law enforcement resources, parents who were protesting at school boards, not just for violence or threats of violence, but for what it said or for what the Attorney General, just five days later said, were other forms of intimidation and harassment. That memo was sent to the FBI, U.S. Attorneys' offices, the National Security Division, the Criminal Division, and the Civil Rights Division. Were you involved in creating the October 4th memorandum from the Attorney General directing law enforcement to target parents at school boards? Ms. Heinzelman. Thank you, Senator Cotton. The October 4th memorandum that your question refers to was, as the Attorney General has said, about violence and threats of violence against school workers---- Senator Cotton. Ms. Heinzelman, our time is limited here and I asked a simple question. I know what the memorandum says. It also talks about intimidation, harassment. Were you involved in creating that memorandum? Ms. Heinzelman. Senator, in my role as chief counsel to the Attorney General, with regard to matters that came before the Attorney General, I generally had visibility into most matters that came before the Attorney General. This, as the Attorney General has said, was a memo that he issued. This is his memo. Senator Cotton. So, where are you personally involved in that matter or not? You gave a general answer. I want a specific answer about this memo. Ms. Heinzelman. Senator, I want to be as forthcoming with you as I can be. When matters come before the Attorney General, my role---- Senator Cotton. I'm not talking about matters. I'm talking about this matter, this specific memo. Were you involved in creating this memo with your boss, Merrick Garland? Ms. Heinzelman. Generally, my role in matters that came before the Attorney General is to do any of our variety of things. I might sit in on--. Senator Cotton. So I take it you're not going to give me an answer to that question then, since you've not answered it now repeatedly. Ms. Heinzelman. Senator, I would like to be as transparent with you as possible. But I hope you'll understand---- Senator Cotton. But there's no reason that you can't--I mean, I'm not asking you what advice you gave. I'm not--this is not a legal case, is a policy decision. You were a counselor to the Attorney General and you don't want to answer it. Ms. Heinzelman. Senator, with regard to matters that came before the Attorney General, most matters that came before the Attorney General, I would have visibility on it. That could range from setting up a meeting, attending a meeting, advising him on associated statements or actions. And I hope you'll understand the need for the Attorney General to receive confidential advice. But with regard to most matters that the AG was personally involved in and, and in this matter, he certainly was. This was his memo. I would have some visibility into it at a minimum. Senator Cotton. What about the U.S. Marshals in Portland? The courthouse in Portland the summer of 2020 was under attack by left-wing street militias. Now left-wing activist groups have been suing the marshals who bravely defended it. The Department has hung out to dry four Deputy U.S. Marshals. They're not paying to represent them in those lawsuits. Were you involved in the decision not to represent those Marshals and those lawsuits? Ms. Heinzelman. Senator, I understand your concern about this matter. The Department of Justice has as a core value that it works through its Civil Division and the U.S. Attorneys' offices to defend officers who are acting within the scope of their duties. My understanding is that the Department is defending many officers---- Senator Cotton. They're defending 70, but I didn't ask about the 70, I asked about the four. I assume you're familiar with the parable of the lost sheep. The shepherd left 99 to go get the one because he wanted to save the one. I'm worried about four. I'm not worried about 70. Ms. Heinzelman. I understand Senator. My understanding is that generally these decisions about representation, either having the Justice Department represent or pay for representation, they are made pursuant to Departmental regulations and the division that primarily works on those matters is the Civil Division or the U.S. Attorneys' offices who are the subject matter experts on those matters. Senator Cotton. Okay. So no answer on that one, either. I assume we're not going to get an answer if you were involved in the cancellation of the China Initiative. Ms. Heinzelman. Senator, one of the areas that I've focused on in particular for the Attorney General is national security matters. I would advise him on national security matters. With regard to the China Initiative, the Department's position on that is public and Attorney General Olson has made his decision on that matter clear. I'm happy to address it in more detail. Senator Cotton. Okay. So that's the third case in which we won't get an answer on that. My time's up. I just want to observe, I disagree with what Senator Burr and Senator King said: that you, in this role or your office is going to be this mythical, heroic lawyer telling rogue officers and directors that they cannot take action that is illegal. I think it's much more likely that senior leadership and the CIA or the National Security Council will ask you to provide legal cover for actions they don't want to take that are perfectly legal. So they probed it. Would you stand up to someone and say, this is illegal? I want to know if an action or policy is legal, but you've been told that the Agency or the Administration doesn't want to take it, will you give your best legal advice that it is illegal? You're making a policy decision. Ms. Heinzelman. Senator, as a lawyer, I view it as my primary responsibility to give my best legal advice--my most candid, forthright, legal advice--based on the facts and the law on any matter. That is what I've done in my current job, in my past jobs, and that is what I would do if confirmed to this position. Senator Cotton. Even if you know that superiors at the CIA or the NSC do not want to pursue that course of action, will you still give them the advice that that course of action is legal if they choose to pursue it? Ms. Heinzelman. Senator, I would always give my best legal advice regardless of what a client--what outcome I believe the client wants to get to, if I'm understanding the question correctly. I view it as my duty to give them my straight view on the law and on the facts of a given matter. Senator Cotton. Well, I mean, my concern--I mean, there's some people on the front lines in the Agency or for that matter in other departments, like Department of Defense, think that lawyers are always looking for a way to get to no, especially if it's an aggressive operation or policy. I'm as concerned that lawyers are being directed to get to no by policymakers about them. But my time is up. Chairman Warner. I think the witness said--I apologize having to step out briefly for a meeting. I heard when asked questions about seeing something illegal, will you point it out? If you see something that's legal and you're being told it's not, you won't reach another opinion. You've got to give them your best answer. And I think that's why I believe you were nominated in by the Administration. That's, I think, reflected in your background. Senator Cornyn. Senator Cornyn. Ms. Heinzelman, giving legal advice is not like a chemistry test, is it? There's no if you stick a piece of litmus paper in a liquid substance that it turns blue or pink. Giving legal advice isn't like that, is it? Ms. Heinzelman. Senator, in the sense that giving legal advice doesn't always end up with a straight yes-or-no-this-is- clear answer, absolutely. I agree with that. There are lots of gray areas. Senator Cornyn. Right. Well, and in your experience when it comes to intelligence matters, like you'll be advising on at the CIA, there are different types of risks. You've talked about legal risk, but there are also operational risks that the Agency has to consider, correct? Ms. Heinzelman. Correct. Senator Cornyn. You and I talked about the book that General Hayden, the former Director of the CIA, had written called ``Playing to the Edge.'' And we talked about the fact that I hope that in rendering your legal advice, you will play to the edge. I don't want you going over the line, but I do want you to going up to the line of the legal authorities given to our Intelligence Community. But we also discussed the hypocrisy associated with some of that advice, in that when nothing bad happens, somebody usually on this side of the dais will come back and ask questions and say, ``Well why were you so aggressive? Why didn't you look at this? Why didn't you look at that?'' And of course, long after the threat or the danger has subsided or gone away, at least from people's memory, that's been an experience of the Nation, particularly in the war on terror and the aggressive role that we've asked our IC to play to protect American lives. So, I guess this is a little bit of a segue from Senator Cotton's questions. Do you consider it your obligation to try to tell your client, if you want to do this, this is how you can do it legally? Is that how you approach the job? I share some concern that it's too easy for lawyers to say, no, you can't do it, because it does entail some risks. But everything, all the advice that you're going to be rendering, will entail some risk. Correct? Ms. Heinzelman. Thank you, Senator Cornyn. As you and I discussed the other day, I think that really good lawyers do a number of things for their clients when they're giving advice. They advise them not only on where the outer limits are--that white line that you talked about--and make sure that their clients stay within those lines to protect their clients. They also advise their clients on what we were just talking about as being all the gray. They help their clients understand risks. They help their clients understand better courses of action. And I think that's where the really creative and challenging lawyering comes into play. Helping your clients get to yes when there can be a yes. Right? And helping your clients figure out all the tools they have available to them so they can use them most effectively. And so, I really see it not just as being about defining the outer bounds of the law, but also about enabling decisionmakers to make smarter choices. So I fully agree with the sentiment that you expressed about that. Senator Cornyn. Who is your client? As General Counsel of the CIA, who is your client? Ms. Heinzelman. I believe the client of the CIA's General Counsel is the Director, the Agency, and ultimately the American people. Senator Cornyn. When it comes to disclosing classified information, is the President the final word on who information will be disclosed to? Ms. Heinzelman. My understanding, Senator, is that a number of government officials qualify as original classification authorities and can determine to declassify information consistent with the law. The President, I believe, has those authorities and is one of those classification authorities. Senator Cornyn. But the President himself as head of the Executive Branch has the final word, does he not? Ms. Heinzelman. Consistent with the law, the President, I believe, has considerable classification authorities. Senator Cornyn. Well, it seems to me like that sets up a real tension between the obligation for the Intelligence Community to share with oversight committees like this one, and perhaps a decision made at the highest levels of the Executive Branch, not to share certain information. I think I'm remembering this correctly, that when Harry Truman became President of the United States, he was not aware that the Manhattan Project existed and we were working on an atomic bomb. And in that case, obviously, President Roosevelt decided not to tell even his Vice President. So that's what has prompted my question. But do you see any potential conflict or any potential problem with doing what Senator King and others have talked about in terms of sharing information with this Committee? And the President's role and the Executive Branch's role in deciding how widely to share classified information? Ms. Heinzelman. Senator, I think it's the obligation of the General Counsel's office at CIA to advise clients on some of the legal issues associated with classification, including the proper interpretation of Executive Order 13256 on classification standards. I would carry out that role, faithful to the law--the law that binds both the CIA and the White House on issues of how to properly classify and declassify information. Senator Cornyn. Well, that's an important point because you would be giving legal advice. You wouldn't be making the ultimate decision on how widely the information would be shared. Ms. Heinzelman. That's correct, that I would be giving the legal advice to decisionmakers as CIA General Counsel. However, there's an independent obligation, which I'll just mention because I think it's an important one, to share information about the legal basis for CIA's actions, and that's an independent obligation specifically placed on the General Counsel. So, in that regard, I would have a very direct obligation to this Committee, as well. Senator Cornyn. Thank you. Chairman Warner. I believe Senator King has a followup. Senator King. Yes. You've talked about technology. Through the miracle of technology, I've reviewed Section 502 and 503 and they couldn't be more explicit. One of the most explicit statutes: ``To the extent consistent with due regard for the protection from unauthorized disclosure of classified information, relating to sensitive intelligence sources and methods or other exceptionally sensitive matters, the Director of National Intelligence and the heads of all departments, agencies, or other entities of the U.S. Government involved in intelligence activities shall keep the congressional intelligence committees fully and currently informed of all intelligence activities, other than a covert action.'' And there's Section 503 that covers covert action, and it says almost essentially the same--that there's an obligation to disclose to the congressional intelligence committees. And that's the bedrock of this responsibility. The only issue is not revealing sources and methods. And of course, that can be done through processes that we have of only the ``Gang of Eight,'' for example, or the full Committee. But I think this is a case where the responsibility of the Intelligence Community to keep us fully informed of activities, including covert action, is absolutely explicit in the law. And I appreciate your commitment to that principle, which you've stated to us today. Is that correct? Ms. Heinzelman. Thank you, Senator King. Yes. I was trying to answer the question--what I took to be a separate question--about compliance with determinations about what is properly classified under the law and what is not. I think it's a separate question whether---- Senator King. But you wouldn't interpret that statute to say just because it's classified, you can't share it with us. Ms. Heinzelman. Certainly not. Senator King. Thank you, Mr. Chairman. Chairman Warner. Senator Cotton, do you have a--? My understanding is you want to make a request to go into closed session? Could you--? Senator Cotton. I think we should. We didn't get any answers in a public setting to what I asked, even though they're not classified. But I have classified questions. I know we typically don't do that with nominees, but Ms. Heinzelman is a current U.S. Government employee with a security clearance. And she's worked in this field in the past. I think there are issues that we should explore about her role in Obama administration decisions. Chairman Warner. Well, listen, I'm going to try to honor the Senator's request and, obviously, I'd say we, we could see if we could make her available at a different time. Although I think we may be back into that close time and her change in status. I'm not sure---- Senator Cotton. I mean, if no one else was prepared to have one and we're not prepared to have one, we can look at it another time. Chairman Warner. Well, I'm just concerned that I think she's about to go on maternity leave. I want to try to accommodate you. I'm not sure whether her answers about what she was doing as a legal--and I didn't hear all your line of questions, so I apologize. But if they're going to be questions about her when she was acting as a legal counselor in the current Administration or in a past Administration, like most lawyers, they may simply say, I'm not going to weigh in on that. But if it would feel better to ask those questions, ask her if there's going to be a different response in a closed setting---- Senator Cotton. Well, that's half of it. But the other half is--as Susan Collins talked about her experience working on the Edward Snowden matter. She was at the White House, there was a lot of other stuff going on then as well. There was the Presidential Decision Directive 39: U.S. Policy on Counterterrorism. There was the Presidential Policy Directive 28: Signals Intelligence Activities. There's Syria. There was the Iran nuclear deal. Again, I know that normally we don't get to explore these questions with nominees because they're not active U.S. Government employees with security clearances, but they are here. Again, we don't have to go have a formal hearing right now, but I would like a chance to explore them with her at some point. So I'm fine not going to close setting right now. Chairman Warner. I was asking the staff. Is there a way that you could ask those questions for the record in a classified manner, or do you want to have a back and forth with her? Senator Cotton. We can. Look, I think we could probably start there. Let's start there. Chairman Warner. I want to try to accommodate, but I also recognize that I wasn't just sure that some of her answers may be that much different, but I do want to make sure. Senator Cotton. All of our peers are already gone off to an early lunch. Chairman Warner. Well Senator King and I are still here. Senator Cotton. Senator King's only here cause like me, he always waits till the end, but now, why don't we try to start there we'll see if that works. Chairman Warner. All right. Well, I also want to make sure that you don't raise objections if tomorrow she delivers a baby and say, one more of this Biden administration's--trying to avoid my questions that way. Senator Cotton. All right. Chairman Warner. So we'll try. Senator Cotton. I wish you the very best and especially big brother and sister who are going to have to deal with another one coming along. The very best as well. Chairman Warner. Well, I appreciate Senator Cotton. But I do want the witness to recognize that there will be additional questions. And again, how you answered them is up to you. But I want to, I do want to find, make sure you get to--. Well, I appreciate your presence. I appreciate your family all being here. I appreciate your willingness to serve. I look forward to trying to move this nomination as quickly as possible. I think it's really important that the Agency gets a General Counsel. I think there's a critically important role. Candidly, I think both Senator Cotton's right, and some of the Members on this side, that this job is so important that not only do you have to point out illegal activities, but I think the points raised by Senator Cotton that if any Administration says, hey, we don't want you to do this, but it's perfectly legal, maybe they'll make a policy decision on that, but it shouldn't be based on legal opinion. I think, truthfully, you have the experience, the expertise and the knowledge to make those kinds of judgments. It is a critically important role. And again, I appreciate your presence here and good luck in the coming hours, days, and weeks. Senator King. Mr. Chairman, I'd like to note the role of Yale Law School in this hearing. The nominee is a graduate. I'm sure she would say that Yale had a lot to do with her getting where she is, as it did with me--when Yale Law School rejected my application. I dedicated my life to making them regret the decision and hence my position on this side of the dais. Thank you. Chairman Warner. I'm not sure I've shared this with the Committee, but I also ended up at that law school in Cambridge because the one in New Haven rejected me as well. Senator King. [Off-Mic. Inaudible.] Chairman Warner. I'm not sure I'm going to go there, but I do want to make sure, at least for staff that any, if any members of the Committee wish to submit questions for the record after today's hearing, please do so by 5 p.m. on Friday, April 8th. And with that good luck going forward and best of luck to your family. They all should be very, very proud of you. Hearing adjourned. Ms. Heinzelman. Thank you. [Whereupon the hearing was adjourned at 11:28 a.m.] Supplemental Material [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] [all]

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