Hearing Type: 
Date & Time: 
Wednesday, April 26, 2017 - 10:00am
Dirksen 106

Full Transcript

[Senate Hearing 115-73]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 115-73

                          INTELLIGENCE AGENCY



                               BEFORE THE


                                 OF THE

                          UNITED STATES SENATE


                             FIRST SESSION


                       WEDNESDAY, APRIL 26, 2017


      Printed for the use of the Select Committee on Intelligence

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           [Established by S. Res. 400, 94th Cong., 2d Sess.]

                 RICHARD BURR, North Carolina, Chairman
                MARK R. WARNER, Virginia, Vice Chairman

JAMES E. RISCH, Idaho                DIANNE FEINSTEIN, California
MARCO RUBIO, Florida                 RON WYDEN, Oregon
SUSAN COLLINS, Maine                 MARTIN HEINRICH, New Mexico
ROY BLUNT, Missouri                  ANGUS KING, Maine
JAMES LANKFORD, Oklahoma             JOE MANCHIN, West Virginia
TOM COTTON, Arkansas                 KAMALA HARRIS, California
                 MITCH McCONNELL, Kentucky, Ex Officio
                  CHUCK SCHUMER, New York, Ex Officio
                    JOHN McCAIN, Arizona, Ex Officio
                  JACK REED, Rhode Island, Ex Officio
                      Chris Joyner, Staff Director
                 Michael Casey, Minority Staff Director
                   Kelsey Stroud Bailey, Chief Clerk


                             APRIL 26, 2017

                           OPENING STATEMENTS

Burr, Hon. Richard, Chairman, a U.S. Senator from North Carolina.     1
Warner, Hon. Mark R., Vice Chairman, a U.S. Senator from Virginia     3


Kaine, Hon. Tim, a U.S. Senator from Virginia....................     4
Elwood, Courtney, nominated to be General Counsel................     6
    Prepared Statement...........................................     9

                         SUPPLEMENTAL MATERIAL

Questionnaire for Completion by Presidential Nominees............    32
Prehearing Questions and Responses...............................    49
Follow up Questions for Mrs. Elwood from Senators Wyden and 
  Heinrich.......................................................    68

                          INTELLIGENCE AGENCY


                       WEDNESDAY, APRIL 26, 2017

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:08 a.m. in 
Room SD-106, Dirksen Senate Office Building, Hon. Richard Burr 
(Chairman of the Committee) presiding.
    Committee Members Present: Senators Burr (presiding), 
Warner, Collins, Blunt, Lankford, Cotton, Cornyn, Feinstein, 
Wyden, Heinrich, King, and Harris.


    Chairman Burr. I'd like to call the hearing to order. I'd 
like to welcome our witness today, Mrs. Courtney Elwood, 
President Trump's nominee to be the next General Counsel of the 
Central Intelligence Agency. Courtney, congratulations on your 
nomination. And I'd like to recognize your husband John--John, 
wave your hand there.
    [Mr. Elwood waves.]
    Thank you John for the support you give to Courtney.
    Courtney, you've served the country with distinction in 
your previous posts at the White House and the Department of 
Justice, and we appreciate your continued willingness to serve.
    Our goal in conducting this hearing is to enable the 
committee to consider Mrs. Elwood's qualifications and to allow 
for thoughtful deliberation by our members. She's already 
provided substantive written questions--answers to more than 90 
questions presented by the committee and its members. Today, of 
course, members will be able to ask additional questions and to 
hear from Mrs. Elwood in this open session.
    Courtney comes in front of the committee with a 
distinguished legal career. After graduating Yale Law School in 
1994, Courtney clerked for the U.S. District Court of Appeals 
for the Fourth Circuit, after which she went to clerk for Chief 
Justice William Rehnquist of the Supreme Court. Courtney then 
took a job as an associate with the firm of Kellogg Hansen, 
where she is now a partner.
    In January 2001, she left the firm to serve as Associate 
Counsel to the President, rising through the ranks to Deputy 
Counsel to the Vice President and then Deputy Chief of Staff 
and Counselor to the Attorney General. During the extremely 
difficult time in the days and weeks and months after 9/11, 
Mrs. Elwood provided sound legal counsel to our Nation's 
leaders as they considered what tools the intelligence 
community needed to combat terrorism and to secure our Nation.
    Mrs. Elwood, you've been asked to serve as the chief legal 
officer of the Central Intelligence Agency at a time when the 
Agency and the intelligence community as a whole face complex 
legal questions and a host of challenging priorities. The CIA's 
General Counsel must provide sound and timely legal advice to 
the Director and must manage an office responsible for legal 
oversight and compliance at the world's premier intelligence 
    But, more than that, the CIA General Counsel maintains a 
vital public trust. Part of your job will be to ensure for the 
American people that above all the Agency operates lawfully, 
ethically, and morally. Since you left government service, the 
nature and number of challenges and threats the intelligence 
community is tracking have multiplied significantly. While 
Americans continue to engage in robust debate about which 
intelligence authorities are right, appropriate, and lawful, I 
expect you to ensure that the Agency operates within the bounds 
of the law and to ensure that the Office of General Counsel is 
positioned to provide the best legal advice possible to 
Director Pompeo and to the Agency as a whole.
    This committee has received letters of support from your 
current and former colleagues and a letter of support signed by 
those that have served in both Democrat and Republican 
administrations. Your former colleagues praised your acumen, 
integrity, and judgment, and--and I quote--``deep respect for 
the rule of law.''
    Jack Goldsmith, a professor at the Harvard Law School who 
has known you since you were a law student at Yale, referred to 
you as ``a superb, independent-minded lawyer.'' A letter from 
the D.C. Bar Association Committee on National Security Law, 
Policy, and Practices highlighted your deep-seated commitment 
to the rule of law and to our democratic principles. And your 
colleague Ben Powell, former General Counsel to the DNI, had 
this to say: ``She's simply one of the finest lawyers and 
persons I've ever worked with in my career.''
    After meeting you, it's easy to see how you've garnered 
such widespread, consistent accolades. I know that your strong 
moral compass and sharp legal mind will serve you well as the 
General Counsel of the Central Intelligence Agency.
    As I mentioned to Director Pompeo during his nomination 
hearing, I can assure you that this committee will continue to 
faithfully follow its charter and conduct vigorous and real-
time oversight over the intelligence community, its operations, 
and its activities. We'll ask difficult questions, probing 
questions, of you and your staff, and we expect honest, 
complete, and, more importantly, timely responses.
    I look forward to supporting your nomination and ensuring 
its consideration without delay. Thank you again for being here 
and for your service to the country. I look forward to your 
    I now recognize the Vice Chairman for any opening 
statements he might make.

                         FROM VIRGINIA

    Vice Chairman Warner. Thank you, Mr. Chairman.
    Welcome, Mrs. Elwood. Again, congratulations on your 
nomination to serve as General Counsel of the CIA. I see John 
as well, although I do have to question to a degree your legal 
judgment by bringing my friend Tim Kaine as an introducing 
factor, but I will overlook that.
    Obviously, this position is tremendous responsibility, one 
that requires a careful review of the qualifications and 
character of the individual nominated. I echo a lot of the 
comments that the Chairman has made.
    If confirmed, you'll be sitting at a critical intersection 
between intelligence and policymaking. As the CIA's top legal 
officer, the Director will turn to you to make judgments on 
whether a contemplated activity is legal or not. This job 
requires a leader with unimpeachable integrity and unwavering 
commitment to the Constitution and laws of the United States, 
who will apply both sound legal analysis and good judgment to 
the task of providing counsel to the agency.
    During our conversation when we had a chance to visit, you 
and I agreed that politics has no place in the CIA General 
Counsel's Office. We discussed the need to follow the law, 
including the Army Field Manual, to ensure that torture does 
not tarnish the reputation of the intelligence community or 
this country again.
    Mrs. Elwood, during my questions I will again want your 
public assurance today that you will always seek to provide 
unbiased, unvarnished, and timely legal counsel to the Director 
of the CIA, even when doing so might be inconvenient or 
    Obviously, there will be a number of challenges that will 
require that kind of legal judgment going forward. Those 
challenges will include making sure we continue to protect the 
privacy and civil liberties of Americans; the increasing use 
and relevance of vast amounts of public information creates a 
significant challenge and opportunity for the whole CIA and the 
whole IC. We've got to always make sure that we are protecting 
the privacy and civil liberties of United States citizens as we 
take on these new tools moving forward.
    An issue I know a number of us on the committee have been 
very concerned about and I think will come back again is 
encryption. Again, related to privacy concerns, the 
intelligence community needs to find ways to access the 
communications of our adversaries while protecting privacy 
rights and American commercial ingenuity. I believe we cannot 
tie the hands of our technology leaders by unilaterally 
disarming them with possible security loopholes.
    An area again that this committee has looked on is 
information-sharing. The rapid change of information technology 
enables significant sharing of classified information and we 
must work to find ways to have the appropriate level of 
    Finally, a subject that has had a lot of the attention of 
the committee recently. Chairman Burr and I have committed to 
conduct a review of the intelligence supporting the 
intelligence community's assessment that Russia, at the 
direction of President Vladimir Putin, sought to influence the 
2016 U.S. presidential election. It's important that all 
Americans fully understand the extent of Russia's involvement.
    It is vital that the CIA, pursuant to your legal guidance, 
support our investigation to the maximum extent possible and 
allow this committee to follow the facts wherever they may 
lead. This is a charge I take seriously, all the members of the 
committee take seriously, on behalf of the American people, and 
we will continue to pursue this both thoroughly and 
    I will again during my questions ask you to commit to me 
and all members of the committee that you will fully cooperate 
with this review and that you will do all you can to ensure 
that we're provided the information we will require to conduct 
    With that, again thank you for being here, Mrs. Elwood, and 
I look forward to today's hearing.
    Thank you, Mr. Chairman.
    Chairman Burr. Thank you, Vice Chairman.
    I'd like to at this time recognize our colleague the 
distinguished Senator from Virginia Tim Kaine, who will 
introduce Mrs. Elwood. Senator Kaine.


    Senator Kaine. Thank you, Mr. Chair, Vice Chair, and 
members of the committee. This is an honor. One of my favorite 
things to do in the Senate is bring talented Virginians before 
the body who are committed to public service and Mrs. Elwood is 
such an individual.
    I'm just going to warn you, doing this in front of my 
senior Senator and also the only Alexandria native in the 
Senate, Senator King from Maine, makes me feel a little bit 
nervous. Some of you need to know that, the non-Virginians here 
need to know, that Mrs. Elwood lives down the street from 
Senator Warner. On that score, Mark, will you take your 
Christmas lights down?
    That was a joke. Actually, she has trick or treated at 
Senator Warner's house and the first test of her discretion as 
an intel professional will be not revealing costumes that she's 
seen over the years.
    As I said, it's always rewarding. I know all of us feel 
this way about our states, that we have deep talent pools of 
wonderful people who are public servants, and public servants 
often don't get the thanks that they deserve. They don't get 
the appreciation they deserve. But bringing somebody before 
this committee or others who is willing to serve in a really 
important position does give me a real sense of pride.
    I think that people who arrive here are the creatures of 
their experience. So frequently that experience begins with an 
upbringing and lessons learned as kids through parents, 
teachers, grandparents, counselors, or other mentors. With Mrs. 
Elwood, that's no exception. She had a foundation in family 
that really laid the groundwork for her public service career.
    Her father, the late General Edwin Simmons, served in World 
War II, Korea, and Vietnam as a United States Marine, and his 
legacy continues in the Marine Corps today. One of the 
buildings at Marine Corps University in Quantico is named after 
her dad. Her mother was a dedicated public servant as well, 
working and traveling the world in the Foreign Service before 
settling in Northern Virginia.
    Courtney's been a path-breaker in her career. She was in 
the first class of a high school, Fairfax West Potomac High 
School, that was formed through the merger of two very 
competitive high schools and this first class had to create new 
traditions and bring together folks who had been, at least on 
the athletic fields, rivals before. Then she went to Washington 
and Lee for undergrad, where she was in the second class of 
women and people used to say she must be a feminist because she 
raised her hand. So she's been willing to be a path-breaker and 
has had encouragement from family and professors to do that.
    When Courtney finished at W&L, as was mentioned, she went 
to Yale Law School and she worked with our Senate colleagues, 
the younger Senators Bennet and Coons, who were at Yale Law 
School the same time as she was.
    She's now worked in the legal profession for 20 years and 
the Chairman went through some of her experience, including 
public service experience serving as a clerk on the Fourth 
Circuit, serving in the very prestigious position as a clerk on 
the Supreme Court for Chief Justice Rehnquist, as counsel in 
the White House, the Office of Vice President, the Department 
of Justice. And I also know many of Courtney's law partners in 
private practice well and it's a private firm that is filled 
with people that are very public-spirited, Democrats and 
Republicans. They appreciate those who are public-spirited and 
I know Courtney has absorbed that lesson from them as well.
    Courtney will I know talk about her family. Her husband 
John is here. The two boys, ages 15 and 12, live in Alexandria. 
They're in school today.
    But I'll just conclude and say that so much of what we do 
depends upon the talent of the people that we bring into these 
very, very different positions. With Courtney Elwood you have 
somebody of a sterling professional background, but more 
importantly I think for purposes of this position, with a 
sterling reputation for integrity that is necessary in the CIA 
General Counsel position. It's my honor to present her to the 
    As I said to the Chairman, I have a bill being marked up in 
the HELP Committee. Usually my bills actually go better when 
I'm not there, but I probably should at least go up to make 
sure that that's okay. So I hope you'll excuse me so I can head 
    Chairman Burr. Tim, thank you. You are excused. And if you 
would shepherd my bill through the markup.
    Senator Kaine. His is being marked up as well.
    Thank you so much.
    Senator King. I was hoping we'd have a chance to question 
Senator Kaine.
    Senator Heinrich. I would second that.
    Chairman Burr. I'd prefer to do that in closed session.
    Mrs. Elwood, would you please stand and raise your right 
    [Witness stands.]
    Do you solemnly swear to give this committee the truth, the 
full truth, and nothing but the truth, so help you God?
    Mrs. Elwood. I do.
    Chairman Burr. Please be seated.


    Chairman Burr. Courtney, before we move to your statement 
I'd like to ask you to answer five questions that the committee 
poses to each nominee who appears before us. They require just 
a simple yes or no answer for the record.
    Do you agree to appear before the committee here or in any 
other venue when you're invited?
    Mrs. Elwood. Yes, sir.
    Chairman Burr. If confirmed, do you agree to send officials 
from your office to appear before the committee and designated 
staff when invited?
    Mrs. Elwood. Yes, sir.
    Chairman Burr. Do you agree to provide documents or any 
other materials requested by the committee in order for us to 
carry out our oversight function and legislative 
    Mrs. Elwood. Yes, consistent with the law.
    Chairman Burr. Will you both ensure that your office and 
your staff provide such materials to the committee when 
    Mrs. Elwood. Yes, consistent with the law.
    Chairman Burr. Do you agree to inform and fully brief to 
the fullest extent possible all members of this committee of 
intelligence activities and covert action, rather than only the 
Chair and the Vice Chair?
    Mrs. Elwood. Again, consistent with the law, yes, sir.
    Chairman Burr. Thank you very much. We'll now proceed to 
your opening statement, after which I'll recognize members by 
seniority for up to five minutes of questions.
    Mrs. Elwood, welcome and the floor is yours.
    Mrs. Elwood. Thank you. Chairman Burr, Vice Chairman 
Warner, members of the committee: It is an honor to appear 
before you as the nominee to be General Counsel of the Central 
Intelligence Agency. I want to thank President Trump and 
Director Pompeo for their trust and confidence in me.
    I also want to thank Senator Kaine for that nice 
introduction. It was a great privilege and pleasure to meet not 
just one, but both, of my home State Senators as part of this 
    I'd like to use this opportunity to tell you a little bit 
more about me and what I view as essential qualifications for a 
CIA General Counsel. I come from a national security family. As 
Senator Kaine alluded, my father devoted his life to the Marine 
Corps and to this country. He spent 36 years in uniform, seeing 
active combat in World War II, Korea, and Vietnam. There is 
little doubt that good intelligence kept him and his men alive 
during those years. He would later write about the remarkably 
good intelligence brought by bold foreign agents during his 
fight at the Chosin Reservoir.
    When dad returned home from Vietnam in 1971, he formed the 
Marine Corps' history division, which he led for 24 years. He 
was a prolific author of military histories and he supported 
the work of many other military historians. He did so because 
he believed that there were lessons to be learned from the 
great achievements and the mistakes of U.S. warfare, mistakes 
that future generations must not forget.
    My mother in her own way was no less brave and tough than 
her Marine husband. She overcame poverty and more than her 
share of life's adversities to have a career in the Foreign 
Service before she married and raised our family.
    The lessons around our kitchen table were about personal 
responsibility, honor and valor. We were taught to adhere to 
our principles even if it comes at great personal or 
professional sacrifice. We were taught there is a clear 
difference between right and wrong, and we heard stories about 
America's place in this world as a force for good.
    If my parents were alive today, they would take great pride 
in my being considered for this position. It is thanks to them 
that I believe I have some of the necessary qualifications.
    Chairman Burr has spoken eloquently of the first 
prerequisite, unwavering integrity. In addressing Director 
Pompeo's fitness for his position, Chairman Burr rightly 
observed that because the CIA is an agency that works in the 
shadows, it requires a leader to be unwavering in integrity, 
who will ensure that the organization operates lawfully, 
ethically, and morally. I believe the same holds true for its 
General Counsel.
    I hope and believe that people who know me well would tell 
you that I'm a person of integrity. I certainly have lived my 
life with that goal at the forefront of my mind.
    A second prerequisite for the job is independence. There 
have been many times in my life where it would have been easier 
to go along to get along or to be for what's going to happen, 
but I haven't done so. When the law or circumstances have 
required, I have told clients and superiors things they didn't 
want to hear. If I were not prepared to do the same in this 
position, I would not accept the challenge. And if confirmed 
for this position, I will tell the attorneys of the office that 
I expect the same from them.
    But these qualities, integrity and independence, are 
already embedded in the culture of the CIA. The intelligence 
community has placed among its core competencies for all senior 
officers, quote, ``the integrity and courage, moral, 
intellectual, and physical, to seek and speak the truth, to 
innovate and to change things for the better, regardless of 
personal or professional risk.'' It would be an honor to join a 
community that quietly lives those values and to work side by 
side with the dedicated and skilled professionals who have 
labored in anonymity to keep this country safe.
    Of course, an effective General Counsel of the CIA must 
also have strong legal skills. You have heard my background in 
this respect. I have had the privilege of many great teachers, 
mentors, and role models, more than I could possibly thank. But 
today one stands above the rest: Chief Justice William H. 
    The Chief showed us it was possible to adhere to your 
principles without alienating those who hold other views. A 
prime example is that Justice William Brennan considered the 
Chief to be his best friend on the Court. The Chief built warm 
personal relationships with all of his colleagues through his 
modesty and humor, by being unfailingly civil and fair, by 
focusing on points of agreement over disagreement, and by 
listening and making accommodations where possible. I have 
tried to follow his example in all aspects of my life.
    Finally, and with your indulgence, I'd like to take a 
moment again to recognize my constant and shining example of 
all the attributes I've mentioned today, my husband of more 
than 20 years, John Elwood.
    There are also two other people whom I'd like to mention 
and who are dearest to our hearts, our two wonderful children. 
I hope that 50 years from now they will look back on my service 
to this country with pride. So that I could give you my 
undivided attention, they have remained in school today.
    With that, I look forward to answering your questions.
    [The prepared statement of Mrs. Elwood follows:]
    Chairman Burr. Mrs. Elwood, thank you for that very fine 
statement, and I hope that the school is accommodating by 
letting your kids possibly watch this on TV.
    Mrs. Elwood, there's been much discussion about the role of 
the Central Intelligence Agency and how it played into the 
detention and interrogation of terrorism subjects as part of 
the RDI program. Those detention facilities operated by the CIA 
have long since been closed and President Obama officially 
ended the program seven years ago. I think the debate space on 
this subject has become confused and I'm certain that the law 
is now very clear.
    Here's my question: Do you agree that it would require a 
change in law for the CIA or any government agency to lawfully 
employ any interrogation techniques beyond those defined in the 
Army Field Manual?
    Mrs. Elwood. Yes, sir.
    Chairman Burr. The intelligence community is at its 
strongest when operating with the full confidence that its 
activities are legal, moral, and ethical, and thereby in line 
with the public's trust. I think it's also safe to say that 
increasing judicial and Congressional oversight only increases 
that public trust.
    Do you believe that President Bush's Terrorist Surveillance 
Program was strengthened when we brought it under FISA Court 
and Congressional oversight in 2007?
    Mrs. Elwood. Yes, Mr. Chairman, I agree. I believed at the 
time and I believe today that the legal foundation for what 
became known as the President's Terrorist Surveillance Program 
was strengthened by bringing it under the then existing FISA 
provisions and the review of the FISA Court.
    Chairman Burr. Great.
    Before I turn to the Vice Chairman, I'd like to make one 
final comment in lieu of a question. You noted in your opening 
statement that a second prerequisite to the job is 
independence. I and many of my colleagues would agree 
wholeheartedly with that statement. Being an independent voice 
is not always easy and you'll be asked repeatedly to speak 
truth to power when serving as the CIA's General Counsel. I 
think you've displayed in your career the ability to be 
independent and I'm confident that you will continue to do so 
at the CIA. Thank you.
    Mrs. Elwood. Thank you, Chairman.
    Chairman Burr. Vice Chairman.
    Vice Chairman Warner. Thank you, Mr. Chairman.
    Mrs. Elwood, again thank you for your very eloquent opening 
statement and our opportunity to visit. I'm going to revisit 
some of the things we talked about. Following up on the 
Chairman's comments about rendition and the fact that the law 
is very clear in terms of the fact that the Army Field Manual 
applies to CIA interrogations, one of the things that during 
the confirmation process of Director Pompeo, he committed to 
reviewing parts of the classified committee study on rendition 
and interrogation that are relevant. Will you likewise commit 
to reading and reviewing those parts of that classified study 
that are relevant to the office of the General Counsel?
    Mrs. Elwood. Yes, sir.
    Vice Chairman Warner. This committee is spending an awful 
lot of time, as you are aware and the press has made aware as 
well, on the Russia investigation. We have asked, the Chairman 
and I, and received in many ways unprecedented access and that 
has been the subject of some fairly extensive discussion. But 
the Chairman and I have worked through that with the Director 
of the CIA.
    But this is an ongoing process, so we're going to need 
additional information. My question is: Can you commit to 
ensuring that this committee will be provided with all the 
information requested pursuant to our ongoing Russia 
investigation, and that you yourself will do everything within 
your power to make sure that this is done, including by making 
available all necessary materials, intelligence reports, CIA 
cables, products, and other materials requested as promptly as 
possible; and finally, to ensure the CIA personnel be made 
available for interviews as requested by this committee?
    Mrs. Elwood. Yes, sir, consistent with the law, I do make 
that commitment. As we expressed in our private conversation, I 
view the work that the committee is doing as being vitally 
important, and I'd like to commend your leadership on that. As 
an American and as a Virginian, I was very pleased by the 
leadership that you and the Chairman have shown on the 
investigation. It is very serious work.
    Vice Chairman Warner. Well, this will go to the heart of 
again independence. There have been times with Director 
Pompeo--and I understand he has equities as well. But it is 
absolutely critical that we follow the intelligence wherever it 
leads. Again, we're going to need your help going forward.
    One other question I have--and I know fellow members of the 
committee have raised this at times. I think we may need a 
fresh look at the whole Gang of Eight and who's briefed on 
what, when they're not briefed, the timeliness of those 
briefings. Will you commit to making sure that those matters 
that are not involved in Gang of Eight covert action 
notification and other information regarding time-sensitive 
tactical matters, that you will commit to fully briefing the 
whole committee in as timely a manner as possible?
    Mrs. Elwood. Senator, I have heard in my private 
conversations with you and others the frustration that you feel 
or that other members of the committee feel when they don't get 
briefed in, and I do think that this is an opportunity at this 
time, with Director Pompeo and Director Coats having sat in the 
chairs that you sit in, to sort of revisit some of the 
practices of the past and to make sure that the full committees 
are briefed to the maximum extent possible consistent with 
obligations to protect the, in rare instances, exceptionally 
sensitive information.
    Vice Chairman Warner. I think the Chairman and I both would 
rather the committee hear all the information that we often 
have. So I think there have been times--and other members of 
this committee have brought this up--where under the frame of 
the Gang of Eight it becomes information that gets caught in 
that bucket and then never, at least so far, has been able to 
have been shared with other members. I think it is appropriate 
to have a fresh look at this issue.
    Mrs. Elwood. Yes, I certainly will follow the lead of 
Director Pompeo and Director Coats on this. I will note that 
Director Coats had commented that it's often a conversation 
with the leadership on when they extend the briefing to the 
full committee, that he works or in the past the Director has 
worked with the Chair and the Vice Chair on timing of extending 
    Vice Chairman Warner. The more we can get all the members 
read in on more activities, I think the better.
    Thank you, Mr. Chairman.
    Chairman Burr. Senator Blunt.
    Senator Blunt. Thank you, Mr. Chairman.
    Mrs. Elwood, it's good to have you here. I was appreciative 
of your testimony and your desire to follow in the public 
service commitments that both your mother and your father had, 
very much in line with when I asked you, when we had a chance 
to visit, why would you take this job? This is a hard job at a 
hard time, and it's good to have you step forward to do it.
    I've got several questions about, frankly, the Terrorist 
Surveillance Program and not very long to ask them. So if 
others want to further exhaust your answers, I'd ask you to 
keep these relatively brief. I notice in a number of questions 
you were asked to respond to it was about that program.
    Give me a sense: What were the jobs you had on 9/11 and 
then after, and then the rest of your service in the Bush 
    Mrs. Elwood. Leading up to 9/11, nobody, obviously, was 
anticipating, at least not at my level. My role in the 
Associate Counsel's Office had nothing to do with national 
security, frankly. But we all became sort of focused on 
national security. We were in the White House on September 11th 
and immediately thereafter I and a couple members of my office 
were sent to the Senate and to the House to negotiate the 
Patriot Act.
    Senator Blunt. Were you working then for the Justice 
Department or the Vice President?
    Mrs. Elwood. On September 11th I was working for the--I was 
Associate Counsel to the President, so I was in the Office of 
the President. And I stayed in that position until May 2002, 
when we had our first child. I returned to government service 
in January or February of 2003. I think it was January of 2003, 
to the Office of the Vice President, where I stayed until the 
beginning of
    Senator Blunt. And then you were where?
    Mrs. Elwood. Then I went with Judge Gonzales to the 
Attorney General's front office.
    Senator Blunt. And your job there was what?
    Mrs. Elwood. I was Deputy Chief of Staff and Counselor to 
the Attorney General. As any staffer in your offices would tell 
you, it changes by the day, but by and large my portfolio fell 
under the Associate Attorney General's portfolio, so it would 
be those components that fall in the Department of Justice 
under the Associate Attorney General, the Civil Division. In 
addition, I would monitor the Office of Legal Counsel, the 
Office of the Solicitor General, the Office of Legal Policy, 
among others.
    Senator Blunt. What would you have known in that job or 
what did you know about the Terrorist Surveillance Program?
    Mrs. Elwood. Senator, I learned--my work on--I learned and 
my work on the Terrorist Surveillance Program began in December 
of 2005, when the President publicly disclosed that aspect of 
the President's surveillance program.
    Senator Blunt. To the best of your knowledge, were you 
aware of it before that?
    Mrs. Elwood. No, sir.
    Senator Blunt. Did you have a reason to have a reaction at 
the time to the critics of the program, critics like David 
Kris, who is a former Assistant Attorney General for National 
    Mrs. Elwood. Interestingly enough, David and I are old 
friends and have known each other forever, and once he heard 
about it he kind of asked me, ``So what are the legal 
authorities that support this?'' And we had a conversation. I 
was aware of the public statements about the legal authorities 
supporting the program and we had a conversation and some 
communications about it, and ultimately he did not agree with 
all of the reasoning, but he recognized that, as I did, that 
these are complex issues on which reasonable people could 
    Senator Blunt. It would be fair to characterize him as a 
public critic of the program, wouldn't it?
    Mrs. Elwood. Yes, sir.
    Senator Blunt. I notice he's one of the people recommending 
you for this job?
    Mrs. Elwood. Yes, sir. He very kindly sent a letter of 
support and actually organized a letter of support on my 
    Senator Blunt. Are there other people who were critics of 
that program who are included on that list?
    Mrs. Elwood. I am quite confident that there are people 
that have signed the letter of support who did not think many 
of the things that occurred in the Bush Administration would be 
things that they would agree with. But I don't know of any 
others who have publicly stated.
    Senator Blunt. How do you think that experience of the 
Terrorist Surveillance Program and what happened when there was 
a disagreement, how do you think that would impact the way you 
would serve in this job?
    Mrs. Elwood. That's a very interesting question. I think 
that my experience with respect to that important program and 
how it was handled initially and then through the reexamination 
of the legality of the program in 2004, we hope we learned from 
how things were handled initially and the intense secrecy 
around the program, even within the Executive Branch. I believe 
I would be more prepared or would be able to better advise the 
Director on how to ensure that programs that would necessarily 
be secret, if they should be disclosed are thoroughly thought 
through and recognizing that in some instances you'll have to 
publicly justify how decisions are made on the front end on and 
on the back end.
    Senator Blunt. Thank you, Mr. Chairman.
    Chairman Burr. Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    I just want to begin by saying I was really very pleased to 
meet you, have an opportunity to speak with you, and I very 
much respect your experience and your intellect. I'm going to 
put the question that the Chairman asked you in a slightly, 
well, harsher view, but I think it's a real view. During his 
campaign, President-elect Trump publicly called for U.S. forces 
to use torture in the war on terror. He said he'd re-institute 
waterboarding, which he called a minor form of torture, and 
bring back, quote, ``a hell of a lot worse than 
    Now, this brought a lot of condemnation from our allies and 
our own intelligence and security professionals who did not 
believe that these President EITs were effective in producing 
operational intelligence. Director Pompeo said at one point 
early on that he would support the return of waterboarding. 
Gina Haspel said that she would. When I talked with both of 
them and asked hard questions, they had made very strong 
statements against it both in writing and before this 
    So let me ask you the same question I asked Director Pompeo 
in his confirmation hearing. If you were ordered by the 
President--excuse me. If the CIA were ordered by the President 
to restart the CIA's use of enhanced interrogation techniques 
that fall outside the Army Field Manual, would you do--what 
would you do? What would you do as General Counsel?
    Mrs. Elwood. I absolutely would not follow that order.
    Senator Feinstein. But what would you do?
    Mrs. Elwood. I would inform the President that that would 
be a violation of the law and I would ensure that the--I am 
confident that the Director would also impress upon the 
President that that would be an unlawful act.
    Senator Feinstein. So I would specifically take it as your 
responsibility as General Counsel to do so?
    Mrs. Elwood. Absolutely.
    Senator Feinstein. Okay, thank you.
    In your prehearing question you were asked, do you support 
the standards for detainee treatment specified in the Revised 
Army Field Manual on Interrogation, as required by Section 1045 
of the National Defense Authorization Act for FY16? Could you 
please here under oath reaffirm your commitment to fully comply 
with all governing interrogations, including the legal bar on 
the use of any interrogation method not listed in the Army 
Field Manual?
    Mrs. Elwood. Senator Feinstein, I commit not only to 
ensuring that the CIA complies with the letter, but also the 
spirit of that law.
    Senator Feinstein. Okay. Thank you. That's good.
    You informed me earlier this week that you had read the 
full 500-page declassified executive summary of the Senate 
Intelligence Committee's study on the CIA's detention and 
interrogation program. While some may continue to have 
differences of opinion, the Senate report is fact-based on 
documents, cables, emails, and to the best of my reading 
nothing in the report has been refuted.
    I think I mentioned to you, if the CIA had a problem with 
any of it we looked at that, we made some changes where we felt 
the CIA was correct, and where we felt they were wrong we so 
noted it. But their view is in that report.
    The full report is more than 6,700 pages, with nearly 
38,000 footnotes. I believe it's time to acknowledge truthfully 
what was done and then move forward with strength and resolve 
to make sure that a program like this never happens again. 
Would you commit to this committee that you will read the 
classified version of the report's findings and conclusions if 
confirmed as General Counsel?
    Mrs. Elwood. Yes, Senator Feinstein. I'd be particularly 
interested in the parts of the report that address the General 
Counsel's Office.
    Senator Feinstein. Thank you, but that's just a small part 
of the report.
    Mrs. Elwood. I'll commit to the whole thing, but those are 
where my--that would be where my focus is.
    Senator Feinstein. It's a long lead, but if you look at 
things like where the Agency has detailed 25 cases where they 
believed it was responsible for their apprehension, the report 
classified version details where the information actually came 
from that led to that.
    I think--I feel very strongly that the time is coming for 
this report to be declassified, that it should not be hidden, 
that people in government ought to read it, people in areas of 
responsibility ought to read it, and to shy away from it, 
because it is an official document now, I think is a mistake. 
As you know, President Obama did put it in his library, so at 
least it's perpetuated there.
    Second question, use of contractors. This is one of the 
things that I have been most concerned with, not the least--it 
wasn't lost on me the three big cases where materials 
disappeared and security was broken were done by contractors, 
including the largest one ever, Edward Snowden, and more 
recently Hal Martin. Previously when I was Chairman I worked 
with Director Panetta and he had agreed to a decrease of a 
certain percent every year in the number of contractors, and 
the number of contractors has gone down.
    Government contractors are only supposed to be used if they 
are performing tasks that are not an inherent governmental 
function. So intelligence collection clearly is inherently 
governmental as a function, and I think that we need to 
continue to reduce the number of contractors.
    The question I have for you is: Do you agree that 
intelligence work is clearly an inherently governmental 
    Mrs. Elwood. Senator Feinstein, you raise an excellent 
point. It does sound like a core government function to me, and 
I think you raise a very important issue with respect to the 
use of contractors.
    Senator Feinstein. Thank you. I agree with that.
    My time has expired. Thank you, Mr. Chairman.
    Chairman Burr. Senator Cornyn.
    Senator Cornyn. Mrs. Elwood, welcome and congratulations to 
you and your family on this tremendous honor.
    I would--I know you've been asked about the Russia 
investigation by Senator Warner and I would just suggest that 
the same challenge that you and Director Pompeo will face and 
the importance of your integrity, your resilience, and your 
courage in withstanding outside pressure, the same sorts of 
characteristics I think are going to need to be demonstrated by 
this committee to maintain the bipartisan leadership that 
Chairman Burr and Senator Warner have provided, because there's 
going to be an awful lot of people who are going to try to 
influence this committee and get us off track. So the same 
challenges to our integrity, resilience, and courage to resist 
pressure from outside groups you'll be having to demonstrate, 
we will as well.
    I wonder--you've been asked a lot about post-9/11 
interrogation and other practices. It really is kind of amazing 
to me that here we are 16 years after 9/11, the Chairman 
mentioned 7 years, I think, since some of the practices that 
have been asked about have long since ended, where we continue 
to revisit these decisions which were made, I think, consistent 
with the appropriate legal authority at the time.
    I'm very troubled by the idea that you as the General 
Counsel and the lawyers in the administration will be telling 
intelligence officers you can do this, you can't do that and 
if, consistent with legal authority that you identify, they do 
something, later on they're going to be criticized, perhaps for 
political or other reasons, for doing what is legally 
    So can you tell us, who is the final legal authority on the 
scope of activities of the Central Intelligence Agency?
    Mrs. Elwood. Ultimately, under longstanding eighteenth 
century precedent the Attorney General is the ultimate 
determiner of the scope of legal authorities of a government 
    Senator Cornyn. And that's because these cases don't go to 
court typically, right?
    Mrs. Elwood. Generally not.
    Senator Cornyn. There are of course exceptions, the Hamdan 
case and others, where there is the Supreme Court. But I think 
this is an area where people are somewhat confused. They think 
that this is black letter law and often it's a matter of legal 
opinion by the Office of Legal Counsel at the Attorney 
General's Office.
    Mrs. Elwood. Yes, sir, Senator. As I was alluding to in my 
conversations with David Kris, on many of these complex issues 
there is a range of reasonable interpretations and the 
Department of Justice or the lawyers being asked to provide an 
opinion give their best reading of the law, but it doesn't mean 
that there can't be another interpretation that is reasonable. 
But the Department of Justice ultimately gives its best reading 
of the law.
    Senator Cornyn. And just because somebody disagrees with 
the legal opinion doesn't mean that the authorities that you've 
identified or that other lawyers in the administration identify 
as conferring that authority, it doesn't mean that's wrong 
either, does it?
    Mrs. Elwood. That's true, yes, sir.
    Senator Cornyn. So I think this is--this is a real problem 
for the intelligence community, because, as I mentioned during 
Director Pompeo's confirmation hearing, I like General Hayden's 
book and concept of playing to the edge, but you're going to be 
the one that draws that line of demarcation and identifies 
where that edge is. And if intelligence officers play to the 
edge in order to maintain our national security here in the 
United States, I don't want them to be criticized later on or 
taken to court, publicly humiliated, or even forced to buy 
liability insurance for doing their job.
    Mrs. Elwood. Yes, Senator. As part of this process, in 
preparation for it, I reviewed the transcripts of some people 
who were nominated to this position, and I noted that some of 
the Senators were stressing the importance that the lawyers go 
to the legal limits. So back not that many years ago, the 
lawyers were being criticized for being too conservative.
    Senator Cornyn. Well, post-9/11 we didn't know as a Nation, 
certainly didn't know as a government, whether there were going 
to be follow-on attacks. So you were under a tremendous--or the 
Agency and our intelligence officials were under tremendous 
pressure by members of Congress and others to go as far as you 
legally could, correct?
    Mrs. Elwood. Yes, sir, absolutely.
    Senator Cornyn. And I guess it's just human nature that in 
the safety and security and after the passage of years, when we 
don't feel these imminent threats, then we somehow decide, 
well, maybe we didn't have to go as far as we did.
    Well, I appreciate your answers to the questions and I, 
too, believe that you're eminently qualified for this position. 
Thank you for your willingness to take it on. Thanks to your 
family for their support.
    Mrs. Elwood. Thank you, Senator Cornyn.
    Chairman Burr. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    Mrs. Elwood, thank you for our meeting as well. I join my 
colleagues in appreciating that.
    During his confirmation process, I asked Director Pompeo 
about what he considered to be the boundaries that apply to the 
surveillance of Americans. He said those boundaries are set by 
law. You are the nominee to be the General Counsel who, if 
confirmed, would advise the Director of those boundaries. 
Because the advice is classified and may not even be known to 
the committee, it's critical that we get a sense of your views 
on the law prior to voting.
    So to me one of the most important legal matters facing the 
Agency is how it should handle large amounts of information on 
Americans who are not suspected of anything. I also asked 
Director Pompeo about this. He said he would consult with a 
lawyer and, so to speak, now the committee gets to ask the 
    You have written that the Attorney General Guidelines 
governing collection on 12333 would impose--and I quote here--
``stringent and detailed restrictions on big batches of 
information that include information on Americans.'' I read the 
guidelines differently. The CIA can actually conduct searches 
of those batches looking for Americans--looking for information 
on Americans.
    So my question to you deals with the statement you gave us. 
What stringent restrictions specifically are you talking about?
    Mrs. Elwood. Senator, as you know, the Attorney General 
Guidelines are publicly available and they were recently 
revised. They are public. They're not a secret.
    Senator Wyden. I want to know what you consider to be 
stringent restrictions.
    Mrs. Elwood. There are numerous restrictions. It depends 
upon the particular information at issue. So there are, 
obviously, less stringent use and retention requirements with 
respect to publicly available information. But even there, if 
it's U.S. person information, still the CIA's use of it is 
restricted. Then there is--it's a 30-page single-spaced 
document providing a framework----
    Senator Wyden. Give me an example? Because the way I read 
it, none of this changes the fact that the Agency can conduct 
searches looking for information on law-abiding Americans where 
there is no requirement that they're suspected of anything. So 
I'd just like to hear you tell me, since you stated it in 
writing, what stringent restrictions would protect that law-
abiding American?
    Mrs. Elwood. Well, for example, Senator, before certain 
information is queried it has to--the standard that is applied 
would restrict--it is not simply--they can't go and query 
anything they want. It has to be for, necessary to an 
authorized activity, so for the purpose of an authorized 
activity, and no further query with respect to publicly 
available information, can't go any further than the necessary 
extent to further that purpose.
    Now, with respect to different categories of information 
that are collected under different authorities, 702 has a 
different query standard, as you know, than a bulk collection 
of information collected under 12333. And I don't want to give 
the inarticulate--I don't want to be inarticulate about the 
standards. I want to be precise. And they are spelled out in a 
public document.
    Senator Wyden. None of this--and I'll hold the record open 
for this. I'd like to just have you give me some concrete 
examples of----
    Mrs. Elwood. I'm happy to do that.
    Senator Wyden. But the point is the answer we've gotten 
this morning is none of what you have said changes the fact 
that the Agency can conduct searches looking for information on 
law-abiding Americans where there is no requirement that 
they're suspected of anything.
    Mrs. Elwood. Senator, there has to be a link to an 
authorized activity of the CIA at a bare minimum, even to 
search publicly available information. There are more stringent 
requirements with respect to collections depending upon the 
type of information involved. So I don't agree with you that 
there's no restraint on it.
    Senator Wyden. You get me the example of the stringent 
    Let me see if I can get one other question in very quickly. 
The Agency spied on the committee in 2014, searching our 
computers. They turned around and filed a crimes report with 
the Department of Justice against committee staffers. The 
Inspector General found there was no basis for the crimes 
report and it was based solely on inaccurate information 
provided by two attorneys from the CIA's Office of General 
    You, if confirmed, would be supervising those attorneys. Do 
you think there ought to be any accountability?
    Mrs. Elwood. Senator, I understand there was an 
accountability board convened that looked at that issue 
    Senator Wyden. So----
    Mrs. Elwood [continuing]. And exonerated the lawyers 
    Senator Wyden. But do you believe, you, do you believe 
there should be any accountability when those lawyers, who 
would be under your supervision, provide inaccurate 
    Mrs. Elwood. Senator, I understand there was already an 
independent accountability board----
    Senator Wyden. I'm not talking about the past thing. I want 
to hear about what you'd do going forward, inaccurate 
    Mrs. Elwood. Going forward, if there was a situation like 
that to arise again and if the facts presented themselves in a 
situation where the lawyers had not done something properly, 
absolutely I would insist on accountability and proceed 
accordingly. But that's going forward. I'm not revisiting the 
    Senator Wyden. Thank you, Mr. Chairman.
    Chairman Burr. Senator Heinrich.
    Senator Heinrich. Thank you Mr. Chairman.
    Thank you for joining us today, Mrs. Elwood. In reviewing 
your responses to committee questions, there was one theme that 
concerned me across your responses, and it's that you 
repeatedly repeat some very similar verbiage. I want to get 
this right, but you said at one point that you have not, quote, 
``had personal experience with,'' end quote, issues raised by 
the committee. You, quote, ``have not previously had the 
opportunity to consider,'' end quote, issues raised by the 
committee; and that you have not--or that you have, quote, 
``not done the legal and factual research that would be 
required to properly answer,'' end quote, important questions 
such as whether the CIA's former enhanced interrogation 
techniques are consistent with the Detainee Treatment Act.
    As you know, in this role you will be the principal legal 
adviser to the CIA Director, and you will be responsible for 
overseeing the CIA's Office of General Counsel. If confirmed, I 
hope that your lack of exposure to the important national 
security issues that we've raised will not encumber your 
ability to provide thorough, accurate, and effective legal 
advice to the CIA from day one.
    So I want to go from here--since you didn't express strong 
opinions on some very specific questions that the committee has 
asked, I'd like to focus more broadly on the scope of 
authorities granted by covert action authorizations and by 
presidential memorandums of notification. As I'm sure you know, 
these authorizations spell out the strategic goals and approved 
activities of individual covert actions.
    Is it your view that the authorized covert actions of the 
CIA are bound by the text of those authorities and that the CIA 
may not read into those authorities activities that are not 
explicitly approved within there?
    Mrs. Elwood. Senator, I assume that there is vigorous 
oversight by the General Counsel's Office to ensure that the 
findings are written carefully and that the activities 
undertaken under the findings are consistent with the findings. 
Does that answer your question?
    Senator Heinrich. What I'm saying is that it is my 
interpretation that those activities have to be explicitly 
authorized within either a covert action authorization or a 
presidential memorandum of notification. So is it your view 
that the authorized covert activities of the Agency are bound 
by the text of those authorities in terms of explicitly 
authorizing activities, or can the Agency just read into those 
    Mrs. Elwood. I would interpret it as a statute, which is 
that it would not necessarily have to be explicit, that every 
potential action be explicitly stated in the findings, but that 
it would have to be a proper interpretation of the findings.
    Senator Heinrich. I'll give you an example that concerns 
me. The September 17, 2001, memorandum of notification that 
authorized the CIA capture and detention program, for example, 
made no reference to interrogations or to coercive 
interrogation techniques, yet it was repeatedly cited by the 
Agency as the foundational authorization for that interrogation 
program. So just putting aside the bigger issues of whether the 
interrogation techniques themselves were in violation of any 
laws or treaty obligations, based on the lack of explicit 
authorization for those techniques in the MoN, do you believe 
that the use of those techniques was consistent with the 
approved authorities as written?
    Mrs. Elwood. Senator, I have neither looked at that 
particular MoN nor do I know anything beyond the executive 
summary of the Senate study to answer that question 
specifically. But I believe that it is fair reading of the--
nobody has raised that that was not a fair reading of the 
    Senator Heinrich. Well, I'm raising it.
    Mrs. Elwood. Right.
    Senator Heinrich. So whether or not you've reviewed it 
isn't relevant to my underlying concern. When the committee 
receives a covert action finding or a MoN, we need to be 
confident that the Agency is not exceeding its approved 
authority. So if you can't give us your view on the proper 
scope of covert action authorities as a basic principle, it's 
difficult for me to be confident that under your legal guidance 
the Agency won't engage in activities that go beyond that legal 
    Mrs. Elwood. It is a common practice in my 20 years of 
legal experience and also my experience as a clerk to have a 
statute or a rule of law provided, and you're not going to have 
a statute describe every possible activity to fall within the 
scope of the statute. But there could be a fair reading of the 
statute that would put things within the statute or without the 
    I would envision the same sort of legal analysis, legal 
analysis that I've been doing for more than 20 years, would 
apply in the context of a memorandum of notification.
    Senator Heinrich. I'm going to yield back my time. I have 
exceeded it. We're going to go to Senator King of Maine since 
we're the only----
    Senator Cornyn [presiding]. Since I'm the acting Chair, 
Senator King.
    Senator Heinrich. Thank you. I didn't see you over there, 
Senator Cornyn.
    Senator King. Thank you.
    Mrs. Elwood, thank you very much. Welcome to the committee.
    You started your introductory by talking about your dad's 
experience with military history and I want to commend to my 
colleagues I'm in the middle of H.R. McMaster's book about 
Vietnam, ``Dereliction of Duty,'' which I find an extraordinary 
document with really important insights. I have to mention--
you've given me an opportunity to mention what I think is a 
very important book that should be read by everybody, everyone 
up here.
    Mrs. Elwood. Yes, sir. I understand that's now being taught 
in the officers' training course.
    Senator King. I hope General McMaster is also rereading it 
himself, given his new position.
    In your answer to I think it was Chairman Burr's, one of 
his opening questions, you said that you thought the 2007 law 
strengthened the legal basis for the Terrorist Surveillance 
Program. That implies--does that imply that you believe that 
there was a legal basis for it? In other words, does the 
President have inherent Article II power to do warrantless 
surveillance of U.S. citizens?
    Mrs. Elwood. Senator, the legal authorities underpinning 
the Terrorist Surveillance Program, as described in the public 
white paper I reviewed and then in the much longer, then-
classified but largely declassified, opinion of OLC, did not 
rest entirely on the President's Article II authorities, but 
also rested first on the authorities provided by the AUMF.
    Senator King. The 2001 AUMF?
    Mrs. Elwood. Yes, sir.
    Senator King. Let's exclude that for a moment. Do you 
believe that the President has inherent authority under the 
Commander-in-Chief provision of Article II to order warrantless 
surveillance of American citizens, of American persons?
    Mrs. Elwood. Under existing law, absolutely not.
    Senator King. Thank you. And that gets to a more subtle 
question along these lines, which is reverse targeting under 
FISA. As I understand the way FISA is now interpreted, you can 
surveil foreign persons and there is incidental--there may be 
so-called ``incidental-pickup''----
    Mrs. Elwood. Collection.
    Senator King [continuing]. Collection on American persons. 
The question then is, does it take further interaction with the 
FISA Court in order to query the data that involves the U.S. 
    Mrs. Elwood. The FISA Court, as you know, sets out the 
parameters, sets out the framework for that type of querying, 
and then subsequently does not revisit it any time an 
individual query wants to be taking place. However----
    Senator King. But you see my question. The question is 
reverse targeting.
    Mrs. Elwood. Yes.
    Senator King. You can be going after a foreign person, you 
pick up an American person and that becomes the focus of the 
    Mrs. Elwood. Well, reverse targeting is prohibited 
    Senator King. And you don't believe that that is a 
potential issue or problem because of that express prohibition?
    Mrs. Elwood. I don't, Senator, because I think that reverse 
targeting is with the intention of actually picking up a U.S. 
citizen's or a U.S. person's communication, by creating the fig 
leaf by targeting somebody at the side that they know they're 
going to be communicating with.
    What we're talking about with respect to incidental 
collection is just that, incidental. Those queries that are 
conducted with incidental, there's multiple layers of 
oversight, the first being the one we discussed with the FISA 
Court setting the parameters for those.
    Senator King. My understanding is the government has taken 
the position in the recent past under the prior administration 
that once that data is in the database then they can query 
about the U.S. person without further approval of anyone.
    Mrs. Elwood. No, not--well, without going back to the FISA 
Court. It would be--I think Director Brennan and perhaps 
Director Clapper as well said that that would be a big mistake, 
to require going back to the court again each time there needed 
to be a query of the--and we're talking here about 702 
collection. But there are multiple, multiple lawyers of 
oversight, including by the Department of Justice, the Office 
of the DNI in the Executive Branch. There is also----
    Senator King. All that oversight you just enunciated is all 
within the Executive Branch. I like having an independent 
    Mrs. Elwood. Right.
    Senator King [continuing]. Called a court have a role in 
    Mrs. Elwood. Well, having a court do it in every warrant, 
or a warrant or an order on every one of those, would mean that 
far fewer of them are done. It could seriously hamper the 
operational impact. I'm looking forward to, if confirmed, 
getting an opportunity to see how these are implemented----
    Senator King. But you have to understand that this is a 
bootstrap operation, where you are in fact talking about the 
authorization of a warrantless examination of a U.S. person's 
    Mrs. Elwood. If I might add, sir, there is more than just--
there is an independent bipartisan board that also oversees 
these queries and has looked at it thoroughly and determined 
there was not a trace--that was their words--``no trace of 
illegitimate activity'' with respect to these sorts of queries.
    So it is layer upon layer upon layer already of existing 
oversight. And you're right that you don't have to go back to 
the FISA Court each time you want to query, but the FISA Court 
is involved in setting up the procedures from the front end and 
there are multiple lawyers of oversight on the back end. And 
while it may seem that the fox is guarding the henhouse, it's 
not. This is serious oversight by the ODNI and by the 
Department of Justice, checking every single query every 60 
    Senator King. I'm sure we'll have further discussion on 
this. I understand your position and appreciate it. I still 
remain somewhat concerned that you end up with a trove of data 
that involves American citizens, that can then be queried 
without further intervention by the court, which to me is the 
essence of the Fourth Amendment.
    But we can follow up.
    Mrs. Elwood. Absolutely. If I'm confirmed, I would really 
look forward to that discussion.
    Senator King. Thank you.
    Senator Cornyn. Senator Lankford.
    Senator Lankford. Thank you. It was good to get a chance to 
visit with you again. I appreciate it. I hope this has been 
helpful in getting information out, things that you're 
passionate about.
    I always like to be able to remind people that for the 
folks that serve with the CIA, they don't wear uniforms, they 
serve all around the world, they don't get parades, they don't 
get recognition, no one sees them at restaurant and buys their 
meal to say thank you, because no one knows who they are.
    But would you pass on as you encounter these folks our 
    Mrs. Elwood. Absolutely.
    Senator Lankford. As we try to do face to face as well. Any 
time I'm in Langley and I walk down the halls, I see people 
that are walking around the halls, they're thinking about 
tucking their kids in at night and they're thinking about all 
these critical things, but they're also counting on having a 
really good counsel, because they deal with really hard issues, 
and they need great advice and sometimes they need it really 
    Mrs. Elwood. Thank you, Senator. You make a very valuable 
point about these men and women who labor in anonymity to keep 
this country safe.
    Senator Lankford. Well, grateful to be able to have you 
engaged. You've got a tremendous background in dealing with a 
lot of these hard legal issues. You've been around a lot of 
these hard conversations and been through it. So we're glad to 
be able to have someone that can engage in that.
    I need to ask you one that your predecessor has also said 
is hard. Recently, in fact this week, Caroline Krass, who is 
the person you'd be replacing, had a speech and in her speech 
at Georgetown University Law School, of all the issues that 
she's dealt with, she listed this. She said: ``I think the 
hardest legal questions were those that surround cyber. It's an 
evolving area of the law, trying to determine answers to 
questions like what constitutes a use of force, where are the 
measures to combat such a use of force.''
    They're really difficult issues and they're issues that 
we're struggling with on this committee. They're issues that 
this committee and other committees have complained about 
bitterly to the Administration, to say there seems to be no 
cyber doctrine, and we're well behind the curve on dealing with 
a clear cyber doctrine issue. This is going to be an area we're 
going to have to write a new statute, but it's also an area 
you're going to have to interpret a lot of the issues.
    So my question to you is a more general one than just 
trying to drive down into it. Will you be a part of helping 
craft a cyber doctrine and will you be willing to interact with 
this committee to say, this is an area that is too gray, I'm 
going to have to make a decision that puts the people at the 
CIA too vulnerable, we need a statute to clarify this and to be 
able to help us through that process so that we don't put the 
good people at the CIA at risk in the future, but that we also 
don't make everyone second-guess what can and can't be done?
    Mrs. Elwood. Senator, you raise a very, very important 
issue, and I would be delighted, if confirmed, to work with you 
on that. That's an issue that other members have raised with me 
in our conversations as well. And I certainly respect Caroline 
Krass, who is a long-time friend. We went to law school 
together and she has been an adviser through this process, and 
I will look forward to working with her in the future to 
continue to advise me should I be confirmed in this role.
    Senator Lankford. This is one of those ongoing issues. As 
you go through this process, when you get to that spot, just 
know this committee is thinking about cyber doctrine a lot and 
how we can actually get that established, how we work agency to 
agency, how we work through the whole of the United States 
Government on that, and what is needed legislatively to be able 
to help provide clarity on that. We look forward to that type 
of cooperation and direction we're going to go.
    Tell me as well--we've talked a lot about protecting the 
American people. That's the other side of this. The folks that 
work at the CIA are counting on having a really good counsel. 
The American people are also counting on having a really good 
lawyer in the middle of it that's able to push back and to be 
able to say, no, that is something that violates constitutional 
rights and freedoms.
    You are in many ways the first line of that accountability. 
Though there's good follow-up, there's good tracking of it, and 
there's good oversight through the process, the first line of 
that would be you. So there are a couple of things that we 
need, that I need to just be able to hear quickly from you. One 
is that you understand that you're not only the CIA's lawyer, 
but you're the first line of defense for the American people in 
protecting their constitutional rights. The second part of that 
is protecting sources and methods worldwide that are also 
essential for their security and for national security as well.
    Mrs. Elwood. Yes, Senator. The client of the General 
Counsel of the CIA is the Agency as an institution and 
ultimately the United States, and it is important for the 
Agency to use the intelligence-gathering tools that Congress 
has provided, but they must do so lawfully, protecting the 
privacy rights and civil liberties of all Americans.
    Senator Lankford. Thank you, Mr. Chairman. I yield back.
    Chairman Burr [presiding]. Senator Harris.
    Senator Harris. Following up on Senator Lankford's 
question, when the CIA is considering doing something of 
dubious legal authority and the Director and the men and women 
of the CIA look to you for guidance, I know, and you've 
actually stated, the American people generally have a right to 
make sure that this Agency is following the law, but the 
American people generally will have no ability or visibility 
into the process by which you counsel your client, the Agency.
    So the question that I have for you is: How will you engage 
this committee to ensure that there is oversight of this 
significant, but often secret, legal guidance that you will 
give the Agency?
    Mrs. Elwood. Two points that I'd like to make in response 
to that, Senator Harris. The first is I will obviously provide 
the Director and the men and women of the Agency with my sound 
legal advice, but I will also provide them with my judgment. 
Sometimes things are legal, as you know, but unwise.
    Then, with respect to ensuring that this committee is 
aware, I have a legal obligation, as you know, under the 
National Security Act to make sure that this committee is 
informed of the legal basis that underpins any of the CIA's 
intelligence activities, and I would fully and timely provide 
that legal advice and legal basis.
    Senator Harris. How would you propose to do that? For 
example, would this be through a Congressional notification? Or 
how can we as a committee expect that you will reach out to us 
and notify and inform us of those decisions?
    Mrs. Elwood. There are a couple of different things. One is 
any time the committee requests information with respect to the 
legal basis, I have an obligation to respond. Then, secondly, 
there is a new provision within the National Security Act that 
requires a notification to the committee of any sort of novel 
or significant new legal interpretations under the law, and I 
would obviously comply with that as well.
    Senator Harris. Let's talk a bit about what we--I'd like to 
hear about your interpretation of what becomes significant. In 
your questions for the record you mentioned that and indicated 
that you would give timely and complete information about the 
Agency's significant intelligence activities and failures, 
subject to the limitations around protecting tradecraft and 
other sensitive information.
    Based on your experience, what circumstances would be 
considered significant and who would make the determination of 
    Mrs. Elwood. Senator Harris, that's an excellent question 
and I actually have not had firsthand experience with what is 
significant and what falls under significant. I obviously would 
look to past practice as well as, frankly, some common sense in 
determining whether something rises to the level of 
    Now, I know from just conversations I have had with 
Congressional affairs, and also reading about it in the history 
about it, the amount of notifications that this committee gets 
is extraordinary, multiple a day. So I assume from that that 
the threshold is fairly low on what is significant, but I don't 
have any additional information to provide with respect to how 
I would define that.
    Senator Harris. What character of, for example, let's talk 
about the Russia investigation. Would you agree that any 
information or developments as it relates to Russia's role in 
the 2016 election would be considered significant?
    Mrs. Elwood. If something was new that the CIA had 
information about, I would imagine that would rise to the level 
of significant.
    Senator Harris. Well, they've already done it. The election 
is past. So it would not be new in terms of conduct.
    Mrs. Elwood. New information.
    Senator Harris. So you're saying that if there's any 
information, if it is not new you would not consider that 
significant in terms of sharing that with this committee?
    Mrs. Elwood. Well, if it had already been shared, if it was 
just redundant. But I would examine it, obviously, on a case by 
case basis and based upon how the office has been doing it for 
many, many years and be consistent with that.
    Senator Harris. Are you willing to commit to this committee 
that if you come across information that relates to that 
incident of Russia tampering with the 2016 election and if you 
become aware that that information has not been shared with 
this committee, that you will share it with this committee 
because it is significant?
    Mrs. Elwood. I have no reason to think that it would not 
rise--that it would be insignificant. It sounds like something 
that would be significant, given the work that this committee 
is doing on that investigation.
    Senator Harris. And that means yes?
    Mrs. Elwood. Sounds like it.
    Senator Harris. I'm going to hold you to that. I'm 
interpreting that as a yes. It sounds like the committee is as 
well. So thank you for that.
    The role of the General Counsel is obviously to provide 
legal advice to the Agency and the Director. Do you agree that 
the role of General Counsel requires providing an unbiased 
legal position on all matters relating to the CIA free from 
political considerations?
    Mrs. Elwood. Absolutely.
    Senator Harris. And if confirmed, will you provide legal 
guidance even if it ran counter to the Administration's policy 
or statements during the campaign or afterwards?
    Mrs. Elwood. Absolutely, Senator.
    Senator Harris. Thank you.
    Chairman Burr. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    First let me say, Mrs. Elwood, that I very much appreciated 
the office meeting that we had, in which we went over many of 
the issues that have been raised here today, and I believe that 
you appear to have an extraordinary background for this very 
important post.
    I do want to get on the record a couple of issues that we 
discussed in my office. One is I referred to the fact that John 
Rizzo, CIA's General Counsel during the Agency's enhanced 
interrogation program, wrote in his autobiography that it was a 
big mistake that all members of the Intelligence Committees 
were not briefed on the program until 2006, which was four 
years after the program began. And indeed, the existence of the 
program for a time was concealed even from the Secretary of 
Defense and the Secretary of State.
    Do you agree with his view that it was a mistake for 
Congress not to have been briefed on this program? The 
Intelligence Committees, I should say.
    Mrs. Elwood. In a more timely way, yes, should have been 
briefed in a more timely way, the full committee.
    Senator Collins. Second, I want to follow up on an issue 
that several members have mentioned--Senator Lankford, Senator 
Harris, but in a more direct way. That is, in the private 
sector when you are counsel to a corporate entity, for example, 
it's very clear where your loyalties lie and who your client 
is. I want to talk to you just a little bit more to flesh out 
what you've already been asked, by asking you, what is your 
understanding of who would be your primary client as General 
Counsel of the CIA?
    Mrs. Elwood. It's a very good question, an important one 
for all of us government lawyers, if I become one again, to 
remember. The client for the General Counsel of the CIA is the 
Agency as an institution and ultimately the United States. Now, 
casually we think of the Director or the men and women at an 
agency as being the CIA's client. That is only true in their 
official capacities. If their interests diverge with that of 
the Agency, that CIA lawyer can no longer represent them.
    I remember very well when I was in the counsel's office 
thinking often and being reminded often that we did not 
represent the President, we represented the Office of the 
    Senator Collins. Thank you very much.
    Thank you, Mr. Chairman.
    Chairman Burr. Senator Cotton.
    Senator Cotton. Thank you.
    Mrs. Elwood, congratulations on your well-deserved 
nomination. I want to speak briefly about Presidential Policy 
Directive 28. The Obama administration through PPD-28 and in 
other ways spoke about the need to consider and recognize the 
privacy rights of non-U.S. persons located outside of the 
United States.
    Do you agree that U.S. constitutional and privacy rights do 
not extend to non-U.S. persons located outside the United 
    Mrs. Elwood. It is true that our Constitution--and of 
course we're talking here about the Bill of Rights--protects 
the individual rights of United States citizens and individuals 
in the United States at large. And I am also not aware of any 
statutory law that extends broad privacy protections to 
foreigners abroad.
    Senator Cotton. Is it a controversial statement of law that 
the U.S. Constitution and statutes do not extend to non-U.S. 
persons located outside the United States?
    Mrs. Elwood. I don't think people would find that 
    Senator Cotton. I would agree.
    Do you think the CIA should take into account the privacy 
considerations of hostile intelligence services and would-be 
terrorists when conducting espionage overseas?
    Mrs. Elwood. No, sir.
    Senator Cotton. I agree.
    Can you commit to me that you will read the PCLOB's PPD-28 
classified annex regarding the operational impacts on the 
intelligence community, once you have received your security 
    Mrs. Elwood. Yes, sir. I look forward to doing that if I'm 
    Senator Cotton. Thank you.
    I want to turn my attention to Section 702 now of the 
Foreign Intelligence Surveillance Act. Director Pompeo stated 
in a speech a couple weeks ago at CSIS, quote: ``CIA steals 
secrets from our adversaries, hostile entities, and terrorist 
organizations. We utilize the whole toolkit, fully employing 
the authorities and capabilities that Congress, the courts, and 
the Executive Branch have provided to us, consistent with our 
American ideals.'' End quote.
    Part of that toolkit is Section 702. Director of 
Intelligence Dan Coats recently called it his top legislative 
priority to have reauthorized before it expires at the end of 
the year. Would you please comment on the importance of the 
Foreign Intelligence Surveillance Act in general and Section 
702 in particular to the CIA's mission?
    Mrs. Elwood. Yes, Senator. I obviously have not had the 
access to the classified information on the benefits of 702, 
but I have spoken to and I have read the statements of those 
who have. And they have, with broad consensus, all concluded 
that it is a highly effective and valuable tool and it has 
disrupted--and it's played a key role in disrupting specific 
terrorist threats that were aimed at the United States and 
    Senator Cotton. Could you please describe some of the 
various layers of oversight and compliance that occur at the 
CIA General Counsel's Office, as well as the Department of 
Justice and ODNI and here at this committee?
    Mrs. Elwood. Well, there are many, many layers, as I was 
discussing with Senator King. With respect to inside the 
General Counsel's Office at the CIA, CIA lawyers provide in-
person training and they sit with the officers who are doing 
the querying. The CIA does not do the collection under the 702, 
but they do have the authority to do querying.
    Outside of the Agency--and the Agency's querying is then 
audited by the Office of the DNI, as well as the DOJ, on a 
regular basis, and the General Counsel's Office is involved in 
those audits.
    That same level of oversight occurs at the NSA with respect 
to ODNI and DOJ audits every 60 days, and indeed every single 
selector that is used under 702 is audited. Not a single one is 
    In addition to the Executive Branch oversight, there is of 
course the inspector generals of the agencies have oversight 
authority as well. Outside of the Executive Branch, there is a 
Congressional oversight through the committees. There is also 
the FISC provides oversight, like I said, in the standards and 
reviewing and getting reports on any mistakes that are made.
    Then there's the fourth layer of oversight, which is 
related to the Privacy and Civil Liberties Oversight Board, 
which did a thorough and detailed review of the use of 702, 
established that it had been a highly effective tool in 
disrupting specific terrorist plots, and they also found, as I 
mentioned to Senator King, no trace of illegitimate activity or 
intentional misuse of the tool.
    Senator Cotton. Thank you for the answer and thank you for 
your willingness to come serve our country once again. And 
thanks to all the many men and women you will be leading in the 
Office of General Counsel, which I think is great.
    Mrs. Elwood. Thank you, sir.
    Chairman Burr. Senator Cotton, thank you.
    Senator King.
    Senator King. Two very quick follow-ups. One is, I think 
it's important to note that we've done a lot of talking about 
the PCLOB. There's only one member confirmed, and I hope that 
you will use your good offices to try to move that process 
along, because this is an important part of the overall scheme 
here and right now we don't have a full complement of board 
    Number two, I couldn't help but notice when you answered 
the Chairman's sort of five routine questions at the beginning, 
that you qualified them. When he said, will you keep the 
committee fully and currently informed, you said: I will, 
according to the law. I've never heard a witness use that. 
What's your mental reservation here?
    Mrs. Elwood. Right, consistent with the law. I'm just 
holding out--as you know, the statute provides that there are 
limits with respect to protection of sources and methods. So 
the Agency is obligated to provide information subject only to 
withholding specific operational details about sources and 
methods. That's what I was referring to.
    Senator King. So that's what you were referring to?
    Mrs. Elwood. Yes, sir.
    Senator King. I understand that. That is fine. I was hoping 
there wasn't a broader----
    Mrs. Elwood. There's no broader principle I was alluding 
    Senator King. Thank you.
    Thank you, Mr. Chairman.
    Chairman Burr. Thank you, Senator King.
    Let me note for the record that there have been some other 
witnesses that have qualified for I think the same reason.
    Senator Warner.
    Vice Chairman Warner. I would simply say, I know that this 
will go beyond kind of the focus of your job. This whole 
revisiting of how we're all briefed, what falls into which 
bucket, I'm candidly not even fully sure I fully appreciate and 
understand, although I do think it would be very timely to 
revisit some of those principles, because I do feel like there 
are times when Gang of Eight information, which in my mind 
should normally be things in advance of presidential action 
that Congress needs to be notified, not necessarily information 
that is simply sequestered into this very discrete group 
without having the full benefit of the committee's 
understanding, would be worthwhile to reexamine.
    Mrs. Elwood. If confirmed, Senator, I'd be very interested 
in digging into that and discussing it with you further.
    Chairman Burr. I thank all of my colleagues for your 
thorough questioning of our witness.
    Mrs. Elwood, thank you very much for, one, your willingness 
to serve; two, the expertise you bring to this nomination. I'll 
work with the Vice Chairman as quickly as we can to have any 
post-hearing questions presented to you. If you'd expedite 
those back to us, we'll very quickly set up a confirmation 
hearing, and hopefully get your nomination to the floor. We 
need you at CIA yesterday.
    Thank you very much.
    Mrs. Elwood. Thank you for your time. Thank you, Mr. 
Chairman. Thank you, Vice Chairman.
    Chairman Burr. The hearing is adjourned.
    [Whereupon, at 11:37 a.m., the hearing was adjourned.]

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