Hearings
Hearing Type:
Open
Date & Time:
Wednesday, April 26, 2017 - 10:00am
Location:
Dirksen 106
Witnesses
Full Transcript
[Senate Hearing 115-73]
[From the U.S. Government Publishing Office]
S. Hrg. 115-73
HEARING TO CONSIDER THE NOMINATION
OF COURTNEY SIMMONS ELWOOD TO BE
GENERAL COUNSEL OF THE CENTRAL
INTELLIGENCE AGENCY
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
WEDNESDAY, APRIL 26, 2017
__________
Printed for the use of the Select Committee on Intelligence
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SELECT COMMITTEE ON INTELLIGENCE
[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
JOHN CORNYN, Texas
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
CONTENTS
----------
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
WITNESSES
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
HEARING TO CONSIDER THE NOMINATION
OF COURTNEY SIMMONS ELWOOD TO BE
GENERAL COUNSEL OF THE CENTRAL
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.
OPENING STATEMENT OF HON. RICHARD BURR, CHAIRMAN, A U.S.
SENATOR FROM NORTH CAROLINA
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
agency.
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
testimony.
I now recognize the Vice Chairman for any opening
statements he might make.
STATEMENT OF HON. MARK R. WARNER, VICE CHAIRMAN, A U.S. SENATOR
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.
[Laughter.]
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
uncomfortable.
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
sharing.
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
expeditiously.
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
it.
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.
STATEMENT OF HON. TIM KAINE, A U.S. SENATOR FROM VIRGINIA
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?
[Laughter.]
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.
[Laughter.]
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
committee.
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
upstairs.
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.
[Laughter.]
Senator Heinrich. I would second that.
Chairman Burr. I'd prefer to do that in closed session.
[Laughter.]
Mrs. Elwood, would you please stand and raise your right
hand.
[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.
STATEMENT OF COURTNEY SIMMONS ELWOOD, NOMINATED TO BE GENERAL
COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY
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
responsibilities?
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
requested?
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
process.
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.
Rehnquist.
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:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
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
that.
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
Administration?
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
Security?
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
disagree.
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
behalf.
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
waterboarding.''
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
committee.
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
function?
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
authorized.
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
agency.
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
lawyer.
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
restrictions.
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
Counsel.
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
already----
Senator Wyden. So----
Mrs. Elwood [continuing]. And exonerated the lawyers
involved.
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
information?
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
information.
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
past.
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
authorizations?
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
notification.
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
guidance.
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
statute.
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.
persons?
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
query.
Mrs. Elwood. Well, reverse targeting is prohibited
expressly.
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
body----
Mrs. Elwood. Right.
Senator King [continuing]. Called a court have a role in
it.
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
correspondence.
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
days.
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
gratitude.
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
fast.
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
significance?
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
notification.
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
President.
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
States?
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
controversial.
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
clearance?
Mrs. Elwood. Yes, sir. I look forward to doing that if I'm
confirmed.
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
abroad.
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
missed.
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
members.
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
to.
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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