Hearing Type: 
Date & Time: 
Wednesday, April 6, 2022 - 10:00am
Hart 216

Full Transcript

[Senate Hearing 117-306]
[From the U.S. Government Publishing Office]

                                                      S. Hrg. 117-306

                        TO BE GENERAL COUNSEL OF



                               BEFORE THE


                                 OF THE

                          UNITED STATES SENATE


                             SECOND SESSION


                             APRIL 6, 2022


      Printed for the use of the Select Committee on Intelligence


        Available via the World Wide Web: http://www.govinfo.gov

                    U.S. GOVERNMENT PUBLISHING OFFICE                    
47-984 PDF                 WASHINGTON : 2022                     

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

                   MARK R. WARNER, Virginia, Chairman
                  MARCO RUBIO, Florida, Vice Chairman

DIANNE FEINSTEIN, California         RICHARD BURR, North Carolina
RON WYDEN, Oregon                    JAMES E. RISCH, Idaho
ANGUS KING, Maine                    ROY BLUNT, Missouri
MICHAEL F. BENNET, Colorado          TOM COTTON, Arkansas
BOB CASEY, Pennsylvania              JOHN CORNYN, Texas

                  CHUCK SCHUMER, New York, Ex Officio
                 MITCH McCONNELL, Kentucky, Ex Officio
                  JACK REED, Rhode Island, Ex Officio
                   JAMES INHOFE, Oklahoma, Ex Officio
                     Michael Casey, Staff Director
                  Brian Walsh, Minority Staff Director
                   Kelsey Stroud Bailey, Chief Clerk
                           C O N T E N T S


                             APRIL 6, 2022

                           OPENING STATEMENTS


Warner, Hon. Mark R., a U.S. Senator from Virginia...............     1
Rubio, Hon. Marco, a U.S. Senator from Florida...................     3
Bennet, Michael F., a U.S. Senator from Colorado.................     5


Heinzelman, Kate E., Nominee to be General Counsel, Central 
  Intelligence Agency............................................     6
    Prepared statement...........................................     9

                         SUPPLEMENTAL MATERIAL

Nomination material for Kate E. Heinzelman
    Questionnaire for Completion by Presidential Nominees........    32
    Additional Prehearing Questions..............................    54
    Post-hearing Questions.......................................    99

                        TO BE GENERAL COUNSEL OF


                        WEDNESDAY, APRIL 6, 2022

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in Room 
SH-216 in the Hart Senate Office Building, Hon. Mark R. Warner 
(Chairman of the Committee) presiding.
    Present: Senators Warner, Rubio, Wyden, Heinrich, King, 
Bennet, Casey, Burr, Collins, Blunt, Cotton, and Cornyn.


    Chairman Warner. I'm going to call this hearing to order.
    I want to welcome our witness, Kate Heinzelman, the 
President's nominee to be General Counsel to the CIA. We want 
to welcome you and your family. I think you've got a number of 
members. I hope you will introduce them in your opening 
    I also want to thank my friend Senator Bennet who, when I'm 
done with my opening and Senator Rubio is done with his, is 
going to introduce the witness.
    We look forward to your testimony.
    Ms. Heinzelman comes to this position with a very 
impressive background. She is currently Chief Counselor in the 
Office of the Attorney General and has previously been Deputy 
General Counsel to the Department of Health and Human Services, 
as well as Special Assistant and Associate General Counsel to 
President Obama. She has also been counsel to the Assistant 
Attorney General for National Security.
    The General Counsel is the CIA's chief legal officer and 
plays a critical role in ensuring that the Agency's 
intelligence operations and collection adhere to the law, and 
ensuring that the rights and liberties of Americans are 
protected. The GC is also the principal legal advisor to the 
Director of the CIA.
    Ms. Heinzelman, should you be confirmed you'll need to 
provide both sound legal analysis and good judgment. As the 
CIA's top legal officer you would be responsible for ensuring 
that CIA operations, including covert operations, are both 
within the letter and the spirit of the law.
    The Director will often turn to your advice on difficult 
decisions that may involve, candidly, life and death and must 
be made expeditiously. I'd like to hear from you today about 
how you would go about providing such critical advice.
    The Agency has not confirmed a General Counsel for over a 
year, and it is vital that there be a confirmed GC in place. 
Looking at recent headlines, it seems as if global security and 
stability are increasingly in peril. I think every one of us on 
this Committee has been shocked by the Russian actions in 
    I heard General Milley saying it may be some of the most 
dangerous times we have faced since World War II. We see some 
of these Russian actions, from the President on down and 
leaders all over the world, condemning Putin for war crimes. I 
mean, again that brings its own legal definition.
    But the truth is, as we've seen from the recent worldwide 
threats hearing, threats faced by the United States go well 
beyond Ukraine-Russia. Increasingly we've seen enormous 
competition. And all of us on this Committee have taken the 
lead on calling out the competition we face with China, 
especially in the area of technology.
    Iran and North Korea continue to pursue malign activities. 
And terrorist groups still present a formidable threat. And of 
course we all know the threat of cyberattacks, including 
against our critical infrastructure as well as misinformation 
and disinformation, continue to present serious concerns.
    The CIA and our other intelligence agencies have been 
critical in providing warning on these threats. I for one think 
that, frankly, the forward-leaning aspect of the community has 
really not only kept Vladimir Putin off guard in terms of being 
willing to declassify information in a timely manner, but also 
helped build the alliance.
    The Agency operates around the world in difficult and 
dangerous places. The CIA must also operate in strict 
compliance with United States law, including the Constitution, 
Acts of Congress, and treaties made under the authority of the 
United States.
    The General Counsel serves to ensure that compliance 
regardless of the particular situation or pressures that may be 
faced at that moment in time. This Committee, in performing its 
oversight function, relies on you to keep us fully and 
currently--and that currently is particularly important at this 
point--informed at all times. And to come forward without 
prompting to report any issues that could be a serious concern.
    We've seen over the years the importance of legal 
determinations in ensuring that the Agency's actions stay 
within the bounds of law, from ensuring that detainees are 
treated in a humane and legal manner, to ensuring that privacy 
and the civil liberties of Americans are protected.
    In the previous Administration, we know that a 
whistleblower came forward to the General Counsel to report 
wrongdoing. But instead of investigating that person's 
allegations, the then-GC instead contacted the White House. And 
I will need your assurance that should you ever be placed a 
similar situation, you would ensure that such concerns are 
addressed promptly in a way that also protects the 
whistleblower's identity.
    In sum, my colleagues and I who serve on this Committee see 
every day that we live in an obviously very dangerous world. 
And the CIA is clearly the point of the spear in terms of our 
Intelligence Community. Truth is, you've got to make sure you 
would do your job, should you be confirmed, with no pressure.
    So congratulations again on your nomination. Thank you for 
agreeing to step forward to serve our country.
    Now after the Vice Chairman has given his opening 
statement, I will call on Senator Bennet to make a formal 
introduction. We will then swear you in. We will go by 
seniority for the questioning. I ask all Members to observe the 
five minute limit.
    With that I look forward to the remarks of the 
distinguished Vice Chairman.


    Vice Chairman Rubio. Well thank you, Chairman Warner.
    And thank you Ms. Heinzelman for being here. Welcome to 
your family. Thanks for the chance yesterday to meet and to 
discuss your nomination.
    As I discussed with you, the General Counsel at the CIA is 
an important role given the work the Agency does on behalf of 
our country. The CIA can't execute its worldwide mission in 
accordance with the authorities provided to it without a 
General Counsel who provides both policy and legal advice to 
the Director. No agency in American government is above the 
law, certainly not the CIA. And it's important that their 
activities always be within the law.
    This Committee was created to provide oversight of the CIA 
and the entire Intelligence Community. And that said, it is 
important that counsels at the same time do not impede the 
operations of the Agency when working under Presidential 
authority and with congressional support through authorization 
and funding. And so the role of the General Counsel is to make 
sure they're following the law, but also not to become an 
unnecessary impediment to the very difficult work of acting on 
behalf of the national interest of our country.
    I do want to make a broader editorial point which, while 
related to this nomination, is not a direct statement about 
you, who I'm interested to learn more about--you and your 
background and so forth. But it really is more of an editorial 
statement about an ongoing pattern that we've seen of some of 
the nominees in this Administration, particularly in the 
Intelligence Community. I think what it reflects is both the 
difficulty of dealing with the holistic threat that's posed by 
the Chinese Communist Party and at the same--the holistic 
threat that it actually is as well.
    So since the President took office, we've now processed a 
number of nominees--by the way not just to the Intelligence 
Community but other agencies--who have at some point done work 
on behalf of either the Chinese Communist Party, or generally 
Chinese entities directly linked to the Chinese State. I 
understand people don't like it to be characterized as such, 
but it is what it is. And anyone who understands the nature of 
the threat posed by China understands that's what it is.
    And here's how the pattern generally has gone. These are 
highly credentialed folks, there's no doubt about it. And they 
begin their work in a position of trust and national security 
in the Executive Branch. They leave. They're even more highly 
credentialed, and they go work for an international corporate 
law firm. At that firm, despite having held positions in 
government which he or she should have known the true nature of 
the threat from China and all the ways they seek to influence 
American policy, they end up representing or doing work on 
behalf of some state-controlled entity in China, representing 
them generally on matters such as helping them understand U.S. 
law, right?
    And now, forth, this increasingly credentialed person who 
has worked in the Executive Branch, has worked outside of 
government, seeks to come back into government service at the 
highest levels in which trust and judgment are paramount. And 
then that individual is nominated for a position.
    So this pattern, the reason why I pointed it out is, I 
think, two things are at play here. The first is how difficult 
it's become to find highly qualified and credentialed 
individuals to serve, who haven't at some point in the private 
sector interacted with Chinese Communist Party-linked entities, 
because that's just the nature of the challenge that we face 
from China.
    I think the other--as a broader editorial, I really hope 
the Administration is more sensitive about this in the months 
to come and in the future nominations that await, because this 
is really a commentary on the U.S., and on our internationally 
based law firms and how their business model in many ways is 
now enabling and supporting the soft power and the subversive 
efforts of CCP-controlled entities.
    So look, this doesn't make any of these people who have 
been nominated in the past bad people. It doesn't even 
disqualify them from important or rewarding work on behalf of 
the government. But I think it begins to demonstrate for us two 
things, again--as I've already pointed out--how hard it is to 
find people that are in a position to serve who haven't at some 
point rubbed up against the influence efforts of the Chinese 
government. And I think it also potentially reflects how some 
are diminishing, how pervasive this has become, and what a 
difficult challenge this China threat has become for us.
    So with that said, obviously I look forward to learning 
more about you, your background, your qualifications, your 
views, and your role, should you be confirmed. As I said, the 
General Counsel position is a really important one, as we 
discussed yesterday. Yes, it's about making sure the CIA is 
following the law, but it's also about providing advice and 
counsel on options that exist to serve the national interest of 
our country, within the framework of what the Agency is 
authorized to do. I think that's just as important in this 
    So thank you for your willingness to serve. And we look 
forward to hearing your testimony.
    Chairman Warner. Thank you, Senator Rubio.
    I'm now going to ask our colleague on the Committee, 
Senator Bennet, to make a formal introduction of the nominee.
    Senator Bennet?

                         FROM COLORADO

    Senator Bennet. Thank you to the Chairman and the Vice 
Chairman for allowing me to introduce Kate Heinzelman, 
President Biden's nominee to serve as General Counsel of the 
Central Intelligence Agency.
    This Committee needs no reminder that we're at a crossroads 
for American national security. This moment, perhaps more than 
any in our lifetimes, challenges America to advance our 
national security while upholding our deepest values, including 
our commitment to the rule of law.
    Ms. Heinzelman has a rigorous combination of legal and 
national security experience to meet this moment. In one way, 
this nomination brings Ms. Heinzelman back to where she began.
    In 2003, she joined the CIA as an intern analyst. Today, 
she sits before this Committee having had nearly 20 years of 
experience in law and national security at the highest levels 
across both Republican and Democratic administrations. She 
graduated from Yale Law School and clerked for Merrick Garland 
on the D.C. Circuit, and for Chief Justice Roberts on the 
Supreme Court. Ms. Heinzelman's national security experience 
includes time serving on the WMD Commission, which was charged 
with examining the intelligence failures in the lead-up to the 
Iraq war. She also served with Ambassador Negroponte in his 
role as the first Director of National Intelligence and as 
Counsel in the National Security Division at the Department of 
Justice. She has since worked in other critical roles in the 
Federal Government, from Associate Counsel to the President, to 
Deputy General Counsel at HHS, to her current role as Chief 
Counselor for Attorney General Garland. She was a partner at 
Sidley Austin, where she worked on cybersecurity and privacy 
    Her colleagues, Mr. Chairman, say she's brilliant, generous 
with her time, and deeply patriotic. I had the good fortune of 
working with Merrick Garland many years ago at the Department 
of Justice and there are few people I hold in higher regard. I 
can tell you that Ms. Heinzelman has proven herself to be a 
much better lawyer than I ever was, but I also can say that it 
speaks volumes about her intellect and character that the 
Attorney General asked her to work with him for a second time.
    This Committee appreciates the challenging times ahead for 
our national security and for the Intelligence Community in 
particular. And at a time when democracy and the rule of law 
have come under attack, not only in Ukraine but across the 
globe, we know that defending our security and our values goes 
hand in hand. In this difficult time, I am confident that Ms. 
Heinzelman is up to the challenge.
    And I want to just close by thanking her for stepping 
forward to serve our country again. And I want to thank her 
husband Jonathan and their two children, Penelope and August, 
for supporting her in the days ahead.
    Thank you, Mr. Chairman.
    Chairman Warner. Thank you, Senator Bennet.
    Will the witness please stand and raise her right hand?
    Do you solemnly swear to give this Committee the truth, the 
full truth, and nothing but the truth, so help you God?
    Ms. Heinzelman. I do.
    Chairman Warner. Please be seated.
    Before moving to your opening statement, I will ask you to 
answer the following five standard questions the Committee 
poses to each nominee who appears before us. They require a 
simple yes or no for the record.
    First, do you agree to appear before the Committee here or 
in other venues when invited?
    Ms. Heinzelman. Yes.
    Chairman Warner. If confirmed, do you agree to send 
officials from your office to appear before the Committee and 
designated staff when invited?
    Ms. Heinzelman. Yes.
    Chairman Warner. Do you agree to provide documents or other 
materials requested by the Committee in order for it to carry 
out its oversight and legislative responsibilities?
    Ms. Heinzelman. Yes.
    Chairman Warner. Will you ensure that your office and your 
staff provide such materials to the Committee when requested?
    Ms. Heinzelman. Yes.
    Chairman Warner. Do you agree to inform and fully brief to 
the fullest extent possible all Members of this Committee of 
intelligence activities and covert actions rather than only the 
Chairman and Vice Chairman?
    Ms. Heinzelman. Yes.
    Chairman Warner. Thank you very much.
    We'll now proceed to your opening statement after which 
I'll recognize Members again by seniority for up to five 
minutes each.
    Ms. Heinzelman?


    Ms. Heinzelman. Mr. Chairman, Mr. Vice Chairman, Members of 
the Committee, thank you for the opportunity to appear before 
you today.
    Senator Bennet, thank you for that generous introduction.
    I'm deeply honored by the President's nomination and by the 
trust that he, Director Burns, and Deputy Director Cohen have 
placed in me.
    Throughout my years in public service, I've been blessed to 
have had extraordinary mentors. These individuals, who have 
served across administrations, have taught me about the 
national security challenges we face and how to be a rigorous 
lawyer and effective partner.
    I believe this is a critical moment for the Intelligence 
Community. Intelligence is key to helping decisionmakers, and 
can serve as the country's best first-line of defense. Ensuring 
that CIA conducts its mission at all times within the bounds of 
the law is integral to that defense and an example to the world 
about rule of law in America. It would be a great privilege to 
serve as CIA's General Counsel.
    I first came to the Intelligence Community as a summer 
intern analyst at the Agency. That experience opened a window 
for me into the professionalism and dedication of CIA officers. 
It had a lasting impact. After graduating college, I joined the 
staff of President Bush's WMD Commission, which was charged 
with investigating the intelligence failures about Iraq's WMD 
program and recommending a path forward. I then served in the 
office of the first Director of National Intelligence.
    Following law school and two clerkships where I had the 
chance to see national security issues from another vantage 
point, I worked in the National Security Division at the 
Department of Justice, the creation of which had been one of 
the WMD Commission's recommendations.
    I then went to the White House Counsel's Office and later 
served as a Deputy General Counsel at the U.S. Department of 
Health and Human Services, where I helped lead an office of 
hundreds of lawyers.
    In 2017, I joined the law firm Sidley Austin, where my 
practice focused on cybersecurity and privacy issues. Since 
January 2021, I've been honored to serve as the Chief Counselor 
in the Office of the Attorney General at the Department of 
    If I am fortunate enough to be confirmed, I will bring each 
of these experiences to bear in helping the CIA navigate the 
challenges from nation-state and non-state actors we face 
today; among these are Russia's invasion of Ukraine, China's 
efforts to expand its power worldwide, cyber threats against 
networks of all types, terrorist threats, and a multitude of 
    Director Burns has established his priorities for the 
Agency: China, Technology, People, and Partnerships. The 
General Counsel's Office can play a critical role in enabling 
the CIA to do its vital work and implement its priorities in a 
manner that is fully consistent with the law. To this end, the 
first objective of the General Counsel's Office should, in my 
view, be to provide clear and accurate legal advice on the full 
range of legal matters confronted by the Agency. Just as we 
seek rigor and timeliness in intelligence, so too should we 
demand these things from the talented and dedicated lawyers at 
the Agency.
    Second, the Office should be an important contributor to 
the Agency's compliance work. I believe that lawyers should not 
just give advice on the law but that they should make sure 
their advice is actionable, and that they should anticipate to 
the extent possible what lies around the next corner.
    Third, the Office of the General Counsel should help 
maintain public trust and reinforce accountability to the 
American people. This includes working closely with this 
Committee to help enable the congressional intelligence 
committees' critical oversight work and helping to provide 
appropriate transparency about the basis for CIA's actions.
    This is particularly indispensable at the CIA, given that 
the Agency's activities are generally conducted outside the 
public view.
    To achieve these objectives, the General Counsel must 
maintain an office that invests in workforce and partnerships, 
two of Director Burns' priorities. If confirmed, I would view 
these two as foundational priorities.
    To provide top-notch legal counsel in this operational 
environment requires not only that lawyers have subject matter 
expertise and close relationships with their clients, but also 
the independence that enables them to deliver advice that at 
times clients may not want to hear.
    I am here, as I noted at the outset, because I have had the 
chance to learn from extraordinary public servants. I am also 
here because of the friends, teachers, and family who have 
supported me. My husband is the rock of our family; there are 
not words enough to thank him. And our children, with a third 
due to arrive any day, are a daily reminder of what we work as 
public servants to protect.
    I've brought my children with me here today in the hopes 
that seeing these halls and the great American tradition that 
these proceedings represent, will leave as indelible an 
impression on them as my encounters with the great institutions 
of our government have left on me.
    Thank you for considering my nomination and for holding 
this hearing today. I look forward to answering your questions.
    [The prepared statement of Ms. Heinzelman follows:]
    Chairman Warner. Well, thank you very much for that 
    And my hope is that this hearing will not speed up the 
delivery of your future daughter.
    I want to make one comment. I think Senator Rubio's 
comments raise a bigger issue because we have seen a number of 
nominees come before this Committee who worked at big corporate 
firms. And I don't know if there are many corporate firms 
around that probably didn't have some clients at some point 
that touched China.
    This Committee took a real lead. In 2018 we did the first 
of what we call our classified roadshows with bipartisan 
presentations, where we met with business after business who 
candidly told us the government had done a pretty crummy job of 
explaining this threat. I remember once in Texas where one of 
the college presidents said, I thought when a student visa came 
in, the government had done their background screening.
    I do think we ought to rethink relationships with China. I 
think the CCP is one of our most major threats. But I do think 
the notion that even if you're a lawyer in a corporation, we 
need some guidance on this. And the vast majority of the 
Fortune 500 unfortunately still do business with China. I think 
they all candidly kowtow to the leadership of the CCP because 
they always say, ``It's too big a market to move past.'' And 
frankly, they turn a blind eye, whether it's human rights 
abuses in Hong Kong or the Uyghurs in China. But I do hope we 
would roll out a consistent policy on that on a going-forward 
    I want to go to a couple of my quick questions here.
    The CIA GC has been a job that's been unfilled over the 
last year. It's a large group of lawyers. How would you go in? 
And I know you've had some management experience, but how would 
you go in and reassert the role of the General Counsel and, 
frankly, make sure that you've got appropriate management 
principles in place?
    Ms. Heinzelman. Thank you, Chairman, for the question.
    You know, there is clearly a lot on the plate of the 
incoming General Counsel at CIA. As I mentioned in my opening 
statement, we are at a critical moment for the Intelligence 
Community. You don't have to look very far in the news to see 
the full array of both near-term and credibly pressing 
priorities, and some of the longer-term challenges like how the 
Agency deals with the many issues that new technologies are 
posing both as an intelligence matter, and as an internal 
management matter. So I have no doubt that the incoming GC has 
a very full calendar.
    I have had experience, as we've discussed Chairman--I 
appreciated the opportunity to meet with you the other day--
coming into a General Counsel's office operation at HHS, a 
considerable one, and figuring out how to be effective upon 
entering an organization that is already functioning without 
you. And I have every confidence that the acting leadership of 
the CIA General Counsel has been doing a terrific job in the 
meantime. But I would bring some of the lessons that I learned 
from that experience to bear here. I would have open ears and 
be observant. And I would want to take my first several weeks 
to really look at and assess what the Office needs.
    Chairman Warner. Thank you.
    My last question is that this Committee had to wrestle 
firsthand with the CIA whistleblower who came forward, went to 
the GC in the previous Administration. The GC then, rather than 
following traditional procedures, went to the DOJ and the White 
House. And many of us believe appropriate procedures were not 
followed. How do we, how do you, make sure that we protect 
whistleblowers? Have a culture that says, if you're going to 
come forward, there's not going to be retribution. That we try 
to protect your anonymity. This is something that I just think, 
on a going-forward basis, we need to make sure that those 
individuals are protected. But I'd like you to comment on that.
    Ms. Heinzelman. Chairman, I couldn't agree more with you 
about the importance of ensuring that we follow all of the laws 
and internal procedures that we have for appropriately 
protecting whistleblowers.
    I think that the way that the IC handles whistleblower 
complaints, and making sure that we are doing so in accordance 
with all of our procedures--appropriately protecting them, 
making sure that information is appropriately protected in the 
process, is a critical part of that goal of fostering and 
continually re-earning trust, both the trust of the American 
people, the trust of this Committee as a partner, and 
internally the trust of the workforce.
    So that will certainly be a priority of mine, if confirmed 
to the position.
    Chairman Warner. Thank you so much.
    Senator Rubio?
    Vice Chairman Rubio. Thank you.
    Well, I wanted to cut to the chase, because I thought we 
would talk about this today, and I want to give you an 
opportunity to describe the work you did when you were Counsel 
at the firm--to WuXi. Just for the information of everybody, 
WuXi Biologics--the Chinese State media has dubbed it as the 
``Huawei of China's pharma sector.'' So clearly, it has deep 
connections to China's Communist Party and the State.
    So I want you to describe it basically. At the time you 
were not a partner; you were of Counsel at the firm?
    Ms. Heinzelman. That's correct.
    Vice Chairman Rubio. Okay. So just if you could walk us 
through. I'm familiar with it, but maybe not everybody is. How 
does that happen internally? How did you get the work? Who gave 
you the work? What was it? What did it entail? How much was it? 
That kind of thing.
    Ms. Heinzelman. Absolutely. Thank you, Mr. Vice Chairman. 
And thank you for the opportunity to meet and speak yesterday.
    To the best of my recollection, the matter that you are 
referring to came to me through a partner at the firm who asked 
me to work on it--I was a counsel at the time--who asked me to 
give the kind of advice to this company that I gave to a whole 
range of companies for whom I did work for while at the firm, 
which was privacy-compliance advice. In short--how to comply 
with the U.S. Federal and state privacy laws, the purpose of 
which is to protect U.S. consumer data. I did that work in 
particular for companies that handled health data, given a 
specialization that I developed in our statutes, our State and 
Federal laws that protect health data.
    And so that was the kind of advice that I gave to this 
company on this one matter. I don't think I had any other 
interactions with the company.
    Vice Chairman Rubio. So this was somebody else at the firm, 
some partner's client and they--because of your previous work--
they asked you to help advise the client on how to comply with 
privacy laws in the United States, regarding healthcare 
    Ms. Heinzelman. That's correct.
    Vice Chairman Rubio. How many hours did you bill on that?
    Ms. Heinzelman. This was under 10 hours. I believe it was 7 
hours, 7.1.
    Vice Chairman Rubio. Okay.
    We did ask you about, in your prehearing questionnaire, 
questions related to the current ODNI General Counsel's private 
sector representation of Huawei. You confirmed that you did not 
bill any hours or contribution to that representation while at 
the firm, but noted that out of an abundance of caution that 
you may have been part of an internal discussion related to a 
newer potential engagement for the company.
    Like I said, I appreciate your candor in mentioning it. Do 
you recall your contribution to that discussion?
    Ms. Heinzelman. I'm sorry, Mr. Vice Chair. Can you just 
repeat the end of your question?
    Vice Chairman Rubio. Yes.
    So basically we asked you a question in the prehearing 
process about the General Counsel at the ODNI, when he was at 
the same firm, representing Huawei. And you noted that you did 
not represent that client but that you said that out of an 
abundance of caution that you may have been part of some 
internal discussions related to a new or potential engagement 
for the company.
    Do you have anything further that at this point? I 
appreciate you mentioning that proactively in the 
questionnaire. I'm just curious whether you have any followup 
on whether that actually happened or what--for Huawei?
    Ms. Heinzelman. That's correct.
    Mr. Vice Chairman, I tried to provide as much information 
as possible knowing, understanding this Committee's interest. 
But consistent with my recollection, the firm records that I've 
consulted show that I never billed any time to that matter.
    Vice Chairman Rubio. Okay.
    One final question that I have is you've been acting or 
you've been serving as Chief Counsel to the Office of the 
Attorney General since the beginning of this Administration. 
During your time in this position, have you been involved at 
all in any of the investigations into what's called Anomalous 
Health Incidents that have impacted Department of Justice 
individual employees? Talking about Anomalous Health Incidents 
that have occurred abroad.
    Ms. Heinzelman. So I am familiar with the issue, of course, 
of Anomalous Health Incidents, or AHIs, and how they have 
affected public servants across the government at a high level. 
And I know that this is a priority for Director Burns, for DNI 
Haines, and that they are pursuing concurrently efforts to both 
attribute and understand the cause of the attacks, and to 
ensure that employees get the healthcare and the services that 
they need. And that would be a priority of mine if confirmed to 
this position as General Counsel.
    Vice Chairman Rubio. Have you conducted or overseen any of 
the investigative efforts on it? Has that been part of your 
    Ms. Heinzelman. Mr. Vice Chairman, in my role as Chief 
Counselor, I advise the Attorney General on a range of matters 
with a particular focus on national security issues. And you 
know, I'm afraid I can't get into specific matters more than 
    Vice Chairman Rubio. Okay.
    Well, we'll followup in the appropriate setting. But again 
I'm not asking for the details of the matter. I'm simply asking 
if you have been involved in those in overseeing any of the 
efforts on that matter. It's--it's a matter of public record 
that the Department of Justice is interested in the matter.
    Ms. Heinzelman. Yes. Mr. Vice Chairman, if I can just 
answer that question. It is a matter of public record that the 
Department has taken its own action to ensure that it complies 
with directives to appoint people internal to the Department to 
handle complaints appropriately. But, Sir, I don't have much 
more to say about the Department's own handling of AHI matters. 
I'm not aware of further action that it's taken publicly on 
    Chairman Warner. Senator Wyden.
    Senator Wyden. Thank you very much, Mr. Chairman. Ms. 
Heinzelman welcome. I very much enjoyed our conversation. I 
want to pick up on this issue of privacy for a moment; we 
talked a bit about this in the office.
    In the office we talked about the Supreme Court's Carpenter 
case which essentially lays out that access to a person's 
historical cell site records is a Fourth Amendment search 
because it would otherwise violate somebody's expectation of 
privacy when you're talking about physical movements. Now the 
Carpenter case really changed Americans' understanding of their 
Fourth Amendment rights. This was a significant development. 
And yet as far as I can tell, the public really has never been 
told whether it applies to the Intelligence Community.
    So my question is, if you're confirmed would you ensure 
that Americans are informed about whether and to what extent 
Carpenter applies to the Intelligence Community or the CIA?
    Ms. Heinzelman. Thank you, Senator Wyden. And thank you for 
taking the time to meet with me the other day.
    If I'm confirmed to the position, I would be very happy to 
look into whether the CIA has guidance on Carpenter, to 
determine whether or not it needs any guidance that it doesn't 
have. And to work with you on seeing what can be done to make 
public any significant interpretations, legal frameworks, about 
significant issues.
    As we discussed, I believe that's an important part of the 
CIA's accountability. And I would look forward to working on 
that issue more generally.
    Senator Wyden. What possible argument would there be to 
this major Supreme Court case laying out significant new 
privacy law? What argument would there be for it not applying 
to the Intelligence Community?
    Ms. Heinzelman. Senator, the Carpenter decision is in some 
ways, as self-described, a narrow ruling about CSLI or cell 
site location information data. It's been interpreted in other 
courts since, so one of the things I would want to look at, if 
I'm confirmed to the position, is not just Carpenter but also 
other subsequent Fourth Amendment case law interpreting 
Carpenter in the lower courts. And unfortunately I don't know 
enough, not being at the Agency now, about the potential 
relevance to CIA's particular activities.
    Senator Wyden. But you're not in fundamental disagreement 
with where the court is taking our country.
    Ms. Heinzelman. No, Senator. I don't have a--no.
    Senator Wyden. Good.
    One last question, if I might.
    Earlier this year CIA released a portion of the report from 
the Privacy and Civil Liberties Oversight Board. And this was 
dealing with how to reform the CIA's activities under Executive 
Order 12333.
    And as we talked about, I've been very concerned about this 
because we have two statutes out. The Foreign Intelligence 
Surveillance Act, pretty specific, fair amount of details. I'm 
certainly interested in some reforms but there's a fair amount 
of roadmap on how it works. Executive Order 12333, we're 
basically in a very barren area. There's virtually few 
guidelines and rules. And I and Senator Heinrich would like to 
change that.
    Now Director Burns, to his credit, said at our recent open 
hearing that he would address one of those key recommendations 
of the Privacy Board ensuring that when the CIA conducts 
searches for Americans' information, it documents a 
justification, so we have a real record. If the government is 
looking into people's records, we're going to have some 
    Now the Privacy Board makes a number of other 
recommendations that I think are very important.
    And so my question is, would you make it a priority to make 
sure you review all of the Privacy Board's recommendations and 
let us know when and how they could be implemented?
    Ms. Heinzelman. Senator Wyden, I appreciate and understand 
your concern about this issue and would make it a priority to 
review the PCLOB's full reports and be in touch with you about 
    Senator Wyden. I'll wrap up with this. Would it be 
acceptable to you, if confirmed--I hope you will be confirmed--
to report within six months of starting work on the status of 
those other Privacy Board recommendations so we can take that 
incomprehensible-to-the-public area, Executive Order 12333, and 
begin to get some transparency. Can we get a report within six 
months of your starting work?
    Ms. Heinzelman. Senator, I know that you and Director Burns 
have discussed undertaking a review and that I believe he and 
you set a six month deadline for that and I'm looking forward 
to supporting that effort and will----
    Senator Wyden. My time is up.
    Just so you know, I think Director Burns is off to a strong 
start with respect to privacy and some new accountability. I'd 
like to see you build on it. Thank you.
    Thank you, Mr. Chairman.
    Chairman Warner. Senator Burr.
    Senator Burr. Thank you, Mr. Chairman. Kate welcome. Mr. 
Chairman, I hope we'll move this as expeditiously as we can.
    What do you see as the most important function of General 
Counsel at the Agency?
    Ms. Heinzelman. Senator Burr, thank you for the question. 
Thank you for meeting with me the other day. I enjoyed our 
opportunity to speak.
    I think the first obligation of the General Counsel's 
Office is to provide accurate, clear, rigorous, and timely 
legal advice to enable CIA's mission. Given the importance of 
all the work that CIA does, I think that is the first thing 
that the Agency should ask of its lawyers and they should view 
that as their first obligation.
    Senator Burr. And if the Director of the Agency disagrees 
with you, what do you do?
    Ms. Heinzelman. If the Director were to disagree--well I 
will say first that I welcome robust and rigorous discussion. 
And I welcome being challenged on legal views. I think that's 
one thing that clients and lawyers sometimes do for each other. 
But if I were to be confirmed as the Chief Legal Officer of the 
CIA, if it was my view that something was not lawful, and I so 
advised the Director, and he nonetheless proceeded to disregard 
my advice, I would have to consider of course resigning and 
taking other action.
    Senator Burr. So let's say that there's a gray area. And 
your recommendation is: brief the Committee. And the Agency or 
the Director chooses not to do that. Do you believe it's the 
role of the General Counsel if you felt strongly enough to come 
directly to the Committee?
    Ms. Heinzelman. Senator, yes. I think that the General 
Counsel has significant obligations under Sections 502 and 503 
of the National Security Act, and under the CIA Act, to inform 
this Committee, timely, of significant intelligence 
developments and the legal basis for them. So I can see a 
circumstance like the one you're describing that would 
certainly fall within those obligations.
    To address the questions more generally, I think the fact 
that there's a lot of gray area in the law makes it all the 
more important that agency counsel be very clear with clients 
about areas where there are legal risks, and what those risks 
are, versus questions about legal permissibility and 
impermissibility. And one of the guiding principles that I have 
used throughout my career is to be very clear about the 
distinction between those two, to help enable clients to make 
the best decisions on the basis of my legal advice.
    Senator Burr. Well, thank you for today's testimony. I 
thank the Chair.
    Chairman Warner. Senator King.
    Senator King. I want to follow that series of questions. A 
secret agency is an anomaly in a democracy. And our government 
is built upon an elaborate set of checks and balances, many of 
which don't necessarily apply to a secret agency. And the law 
is one of those checks that does. And so to follow Senator 
Burr's questions and to go back to the very beginning of this 
hearing, you answered yes to the Chairman's questions about 
making information readily available on a timely basis to this 
    I think that's critically important. And I hope--right 
now--I'd like to give you an opportunity to renew that 
commitment that you made earlier today, and that you just made 
to Senator Burr.
    Ms. Heinzelman. Yes, Senator King.
    And thank you for taking the opportunity to speak with me 
this week as well.
    I think the obligations that the CIA Director, that the 
General Counsel, are under to ensure that this Committee is 
fully and timely informed are critical. As I mentioned in my 
opening statement, I believe this is particularly critical at 
an agency like the CIA that necessarily has to conduct a lot of 
its work outside of the public view. And I will always do my 
utmost to comply with those obligations. And to bring matters 
to this Committee consistent with all obligations to protect 
sensitive information, because I view a partnership with this 
Committee as being absolutely essential to the success of the 
Agency's mission overall.
    Senator King. And it's part of the checks and balances in 
our system that this Committee has this responsibility. This 
isn't like the Department of Agriculture or the Department of 
Commerce that has outside commentators and newsletters and the 
press and all of those kinds of things. We're it. And that's 
why our relationship with you is so important.
    Lawyers, in these situations have two roles. The first is 
counsel to your client. And generally your job is to tell your 
client how to do legally what they want to do. But at some 
point, you have to say no.
    And my question is, are you willing to say no to the 
Director of the CIA, and the President of the United States, 
when you're in the Oval Office and the President says, We've 
got to do this in order to protect national security even 
though it's in violation of the law. Are you willing to say no 
in that situation?
    Ms. Heinzelman. Absolutely, Senator.
    Senator King. And at some point, report that to this 
    One of the areas that it seems to me that we're going to 
have to be thinking about is that we've had this clear 
distinction in our intelligence laws and in our law enforcement 
between U.S. and abroad. The CIA doesn't operate in the United 
States. The FBI does. NSA doesn't operate with regard to U.S. 
    Here's the problem. We're entering an area where that line 
is harder to draw. For example, in the area of Cyber, there may 
be a cyberattack that originates in Russia or China but goes 
through servers in New Jersey or California. And the question 
is, is that a domestic issue or a foreign issue? Give me some 
thoughts about how we maintain the fencing-in, if you will, of 
our intelligence agencies with regard to Americans, and yet at 
the same time effectively respond to threats that are more 
complex and the lines are harder to draw?
    Ms. Heinzelman. Thank you, Senator King.
    That issue, particularly when it comes to technology, is as 
you note increasingly complex. And the CIA and the Intelligence 
Community have several tools to help them work through those 
issues. But fundamentally, a lot of those questions are our 
legal questions, or questions on which lawyers give guidance. 
And there are some of the types of issues that I think are the 
most challenging. It's one of the reasons why I think it is a 
huge advantage to have lawyers who really understand 
technology. You know, sometimes generalists--knowledge is not 
enough to help us answer those types of questions.
    I think that working with the Intelligence Community, writ 
large, as a community to figure out which agencies are best 
suited, consistent with their authorities, consistent with 
Executive Order 12333 guidelines, to be the lead on given 
issues, is one of the most important features of our community 
system of intelligence.
    Senator King. And to one final point. I hope that as you 
encounter gray areas or areas of indistinct legal distinction--
legal rules--that you'll come to the Committee and suggest this 
is a place where legislation might be necessary to clarify this 
    Again, we're all on the same team here. And to the extent 
you can advise us as to changes in authorities or other areas 
where legislation can help to clarify and deal with these 
difficult issues, I'd appreciate it if you would do so.
    Thank you.
    Thank you, Mr. Chairman.
    Chairman Warner. Senator Collins.
    Senator Collins. Thank you.
    First of all let me welcome you.
    I want to followup on questions that my colleagues have 
asked about when it is appropriate for you not to disclose the 
information to the Committee, because I'm a little bit 
concerned about your response to the first prehearing question 
in which you assert the CIA's obligation to keep the 
congressional intelligence committees fully and currently 
informed pursuant to the National Security Act, but say that 
that can be impeded on the grounds for protecting from 
unauthorized disclosure. And I realize that's in a clause in 
the same law. So your interpretation is really important.
    I want to go to the 2014 report from this Committee on the 
CIA's use of enhanced interrogation techniques. And I filed 
additional views in which I expressed my concern that Congress 
was only informed about the RDI program to the bare minimum. 
Later former CIA General Counsel, John Rizzo, reflected that, 
quote, ``The decision in 2002 to limit congressional knowledge 
of the EITs to the ``Gang of Eight,'' and to stick to that 
position for four long years, as the prevailing political winds 
were increasingly howling in the other direction was foolish 
and feckless.''
    So my question to you is, how do you intend to draw the 
line on informing Congress on critical issues such as this one, 
particularly if they may be embarrassing to the Administration?
    Ms. Heinzelman. Thank you, Senator Collins, for that 
question, and for raising this issue that is so fundamental to 
the whole role of the Intelligence Community writ large.
    As we've been discussing here this morning, the CIA unlike 
other parts of our government has particular obligations to be 
forthcoming with the intelligence committees to ensure that 
these committees can carry out their functions. And Section 502 
of the National Security Act of 1947, is a critical part of 
that. So I want to be very clear about the way that I interpret 
    I'd like to start by saying that I would like to get to the 
Agency and--if confirmed, really understand how it's been 
applied historically. But the only exception--and it's not an 
exception--the only qualifier, I should say, that I see in that 
language about keeping the committees fully and currently 
informed is simply the admonition that the CIA must do that 
consistent with due regard for the protection from unauthorized 
disclosure of sensitive intelligence information.
    And I understand that language to be more of a question 
about the manner in which information is conveyed and not so 
much about the overall obligation, which is very clear from the 
text of both sections 502 and 503, to keep the committees fully 
and currently informed.
    Senator Collins. Thank you.
    Let me switch to a different issue. You went to the White 
House beginning in May, 2013. That happens to be right around 
the time that Edward Snowden illegally disclosed highly 
sensitive information and fled to Russia. Were you asked to go 
to the White House to work on the Administration's response to 
the many unauthorized disclosures by Mr. Snowden?
    Ms. Heinzelman. No.
    Senator Collins. And did you work on this issue while you 
were there?
    Ms. Heinzelman. Senator, as an Associate Counsel in the 
White House Counsel's Office, my portfolio included a broad 
range of national security issues. And as you note, I was 
there--I think my start date coincided just a couple of days or 
weeks before those disclosures. And so I did work on those 
issues for the White House Counsel.
    Senator Collins. Thank you.
    Chairman Warner. Senator Casey.
    Senator Casey. Thanks very much.
    And Ms. Heinzelman, grateful for your presence here today, 
and your willingness to serve again, to serve the Nation at a 
difficult time especially in this position.
    I want to ask you about the balance that you'll have to 
strike I guess on most days between legal advice and the 
engagement you have with the policy staff in matters of policy. 
Tell me how you'd manage those different responsibilities as 
General Counsel?
    Ms. Heinzelman. Thank you, Senator, for that question.
    I have been--as I think about the position and the 
extraordinary responsibility, I've been thinking about this 
question about how you balance all the priorities of the 
General Counsel, in particular how to balance being responsive 
to Agency leadership, and the amount of time that they need 
from the General Counsel, as well as effectively manage the 
    But to address your question specifically, you know, I view 
the primary role of the General Counsel to advise on legal 
issues--but also the General Counsel can at times provide a 
non-legal counsel. And I view that principally as being counsel 
about risk, the kinds of things that are within the competence 
of a lawyer.
    But I do want to say in response to your question that the 
CIA is an intelligence agency, and they generally don't weigh 
in on matters of pure policy. And I think that's an important 
part of the ethos of the place. And as a lawyer, one of my 
reigning philosophies from the very first days when I was 
working as a junior staffer for judges, is to be very clear 
about my areas of competence and only advising within those 
areas. So even when giving non-legal counsel, I would be 
careful about ensuring that I am advising within my core areas 
of competence and not straying outside of them.
    Senator Casey. Thank you.
    And I know that when you serve as General Counsel, 
especially at a high level you've got to be a jack of all 
trades. And unlike the common understanding of that, you have 
to be a master of all. And it's difficult to do that when 
you're providing a range of advice on a wide array of topics or 
practice areas.
    But if this is in essence a job interview when you come 
before this Committee, tell us about what areas of your 
experience--which is substantial I believe--prepares you best 
to be able to provide that kind of broad-based advice on a 
range of legal issues and in difficult concepts for, I think, 
any General Counsel.
    Ms. Heinzelman. Thank you, Senator.
    I think there are three things--three features--of the 
experiences that I've had both in the public sector and the 
private sector that helped prepare me for this job in 
    The first is that I've had a series of positions over quite 
a considerable period of time in our Intelligence Community 
around our broader national security community. And from that 
I've taken away areas of specialization, particularly my work 
at the WMD Commission, at ODNI, and at Justice, on the 
domestic-focused authorities, law enforcement authorities, as 
they pertain to our national security community, but also more 
broadly as I've touched on other areas. So the first is the 
focus on national security issues specifically.
    The second is that I've been fortunate enough to be able to 
spend time at a variety of government entities. I've been on a 
commission that looked at intelligence failures. In a 20/20 
hindsight kind of way, I've been able to think about what it 
means that the Intelligence Community is so often asked to act 
quickly in the moment, to respond to something, and then steps 
back and has time to look at what were the lessons learned. I 
think that's an important, very healthy but also difficult 
feature of being in our national security community.
    I've had the opportunity to be at a very large General 
Counsel's Office operation at HHS. I've had the opportunity to 
see these issues from a variety of perspectives, and across a 
variety of Federal practice areas. And I think that has 
enhanced my understanding of what it is to be the sort of jack-
of-all-trades type General Counsel that you were mentioning.
    And the third feature of my experience that I think is 
important here is that throughout most of my career, I have 
spent time on technology and privacy issues, and often from a 
national security vantage point but sometimes not.
    My work at HHS was not national-security focused, but I had 
privacy-related responsibilities there. I think that broad 
understanding, both in the private sector and in the public 
sector, of privacy issues and technology issues is something 
that I would very much hope to bring to the Agency with me. And 
to think critically about how we can further strengthen the 
work that the Agency's lawyers are doing on those subjects.
    Senator Casey. Great. Thanks very much. Thanks, Mr. 
    Chairman Warner. Senator Blunt?
    Senator Blunt. Ms. Heinzelman, glad to have you here today. 
And glad that new baby didn't prevent you from being here. But 
hope the baby's here quickly and healthy.
    On your questionnaire, there was one area I wondered about 
that I think is particularly important that you said you hadn't 
had time to think about. The Presidential Memorandum of 
Notification really authorizes the scope of the CIA activity, 
and it can change and does change, I assume with frequency as 
new activities become available are more important than they 
have been before.
    If confirmed, do you commit to keep the Committee fully and 
currently informed on developments regarding these 
notifications and how they relate to CIA activities?
    Ms. Heinzelman. Yes, Senator Blunt. Consistent with the 
law, and I think the provisions of Section 503 which speak to, 
as you're describing, keeping the committees informed as 
programs evolve, is obviously of critical importance.
    Senator Blunt. Now, I'm not sure exactly what provision you 
cited there, but at what stage of the process do you think it 
would be your responsibility to let the Committee know that 
there was a new definition of scope of activity?
    Ms. Heinzelman. Senator, I don't have the text in front of 
me, but I believe that Section 503 speaks about notifying the 
committees before an action is undertaken and the obligation to 
keep the Committee fully and currently informed. That currently 
part is an integral part of the obligation and one that I would 
take seriously.
    Senator Blunt. All right, good.
    On another area that you have thought about, Section 702--I 
think you've actually published an article on 702, which is the 
Foreign Intelligence Surveillance Act, known as FISA. It 
authorizes the government to collect intelligence on non-U.S. 
persons located outside the United States, as this particular 
definition of what--how that Act can be applied. The authority 
expires at the end of 2023. In 2012, when it was about to 
expire, Attorney General Holder and the Director of 
Intelligence Clapper wrote a joint letter to Congress 
supporting a clean reauthorization. In 2017, the DIA and 
Attorney General Sessions did the same thing. Having looked at 
this, do you support a clean reauthorization of the FISA 
    Ms. Heinzelman. Senator, I understand Section 702 to be a 
critical intelligence tool. And I would look forward to working 
with this Committee on reauthorization of Title 7 of FISA, and 
would also be happy to work with this Committee, as Director 
Haines committed, to discuss any modifications that would 
enhance privacy and civil liberties without diminishing our 
national security. But I strongly support reauthorization.
    Senator Blunt. What do you see as the CIA's role in using 
the FISA authorities?
    Ms. Heinzelman. Senator, as you know, the CIA has 
minimization procedures that allow it to use FISA information 
that's been collected as part of its operations, and it has a 
robust and multi-layered oversight system for ensuring that the 
Agency does so consistent with the law and with the FISC 
approved minimization procedures and other internal agency 
guidance. And I would look forward, if confirmed, to helping to 
advise the Agency on that whole compliance framework.
    Senator Blunt. All right. Thank you, Chairman.
    Vice Chairman Rubio. Senator Cotton.
    Senator Cotton. Ms. Heinzelman, on September 29th, the 
National School Board Association sent the Biden administration 
a letter asking it to target, using law enforcement resources, 
parents who were protesting at school boards, not just for 
violence or threats of violence, but for what it said or for 
what the Attorney General, just five days later said, were 
other forms of intimidation and harassment. That memo was sent 
to the FBI, U.S. Attorneys' offices, the National Security 
Division, the Criminal Division, and the Civil Rights Division.
    Were you involved in creating the October 4th memorandum 
from the Attorney General directing law enforcement to target 
parents at school boards?
    Ms. Heinzelman. Thank you, Senator Cotton.
    The October 4th memorandum that your question refers to 
was, as the Attorney General has said, about violence and 
threats of violence against school workers----
    Senator Cotton. Ms. Heinzelman, our time is limited here 
and I asked a simple question. I know what the memorandum says. 
It also talks about intimidation, harassment. Were you involved 
in creating that memorandum?
    Ms. Heinzelman. Senator, in my role as chief counsel to the 
Attorney General, with regard to matters that came before the 
Attorney General, I generally had visibility into most matters 
that came before the Attorney General. This, as the Attorney 
General has said, was a memo that he issued. This is his memo.
    Senator Cotton. So, where are you personally involved in 
that matter or not? You gave a general answer. I want a 
specific answer about this memo.
    Ms. Heinzelman. Senator, I want to be as forthcoming with 
you as I can be. When matters come before the Attorney General, 
my role----
    Senator Cotton. I'm not talking about matters. I'm talking 
about this matter, this specific memo. Were you involved in 
creating this memo with your boss, Merrick Garland?
    Ms. Heinzelman. Generally, my role in matters that came 
before the Attorney General is to do any of our variety of 
things. I might sit in on--.
    Senator Cotton. So I take it you're not going to give me an 
answer to that question then, since you've not answered it now 
    Ms. Heinzelman. Senator, I would like to be as transparent 
with you as possible. But I hope you'll understand----
    Senator Cotton. But there's no reason that you can't--I 
mean, I'm not asking you what advice you gave. I'm not--this is 
not a legal case, is a policy decision. You were a counselor to 
the Attorney General and you don't want to answer it.
    Ms. Heinzelman. Senator, with regard to matters that came 
before the Attorney General, most matters that came before the 
Attorney General, I would have visibility on it. That could 
range from setting up a meeting, attending a meeting, advising 
him on associated statements or actions. And I hope you'll 
understand the need for the Attorney General to receive 
confidential advice. But with regard to most matters that the 
AG was personally involved in and, and in this matter, he 
certainly was. This was his memo. I would have some visibility 
into it at a minimum.
    Senator Cotton. What about the U.S. Marshals in Portland? 
The courthouse in Portland the summer of 2020 was under attack 
by left-wing street militias. Now left-wing activist groups 
have been suing the marshals who bravely defended it. The 
Department has hung out to dry four Deputy U.S. Marshals. 
They're not paying to represent them in those lawsuits. Were 
you involved in the decision not to represent those Marshals 
and those lawsuits?
    Ms. Heinzelman. Senator, I understand your concern about 
this matter. The Department of Justice has as a core value that 
it works through its Civil Division and the U.S. Attorneys' 
offices to defend officers who are acting within the scope of 
their duties. My understanding is that the Department is 
defending many officers----
    Senator Cotton. They're defending 70, but I didn't ask 
about the 70, I asked about the four. I assume you're familiar 
with the parable of the lost sheep. The shepherd left 99 to go 
get the one because he wanted to save the one. I'm worried 
about four. I'm not worried about 70.
    Ms. Heinzelman. I understand Senator. My understanding is 
that generally these decisions about representation, either 
having the Justice Department represent or pay for 
representation, they are made pursuant to Departmental 
regulations and the division that primarily works on those 
matters is the Civil Division or the U.S. Attorneys' offices 
who are the subject matter experts on those matters.
    Senator Cotton. Okay. So no answer on that one, either. I 
assume we're not going to get an answer if you were involved in 
the cancellation of the China Initiative.
    Ms. Heinzelman. Senator, one of the areas that I've focused 
on in particular for the Attorney General is national security 
matters. I would advise him on national security matters. With 
regard to the China Initiative, the Department's position on 
that is public and Attorney General Olson has made his decision 
on that matter clear. I'm happy to address it in more detail.
    Senator Cotton. Okay. So that's the third case in which we 
won't get an answer on that.
    My time's up. I just want to observe, I disagree with what 
Senator Burr and Senator King said: that you, in this role or 
your office is going to be this mythical, heroic lawyer telling 
rogue officers and directors that they cannot take action that 
is illegal. I think it's much more likely that senior 
leadership and the CIA or the National Security Council will 
ask you to provide legal cover for actions they don't want to 
take that are perfectly legal. So they probed it. Would you 
stand up to someone and say, this is illegal? I want to know if 
an action or policy is legal, but you've been told that the 
Agency or the Administration doesn't want to take it, will you 
give your best legal advice that it is illegal? You're making a 
policy decision.
    Ms. Heinzelman. Senator, as a lawyer, I view it as my 
primary responsibility to give my best legal advice--my most 
candid, forthright, legal advice--based on the facts and the 
law on any matter. That is what I've done in my current job, in 
my past jobs, and that is what I would do if confirmed to this 
    Senator Cotton. Even if you know that superiors at the CIA 
or the NSC do not want to pursue that course of action, will 
you still give them the advice that that course of action is 
legal if they choose to pursue it?
    Ms. Heinzelman. Senator, I would always give my best legal 
advice regardless of what a client--what outcome I believe the 
client wants to get to, if I'm understanding the question 
correctly. I view it as my duty to give them my straight view 
on the law and on the facts of a given matter.
    Senator Cotton. Well, I mean, my concern--I mean, there's 
some people on the front lines in the Agency or for that matter 
in other departments, like Department of Defense, think that 
lawyers are always looking for a way to get to no, especially 
if it's an aggressive operation or policy. I'm as concerned 
that lawyers are being directed to get to no by policymakers 
about them. But my time is up.
    Chairman Warner. I think the witness said--I apologize 
having to step out briefly for a meeting. I heard when asked 
questions about seeing something illegal, will you point it 
out? If you see something that's legal and you're being told 
it's not, you won't reach another opinion. You've got to give 
them your best answer. And I think that's why I believe you 
were nominated in by the Administration. That's, I think, 
reflected in your background.
    Senator Cornyn.
    Senator Cornyn. Ms. Heinzelman, giving legal advice is not 
like a chemistry test, is it? There's no if you stick a piece 
of litmus paper in a liquid substance that it turns blue or 
pink. Giving legal advice isn't like that, is it?
    Ms. Heinzelman. Senator, in the sense that giving legal 
advice doesn't always end up with a straight yes-or-no-this-is-
clear answer, absolutely. I agree with that. There are lots of 
gray areas.
    Senator Cornyn. Right. Well, and in your experience when it 
comes to intelligence matters, like you'll be advising on at 
the CIA, there are different types of risks. You've talked 
about legal risk, but there are also operational risks that the 
Agency has to consider, correct?
    Ms. Heinzelman. Correct.
    Senator Cornyn. You and I talked about the book that 
General Hayden, the former Director of the CIA, had written 
called ``Playing to the Edge.'' And we talked about the fact 
that I hope that in rendering your legal advice, you will play 
to the edge. I don't want you going over the line, but I do 
want you to going up to the line of the legal authorities given 
to our Intelligence Community.
    But we also discussed the hypocrisy associated with some of 
that advice, in that when nothing bad happens, somebody usually 
on this side of the dais will come back and ask questions and 
say, ``Well why were you so aggressive? Why didn't you look at 
this? Why didn't you look at that?'' And of course, long after 
the threat or the danger has subsided or gone away, at least 
from people's memory, that's been an experience of the Nation, 
particularly in the war on terror and the aggressive role that 
we've asked our IC to play to protect American lives.
    So, I guess this is a little bit of a segue from Senator 
Cotton's questions. Do you consider it your obligation to try 
to tell your client, if you want to do this, this is how you 
can do it legally? Is that how you approach the job? I share 
some concern that it's too easy for lawyers to say, no, you 
can't do it, because it does entail some risks. But everything, 
all the advice that you're going to be rendering, will entail 
some risk. Correct?
    Ms. Heinzelman. Thank you, Senator Cornyn.
    As you and I discussed the other day, I think that really 
good lawyers do a number of things for their clients when 
they're giving advice. They advise them not only on where the 
outer limits are--that white line that you talked about--and 
make sure that their clients stay within those lines to protect 
their clients. They also advise their clients on what we were 
just talking about as being all the gray. They help their 
clients understand risks. They help their clients understand 
better courses of action. And I think that's where the really 
creative and challenging lawyering comes into play. Helping 
your clients get to yes when there can be a yes. Right? And 
helping your clients figure out all the tools they have 
available to them so they can use them most effectively.
    And so, I really see it not just as being about defining 
the outer bounds of the law, but also about enabling 
decisionmakers to make smarter choices. So I fully agree with 
the sentiment that you expressed about that.
    Senator Cornyn. Who is your client? As General Counsel of 
the CIA, who is your client?
    Ms. Heinzelman. I believe the client of the CIA's General 
Counsel is the Director, the Agency, and ultimately the 
American people.
    Senator Cornyn. When it comes to disclosing classified 
information, is the President the final word on who information 
will be disclosed to?
    Ms. Heinzelman. My understanding, Senator, is that a number 
of government officials qualify as original classification 
authorities and can determine to declassify information 
consistent with the law. The President, I believe, has those 
authorities and is one of those classification authorities.
    Senator Cornyn. But the President himself as head of the 
Executive Branch has the final word, does he not?
    Ms. Heinzelman. Consistent with the law, the President, I 
believe, has considerable classification authorities.
    Senator Cornyn. Well, it seems to me like that sets up a 
real tension between the obligation for the Intelligence 
Community to share with oversight committees like this one, and 
perhaps a decision made at the highest levels of the Executive 
Branch, not to share certain information. I think I'm 
remembering this correctly, that when Harry Truman became 
President of the United States, he was not aware that the 
Manhattan Project existed and we were working on an atomic 
bomb. And in that case, obviously, President Roosevelt decided 
not to tell even his Vice President. So that's what has 
prompted my question.
    But do you see any potential conflict or any potential 
problem with doing what Senator King and others have talked 
about in terms of sharing information with this Committee? And 
the President's role and the Executive Branch's role in 
deciding how widely to share classified information?
    Ms. Heinzelman. Senator, I think it's the obligation of the 
General Counsel's office at CIA to advise clients on some of 
the legal issues associated with classification, including the 
proper interpretation of Executive Order 13256 on 
classification standards. I would carry out that role, faithful 
to the law--the law that binds both the CIA and the White House 
on issues of how to properly classify and declassify 
    Senator Cornyn. Well, that's an important point because you 
would be giving legal advice. You wouldn't be making the 
ultimate decision on how widely the information would be 
    Ms. Heinzelman. That's correct, that I would be giving the 
legal advice to decisionmakers as CIA General Counsel. However, 
there's an independent obligation, which I'll just mention 
because I think it's an important one, to share information 
about the legal basis for CIA's actions, and that's an 
independent obligation specifically placed on the General 
Counsel. So, in that regard, I would have a very direct 
obligation to this Committee, as well.
    Senator Cornyn. Thank you.
    Chairman Warner. I believe Senator King has a followup.
    Senator King. Yes. You've talked about technology. Through 
the miracle of technology, I've reviewed Section 502 and 503 
and they couldn't be more explicit. One of the most explicit 

        ``To the extent consistent with due regard for the protection 
        from unauthorized disclosure of classified information, 
        relating to sensitive intelligence sources and methods or other 
        exceptionally sensitive matters, the Director of National 
        Intelligence and the heads of all departments, agencies, or 
        other entities of the U.S. Government involved in intelligence 
        activities shall keep the congressional intelligence committees 
        fully and currently informed of all intelligence activities, 
        other than a covert action.''

    And there's Section 503 that covers covert action, and it 
says almost essentially the same--that there's an obligation to 
disclose to the congressional intelligence committees. And 
that's the bedrock of this responsibility. The only issue is 
not revealing sources and methods. And of course, that can be 
done through processes that we have of only the ``Gang of 
Eight,'' for example, or the full Committee. But I think this 
is a case where the responsibility of the Intelligence 
Community to keep us fully informed of activities, including 
covert action, is absolutely explicit in the law. And I 
appreciate your commitment to that principle, which you've 
stated to us today. Is that correct?
    Ms. Heinzelman. Thank you, Senator King.
    Yes. I was trying to answer the question--what I took to be 
a separate question--about compliance with determinations about 
what is properly classified under the law and what is not. I 
think it's a separate question whether----
    Senator King. But you wouldn't interpret that statute to 
say just because it's classified, you can't share it with us.
    Ms. Heinzelman. Certainly not.
    Senator King. Thank you, Mr. Chairman.
    Chairman Warner. Senator Cotton, do you have a--? My 
understanding is you want to make a request to go into closed 
session? Could you--?
    Senator Cotton. I think we should. We didn't get any 
answers in a public setting to what I asked, even though 
they're not classified. But I have classified questions. I know 
we typically don't do that with nominees, but Ms. Heinzelman is 
a current U.S. Government employee with a security clearance. 
And she's worked in this field in the past. I think there are 
issues that we should explore about her role in Obama 
administration decisions.
    Chairman Warner. Well, listen, I'm going to try to honor 
the Senator's request and, obviously, I'd say we, we could see 
if we could make her available at a different time. Although I 
think we may be back into that close time and her change in 
status. I'm not sure----
    Senator Cotton. I mean, if no one else was prepared to have 
one and we're not prepared to have one, we can look at it 
another time.
    Chairman Warner. Well, I'm just concerned that I think 
she's about to go on maternity leave. I want to try to 
accommodate you. I'm not sure whether her answers about what 
she was doing as a legal--and I didn't hear all your line of 
questions, so I apologize.
    But if they're going to be questions about her when she was 
acting as a legal counselor in the current Administration or in 
a past Administration, like most lawyers, they may simply say, 
I'm not going to weigh in on that. But if it would feel better 
to ask those questions, ask her if there's going to be a 
different response in a closed setting----
    Senator Cotton. Well, that's half of it. But the other half 
is--as Susan Collins talked about her experience working on the 
Edward Snowden matter. She was at the White House, there was a 
lot of other stuff going on then as well. There was the 
Presidential Decision Directive 39: U.S. Policy on 
Counterterrorism. There was the Presidential Policy Directive 
28: Signals Intelligence Activities. There's Syria. There was 
the Iran nuclear deal.
    Again, I know that normally we don't get to explore these 
questions with nominees because they're not active U.S. 
Government employees with security clearances, but they are 
here. Again, we don't have to go have a formal hearing right 
now, but I would like a chance to explore them with her at some 
point. So I'm fine not going to close setting right now.
    Chairman Warner. I was asking the staff. Is there a way 
that you could ask those questions for the record in a 
classified manner, or do you want to have a back and forth with 
    Senator Cotton. We can. Look, I think we could probably 
start there. Let's start there.
    Chairman Warner. I want to try to accommodate, but I also 
recognize that I wasn't just sure that some of her answers may 
be that much different, but I do want to make sure.
    Senator Cotton. All of our peers are already gone off to an 
early lunch.
    Chairman Warner. Well Senator King and I are still here.
    Senator Cotton. Senator King's only here cause like me, he 
always waits till the end, but now, why don't we try to start 
there we'll see if that works.
    Chairman Warner. All right. Well, I also want to make sure 
that you don't raise objections if tomorrow she delivers a baby 
and say, one more of this Biden administration's--trying to 
avoid my questions that way.
    Senator Cotton. All right.
    Chairman Warner. So we'll try.
    Senator Cotton. I wish you the very best and especially big 
brother and sister who are going to have to deal with another 
one coming along. The very best as well.
    Chairman Warner. Well, I appreciate Senator Cotton. But I 
do want the witness to recognize that there will be additional 
questions. And again, how you answered them is up to you. But I 
want to, I do want to find, make sure you get to--.
    Well, I appreciate your presence. I appreciate your family 
all being here. I appreciate your willingness to serve. I look 
forward to trying to move this nomination as quickly as 
possible. I think it's really important that the Agency gets a 
General Counsel. I think there's a critically important role. 
Candidly, I think both Senator Cotton's right, and some of the 
Members on this side, that this job is so important that not 
only do you have to point out illegal activities, but I think 
the points raised by Senator Cotton that if any Administration 
says, hey, we don't want you to do this, but it's perfectly 
legal, maybe they'll make a policy decision on that, but it 
shouldn't be based on legal opinion.
    I think, truthfully, you have the experience, the expertise 
and the knowledge to make those kinds of judgments. It is a 
critically important role. And again, I appreciate your 
presence here and good luck in the coming hours, days, and 
    Senator King. Mr. Chairman, I'd like to note the role of 
Yale Law School in this hearing. The nominee is a graduate. I'm 
sure she would say that Yale had a lot to do with her getting 
where she is, as it did with me--when Yale Law School rejected 
my application. I dedicated my life to making them regret the 
decision and hence my position on this side of the dais. Thank 
    Chairman Warner. I'm not sure I've shared this with the 
Committee, but I also ended up at that law school in Cambridge 
because the one in New Haven rejected me as well.
    Senator King. [Off-Mic. Inaudible.]
    Chairman Warner. I'm not sure I'm going to go there, but I 
do want to make sure, at least for staff that any, if any 
members of the Committee wish to submit questions for the 
record after today's hearing, please do so by 5 p.m. on Friday, 
April 8th.
    And with that good luck going forward and best of luck to 
your family. They all should be very, very proud of you.
    Hearing adjourned.
    Ms. Heinzelman. Thank you.
    [Whereupon the hearing was adjourned at 11:28 a.m.]

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