Hearing Type: 
Date & Time: 
Wednesday, January 17, 2018 - 11:30am
Hart 216

Full Transcript

[Senate Hearing 115-248]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 115-248

                     OF THE OFFICE OF THE DIRECTOR
                        OF NATIONAL INTELLIGENCE



                               BEFORE THE


                                 OF THE

                          UNITED STATES SENATE


                             SECOND SESSION


                      WEDNESDAY, JANUARY 17, 2018


      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 

29-479 PDF                     WASHINGTON : 2018         

           [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 III, West Virginia
TOM COTTON, Arkansas                 KAMALA HARRIS, California
                 MITCH McCONNELL, Kentucky, Ex Officio
                  CHUCK SCHUMER, New York, Ex Officio
                    JOHN McCAIN, Arizona, Ex Officio
                  JACK REED, Rhode Island, Ex Officio
                      Chris Joyner, Staff Director
                 Michael Casey, Minority Staff Director
                   Kelsey Stroud Bailey, Chief Clerk


                            JANUARY 17, 2018

                           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


Klitenic, Jason, Nominated to be General Counsel of the Office of 
  the Director of National Intelligence..........................     5
    Prepared statement...........................................     8
Atkinson, Michael, Nominated to be Inspector General of the 
  Intelligence Community.........................................    18
    Prepared statement...........................................    21

                         SUPPLEMENTAL MATERIAL

Nomination material for Jason Klitenic
    Questionnaire for Completion by Presidential Nominees........    42
    Additional Prehearing Questions..............................    62
    Additional Prehearing Questions for the Record...............    87
Nomination material for Michael Atkinson
    Questionnaire for Completion by Presidential Nominees........    92
    Additional Prehearing Questions..............................   112

                     OPEN HEARING ON THE NOMINATION  
                      GENERAL OF THE INTELLIGENCE  


                      WEDNESDAY, JANUARY 17, 2018

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 11:32 a.m. in 
Room SH-216, Hart Senate Office Building, Hon. Richard Burr 
(Chairman of the Committee) presiding.
    Committee Members Present: Senators Burr, Warner, Risch, 
Collins, Blunt, Lankford, Feinstein, Wyden, Heinrich, King, 
Manchin, and Harris.


    Chairman Burr. I'd like to call this hearing to order. I'd 
like to welcome our witnesses today: Jason Klitenic, President 
Trump's nominee to be the next General Counsel for the Office 
of Director of National Intelligence; and Michael Atkinson, 
President Trump's nominee to be the next Inspector General of 
the Intelligence Community.
    Gentlemen, congratulations to both of you on your 
nominations. I'd like to start by recognizing the families that 
you've brought with you today. Jason, I understand you have 
your wife Kate--wave; good.
    [Kate Klitenic waves.]
    As well as your children Amelia, Hazel, and Clark; your 
Mother, Joyce--Joyce, where are you?
    [Joyce Klitenic waves.]
    I know you're proud.
    Michael, I believe you have your wife, Kate. Have you guys 
got something going on here?
    Your sons Ian and Chris; and your parents, Nelson and 
    Welcome to all of the family members. This is a very 
special day.
    Kate, your parents are here, John and Ellen Cameron; and 
your brother-in-law and sister-in-law Scott and Beth Atkinson. 
    Thank all of you for your support of Jason and Michael. I'm 
confident that they would not be here today if it were not for 
your years of love, encouragement, and, potentially more 
important, your patience.
    Our goal in conducting this hearing is to enable the 
Committee to consider both nominees' qualifications and to 
allow for thoughtful deliberation by our Members. The witnesses 
each have already provided written responses to over 40 
questions presented by the Committee and its Members. Today, of 
course, Members will be able to ask additional questions and 
hear directly from the nominees.
    Mr. Klitenic graduated from Johns Hopkins University and 
received his law degree from the University of Baltimore Law 
School. Jason then served as Deputy Associate Attorney General 
at the Department of Justice, where he oversaw antitrust, civil 
rights, and environmental law. Thereafter, from 2003 to 2005 he 
served as the Deputy General Counsel of the Department of 
Homeland Security. Following his government service, Jason 
worked in the private sector, most recently as a partner at the 
law firm Holland & Knight.
    Mr. Atkinson earned his undergraduate degree from Syracuse 
University, his law degree from Cornell. After his time in the 
private sector as a partner at Winston & Strawn, Michael served 
as a trial attorney in the Fraud Section of the Department of 
Justice Criminal Division from 2002 through 2006.
    From 2006 to 2016, Michael served as Assistant U.S. 
Attorney in the U.S. Attorney's Office for the District of 
Columbia. During that time, he was Deputy Chief of the Fraud 
and Public Corruption Section and Acting Chief of the Fraud and 
Corruption Section. Michael currently serves as the Acting 
Deputy Assistant Attorney General and Senior Counsel to the 
Assistant Attorney General of the Department of Justice 
National Security Division.
    Jason, you've been asked to be the lead counsel for the 
Office of the Director of National Intelligence at a time we're 
facing threats from state and non-state actors and are engaged 
in a robust debate at home on the scope and scale of 
intelligence collection and what authorities are right and 
appropriate and lawful. I trust that you will provide sound 
legal counsel and judgment and will speak truth to power as the 
Director of National Intelligence works through some incredibly 
complex and divisive issues.
    Michael, independent and empowered inspectors general are 
critical to the integrity and the efficient management of the 
intelligence community. I trust that you will lead the 
Inspector General of the Intelligence Community's Office with 
integrity and will ensure that your officers operate lawfully, 
ethically, and morally.
    The Committee will ask for your responsive, transparent, 
and timely responses in our interactions, a necessary condition 
for us to conduct effective oversight. As I have mentioned to 
other nominees during their confirmation hearings, 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 
will ask difficult and probing questions of you, and your 
staff, and we expect honest, complete responses.
    I enjoyed meeting both of you and discussing your 
qualifications and the reasons for pursuing continued public 
service. I look forward to supporting your nominations and 
ensuring their consideration without delay. I want to thank you 
both again today for being here, for your years of service to 
our country. I look forward to your testimony, and I now 
recognize the Vice Chairman for any comments he might have.


    Vice Chairman Warner. Thank you, Mr. Chairman.
    Welcome, Mr. Atkinson and Mr. Klitenic. Congratulations on 
your nominations to serve as Intelligence Community Inspector 
General and General Counsel for the Office of the DNI. Both of 
these positions are critically important to ensuring the 
intelligence community runs efficiently and effectively, that 
it abides by the laws of this country, and that the IC protects 
against waste, fraud, and abuse.
    One of the most important attributes that both of you, if 
you're confirmed, will have to bring to these roles is the 
willingness to speak truth to power. For this reason, I'll be 
asking each of you to uphold your principles, to always provide 
unbiased, unvarnished, and timely advice to both the Director 
of National Intelligence and to the Congress.
    You're also aware that this Committee is leading the review 
into the Russian interference in the 2016 U.S. presidential 
election. During this hearing I want to hear assurances from 
both of you that you will fully cooperate with this review and 
provide this Committee with all the information requested in a 
timely fashion.
    Mr. Atkinson, as the Inspector General of the Intel 
Community your job is especially critical because of the nature 
of the material that they handle every day, whistleblowers 
within the IC generally can't go public to expose misbehavior 
and misuse of official resources. We the Congress and the 
American people will depend upon you as an independent agent of 
accountability for the Office of the DNI and, for that matter, 
for the whole intel community.
    While you don't have previous experience as an inspector 
general, I look forward to hearing your plans for the righting 
of the ship at the IC's IG when it comes to both whistleblower 
protections and investigations. I'm very concerned by the 
significant number of open cases that I believe have lingered 
too long. If confirmed, I will ask you to make the 
whistleblower program a priority. This is an area that cuts 
across party lines and committee jurisdictions.
    Senators Grassley, Wyden, Collins, and I together have 
requested a GAO study to review IC-wide whistleblower policies 
and procedures. This study, when completed, will help inform 
your approaches and ours as we seek to address some of the 
    Mr. Klitenic, your job will be to give Director Coats the 
best possible legal counsel possible, even when doing so, as we 
discussed, might be inconvenient or even uncomfortable. I value 
your commitments that you have made to me and I hope you'll 
reiterate some of those commitments publicly. One, that you 
will ensure that all of the work of the ODNI and the IC is 
consistent, is constitutional and consistent with the law; 
that, again, that you'll speak truth to power regardless of 
political considerations or the willingness of those in power 
to hear that truth; that you will see your legal obligation to 
keep the intelligence oversight committees--and this is 
terribly important--fully and currently informed of all 
significant intelligence activities, as just the bare minimum 
of our engagement; that as chief lawyer for the intelligence 
community, I believe you'll have to make sure, as we touched on 
as well, that policies like issues that particularly Senator 
Feinstein has been a champion of, of making sure that 
interrogation practices--that we don't go back to the past.
    To both of our nominees, again echoing the Chairman, 
congratulations. It's an honor that you've been nominated to 
serve our country. I want to thank you for accepting these 
opportunities and these positions and look forward to the 
opportunity to question you.
    Thank you, Mr. Chairman.
    Chairman Burr. Thank You, Vice Chairman.
    Mr. Klitenic and Mr. Atkinson, would you please stand. I'm 
going to ask you to raise your right hand.
    Do you solemnly swear to give the Committee the truth, the 
full truth, and nothing but the truth, so help you God?
    Mr. Klitenic. Yes.
    Mr. Atkinson. Yes.
    Chairman Burr. Please be seated.
    Jason and Michael, before we move to your statements I'll 
ask you to answer five standard questions that the Committee 
poses to each nominee who appears before us. They just require 
a simple yes or no response.
    Do you agree to appear before the Committee here or in any 
other venue when invited?
    Mr. Atkinson. Yes.
    Mr. Klitenic. Yes.
    Chairman Burr. If confirmed, do you agree to send officials 
from your office to appear before the Committee and designated 
staff when invited?
    Mr. Atkinson. Yes.
    Mr. Klitenic. Yes.
    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 and legislative responsibilities?
    Mr. Klitenic. Yes.
    Mr. Atkinson. Yes.
    Chairman Burr. Will you both ensure that your office and 
your staffs provide such materials to the Committee when 
    Mr. Klitenic. Yes.
    Mr. Atkinson. Yes.
    Chairman Burr. Do you agree to inform and fully brief to 
the fullest extent possible all Members of the Committee of the 
intelligence activities and covert action, rather than only the 
Chair and Vice Chairman, where appropriate?
    Mr. Atkinson. Yes.
    Mr. Klitenic. Yes.
    Chairman Burr. Thank you very much.
    We'll now proceed to your opening statements, after which 
I'll recognize Members by seniority for up to five minutes of 
questions. Jason, I'll ask you to begin, followed by Michael.


    Mr. Klitenic. Chairman Burr, Vice Chairman Warner, Members 
of the Committee: Thank you for providing me the opportunity to 
appear before you today as you consider my nomination to be 
General Counsel of the Office of the Director of National 
    I also want to thank the President and Director Coats for 
placing their confidence in me. If confirmed, I commit to 
working every day to maintain this confidence and to 
demonstrate to them and to each of you that I will uphold the 
highest standards of the office.
    With your indulgence, I would like to recognize my family, 
without whose love and support I would not be here. Joining me 
today are: my mother, Joyce Klitenic; my sister Jenny 
Whittaker; my brother-in-law John Whittaker; my brother-in-law 
Evan Howell; and my sister-in-law Helen Wray. I would also like 
to recognize my sister, Sarah Wear, who is back home with her 
husband awaiting the birth of their child, which I believe to 
be imminent.
    Also seated behind me are four more very important people 
in my life: my wife of 24 years, Kate; and our three children, 
Amelia, Clark, and Hazel. In a setting such as this, it is 
difficult to explain how grateful I am to my family for their 
never-ending support. And thank-you to my close friends and 
colleagues who took time out of their busy days to join us here 
    Additionally, I want to remember someone who is not with us 
today. My father, Earl Klitenic, passed away three years ago. I 
think about him each day as I strive to live up to the high 
standards that he and my mother set for me.
    By way of background, I grew up in the Washington, D.C., 
area, fortunately in a house with parents who loved me and who 
from the beginning taught me the difference between right and 
wrong, the importance of unyielding integrity, and the value of 
hard work. My parents also taught me how lucky I am to be an 
American and that I should never take the attendant freedom for 
    They taught me about patriotism, democracy, security, free 
speech, and the rule of law, and that the role of our 
government is to keep us safe from harm while protecting the 
civil liberties that enable us to live in a free, open, and 
diverse society. Millions of people throughout the world suffer 
under regimes that provide neither security nor freedom. Here 
we are blessed to have both.
    My parents also taught me the importance of public service. 
They were career government civil servants. My father served in 
the Department of Defense, the Justice Department, and the 
United States Information Agency. Before retiring, my mother 
spent the bulk of her career at the Justice Department, where 
she served in the Office of Intelligence Policy Review and, 
after its creation, the National Security Division.
    Following in my parents' footsteps, I have had the 
privilege to serve both in the Justice Department and the 
Department of Homeland Security. I've been among and around the 
national security community throughout my life, both personally 
and professionally.
    I have the highest regard for the men and women who serve 
in the intelligence community. Both in private practice and 
while serving in government, I have had the opportunity to work 
closely with the people who protect us from our adversaries and 
in doing so preserve our values as a Nation. These people, who 
work outside the limelight and beyond the scope of credit and 
accolades, each day perform their jobs with discipline, 
attention to detail, and unrelenting dedication to the mission. 
If confirmed, it would be an honor for me to serve with them 
again on behalf of our country.
    My past experience has prepared me well for this position. 
During my tenure at DHS and DOJ, I worked on complex legal 
issues involving counterterrorism, cyber security, data 
privacy, and government-wide information-sharing initiatives, 
work that I believe helped keep this Nation safe while 
preserving our civil liberties.
    Through my past government service, I also gained 
significant management experience and became adept at 
navigating the inter-agency processes that are integral to the 
effective functioning of our government. In all this work, I 
stressed the importance of working together across the 
government to do what was lawful and what was right.
    Once public service is in your blood, you can never truly 
step away from it. In private practice, I lead my firm's 
homeland security team and continue to work closely and 
collaboratively with the people who serve in our national 
security agencies.
    The General Counsel position for which I have been 
nominated is, of course, a legal position, an important legal 
position. If confirmed, my allegiance would be to the 
constitution and my vow would be to uphold the rule of law. 
Based on my prior government experience, I am keenly aware that 
legal advice cannot be given in a vacuum. By that I mean, while 
I may be opining on a legal issue within the safe and 
comfortable confines of the headquarters office, the ultimate 
end consumer of my advice might be a career analyst or operator 
out in the field. When I render legal advice, I will be 
thinking of people whom I may never meet, but who are relying 
on my views in the course of performing difficult and dangerous 
jobs on behalf of our country.
    I never want to fail those people. It is important to me 
that they be able to rely upon my legal advice with the full 
confidence that it is timely, clear, actionable, and fully 
supported by law. There is no corner-cutting in this line of 
    I also believe strongly in my responsibility, if confirmed, 
to keep Congress fully and currently informed and my 
responsibility to support your oversight over the IC. The IC's 
unique missions are often practiced in secrecy to protect 
critical sources and methods in support of our national 
security. That secrecy makes my relationship and engagement 
with this Committee all the more important. I pledge to build 
open relationships of trust with this Committee and your House 
counterparts, as I recognize the critical role that you play in 
representing the American people for these sensitive matters.
    In closing, I want to stress that, if confirmed, I would 
very much look forward to working with each of you and your 
staffs. I am mindful of this Committee's important oversight 
role and I would hope that you would find me to be a trusted 
resource and dependable public servant.
    I look forward to answering your questions.
    [The prepared statement of Mr. Klitenic follows:]


    Chairman Burr. Jason, thank you very much.
    Michael, the floor is yours.


    Mr. Atkinson. Chairman Burr, Vice Chairman Warner, Members 
of the Committee: Thank you for scheduling this hearing to 
consider my nomination to be the Inspector General for the 
Intelligence Community. I am honored to have been nominated for 
this position by President Trump, with the support of the 
Director of National Intelligence, Dan Coats.
    I first want to thank and recognize my family members and 
friends who are here today and watching remotely. Here with me 
today are: my wife Kate; and our two sons, Ian and Christopher; 
my parents, Nels and Jan Atkinson; my wife's parents, John and 
Eileen Cameron; and my youngest brother and his wife, Scott and 
Beth Atkinson.
    I also see friends and colleagues in the audience and I 
thank them for their support. I also want to thank my family 
and friends who are watching this hearing remotely.
    The prehearing materials that I submitted to the Committee 
summarize my background and experience. I want to take just a 
few minutes to add some context to those materials and to 
recognize additional people who have helped me to be here 
    After graduating from law school at Cornell University, I 
went to work as an associate at Winston & Strawn here in 
Washington, D.C., where I stayed for 11 years and was elected 
partner. Winston & Strawn provided me with good, excellent 
legal training, superb mentors and colleagues, and challenging 
legal experiences in complex civil litigation and white collar 
criminal defense matters. I was fortunate to have such an 
enjoyable start to my legal career.
    But I also felt that some things in my professional life 
were missing. I wanted more challenges, greater 
responsibilities, and different rewards. After the September 
11th attacks, I decided to seek public service work. In 2002, I 
was delighted when the leaders in the Criminal Division in the 
United States Department of Justice offered me a position as a 
trial attorney in the Fraud Section.
    The Fraud Section filled the professional gaps I had been 
feeling in private practice. I was able to work exclusively on 
complex white collar criminal fraud matters, with talented and 
experienced prosecutors and law enforcement agents from around 
the country. I was given greater responsibilities, including an 
opportunity to try my first jury trial. Thankfully, I was 
paired with a hard-working and much more experienced trial 
partner, as we were up against some of the best defense 
attorneys in the country. I am thankful that one of those 
defense attorneys, Reid Weingarten, was gracious enough to 
write a letter of recommendation for me in support of my 
    While at the Department of Justice, I also had the 
opportunity to experience the different professional rewards I 
had been seeking. My sense of professional accomplishment was 
never higher. For that I also have to thank my wife, who 
remained in private practice and made her own personal and 
professional sacrifices to help me realize my professional 
    I left the Fraud Section in 2006 to become an Assistant 
United States Attorney in the United States Attorney's Office 
for the District of Columbia. The U.S. Attorney's Office 
provided me with all the challenges and rewards that I had come 
to enjoy at the Fraud Section, but with some added benefits. I 
was able to reduce the amount of time I was on the road and to 
spend more time in the area as my wife and I raised our two 
    Becoming an AUSA also gave me an opportunity to become part 
of a new family at the U.S. Attorney's Office and to experience 
an extraordinary camaraderie with colleagues, special agents, 
and investigators. I am grateful to them for their work ethic, 
professionalism, and friendship, which allowed me to be part of 
a highly effective team in helping to root out fraud and public 
corruption here in our Nation's capital.
    I left the U.S. Attorney's Office after ten years to take 
on greater responsibilities within the Department of Justice in 
an area of the law that I did not have much experience, 
national security. I joined the Department's National Security 
Division in 2016 and began to learn in detail about cyber 
security, export controls, and sanctions, economic espionage, 
unauthorized disclosures, and foreign direct investment.
    I thank my colleagues at the National Security Division for 
their patience and support in helping me to learn these complex 
areas of the law, especially for helping someone like me, who 
once had to pay a $75 fine as a teenager for illegally spearing 
fish to understand that illegal spear phishing in today's world 
typically has nothing to do with fish.
    I believe that my prior experiences and substantive 
knowledge suit me well for my next challenge, which, if 
confirmed, would make me the Intelligence Community Inspector 
General, or the IC IG.
    As I have made my rounds through your offices during the 
past several weeks, meeting with the Chairman, the Vice 
Chairman, several other Committee Members, Senator Grassley, 
and numerous professional staff members, I've been left with 
two primary impressions about the Office of the IC IG. I want 
to share those impressions, and I particularly want to share 
them with any current employees of the IC IG who may hear or 
read my statement.
    First, I am left with the impression that this Committee 
and other members of the Senate are unified in their desire to 
see the IC IG succeed as an office. As was the case when 
Congress created the IC IG in 2010, there are many contentious 
issues within the intelligence community, but the need for an 
IC IG is not one of them. My impression is that the Committee 
remains unified in its support for an IC IG that can identify 
problem areas and find the most efficient and effective 
business practices required to ensure that critical 
deficiencies are addressed before it is too late, before we 
have an intelligence failure.
    There also remains strong bipartisan support for an 
Inspector General of the Intelligence Community who, as the 
Chair of the IC IG Forum, works together with the intelligence 
community IGs to build a strong coalition, identify issues of 
common interest, and initiate cross-jurisdictional reviews. 
Such unified support is a good thing for any organization and 
is especially good for a relatively new governmental 
organization in today's budget climate.
    But this goodwill must not be taken for granted, because it 
can be squandered. This brings me to my second impression. My 
second impression about the Office of the IC IG is not nearly 
as favorable. I do not believe I am revealing any confidences 
when I share my impression that there is a broad view among the 
Committee, its staff, and other Members that the Office of the 
IC IG is not currently functioning as effectively as Congress 
intended. It is not difficult to find some of the sources for 
this view. One recent press article reported that the Office of 
the IC IG is ``in danger of crumbling,'' ``barely 
functioning,'' ``on fire,'' and ``gutted.''
    Now, perhaps things inside the Office of the IC IG are not 
as bad as the press and others portray them. I for one 
certainly hope so. And as a prosecutor and former defense 
attorney, I know there are at least two sides to nearly every 
story. Nevertheless, real or not, this is an ultimately 
unsustainable impression for the Committee to have of the IC 
    The impression is also that the current problems are 
internal. This needs to change before the IC IG loses the 
support of this Committee and the Congress as a whole. Simply 
put, it appears that the IC IG needs to put its house in order, 
and the sooner the better.
    My experience has taught me that the effectiveness of any 
team is dependent first and foremost on having the right people 
on the team, with a shared set of goals and values. I see no 
reason to believe that an Office of Inspector General is any 
different. My first objective as Inspector General, if 
confirmed, will be to make sure that the IC IG's house is in 
order. This will involve making sure the right people are in 
the IC IG. I am confident there are right people for the IC IG 
already there, people with a commitment to integrity, 
discipline, excellence, and independence, and I hope they stay.
    If I'm confirmed, the IC IG will work together as a team to 
achieve Congress' most ambitious intentions for the office. In 
the near term, we will work together to encourage, operate, and 
enforce a program for authorized disclosures by whistleblowers 
within the intelligence community that validates moral courage 
without compromising national security and without retaliation.
    Over the long term, if confirmed, we will work together and 
with the IC IG Forum members to look across the intelligence 
landscape, as Congress and this Committee intended, to help 
improve management, coordination, cooperation, and information-
sharing within the intelligence community. Throughout my 
tenure, we will work together to be responsive to this 
Committee so that you are able to fulfill your oversight 
obligations and to ensure that U.S. intelligence activities 
meet our Nation's security needs, respect our laws, and reflect 
American values.
    I thank you for your time in listening to me, and I 
appreciate the opportunity to answer your questions.
    [The prepared statement of Mr. Atkinson follows:]
    Chairman Burr. Thank you to both of you for your testimony.
    Members should know that I'll recognize Members based upon 
seniority for up to five minutes after the Chair and the Vice 
Chair. I recognize myself.
    Jason, the Committee's access to legal analysis is 
sometimes crucial to our ability to assess the intelligence 
community's collection tools. If confirmed, can our Committee 
be assured that you or your designee will keep us appropriately 
informed of any and all legal opinions and interpretations that 
your office performs as to intelligence tools?
    Mr. Klitenic. Yes.
    Chairman Burr. If asked by the Committee, will your office 
provide briefings and assessments of the intelligence 
community's views and findings on legal matters?
    Mr. Klitenic. Yes.
    Chairman Burr. Michael, to you: The Committee's timely 
access to intelligence is crucial to our ability to conduct 
vigorous oversight over the intelligence community and meet our 
Congressional obligations. We view the IC Inspectors General as 
partners in oversight. We rely on Inspectors General to 
identify problems and to bring issues to this Committee's 
attention. If confirmed, can our Committee be assured that you 
or your designee will keep us appropriately informed of any 
significant complaints received by your office?
    Mr. Atkinson. Yes.
    Chairman Burr. If asked by the Committee, will you provide 
the interview subjects or methodologies behind your office's 
finished reports and assessments?
    Mr. Atkinson. Yes.
    Chairman Burr. One last question on my behalf to you, Mr. 
Atkinson. As you mentioned in your statement for the record, 
the IC IG is an office with some reported challenges, 
particularly regarding the whistleblower program that has been 
frequently reported about in the media over the past few 
months. Strong whistleblowers are essential. Further, ensuring 
the IC workforce understands and believes in the whistleblower 
program is paramount.
    Tell the Committee what you plan to do to address these 
issues we're hearing about and how you're going to work to 
reassure the workforce that the IC IG has a well-functioning 
program that they can trust?
    Mr. Atkinson. Mr. Chairman, the intelligence community 
understands the importance of cultivating and protecting 
sources of information, and that includes whistleblowers. 
Whistleblowers play an important role in safeguarding the 
Federal Government against waste, fraud, abuse, and 
    In terms of what the IC IG can do as an office, it can do 
three things primarily: first, provide organizational support 
and encouragement for whistleblower programs for lawful, 
authorized disclosures; second, it can disseminate information 
and make sure that there's appropriate training across the 
intelligence community to make the workforce aware of the 
authorized ways to make lawful disclosures and report unethical 
or illegal conduct; and third, it can enforce a safe program 
where whistleblowers do not have fear of retaliation and where 
they're confident that the system will treat them fairly and 
impartially, so that we can secure national security and allow 
whistleblowers to make their complaints of unethical or illegal 
behavior without risking unauthorized disclosures.
    Chairman Burr. Great.
    Vice Chairman.
    Vice Chairman Warner. Thank you, Mr. Chairman.
    I'll start with you, Mr. Klitenic. As you know, the SSCI is 
continuing its work to investigate the Russian interference in 
the 2016 presidential election. Can you commit to ensuring that 
this Committee will be provided with all information requested 
pursuant to our ongoing Russia investigation?
    Mr. Klitenic. Yes.
    Vice Chairman Warner. Thank you.
    Let me also editorially comment that I very much appreciate 
what you talked to me about and reiterated in your public 
statement, that you're going to be asked to render legal 
opinions from the relatively ivory tower of a certain office in 
Northern Virginia, but that those, your legal opinions, will 
have huge ramifications for people in the field and across the 
country and across the world.
    Do you want to add any more on that? That's obviously one 
of the things you talked about in terms of your willingness to 
make sure that we adhere to the law in thinking through how you 
make those legal opinions.
    Mr. Klitenic. Yes, thank you. As it relates to providing 
legal advice, I take it both professionally and personally. 
Some of the people who are running around all corners of the 
globe so we can sleep safely at night, some of those people are 
my friends. Some of them are former colleagues. Some of them 
are other associates. Again, from my perspective, I think it's 
always important to keep in mind the context of the legal 
advice that you're providing and knowing that it's not simply 
an academic exercise.
    Vice Chairman Warner. One of the things you also mentioned 
in your opening statement was you understood the statutory 
obligation to keep this Committee fully and currently informed. 
Do you want to drill down a little bit more on how you define 
    Mr. Klitenic. Yes, thank you. I view the duty to keep the 
Committee currently and fully informed--there's obviously the 
502 statutory requirement, but, quite frankly, as a working 
matter I view this Committee--and I'm saying this respectfully 
and in the context of understanding that you are United States 
Senators and, if confirmed, I would simply be agency counsel. 
But I view this Committee to be my friend. This Committee is 
not my foe. My foe, our foes, are the people out there across 
the globe who wish us ill.
    So my view as an attorney, when I'm provided with 
information that I believe this Committee should have, I will 
be viewing it from the perspective of how can I get this 
information to the Committee, as opposed to looking at it from 
the perspective of, okay, how can I keep this from the 
    In terms of the timeliness of it, from my perspective 
notification has little to no value, more likely no value, if 
it is not timely.
    Vice Chairman Warner. Thank you.
    Mr. Atkinson, my questions were similar to the Chairman's, 
and I just want to reiterate--and I appreciate the fact that in 
your opening comments you did allude to the fact that there 
have not been as strong a working relationship between the 
current IG's Office and this Committee. You made quite clear 
your intent to improve that and you said you felt that there 
were the appropriate people in the IG's Office that were 
already there.
    If there are people that need to be removed, I'd like to 
hear whether you will take on that responsibility as well?
    Mr. Atkinson. Yes, Senator. In terms of managing any 
organization, the key is getting the right people into the 
organization. That also involves getting any of the wrong 
people out of the organization and then, once the right people 
are in the organization, getting the right people in the right 
    So yes, to the extent there are wrong people in the IC IG, 
we will work to either improve their performance or, if 
necessary, remove them.
    Vice Chairman Warner. Let me also reiterate so we make sure 
that everybody gets their time. You don't have to respond to 
this. But let me also echo the Chairman's comments in terms of 
the importance of the whistleblower program. I think there 
needs to be greater protections and, should you be confirmed, I 
look forward to working with you to make sure that those 
protections are increased and improved.
    Thank you, Mr. Chairman.
    Chairman Burr. Senator Risch.
    Senator Risch. Mr. Chairman, first of all let me say I 
think both of these nominees come with a strong, strong 
background and obviously come with also very good 
recommendations. I've had the opportunity in a different 
setting to get my questions answered, which I appreciate. I 
feel very good about these two and at the present time I'm a 
strong supporter of them, so I'm going to pass on questions.
    Thank you, Mr. Chairman.
    Chairman Burr. Thank you.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Atkinson, the IC IG is not an easy position in my view. 
You can't get sucked in. You have to be independent, and you 
have to be able to call them as you see them and run an office 
that's going to be effective to the overall goal. Are you 
prepared to do this?
    Mr. Atkinson. Yes, Senator. I think that my training as a 
prosecutor helps in terms of having a commitment to 
independence and integrity, as well as discipline, and 
understanding that there is a need to speak truth to power. The 
hardest part sometimes is finding the truth. The truth--as a 
prosecutor in a criminal case, it's difficult. I expect it will 
be even more difficult dealing with secret organizations.
    So I certainly appreciate the challenge that is out there 
for me. But in terms of the independence and integrity required 
of the position, I think my training as a prosecutor will come 
in very handy.
    Senator Feinstein. I think that's probably true, and I 
thank you very much for those comments.
    Having an open, honest IG is really very important to the 
functioning of what is a highly secret intelligence-gathering 
organization. I know you can see that.
    To both of you, I'm sorry, I didn't have a chance to meet 
with you before. You tried and my schedule got overly 
complicated. But I would hope that we would have a chance to 
sit down, because there are a couple of things that I'd like to 
mention to both of you.
    One of them is the area in which I believe the IC did get 
out of control, and that was during the 1990s, particularly on 
the subject of interrogation and detention. This Committee over 
six years did a report. There is a 500-page summary of that 
report; and before you come to see me, I would ask that each of 
you read that summary, which has been published. Will you do 
    Mr. Klitenic. Yes.
    Mr. Atkinson. Yes, Senator.
    Senator Feinstein. Thank you very much.
    I think that I'd like to ask the IC IG: What do you see as 
the most essential and effective tool of an Inspector General 
overseeing an intelligence agency?
    Mr. Atkinson. I think it goes back to the people, Senator. 
I think you have to have the right people with the right skill 
set to try to handle the task that's before it. The 
effectiveness of the intelligence community is in large part a 
function of its secretiveness, and so in terms of trying to 
find the truth or audit programs, investigate whistleblower 
complaints, inspect other agencies, you need the right people.
    There's plenty of tools available in terms of subpoena 
power and the ability to come to this Committee and to this 
Congress to provide reports. But ultimately, in terms of the 
most powerful tools that the office will have, in my view it 
has to be the people.
    Senator Feinstein. Mr. Klitenic, because of the position 
you're going to be in as General Counsel and your background, 
you're clearly qualified and I have no questions of you. But I 
would hope that you would feel free when there are issues to 
bring them before this Committee as well.
    I don't think anybody does a service to stifle truth or not 
bring forward problems. I think you'll find that the Committee 
is really a very good one. We pay attention. We put in a lot of 
time, and we care very deeply about the appropriate functioning 
of the agencies that you're going to be in charge of.
    So thank you very much.
    Thank you.
    Mr. Klitenic. Thank you, Senator.
    Chairman Burr. Senator Collins.
    Senator Collins. Thank you, Mr. Chairman.
    Mr. Klitenic, whom do you view as your client if you are 
confirmed as the General Counsel?
    Mr. Klitenic. Thank you, Senator. That frequently is the--
sometimes that can be a difficult question for lawyers. The 
first question is: Who is the client? I think as it relates to 
being the General Counsel to the ODNI, the agency is the 
client, embodied by the leadership. So it would be the Director 
of National Intelligence. I would not be representing anyone in 
his or her personal capacity. Then ultimately my client--I 
would view my client to be the people of the United States.
    Senator Collins. That's the right answer.
    One of the greatest challenges for the intelligence 
community is that it's very difficult for the public to 
separate out fact from fiction in certain press reports. If 
confirmed, you will be in an important position to be fully 
aware of what the IC is doing, while also being responsible for 
ensuring that its activities are lawfully conducted.
    There are two aspects of this problem. First, if you 
uncover misinformation about the lawfulness of the intelligence 
community's activities as reported in the press, what would you 
do about that?
    Mr. Klitenic. Thank you, Senator. Yes, there definitely 
would be a tension. Obviously, one of the fundamental 
principles of the intelligence community is to protect sources 
and methods. So a challenge would be if there were an instance 
where, if you're reading something in the paper that you know 
to be untrue or, let's just say, a nation-state is putting out 
information about things that are happening in our own country 
that we know to be untrue, and if that information is 
classified that would present a challenge.
    So if that were to arise, that's something that, if 
confirmed, I would take a serious look at, work with the people 
that I would need to consult with, and make sure that in 
correcting the information, if it needed to be corrected, it 
would be done in a way that again preserved sources and methods 
and other sensitive information.
    Senator Collins. Let's take a situation where the opposite 
is the case and you uncover activity in the intelligence 
community that is not lawful. Obviously, you would report it to 
the ODNI. What is your obligation to report beyond the Justice 
Department and the ODNI with respect to the oversight 
committees of Congress, in particular our Committee?
    Mr. Klitenic. I would view that I--that we, the ODNI, if 
confirmed, would have the obligation to report it to the 
Committee. I believe that the Section 502 notification 
requirements also talk about intelligence failures, so perhaps 
there would be an argument that this would be a form of 
failure. But again, it would be done in a way to protect 
sources and methods. I would view this Committee to be an ally 
of mine and I would just want to make sure that you have access 
to the same information to which I have access.
    Senator Collins. Thank you.
    Mr. Atkinson, you have heard many of us talk about the 
importance of whistleblowers, and I just want to follow up on a 
question that the Ranking Member asked you since I joined in 
the letter of the Vice Chairman and the Co-Chairs of the Senate 
Whistleblower Protection Caucus requesting that the GAO conduct 
an audit of whistleblower programs and activities conducted by 
the offices of the inspector general within the IC.
    It's important that you know that we sent this letter 
because we began to perceive discrepancies in the way that each 
IG approached whistleblower protection and we wanted an 
independent look at what recommendations could be made to 
ensure that whistleblowers are willing to come forward.
    So, first I encourage you, if you're confirmed, as I 
believe you will be, to use this GAO audit as an opportunity 
for you to learn about the state of whistleblower complaints 
within the IC.
    But my question is this: Do you commit to ensuring that the 
IC Inspector General remains a place where whistleblowers feel 
confident that they can come forward, disclose allegations of 
waste, fraud, abuse, mismanagement, illegal activity, and they 
can be confident that their concerns will not fall on deaf 
    Mr. Atkinson. Yes, absolutely, Senator. I look forward to 
reading the GAO report. I welcome GAO's assistance if 
confirmed, given the subject matter expertise they bring to it 
and the force multiplier that they can be, particularly in 
    In terms of the whistleblower protection, I talked about a 
commitment to integrity and that to me is what is essential so 
that whistleblowers have trust in the process. That does two 
things. One, it makes sure that the disclosures go to the right 
people; and second, it really takes away an excuse that some 
people have used that: I would have made an authorized 
disclosure, but I didn't know how to do it, or I didn't have 
faith in the process. So yes, absolutely, if confirmed, the 
commitment to integrity will be to make the whistleblower 
program effective and objective and impartial.
    Senator Collins. Thank you.
    Chairman Burr. Senator King.
    Senator King. Thank you, Mr. Chairman.
    Mr. Klitenic, I love your characterization of the Committee 
as your friend. I hope a year from now you hold to that.
    Mr. Klitenic. Yes, sir.
    Senator King. That idea.
    I consider your two positions two of the most important in 
the United States Government, for the following reason. It's an 
anomaly in a free society to have secret agencies that don't 
operate in the ordinary open air of controversy and reporting 
and interest groups and all of those kinds of things. Our 
system--we're always talking about checks and balances of the 
courts and the Congress, but there are lots of other checks and 
balances. One of them is public disclosure and transparency, 
and yet we understand the necessity for secrecy and for 
defending our national security.
    Therefore, one of the checks and balances that's invisible 
is the rule of law. You gentlemen more than any others in these 
agencies have the responsibility for upholding the rule of law. 
Like my colleague from Maine, I was going to ask, who is your 
client? Your client is the Constitution, it seems to me. Your 
client is the people of the United States. It's not a 
particular director, it's not a particular president, it's not 
a particular agent. It is the--this is in the essence of the 
checks and balances that otherwise just aren't there for these 
    The natural tendency of an agency that operates outside of 
the public view in some cases is to abuse its authority. I 
would urge you--again, I'm echoing my colleague Senator 
Feinstein--to read that summary of the torture report, because 
what comes through is not people who were evil and who were 
setting out to do harm. They were people who were genuinely 
concerned about the future of the country, but they did things 
that they should not have done; and the lawyers did things that 
they should not have done. And that's where it becomes hard.
    So I hope you will read that report. It's a stunning piece 
of work and I think it will help guide your work, because it'll 
make you realize how hard these decisions are.
    Now, what actions would you take, Mr. Atkinson, if a senior 
IC official said: Let's not go into this investigation, let's 
not do this audit; there's a lot of heavy-duty national 
security here and it could result in a serious compromise of 
something that we're trying to accomplish on behalf of the 
    Mr. Atkinson. Well, I'd do a couple things. First, I would 
talk with that senior official to try to understand the 
reasoning behind the request. If I thought that the 
investigation or review was necessary or in the best interests 
of the United States, I would pursue it. If other senior 
officials within the intelligence community still were advising 
me to stop, I would continue to talk to them and try to 
convince them that in my view, in my independent view, this 
review or assessment was necessary and in the best interests of 
the United States.
    I would take that--I would have that discussion all the way 
up to the Director of National Intelligence if necessary. By 
statute, he does have the authority to prevent an investigation 
or an examination if he deems that that's necessary or vital to 
United States national security.
    I would also talk to this Committee if that situation arose 
to that level, to keep you informed about those events.
    Senator King. If you were prevented by the Director or by 
some other official from pursuing an investigation that you 
thought was important, significant, and represented a potential 
abuse of the agency, would you consider resignation?
    Mr. Atkinson. The answer is yes, but in context. The 
Congress has given the Director of National Intelligence the 
authority, the statutory authority, to prevent the Inspector 
General from conducting a review if the Director determines 
that that's in the vital interest of the United States. And 
there's a process in place where he then has to inform the 
Committee, the Congress, the oversight committees, of his 
decision. And I as the Inspector General would also have an 
opportunity to come to the Committee and talk to you about the 
decision that was made and my own views.
    So I would consider it, but I think the process is in place 
that people who--can disagree without necessarily having to 
resign. But if I felt strongly enough and it really went to a 
core principle, yes, I would consider resigning. That would be 
part of my thought process.
    Senator King. I think the hard part here is that these are 
not going to be easy black-and-white questions. They're not 
going to be presented--it's always--and again I go back to the 
torture report. It's always going to be people thought there's 
going to be a second attack and we have to prevent it and we 
have to move aside some of these rules and regulations in order 
to do so. That's the context in which these decisions have to 
be made and that's why they're so difficult.
    Mr. Klitenic, your thoughts on this issue?
    Mr. Klitenic. I guess what I would say, Senator, is as an 
attorney it's not unusual to be facing a situation where you're 
trying to advise someone on the law or the parameters of the 
law, and then also not unusual to occasionally get pushback. 
The way I am hard-wired, I probably am more of a fighter than a 
quitter, but if I were ever--if I exhausted all my remedies and 
there was nowhere else to go but to resign, then that is an 
action I would seriously consider.
    Senator King. Well, I appreciate both of your willingness 
to undertake this important responsibility. I've been impressed 
in our discussions and with your answers here today, and I look 
forward to supporting your nominations when they come to the 
floor. I just hope you will continually remember and realize 
what a solemn and heavy responsibility this is in this 
particular setting. Not that the IG of the Department of 
Agriculture isn't important, but there are lots of other people 
watching the Department of Agriculture. There are very few 
other people watching the agencies that you are working with, 
that are crucial to our national security.
    Thank you.
    Thank you, Mr. Chairman.
    Mr. Atkinson. Thank you, Senator.
    Mr. Klitenic. Thank you.
    Chairman Burr. Senator Manchin.
    Senator Manchin. Thank you, Mr. Chairman.
    Thank both of you for attending and being here and willing 
to serve, which I appreciate very much, and for your families 
that are supporting you. I also appreciate our discussions we 
had in the office when you both came in. It was very good and 
very enlightening.
    I would like to hear, with your previous experience at the 
Department of Justice, can you tell the Members of this 
Committee your views on the pending reauthorization of the 702 
FISA, Section 702 of FISA? If you could, either one? Mr. 
Atkinson, you can start if you will.
    Mr. Atkinson. Well, as a member of the National Security 
Division of the Department of Justice, I know that the 
Department feels very strongly about reauthorizing Section 702.
    Mr. Klitenic. It's my understanding it's an incredibly 
important tool in the toolkit of the intelligence community and 
the law enforcement community. It's also my understanding it 
may be the most important tool. So obviously, from my 
perspective, at this point I am an outsider, but I would 
strongly support it.
    Senator Manchin. Do you have concerns of the invasion of 
privacy for the American citizens? Do any of you have that 
concern? Have you looked into it that much or have you been 
brought up to speed on it?
    Mr. Klitenic. I guess what I would say is that, as it 
relates to 702, that provision, that Act, that section of the 
Act, has been--I would defer to the courts, and the courts have 
reviewed it and my understanding is and my reading of it is 
that each court that has reviewed the 702 program has found it 
to be constitutional.
    Now, as with everything, you always want to--again, in my 
earlier comments they were sincere about providing for the 
national defense and the national security, but also protecting 
our civil rights and civil liberties. I don't think that's just 
a throwaway line. But as it relates to the 702 program, I would 
defer to the courts, and again they have upheld the 
constitutionality of it.
    Senator Manchin. Mr. Atkinson, you'll serve as the chair of 
the Intelligence Community Inspector Generals Forum. How do you 
plan to implement the necessary oversight that comes with your 
office without becoming too intrusive to the other 
organizations' inspector general activities?
    Mr. Atkinson. That is a real challenge to this office, 
Senator. It's actually one of the things, though, that was most 
appealing to me about it, is there's no other inspector general 
that serves in that sort of chair role and has the ability to 
coordinate other inspector generals such as the IC IG does as 
the chair of the IC IG Forum.
    I think the challenge is balancing out the autonomy of 
action that the individual IGs need to have to fulfil their 
duties and responsibilities with the unity of effort that we 
all need to have collectively so that we maximize our 
efficiency and effectiveness. I think that part of that in 
terms of ways to maximize the efficiency and effectiveness of 
the group, it goes to relationships, meeting with the folks on 
a regular basis, both at the IG level as well as at the 
committee levels for the investigators, the auditors, and the 
inspectors. I look forward to meeting with all of the IC IG 
Forum members as soon as possible if I'm confirmed.
    Senator Manchin. Mr. Klitenic, how do you view your break 
from government, your departure there and then coming back? Do 
you feel that it was a positive or a negative as you prepare to 
assume your new duties?
    Mr. Klitenic. I would view it as a positive. Being in the 
private sector has given me a perspective that I wouldn't have 
if I had spent the balance of these years in government 
service. I do very much miss government service, but there is 
something about working closely with industry and seeing it 
from that perspective, and it relates to a whole variety of 
issues, relating to, for example, the protection of our 
Nation's critical infrastructure, 85 percent of which is in 
private hands. So seeing some of the challenges that industry 
experiences when working with the government, I would view that 
to be helpful.
    Another added benefit--I can't quantify this, but I am not 
coming from any particular member of the IC and to that extent 
I would view--I'm not beholden to any particular agency, and I 
would just view my role to again to continue to play things 
straight and provide counsel on issues that come before me.
    Senator Manchin. This will be one for both of you. If asked 
by the President, would you render your professional assessment 
regardless if that assessment is counter to what the 
Administration has been espousing or what the President may 
    Mr. Klitenic. Yes.
    Mr. Atkinson. Yes, Senator.
    Senator Manchin. I think what we're all talking about, no 
matter who the President, he or she may be, truth to power is 
something that we have to have professionals such as yourself 
be willing to speak up and protect the citizens in this great 
country of ours and the Constitution we all hold so near and 
    Thank you both. I look forward to supporting both of you. 
Thank you.
    Mr. Atkinson. Thank you, Senator.
    Mr. Klitenic. Thank you.
    Chairman Burr. Senator Lankford.
    Senator Lankford. Thank you, Mr. Chairman.
    Gentlemen, thank you again for going through this laborious 
process. Very few Americans understand just how painful and 
long and difficult this process and how many documents you had 
to turn over, how many interviews you had to have to even get 
to this desk. Then there is still the process to get through 
the long filibusters on the floor of the Senate, as last year 
the Senate faced literally a record number of nominees that 
were delayed.
    So there are still more delays to come to actually go 
through the process. So I want to say to you: Thank you for 
stepping up and going through this very long, difficult 
process, because our Nation needs people to both be good 
counsel for the intelligence community and to be good 
inspectors general for that community. So thank you for 
stepping up to be able to do that.
    A lot of folks that are some pretty remarkable 
professionals are going to count on your advice and they're 
going to look towards your insight on that. So buckle up. We're 
ready for you to be able to get into that spot.
    Let me ask you several questions on this. Mr. Atkinson, let 
me ask specifically for you: The IC role of the Inspector 
General is exceptionally difficult in this setting, because 
most everything that we handle is secret and classified and is 
compartmentalized. But the Inspector General has a very unique 
role to be able to step in and not only check for efficiency--
are we spending the right money in the right places; are there 
recommendations to be able to do that; do we have the right 
personnel in the right spot? That takes a lot of relationships 
and a lot of tenacity to go after the information that's 
    But the American people need individuals on this dais to 
provide oversight and they definitely need an Inspector General 
to be able to do that as well. What's your plan to be able to 
engage, to be able to make sure we have good recommendations, 
but also you have the information you need to do it?
    Mr. Atkinson. Well, as I said in my opening statement, 
Senator, I think it begins with people, getting the right 
people in the office to be able to perform the difficult tasks 
that we have to perform, whether it's inspections, audits, or 
    It also--as you talked about relationships, it also has to 
deal with getting relationships with the other intelligence 
community inspectors general, the individual elements, working 
with them to maximize their efficiency and effectiveness, so 
that together as a group we multiply our forces rather than 
dividing them. So that's what I would look forward to doing if 
confirmed, is working with the IC IG Forum to maximize all of 
the resources that we have available to tackle these very 
serious challenges that you've mentioned.
    Senator Lankford. What will you need to be the eyes and 
ears of the American people, to provide--on the multiple layers 
of oversight on 702 specifically, what will you need that you 
don't know if you have access to now, to be able to make sure 
that's there? 702 already has oversight from DOJ. It has 
oversight from the inspectors general. It has oversight within 
the Department. It has oversight by this Committee. There is a 
Civil Liberties Board that we have added to it to provide 
another layer of oversight into it. So there's already multiple 
layers of oversight on that.
    Is there anything that you know of that you don't have 
access to to provide the oversight that's needed for that in 
your responsibility?
    Mr. Atkinson. Senator, I don't know the answer to that. I'm 
not an expert on 702. I'm familiar with the statute as a 
prosecutor and being in the National Security Division of the 
Department of Justice. But I don't know all the challenges 
associated with it. I look forward, if confirmed, to learning 
about them and working with this Committee and with the other 
IC IG Forum members to understand if there are additional tools 
that we need to help the Committee perform its functions.
    Senator Lankford. This Committee would have an expectation 
that if there are things you do not have access to, that you 
need access to for oversight, that you would come back to us.
    Mr. Atkinson. That's my expectation as well, Senator, that 
I would come back.
    Senator Lankford. Terrific.
    Let me ask you about a hard question on this dealing with 
leaks and classified information leaks or individuals that are 
leaking that information. The FBI has told us it's one of the 
most difficult areas to be able to prosecute. I want to know 
from you, what do you need to do to be able to help us not have 
leaks of information, both from a document or from someone 
telling information that is classified, and how do we clamp 
down on that?
    Mr. Atkinson. I think there's a lot in that question. But 
the whistleblower protection program is essential and, as 
Senator King talked about, secrecy--the United States 
intelligence community is largely effective because of its 
secretiveness, but secrecy is a grant of trust, it's not a 
grant of power. So the whistleblowers play an important role in 
making sure that the trust given to the intelligence community 
is not abused or mismanaged.
    So you want to do what you can, everything possible, to 
make sure that when hard-working government employees or 
contractors identify waste, fraud, or abuse, that there are 
avenues available to them and they have trust in those avenues, 
that they will disclose that type of unethical or illegal 
conduct. You want to make sure as part of that program that 
they don't have a fear of reprisal. So they need to trust the 
process and they need to be protected.
    So as a prosecutor, I understand deterrence and I 
understand that investigations have to be timely, they have to 
be thorough, and they have to be effective. If you find a 
whistleblower that's been retaliated against, there need to be 
    Senator Lankford. Thank you. Thank you both.
    Chairman Burr. Senator Wyden.
    Senator Wyden. Mr. Chairman, I know I'm senior by 
technicality. With your leave, Mr. Chairman--I think I see you 
over there--could Senator Harris go first and then I follow 
    Chairman Burr. Absolutely.
    Senator Harris.
    Senator Harris. Thank you, Senator Wyden.
    Mr. Klitenic, I appreciate your comments about the nobility 
of public service, and you so clearly care about the men and 
women of the IC and I really do appreciate that. So thank you 
for those comments and the spirit behind them.
    During the 2016 presidential election, then-candidate 
Donald Trump said, I quote: ``I would bring back waterboarding 
and I'd bring it back a hell of a lot worse than 
waterboarding.'' End quote. In your opinion, is waterboarding 
    Mr. Klitenic. Thank you, Senator. The short answer is, as 
it relates to today, the enhanced interrogation techniques, the 
law is through the Defense Authorization Act, the techniques 
that are authorized are found in the Army Field Manual. So as 
an attorney, I would go to the Army Field Manual and see if 
that was a technique that is approved.
    Senator Harris. Have you consulted the Army Field Manual?
    Mr. Klitenic. I have.
    Senator Harris. And in your opinion, based on that review, 
is waterboarding illegal?
    Mr. Klitenic. Thank you. I have not seen anything in the 
Army Field Manual that would persuade me that waterboarding is 
permitted under the Army Field Manual.
    Senator Harris. Can you guarantee this Committee that you 
would so advise the members of the IC if you were confirmed in 
this position?
    Mr. Klitenic. Yes, that's definitely an issue I would--that 
would get my attention.
    Senator Harris. And that you would express----
    Mr. Klitenic. Yes. Yes, Senator, yes.
    Senator Harris. Thank you.
    Do you believe it is appropriate for the FBI to search 
information on Americans' communications without a warrant when 
that information was collected through an authority such as 
Section 702 of FISA and does not permit the targeting of U.S. 
persons, which we know it does not?
    Mr. Klitenic. My understanding again of the 702 program--
and I think we're now getting into queries--my understanding is 
that's been reviewed by the courts. It has been reviewed by the 
courts and was found to be----
    [Room lights blink.]
    Senator Harris. There's a light flashing.
    Mr. Klitenic. Yes. I'm hopefully not accountable for a 
power outage. Things do happen on my watch, but hopefully this 
is not attributable to me, Senator.
    But my understanding is that that aspect of the program has 
been reviewed by the courts and has been found to be 
    Senator Harris. And the IC has consistently declined to 
produce an estimate of the number of Americans who have been 
impacted by Section 702 in terms of their privacy. Do you see 
any legal barriers to generating that estimate?
    Mr. Klitenic. That is an issue, Senator, I would have to 
look at. I do not have a security clearance and so all I can 
tell you is, if confirmed, that's an issue I would certainly 
explore and spend time on.
    Senator Harris. If confirmed to this position, can you 
commit to the Committee that you will take a look at that and 
return to us with your perspective on whether there is a legal 
barrier to providing that estimate to this Committee?
    Mr. Klitenic. Yes. Again, the answer is I do not have a 
clearance and so if I commit something to the Committee I want 
to make sure I can stand by it. But it is something I would 
look at, and I would also look to see if there were any legal 
impediments as well.
    Senator Harris. And come back and report?
    Mr. Klitenic. Yes. Yes, Senator.
    Senator Harris. If the IC lacks the technical expertise or 
resources to generate such an estimate and you do determine 
that it is legally permissible for them to offer that estimate 
to this Committee, as has been requested, do you see any legal 
barriers to bringing in outside experts like academic 
researchers to help generate such an estimate?
    Mr. Klitenic. The honest and short answer is I don't know 
the answer to that question. But that is something I would 
certainly look at.
    Senator Harris. And will you, again, report back to this 
Committee, if confirmed, about your perspective on bringing in 
outside experts to help generate the information that gives us 
an estimate of how many Americans have been impacted by 702 
    Mr. Klitenic. I would look and see if there were--if it was 
appropriate and lawful to have experts review the issue. Again, 
I don't have a clearance, so I don't want to commit something 
to you that for some reason I would be precluded from reporting 
back on. But if it were legally permissible for me to report 
back to you on it, I absolutely would.
    Senator Harris. I appreciate it. And I should premise all 
of these questions by stating that I agree completely with your 
testimony that 702 provides a very important tool to our 
intelligence community and it is something that should be 
preserved, but of course with striking a balance with the 
protections and privacy protections that Americans deserve to 
receive in terms of their private information.
    I'm especially concerned with the issue where the IC 
appears to lack a uniform and written policy to ensure that 
Americans receive appropriate notice of Section 702 
surveillance. Can you commit to promulgating such a policy if 
confirmed in this position?
    Mr. Klitenic. Senator, that's something I would have to 
look closer into. As I sit here today, I can't speak to the 
notification requirements of 702. But again, I do promise, if 
confirmed, I would look very closely at that and then report my 
findings to the Committee.
    Senator Harris. I want to emphasize that the concern 
specifically is that there is not a uniform written policy 
within the IC. So I'd appreciate you looking into that if 
confirmed, and thank you.
    Thank you.
    Mr. Klitenic. Thank you.
    Chairman Burr. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    Mr. Atkinson, I appreciated our discussion in the office. I 
feel strongly that the current acting leadership of the IC 
Inspector General's Office has seriously damaged its 
whistleblower mission. We talked about your cleaning house. 
Tell me how you're going to do it?
    Mr. Atkinson. We did talk about cleaning house, and let me 
say this about that. As I said in my opening statement, the 
whistleblower protection program, like any other part of the 
office, is dependent on having the right people in the office. 
As we talked about in your office, my first priority is to get 
the right people in the office, get any of the wrong people out 
of the office, and then get the right person or people running 
the whistleblower protection program within the IC IG.
    Senator Wyden. So how are you going to protect 
whistleblowers from reprisals? I think whistleblowers want to 
know they're going to be encouraged. They want to know their 
complaints are going to be followed up expeditiously, but 
they're especially interested in having the leadership at the 
top make it clear how they're going to be protected from 
    So this is really part of the new day, cleaning house. How 
are you going to protect whistleblowers from reprisal?
    Mr. Atkinson. Similar to the way we protect witnesses in 
criminal cases. We're going to take their case, treat it very 
seriously, treat it impartially, follow the facts, wherever 
they lead, protect the witnesses to the extent permitted by 
law, do what we can to----
    Senator Wyden. What's your understanding of what the law 
offers? Because they're going to say: Okay, you're saying I'm 
going to be protected to the extent of the law; what does that 
really mean? Give me an example of what you're talking about?
    Mr. Atkinson. That they will not be reprised against, they 
will not suffer demotion or any sort of pay cut or any negative 
job factor because of their willingness to come forward and 
make an authorized disclosure.
    Senator Wyden. And you will make it clear you see that part 
of your new day, that they're not going to face pay cuts, 
they're not going to face demotions? That's the message you 
want to send?
    Mr. Atkinson. That is the message I want to send. As a 
prosecutor, I see the unauthorized disclosures and I see the 
harm that they do, and I understand how critically important it 
is for people to have trust in the authorized disclosures.
    Senator Wyden. Mr. Klitenic, let me ask you a question 
about the law. If an intelligence operation is inconsistent 
with the public's understanding of the law, that is a 
prescription for trouble, and we have faced that in the past 
with the Patriot Act, where people would go to a coffee shop 
and they'd read the Patriot Act and they wouldn't hear about 
how it has been contorted into something where you'd collect 
millions of phone records on law-abiding people, which was the 
reason that we passed a reform bill.
    I talked to you about secret law. It's a doctrine that we 
really developed here, that says: Look, if there's a secret 
interpretation that's different than what people read in the 
coffee shop, that's what we ought to be concerned about. So 
tell me what you would do to declassify secret law? As you 
know, I made the distinction between sources and methods, which 
have to be classified, but the law, which always ought to be 
    What are you going to do to declassify secret law?
    Mr. Klitenic. Thank you, Senator. As we discussed, there 
will be instances where there will be legal opinions or there 
may be FISA Court opinions that within them necessarily contain 
information that is classified, and that classified information 
may be classified because it is to protect sources and methods.
    Also when we met, we also talked about my belief in 
transparency. I think transparency is important for any number 
of different reasons. One of the fundamental reasons why I 
think transparency is so important is because I think as the 
American people learn more about what the intelligence 
community is doing on their behalf they would have even greater 
confidence in the community.
    As it relates to declassifying certain portions of legal 
opinions or FISA Court opinions, again that's something I 
would, as I told you in our meeting, I would very much commit 
to taking a hard look at. For me that is something----
    Senator Wyden. Would you make that a priority? Because 
secret law has been a problem for years and it remains one to 
this day. I want to see somebody come in there and say: Look, 
we've got a job to do; sources and methods are sacred; you 
don't mess with them, because if you do people die. But the 
public has a right to know what the law is.
    I'd really like to see somebody in your position, 
consistent with protecting this country's security, say this is 
going to be a priority. Will you do that?
    Mr. Klitenic. Senator, I'm very comfortable telling you 
that, yes, I would make that a priority.
    Senator Wyden. Thank you.
    Thank you, Mr. Chairman.
    Chairman Burr. Senator King.
    Senator King. A brief follow-up on a different topic. Mr. 
Atkinson, part of your role as IG, of course, isn't always 
about high policy; it's about fiscal responsibility, prudent 
expenditures, and those kinds of things. There is a huge force 
multiplier out there that's available to you called the GAO. 
Unfortunately, in the past the intelligence community has 
resisted utilizing the resources of the GAO, even though they 
have clearances and those kinds of things. In fact, two years 
ago or three years ago Senator Coburn and I had to literally 
get an Act of Congress to get the IC to use the GAO to analyze 
utilization of facilities.
    Do you view the GAO as an asset to your work and will you 
commit that you will utilize them as a resource in the analysis 
that you do of things like fiscal prudence, efficiency, 
utilization of resources, staffing, and those kinds of things?
    Mr. Atkinson. Yes, absolutely, Senator. I think that one of 
the challenges for the IC IG as I understand it is on the 
auditing side of the house and getting qualified, cleared 
auditors within the IC IG to look at the intelligence 
community's programs and activities. So it makes perfect sense 
to make use of GAO, since they have subject matter experts, in 
    So yes, I see them as a force multiplier and I would use 
them as much as possible.
    Senator King. Good. Thank you.
    Thank you, Mr. Chairman.
    Chairman Burr. Thank you, Senator King.
    Seeing no other Members wishing to ask questions, let me 
thank both of you on behalf of the Committee. Let me thank you 
for your service in the past, for your willingness to serve in 
the capacity you're here nominated by the President, and thank 
you for your honest testimony and candid testimony today.
    I'll end where I started: The Committee takes oversight 
extremely serious. The two roles that you'll be in are 
absolutely crucial to our ability to implement that oversight 
properly and effectively.
    We're grateful to you. We look forward to the process as 
your nominations move out of Committee and to the floor. But as 
of this time, enjoy the next little bit with your families, who 
are here to support you.
    This hearing is adjourned.
    [Whereupon, at 12:48 p.m., the hearing was adjourned.]

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