Hearings
Hearing Type:
Open
Date & Time:
Thursday, May 21, 2009 - 2:30pm
Location:
Hart 216
Witnesses
Full Transcript
[Senate Hearing 111-558]
[From the U.S. Government Printing Office]
S. Hrg. 111-558
NOMINATION OF ROBERT S. LITT TO BE GENERAL
COUNSEL, OFFICE OF THE DIRECTOR
OF NATIONAL INTELLIGENCE AND
NOMINATION OF STEPHEN W. PRESTON
TO BE GENERAL COUNSEL,
CENTRAL INTELLIGENCE AGENCY
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MAY 21, 2009
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
senate
U.S. GOVERNMENT PRINTING OFFICE
56-435 WASHINGTON : 2009
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
DIANNE FEINSTEIN, California, Chairman
CHRISTOPHER S. BOND, Missouri, Vice Chairman
JOHN D. ROCKEFELLER IV, West ORRIN G. HATCH, Utah
Virginia OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon SAXBY CHAMBLISS, Georgia
EVAN BAYH, Indiana RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland TOM COBURN, Oklahoma
RUSSELL D. FEINGOLD, Wisconsin JAMES E. RISCH, Idaho
BILL NELSON, Florida
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
David Grannis, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
----------
THURSDAY, MAY 21, 2009
OPENING STATEMENTS
Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California. 1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from
Missouri....................................................... 4
WITNESSES
Litt, Robert S., Office of the Director of National Intelligence
General Counsel-Designate...................................... 5
Prepared statement........................................... 6
Preston, Stephen W., Central Intelligence Agency General Counsel-
Designate...................................................... 8
Prepared statement........................................... 8
SUPPLEMENTAL MATERIAL
Questionnaire for Completion by Presidential Nominees for Robert
S. Litt........................................................ 30
Prehearing Questions for the Record and Responses of Mr. Litt.... 54
Questions for the Record and Responses of Mr. Litt............... 76
Letter from Robert I. Cusick, Office of Government Ethics, Dated
May 4, 2009, Transmitting Public Financial Disclosure Report
for Mr. Litt................................................... 106
Questionnaire for Completion by Presidential Nominees for Stephen
W. Preston..................................................... 119
Prehearing Questions for the Record and Responses of Mr. Preston. 143
Questions for the Record and Responses of Mr. Preston............ 164
Letter from Robert I. Cusick, Office of Government Ethics, Dated
May 20, 2009, Transmitting Public Financial Disclosure Report
for Mr. Preston................................................ 184
NOMINATION OF ROBERT S. LITT TO BE
GENERAL COUNSEL, OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE
AND NOMINATION OF STEPHEN W. PRESTON
TO BE GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY
----------
THURSDAY, MAY 21, 2009
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:33 p.m., in
Room SH-216, Hart Senate Office Building, the Honorable Dianne
Feinstein (Chairman of the Committee) presiding.
Committee Members Present: Senators Feinstein, Wyden,
Mikulski, Feingold, Whitehouse, Levin, Bond, Snowe, and Risch.
Chairman Feinstein. Because we have a vote coming up at
2:40, which is about seven minutes from now, I'm going to begin
the hearing and try to keep it going during the vote. I know
the Vice Chairman is on his way. We have three other Members
here, so I think I'll begin and I'll begin with my statement.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, CHAIRMAN, A U.S.
SENATOR FROM CALIFORNIA
Chairman Feinstein. The committee meets today to receive
testimony to consider two nominations: Mr. Robert Litt,
nominated to be the General Counsel in the Office of the
Director of National Intelligence, and Mr. Stephen Preston,
nominated to be General Counsel of the Central Intelligence
Agency. And I welcome both of them.
If you have family with you that you would like to
introduce right now I think that would be very nice. I know you
both do, so, Mr. Litt, why don't we begin with you and let
everybody meet your two daughters, your wife, your mother-in-
law----
Mr. Litt. Thank you, Madam Chairman. Directly behind me is
my oldest daughter, Rebecca, who spent three-and-a-half years
working as a legislative assistant for Senator Mikulski. Next
to her is my wife Deborah, who is one of the most patient women
in the world. Then my youngest daughter, Rachel----
Chairman Feinstein [continuing]. And I asked who's the boss
in the family, and Rachel immediately said she was.
Mr. Litt. Immediately and correctly. My mother, Edith Litt,
and mother-in-law, Joan Gordon. My middle daughter Miriam is
not here today because she's on her honeymoon--she got married
10 days ago, and so I'm probably the rare nominee that comes
before you and can't say for sure that this is the most
stressful thing he's done this week. [Laughter.]
Chairman Feinstein. Mr. Preston.
Mr. Preston. Thank you, Madam Chairman. I am very pleased
to introduce to the Committee my wife Mary Manemann Preston,
and our daughter Julia and our son Collett.
Chairman Feinstein. Well, I hope the families know they are
very much welcomed.
Both nominees have provided written responses to background
questions and to questions about legal issues they will
confront if confirmed. Their answers will be posted today on
the committee's Web site. I have met with both nominees and
came away from both meetings duly impressed.
It is crystal clear that the intelligence community, and
perhaps the CIA more than the other 15 agencies, needs
absolutely clear, authoritative, and accurate legal advice. The
intelligence community and the nation have struggled with
questions about the legality of counterterrorism operations--
notably rendition, detention and interrogation--over the past
few years.
There have been similar doubts about the legality of the
warrantless surveillance program conducted outside of the
Foreign Intelligence Surveillance Act. I expect Members will
have questions about many intelligence activities, and we look
forward to your responses, gentlemen.
To me, the key questions are: will these two nominees, if
confirmed, provide sound and careful legal advice and also
their best counsel and judgment to the director of national
intelligence and the Director of the CIA.
If necessary, will they do everything within their power to
prevent any activity that they believe to be unlawful and
unwise? And I would add this: Will they ensure that there is
appropriate oversight within all three branches of the federal
government to ensure that programs only go forward after all
relevant and required views are obtained and followed?
Let me say a few words about each nominee and the position
to which they are nominated.
Mr. Robert Litt is a graduate of Harvard University and
Yale Law School. He clerked for Judge Edward Weinfeld of the
Southern District of New York and Justice Potter Stewart of the
Supreme Court. He served as an Assistant U.S. Attorney in the
Southern District of New York for six years. He later became a
partner at the law firm of Williams & Connolly, and then, from
1993 to 1999, served in the State Department and at the
Department of Justice, where he rose to be Principal Deputy
Attorney General, with responsibilities including FISA
applications, covert action reviews and other national security
matters.
He has been a partner with the law firm of Arnold and
Porter since 1999. If confirmed, Mr. Litt would be the second
General Counsel in the Office of the Director of National
Intelligence. The first person to hold the position, Ben
Powell, appeared regularly before this committee and should be
commended for his straightforward and helpful testimony and
advice.
The General Counsel is the chief legal officer of the
Office of Director of National Intelligence. In providing legal
advice to the DNI, he must have insight into activities
throughout the intelligence community, including those of the
General Counsel offices in the various intelligence community
elements.
The committee expects that Mr. Litt will be aware of and
have an opportunity to evaluate all of the significant legal
decisions made throughout the intelligence community. As the
committee recently discussed with Director Blair, the General
Counsel will also represent the executive branch in proposing
and negotiating legislative provisions for our annual
intelligence authorization bill, which is coming up, and other
legislation that effects the equities of the intelligence
community.
Stephen Preston is a graduate of Yale University and
Harvard Law School. He clerked for Judge Phyllis A. Kravitch,
U.S. Court of Appeals for the 11th Circuit, and joined Wilmer,
Cutler & Pickering, where he became a partner. From 1993 to
2000, Mr. Preston served in the Department of Defense and the
Department of Justice.
He was Principal Deputy General Counsel of the Department
of Defense, Deputy Assistant Attorney General, Civil Division,
in the Department of Justice, and General Counsel of the
Department of the Navy. He has been a partner at WilmerHale
since 2001.
The position of CIA General Counsel has been vacant since
July of 2004. Frankly, I can't think of an agency in the United
States government that is in stronger need of a Senate-
confirmed General Counsel than the CIA.
This is an agency that operates outside of the law around
the world but is required to operate in strict compliance with
United States law. This is an extremely challenging legal
position and one that requires a strong and principled General
Counsel.
The CIA Office of General Counsel played a key role in the
creation of the detention and interrogation program. It
provided significant information to the Office of Legal Counsel
at the Department of Justice. It participated in most of the
briefings to the National Security Council and to Congress. And
it was in charge of interpreting and implementing the Office of
Legal Counsel's guidance to CIA interrogators in the field.
As I said before, the CIA and the nation need a strong
General Counsel of unimpeachable integrity and an unwavering
commitment to the Constitution and laws of the United States,
and I cannot say that too strongly.
I am pleased that the two nominees before us are both
highly qualified, highly respected in their field, and well
suited to provide this advice to both the Director of National
Intelligence and the CIA.
I now turn to the Vice Chairman. Before I do, I would just
like Members to know that we would like to have a brief
classified session on some recent happenings in--we can go to
211 directly following this and hopefully these hearings,
because they are so qualified, will go quickly.
Mr. Vice Chairman.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A
U.S. SENATOR FROM MISSOURI
Vice Chairman Bond. Madam Chair, thank you. I think that's
a good idea. I think I can fire off all my questions in one
round or submit them for the record. And I agree with you it's
time that we had that meeting. But I welcome Mr. Litt and Mr.
Preston and their families to the committee--to Mr. Litt to be
the General Counsel for ODNI, Mr. Preston to be General Counsel
for the CIA.
Madam Chair, I think both men come to this hearing with
impressive credentials, considerable experience and a modest
recognition that they still have to learn much about national
security law. Fortunately, there are many talented lawyers at
the ODNI and CIA offices of the General Counsel who will assist
them in getting up to speed on the national security learning
curve.
These are extremely important positions and nominations, as
you've pointed out, Madam Chair. Many people don't understand
the crucial role that the lawyers play within the intelligence
community.
National security lawyers routinely review operational
activities to ensure that they are conducted within the bounds
of the law. Sometimes they have to deliver bad news and
disapprove certain operations. And that is very important--to
say no when it has to be said.
At the same time, they serve as problem solvers who ought
to be able to find a way to comply with the law, to satisfy the
legal requirements and still accomplish the intelligence
objectives for which their agencies are charged.
In addition to the important oversight role, national
security lawyers are often called upon to provide Congress with
necessary technical assistance to ensure that relevant
legislation does not adversely impact intelligence equities
and, having worked extremely closely with the lawyers during
FISA, I know how valuable their assistance is with respect to
national security legislation.
We've relied on them in the past years and we will again in
the USA PATRIOT Act, the Patriot Improvement Reauthorization
Act, and implementing further recommendations of the 9/11
Commissions Act. I think it's safe to say that the two men now
sitting before us will play an important role in future
legislation.
I have met privately with each of the nominees and was very
favorably impressed. I think both men are talented lawyers who
are capable of being effective leaders and managers of their
respective offices and have the necessary character, quality,
experience and knowledge to do the job.
I congratulate you on your nominations. I look forward to
your testimony, and assuming you are confirmed, which I think
you will be, I look forward to working with you to ensure that
the ODNI and the CIA offices of the General Counsel continue to
provide outstanding legal support to the intelligence community
and to Congress.
Thank you, Madam Chair.
Chairman Feinstein. And I thank you, Mr. Vice Chairman.
Members should know that Mr. Litt's remarks are under tab C,
and Mr. Preston's under tab D, and they are both concise and
short.
Mr. Litt, would you care to make a brief statement to the
committee and then we'll follow with Mr. Preston, and then a
few questions.
STATEMENT OF ROBERT S. LITT, OFFICE OF THE DIRECTOR OF NATIONAL
INTELLIGENCE GENERAL COUNSEL-DESIGNATE
Mr. Litt. Thank you, Madam Chairman. My oral remarks will
be even shorter.
Madam Chairman, Vice Chairman Bond and Members of the
committee, I want to thank you for the opportunity to appear
before you here today. I also have appreciated the opportunity
to meet privately with a number of you to hear what's on your
mind and what your concerns are about the law and the
intelligence community.
I am deeply honored that President Obama has nominated me
to be the General Counsel of the Office of the Director of
National Intelligence. The past few years, as you know, have
been trying ones for the Intelligence Community. It has been
accused of a wide variety of failures. It's been accused of
errors of omission and errors of commission. It's been accused
of excessive passivity and of over-aggressiveness. And it is
still dealing with the restructuring that Congress ordered with
the Intelligence Reform and Terrorism Prevention Act of 2004,
which is the most substantial reorganization of the
intelligence community since the passage of the National
Security Act in 1947.
Our nation needs a strong and vital intelligence community
in order to protect itself from its enemies; but the
intelligence community equally needs clear legal rules that
define what it can and cannot do. These twin needs are
reflected in the twin statutory responsibilities of the
Director of National Intelligence--one, to ensure that the
president, the executive branch and the Congress are provided
intelligence that is ``timely, objective, independent of
political considerations, and based upon all sources available
to the intelligence community and other appropriate entities,''
and; two, to ensure that the activities of the intelligence
community are carried out in ``compliance with the Constitution
and laws of the United States.'' If I am confirmed as General
Counsel, I look forward to assisting Director Blair in carrying
out these responsibilities.
I know, from talking with some of you, that the Members of
this committee are very concerned with whether the Director of
National Intelligence has the proper authorities to carry out
these important responsibilities. And, if confirmed, I will pay
close attention to how those authorities work in practice, and
if there are any deficiencies in them I will bring them to the
attention of this committee and work with the committee to try
to remedy them.
I will also be mindful of the need for Congress to exercise
effective oversight of the activities of the intelligence
community. I believe that congressional oversight is
particularly important in the area of intelligence because of
the central role that intelligence plays in protecting national
security, because of the power of the tools that are given to
the intelligence community, and their potential risks to
privacy and civil liberty if they are abused, and because of
the necessarily secret nature of much of what the intelligence
community does.
Director Blair has emphasized to the entire intelligence
community the importance of keeping the intelligence committees
fully and currently informed about intelligence activities--and
if confirmed I will fully support him in that and will work
with you to try to ensure that you are able to exercise this
oversight function in the manner in which it needs to be
exercised.
In addition, there are a wide range of important and
challenging legal issues affecting the intelligence community,
some of which I discuss in my written statement. If confirmed,
I will not only provide Director Blair my best views on the law
based on a thorough understanding of the facts and the law--
whatever those views may be--but also my counsel and judgment
on the wisdom and propriety of particular courses of conduct.
Madam Chairman, in the course of my professional career, I
have been privileged to get to know many individuals who work
as part of the intelligence community, both lawyers and non-
lawyers. They are dedicated professionals, many of whom gave up
a potentially lucrative career in the private sector for the
privilege of serving the United States and protecting its
people. If I am confirmed, I look forward to the great
privilege of assisting them in that vital task.
Thank you for your consideration of my nomination.
[The prepared statement of Mr. Litt follows:]
Prepared Statement of Robert S. Litt
Madam Chairman, Vice Chairman Bond, Members of the Committee, thank
you for giving me the opportunity to appear before you today. I have
also appreciated the opportunity to meet privately with several of you
and to discuss a variety of issues that are important to you.
I am deeply honored that President Obama has nominated me to be the
General Counsel of the Office of the Director of National Intelligence.
The past few years have been trying ones for the Intelligence
Community. It has been accused of a wide variety of failures, of errors
of omission and of commission, of excessive passivity and of over-
aggressiveness. And it is still dealing with a restructuring, initiated
by Congress with the passage of the Intelligence Reform and Terrorism
Prevention Act of 2004, that is unparalleled since the passage of the
original National Security Act in 1947.
Our nation needs a strong and vital Intelligence Community in order
to protect itself from its enemies; but the Intelligence Community
equally needs clear rules that define what it can and cannot do. These
twin mandates are reflected in the twin statutory responsibilities of
the Director of National Intelligence to ensure both that the
President, the Executive Branch and the Congress are provided
intelligence that is ``timely, objective, independent of political
considerations, and based upon all sources available to the
intelligence community and other appropriate entities,'' and that the
activities of the Intelligence Community are carried out in
``compliance with the Constitution and laws of the United States.'' If
confirmed as General Counsel, I look forward to assisting Director
Blair in carrying out these responsibilities.
Director Blair has made clear to me that he expects my role to
encompass the provision of both sound legal advice and sound judgment,
and if confirmed I am prepared to do so. I have been fortunate to be
mentored by a number of outstanding lawyers from whom I have drawn
lessons that guide my approach to the practice of law. My father was a
general practice lawyer in the New York suburbs. He made me conscious
from a young age of the lawyer's broad responsibilities both to ensure
that justice is done in the individual case, and towards the
improvement of society as a whole. I have always tried to keep in mind
his example.
After graduating from Harvard College and Yale Law School, I had
the great honor to clerk for two outstanding judges. The first was the
legendary Judge Edward Weinfeld of the United States District Court for
the Southern District of New York. Judge Weinfeld was justly famous for
his extraordinary diligence, his fairness and his thoroughness. He was
fond of saying that ``every case is important,'' and for him this was
more than a platitude: it characterized his approach to the law, in
that he gave every case the same degree of attention and thought. I
often feel his guiding presence looming over my shoulder. After Judge
Weinfeld, I clerked on the United States Supreme Court for Justice
Potter Stewart. Like Judge Weinfeld, Justice Stewart did not approach
the law with ideological preconceptions. He was always concerned with
finding the right outcome in the law, not in justifying a predetermined
outcome that fit his personal preferences.
I was then hired as an Assistant United States Attorney for the
Southern District of New York by Robert B. Fiske, Jr., an outstanding
lawyer and leader whose career exemplifies the old-fashioned ideal of
the lawyer as public servant. After six years as a federal prosecutor,
I joined the firm of Williams & Connolly in Washington, where I had the
opportunity to work closely with Edward Bennett Williams, one of the
giants of the bar, known for his preparation, his judgment and insight
into human nature, and his zealous devotion to his clients' interests.
Finally, I had the privilege to work in the Department of Justice with
former Attorney General Janet Reno and present Attorney General Eric
Holder, each of whom I admire for their unfailing commitment to doing
the right thing in all circumstances and for their understanding of the
moral responsibilities of a government lawyer.
Each of these very different individuals left their mark on me. I
cannot hope to match their achievements but I have learned much by
their example. I have learned that a lawyer has the responsibility to
try to help a client achieve his or her goals within the law, but
equally to tell a client forthrightly when a proposed course of conduct
is not within the law. I have learned that a lawyer's duty to a client
encompasses first of all a careful, dispassionate and unbiased analysis
to determine what the law actually is. But a lawyer should also
exercise independent judgment and advise the client as to the prudence
or wisdom of the proposed course of conduct. I have learned that a
lawyer for the government in particular has obligations not only to his
or her client agency but also to the public at large, and if the
client's proposed action would not serve the public interest, the
government lawyer should say so even if that action is legal. If
confirmed, I pledge that I will approach my responsibilities as General
Counsel in this spirit.
Over the years I have had the opportunity to work on a variety of
matters affecting the Intelligence Community. While at the Department
of Justice I worked on matters involving the Foreign Intelligence
Surveillance Act and the Classified Information Procedures Act; I
participated in reviews of covert actions and in evaluating crimes
reports and requests for legal opinions from the Intelligence
Community. I have spoken and written about the law and the Intelligence
Community. I have represented several members of the Intelligence
Community in a variety of matters.
As a result of this experience, as well as my discussions both with
the staff at the Office of the Director of National Intelligence and
the members of this Committee, I have some knowledge of the legal
issues that the Intelligence Community faces. I would like briefly to
touch upon some of the issues that I expect I will be dealing with if I
am confirmed as General Counsel. First, I know that Members of this
Committee are concerned with whether the Director of National
Intelligence has the proper authorities to do the jobs that Congress
has set out for him, and if confirmed I will pay close attention to how
those authorities operate in practice and will bring any deficiencies
to the attention of this Committee.
If confirmed, I will also be mindful of the need for Congress to
exercise oversight of the activities of the Intelligence Community. I
believe that Congressional oversight is particularly important in the
area of intelligence, because of the central role of intelligence in
protecting our national security, the power of the tools given to the
Intelligence Community and their potential risks to privacy and civil
liberties if used improperly, and the necessarily secret nature of much
of what the Intelligence Community does. Sections 502 and 503 of the
National Security Act require that the two intelligence committees be
kept ``fully and currently informed'' about significant intelligence
activities, and Director Blair has reiterated to the entire community
the need to comply strictly with this requirement.
There are also several substantive areas that I expect will
continue to be at the forefront of the activities of the Office of
General Counsel. One of the principal responsibilities of the Director
of National Intelligence is to ensure that relevant information is
shared to the maximum extent possible within the Intelligence
Community. We cannot afford to have information that is essential to
our national security ``stovepiped'' within individual components of
the community. The Office of General Counsel is deeply involved in
writing the rules that will encourage this sharing of information and,
if confirmed, I look forward to assisting Director Blair in moving
towards an ever more integrated and cooperative Intelligence Community.
At the same time, the collection, analysis and dissemination of
intelligence information must be done in a manner that protects
constitutional and statutory rights. Again, it is my understanding that
the Office of General Counsel, along with the Civil Liberties
Protection Officer, plays an important role in creating and overseeing
the structures and rules that ensure that intelligence activity is
consistent with the civil liberties and privacy of Americans. This is
one of those areas where it is important to provide clear guidance to
the Intelligence Community, so that they know what they can and cannot
do and do not feel the need to consult with lawyers on a daily or
hourly basis as they do their jobs--which is neither efficient nor
realistic.
One particular area of concern to me is the security of our
information and communications systems. While at the Department of
Justice, I helped create and stand up the Criminal Division's Computer
Crime Section, and I am acutely aware that our networks are not only
vulnerable to attack but are repeatedly attacked every day. The
President has ordered a review of our cybersecurity policies. While I
do not want to prejudge its conclusions I would anticipate that the
Intelligence Community would of necessity have a vital role to play in
this area, and that the Office of General Counsel would play an
important role in ensuring that the Intelligence Community's activities
in this area are consistent with the law.
In the course of my professional career I have been privileged to
get to know many individuals who work as part of the Intelligence
Community, both lawyers and non-lawyers. They are dedicated
professionals, many of whom gave up potentially lucrative career
opportunities and have chosen to serve the United States and protect
its people. If confirmed, I look forward to the great privilege of
assisting them in that vital task.
Thank you for your consideration of my nomination.
Chairman Feinstein. Thank you very much, Mr. Litt.
Mr. Preston.
STATEMENT OF STEPHEN W. PRESTON, CENTRAL INTELLIGENCE AGENCY
GENERAL COUNSEL-DESIGNATE
Mr. Preston. Thank you, Madam Chairman, Mr. Vice Chairman
and Members of the Committee. I am greatly honored to appear
before you as the President's nominee to be General Counsel of
the Central Intelligence Agency. Madam Chairman, you were kind
enough to let me introduce my wife and children a moment ago. I
should point out that today is our wedding anniversary and so I
ought to thank the Committee for this occasion to get together.
[Laughter.]
Chairman Feinstein. Congratulations. Which one is it?
Mr. Preston. It's our fifteenth.
Chairman Feinstein. Congratulations.
Mr. Preston. It is our fifteenth anniversary and I thank
you for bringing us together on this occasion.
In all seriousness, these are the most important people in
my life. And it is because of them that I am here today,
prepared to undertake what I expect will be the most meaningful
and likely the most difficult job in my professional life.
I want to thank President Obama and Director Panetta for
their trust and confidence in me. If confirmed, I look forward
to working with you, the Director and the fine men and women of
the CIA to confront the ongoing threats to our national
security and ultimately to protect families like mine all over
this country.
Given the scarcity of time and the abundance of business
before you, I would like to submit the remainder of my
statement for the record. Let me say, I appreciate this
opportunity to appear before the Committee today, and I would
be happy to answer any questions.
[The prepared statement of Mr. Preston follows:]
Prepared Statement of Stephen W. Preston
Thank you, Madam Chairman, Mr. Vice Chairman, and members of the
Committee. I am greatly honored to appear before you as the President's
nominee to be General Counsel of the Central Intelligence Agency. With
your indulgence, I would like to introduce the members of my family: my
wife, Mary Manemann Preston; our daughter, Julia Preston; and our son,
Collett Preston. These are the most important people in my life, and it
is because of them that I am here today, prepared to undertake what I
expect will be the most meaningful, and likely the most difficult, job
in my professional life. I want to thank President Obama and Director
Panetta for their trust and confidence in me. If confirmed, I look
forward to working with you, the Director, and the fine men and women
of the CIA to confront the ongoing threats to our national security
and, ultimately, to protect families like mine all over this country.
This is a dangerous time for the United States and a challenging
time for the Central Intelligence Agency. The threat of radical
jihadist terrorists is real, immediate and unrelenting, and in the
fight against them the Agency is at the very tip of the spear. America
is counting on the Agency to help disrupt and dismantle al Qa 'ida, and
to learn the intentions of our other adversaries. We will do this,
through the quiet efforts and untold sacrifices of the talented and
dedicated men and women who are the Agency. At the same time, the
Agency must respond to continued scrutiny concerning past practices. We
will do this, too, cooperating with this Committee in its review,
supporting those who sought and followed authoritative legal guidance,
and all the while remaining focused on our vital mission going forward.
The General Counsel has no role more important than ensuring the
CIA's compliance with applicable laws of the United States. If I am
confirmed, I will assume this responsibility with the utmost
seriousness. I believe I have had a good deal of useful experience,
having spent most of my career in law and national security, both in
government--as General Counsel of the Department of the Navy, and as
Principal Deputy General Counsel and Acting General Counsel of the
Department of Defense, as well as at the U.S. Department of Justice--
and more recently in private practice. I also bring to the job strong
commitments, to public service and the protection of U.S. national
security, to the rule of law in our society and adherence to the law in
what we do, and to the exercise of independent judgment and common
sense in furtherance of all of these. I pledge my full support to the
Director, and I am eager to join my future colleagues at the Agency and
in the Intelligence Community.
If confirmed, I look forward to working with this Committee and the
Congress to maintain effective communication, and in addressing the
range of legal issues that may arise during my tenure. In the meantime,
I appreciate this opportunity to appear before the Committee today and
would be happy to answer any questions.
Chairman Feinstein. Thank you very much. I'll begin the
questions. There is a standard of initial questions for all
nominees and I will quickly read this and if you will say yes
or no:
Do you both agree to appear before the Committee here or in
other venues when invited?
Mr. Litt. Yes.
Mr. Preston. Yes.
Chairman Feinstein. Do you both agree to send officials
from your respective offices to appear before the Committee and
designated staff when requested?
Mr. Litt. Yes.
Mr. Preston. Yes.
Chairman Feinstein. Do you agree to provide documents or
any other material requested by the Committee in order for it
to carry out its oversight and legislative responsibilities?
Mr. Litt. Yes.
Mr. Preston. Yes.
Chairman Feinstein. Will you ensure that your respective
offices provide such material to the Committee when requested?
Mr. Litt. Yes.
Mr. Preston. Yes.
Chairman Feinstein. Thank you very much.
In its short history, the Director of National Intelligence
has used intelligence community directives to set out guidance
and regulation across the entire intelligence community--much
like the director of the CIA issued DCI directives before the
DNI position was created.
Three recent examples of these ICDs are: ICD 101,
intelligence community policy system, January 16th of this
year; ICD 501, discovery and dissemination or retrieval of
information within the intelligence community, January 21st;
and ICD 402, Director of National Intelligence representatives,
May 19th, 2009. Do you believe that the DNI has the authority
to issue directives to agencies of the intelligence community?
Mr. Litt.
Mr. Litt. Yes, I do.
Chairman Feinstein. Mr. Preston.
Mr. Preston. Yes, ma'am.
Chairman Feinstein. Do you believe that these intelligence
community directives are binding on individual agencies of the
intelligence community? Mr. Litt.
Mr. Litt. Yes, I do.
Mr. Preston. Yes, I believe a properly issued and final ICD
is binding on agencies in the community.
Chairman Feinstein. Thank you very much. And just one other
question.
On page six of the written questions and answers, Mr.
Preston, I'd like to ask you to clarify one answer, and here it
is: ``By virtue of its relationship with the entire
intelligence community, the General Counsel's Office is well-
positioned to identify conflicting legal interpretations within
the community. Because the General Counsel does not have
decisional authority to resolve such conflicts, if there are
conflicting legal views on an issue, I would bring the relevant
General Counsels together to discuss the issues and attempt to
resolve any differing opinions.''
This is your writing. How do you mean this?
Mr. Preston. I believe that comes from Mr. Litt's
questionnaire, although I would be happy to address it.
Chairman Feinstein. Oh, I beg your pardon.
Mr. Litt. I was going to say, I thought it was my writing,
Madam Chairman.
Chairman Feinstein. Well, that's what piqued my interest in
the question. I thought it was his.
Mr. Litt. No, no.
Chairman Feinstein. But I think----
Mr. Litt. Is the answer clearer when you----
Chairman Feinstein [continuing]. The answer is much clearer
when it comes from you, because I think the point that I wanted
to make clear in my first question, and with this, is the fact
that we passed legislation to create an overarching head of the
16 intelligence agencies. And that is the Director of National
Intelligence. And he is the boss.
And as a matter of fact, we had Mr. Panetta here at his
hearing, and we asked him, and he verified, yes, the DNI is my
boss. And I want to be sure that that is the impression of the
new legal counsel for the CIA.
Mr. Preston. Understood.
Chairman Feinstein. Okay. Mr. Vice Chairman.
Vice Chairman Bond [presiding]. Madam Chair, you are going
to go vote, I understand----
Chairman Feinstein. I'll go vote and come right back.
Vice Chairman Bond [continuing]. I will ask questions and
hope you get back speedily because I will probably have to go
vote and if Senator Snowe wants to stay around and ask
questions after I run, I will be happy to turn it over.
Otherwise, I will exercise the gavel in an apparently
untrammeled manner, here, for a couple of minutes--as long as I
think I can get away with it and still vote on time.
Gentlemen, one of the questions I ought to ask everybody,
and I will ask again to get your views on the record--and since
we've practiced it before, I'm sure you can be brief and to the
point--for all national security lawyers, I like to ask--and
I'll first ask Mr. Litt and then Mr. Preston--if the President
of the United States has inherent authority under Article II of
the Constitution to engage in warrantless foreign intelligence
surveillance or physical searches or, in your opinion, does
FISA trump Article II? Mr. Litt?
Mr. Litt. Mr. Vice Chairman, I think the answer to that is
that there is a very express exclusivity provision in FISA that
says that it's the sole means for executing electronic
surveillance that comes within its terms, and I think that this
administration has indicated it intends to abide by that
exclusivity. Obviously to the extent that there are matters
that are entirely outside the scope of FISA--the President, I
think, does have inherent Article II authority to conduct
activities that are necessary to the defense of the nation.
Vice Chairman Bond. So you're saying he doesn't have the
authority if it's within the scope of FISA.
Mr. Litt. I think that this administration has indicated
that it will abide by the exclusivity provision. This is
obviously, as you know, one of the constitutional questions
that scholars of considerably more wisdom than I have been
debating for years and years.
Vice Chairman Bond. I'll let you get by with that.
Mr. Litt. Thank you. [Laughter.]
Vice Chairman Bond. Mr. Preston.
Mr. Preston. In that case, I'd like to associate myself
with his remarks.
Vice Chairman Bond. I want to see if you can do a better
job. [Laughter.]
Mr. Litt. I'm sure he can.
Mr. Preston. I think Bob has accurately described the state
of the play and where the difficulty lies. I have an answer
perhaps not satisfactory to constitutional scholars and a
little more simple-minded, but I don't think the President is
above the law and the FISA amendments establish procedures that
the President has acknowledged he intends to follow.
And if there remains, under Article II, powers for him to
do differently in special circumstances, I would have to defer
to the constitutional scholars on that.
Vice Chairman Bond. Well, heaven forbid we get into that
situation where it's needed, but I'll be interested in hearing
what you have to say should that occasion arise. Mr. Litt.
Mr. Litt. If I could just add on that, I'm quite confident
that if that situation ever arose, you would be hearing from us
about it.
Vice Chairman Bond. I used to be a constitutional lawyer,
not a scholar, but I'll be happy to talk with you about it.
Mr. Litt, I'm very much concerned and I've asked the DNI
and these lawyers many times if they had the authorities they
need to do the job. Some representatives of the DNI indicated
they might not. I think that question continues to arise. We
talked about it. Have you had a chance to study it any further
since our initial discussion?
Mr. Litt. Not really. In my mind, Mr. Vice Chairman, what's
going to be most important is to have an opportunity to
actually see how the authorities operate in practice. I can
read the words of the statute, but until I actually have an
opportunity to be in place and watch how they're used and see
if there are any gaps, I'd be cautious in forming any judgments
about whether any additional authorities are needed.
Vice Chairman Bond. There may be an opportunity very
shortly. I have questions that we've discussed before; I'll
submit them for the record.
Mr. Preston, the Committee has begun a review of the CIA
detention and interrogation program. Do you think the
Department of Justice should conduct criminal investigations on
those individuals involved in detention and interrogation of
al-Qa'ida terrorists in accordance with procedures approved by
the OLC and if authorized by the President?
Mr. Preston. Sir, I would note that the President, as well
as the Attorney General, the DNI, the D/CIA have decided--and
the others have agreed--that the people who, in good faith,
sought and followed what was believed to be authoritative legal
guidance with respect to the interrogation program ought not be
subject to prosecution--as Director Panetta said, ought not be
subject to investigation and prosecution.
The fact of the matter is that there has been in place at
CIA an investigatory mechanism in the form of the IG, which has
been, since the time that the interrogation program was in
place, investigating allegations of abuse. So it's not as if
there isn't already in place investigation efforts, and I just
would echo the concept that those who acted in good faith, in
reliance on that authoritative legal authority, ought not be
punished for it.
Vice Chairman Bond. Do you think the DOJ should conduct
criminal investigation of the lawyers who wrote the CIA
opinions, the senior Executive Branch officials who authorized
the program, or congressional members who were aware of the
program's details and chose to fail to exercise their
congressional oversight to stop them?
Mr. Preston. Senator, my focus has been principally on the
Agency and its role and, frankly, its role going forward. With
respect to people at the Justice Department and elsewhere, I
really haven't formulated a conclusion. I will tell you,
broadly, I believe that public servants who act in good faith
and in reasonable belief that they're acting lawfully in
defense of our country ought not be punished for that. I would
prefer not to comment on other agencies.
Vice Chairman Bond. Mr. Litt, any further expansion?
Mr. Litt. Mr. Vice Chairman, I certainly believe that it is
essential to the operation of government that people be able to
rely on opinions from the Justice Department without fear that
those opinions will later be pulled back from them and leave
them exposed to criminal liability.
Vice Chairman Bond. I'm asking about if a lawyer gives an
opinion you think is bad, should they be prosecuted for it?
Mr. Litt. I'm not aware of any such case, Mr. Vice
Chairman.
Vice Chairman Bond. I am concerned that we're moving back
to a pre-9/11 mentality, where international terrorists are
considered as ordinary criminals that should be afforded all
the due-process rights of our criminal courts. Mr. Preston,
what are your views on this issue?
Mr. Preston. I haven't conceived of the situation in those
terms, but my thinking on it is that our government, the past
administration and the current administration, have recognized
radical jihadist terrorist organizations as posing a serious,
real and enduring threat to our national security and have been
committed to applying the full panoply of tools at our disposal
in combating that threat.
Vice Chairman Bond. Mr. Litt, quick answer?
Mr. Litt. Mr. Vice Chairman, I would simply point to the
President's speech this morning, in which he indicated that
there are some terrorists who we have who are amenable and
properly tried in normal criminal courts; there are some who
ought to be tried in military commissions for acts against the
law of war; and that there may be some who cannot be tried, but
will need to be detained under some legal framework worked out
cooperatively among the executive branch and the legislative
branch.
Vice Chairman Bond. Gentlemen, I'll suspend the hearing. It
will resume at such time as the Chair returns.
[Recess.]
Senator Wyden [presiding]. I want to thank both our
nominees, and I'm sorry that it's so hectic on the floor, and
you'll have us shuttling back and forth here for a period of
time.
Let me start with you, if I could, Mr. Preston. As I
indicated to you in the office, I think your position is one of
extraordinary importance. When you're the General Counsel of
the CIA, your clients are the men and women of the Agency, and
it's your job to protect your clients by ensuring that
intelligence activities comply with the law.
The dedicated people who work at the Agency take big risks
to protect their country and uphold American values and they
deserve to have confidence that they're never going to end up
in trouble because they were asked to participate in a program
that did not have a strong legal foundation. And as you know,
Mr. Preston, I've taken a great interest in this position in
the past and I will continue to do so, and that's why I have a
few specific questions for you.
If you're confirmed as the CIA General Counsel, and the
Department of Justice hands you a poorly-reasoned legal
opinion--like the Bybee memo--and tells you to use it as the
legal basis for a sensitive intelligence program, what would
you do?
Mr. Preston. Senator, I strongly believe that as the chief
legal officer of the Agency, by statute, I have a
responsibility to exercise independent judgment in matters of
law affecting the Agency. I recognize that OLC opinions are
treated, and properly treated, as binding, if you will, within
the executive branch. But if I were confronted with a
circumstance of the sort you described, and I had a strong
disagreement with an opinion, I would make my disagreement
known. I would make it known to the Director, who is my
principal and make it known to the leadership of the Justice
Department and elsewhere, as appropriate.
Senator Wyden. So you would bring it up specifically with
the Department of Justice and you would say, this memo doesn't
cut it and you don't believe it's an adequate foundation for a
significant program?
Mr. Preston. I think that's a fair statement.
Senator Wyden. Okay. One other question I had for you--and
this was just something that struck me and I'd like to get your
thoughts with respect to what it was you were trying to convey.
In response to one of the prehearing written questions to Peru,
you stated that CIA Office of General Counsel attorneys might
somehow advise their clients not to create discoverable
documents in situations that might involve litigation. My
question is, would you agree that government employees have an
obligation to make accurate records of their actions and not
try to cover up anything by refusing to write it down?
Mr. Preston. I would agree with that, Senator. Let me say,
as I hope I made clear in my written response, I am not
familiar with the circumstances of the Peru incident--have not
reviewed the IG report. From my private practice experience, I
know it's not at all uncommon to advise clients to take care in
what they put in writing, take care with the use of e-mail,
what have you, when you are in a circumstance of civil
litigation or possible civil liability. I consider that worlds
apart from telling people not to make proper records or to, in
any way, falsify or destroy records or anything of the sort.
Senator Wyden. I appreciate that because it seemed to me
that the Peru issue certainly is hard to get all the facts in
terms of your situation at this time, but I just wanted to get
on the record that you did not mean that the office of the
General Counsel should somehow advise CIA employees to not keep
records.
Mr. Preston. That is a correct understanding and I should
have been clearer.
Senator Wyden. Very good. Let me ask you just one question,
Mr. Litt, if I might. When we met in my office, we discussed
the statutory requirements of the executive branch to keep the
Committee fully and currently informed about intelligence
activities, and you actually called afterwards to clarify your
answer. I'm encouraged that there is a lawyer who cares that
much about making sure that they get the question right.
And, for the record, just tell us, if you would, your views
on this law and specifically address the practice of notifying
only the Chairman and the Vice Chairman rather than the full
membership of the Committee.
Mr. Litt. Senator, I understand that this is a question of
great importance to the Committee, and I think it's of great
importance to the intelligence community as well because of the
importance of oversight that I mentioned in my opening
statement.
Section 502 of the National Security Act requires that the
intelligence Committees be kept fully and currently informed of
all significant intelligence activities. And Director Blair, a
couple of months ago, as I mentioned, sent around a memorandum
to the entire intelligence community emphasizing this.
And as I believe he said recently, this notification should
be to the full Committee in all but the most extraordinary
circumstances when there are compelling national interests.
Director Blair has also, I think, promised this Committee that
if there are such extraordinary circumstances, he will discuss
with the Chair and the Vice Chairman how and when the full
Committee should be briefed.
If confirmed, I look forward to assisting him in the
overall process of ensuring that this Committee is kept fully
and currently informed.
Senator Wyden. Is there any basis in law for limiting
notification of any intelligence activities other than covert
actions to just the Chairman and the Vice Chairman?
Mr. Litt. Section 502 begins with a clause that says that
the notification is 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.
I think that this is at least arguable recognition that
there may be extraordinary circumstances in which a more
limited notification is appropriate, but I would emphasize that
in my view this should be done only rarely, only when it's
essential because of a vital interest and extraordinary
circumstances, and should only be done in consultation with the
Chairman and Vice Chairman.
Senator Wyden. My time has expired, but what would be an
example of an extraordinary circumstance? I mean, part of the
reason I'm asking you this is for the reasons that we talked
about.
Most of this Committee was kept in the dark for years and
years on the interrogation issue, and not just one or two
years, but you're hearing all this discussion now about how
everybody on this Committee was kept in the loop over the years
on the interrogation question.
That's just a position that's disconnected from reality. I
mean, I was on the Committee starting in 2001 and even the
Agency's records indicate that we weren't briefed until 2006.
So this is an issue I feel strongly about. I think others do.
So let me close my questioning. I'm over my time, Madam
Chair.
Give me an example of an extraordinary circumstance where
you wouldn't see notification to the Committee.
Mr. Litt. I'm hampered in that by not having actually been
on the ground and seen many of the circumstances in which
notification actually occurs. It would seem to me that one
example might be where there is exceptionally grave and
immediate risk to the lives of American agents. That's a
situation where you might consider it. But it's difficult for
me to give specifics on that without having been in the job and
seeing how it operates.
Senator Wyden. Well, the law to me seems to be that it
really is an exception only for covert activities. I know we're
going to talk about this further. Both of you bring, in my
view, a great professionalism to these positions. I look
forward to voting for you.
Thank you, Madam Chairman.
Chairman Feinstein [presiding]. Thank you, Senator Wyden.
Senator Feingold, I think you're next, and then Senator
Whitehouse.
Senator Feingold. I thank the Chair and congratulate both
the nominees on your nomination.
I do need to pursue what Senator Wyden very appropriately
began, and that is the issue of the Gang of Eight statute. I
heard the language ``fully and completely inform the
Committee,'' and the Senator went through what the statute
says.
The exception only applies to covert action, not to
collection programs or activities, and I'm just trying to
figure out what the legal basis is for this circumstance that
you're imagining of grave risk and so on. What is the legal
basis or where is the language that allows that kind of an
independent interpretation of the plain statute?
Mr. Litt. Senator, Section 502 begins, ``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 and other entities of
the United States government involved in intelligence
activities shall keep the congressional intelligence committees
fully and currently informed,'' and so on.
So there clearly is a qualification. In my view, that
qualification--and let me make it very clear--I do not think
that that qualification is a limitation on whether the
intelligence committees should be kept informed. I think it
does afford some wiggle room on how the intelligence committees
are kept fully informed.
As I said, in my view this is something that should be done
only in the most extraordinary of circumstances and only in
consultation with the Chairman and Vice Chairman of the
Committee.
Senator Feingold. Well, I appreciate the reference to that
language. First of all, the notion that a Committee can be
fully informed when just two Members are notified to me is
illogical, but I understand the argument you're trying to make.
But do you agree that the provision which allows for a
Presidential determination that limited access is essential
``to meet extraordinary circumstances affecting vital interests
of the United States'' was not intended, of course, to
authorize hiding matters from the full Committee because they
are politically sensitive or legally controversial?
Mr. Litt. Not on those bases alone, no, sir.
Senator Feingold. Mr. Preston, your answer to this area,
please.
Mr. Preston. I would agree on that, certainly.
Senator Feingold. And what is your general position with
regard to the explicit language of the statute and the very
narrow exception that's provided?
Mr. Preston. I think I would agree with Mr. Litt's
construction of the statute to the extent that that opening
language does provide a qualification on the obligation.
However, I would emphasize, with equal or greater weight, the
point he has made that it should be truly exceptional
circumstances and that the legal requirement here is for
complete and timely provision of information to the full
Committee. The law admits of exceptions only on an
extraordinary basis.
I am keenly aware of the concern on this Committee, and I
know that Director Panetta is aware of the concern, about the
use, or many would say overuse, of restricted briefings. He is
committed to addressing that. I will join him in working to
improve effective communication between the Agency and the
Committee and to get notification and reporting done right.
Senator Feingold. I believe both of you are sincere in
wanting to get this right, but let me just underscore what it
means if, after what was frankly a rogue administration's
approach to this, somehow the approach is ratified by a second
administration that did not take such a cavalier attitude but
sort of says, well, actually there are these independent things
you can do despite the statute, how serious that would be for
this. But I've heard your words and I look forward to working
with you on it.
Mr. Litt, you have informed the Committee that you
represent several current and former CIA employees who had some
role in rendition, detention and interrogation. You indicated
that to avoid conflicts of interest you will not participate in
any decisions affecting the outcome of any prosecutions or
investigation of these or similarly situated individuals, nor
will you offer opinions with regard to particular interrogation
procedures that may have been employed in the past and that
``relate to the subject of my representation.''
Given that we can't predict how current and future policy
deliberations might ultimately affect your clients, shouldn't
you proceed under the assumption that any opinions you offer on
detention, interrogation and rendition could present an
appearance of a conflict of interest?
Mr. Litt. Senator, obviously, as you know, I'm keenly aware
of this issue. I did send a letter to the Committee about it.
And I will consult regularly with the designated Agency ethics
official about what is and is not appropriate for me to
participate in.
My approach to the law is generally that I try to apply the
law to a specific set of facts, and it's my current judgment
that if I am presented with a set of facts in the future where
somebody asks me, can we use this interrogation technique in
this circumstance, that I would be able to offer an opinion or
my best legal judgment on that without affecting the interests
of my clients. But obviously I would be constantly consulting
with the ethics officer on that.
Senator Feingold. Finally, Mr. Preston, the President said
today that he disagreed with the legal analysis and the OLC
memos on torture. Do you as well, and do you consider the
interrogation techniques described in the OLC memos to be
torture?
Mr. Preston. Sir, you said Mr. Preston----
Senator Feingold. Yes.
Mr. Preston [continuing]. But you seem to be looking at Mr.
Litt.
Senator Feingold. I'm sorry. Go ahead.
Mr. Preston. Shall I answer?
Senator Feingold. Please, Mr. Preston.
Mr. Preston. Senator, I believe that the four OLC memos at
issue are flawed. I look to the Justice Department's own
actions in reaching that conclusion. The Justice Department,
during the last administration, repudiated publicly the legal
reasoning of the unclassified August 2, 2002, memo from which
the classified August 2, 2002, memo was derived, formally
withdrew the former and later superseded the latter in May
2005.
More recently, the Department of Justice has indicated the
flawed nature of all four memos, having now withdrawn all four,
such that they are now dead letters.
Senator Feingold. Do you consider the interrogation
techniques described in the OLC memos to be torture?
Mr. Preston. I have not reached that conclusion. I have
very studiously focused on the four opinions as they are
relevant to the tasks that will lie ahead of me. My view is
that by virtue of the fact that the practices outlined in those
memos have now ended, the law has changed since 2002 and 2005
in significant fashion. And, as I pointed out, the letters have
been withdrawn.
Senator Feingold. You've not reached a contrary conclusion
either, right?
Mr. Preston. I have not.
Senator Feingold. Okay. I apologize for going over my time.
Chairman Feinstein. Thank you very much Senator.
Senator Whitehouse.
Senator Whitehouse. Thank you, Madam Chair. Welcome to the
minefield, gentlemen. [Laughter.]
Senator Whitehouse. Two issues. One, we urgently need a new
cyber policy. The trajectory of what the Bush administration
has left us is not sustainable. Indeed, I think you've been
left in a bit of a trap. It's all too classified to discuss
further, but I would point it out publicly it is a very big
mine in the minefield.
Two is torture. This is a question that has three
components. The first is what we did. And I could not advise
you more strongly to acquaint yourself with the details, to
drill down to the cables, to bring people in and ask hard
questions, and to not be fobbed off with sanitized summaries.
Do it yourself or assure that it's done by someone not tainted
by the program, independent, and who you can trust.
Ask about conditions, hygiene, humanity and dignity,
medical care. Ask about the intensity, duration and
multiplicity of techniques. Find out if they complied with the
limits and the predicates--and the predicates--of the OLC
opinions. How bad is it? You need to know in order to advise
your principals well.
Second is how this happened. Institutions were damaged to
make this happen, most profoundly, the Office of Legal Counsel
of the Department of Justice. But how is it that no lawyer
within the intelligence community found United States v. Lee on
waterboarding, or our history of military prosecutions. Evan
Wallach's Law Review article I would commend to you on the
availability of that information. What went wrong? Why didn't
they ask about it?
And, third, this is a problem with a long history of false
and misleading information, from the President saying it's not
torture when we've prosecuted it as torture--as not only a
crime but as a war crime--in our history. We were told it was
clearly lawful and the OLC opinions were likely phonied up.
Objections to them from within the administration were not
answered but rather were suppressed. CIA appears to have turned
a blind eye to it. ``Clearly lawful'' seems to exaggerate a
good deal.
It's the same as the SERE training, we were told. We do it
to our troops. CIA's own IG report and the OMS section of that
belies that. And if you've answered the first question you know
it's false, the first question being about what was actually
done.
We were told that we need to back our brave CIA agents who
did all this, and now we find out that the worst of the program
was actually led by private contractors. We were led to believe
that waterboarding was irresistible and immediately effective.
Then we find out that KSM was waterboarded 183 times and
another detainee 83 times. We were told that KSM lasted only
seconds on the waterboard, it was that irresistible, and it
never had to be done again. That was plainly false.
We were told that it produced actionable data. I have not
yet seen evidence of that, and the things that suggest that
that's true are carefully worded, I think to mislead. Certainly
Director Mueller has said he's seen no evidence of it also.
Look carefully. Is there actually real evidence of actionable
intelligence on the waterboard?
Finally, military and FBI interrogators have been derided
as amateurish and ineffective, with the opposite argument being
that it's the expert and experienced folks at the CIA who don't
need the Army field manual, sort of like it's training wheels
on a bicycle, in order to do their jobs. In fact, the opposite
is true.
The FBI and the military and some career CIA folks were the
real experts. The people who came in improvised a program.
There was no previous expertise in that area, and the people
who did it had no previous experience in interrogation. There
is a strong record of that at this point.
This whole question of the false and misleading information
raises the question whether this is just a giant collective
misunderstanding or whether there has been a calculated plan to
deceive, and, whichever, it feeds into a consistent storyline
that is, by all the evidence we've seen so far, false, and yet
was maintained as early as today.
Do not be taken in, I urge you, and do not allow your
principals to be taken in. We know too much right now that is
false. Your reactions?
Mr. Preston. Well, Senator, I appreciate the admonition and
the guidance. You clearly have followed this closely and are
taking an active interest in it, which I and others at the
Agency I am sure appreciate. And I think your observations and
admonitions will be useful to me if I have the privilege of
serving.
Mr. Litt. Senator, I agree with what Steve said. I would
also just comment that I know that this Committee is
undertaking a review of the past interrogation practices, and I
think that this Committee is particularly well situated to do
that in an appropriate manner by virtue of the bipartisan
tradition of the Committee and the expertise that it has in
intelligence. And if I'm confirmed I look forward to doing what
I can in working with you in that area.
Senator Whitehouse. If I may add one final point in
reaction to that, I could not be more proud of what Chairman
Feinstein is doing. I could not be more confident in her
leadership. But there are limitations to what a congressional
committee can do in terms of the access that we're allowed to
information, in terms of the consequences if we are misled, in
terms of the boundary of executive privilege that protects
certain things, or can be asserted to protect certain things.
I very much hope that the executive branch of government is
not relying on this Committee to sort out the mess that was
made. For whatever we're doing, you have an independent
responsibility as lawyers and as occupants of the offices you--
I hope soon--will hold to conduct your own independent, equally
rigorous review of this so that you and the principals that you
represent are not fooled, are not misled, and have a full
understanding of what took place.
Chairman Feinstein. Thank you very much, Senator
Whitehouse.
Senator Levin.
Senator Levin. Madam Chairman, thank you very much and
welcome to our witnesses and their families.
I want to get back at the answer that you gave, Mr.
Preston, I understand, to Senator Feingold about whether or not
specific techniques represented torture or not, and I think
your answer was you haven't reached that conclusion, or
something like that?
Mr. Preston. That's right.
Senator Levin. Have you reached the opposite conclusion?
Mr. Preston. No, sir.
Senator Levin. Have you given some thought to the question?
Mr. Preston. I have indeed.
Senator Levin. And why haven't you reached a conclusion, if
you have given thought to it?
Mr. Preston. Well, it's difficult to answer the question
with general reference to the techniques referenced in the
opinions.
Senator Levin. How about waterboarding 183 times?
Mr. Preston. I will answer that. I just want to say the
point I was making with Senator Feingold was that my focus has
principally been on the issues I am likely to face going
forward. To the extent that practices have ended by order of
the President, the law changed after 2005, and we have a
process in place to try to identify permissible practices. I
have been focused in that direction and not so much on the
judgments or misjudgments that were made in the past.
Senator Levin. The Attorney General is in the same position
you are, if you are confirmed.
Mr. Preston. Yes, sir.
Senator Levin. The President had said he's no longer going
to use waterboarding. The Attorney General was very forthright.
In his judgment, waterboarding is torture. He didn't say what
you just said--hey, the President said he's not going to use
it. So now let me ask you: is waterboarding torture?
Mr. Preston. Well, as you point out, it has been determined
at the highest level of our government, by the President and by
the chief legal officer of the country, that waterboarding is
torture and that the United States will not engage in that
practice going forward. That's a decision made and I support
the decision. Yes, sir.
Senator Levin. You support that conclusion?
Mr. Preston. Yes, sir.
Senator Levin. Are you familiar with SERE techniques?
Mr. Preston. I am generally familiar with them. Yes, sir.
Senator Levin. Have you read the opinions that describe
what those techniques are and how we use those to help train
our people under very carefully controlled conditions as to
what they might expect from people who torture them?
Mr. Preston. Yes, sir.
Senator Levin. Have you read the way in which those
techniques were utilized not to help train our people to
survive brutality but to inflict brutality. Have you read about
techniques that were used?
Mr. Preston. I have, sir.
Senator Levin. And, in your judgment were the--and you read
the Bradbury opinion, for instance?
Mr. Preston. I have.
Senator Levin. And in your judgment, were the techniques
that were utilized against detainees utilized in the same way
that SERE techniques are used to help our own folks resist
intimidation or abuse?
Mr. Preston. Senator, my understanding is that there are
some differences that one might consider substantial.
Senator Levin. Do you consider them substantial?
Mr. Preston. I would. Among them----
Senator Levin. Does that mean I do?
Mr. Preston [continuing]. Yes, sir. Among the differences
is that obviously one voluntarily enters into SERE training
and, as I understand it, the participants are given a code
word, if you will, the utterance of which will cause a
cessation of the practice. Those strike me as significant
differences.
Senator Levin. The folks that run that program are called
the Joint Personnel Recovery Agency, JPRA. They're the ones who
help to train our people in case they're captured and abused,
to try to survive that. A memo from that agency to the General
Counsel of the Department of Defense said the following--that
the use of coercive techniques in interrogation, out in
training under controlled circumstances, including the one that
you've just given, you can end it at any moment, but that the
use of coercive techniques in interrogation would ``increase
resistance, would create doubts about the accuracy and
reliability of the information obtained, and could be used by
enemies as justification for the torture of captured U.S.
personnel.'' Do you agree with that assessment?
Mr. Preston. I am not familiar with the memo, Senator. And
I certainly understand that those and other points have been
made in support of the proposition that these coercive
techniques are not effective and ill advised.
Senator Levin. And do you share those same doubts about----
Mr. Preston. I share some of the same concerns. Yes, sir.
Senator Levin. Madam Chair, is my time up? I'm over my
time. I'm sorry, Madam Chair.
Chairman Feinstein. We thank you very much, Senator.
Senator Risch.
Senator Risch. Pass.
Chairman Feinstein. Senator, would you like to ask another
question?
Senator Levin. Yes. But I could come back. I didn't realize
that----
Chairman Feinstein. He passed.
Senator Levin. Oh, okay. Thank you.
General Petraeus in May of 2007 said the following: Some
may argue that we would be more effective if we sanctioned
torture or other expedient methods to obtain information from
the enemy. They would be wrong. Beyond the basic fact that such
actions are illegal, history shows that they are also
frequently neither useful nor necessary. Certainly extreme
physical action can make someone talk. However, what the
individual says may be of questionable value. Do you agree with
General Petraeus?
Mr. Preston. Senator, I would like to respond as completely
as I can, but I frankly am not expert in the efficacy of
interrogation techniques, the spectrum of interrogation
techniques.
Senator Levin. Are you concerned that if torture is used
that someone will say anything in order to stop the torture?
Mr. Preston. I beg your pardon?
Senator Levin. Are you concerned that if torture is used
that somebody who was being tortured will say anything to end
the torture?
Mr. Preston. Certainly, that's an intuitively
understandable proposition. I just don't have any experience
base with interrogation methods. And I would say certainly with
respect to torture, as the President's made clear, we will not
engage in torture.
Senator Levin. Thank you. Thank you, Madam.
Chairman Feinstein. Yes. Thank you very much, Senator
Levin.
Let me ask my questions. My curiosity was piqued by
something, Mr. Preston, you wrote in the responses to
prehearing questions about the unclassified conclusions of the
CIA Inspector General's report entitled ``Procedures Used in
Narcotics Airbridge Denial Program in Peru, 1995-2001.''
On question 20(a), you state that the Office of General
Counsel attorneys have a legitimate role to play in advising
CIA personnel on mitigating potential civil liability,
including advising their clients not to create discoverable
documents during civil litigation or while facing the threat of
civil litigation.
Let me read a press statement written by the Vice Chairman
of the House Intelligence Committee on January 13th. ``The CIA
Inspector General also found that persons within the CIA
mounted an extensive cover-up of the facts of this tragedy from
the White House, the Justice Department, and Congress. The CIA
lied to Congress and the executive branch about the downing of
the Bowers' plane to shield its personnel from being held
accountable and from possible prosecution.''
Now, as you know, Mrs. Bowers was killed when the Peruvian
Air Force shot at the plane and the bullet went through her
into the brain of the baby she was holding in her lap and
killed the baby as well. Who is the client of the CIA General
Counsel--the United States, the CIA, the CIA Director,
supervisors, the CIA personnel with accountability functions,
or all individual CIA personnel? Who is your actual client?
Mr. Preston. That is an excellent question and one that I
have given thought to and I will answer as directly as I can.
In your absence, Senator Wyden also asked me about this and
gave me an opportunity to clarify that I am not familiar with
the circumstances of the Peru incident, have not had access to
the IG report, and am not in a position to comment on the
particular observation or allegation about the making of
discoverable documents. I was simply trying to make the point
that it is not uncommon, certainly in private sector experience
and I think increasingly in the public sector, that an attorney
could properly advise a client or agency personnel not to
unnecessarily generate documents that would be discoverable in
a civil litigation context.
Chairman Feinstein. Well, it's one thing to do that; it's
another thing to inspire a direct cover up.
Mr. Preston. And as I tried to clarify with Senator Wyden,
I think what I am describing is worlds apart from anything I
would call a cover up or instructions not to create records
that are regularly kept or to alter records, to destroy records
or otherwise not cooperate in, for example, a criminal
investigation.
Chairman Feinstein. Let me ask you----
Mr. Preston. I do want to answer your question.
Chairman Feinstein [continuing]. Another question.
Mr. Preston. Yes, ma'am.
Chairman Feinstein. Are there any circumstances under which
the CIA should be permitted to lie to Congress?
Mr. Preston. I don't believe--I cannot think of any.
Chairman Feinstein. And if you believed the CIA were in
fact lying to Congress, what would you see it to be your duty
to do?
Mr. Preston. Well, I would follow the lead of Director
Panetta on this, and he has said it is neither the policy nor
the practice of the Agency to lie to or mislead Congress. I
would view an instance of lying to Congress as being in direct
tension and direct opposition with that stated policy and
practice by the Director. And I would, at a minimum, bring it
to the Director's attention so that we could discuss the
appropriate response.
Chairman Feinstein. I would very much hope you would not
condone it.
Mr. Preston. Oh, absolutely not.
Chairman Feinstein. And that you would do more than bring
it to his attention for a response.
Mr. Preston. Well, by which I simply meant that I would
engage with him and that we would decide--he would decide with
the benefit of my judgment how to rectify the situation. I
don't mean to suggest it's merely a matter of letting him know
about it.
Chairman Feinstein. Well, let me ask you, if you are
confirmed, that you do review the Inspector General's report on
this.
Mr. Preston. I plan to. And I do want to answer your
question. I believe my client will be the Agency and ultimately
the United States. I take my direction from the Director, and
in some very real ways the men and women who are the Agency we
regard as our clients. But in, for example, a matter in which
there's possible criminal misconduct, neither I nor the lawyers
in my office have any business providing personal counsel to
individuals who may have exposure. Our client is the Agency,
the United States, and the people of the United States.
Chairman Feinstein. Thank you very much.
Mr. Ranking Member, do you have a question?
Vice Chairman Bond. I've heard enough.
Chairman Feinstein. Okay.
Senator Whitehouse, do you have additional questions?
Senator Whitehouse. If I may.
Chairman Feinstein. Please, go ahead.
Senator Whitehouse. Thank you.
Mr. Preston, you, in responding to Chairman Levin,
indicated a tendency, if you will, to try to address the
forward-looking problems of the Agency that with any luck you
will soon be representing, as opposed to the backward-looking
problems. As lawyers, as you know, when we come in, those old
messes are still our problems. You don't get to say, well, that
happened before I got here. It's not my problem.
You have under American law the corpus delicti of a crime.
Waterboarding under American law is a crime established by the
United States Court of Appeals for the Fifth Circuit, the
United States v. Lee.
So now the question is, is anybody criminally liable for
it? You found a body, doesn't necessarily mean somebody is
criminally liable for it. You have to investigate further. You
have at least one U.S. Attorney investigating a related issue.
I think that the notion that somehow this can be wished away or
isn't going to be a very real and immediate part of your
professional life is misguided.
I understand that there is something of a tension between
the President's desire to look forward, which I think is both
correct and commendable and appropriate for his office, and the
problem that, frankly, this can't be wished away. And you will
be at the junction point of the Presidential desire to go
forward, and yet the facts and the practicalities of really not
being able to until this is resolved. And I'd be interested to
hear how you would resolve that tension.
I'd also like you to comment on another tension. You will
be representing--both of you actually--principals, your bosses,
the director of National Intelligence and the Director of the
CIA, who are new to their positions and who rely to a very
substantial degree on career staff to provide them advice. And
in both cases, it is possible that within that staff chain of
command are people who are actually implicated in the decisions
that led to the torture of detainees.
It seems to me that that creates a very significant
management and legal problem for your principals if they have
not, particularly on this issue, built a chain of command to
advise them on it that is clear and independent of any taint of
association with the program.
That's particularly complex in Mr. Litt's case because he
has his own separate conflict issues related to this.
So how do you intend to balance the President's desire of
the President of the United States to look forward with your
responsibilities as Agency counsel with a very significant and
as yet unresolved problem in your past to resolve? And what is
your responsibility for assuring that your principal has a
clean and untainted chain of command that is informing him
about this so that cover-ups aren't happening in that chain of
command?
Mr. Preston. Let me begin with the first question and
underscore my agreement with you that one cannot wish away the
issues arising from the past practices. And I don't mean to
suggest anything of the sort. I recognize that those----
Senator Whitehouse. We all wish they never happened, but
that's a different----
Mr. Preston [continuing]. Well, that may be. I recognize
that these are real and present issues that the Agency, the
Director, myself will need to deal with responsibly, and I have
every intention of doing that. My reference to looking ahead
was really by way of explanation as to why as these issues come
to me I don't expect the dead letters of the OLC opinions to be
providing guidance to me. I will be looking at the facts that
are presented then and the guiding principles that now apply
and apply my best judgment for the benefit of my client.
Senator Whitehouse [continuing]. And on the question of an
untainted reporting chain?
Mr. Preston. Pardon?
Senator Whitehouse. And on the question of an untainted
reporting chain?
Mr. Preston. On the question of reporting chain, it's an
interesting point. I think it's more than an interesting point.
It's an important point. One of the things I can do to help the
Agency and to help the Director is to come in as someone who
has no prior involvement with the matters under examination
and, starting with me, provide guidance, advice and counsel
that is uninformed and, to the outside observer, untainted, to
use your word, by prior involvement.
The Agency and other members of the intelligence community
don't wholesale change out the leadership when there's a change
in administration, and that's a good thing. I would expect that
both the Director and I will come to rely on the solid career
people at the Agency, senior staff and otherwise, that from
administration to administration we have come to rely on.
I think you flag an issue that we need to be sensitive to
as we navigate these shoals. But I do think and I have--from my
experience with the senior staff in the Office of General
Counsel that I've worked with, I know them to be dedicated and
capable. And to the extent that people were there at the time
the matters under examination were happening, that's something
that we will simply have to factor into our actions and
decisionmaking.
Senator Whitehouse. But you do recognize that for all the
wonderful work that the CIA career folks do and, as the son of
a former CIA employee and career federal employee, I think
very, very highly of what they do. This is not a slam on them.
This is just a fact that if you allow your chain of reporting
to be only through people who are potentially implicated in an
incident, it is not clear that your principal who you represent
will be getting untainted information. And getting to your
principal untainted and complete information I think is one of
your highest duties.
Thank you, Chairman.
Chairman Feinstein. Do you have any other questions?
Senator Levin. Just a couple, if you would, Madam Chairman.
You said a few moments ago that if a Director of CIA said
something that was misleading. Is that who you were referring
to, that you would then talk to him about how to rectify the
situation?
Mr. Preston. That wasn't how the question was presented to
me.
Senator Levin. Who was the question referring to? Was it
not the CIA Director?
Mr. Preston. Well, the Chairman referred to the CIA--if the
CIA were to lie to Congress.
Senator Levin. All right. So if the CIA Director said
something which was misleading or erroneous publicly, what
would you do?
Mr. Preston. I think my first responsibility would be to
apprise him of my concerns about the accuracy of his
statements.
Senator Levin. And what would be the second thing, if he
continued.
Mr. Preston. It may well depend on what his response is.
Senator Levin. Well, he said, ``I'm not going to correct
it. You're right. It's erroneous, but I'm not going to correct
it.''
Mr. Preston. Well, I think one can suppose any number of
circumstances where my client or the Director would choose not
to follow my advice or act against my counsel. That would
present to me a dilemma in which, depending on the issue and
the strength of my disagreement, I might find myself compelled
to seek employment elsewhere. I certainly hope and with this
Director confidently predict that's not going to be a problem.
Senator Levin. I'm sure that's our hope and our confident
prediction, but we don't know how these things turn out.
Director Tenet said some things publicly which were false and,
by the way, acknowledged later on in his book that they were
erroneous. A top policymaker of the United States, the Vice
President, said some things which were false. Director Tenet
said, gee, looking back, I'm sure we should have done something
to force a correction of that.
We went to war based on misleading, erroneous information
that was passed on by our top policymakers based on
intelligence, particularly alleging a link between al-Qa'ida
and Saddam Hussein. These are serious matters involving a huge
amount of lives. And it's important to me that I know what's in
your gut about, if and when that happened, how seriously you
would take it.
Mr. Preston. I think that it is a gravely serious matter. I
think there's been a lot learned from that experience. I think
this process by which Director Panetta was selected and
confirmed, and to a lesser extent myself, is one in which
hopefully we are capably communicating the gravity with which
we would regard that and our every intention not to let it
happen.
Senator Levin. The Chairman made reference to an IG report
on the shootdown of a missionary family's plane in Peru, which
was a Michigan missionary family, and made reference to the
fact that the lawyers from the CIA Office of General Counsel
advised CIA personnel to avoid putting anything in writing lest
it be discoverable in legal proceedings. My understanding was
that you indicated in a prehearing answer that such advice
could be justified, but then I thought you said that you have
clarified this with one of our colleagues. Is that correct?
Mr. Preston. Well, there was a colloquy with Senator Wyden
in which he just wished to make clear--I wished to make clear
that I was not commenting on the specific facts in the Peru
incident because I am not aware of those facts and I have not
seen the report. I had made the observation that is not
uncommon and may be entirely proper for counsel to advise
client personnel not to generate unnecessary documents that
might prejudice the Agency's case in civil litigation. But
beyond that, I really am not familiar with the Peru incident or
what advice was given and do not want to express a judgment one
way or the other on that.
Senator Levin. I think you should become familiar with that
report so you can give us your opinion. Would you do that?
Mr. Preston. I have every intention of reviewing that----
Senator Levin. Promptly.
Mr. Preston [continuing]. When I take office.
Senator Levin. Well, no. I'd like you to do that promptly.
Mr. Preston. Yes, sir.
Senator Levin. If you do that in the next couple of days, I
would be appreciated.
Mr. Preston. Well, it's classified and I am not able to
have access to it, but my plan was, if I am privileged to take
office, to make it one of my first priorities.
Chairman Feinstein. If I may, I think what Senator Levin
and some of us are pointing out is that you are not just an
attorney representing any client. You're representing an agency
that presents itself as a difficult client because of its
mission. And our expectation is that the law will be followed
and that we will not be lied to. And these are problems of war
and peace, as Senator Levin pointed out. And I think anything
other than the truth, as somebody knows it at the time, is
really unacceptable. And to some extent, the burden is going to
be yours.
Now, you said if the question were of such magnitude and
the Director, let's say--I guess it is the Director--would not
take your advice, that you would resign. And I think that's the
appropriate thing. And I think there has to be a legal
conscience for the Agency and your office is going to be it.
Mr. Preston. I appreciate your insights into that and I am
in agreement with you. I am confident, as I told Senator Levin,
that with Director Panetta things would not get to that point,
but I do not mention it lightly and I would not take that step
lightly. But I agree entirely with you in terms of the great
importance of both adherence to the law and candor with the
oversight committees.
Chairman Feinstein. Okay.
At the conclusion of the hearing, the Committee is going to
have questions for the record that we will submit to the
nominees in writing. I'd like to ask that Members submit their
questions by noon on Tuesday, and I'd like to ask both you, Mr.
Preston, and you, Mr. Litt, that you respond to them ASAP. As
soon as we receive them, have an opportunity to review them, we
will mark up your nomination and hopefully be able to move it
out to the floor.
So at this time, once again, if the Members could meet in
room 211, that would be appreciated. And this hearing is
adjourned.
[Whereupon, at 4:02 p.m., the Committee adjourned.]