SELECT COMMITTEE ON
INTELLIGENCE
UNITED STATES SENATE

Prehearing Questions
For
Robert S. Litt
Upon his Selection to be
General Counsel
Office of the Director of National Intelligence

Keeping the Intelligence Committee Fully and Currently Informed
QUESTION 1:
Section 502 of the National Security Act of 1947 provides that the obligation to keep the
congressional intelligence committees fully and currently informed of all intelligence activities
applies to the Director of National Intelligence and to the heads of all departments, agencies, and
other entities of the United States Government involved in intelligence activities. What is your
understanding of the standard for meaningful compliance with this obligation of the Director of
National Intelligence and the heads of all departments, agencies and other entities of the United
States Government involved in intelligence activities to keep the congressional intelligence
committees, including all their Members, fully and currently informed of intelligence activities?
Under what circumstances is it appropriate to brief the Chairman and Vice Chairman and not the
full committee membership?
ANSWER: I believe that Congressional oversight is particularly important in the area of
intelligence, because of the importance of intelligence to 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. As the question notes, Section 502 of the National Security Act
requires the Director of National Intelligence, and the heads of all departments and agencies with
intelligence components, to keep the two intelligence committees ―fully and currently informed‖
of all U.S. intelligence activities (excepting covert actions that are covered in section 503),
including ―significant anticipated intelligence activities‖ and ―significant intelligence failures.‖
By its terms, section 502 contemplates that the committees will be notified of all significant
intelligence activities before they are undertaken, and section 503 imposes a similar requirement
for covert actions.
Director Blair has emphasized the importance of timely and complete congressional notification.
On March 24, 2009, he issued a memorandum to the heads of all components of the Intelligence
Community reminding them of their obligation in this regard and directing that they review their
internal procedures to ensure full and timely compliance. Like Director Blair, I believe that
congressional notification must be timely to be effective, and I anticipate that, if confirmed, my
responsibilities as General Counsel will include assisting him in ensuring that the entire
Intelligence Community carries out this critical responsibility.
Although Section 502 provides that congressional notification must be made ―[t]o the extent
consistent with due regard for the protection from unauthorized disclosure of classified
information relating to sensitive sources and methods or other exceptionally sensitive matters,‖ I
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believe that this phrase does not limit the obligation to keep the intelligence committees ―fully
informed‖ but rather provides the DNI a degree of latitude in deciding how he will bring
extremely sensitive matters to the committees’ attention. In certain rare circumstances, I believe
it could be appropriate to brief the Chairman and Vice Chairman of the intelligence committees
on particularly sensitive matters. Limited notification should be undertaken only in the most
exceptional circumstances, by analogy to the provision of Section 503 that permits limited
briefing on covert actions ―to meet extraordinary circumstances affecting the vital interests of the
United States.‖ Even in those circumstances, however, I expect that the DNI would discuss his
concerns about further briefings with the Chairman and Vice Chairman and have an on-going
dialogue with them about how and when the full committee membership should be briefed on the
matter.

Priorities of the Director of National Intelligence
QUESTION 2:
Have you discussed with the Director of National Intelligence his specific expectations of you, if
confirmed as General Counsel, and his expectations of the Office of the General Counsel as a
whole? If so, please describe those expectations.
ANSWER: Director Blair and I have had such discussions. He has made clear that his principal
expectation is that, if I am confirmed, I as General Counsel and the Office of General Counsel as
a whole will be responsible for providing him timely and accurate advice about the law to enable
him to exercise his important responsibilities, but also, as any good lawyer should do, for
providing counsel and judgment going beyond the technical requirements of the law and dealing
with such issues as whether a particular course of action is wise, prudent or appropriate. He also
expects that we will not have a narrow focus on the Office of the Director of National
Intelligence but would consider the interests of the Intelligence Community as a whole and the
national interest. Finally, he has indicated that he expects to have an open door for his General
Counsel and expects me promptly to bring to his attention any legal or policy issues that concern
me.
More particularly, Director Blair recognizes that the General Counsel has an important role to
play in helping to coordinate overlapping responsibilities within the ODNI and within the
Intelligence Community as a whole. He particularly mentioned to me his desire that his General
Counsel work closely with the Civil Liberties Protection Officer and Inspector General to help
him ensure, as he is required to do by Section 102A(f)(4) of the National Security Act, that
intelligence activities are carried out in ―compliance with the Constitution and laws of the United
States.‖ For example, the critical function of overseeing compliance with Foreign Intelligence
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Surveillance Act is shared among a number of different entities, and he expects that the Office of
General Counsel would help coordinate that oversight for maximum effectiveness.

The Office of the General Counsel
QUESTION 3:
The Office of the General Counsel of the Office of the Director of National Intelligence has a
myriad of roles and responsibilities. What are your expectations for the Office?
ANSWER: My expectations for the office are much the same as the DNI’s expectations. I
would expect that its lawyers would provide both sound legal advice and wise counsel, and that
they would make clear to the recipients of their advice when that advice is legal and when it
reflects judgment and policy considerations. I would expect them to work with the various
components of the Intelligence Community to try to enable them to take all necessary steps to
protect the nation while not hesitating to tell them where the bounds of the law are. I would
expect them to keep their focus on the needs of the Intelligence Community and the nation as a
whole, and to work cooperatively, rather than adversarily, with the legal counsel to all other
components of the intelligence community. Finally, I would expect them to be proactive rather
than reactive as much as possible – to maintain the sorts of relationships with the components of
the Intelligence Community that would encourage those components to consult with them on an
ongoing basis rather than at the end, typically when things have gone off the rails.
a. Do you have any preliminary observations on its responsibilities, performance, and
effectiveness?
ANSWER: Obviously, my observations on the operations of the Office of General Counsel to
date are extremely limited, but they are very favorable. I have been impressed with the
competence, experience, knowledge and dedication of the lawyers I have met so far. The office
appears to be integrated into the daily routine of the entire ODNI, well respected within ODNI
and the larger legal community, and effective.
b. If confirmed, will you seek to make changes in the numbers or qualifications of attorneys
in the office, or the operations of the office?
ANSWER: Generally, it has been my experience that it is best to spend some time in a new
position or a new office before starting to make decisions about what to change. If confirmed, I
will get to know the attorneys and the office better, and evaluate how effective the office is in
helping the Director accomplish his statutory responsibilities. Moreover, if confirmed I would
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expect to consult with the Intelligence Committees to obtain their views as to the operations of
the office. As an initial matter, however, if confirmed I expect that I would continue the practice
of having several of the attorneys in the office be detailed from other legal offices in the
Community. These detailees provide the DNI General Counsel’s Office a broader Community
perspective and a better understanding of the variety of legal issues facing the elements of the
Intelligence Community, and when the detailees return to their components they take with them
a Community perspective.
QUESTION 4:
Describe your understanding of the responsibilities of the Director of National Intelligence and
the General Counsel of the Office of the Director of National Intelligence in reviewing, and
providing legal advice on, the work of the Central Intelligence Agency, including covert actions
undertaken by the Central Intelligence Agency.
ANSWER: By statute, the Director of the Central Intelligence Agency reports to the Director
regarding the activities of the CIA, and the Director of National Intelligence is specifically
charged with many responsibilities relating to the CIA. For example, he is responsible for
ensuring compliance with the Constitution and laws of the United States by the CIA, monitoring
the implementation and execution of the National Intelligence Program (NIP) and keeping the
Congress fully and currently informed of intelligence activities and covert actions. If confirmed,
I will assist the Director in the execution of these responsibilities by working with the CIA
General Counsel to ensure that legal issues and NIP-funded programs, including covert actions,
are carefully evaluated and reviewed and, when appropriate, that any unresolved legal issues are
referred to the Department of Justice for additional review.

QUESTION 5:
Describe your understanding of the responsibilities of the General Counsel of the Office of the
Director of National Intelligence in the process set forth in the President’s Executive Orders of
January 22, 2009, with respect to ensuring lawful interrogations, review and disposition of
individuals detained at Guantanamo Bay Naval Base and closure of detention facilities, and
review of detention policy options.
ANSWER: The Director of National Intelligence has an important role in carrying out each of
those Executive Orders. He is Co-Vice Chair of the Special Interagency Task Force on
Interrogation and Transfer Policies established by E.O. 13491, a participant in the detainee
review process established by E.O. 13492, and a member of the Special Interagency Task Force
on Detainee Disposition established by E.O. 13493. The General Counsel’s role is to provide
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legal advice and counsel to the Director and those officials he has designated to assist him with
the implementation of these Executive Orders. The Executive Orders raise important and
complex legal and policy issues and it is my understanding that the Office of General Counsel
has been working closely with ODNI officials and the Intelligence Community on them.
QUESTION 6:
Explain your understanding of the role of the General Counsel of the Office of the Director of
National Intelligence in resolving conflicting legal interpretations within the Intelligence
Community.
ANSWER: 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. I would
also involve, as appropriate, the experienced attorneys at the National Security Division and the
Office of Legal Counsel at the Department of Justice. This process would correspond to the
provision of Section 102A(f)(4) of the National Security Act, which charges the Director with
ensuring compliance with the Constitution and laws, but generally ―through the host executive
departments‖ that contain elements of the Community.
I have worked in the past with several of the Intelligence Community general counsels, or
lawyers on their staff, as well as many of the senior attorneys and officials at the Department of
Justice, and I would expect that through this cooperative process we could resolve the great
majority of legal issues. However, if we are unable to do so, either the General Counsel of the
ODNI or any of the other general counsels could refer a legal question to the Department of
Justice. Even in that case, I would expect that the Office of General Counsel of ODNI would be
involved in the Department of Justice’s decision-making process.

Guidelines under Executive Order 12333
QUESTION 7:
One of the fundamental documents governing the activities of the Intelligence Community is
Executive Order 12333. Under Executive Order 12333, as amended in July 2008, there are
requirements for Attorney-General approved guidelines. For each of the following requirements,
describe the principal matters to be addressed by each of the required Attorney General-approved
guidelines or procedures, the main issues you believe need to be resolved in addressing these
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guidelines or procedures, and your understanding of the schedule and priorities for completing
them (or indicate whether the existing named guidelines or procedures are deemed sufficient)
ANSWER: In general, I understand that the General Counsel of the ODNI plays a role in
determining the schedule and priorities for drafting required guidelines and procedures. If
confirmed, I expect to be involved in that prioritization process as well as the substantive process
of developing the actual guidelines.
a. Guidelines under section 1.3(a)(2) for how information or intelligence is provided to, or
accessed by, and used or shared by the Intelligence Community, except for information
excluded by law, by the President, or by the Attorney General acting under presidential
order in accordance with section 1.5(a).
ANSWER: I would expect these guidelines to address a variety of legal issues and privacy
protections in order that information collected by Federal Government agencies outside the
Intelligence Community can be shared with the Intelligence Community to the greatest extent
possible consistent with protecting the privacy, civil liberties, and statutory rights of U.S.
persons. (It is my understanding that intelligence and information-sharing within the Intelligence
Community is governed by section 1.3(b)(9)(B) of the Order, and guidelines governing this
information sharing are contained in ICD 501, issued in January of this year.) Much of the
information collected by other Federal Government agencies is protected by various laws, such
as the Privacy Act, the Bank Secrecy Act, etc., and it could contain a great deal of information
about U.S. Persons. Whether the information can be accessed by the Community, who within
the Community can access the information, under what conditions it can be accessed,
requirements for handling information related to U.S. persons, and restrictions on how the
information can be further used and shared within the Intelligence Community all need to be
addressed in the guidelines.
b. Procedures under section 1.3(b)(18) for implementing and monitoring responsiveness to
the advisory tasking authority of the Director of National Intelligence for collection and
analysis directed to departments and other U.S. entities that are not elements of the
Intelligence Community.
ANSWER: It is my understanding that advisory tasking is a process whereby the Director of
National Intelligence asks a Federal Government agency that is not part of the Intelligence
Community to collect information that is relevant to national intelligence. I would expect
guidelines for advisory tasking to focus on the legal authorities that a non-intelligence agency
could or should use to collect national intelligence information for the Intelligence Community.
All collection activities would need to be consistent with the responding agency’s legal
authorities and would need to protect appropriately the privacy and civil liberties of Americans.
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Section 1.5(d) of Executive Order 12333 also provides that the heads of departments or agencies
shall respond to advisory taskings ―to the greatest extent possible, in accordance with applicable
policies established by the head of the responding department or agency.‖ This provision allows
responding departments or agencies to issue policies regarding how a particular department or
agency would respond to these advisory taskings.
c. Procedures under section 1.6(g) governing production and dissemination of information
or intelligence resulting from criminal drug intelligence activities abroad if the elements
of the IC involved have intelligence responsibilities for foreign or domestic criminal drug
production and trafficking.
ANSWER: This section of the Executive Order is directed to the heads of Intelligence
Community elements and tells them to participate in the development of these procedures.
Under the revised Order, I believe the procedures for the ―production and dissemination‖ of
information or intelligence would be covered by the guidelines under section 1.3(a)(2) of the
Executive Order, which is discussed in my answer to question 7a, above, and that the relevant
Intelligence Community elements would participate in the development of these guidelines.
d. Regulations under section 1.7(g)(1) for collection, analysis, production and intelligence
by intelligence elements of the FBI of foreign intelligence and counterintelligence to
support national and departmental missions.
ANSWER: The new procedures for the FBI called for by section 1.7(g)(1) were signed by the
Attorney General in the fall of 2008, after consultation with the Director of National Intelligence.
It is my understanding that they were drafted before the changes to Executive Order 12333 and
that the only thing that was affected by the signing of the new Order was the addition of the
requirement to consult with the DNI before the Attorney General could approve the procedures,
a requirement that was complied with. Both the Acting General Counsel of ODNI and the Civil
Liberties Protection Officer tell me that they were actively engaged in reviewing these new
procedures before they were signed last fall.
e. Procedures under section 2.3 on the collection, retention, and dissemination of United
States person information and on the dissemination of information derived from signals
intelligence to enable an Intelligence Community element to determine where the
information is relevant to its responsibilities.
ANSWER: The requirement that elements of the Intelligence Community have procedures
approved by the Attorney General under section 2.3 for the collection, retention, and
dissemination of U.S. person information is unchanged from the prior version of Executive
Order 12333, except for the new requirement that the Attorney General consult with the Director
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of National Intelligence before approving any new guidelines. In addition, section 2.3 of the new
Executive Order, unlike the prior version, permits information derived from signals intelligence
to be disseminated to Intelligence Community elements for the purpose of allowing the recipient
element to determine whether the information is relevant to its responsibilities and can be
retained by it, but only in accordance with procedures established by the Director in coordination
with the Secretary of Defense and approved by the Attorney General.
All Intelligence Community elements are required to operate under so-called ―U.S. person rules‖
when collecting, retaining, or disseminating information regarding U.S. persons. All of the
established elements of the Community have had these guidelines in place for years and those
guidelines remain in effect, in accordance with section 3.3 of the amended E.O. 12333. I
understand that several of the newer elements of the Intelligence Community, such as the ODNI,
DHS Intelligence & Analysis, and the Coast Guard intelligence element have drafted U.S. person
rules and are currently coordinating their guidelines with the Department of Justice and the
ODNI. A few other elements are also updating or revising their U.S. person rules. If confirmed,
I expect to be actively involved in this process. I understand that there is an effort to harmonize
these guidelines across the Intelligence Community to as great an extent as possible, given the
varying missions and requirements of the different components of the Intelligence Community.
This project certainly seems desirable, particularly as we move to a more integrated Intelligence
Community with ever greater information-sharing.
f. Procedures under section 2.4 on the use of intelligence collection techniques to ensure
that the Intelligence Community uses the least intrusive techniques feasible within the
U.S. or directed at U.S. persons abroad.
g.

Procedures under section 2.9 on undisclosed participation in any organization in the
United States by anyone acting on behalf of an IC element.

ANSWER: The guidelines discussed in my answer to question 7e also include the procedures
regarding the requirement for the use of least intrusive techniques and the procedures for
undisclosed participation in organizations. These provisions of Executive Order 12333 are
unchanged from the prior version of the order, except for the addition of a requirement for the
Attorney General to consult the Director of National Intelligence before approving guidelines for
use of these procedures. If confirmed, I intend to play an active role in that consultation process.

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Implementation of the FISA Amendments Act of 2008
QUESTION 8:
Under section 702 of the Foreign Intelligence Surveillance Act, as added by the FISA
Amendments Act of 2008 (FISA Amendments Act), the Attorney General and the DNI may
authorize jointly, for a period up to one year from the effective date of the authorization, the
targeting of persons reasonably believed to be located outside the United States to acquire
foreign intelligence information. The FISA Amendments Act was signed into law in July 2008.
Thus, the process for one or more new annual authorizations may occur at some time proximate
to the first anniversary of the FISA Amendments Act and annually thereafter. The FISA
Amendments Act also provide for semiannual or annual assessments and reviews, as described in
section 702(l) of FISA.
a. Describe your understanding of the matters that the Attorney General and DNI, with the
assistance of the General Counsel of the Office of the DNI (GC/ODNI), should evaluate
in order to determine, on the basis of the first year’s experience under the FISA
Amendments Act (and annually thereafter), whether there should be revisions in the
substance or implementation of (1) targeting procedures, (2) minimization procedures,
and (3) guidelines required by the FISA Amendments Act, in order to ensure both their
effectiveness and their compliance with any applicable constitutional or statutory
requirements.
ANSWER: Under the FISA Amendments Act, as under other statutes and Executive Order
12333, the Intelligence Community has the responsibility both to protect the nation from foreign
threats and to protect the civil liberties of Americans. At this point, of course, I do not have
knowledge of the classified details of how the Intelligence Community has implemented the
FISA Amendments Act. However, section 702(l) of the Act requires the Director of National
Intelligence and the Attorney General jointly to conduct semi-annual assessments of compliance
with the targeting and minimization procedures adopted in accordance with sections 702(d) and
(e), and with the guidelines adopted under section 702(f) to ensure that applications for court
orders are properly filed and that the substantive limitations of section 702(b) are complied with.
At its core, this assessment is concerned with ensuring that the targets of surveillance under
section 702 are really in a foreign country and are not U.S. persons, and that the privacy and civil
liberties interests of U.S. persons who may be in communication with the target are protected.
It is my understanding that the Office of General Counsel participates in these semi-annual
reviews and other reviews required by FISA. I would expect that the information obtained from
these reviews would serve as the basis for evaluating whether changes are required to the
targeting or minimization procedures or to the guidelines.
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b. Describe how the semiannual or annual assessments and reviews required by the FISA
Amendments Act should be integrated, both in substance and timing, into the process by
which the Attorney General and DNI consider whether there should be revisions for the
next annual authorization or authorizations under the FISA Amendments Act, including
in applicable targeting and minimization procedures and guidelines.
ANSWER: Without a detailed knowledge of the implementation of the FISA Amendments Act
it would be premature for me to speculate on the appropriate timing or substance of the
assessments and reviews required by the statute. However, as noted above, the data obtained
from the reviews and assessments should inform any reauthorizations under the Act.
c. In addition to the matters described in the FISA Amendments Act for semiannual or
annual assessment or review, are there additional matters that should be evaluated
periodically by the Attorney General or the DNI to improve and ensure the lawful and
effective administration of the FISA Amendments Act?
ANSWER: It is also premature for me to comment on additional matters that should be reviewed
to improve oversight of the FISA Amendments Act without a better understanding of the precise
manner in which the authorities granted by the Act have been used and in which the existing
oversight and implementation authorities have been employed. However, if confirmed, I look
forward to discussing the issue with the Director, the Attorney General, relevant officials of the
Intelligence Community, and the Congress.
QUESTION 9:
Title III of the FISA Amendments Act of 2008 provides for a comprehensive report by certain
inspectors general on the President’s Surveillance Program during the period beginning on
September 11, 2001 and ending January 17, 2001. The final report is to be submitted, within one
year of the signing of the law in July 2008, in unclassified form but may include a classified
annex.
a. Describe your understanding of the purpose of a public report.
Answer: I believe that the report will provide an important mechanism for ensuring that the
facts about this program are available to Congress and the American people, consistent with the
protection of intelligence sources and methods. Because the FISA Amendments Act provides for
the dismissal of ongoing litigation related to these activities, this report will help to ensure
appropriate accountability for the program.

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b. Describe the responsibility that you anticipate that the GC/ODNI will have in
recommending what should be declassified and the standards that should be applied to
that determination.
ANSWER: In general, section 1.3(b)(9) of Executive Order 12333 gives the Director of
National Intelligence considerable authority over the classification and declassification process
for information classified by the Intelligence Community. Transparency into the workings of the
government is vital and I believe information that is of interest to the public should be made
publicly available to the greatest extent possible. However, balancing that public interest with
national security concerns is a difficult challenge. Executive Order 12958 requires that
information be declassified when it no longer meets the standards for classification, and also
contemplates that at times the public interest in the disclosure of certain information will
outweigh the need to protect it. Certainly there are times when information that is of interest to
the public can be disclosed without revealing truly sensitive intelligence sources and methods.
I expect that the unclassified report required by the FISA Amendments Act will be a good
example of the balancing required in this difficult area and I would expect the General Counsel
of the ODNI to play an important role in striking the proper balance in this context.

December 2009 Sunset of Three FISA Provisions
QUESTION 10:
Three FISA provisions—lone wolf coverage, roving wiretaps, and orders for documents—sunset
on December 31, 2009.
a. In your view, what evidence and issues should be considered by the Administration and
by Congress in the consideration of whether to modify these provisions and either extend
the sunsets or make the provisions, with or without amendments, permanent?
ANSWER: As a general matter, I think that the experience of the government in executing
these authorities, the value of the information obtained, the degree of intrusion upon civil
liberties, and the extent of the continued need for these authorities would all be relevant factors
to consider. Without knowing precisely how these authorities have been implemented by the
government, I cannot comment more specifically, but if confirmed I expect that I will work with
the Congress in evaluating these provisions.

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b. Are there any benefits, in your view, in aligning the sunset of these provisions with the
sunset under the FISA Amendments Act of 2008 for Title VII of FISA on procedures
regarding persons outside of the United States?
ANSWER: Again, without knowing precisely how the authorities have been implemented, it is
difficult to assess the impact of aligning the sunsets of these provisions.

Declassification of FISA Opinions
QUESTION 11:
At the end of last year, the FISA Court of Review released to the public a redacted version of its
most recent opinion. What are your views regarding the issues to be considered in creating a
regular process under which important rulings of law and key decisions of the FISA Court and
the FISA Court of Review could be publicly released in an unclassified form?
Answer: Balancing the public interest with national security concerns always presents a difficult
challenge. There is a public interest to be served in the release of important rulings of law and
key decisions of the FISA Court and the FISA Court of Review, including providing a better
understanding of the Court’s decision-making process and permitting informed public
participation in debate over issues relating to FISA. However, these are unique courts whose
entire docket relates to the collection of foreign intelligence. Release of these opinions has the
potential to expose details of critical intelligence operations, sources, and methods. In my view,
the Intelligence Community and the Department of Justice should identify opinions of legal
significance the release of which would serve the public interest, and work with the Court to
consider release to the extent it can be done in a manner that protects national security
information and intelligence activities.

Evaluation of Office of the Director of National Intelligence
QUESTION 12:
Members of the Committee have expressed concern that the ODNI does not have all of the legal
authorities necessary to fulfill congressional expectations for the office. Do you have any
preliminary observations on strengths or weaknesses of the authorities of the Office with respect
to a successful mission of the ODNI? If so, please describe.

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ANSWER: I have not yet had the opportunity to observe the operation of the Office of the
Director of National Intelligence and therefore do not have any informed observations on the
strengths or weaknesses of its authorities. The Office of the Director of National Intelligence is
unlike any other organization in the Federal Government, in that it has responsibilities over
Intelligence Community elements that reside in six independent Departments and thus remain
accountable to the heads of those Departments as well as to the Director. This arrangement
clearly has the potential to complicate the job of the Director. Whether the ODNI has all of the
authorities necessary to integrate and lead the Intelligence Community is something that will
require further study and experience working under the current authorities. If confirmed, I
pledge to work with the Committee during the annual Intelligence Authorization process on
legislation to implement any additional authorities that may be necessary for the ODNI to carry
out its mission.

Pending Legislation
QUESTION 13:
The Senate and House of Representatives have considered legislation over the course of several
Congresses on subjects such as providing conditions for the federally compelled disclosure of
information by certain persons connected with the news media, the state secrets privilege, and
whistleblower protections. In your view, what evidence and issues should be considered by the
Administration and by Congress in the consideration of whether legislation on these subjects
should be enacted? Please discuss each subject separately.
ANSWER: Each of these legislative proposals shares a common goal–striking an appropriate
balance between ensuring transparency and openness in government and protecting the national
security. From my current vantage point, it appears that the evidence and issues that the
Administration and Congress should consider with regard to such legislation are similar. For
example, section 102A(i)(1) of the National Security Act requires the Director of National
Intelligence to ―protect intelligence sources and methods from unauthorized disclosure,‖ a
responsibility shared by everyone who has access to classified information. Accordingly, both
Congress and the Administration must assess whether any legislative proposal would put
intelligence sources and methods at risk or could result in the unauthorized disclosure of
classified information. For example, we should jointly consider whether the legislation would
encourage or prevent leaks of classified information. Similarly, both Congress and the
Administration should assess whether the legislation respects the President’s constitutional
obligation to protect and control classified information, and whether it provides appropriate
deference to Executive Branch determinations that the disclosure of classified information has or
will cause damage to the national security. In addition, Congress and the Administration should
assess whether the legislation would impede the effective operations of the Intelligence
Community.
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At the same time, Congress and the Administration need to evaluate whether existing laws and
procedures have hindered the free flow of information to the public or the Congress or have
resulted in unjust results in particular cases, and whether these legislative proposals would
effectively remedy any such problems. Finally, as these proposals share a common goal, they
should be evaluated as a collective whole rather than in isolation.

Cyber Security
QUESTION 14:
The Bush Administration launched a major initiative to improve government cyber security, the
Comprehensive National Cybersecurity Initiative (CNCI), with a prominent role for the
Intelligence Community. The Obama Administration has undertaken a 60-day review of cyber
security.
a. What are the major legal, privacy and civil liberties issues concerning the CNCI, or
successor, that you believe should be addressed?
ANSWER: Computer security has been a particular concern of mine since my time at the
Justice Department. Our nation’s cybersecurity policy addresses a wide range of issues that cut
across multiple mission areas and therefore multiple legal authorities. We are faced with
adversaries who have the ability to infect our supply chain with malevolently modified hardware
and software, to hack remotely into our networks, and to take advantage of insiders to steal, alter,
or destroy information and control critical infrastructure systems. Moreover, a pressing but
under-appreciated privacy issue is that our sensitive data, including corporate intellectual
property, government secrets, and U.S. person data held by government and private industry
alike, is not only vulnerable but is actually being stolen by criminal organizations and foreign
nations on a daily basis and almost at will.
To guard against exploitation of these vulnerabilities, our government must bring to bear all of
its capabilities, including those within the Intelligence Community, to ensure the privacy and
security of our global information and communications infrastructure. This will require a focus
on intrusion detection and prevention monitoring, information-sharing policies, data accuracy,
and analysis. At the same time, we must remain vigilant to ensure that the use of government
authorities meant to detect our adversaries and thwart their efforts complies strictly with the
Constitution and the law. If confirmed, I will work closely with the ODNI Civil Liberties
Protection Officer to ensure that there is adequate oversight of these authorities.

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b. What overarching guidelines for the Intelligence Community do you believe should be in
place with respect to the implementation of any successor to the CNCI?
ANSWER: I am not fully familiar with the CNCI or the Administration’s ongoing study of
cybersecurity, the recommendations of which have not yet been made public. If confirmed, I
will take an in-depth look into appropriate, overarching guidelines. In doing so, I expect to work
closely with the Civil Liberties Protection Officer, as well as the Department of Justice and the
elements of the Intelligence Community.

Executive Branch Oversight of Intelligence Activities
QUESTION 15:
Are there improvements, in terms of resources, methodology, and objectives that you believe
should be considered concerning Executive Branch oversight of the intelligence activities of the
United States Government?
ANSWER: Intelligence oversight is an essential tool to achieve the important goal of balancing
the protection of our civil liberties with the protection of our national security. As the chief legal
officer for the Office of the Director of National Intelligence, the General Counsel has the
responsibility to assist the Director in carrying out his statutory authority under section
102A(f)(4) of the National Security Act to ―ensure compliance with the Constitution and laws of
the United States.‖ The authorities granted to the Intelligence Community are of necessity
powerful ones, and the public needs to be reassured of our continued commitment to compliance
with the important limitations imposed by our laws. If confirmed as General Counsel, I will
assist the Director in using intelligence oversight to achieve this goal.
It is premature for me to comment on specific improvements that I might recommend in the
resources, methodology and objectives of this oversight. However, if confirmed, I would expect
that ensuring the Intelligence Community provides timely, accurate, and thorough intelligence
oversight reporting will remain a priority for the Office of General Counsel. Moreover, if
confirmed, I will consult with my staff, with the General Counsels of all elements of the
Intelligence Community, and with Department General Counsels, to determine whether any
improvements are needed in intelligence oversight.

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Relationship with the Other Officials of the Intelligence Community
QUESTION 16:
What should be the relationship of the General Counsel of the Office of the Director of National
Intelligence with respect to the following officers of the Intelligence Community:
a. General Counsel, Central Intelligence Agency
ANSWER: Section 102A(f)(4) of the National Security Act, concerning the responsibility of the
Director of National Intelligence to ―ensure compliance with the Constitution and laws of the
United States‖ by the Intelligence Community, recognizes the special relationship that the
Central Intelligence Agency has to the DNI, by giving him direct responsibility to ensure
compliance ―by the Central Intelligence Agency‖ while providing that he should ensure
compliance by other elements of the Community ―through the host executive departments‖
containing those elements. The statute thus clearly contemplates a very close working
relationship between two agencies and, by extension, their General Counsels. I have known
Steve Preston for many years and have great respect for his abilities and judgment, and if we are
both confirmed, I look forward to a close and open relationship with him on a wide range of
issues.
b. Assistant Attorney General for National Security, Department of Justice
ANSWER: The position of Assistant Attorney General for National Security did not exist during
my time at the Department of Justice, but if confirmed, I look forward to the opportunity to work
closely with David Kris, whom I have known since we worked together at the Department.
Although the National Security Division is not part of the Intelligence Community, its
responsibilities obviously touch on many matters of significance to the Community. For
example, the General Counsel of ODNI and the Assistant Attorney General for National Security
must routinely work together to assist the Director and the Attorney General in their respective
authorization and oversight roles under the FISA Amendments Act. The recent Executive
Orders on rendition, detention, and interrogation also require a close working relationship
between the offices. The General Counsel’s Office and the National Security Division have
implemented a program to have a detailee from the National Security Division at the ODNI
General Counsel’s office. I understand that this arrangement has been tremendously valuable to
both agencies.
c. Inspector General, Office of the DNI
(see below)
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d. Civil Liberties and Privacy Officer, Office of the DNI
ANSWER: I believe that it is essential that the ODNI General Counsel have a close working
relationship with both the ODNI Inspector General and the Civil Liberties Protection Officer. If
confirmed, I would expect my interactions with these officers to be both formal and informal.
On the one hand, because the oversight roles that the three offices fulfill for the ODNI and for
the Intelligence Community are very similar, we will need formal processes to coordinate our
roles to make sure that we are as effective as possible while minimizing unnecessary duplication.
On the other hand, conflict and duplication can best be minimized if the three officers consult
informally and work together whenever possible. The three offices have many similar, but
distinct, responsibilities and approach those responsibilities from different perspectives. This
provides a unique opportunity for collaboration that should allow each of us to get a more
comprehensive picture of any problem and also of possible solutions. I have known the new
ODNI Inspector General, Roslyn Mazer, for many years and served with her in the Department
of Justice; I met Alex Joel, the Civil Liberties Protection Officer, during my preparation for the
hearings, and was impressed with his energy and abilities. If confirmed, I look forward to
working closely with both of them.

Professional Experience
QUESTION 17:
For each of the following, describe specifically how your experiences will enable you to serve
effectively as the General Counsel for the Office of the Director of National Intelligence.
Include within each response a description of issues relating to the position that you can identify
based on those experiences.
a. Partner, Arnold and Porter LLP
ANSWER: At Arnold & Porter I have represented several employees of the Central Intelligence
Agency on matters arising out of their employment, some of which are classified, and have dealt
extensively on those matters with the CIA and its Office of General Counsel and Office of
Inspector General. These have given me familiarity not only with the particular substantive
matters that were the subject of the representations but also with personnel and administrative
matters that I believe are relevant to the duties of the General Counsel for the Office of the
Director of National Intelligence.

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In addition I have represented two clients in criminal matters that related to the intelligence
community, one of which involved extensive litigation under the Classified Information
Procedures Act (CIPA). It is my understanding that dealing with CIPA issues in individual cases
and on a policy basis is part of the responsibility of the Office of General Counsel.
Finally, while at Arnold & Porter I have remained actively involved in matters relating to
intelligence policy and national security, through bar associations and speaking and writing
engagements. I have also benefited greatly from the knowledge and wisdom of my partner Jeff
Smith in this regard.
b. Principal Associate Deputy Attorney General, Department of Justice
ANSWER: See below.
c. Deputy Assistant Attorney General, Criminal Division, Department of Justice
ANSWER: As Deputy Assistant Attorney General in the Criminal Division, and as Principal
Associate Deputy Attorney General, I interacted regularly with components of the Intelligence
Community on such matters as crimes reports, requests for opinions on the legality of proposed
conduct, FISA applications, criminal investigations that involved classified information
(including criminal investigations relating to al Qaeda), and covert actions. As a result I
acquired a working familiarity with some of the legal authorities governing the Intelligence
Community, and how those authorities operate in practice.
I also dealt extensively with matters relating to computer security, privacy and electronic
surveillance, which are critical to the effective functioning of the Intelligence Community and to
protection of our national security. I helped to create and stand up the Department’s Computer
Crime and Intellectual Property Section and served as the Department’s representative on matters
relating to encryption and the Communications Assistance to Law Enforcement Act (CALEA).
In addition, I developed personal relationships with other Intelligence Community lawyers that
will be important, if I am confirmed, in enabling me to perform the coordinative function for the
General Counsel for the Office of the Director of National Intelligence for the intelligence legal
community.
More generally, my experience in the Department of Justice familiarized me with the operation
of the interagency process, with the mechanisms of congressional oversight, and with the process
of developing legislation, all of which will be an important part of my role as General Counsel if
I am confirmed. In addition, my years at the Department of Justice gave me valuable experience
in managing an office of government lawyers.
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d. Special Advisor to the Assistant Secretary of State for European and Canadian Affairs
ANSWER: During my year at the Department of State I was a consumer of intelligence and
acquired some understanding of the importance of intelligence to our foreign relations and
national security.
e. Assistant U.S. Attorney, Southern District of New York, Department of Justice
ANSWER: One of the important issues that faces the government as a whole, including the
General Counsel of the Office of the Director of National Intelligence, is how to handle
suspected terrorists who we now have in custody or who may subsequently come into our
custody. The President has appointed task forces to analyze these issues and I understand that
the Office of General Counsel of ODNI is participating in the work of those task forces. If I am
confirmed, I believe that my experience as a prosecutor who has actually investigated and tried
criminal cases will be valuable both in helping to make the policy decisions about how our legal
system should handle accused terrorists, and in assisting the Intelligence Community in
responding to the exigencies of particular cases in the judicial system.

QUESTION 18:
What, if any, conflicts might arise from your private practice if you are confirmed as General
Counsel and how would you address these conflicts?
ANSWER: In connection with the nomination process, I have consulted with the Office of
Government Ethics and the Office of the Director of National Intelligence’s designated agency
ethics official to identify potential conflicts of interest. Any potential conflicts of interest will be
resolved in accordance with the terms of an ethics agreement that I have entered into with the
ODNI’s designated agency ethics official and that has been provided to this Committee.
With respect to my current or former clients, I have represented a State Department
employee in a criminal matter and currently represent several present and former employees of
the CIA in DOJ, congressional and IG investigations. In addition, my law firm represents a
number of telecommunications and high-tech companies on matters on which I have been
consulted from time to time. Some of these matters have been classified. My law firm also was
appointed by the United States Court of Appeals for the Fourth Circuit to represent Zacarias
Moussaoui on appeal. In 2007-08 I assisted the lawyers who handled the matter by providing
legal advice about the criminal law and by participating in moot courts.
Should a conflict arise, in accordance with the terms of my ethics agreement, I will not
participate personally and substantially in any particular matter involving specific parties in
which a former client of mine is a party or represents a party for a period of one year after I last
provided service to that client, unless I am first authorized to participate, pursuant to 5 C.F.R. §
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2635.502(d). I also understand that I am required to sign the Ethics Pledge (Executive Order
13490) and that I will be bound by its requirements and restrictions. I am not aware of any
potential conflicts of interest not covered under the terms of the ethics agreement or the Ethics
Pledge.

Opinions of the Office of Legal Counsel
QUESTION 19:
On April 16, 2009, the Department of Justice released four opinions issued by the Office of
Legal Counsel (OLC) for the Acting General Counsel or Senior Deputy General Counsel of the
Central Intelligence Agency. With respect to these opinions, issued August 1, 2002, May 30,
2005, and two issued on May 10, 2005:
a. From the information contained in the opinions, what are your views concerning the role
of the Office of the General Counsel of the Central Intelligence Agency in providing
information to the OLC in this matter, and whether any lessons for the future should be
learned from these opinions regarding that role for the General Counsel of the Central
Intelligence Agency or any other general counsel of an entity of the Intelligence
Community, including the General Counsel of the Office of the Director of National
Intelligence?
ANSWER: I am not sufficiently familiar with the full details of the interaction between the
General Counsel of the Central Intelligence Agency, the Office of Legal Counsel, and other parts
of the Executive Branch to offer any specific comments on their role in the preparation of these
opinions. In general, however, from my prior experience in government I know that the Office
of Legal Counsel’s work in providing authoritative legal opinions to the Executive Branch
depends upon obtaining full and accurate information from any agency that requests its views.
In addition, it is my view, as noted above, that an agency general counsel should provide not
only technical legal advice to the agency but judgment and policy guidance. I would expect the
General Counsel of the ODNI to be involved in any opinions that relate to the Intelligence
Community.
b. If confirmed, will you expect to be informed of requests by agencies of the Intelligence
Community for opinions from the Office of Legal Counsel?
ANSWER: Yes. However, it is certainly possible that a Department Secretary could
independently ask the Department of Justice for a legal opinion. A close working relationship
with the National Security Division, the Office of Legal Counsel, and other offices at the
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Department of Justice can help ensure that the General Counsel’s Office participates in the
process of preparing legal opinions that could affect the Intelligence Community.
c. What is your assessment of the legal reasoning and conclusions of each of these four
opinions?
ANSWER: These opinions have been withdrawn by the Department of Justice, indicating that
their reasoning and conclusions may not be relied upon. In addition, the President has ordered
that interrogation techniques be limited to those authorized by the Army Field Manual, and has
established a task force, of which the Director of National Intelligence is co-vice chair, to review
interrogation policies for the future. If confirmed, I would expect that I would carefully review
any proposed interrogation techniques and ensure that any legal opinions that are rendered are
based upon a full understanding of the relevant facts and law.

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