SELECT COMMITTEE ON
INTELLIGENCE
UNITED STATES SENATE

Prehearing Questions
for
Lisa O. Monaco
Upon her Nomination to be
The Assistant Attorney General for National Security

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 not only to the Director of National Intelligence (DNI) but to the heads of all
departments, agencies, and other entities of the United States Government involved in
intelligence activities. Section 503 establishes a similar requirement concerning covert actions.
Sections 502(a)(2) and 503(b)(2) provide that these officials shall furnish to the congressional
intelligence committees any information or material concerning intelligence activities or covert
actions, including the legal basis for them, that is requested by either of the committees in order
to carry out its authorized responsibilities. 28 C.F.R. § 0.72(a) provides that the Assistant
Attorney General for National Security (AAG/NS) shall conduct, handle, or supervise the
briefing of Congress, as appropriate, on matters relating to the national security activities of the
United States.
a. What is your understanding of the obligation of the Attorney General and the Director of
the Federal Bureau of Investigation (FBI) to keep the congressional intelligence
committees, including all their Members, fully and currently informed?
Answer: As I understand it, the obligation imposed by Section 502 of the National
Security Act of 1947 is keep the Intelligence Committees of the Congress “fully and
currently” informed of “significant intelligence activities” and that obligation includes
providing information regarding “significant intelligence failures.” I also understand that
the National Security Act further specifies that this responsibility must be exercised
“consistent with the due regard for the protection from unauthorized disclosure of
classified information relating to sensitive intelligence sources and methods or other
exceptionally sensitive matters.” These obligations apply to the Director of National
Intelligence and to “the heads of all departments.” As the question further explains, the
applicable regulation provides that the Assistant Attorney General for National Security
shall “brief Congress, as appropriate, on matters relating to the national security activities
of the United States,” and shall “advise and assist the Attorney General in carrying out
his responsibilities…related to intelligence, counterintelligence, or national security
matters.”
b. To what activities of the Department of Justice (Department), including the FBI, does this
obligation ordinarily apply?

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Answer: As I understand it this obligation applies to “intelligence activities,” which
ordinarily includes many of the activities of the FBI’s National Security Branch and to
the related activities of the National Security Division of the Department of Justice. This
obligation would also apply to the activities of the Drug Enforcement Administration’s
Office of National Security Intelligence, which is an Intelligence Community element.
c. What is your understanding of the obligation of the Attorney General to provide to the
congressional intelligence committees any information or material concerning the legal
basis for intelligence activities or covert actions which either committee requests in order
to carry out its legislative or oversight responsibilities?
Answer: I understand that the Congress and the Intelligence Committees have a unique
and important role in authorizing and overseeing national security activities of the
Executive Branch, and I recognize that it is important for the Committees to receive
information on the legal basis for intelligence activities or covert actions as provided
under sections 502 and 503. The intelligence agencies have the obligation to provide that
information to the Committees. The Attorney General, like all department heads, has
responsibility for ensuring that Intelligence Community elements within his department
fulfill this obligation.
d. The Committee utilizes detailed information on the overall national security threat
environment and other intelligence matters to appropriately fulfill its intelligence
authorization and oversight functions. Do you agree that the Department should comply
with requests from the Committee for information relating to intelligence matters? Do
you agree that the Department and FBI should fully brief the Committee on potential
counterterrorism and counterintelligence threats to the United States, as well as FBI
intelligence-related activities to thwart such threats?
Answer: Yes. I would expect that the Committees would be briefed on significant
counterterrorism and counterintelligence threats in the context of briefings about
intelligence activities. The obligation to keep the committees “fully and currently
informed” encompasses an expectation that the committees will be provided with
information sufficient to understand counterterrorism and counterintelligence threats and
activities. Since September 11, 2001, the FBI has substantially transformed itself into an
intelligence-focused, threat-driven agency whose first priority is to identify and disrupt
national security threats. I understand the seriousness with which the Department and in
particular, the FBI, takes the fulfillment of its intelligence mission and that it is important
to keep the Committee informed about those matters.

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Liaison to the Director of National Intelligence
QUESTION 2: Pursuant to 28 U.S.C. §507A(b)(2), the AAG/NS shall serve as primary liaison
to the DNI for the Department. In response to a prehearing question during his nomination
proceeding, David Kris summarized a report published by the Department in April 2008 on the
liaison relationship between the National Security Division (NSD) and the DNI.
a. What is your understanding of how this responsibility has been performed in the time
since that report?
Answer: I understand that since the creation of the National Security Division (NSD),
the Assistant Attorney General for National Security (AAG), has formed a strong
relationship with the Office of the Director of National Intelligence (ODNI) and the
Office of General Counsel for ODNI. The AAG regularly consults with the ODNI and
with the Office of the General Counsel. In addition, the NSD staff and DNI staff meet
regularly on issues related to FISA, the NSD’s responsibility to represent the Executive
Branch before the Foreign Intelligence Surveillance Court (FISC) as well as on
counterintelligence matters, the handling of United States person information in multiple
contexts and on numerous operational, and legal and policy issues that arise in the course
of intelligence investigations and operations.
b. Have you discussed with the DNI, and with personnel in the Office of the Director of
National Intelligence (ODNI), your respective understandings of that responsibility? If
so, describe.
Answer: Yes. I have met with the Director of National Intelligence as well as with the
General Counsel of the ODNI and discussed with both of them the role of the AAG as the
primary liaison to the DNI for the Department. In particular, we have discussed issues of
priority to the Intelligence Community, and the importance that NSD places on its
responsibilities in representing the Executive Branch before the FISC and in providing
expeditious and accurate legal advice and guidance to the Intelligence Community.
c. Describe the principal matters that should be addressed in performing this responsibility.
Answer: As the Department’s primary liaison to the DNI, the AAG and by extension
NSD as a whole, should ensure that there is a strong and productive relationship with the
Intelligence Community in order to facilitate timely collection of intelligence consistent
with the law. The matters that should be addressed in this regard include NSD’s
responsibility to represent the Executive Branch before the FISC, its work with
Intelligence Community elements to develop and implement guidelines for activity under
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Executive Order 12333, and its role in coordinating with its partners in the Intelligence
Community on matters of law and policy that arise in investigations and intelligence
operations.
d. Given the extensive role of the NSD in intelligence matters, do you believe the NSD
should be made a part of the Intelligence Community and funded through the National
Intelligence Program?
Answer: NSD has an important role as a provider of advice and guidance to the
Intelligence Community and in representing the Executive Branch before the FISC. NSD
also performs an important oversight function with regard to the FBI’s activities. For that
reason, I believe it is important for NSD to foster and maintain productive, respectful
working relationships with its partners in the Intelligence Community, including the FBI.
However, I also believe that it is important for NSD’s effectiveness that it maintain its
position structurally outside the Intelligence Community in order to better, and more
legitimately, exercise independent judgment in the discharge of its oversight functions
and its representation of the government before the FISC. In addition, the NSD has the
unique prosecutorial role in conducting and overseeing national security prosecutions and
its placement formally outside the Intelligence Community better enables it to perform
that function with the appropriate level of independence required to ensure the integrity
of the prosecutorial process.
Priorities of the Attorney General
QUESTION 3: Have you discussed with the Attorney General his specific expectations of you,
if confirmed as Assistant Attorney General, and his expectations of the NSD as a whole? If so,
please describe those expectations.
Answer: I have discussed with the Attorney General his expectations of the AAG and of NSD
in general in fulfilling the Department’s top priority of protecting against national security
threats. I understand that the Attorney General believes the NSD is responsible for leading the
Department’s coordinated approach to national security matters and providing a single area of
focus within the Department for its national security functions. If I am confirmed, I expect to
communicate consistently with the Attorney General to ensure that the Division is fulfilling its
mission to address the Department’s top priority.
Evaluation of National Security Division
QUESTION 4: On the basis of your experience in the Department, and the observations or
recommendations of preceding Assistant Attorneys General for National Security, do you have
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any observations on the strengths or weaknesses of the NSD, including matters which you would
like to study further, relating to organization, tasks, allocation of personnel, skills and training, or
any other factors that you believe are relevant to a successful mission for the NSD? If so, please
describe.
Answer: Based on my experience at the Department of Justice – including at the FBI – and on
my work with each of the previous Assistant Attorneys General, I believe NSD has successfully
implemented the goals of the legislation guiding its creation. Today, NSD leads the
Department’s efforts to centrally manage counterterrorism and counterintelligence prosecutions,
foreign intelligence surveillance, and coordination of policy and operations on national security
issues. NSD has established a comprehensive oversight program and is continuing to develop
training for the Intelligence Community elements to enable them to maintain their operational
effectiveness in a manner that is consistent with the applicable laws. Having been in senior
positions in the Department of Justice and the FBI, I was personally able to witness former
Assistant Attorneys Generals Ken Wainstein and Pat Rowan establish a coherent structure to
realize the key goals of NSD’s creation -- to integrate intelligence lawyers with prosecutors and
agents in order to focus all the Department’s national security functions under one roof. The
prior leadership focused increased resources to ensure productive and efficient work of the
Office of Intelligence which performs the critical function of representing the Executive Branch
before the FISC. David Kris built upon that structure and furthered the maturation of a distinct
national security culture. Based on my experience, I believe the current structure and focus of
the Division are sound.
If confirmed, it would be my priority to ensure the Division is able to adapt to and anticipate
future threats to the national security. To that end, I will make it a priority to review the
operations of the Division and to learn more from its national security professionals and partners
in the Intelligence Community.
Oversight of Intelligence Activities
QUESTION 5: 28 C.F.R. § 0.72(17) provides that the Assistant Attorney General for National
Security shall provide oversight of intelligence, counterintelligence, and national security matters
by executive branch agencies to ensure conformity with applicable law, regulations, and
departmental objectives and report to the Attorney General.
a. What is your understanding of the NSD’s oversight role, including the manner in which it
has been exercised, concerning intelligence activities of the FBI?
Answer: The NSD is responsible for overseeing and coordinating the foreign
intelligence, counterintelligence and counterterrorism activities of the Department to
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ensure its national security activities are conducted in conformity with applicable laws,
regulations, and the Constitution. NSD performs oversight through its representation of
the Executive Branch before the FISC and through the Oversight Section of its Office of
Intelligence. In addition to its role as government counsel before the FISC, NSD also
conducts other oversight functions in its review of investigative activities of the FBI
including:
 Review of certain investigative activities under the Attorney General
Guidelines
 Implementation and compliance reviews of FISA minimization procedures in
FBI Field Offices
 Review of the accuracy of FISA applications
 Review of certain undercover operations regarding national security
Through its National Security Reviews conducted with lawyers from FBI’s Office of
General Counsel, NSD reviews national security investigations conducted by FBI Field
Offices. These National Security Reviews include review of the use of National Security
Letters by the FBI.
b. What is your understanding of the NSD’s oversight role, including the manner in which it
has been exercised, concerning intelligence activities, and related prosecutorial activities,
undertaken in the offices of United States Attorneys?
Answer: NSD is responsible for ensuring that national security activities conducted by
United States Attorneys Offices are coordinated pursuant to a national program. As part
of the Department’s coordinated national security program, NSD develops, enforces and
supervises the application of most Federal criminal laws related to counterterrorism and
counterespionage. Through its authority to approve the use of certain statutes in national
security prosecutions, NSD seeks to ensure a coordinated and consistent approach in
combating national security threats. NSD also ensures that the Department’s national
security activities are coordinated with other members of the Executive Branch’s national
security apparatus and provides notification to Congress as appropriate.
NSD interacts with United States Attorneys Offices in many other ways as well. NSD
utilizes the Anti-Terrorism Advisory Councils (ATACs) in each United States Attorneys
Office as a mechanism for coordination between NSD’s counterterrorism and
counterintelligence prosecutors and counterespionage prosecutors in the field. The
ATAC program facilitates a process of information sharing and coordination that serves
as the focal point for the Department’s national security initiatives.

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NSD also provides support and training to United States Attorneys Offices and works
with the Executive Office of United States Attorneys (EOUSA) to ensure a robust
mechanism for exchanges with the United States Attorney community and Main Justice.
If confirmed, my goal would be to continue to advance the partnership between United
States Attorneys Offices and NSD in pursuing the Department’s top priority of combating
terrorism and protecting the American people, while ensuring prosecutions are carried out
in a manner consistent with Intelligence Community equities.
c. What is your understanding of the NSD’s oversight role, including the manner in which it
has been exercised, concerning intelligence activities of IC elements outside of the
Department of Justice?
Answer: My understanding is that NSD exercises its oversight responsibilities with
respect to elements of the Intelligence Community outside of the Department of Justice in
several ways. First, through its role as the government’s representative before the FISC,
NSD reviews all FISA applications from outside the Department of Justice and monitors
Intelligence Community elements’ compliance with orders from the FISC. Together with
the Office of the Director of National Intelligence, NSD reviews acquisition under
Section 702 of FISA to ensure compliance with targeting and minimization procedures in
place from authorities granted under that statute. In addition NSD performs oversight
through its role as the liaison to the Director of National Intelligence. In that role, NSD
reviews policies that require consultation and approval by the Attorney General under
Executive Order12333.
d. Are there improvements, in terms of resources, methodology, and objectives in the
conduct of this oversight that you believe should be considered?
Answer: If I am confirmed, one of my top priorities will be to gain a full understanding
of the current oversight activities being performed by NSD – including the resources and
methods currently devoted to those efforts – in order to evaluate whether any changes or
adjustments should be made to those efforts.
e. What are the most significant lessons that have been learned with respect to the
conformity with applicable law, regulations and departmental objectives of entities
subject to NSD oversight?
Answer: Based on my experience in the Department, including my time at the FBI, I
believe significant lessons have been learned by those entities subject to NSD’s
oversight. For instance, in the wake of the Inspector General’s report on the use of
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National Security Letters, the FBI and NSD put into place a series of reforms and
compliance mechanisms to ensure this vital national security tool is used with appropriate
predication and documentation, that there are processes and procedures in place to
minimize human error and that there is a robust program of review after the fact to
monitor compliance and to identify and correct expeditiously any instances of
noncompliance.

Administration of the Foreign Intelligence Surveillance Act—Section 215 Applications
QUESTION 6: 28 C.F.R. § 0.72(6) provides that the Assistant Attorney General for National
Security shall administer the Foreign Intelligence Surveillance Act (FISA). Audits by the
Inspector General of the Department of Justice in 2007 and 2008 found that the processing of
FBI requests for Section 215 orders for “tangible things” (Title V of FISA) had been subject to
significant delays. The audits found the FBI had not used Section 215 orders as effectively as it
could have because of legal, bureaucratic, or other impediments to obtaining these orders.
a. What is your understanding of the findings of the IG audits and the response of the
Department? Please include in this response your assessment whether problems
identified in these audits, with respect to processing of Section 215 applications, have
been adequately addressed.
Answer: The Inspector General audited the Department of Justice on the use of its
investigative authority under Section 215 of the Patriot Act, pursuant to the USA Patriot
Improvement and Reauthorization Act of 2005. The Inspector General’s audits of 2007
and 2008 collectively focused upon the use of Section 215 authority in the period from
2002 through 2006. As I understand it, 2006 was the last year analyzed by the Inspector
General audits. Since that time the Department of Justice has undergone many changes
relating to the use of Section 215 authority. One of the most consequential of these
changes was the formation of the National Security Division itself, which was created in
2006 for the very purpose of bringing the full national security resources of the
Department into one consolidated Division, in part to streamline and coordinate the
Department’s national security efforts. Specifically, the creation of the National Security
Division resulted in the creation of a new Operations Section within the Office of
Intelligence, as well as additional resources, and enhanced training on FISA matters.
Based on my experience within the Department, it is my sense that the National Security
Division has worked to make requests for operational authority under FISA - including
Section 215 requests - more efficient while maintaining the highest standards for the
Department of Justice’s work before the FISA Court.
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If I am confirmed, one of the areas of important focus will be the overall functioning of
the Division with regard to its representation before the Foreign Intelligence Surveillance
Court. I will endeavor to understand fully the Section 215 review process and to
minimize any delays.
b. What additional steps should be taken by the Department to ensure that unnecessary
delays are eliminated?
Answer: Although my current responsibilities do not involve interaction with the
processing of Section 215 authority by the National Security Division’s Office of
Intelligence, if confirmed as the Assistant Attorney General for National Security, I
would review the operations and, if I identified efficiencies that could be made consistent
with the overall integrity of the process, implement those efficiencies.
c. Given that Section 215 applications to the FISA Court are submitted without an Attorney
General certification, would you support attorneys from the Office of General Counsel of
the FBI presenting applications directly to the FISA Court?
Answer: The National Security Division’s Office of Intelligence represents all
Executive Branch agencies before the FISA Court. This is consistent with NSD
regulations and the practice of the Department of Justice in which attorneys from
litigating divisions and United States Attorneys Offices appear on behalf of investigative
agencies. I understand that attorneys from the Office of Intelligence have developed
significant expertise through NSD’s frequent dealings with the FISC. Because of the
unique nature of the practice before the FISA court, the Intelligence Community benefits
from having consistency in representation before the FISC. I understand that FBI lawyers
regularly are present at FISC proceedings offering important insight and assistance.
Obtaining Approvals from the Department/National Security Undercover Operations
QUESTION 7: In general, if a particular investigative authority has been under-utilized because
of administrative burdens imposed by the Department of Justice, are you committed to
eliminating unnecessary administrative burdens so that intelligence professionals are more
willing to use the authority?
Answer: Yes. If I am confirmed, my goal will be to provide advice and guidance,
working in partnership with the Intelligence Community, and to ensure that agents and
operators have the tools they need to keep pace with the evolving threat.
a. In particular, how long does it now take for the FBI to obtain authority for exemptions in
national security undercover operations?
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Answer: In my current duties, I am sometimes involved with this authorization process
and I understand that the length of the process varies depending upon several factors,
including the complexity of the undercover operation, the policy interests presented by
the proposed operation, and the amount of information contained in the authorization
request. I understand that these exemption requests can vary and, while some can be
reviewed in short order, others may require additional time for consideration of the issues
they raise. If I am confirmed, I would want to understand whether there are concerns
with the current process and whether there are any efficiencies that may be realized.
b. What steps have been taken to implement Section 366 of the Intelligence Authorization
Act for Fiscal Year 2010 (Public Law 111-259) which changes the delegation level for
approval of exemptions within the FBI and the Department for national security
undercover operations? Has this statutory change improved the process for obtaining
such exemptions?
Answer: It is my understanding that changes to the delegation level for approval of
exemptions are currently being considered within the Department.
c. What additional steps should be taken by the Department to ensure that unnecessary
delays are eliminated?
Answer: Should I become the Assistant Attorney General for National Security, I will
review all processes within the National Security Division, including the process for
reviewing undercover exemptions, to determine whether additional efficiencies are
possible and advisable. If I am confirmed, I will focus on eliminating unnecessary delays
in this and other processes vital to the operational functions of national security
investigators.
Reauthorization of FISA Provisions
QUESTION 8: Three FISA provisions—lone wolf coverage, roving wiretaps, and orders for
business records and other tangible things—sunset on May 27, 2011. A fourth, collection
against persons reasonably believed to be outside the United States which was added by the
FISA Amendments Act of 2008, sunsets on December 31, 2012.
a. Do you support, and for what principal reasons, reauthorization for a period of years or
making permanent these provisions?
Answer: I believe the reauthorization of these expiring provisions is critically
important to the nation’s security. I believe these provisions should be reauthorized for
as long as possible in order to provide the agents and operators in the field with clarity
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and stability in the tools they use. This clarity and stability could be achieved through a
permanent reauthorization of these critical tools. If Congress determines that it should
revisit these authorities, and if I am confirmed as the Assistant Attorney General for
National Security, I will work with Congress to ensure that the operators charged with
detecting and disrupting threats have the tools they need to do so consistent with the rule
of law.
Based on my experience, the three expiring provisions are critical tools that have given
national security investigators many of the same capabilities that have long been
available to criminal investigators. For instance, the roving wire tap provision has
permitted investigators to track spies and terrorists who are trying to evade surveillance
and the business record provision has permitted investigators access to key documents
and data in national security, espionage and terrorism cases. The lone wolf provision,
although not used to date, permits investigators to keep up with the growing threat of the
lone or self-radicalized offender.
b. What is the impact of additional short-term extensions for one year or less of the
authorities now scheduled to sunset on May 27?

Answer: Each time these authorities are reauthorized for only a short period it creates
uncertainty about whether and for how long they will remain in effect. This uncertainty
contributes to a lack of stability in the tools available to agents and operators and it
diverts resources that would be otherwise spent on national security matters.
c. Does the Department of Justice support the alignment of the four authorities with respect
to any future sunset date?
Answer: Yes.
Declassification of FISA Opinions
QUESTION 9: On February 28, 2011, the Department of Justice wrote to this Committee to
confirm that representatives of the ODNI Office of General Counsel and the NSD had
established a process to declassify relevant opinions of the FISA courts (both the Foreign
Intelligence Surveillance Court and the Court of Review) without compromising intelligence
sources and methods or other properly classified information.
a. Is the Department applying this process not only to new decisions but also to prior
decisions that contain important rulings of law?
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Answer: Yes, to my knowledge.
b. Please describe the concrete steps that the Department and the ODNI are taking, if
any, to review both new and previous opinions of the FISA courts for
declassification?
Answer: I understand that the National Security Division has provided the ODNI
with all of the opinions and orders that have been submitted to Congress pursuant to
FISA Section 601(c), that is, opinions issued by the FISA Courts that include
significant constructions or interpretations of FISA, and the review process is
ongoing.
c. Please describe the priority that you will give to this effort if confirmed.
Answer: If confirmed, I will work to ensure that the Department continues to work
with the ODNI to make this important body of law as accessible as possible,
consistent with national security, and in a manner that protects intelligence sources
and methods, and other properly classified and sensitive information.
National Security Letters and Administrative Subpoenas
QUESTION 10: National security investigators seeking certain types of records must use
specific national security letter authorities, each with its own statutory requirements. In the USA
PATRIOT Improvement and Reauthorization Act of 2005, Congress directed the undertaking of
a Department of Justice Inspector General audit on the use of national security letters.
a. What is your understanding of the administrative reforms implemented by the FBI in
response to that audit?
Answer: Following the report of the Inspector General (IG) in 2007 on the FBI’s use of
National Security Letters, the FBI took a number of steps to address the problems
identified in that report. These steps included structural, procedural and operational
reforms. Among the reforms instituted as a result of the IG’s report, the FBI has
implemented an automated system (the NSL Subsystem) that allows standardized
implementation and issuance of NSLs pursuant to the appropriate statute and minimizes
the ability of human error to result in the issuance of NSLs under the wrong statutory
provision. The FBI also now requires that predication for the requested NSL be
documented in an electronic communication. That documentation is retained and
available for audit. The FBI now requires legal review within the Field Office or
Headquarters Division that is seeking the NSL.
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The FBI also established the first ever federal government compliance office modeled on
corporate compliance programs -- the FBI’s Office of Integrity and Compliance. This
Office reports to the Deputy Director of the FBI and provides for a layered system of
checks to ensure NSL policies and procedures are being carried out and complied with
consistent with their design. It also serves to provide an early warning system of any
noncompliance. Finally, in the wake of the IG’s reports, a comprehensive system of
oversight has been implemented in which NSD and attorneys from the FBI Office of
General Counsel conduct National Security Reviews in FBI Field Offices around the
country, reviewing national security investigations, including the use of NSLs, to ensure
compliance with applicable statutes and policies. The IG’s 2008 report noted the
significant progress made by the FBI in adopting corrective actions to address the
problems identified in the prior report.
b. What is your view on whether to place into law any administrative improvements, any
other changes to improve the effectiveness or lawfulness of national security letters, or to
enact further improvements in response to any judicial decisions about national security
letters?
Answer: In general, I believe the system of reporting and oversight mechanisms that has
grown up around the use of NSLs has worked well since the IG audit. As a result of
Congressional reporting requirements and the Executive Branch’s adoption of reforms in
response to identified shortcomings from the IG, there is now a robust system of training,
legal review, compliance and oversight for the use of this vital tool. To the extent
additional protections can be implemented without adverse operational effect on the use
of these vital tools, we should explore them. For instance, I understand the Department
has worked with the Intelligence Community and Congressional staff to codify
procedures that the Department has put in place to address the Doe v. Mukasey decision
identifying the need for a process of government-initiated litigation to challenge NSL
nondisclosure provisions.
c. Please compare the availability of administrative subpoenas to investigators in solely
criminal matters—regarding the procedures for those subpoenas, their scope, or any other
relevant comparison—with the national security letters available in national security
investigations.
Answer: There are numerous instances where Congress has granted federal agencies
administrative subpoena power to make an administrative or civil investigatory demand
compelling document production or testimony without prior judicial approval. In
criminal investigations, administrative subpoenas are routinely used in cases such as
those involving health care fraud, child abuse, and Inspector General investigations.
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While the scope and exercise of these authorities vary by statute, many authorize federal
agencies to issue subpoenas for testimony, documents, and records, provide for judicial
enforcement, and include non-disclosure requirements.
National Security Letters (NSLs) are an invaluable investigative tool similar to
administrative subpoenas that allow the FBI to obtain information of great foreign
intelligence value from records in which an individual has no constitutionally-protected
privacy interest and in a manner that is far less intrusive than many other investigative
tools. Compared with the scope and exercise of administrative subpoenas used in
criminal investigations, the exercise of NSLs is limited in two important respects. First,
NSLs are only available for authorized national security investigations (international
terrorism or foreign intelligence/counterintelligence investigations), not general criminal
investigations or domestic terrorism investigations. Second, unlike some administrative
subpoenas, NSLs can only be used to seek certain transactional information permitted
under the five NSL provisions, and cannot be used to acquire the content of any
communications. With these appropriate limitations in place, use of NSL authorities has
significantly aided the FBI’s performance of its national security mission.
d. What is your view of the pros and cons of creating a single statutory national security
administrative subpoena? Is this a concept that you would support? If so, please describe
the scope and procedures that should be applicable to any such administrative subpoena
authority.
Answer: While the adoption of a single NSL statute to replace the current regime of five
separate authorities may have some appeal in terms of simplicity and clarity, I would be
reluctant to adopt a new regime for the use of this tool at this juncture. Substantial
lessons have been learned, through the IG’s reviews, the adoption of new training,
procedures and processes as well as the creation of new NSL information technology
infrastructure, all with the purpose of ensuring these tools are being used appropriately.
One of the primary findings of the IG was that agents needed better guidance, training
and clarity in the use of NSLs. As a result the FBI adopted the reforms noted above in
response to question 10a. The FBI is now accustomed to the system and has incorporated
it into standard FBI practice. The development and implementation of yet another new
regime – albeit one that seeks to consolidate these authorities into one statute – risks
injecting new uncertainty in operations and requiring yet more new training and
procedures. At this time, and in light of the successful implementation of corrective
actions as noted by the IG, I do not think a new administrative regime is necessary.
High Value Detainee Interrogation Group
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QUESTION 11: What is your assessment of the effectiveness of the High Value Detainee
Interrogation Group? In answering this question, please include your assessment of its
effectiveness with respect to interrogation of terrorist suspects in different settings and
circumstances, such as those in custody within the United States, those in U.S. custody outside
the United States, and those in the custody of foreign countries.
Answer: The High Value Detainee Interrogation Group (HIG) was developed as a result of an
interagency task force that included representatives from across the Intelligence Community.
The purpose of the HIG is to integrate the most critical resources from across the government –
including experienced interrogators, subject matter experts, intelligence analysts, and linguists –
to conduct interrogations of terrorists, wherever they are encountered with the best expertise
focused on targets of the most intelligence value. I understand that elements of the HIG have
been deployed both internationally and domestically and that the HIG has contributed to the
productive interrogation of terrorists suspects in all these settings.

Unauthorized Disclosures of Classified Information
QUESTION 12: 28 C.F.R. § 0.72(a) assigns to the Assistant Attorney General for National
Security the responsibility to advise the Attorney General, the Office of Management and
Budget, and the White House on matters relating to the national security. In addition, the
Assistant Attorney General is assigned the responsibility to prosecute crimes involving national
security, foreign relations, and terrorism.
a. Describe the personnel resources, both attorneys and others, within the NSD that are
devoted to the prosecution of media leak cases, and how the NSD divides responsibility
on these matters with the Criminal Division.
Answer: The Counterespionage Section of the National Security Division supervises the
investigation and prosecution of espionage and related statutes, and provides coordination
and advice on cases involving unauthorized disclosures of classified information. It is
my understanding that currently, the Counterespionage Section is composed of 21
attorneys and 11 non-attorneys.
If the National Security Division is recused from a case, matters may be handled through
the Criminal Division. The Criminal Division also retains responsibility for some cases
which predated the formation of the National Security Division.
b. Describe the role that the NSD has played since its inception in media leak prosecutions
in United States district courts and on appeal to the U.S. courts of appeals. Please
16

provide up-to-date information on the status of major prosecutions during the last two
years.
Answer: The NSD’s Counterespionage Section, working with the FBI and other
agencies, pursues cases in which government employees and contractors entrusted with
national defense information are suspected of willfully disclosing such classified
information to those not entitled to it, including to members of the news media. NSD has
also provided support to other agencies investigating and prosecuting unlawful leaks of
classified information
There have been a number of significant prosecutions in the past two years wherein the
NSD or Criminal Division, working in conjunction with the relevant United States
Attorney Office, has charged individuals in connection with the unlawful disclosure of
classified information to the media:
•

Jeffrey Sterling – (Criminal Division) -- On Jan. 6, 2011, former CIA officer
Jeffrey Alexander Sterling was arrested pursuant to a Dec. 22, 2010 indictment in
the Eastern District of Virginia charging him with six counts of unauthorized
disclosure of national defense information, and one count each of unlawful
retention of national defense information, mail fraud, unauthorized conveyance of
government property and obstruction of justice. The indictment alleges that
Sterling engaged in a scheme to disclose information concerning a classified
program and a human asset – first, in connection with a possible newspaper story
to be written by an author employed by a national newspaper in early 2003, and,
later, in connection with a book published by the author in 2006. This
prosecution is pending.

•

Stephen Kim – (National Security Division) -- On Aug. 27, 2010, prosecutors in
the District of Columbia unsealed a federal indictment charging Stephen Jin-Woo
Kim with unlawfully disclosing national defense information to a reporter for a
national news organization and for making false statements to the FBI. Kim was
an employee of a federal contractor at a national laboratory who was on detail to
the State Department at the time of the alleged disclosure. According to the
indictment, in June 2009, Kim knowingly and willfully disclosed information
contained in a classified intelligence report to a reporter for a national news
organization. This prosecution is pending.

•

Thomas Drake – (Criminal Division) -- On April 15, 2010, a federal grand jury in
the District of Maryland returned a 10-count indictment charging former National
Security Agency (NSA) senior executive Thomas A. Drake with the willful
17

retention of classified information, obstruction of justice and making false
statements. According to the indictment, Drake was a high-ranking NSA
employee from 2001 through 2008, where he had access to highly classified
documents and information. The indictment alleges that between approximately
February 2006 and November 2007, a newspaper reporter published a series of
articles about the NSA. The indictment alleges that Drake served as a source for
many of those articles, including articles that contained classified information.
This prosecution is pending.
•

Shamai Leibowitz – (National Security Division) -- On Dec. 17, 2009, Shamai
Kedem Leibowitz pleaded guilty in the District of Maryland to a one-count
information charging him with disclosing to an unauthorized person five FBI
documents that contained classified information concerning the communication
intelligence activities of the United States. From January 2009 through August
2009, Leibowitz was employed by the FBI as a contract linguist. In April 2009, he
caused five classified documents to be furnished to a person who was the host of
an Internet blog. The recipient then published on the blog information derived
from the classified documents. On May 24, 2010, Leibowitz was sentenced to 20
months in prison followed by three years supervised release.

c. Are there any steps that the Department could take to increase the number of individuals
who are prosecuted for making unauthorized disclosures of classified information to
members of the news media? If so, please describe.
Answer: As the cases referenced above indicate, the Department of Justice has been
engaged in the last several years in efforts to identify and prosecute individuals
responsible for unauthorized disclosures. Based on my experience in the Department,
while finding the source of such a classified leak is often a daunting task, when the
Department is able to compile solid evidence to prove in court beyond a reasonable
doubt, the government will pursue criminal prosecution. Over the past two years, the
NSD has been working closely with the Intelligence Community to expedite and improve
the handling of such cases, as well as to ensure that the Intelligence Community and other
agencies may utilize remedies of their own to address employees suspected of leaking
classified information in those instances where criminal prosecution is not feasible.
d. Are there any steps that should be taken to improve the civil enforcement of
nondisclosure agreements under the authority of Snepp v. United States? If so, please
describe.

18

Answer: I have not had an opportunity to fully review the use of civil enforcement
authority and therefore am not in a position to provide recommendations regarding
possible changes to those authorities at this time. It is my understanding that the
Department’s Civil Division is responsible for enforcement of nondisclosure agreements
under Snepp and that that division uses that authority in the context of enjoining authors
from publishing books that the government may learn in advance contain information
subject to such an agreement. I further understand that the Civil Division may also use
this authority to enjoin publishers from making additional copies of books already
published if its use has been limited.
e. Are there any additional steps that the U.S. government as a whole should take to prevent
the unauthorized disclosures of classified information from occurring? If so, please
describe.
Answer: As noted in response to question 12c above, there are a number of agencies
involved in the investigation and prosecution of leak cases, and those efforts are a
priority. I believe continued enforcement efforts regarding unauthorized disclosures and
leaks may have a deterrent effect. In addition, where prosecution is not feasible, use of
administrative penalties should also be considered.
f. Please describe the prepublication review responsibilities of the NSD and the
administrative and judicial review which is available to an officer or employee, or former
officer or employee, with respect to the Department’s exercise of prepublication
authorities, including those applicable to the FBI. In answering this question, please
provide your evaluation of the extent to which present and former officers and employees
of the Department adhere to their prepublication obligations.
Answer: The pre-publication review process is described in detail in 28 CFR 17.18.
In short, DOJ employees who sign non-disclosure agreements for access to Secure
Compartmented Information agree to submit any writings or texts of prepared remarks to
the Assistant Attorney General for National Security for pre-publication review. The
AAG for National Security (or the AAG’s designee) is responsible for reviewing each
submission to ensure that it does not contain any national security information. I further
understand the National Security Division has established a specific unit for prepublication and Declassification Review. I further understand that an employee’s
obligation continues even if the individual is no longer employed by the Department of
Justice. Decisions of the AAG for National Security can be appealed to the Deputy
Attorney General. Submitters who are not satisfied with the Deputy Attorney General’s
determination may obtain judicial review in the U.S. District Court.
19

The obligation to submit material rests with the employee (or former employee). I am
not aware of the extent to which current or former employees adhere to their obligation
and therefore cannot provide an informed evaluation at this time.
g. Please describe how the NSD ensures the protection of information within the
organization itself, including the use of auditing and monitoring of information
technology systems. Who is responsible for counterintelligence and security at NSD?
Answer: I am informed that the NSD employs multiple practices, procedures, and layers
of physical and technical security to safeguard information within the organization. All
Justice Department employees, including all NSD employees, must complete annual
training on information security. Furthermore, all NSD attorneys must possess and
maintain a Top Secret security clearance, which must be updated every five years and
includes non-disclosure requirements. All NSD employees also receive mandatory initial
and refresher briefings on the proper handling of classified information from the
Department security officials. FBI and intelligence community officials also provide
additional counterintelligence awareness training to new NSD attorneys and paralegals,
including information on safeguarding classified information.
In addition to vetting and training its personnel, the NSD has its own dedicated security
staff to coordinate the oversight of information security within the division. NSD
security staff members conduct random, periodic inspections of all sections within NSD
and provide regular, recurring security briefings to NSD employees.
Furthermore, the NSD maintains Sensitive Compartmented Information Facilities
(SCIFs) as well as secure classified computer networks, safes, faxes, telephone and video
equipment for the proper handling of classified information. With respect to information
technology systems, NSD is required to comply with regulations set forth by the Office
of Management and Budget as well as the Committee on National Security Systems
regarding the security of information technology systems that process national security
information. NSD information technology systems are also subject to annual reviews by
information technology security officials in the Justice Department’s Justice Management
Division as well as periodic audits and reviews by the Justice Department’s Office of
Inspector General.

Free Flow of Information Act
QUESTION 13: In the past Congress, the House and Senate considered legislation on federally
compelled disclosure of information from the news media through subpoena, court order, or
other compulsory legal process. What is your opinion of the Free Flow of Information Act of
20

2009, S. 449, as reported from the Senate Judiciary Committee on December 11, 2009, and any
modifications that should be made in that proposed legislation?
Answer: While I have not had occasion to revisit the referenced legislation and to study it in
detail, my understanding is that S.448 1 reflects work between the Administration and the bill’s
sponsors to balance the protection of journalists’ confidential sources with the Government’s
responsibility to take measures necessary to protect national security and enforce our criminal
laws. Under current Department policy, the United States Attorneys Manual (USAM) provides
for careful review and ultimately approval by the Attorney General before the government can
seek to compel information from a journalist. As I understand S.448, as amended, it requires the
Attorney General to certify that the request for compelled disclosure is made in a manner
consistent with the requirements in the USAM and the significant protections for the news media
already contained therein from subpoenas that might impair the newsgathering function. S. 448
also includes the requirements – also contained in the USAM – that the Government exhaust all
reasonable alternative sources of the protected information, show there are reasonable grounds to
believe a crime has occurred, and demonstrate reasonable grounds for believing that the
information is essential to the investigation or prosecution. At the same time, S. 448 contains
important protections for national security. It provides that in cases where the material sought
would assist the Government in preventing, mitigating or identifying an act of terrorism or other
significant harm to national security, the court could compel the production of the information
without triggering the bill’s balancing test. S.448 also would permit the Government to make its
submissions in camera and ex parte where necessary, thereby fostering protection of national
security information and intelligence sources and methods. Should the bill be reintroduced I
would want to consult with professionals within the National Security Division and others, and
consider carefully whether any modifications to the bill as reported would be appropriate.
Attorney General Guidelines for Domestic FBI Operations/Miranda Warnings
QUESTION 14: In September 2008, Attorney General Mukasey issued guidelines on the
domestic operations of the Federal Bureau of Investigation. To implement the guidelines, the
FBI developed and put into effect a Domestic Investigations and Operations Guide, referred to as
the DIOG. Revisions to the DIOG have been under consideration within the Department for
some time.
a. What is your understanding of the main decisions made by the Attorney General in the
September 2008 guidelines for domestic FBI operations?

1

The question refers to S.449. However, S.448, as amended, was reported from the Judiciary Committee as the
Free Flow of Information Act of 2009 on December 11, 2009.

21

Answer: The September 2008 guidelines issued by Attorney General Mukasey sought to
harmonize into one set of guidelines what had previously been several different sets of
guidelines that govern the FBI’s domestic operations. For example, under the prior
guidelines, if a matter were labeled as "criminal," an FBI agent could conduct physical or
photographic surveillance based on a tip; the procedural requirements were more
exacting in national security investigations. Similarly, human sources could be tasked to
seek information when the purpose was to check leads in ordinary criminal
investigations, but the standards were more restrictive when the purpose was to gather
information about threats to the national security. The 2008 guidelines addressed these
differences and established two categories of investigative activity – assessments and
predicated investigations -- regardless of whether the investigation was categorized as a
criminal or national security investigation.
The most significant change brought about by the 2008 Guidelines was the establishment
of consistent policy for the FBI when it is acting proactively to identify threats and
vulnerabilities, whether from criminals, terrorists or spies. The guidelines sought to
further the FBI's change from a reactive model (where agents must wait to receive leads
before acting) to a model that emphasizes the early detection, intervention, and
prevention of terrorist attacks and other criminal activities. For instance, the ability to
conduct assessments enables the FBI to conduct important intelligence gathering central
to its ability to detect and disrupt national security and criminal threats by using nonintrusive investigative techniques. Assessments must have a proper purpose but need not
be based on specific factual predication of criminal activity. As a matter of FBI policy,
assessments conducted in sensitive circumstances – such as those affecting a religious
institution – must be conducted pursuant to specific levels of supervisory approval. The
need for clear, consistent policy in this area was a critical aspect of the FBI’s effort to
continue to transform itself from a law enforcement agency (focusing on solving crimes
after the fact) into an intelligence-driven organization that anticipates threats to the
national security and public safety before they have fully materialized.
The 2008 guidelines also confirmed that national security activities present special needs
for coordination and information sharing with other components and agencies. Finally,
the guidelines recognized the importance of effective oversight by, among other things,
requiring notification and reports to NSD concerning the initiation of national security
and foreign intelligence activities in various contexts
b. What is your understanding of the principal concerns raised by civil liberties groups and
others about these Attorney General guidelines, such as concerns about pretext interviews
and physical surveillance?

22

Answer: I understand that some have raised concerns regarding those portions of the
2008 Guidelines which permit FBI agents to conduct assessments, and in particular the
ability of agents within an assessment to task informants, conduct “pretext interviews,”
and conduct physical surveillance (i.e., surveillance that does not involve intrusion where
there is a reasonable expectation of privacy). I also understand that some have expressed
concern that these techniques were not previously available to investigators for use
during threat assessments, although some were permissible under the General Crimes
Guidelines for the prompt and limited checking of leads. I also understand that some
were concerned generally about the notion of the FBI collecting any information
regarding individuals if there is not individualized suspicion that the person has
committed a crime or poses a national security risk. I further understand that some have
expressed concern about the use of race and ethnicity as a factor that can sometimes be
relevant during an assessment.
c. In what ways, and how well or not, do you believe that the Attorney General guidelines
and the implementing FBI DIOG address those concerns?
Answer: I believe the 2008 Guidelines and DIOG strike a proper balance between
providing agents the tools they need to identify threats and vulnerabilities proactively and
protecting privacy and civil liberties. The balance is enhanced by transparency: the vast
majority of the Guidelines are unclassified, a departure from previous National Security
guidelines, and the FBI made large portions of the DIOG public. The Department and
the FBI briefed the Guidelines and the DIOG to their oversight committees as well as
major civil rights and civil liberties groups. That level of transparency has facilitated the
identification and understanding of the manner in which information is and is not used.
In addition, while the Attorney General Guidelines permit a range of activity, the
implementing rules adopted by the FBI in the form of the DIOG further guide and in
some instances limit the ability of agents to operate to the full limits of those guidelines.
Moreover, the FBI has imposed reasonable requirements for legal review and supervisory
approval for activities that involve especially sensitive circumstances to ensure that the
tools they have been given are being exercised carefully and consistently. The FBI
provided extensive training and has conducted several audits of assessments to ensure the
tools provided have been used appropriately. Finally, I understand that the National
Security Division has added a review of assessments during the course of the “National
Security Reviews” that it conducts.
d. Do you believe the Attorney General guidelines and the DIOG provide sufficient
flexibility for the FBI to investigate aggressively alleged terrorists and spies?

23

Answer: As noted above, I understand the Attorney General Guidelines and the DIOG
do provide agents the flexibility they need to identify and investigate national security
threats consistent with the rule of law. If confirmed, I would intent to consult with the
FBI and the professionals within NSD to determine what changes or adjustments, if any,
may be needed to ensure that operators have the tools they need and that they are using
them consistent with applicable statutes, regulations and the Constitution.
e. Are there any revisions that you believe should be made either to the guidelines or the
FBI’s policies implementing the guidelines?
Answer: I understand that the next iteration of the DIOG is currently under
development. If I am confirmed, I will make it a priority to understand what changes are
being considered that may or may not be necessary.
f. What is your view of the FBI policy, incorporated into the DIOG, on Custodial
Interrogation for Public Safety and Intelligence Gathering Purposes of Operational
Terrorists Arrested Inside the United States with respect to advising terrorist suspects
arrested in the United States of their Miranda rights? Is there a legal requirement that all
terrorist suspects arrested in the United States be advised of their Miranda rights prior to
custodial interrogation? Under what circumstances do you believe a terrorist suspect
should be interrogated based upon exceptions to or without regard to Miranda, Quarles,
and presentment requirements?
Answer: The policy recently issued by the FBI and incorporated into the DIOG makes
clear that the first priority for interrogation of terrorists is to gather intelligence. The
policy also directs agents to use, to the fullest extent, the public safety exception to the
Miranda rule, as articulated by the Supreme Court in Quarles v. New York, in order to
gather immediate threat information. The policy recognizes that the terrorism threat we
face is complex and evolving, and that agents must exhaust all appropriate avenues of
inquiry to identify any threat posed by an operational terrorist that they may confront.
The FBI policy reflects that reality and makes clear that gathering intelligence is the first
priority. I believe that is sound policy.
With regard to the administration of Miranda warnings to terrorist suspects, there is no
legal requirement to provide a terrorist suspect with Miranda warnings prior to custodial
interrogation. The consequence of not providing Miranda warnings prior to custodial
interrogation is that the statements received will not be admissible in court if the
questions exceed the scope of the Quarles exception.
Because we face an adaptable and evolving terrorist threat, we must use all tools at our
disposal to detect and disrupt threats. This includes using the public safety exception to
24

Miranda in order to gather intelligence and to identify any imminent threat posed by that
individual or others with whom they may be working. If I am confirmed, I would make it
a priority to ensure that we bring all tools to the table to detect and disrupt national
security threats – military, intelligence, diplomatic as well as prosecution in either the
civilian justice system or the reformed military commission system.
Counterterrorism Prosecutions
QUESTION 15: 28 C.F.R. § 0.72(a)(8) assigns to the Assistant Attorney General for National
Security the responsibility to prosecute and coordinate prosecutions and investigations targeting
individuals and organizations involved in terrorist acts at home or against U.S. persons or
interests abroad, or that assist in the financing of or providing support to those acts.
a. Describe the personnel resources, both attorneys and others, within the NSD that are
devoted to the prosecution of terrorism cases.
Answer: The NSD’s Counterterrorism Section (“CTS”) supervises a coordinated national
counterterrorism enforcement program through close collaboration with Justice Department
leadership, the National Security Branch of the FBI, the Intelligence Community and the 93
U.S. Attorney’s Offices around the country. I understand that currently, the Counterterrorism
Section is composed of 53 attorneys and 18 non-attorneys.
b. Describe the role that the NSD has played since its inception in terrorism prosecutions in
United States district courts and on appeal to the U.S. courts of appeals. Please provide
up-to-date information on the status of major prosecutions during the last two years.
Answer: The CTS seeks to assist, through investigation and prosecution, in preventing
and disrupting acts of terrorism anywhere in the world that impact on significant U.S.
interests and persons. The section's responsibilities include overseeing the investigation
and prosecution of domestic and international terrorism cases; participating in terrorism
prosecutions within district courts and, with assistance from NSD’s appellate attorneys,
before courts of appeals; participating in the systematic collection and analysis of
information relating to the investigation and prosecution of terrorism cases; and
coordinating with other U.S. government agencies to facilitate prevention of terrorist
activity through daily detection and analysis and to provide information and support to
the field.
Below are examples of major public terrorism prosecutions during the past two years:

25

•

Khalid Aldawsari -- On Feb. 23, 2011, in the Northern District of Texas,
Khalid Ali-M Aldawsari was arrested on a federal charge of attempted use
of a weapon of mass destruction. According to the complaint, Aldawsari
researched online how to construct an Improvised Explosive Device
(IED), had acquired most of the ingredients and equipment necessary to
construct an IED and conducted online research of potential U.S. targets.
In addition, Aldawsari had allegedly described his desire for violent jihad
and martyrdom in blog postings and a personal journal. This prosecution
remains pending.

•

Faruq Muhammad -- On Jan. 19, 2011, Faruq Khalil Muhammad ‘Isa was
arrested in Canada pursuant to a Jan. 14, 2011 criminal complaint in the
Eastern District of New York charging him with conspiring to kill
Americans abroad and providing material support to that terrorist
conspiracy. Faruq was charged in connection with his alleged support for
a multinational terrorist network that conducted multiple suicide bombings
in Iraq and that is responsible for the deaths of five American soldiers
during a suicide truck bomb attack in Iraq in April 2009. This prosecution
remains pending.

•

Antonio Martinez -- On Dec. 8, 2010, Antonio Martinez, aka Muhammed
Hussain, was arrested in the District of Maryland on a criminal complaint
for allegedly attempting to murder federal officers and employees and
allegedly attempting to use a weapon of mass destruction in connection
with a plot to detonate what he believed to be a vehicle bomb at an Armed
Forces recruiting center in Catonsville, Md. The arrest was the result of
an undercover operation in which Martinez had been monitored closely as
his alleged bomb plot developed. The vehicle bomb was inert. This
prosecution remains pending.

•

Faisal Shahzad – On May 4, 2010 in the Southern District of New York,
Faisal Shahzad was charged with attempting to detonate a car bomb in
New York’s Times Square on the evening of May 1, 2010. Shahzad was
charged with attempting to use a weapon of mass destruction, attempting
to kill or maim persons in the United States and other violations. He was
later indicted on June 17, 2010 on ten counts and pleaded guilty to all
counts of the indictment on June 21, 2010. In pleading guilty, Shahzad
admitted that, in Dec. 2009, he received explosives training in Pakistan
from trainers affiliated with Tehrik-e-Taliban (TTP), the Pakistani
Taliban. He also admitted that he received nearly $5,000 in cash in
26

Massachusetts in Feb. 2010 from a co-conspirator in Pakistan whom he
understood worked for TTP and that, in April 2010, he received an
additional $7,000 in cash in Ronkonkoma, N.Y., also sent at the coconspirator’s direction. Shahzad was sentenced to life in prison on Oct. 5,
2010.
•

David Headley et al -- In March 2010, David Coleman Headley pleaded
guilty in the Northern District of Illinois to a dozen federal terrorism
charges, admitting that he participated in planning the November 2008
terrorist attacks in Mumbai, India, as well as later planning to attack a
Danish newspaper. Among other things, Headley admitted that he
attended training camps in Pakistan operated by the terrorist organization,
Lashkar e Tayyiba on five separate occasions between 2002 and 2005 and
that he later traveled five times to India on behalf of Lashkar members to
surveil targets in advance of the Mumbai attacks that killed approximately
164 people, including six Americans. He also admitted that he conspired
with accused Pakistani terror leader Ilyas Kashmiri and others in plotting
an attack on a Danish newspaper. This prosecution is pending.

•

Najibullah Zazi et al -- In February 2010, Najibullah Zazi pleaded guilty
in the Eastern District of New York to a three-count superseding
information charging him with conspiracy to use weapons of mass
destruction against persons or property in the United States, conspiracy to
commit murder in a foreign country and providing material support to alQaeda. Among other things, Zazi admitted that he received bomb-making
training from al-Qaeda and brought explosives materials to New York as
part of an al-Qaeda plot to conduct coordinated suicide bombings on the
New York subway system in September 2009. In April 2010, Zazi’s
associate Zarein Ahmedzay pleaded guilty to terrorism violations
stemming from, among other activities, his role in the al-Qaeda plot to
bomb New York’s subway system. Another alleged Zazi associate, Adis
Medunjanin, has also been charged in connection with his alleged role in
the subway plot and awaits trial. In July 2010, prosecutors in the Eastern
District of New York brought a superseding indictment against additional
members of the al-Qaeda conspiracy to carry out the New York plot and a
related plot against a target in the United Kingdom. The superseding
indictment charged Adnan El Shukrijumah, an accused senior al-Qaeda
leader, for his alleged role in working with other al-Qaeda leaders to
recruit Zazi, Ahmedzay and Medunjanin to carry out the attacks on the
New York subway. Also charged in the superseding indictment are Abid
27

Naseer and Tariq Ur Rehman, who allegedly participated in a separate plot
to bomb targets in the United Kingdom in 2009, as well as Ferid Imam,
Adis Medunjanin, and a defendant known as “Ahmad.” This prosecution
is pending.
•

Umar Farouk Abdulmutallab -- On Dec. 26, 2009, Umar Farouk
Abdulmutallab was charged by criminal complaint in the Eastern District
of Michigan with attempting to destroy Northwest Airlines flight 253,
which was carrying 289 people, as the aircraft made its final approach to
Detroit Metropolitan Airport on Dec. 25, 2009 by attempting to detonate
an explosive device containing PETN and TATP that was concealed in his
underwear. He was later indicted on Jan. 6, 2010 on charges of attempted
use of a weapon of mass destruction, attempted murder, attempt to destroy
an aircraft, placing a destructive device on an aircraft, use and possession
of a firearm / destructive device during a crime of violence.
Abdulmutallab was charged with additional violations, including terrorism
transcending national boundaries, in a superseding indictment returned
Dec. 15, 2010. This prosecution is pending.

c. Describe the role that the NSD has played with respect to decisions whether to prosecute
before U.S. military commissions, and what role it will play, if any, in prosecutions
before military commissions.
Answer: NSD attorneys provided advice and support to the Attorney General and the
interagency task force in identifying cases that could be prosecuted in military
commissions. The Justice Department and NSD stand ready to assist and support the
Defense Department’s Office of Military Commissions in the prosecution of Guantanamo
Bay detainees before military commissions. Historically, at the request of the Defense
Department and the Chief Prosecutor for military commissions, NSD has worked and
continues to work in partnership with the Office of Military Commissions Chief
Prosecutor's Office in investigating and prosecuting military commission cases.
Counterespionage Prosecutions
QUESTION 16: 28 C.F.R. § 0.72(a)(7) assigns to the Assistant Attorney General for National
Security the responsibility to prosecute federal crimes involving national security, foreign
relations and terrorism, including espionage statutes.
a. Describe the personnel resources, both attorneys and others, within the NSD that are
devoted to the prosecution of espionage cases.
28

Answer: As noted in response to question 12.a., the Counterespionage Section of the
National Security Division supervises the investigation and prosecution of espionage and
related statutes. I understand that currently, the Counterespionage Section is composed
of 21 attorneys and 11 non-attorneys.
b. Describe the role that the NSD has played since its inception in espionage prosecutions in
United States district courts and on appeal to the U.S. courts of appeals. Please provide
up-to-date information on the status of major prosecutions during the last two years.
Answer: The NSD’s Counterespionage Section supervises the investigation and
prosecution of cases involving espionage and related statutes, as well as the export of
military and strategic commodities and technology. The section has executive
responsibility for authorizing the prosecution of cases under criminal statutes relating to
espionage, sabotage, neutrality, and atomic energy. It participates in espionage
prosecutions within district courts and, with assistance from NSD’s appellate attorneys,
before courts of appeals. It also provides legal advice to U.S. Attorney's Offices and
investigative agencies on all matters within its area of responsibility, which includes 88
federal statutes affecting national security.
Below are examples of major public espionage prosecutions during the past two years.
This list does not include any of the Counterespionage Section’s export enforcement
prosecutions.
•

Noshir Gowadia – On Jan. 24, 2011, a federal judge in the District of
Hawaii sentenced Noshir Gowadia to 32 years in prison for
communicating classified national defense information to the People’s
Republic of China (PRC), illegally exporting military technical data, as
well as money laundering, filing false tax returns and other offenses. On
Aug. 9, 2010, a federal jury found Gowadia guilty of 14 criminal
violations, including five criminal offenses relating to his design for the
PRC of a low-signature cruise missile exhaust system capable of rendering
a PRC cruise missile resistant to detection by infrared missiles, as well as
three counts of illegally communicating classified information regarding
lock-on range for infrared missiles against the U.S. B-2 bomber to persons
not authorized to receive such information. Gowadia was also convicted
of unlawfully exporting classified information about the B-2, illegally
retaining information related to U.S. national defense at his home, money
laundering and filing false tax returns for the years 2001 and 2002.

29

•

Glenn Shriver – On Jan. 21, 2011, Glenn Duffie Shriver was sentenced to
48 months in prison after pleading guilty on Oct. 22, 2010 in the Eastern
District of Virginia to a one-count criminal information charging him with
conspiracy to transmit national defense information to a person not
entitled to it, namely intelligence officers of the People’s Republic of
China (PRC). According to a statement of facts, Shriver lived in the PRC
both as an undergraduate student and after graduation. While living in
China in October 2004, Shriver developed a relationship with three
individuals whom he came to learn were PRC intelligence officers. At the
request of these agents, Shriver agreed to return to the United States and
apply for positions in U.S. intelligence agencies or law enforcement
organizations that would afford him access to classified national defense
information, which he would then transmit to the PRC officers in return
for cash.

•

Harold & Nathaniel Nicholson – On Jan. 18, 2011, Harold James
Nicholson was sentenced to eight years in prison after pleading guilty on
Nov. 8, 2010, in the District of Oregon to conspiracy to act as an agent of
a foreign government and conspiracy to commit international money
laundering. Nicholson, a former CIA employee, has been serving a 283month sentence at the Federal Correctional Institution (FCI) in Sheridan,
Oregon, for a 1997 conviction of conspiracy to commit espionage. The
judge ordered him to serve the eight year prison sentence consecutive to
the current sentence he is already serving. Harold Nicholson admitted that
from 2006 to December 2008, with the assistance of his son, Nathaniel, he
acted on behalf of the Russian Federation, passed information to the
Russian Federation, and received cash proceeds for his past espionage
activities while in prison. On Aug. 27, 2009, Nathaniel Nicholson pleaded
guilty to conspiracy to act as an agent of the Russian government and
conspiracy to commit money laundering.

•

Leonardo & Marjorie Mascheroni – On Sept. 17, 2010, in the District of
New Mexico, Dr. Pedro Leonardo Mascheroni and his wife, Marjorie
Roxby Mascheroni, both former employees of Los Alamos National
Laboratory, were arrested on charges of communicating classified nuclear
weapons data to a person they believed to be a Venezuelan government
official and conspiracy to participate in the development of an atomic
weapon for Venezuela. The indictment charges the Mascheronis with
conspiracy to communicate and communicating Restricted Data;
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conspiracy to and attempting to participate in the development of an
atomic weapon; conspiracy to convey and conveying records and things of
value of the United States; as well as making false statements. The charges
stem from Dr. Mascheroni’s alleged discussions with an undercover FBI
agent posing as a Venezuelan government official, during which Dr.
Mascheroni allegedlu presented his plan for helping Venezuela develop
nuclear weapons. No classified information was sought by or passed to
the government of Venezuela in the case, nor were any Venezuelan
government officials charged with any crimes in the case. The
prosecution remains pending.
•

Walter and Gwendolyn Myers – On July 16, 2010, Walter Kendall Myers,
a former State Department official, and his wife, Gwendolyn Steingraber
Myers, were sentenced to life in prison and 81 months in prison,
respectively, for their roles in a nearly 30-year conspiracy to provide
highly-classified U.S. national defense information to the Republic of
Cuba. On Nov. 20, 2009, Kendall Meyers pleaded guilty to one count of
conspiracy to commit espionage and two counts of wire fraud, while his
wife pleaded guilty to one count of conspiracy to gather and transmit
national defense information. In 1979, a Cuban intelligence officer
recruited both of them to be Cuban agents, a role in which they served for
the next 30 years. In April 2009, the FBI launched an undercover
operation against the pair, during which the Myerses made a series of
statements about their past activities on behalf of Cuban intelligence,
which the FBI was able to corroborate through other evidence gathered in
the investigation, resulting in their arrest in June 2009.

•

Russian “Illegals” Case -- On June 28, 2010, eight Russian nationals were
arrested for carrying out long-term, "deep-cover" assignments in the
United States on behalf of the Russian Federation, and two additional
defendants were also arrested for participating in the same Russian
intelligence program in the United States. In total, eleven defendants,
including the 10 arrested, were charged in the Southern District of New
York with conspiring to act as unlawful agents of the Russian Federation
within the United States. Nine of the defendants were also charged with
conspiracy to commit money laundering. The arrests were the result of a
multi-year investigation of a network of U.S.-based agents of the foreign
intelligence organ of the Russian Federation (known as the "SVR"). The
targets of the probe included covert SVR agents who assumed false
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identities and lived in America on long-term, deep-cover assignments.
These secret agents, commonly known as "illegals" in the intelligence
community, worked to hide all connections between themselves and
Russia, even as they acted at the direction of the SVR. The “illegals”
network in America served one primary, long term goal: to become
sufficiently “Americanized” such that they could gather information about
the United States for Russia, and could successfully recruit sources who
were in, or were able to infiltrate, U.S. policy-making circles. On July 8,
2010, all of the arrested defendants pleaded guilty to conspiring to serve as
secret agents of the Russian Federation within the United States and
agreed to be immediately removed from the United States. All of them
were required to disclose their true identities in court and to forfeit certain
assets attributable to the criminal offenses. The United States
subsequently transferred these individuals to the custody of the Russian
Federation. In exchange, the Russian Federation released to U.S custody
four individuals who had been incarcerated in Russia for alleged contact
with Western intelligence agencies
•

David Nozette – On Oct. 19, 2009, David Nozette, a Maryland scientist
who once worked in varying capacities for the Department of Energy,
Department of Defense and the National Aeronautics and Space
Administration, was charged with attempted espionage for attempting to
deliver classified national defense information to an individual Nozette
believed to be an Israeli intelligence officer, but who was, in fact, an
undercover employee of the FBI. On March 17, 2010, a superseding
indictment was returned containing an additional count, charging Nozette
with attempting to deliver to a foreign government (Israel) documents and
information relating to the national defense of the United States,
specifically classified information on a U.S. Navy system that involved
satellite information. The indictment does not allege that the government
of Israel or anyone acting on its behalf committed any offense under U.S.
laws in this case. This prosecution remains pending.

•

James Fondren – On Sept. 25, 2009, James Wilbur Fondren Jr., a
Pentagon official who served as the Deputy Director of the Washington
Liaison Office, U.S. Pacific Command, was convicted in the Eastern
District of Virginia on one charge of unlawfully communicating classified
information to an agent of the People’s Republic of China (PRC) and two
counts of making false statements to the FBI. From November 2004 to
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February 2008, Fondren provided certain classified Defense Department
documents and other information to Tai Shen Kuo, an agent of the PRC,
who he was aware maintained a close relationship with an official of the
PRC. Fondren provided classified information via “opinion papers” that
he sold to Kuo. Fondren also provided Kuo with sensitive, but
unclassified Defense Department publications. On Jan. 22, 2010, Fondren
was sentenced to 36 months in prison, followed by two years of
supervised release.
OLC Opinions on Matters within Responsibility of the National Security Division
QUESTION 17: With respect to opinions of the Office of Legal Counsel (OLC) on matters
within or related to the responsibilities of the NSD, or if preceding the establishment of the
Division were related to such matters as electronic surveillance, physical searches, or other
methods of national security investigations that would now be of interest to the Division, will
you, if confirmed, undertake to do the following:
a. Provide to the Committee a comprehensive list and description of OLC opinions on these
subjects for opinions that remain OLC precedent or are of significant historical value in
understanding the development of the Government’s legal theories in support of the
matters addressed in the opinions.
b. Provide to the Committee copies of those opinions, for handling in accordance with their
classification, which are identified by or on behalf of the Committee as useful to it in the
performance of its legislative and oversight responsibilities.
c. Promptly update the list and description as new opinions are issued with respect to the
legal basis for intelligence activities or covert actions and provide such new opinions to
the Committee on request.
d. If your answer to any part of Question 17 is no, or is qualified, please describe the basis,
if any, for the Department to decline to provide information or material requested by the
Committee under sections 502 or 503 of the National Security Act of 1947 for the
purpose of being fully and currently informed about the legal basis for intelligence
activities or covert actions, including the level of authorization in the Executive Branch
required for any such refusal.
Answer: I appreciate the importance of the Committee’s oversight role and its interest in
the legal basis for intelligence activities or covert actions. However, as a nominee, I am
not in a position to offer commitments as to how the Department may respond to
particular document requests. I understand, however, that in order for the Committee to
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perform its oversight function it is important for it to receive information on the legal
basis for intelligence activities or covert action. I further understand that the intelligence
agencies provide that information to the Committees. The Attorney General has the
responsibility, like all department heads, for ensuring that the Intelligence Community
elements within his department fulfill this obligation. If confirmed, I would work to
cooperate with the committee and to accommodate its legitimate oversight needs.
State Secrets
QUESTION 18: The Attorney General’s September 23, 2009 memorandum on state secrets
states: “The Department will provide periodic reports to appropriate oversight committees of
Congress with respect to all cases in which the Department invokes the privilege on behalf of
departments or agencies in litigation, explaining the basis for invoking the privilege.”
a. Have you worked directly on the formulation or implementation of the policies set
forth in the Attorney General’s memorandum? If so, please describe.
Answer: As Associate Deputy Attorney General I participated in the review of the
then pending litigation in which the Department had asserted the State Secrets
privilege on behalf of client agencies and in the formulation of Attorney General’s
policy announced in September 2009. I have provided advice and recommendations
to the Deputy Attorney General on the implementation of that policy.
b. Has the Department implemented the commitment of the Attorney General to provide
the reports promised in the Attorney General’s memorandum? If so, or if not, please
describe.
Answer: Yes. I understand that by letter of April 29, 2011, the Department provided
to Chairman Feinstein and Vice Chairman Chambliss the Department’s first periodic
report regarding the Department’s application of new procedures and standards
governing the assertion of the state secrets privilege in litigation.
c. Has the Department declined, or failed to respond to, requests by the Committee for
classified declarations filed by the heads of elements of the Intelligence Community
in support of the assertion of the state secrets privilege in matters relating to
intelligence activities or covert actions? If so, please describe the legal basis, if any,
for not providing to the Committee those declarations, including the level of
authorization in the Executive Branch required for any such refusal.

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Answer: In an April 29, 2011, letter to Chairman Feinstein and Vice Chairman
Chambliss, the Department indicated that it does not object to the relevant agencies
providing the declaration in the Al-Aulaqi matter, in which the judgment is final. The
letter also notes that intelligence officials have made the Committee aware of the
classified facts underlying the assertion of the privilege in the Shubert matter and that
the Office of the Director of National Intelligence and the National Security Agency
are prepared to brief the Committee regarding the substance of the classified
submissions in that matter.
Requests for Certain Documents
QUESTION 19: In responding to the following, please review the August 3, September 29,
October 5, November 19, and December 9, 2010, correspondence with the Department of Justice
regarding requests for certain documents relating to the work of the Guantanamo Bay Detainee
Review Task Force, including any September 2009 Attorney General memorandum or other
guidance or recommendations related to the Task Force process, the unredacted
recommendations contained in the Task Force assessments of each Guantanamo detainee, and a
list of the 92 detainees approved for transfer as of August 28, 2009.
a. Did the Attorney General provide in or about September 2009 any guidance or
recommendations in any form to Executive Branch officials or employees, whether in or
outside of the Department of Justice, on any presumption that should be applied in favor
of transferring or releasing a certain category of detainees? If so, will the Department
now provide those documents to the Committee?
Answer: I appreciate the importance of the Committee’s oversight role and its interest in
the legal basis for intelligence activities or covert actions. However, as a nominee, I am
not in a position to speak for the Department in regard to these matters. I understand,
however that they are under active consideration within the Department.
b. Will the Department now provide the unredacted recommendations contained in the Task
Force assessments of each Guantanamo detainee and the list of the 92 detainees approved
for transfer as of August 28, 2009 that were requested in the referenced correspondence?
Answer: As a nominee, I am not in a position to speak for the Department in regard to
these matters. However, I am aware that they are under active consideration within the
Department and that there is an ongoing effort to accommodate the Committee’s
legitimate oversight interests. If I am confirmed, I would look forward to working with
the Committee to help ensure that such requests receive prompt and respectful
consideration.
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c. If the Department is declining to provide these requested documents to the Committee,
please describe the specific factual and legal basis for not doing so. Also, please state
whether you concur in that decision and your rationale.
Answer: I appreciate the Committee’s interest in the requested materials and understand
the Department is engaged in a process with the Committee to try to accommodate the
Committee’s requests. I understand the Committee’s interest in this issue and its
legitimate oversight concerns with how the Executive Branch exercises its national
security authorities. If I am confirmed, I will work with others in the Department and the
Committee to accommodate its legitimate oversight needs.
d. Do you believe that the “deliberative process” privilege allows the Department to
withhold the documents and information requested by the referenced correspondence? If
so, please describe the specific factual and legal basis for this assertion.
Answer: I have not undertaken a legal analysis of the documents requested in the
referenced correspondence to determine the application of any privileges. As a general
matter, I understand that concerns are sometimes raised about the exposure of internal
deliberations outside the Executive Branch for fear that it will chill the exchange of
candid advice and recommendations. Based on my years of work in the Department, I
understand that Congress, and in particular the Intelligence Committees, play an
important role in promoting accountability with regard to the Executive’s intelligence
activities. If I am confirmed, I will work with the Committee to facilitate cooperation
with the oversight process.
Professional Experience
QUESTION 20: For each of the following, describe specifically how your experiences will
enable you to serve effectively as the Assistant Attorney General for National Security. Include
within each response a description of issues relating to the NSD that you can identify based on
those experiences.
a. Principal Associate Deputy Attorney General and Associate Deputy Attorney General,
Department of Justice;
Answer: In the Deputy Attorney General’s Office, I have helped to supervise the
national security functions of the Department, including the National Security Division
(NSD), United States Attorneys Offices, the FBI and components of the Drug
Enforcement Administration. I have assisted the Deputy Attorney General in the
oversight and management of counterterrorism and espionage prosecutions, the litigation
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before the Foreign Intelligence Surveillance Court and approval of certain functions and
exemptions under Attorney General Guidelines.
I have worked with partners in the Intelligence Community and in the interagency
process and have developed an understanding of the national security architecture of the
federal government. In my career working with agents, analysts and lawyers across the
government I have developed an appreciation of the challenges confronting national
security professionals and prosecutors as they pursue their mission of developing
intelligence, sharing information, and working together to disrupt national security threats
and protect the nation. As a result of all these experiences, I have gained a broader
understanding of the range and complexity of national security issues confronting the
Department’s components and United States Attorneys Offices as well as the importance
of striking the appropriate balance of Intelligence Community equities, legal
requirements and prosecutorial interests.
Through my experience in the Deputy Attorney General’s Office, I have developed a
clear understanding of the overall mission of the National Security Division, why it was
created and how its operates as to further its mission to provide one place within the
Department in which national security functions are coordinated. I understand the
importance of using all tools in order to combat the national security threats we face and
of doing so consistent with statute, executive order, relevant regulations, and the
Constitution. Drawing on my experience as a prosecutor as well as the perspective I
have gained at the FBI and with the Department of Justice working on the operational
aspects of national security investigations, I will exercise independent judgment in
managing the Department’s national security functions while ensuring that the
Division’s activities are properly coordinated with the nation’s other national security
activities when appropriate. I will do the same in providing advice to and advancing
partnerships with the Division’s partners within the Intelligence Community and in
working cooperatively with congressional oversight committees.
b. Chief of Staff to the Director, Federal Bureau of Investigation;
Answer: At the FBI, I provided advice and guidance to Director Mueller on a range of
national security matters and worked with the FBI’s leadership team to develop the FBI’s
National Security Branch and to further the integration of intelligence across all facets of
that organization. I helped manage the Bureau’s national security assets and worked to
advance the FBI’s transformation from a law enforcement agency to a national security
organization focused on preventing terrorist attacks. Among other things, I gained an
understanding of and appreciation for the FBI’s national security program and operations,
the Bureau’s role as an element of the Intelligence Community, and the importance of
FISA as an intelligence collection tool from which the whole Intelligence Community
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benefits. I gained an understanding of the FISA process from the FBI’s perspective and
the assistance the FBI provides to other members of the Intelligence Community. My
experience at the FBI provided me an understanding of the need to be accurate and
expeditious in the preparation and presentation of applications to the FISC. Finally,
during my tenure at the FBI, I gained firsthand experience working within the
Intelligence Community to understand the role that effective and coordinated intelligence
operations play in safeguarding our nation’s security.
c. Enron Task Force, Department of Justice;
Answer: As an Assistant United States Attorney (AUSA) on detail to the Department of
Justice Criminal Division and the Enron Task Force, I put my experience as a criminal
prosecutor to work on large and complex investigations. This experience will serve me
well at NSD in overseeing complex national security prosecutions and investigations.
d. Assistant U.S. Attorney, Office of the U.S. Attorney for the District of Columbia.
Answer: As an Assistant United States Attorney (AUSA), I learned the value of
rigorous analysis and legal argument and how to build and prosecute an effective
criminal case. This experience will be valuable in ensuring that as prosecutors and
investigators we are both aggressive and careful in exercising the power to bring
criminal charges.

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