SELECT COMMITTEE ON
INTELLIGENCE

UNITED STATES SENATE

Additional Prehearing Questions
for

Mrs. Courtney Elwood
upon her selection to be
the General Counsel of the

Central Intelligence Agency

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Keeping the Intelligence Committee Fully and Currently Informed
QUESTION 1:

Section 502 of the National Security Act of 1947 provides that the obligation to keep the
congressional intelligence committees fully and currently informed of all intelligence
activities applies to the Director of National Intelligence and to the heads of all
departments, agencies, and other entities of the United States Government involved in
intelligence activities.

a. What is your understanding of the standard for meaningful compliance with this
obligation of the Director of the Central Intelligence Agency to keep the
congressional intelligence committees, including all their Members, fully and
currently informed of intelligence activities?

To allow the Congress to discharge its constitutional duties and provide valuable
feedback to the intelligence community, the Director of the CIA has the affirmative duty,
under Section 502, to "keep the congressional intelligence committees fully and currently
informed" of the Agency's intelligence activities, includingany significant anticipated
intelligence activity and any significant intelligence failure; he must do so "consistent
with due regard for the protection from unauthorized disclosure of classified information
relating to sensitive intelligence sources and methods or other exceptionally sensitive
matters." 50 U.S.C. § 3092(a)(1). To the same extent, the Director must also "furnish

the congressional intelligence committees with any information" conceming intelligence
activities- "including the legal basis under which the activity is being or was conducted"
- which is requested by either committee in order to carry out its responsibilities. 50
U.S.C. § 3092(a)(2).

I understand that standard to mean, in practice, that the congressional intelligence
committees should receive accurate, timely, and complete information about the
Agency's significant intelligence activities and failures, subject only to limitations
necessary to protect specific operational details about sources, tradecraft, and other

exceptionally sensitive information. DirectorPompeo has committed that he will comply
not only with the letter of the law, but also its spirit, which is to ensure that the
Legislative Branch has the intelligence informationit needs to perform its important
constitutional function. I look forward to helping him meet that commitment, if
confirmed.

b. Under what circumstances is it appropriate to brief the Chairman and Vice
Chairman and not the full Committee membership?

Under Section 503 of the National Security Act, a presidential finding or notification
about a covert action "may be reported to the chairmen and ranking minority members of
the congressional intelligence committees, the Speaker and minority leader of the House
of Representatives, the majority and minority leaders of the Senate, and such other
memberor members of the congressional leadership as may be includedby the
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President," "[i]f the Presidentdetermines that it is essential to limit access" to the finding
or notification in order "to meet extraordinary circumstances affecting vital interests of
the United States." 50 U.S.C. § 3093(c)(2), (d)(1).
More generally, and with respect to the application of Section 502's obligationto protect
"sources and methods or other exceptionally sensitive matters," I would, if confirmed,
look to Director Pompeo and Director ofNational Intelligence Coats, both former
members of the congressional intelligence committees, for guidance and historical
practice when consideringthe specific circumstances that might warrant limiting access .

Director Coats recentlytold this committee, in response to questions, that limiting access
for non-covert actions would be rare and often a matter of timing, and that, in his
experience, the committee leadership has worked with the Executive Branch to determine
when to expand access to the information in question.

Priorities ofthe Director ofthe Central Intelligence Agency
QUESTION 2:

Have you discussed with the Director of the Central Intelligence Agency his specific
expectations of you, if confirmed as General Counsel, and his expectations of the Office of
the General Counsel as a whole? If so, please describe those expectations.
Director Pompeo and I have discussed his expectations for me, if confirmed as General Counsel.
He expects me to discharge ably the responsibilities as the CIA's chief legal officer and to
provide effective leadership withinthe Office of General Counsel (OGC). He also expects me to
represent the Agency in interagency discussions, as appropriate, and to serve as a member of his
management team, providing him with the benefit of my judgment and experience as well as
legal advice.

With respect to the Office as a whole. Director Pompeo has stressed the critical role of faithful
adherence to the rule of law in achieving the CIA's mission. He has expressed his respectfor
and dedication to the hardworking professionals in OGC as members of the CIA workforce. As

he toldthis committee, he will defend and advocate for allCIAemployees, willtrain andsupport
them, and will hold them accountable and demand excellence from them. I am certain that he
expects his General Counsel to do the same.

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The Office ofthe General Counsel
QUESTION 3:

Although the Attorney General, usually through the Office of Legal Counsel at the
Department of Justice, is responsible for the issuance of legal opinions that are
authoritative within the Executive Branch, what is your understanding of the responsibility
of the General Counsel of the Central Intelligence Agency in ensuring that all activities of
the Central Intelligence Agency are undertaken in accordance with the Constitution,
treaties, and laws of the United States?

As set forth in the Central Intelligence Agency Act of 1949, as amended, the General Counselis

the chief legal officer of the CIA. As such, she provides authoritative legal advice and guidance
within the Agency. Assistedby other OGC lawyers,the General Counsel has the responsibility
to ensure that all activities of the CIA are undertaken in accordance with the Constitution and

U.S. law, including any applicable treaty obligations or principles of customary international law
that have been implemented in a domestic statute. For non-self-executing treaties, I believe that,
the General Counsel should inform the Director in the event that she concludes that CIA

activitieswould be lawful as a matter of U.S. domestic law, but would violate a treaty to which
the United States is a party and would likely be considered unlawful by the intemational
community.

QUESTION 4:

The Office of the General Counsel of the Central Intelligence Agency has a myriad of roies
and responsibilities. What are your expectations for the Office?

My expectation is that the Officemust and will continue to do high-caliber legal work in support
of the critical mission of the Agency and in service to the men and women of the workforce.
Above all else, the Office must ensure that all CIA activities are conducted in accordance with

the Constitution and U.S. law and ensure that the Agency's workforce receives the legal support
and the legal services it needs. In addition, I expect OGC lawyers to be not merely reactivebut
to anticipate issues, and to counsel on the benefits and risks associated with different courses of

action. OGC lawyers should also providetheir judgment, in addition to their legal analysis, but
take care to distinguish between legal opinions and non-legal advice.
a. Do you have any preliminary observations on its responsibilities, performance, and
effectiveness?

As noted in my responseto Question3,1 believe that OGC's core responsibility is to
ensure that all activities of the CIA are undertaken in accordance with the Constitution

and U.S. law. I have met only a small number of OGC lawyers to date, and I have been
impressed by their dedication to the Agency and the pride they take in their work. If

confirmed, I plan to make it a top priority to assess- and to work consistently to improve

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- the performance and effectiveness of the Office in discharging all of its responsibilities
and in serving the Agency, its workforce, and ultimately the American people.
b. If confirmed, will you seek to make changes in the numbers or qualifications of
attorneys in the office, or in the operations of the office?
At this time, I have not formed an opinion on the need to make changes in the number or
qualifications of the attorneys in the Office, or in its operations. If confirmed, I would
want to observe the operations of the Office for a period of time before reaching any
conclusions about the need for staffing, organizational, or management changes. I would
want to hear from OGC lawyers and from other CIA personnel. I also would need to
evaluate the Office's work product, procedures, resources, and recordkeeping, all to
assess what is working well and where improvements can be made. My evaluation
would be guided by the Director's priorities and goals and would need to take into
account the CIA's recent re-organization.

c. What do you understand your responsibility to be to manage and oversee the legal
work of the attorneys from the Office of the General Counsel who are assigned to
the various components of the CIA and how would you carry out this responsibility
if confibrmed?

The General Counsel is the chief legal officer of the CIA. As such, she is responsible for
managing and overseeing the legal work of all OGC lawyers in the Agency, including
those attorneys who are assigned to the other components. To carry out this
responsibility, I would, if confirmed, ensure that I and OGC's leadership team
continually and effectively supervise the legal advice being provided by all OGC
lawyers. I would review existing means for evaluating and managing the attorneys'
work, and I would work to ensure that all attorneys are receiving the necessary training,
support, guidance, and supervision.

QUESTION 5:

Describe your understanding of the responsibilities of the Director of National Intelligence
and the General Counsel of the Office of the Director of National Intelligence in reviewing,
and providing legal advice on, the work of the Central Intelligence Agency, including
covert actions undertaken by the Central Intelligence Agency.

Generally speaking, the Director ofNational Intelligence (DNI) provides coordination and
guidance on a range of activities that affect multiple intelligence community elements, including
the CIA. The DNI has both an oversight and collaborative role with the Agency and its work,
intended to ensure that the CIA's activities are integrated and responsive to the broader national
security strategy.

What this means in practice depends upon the particular work in question and the priorities and
approach of each DNI. The recent responsesprovidedby Director Coats and Director Pompeoin
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response to questions from this committee provide further information about what they envision
for their respective roles in connection with several subjects including the collection of foreign
intelligence through human sources; the coordination of relationships between elements of the
intelligence community and the intelligence and security services of foreign governments; the
correlation, evaluation, and dissemination of intelligence related to national secinity; and covert
action. (See, e.g.. Director Coats's response to APQ 43 and Director Pompeo's responses to
APQs 30-32.)
It is my imderstanding that previous General Coimsels of the CIA and Office of the Director of
National Intelligence (ODNI) have had - and have benefitted from - a close and synergetic
working relationship. If confirmed, I would hope to continue that practice and anticipate
frequent interaction with the General Counsel of ODNI. In particular, I would bring to his or her
attention significant matters of legal policy and interpretation conceming CIA activities, as well
as legal issues that have broader implications for the intelligence community.

QUESTION 6:

Explain your understanding of the responsibility of the General Counsel of the Central
Intelligence Agency to bring issues of legal significance to the attention of the Office of the
General Counsel of the Director of National Intelligence and to the General Counsel Forum
established by the Office.
The General Counsel of the CIA and the General Counsel of the Office of the Director of

National Intelligence both benefit from a close and collaborative professional relationship. If
confirmed, I expect to bring to his or her attention significant matters of legal policy and
interpretation conceming CIA activities, as well as legal issues that have broader implications for
the intelligence community. I would follow the guidance of the General Counsel of the ODNI
on the use of the General Counsel Forum.

QUESTION 7:

Under what circumstances must covert action involving the use of force comply with
treaties to which the United States is a party, including the United Nations Charter and the
Geneva Conventions?

Covert action, like all government activities, must comply with the Constitution and U.S. law,
including any applicable treaty obligations or principles of customary international law that have
been implemented in a domestic statute. Section 503(a)(5) of the National Security Act of 1947,
as amended, provides that a covert action finding "may not authorize any action that would
violate the Constitution or any statute of the United States." 50 U.S.C. § 3093(a)(5). By this
language. Congress did not prohibit the President from authorizing a covert action that would
violate a non-self-executing treaty or customary intemational law. However, I understand that,
as a general matter, the United States complies with intemational law to the extent possible in the
execution of covert action activities.

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QUESTION 8:

The National Security Act places limits on the activities that may he conducted as "covert
actions." In particular, covert actions do not include "traditional... military activities or
routine support to such activities." 50 U.S.C. Sec. 3093(e). What is your understanding of
the definition of traditional military activities? What is your understanding of the
definition of routine support to traditional military activities? What factors would you use
in testing whether a proposed covert action involves traditional military activities or
routine to support to such activities? Please provide one or two illustrative examples.

I have not previously had the opportunity to consider the definition of "traditional. . . military
activities" as used in Section 503(e) of the National Security Act. To determine whether a
particular activity falls within its scope, I would look to the common meaning of the phrase and
to past practice, and I would consult with the experts on the subject including, as appropriate,
lawyers from the Departmentof Defense and other relevant agencies. The legislativehistory of
Section 503(e) suggests at least four relevant considerations: whetherthe activity has customarily
been considered a military activity; whether the activity is under the direction and control of a

military commander; whetherthe activity is connected to hostilities involving U.S. military
forces; and whetherthe U.S. government's role in the overall operationwill be apparent or
acknowledged publicly. See S. Rep. No.102-85, at 44, 46-47 (1991); H.R. Conf. Rep. No. 102166, at 29-30 (1991).

Detainee Treatment Policy
QUESTION 9:

Do you support the standards for detainee treatment specified in the revised Army Field
Manual on Interrogations, FM 2-22.3, issued in September 2006, and required by Section
1045 of the National Defense Authorization Act for Fiscal Year 2016 (Public Law 114-92)?
Director Pompeo gave the committee his full commitment that, during his tenure, the CIA will
fully complywith laws goveminginterrogation, including the legal bar on the use of any
interrogation method not listed in the Army Field Manual 2-22.3. I support that commitmentand
Section 1045, which has provided a clear and accessible rule to government officers who are
asked to participate in interrogations.

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Past Personal Involvement in Relevant Matters

QUESTION 10:

Please describe your involvement, if any with regard to:
a. The September 18,2001, Authorization of the Use of Military Force;
In September 2001,1 was an Associate Counsel to the President in the Office of the
Counsel to the President. I recall that our office was involved in drafting the 2001

Authorization of the Use of MilitaryForce(AUMF), but 1do not recallworking on it.
h. The October 16,2003, Authorization of the Use of Military Force;

In October 2003,1 was Deputy Counsel to the Vice President. 1 do not recall doing any
work on the 2003 AUMF.

c. Any legal analyses related to lethal operations or programs;

1 do not recall doing any work on legal analyses related to lethal operations or programs
in any of the government positions that 1held from 2001 to 2007.
d. The September 17,2001, Memorandum of Notification or any other covert action
Findings or Memoranda of Notification; and

1 did not work on the September 17, 2001, Memorandum of Notification or on any other
covert action Findings or Memoranda ofNotification.
e. Any other matters relevant to the authorities of the CIA.

Immediately after September 11, 2001,1 was among the small number of White House
staff members who worked with members of the intelligence and law-enforcement
communities, alongside Members of Congress and their staffs, to draft legislation to
ensure that law enforcement and the intelligence community had the tools needed in the
fight against terrorism. That legislation became the USA PATRIOT Act.
At the Justice Department, 1worked on a program that 1have since learned is affiliated
with the CIA. Because that affiliation remains classified, 1 cannot describe my
involvement with that program here.

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ChiefofMission Authority
QUESTION 11:

22 U.S.C. 3927 states that: "Under the direction of the President, the chief of mission to a
foreign country... shall have full responsibility for the direction, coordination, and
supervision of all Gk)vernment executive branch employees in that country...." Absent
direction from the President, is the CIA obligated to cease intelligence activities that do not
have the approval of the chief of mission?

It is important for the CIA and the State Department to work together as partners. If confirmed, I
will work with the Legal Adviser to anticipate and resolve any disagreement with the State
Department over intelligence activities. Director Pompeo has also said that, if such a
disagreement were to arise, he would seek to resolve the issue with the Secretary of State. In the
extremely unlikely event that they were xmable to resolve the issue, the Directorwould promptly
seek further guidance from the President.

Surveillance

QUESTION 12:

Were you ever read into any of the components of the President's Surveillance Program
(PSP), as defined in the Report on the President's Surveillance Program by the Offices of
the Inspectors General of the Departments of Defense and Justice, the CIA and the NSA,
July 10,2009? If yes, please provide a date.

I do not recall being read into the TerroristSurveillance Program or any other aspect of the
President's Surveillance Program (PSP). Please see my responses to Questions 13-16 for a
descriptionof my best recollection of my involvement in classified intelligence activities related
to the PSP.

QUESTION 13:

Please describe any involvement you may have had with the PSP or its transition to EISA
authorities.

My work on the PSP began after the Presidentpublicly acknowledged one aspect of the program,
commonly known as the Terrorist Surveillance Program (TSP). At that time in December 2005,
I was working at the Justice Department as Deputy Chief of Staff to the Attorney General.
Starting that month and continuing into 2006, Executive Branch officials made a series of public
statements on the NSA activities described by the President. The Justice Department reviewed
and in many instances drafted those statements. I recall being involved in reviewing at least
some of those statements and discussing them with individuals inside and outside the
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Department. As Deputy Chief of Staff, I was involved, in particular, whenever the Attomey
Generalmade public statements about the TSP. The Department's Office of Legal Counsel
(OLC) had responsibility for describing the legal authorities that supported the TSP. I discussed
with OLCthe analysis contained in the statements, but I did not do my own independent legal
analysis.

As described in more detail below in response to Question 16,1 supported the effort during that
time periodto transition the presidentially authorized TSP activities to the authority of the
Foreign Intelligence Surveillance Act (EISA). Officials who were working closely on that
transitionwould providethe Attomey Generalwith periodic updates on their progress, and I
recallparticipating in at least some of those discussions. In addition, I had separate discussions
with Department officials aboutthe transition in an effortto keep the Attomey General fully
informed. I also likelyreviewed relatedmaterials such as orders or draft orders of the Foreign
Intelligence Surveillance Court, althoughI do not have a specific recollection of those materials
today.

During that time period. Department officials were also working on obtaining orders from the
FISA court to authorize collection of telephonecall detail recordspursuant to Section 215 of the
PATRIOT Act. I was generally aware of this effort. I do not have a firm recollection of my
involvement, but I believe it entailed a few discussions with individual(s) who were working
closely on the matter.

QUESTION 14:

Did you have any involvementin the development of the Department of Justice's public
defense of the PS? after its partial acknowledgment in December 2005? If yes, please detail
that involvement.

Please see my response to Question 13.

QUESTION 15:

On January 19,2006, the Department of Justice issued a White Paper entitled "Legal
Authorities Supporting the Activities of the National Security Agency Described by the
President." That White Paper stated that: "[t]he NSA activities are supported by the
President's well-recognized inherent constitutional authority as Commander in Chief and
sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy
forces for intelligence purposes to detect and disrupt armed attacks on the United States."
Do you believe that the program had a sufficient legal basis in the President's Article 11
authorities? If so, please elaborate.

Please see my response to Question 16.

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QUESITON 16:

The White Paper also stated that the September 18,2001, Authorizatioii for Use of Military
Force "confirmed and supplemented the President's recognized authority under Article II
of the Constitution to conduct such warrantless surveillance to prevent further
catastrophic attacks on the homeland." Do you believe that the AUMF authorized the
program? If so, please elaborate.

The White Paper of January 19,2006, was prepared by the Justice Department's Office of Legal
Counsel. I reviewedthe paper and discussedit with its authors and others, but I did not do my
own independentlegal analysis. I recall thinking at the time that its analysis was thorough and
carefully reasoned and that certain points were compelling. I also thought that the analysis of the
FISA provisions presented a difficult question and that reasonable minds could reach different
conclusions about it. I therefore supported the effort to transition the collection activities to be
undertaken pursuant to FISA authority and orders of the FISA court. Later, after I left the
Department, Congress modified relevant provisions of FISA, including certain provisions
interpreted in the White Paper, when it passed the FISA Amendments Act of 2008.
The White Paper concluded that the described NSA activities rested both on the President's

inherent Article 11 authorities and on the authority granted by the Congress in the 2001 AUMF.
I have not analyzed the hypothetical question of whether, in the absence of the AUMF, the
President's Article II powers alone would have provided a sufficient legal basis for the described
NSA activities, consistent with the then-existing statutory framework in FISA. I therefore am
not prepared to offer an opinion on that question.

QUESTION 17:

The White Paper stated that "[fjoreign intelligence collection, especially in the midst of an
armed conflict in which the adversary has already launched catastrophic attacks within the
United States, fits squarely within the area of 'special needs, beyond the normal need for
law enforcement' where the Fourth Amendment's touchstone of reasonableness can be
satisfied without resort to a warrant."

a. Do you believe that the NSA program violated the Fourth Amendment's warrant
requirement?

Although, as noted above, I did not conduct my own independent legal analysis of the
issues analyzed in the White Paper, I thought its analysis of the Fourth Amendment's
warrant requirement was solidly grounded in judicial precedent. As the Amendment's
text makes clear and as the Supreme Court has repeatedly said, the 'Tiltimate touchstone
of the Fourth Amendment is 'reasonableness.' " Riley v. California, 134 S. Ct. 2473,
2482 (2014) (internal citation and quotation marks omitted). When the TSP was initiated
and the White Paper was written, a number of courts had recognized a foreign
intelligence exception to the warrant requirement under appropriate circumstances. See,
e.g.. United States v. TruongDinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v.
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Brown, 484 F.2d 418 (5th Cir. 1973). Those decisions, and the Supreme Court precedent
on which they were based, supported the White Paper's conclusion that, under the
specific circumstances presented, the NSA activities were not subject to the Fourth
Amendment's warrant requirement.

b. Under what circumstances, if any, does national security allow for warrantless
collection under the ''special needs" doctrine when the collection would otherwise
require a warrant?

I have not done the legal research and analysis requiredto properly answer that question.
That analysis would start with the fact that searches govemed by the Fourth Amendment
must always be reasonable - whether analyzedunder a "special needs" exceptionor not.
Reasonableness, in turn, involves balancing " 'the degreeto which [a search] intrudes
upon an individual'sprivacy' " and " 'the degree to which it is neededfor the promotion
of legitimate governmental interests.' " Samson v. California, 547 U.S. 843, 848 (2006)
(quoting United States v. Knights, 534 U.S. 112, 118-19 (2001)). Courts conducting this
type of balancing in national securitycases have carefully consideredboth the privacy
interests and the national securityimperativesthat are at stake. See, e.g.. In re Terrorist
Bombings of U.S. Embassiesin East Africa, 552 F.3d 157,172-76 (2d Cir. 2008). As a
result, any FourthAmendment analysis is highly contextual, and a firm and complete
understanding of the facts is needed before one can reach a proper conclusion on the
application of the Fourth Amendment.

QUESTION 18:

The CIA's minimization procedures with regard to Section 702 of EISA state: "CIA
personnel may query CIA electronic and data storage systems containing unminimized
communications acquired in accordance with section 702 of the Act. [REDACTED] Such

queries must he reasonably designed to iSnd and extract foreign intelligence information.
CIA will maintain records of all such queries, including hut not limited to United States
person names and identities, and NSD and ODNI will review CIA's queries for content."
What is the role of the Office of the General Counsel in ensuring that queries are
"reasonably designedto find and extract foreign intelligence information" and identifying
and reporting compliance incidents?

I understand thatthe Office plays an important role in supporting the Agency's FISA compliance
program. I am told that CIA attorneys conduct in-person training on the minimization
procedures and are embedded with the operators to answer any question that may arise. OGC
lawyers knowto report any identified incident of noncompliance to the Department of Justice

andthe Office of the Director of National Intelligence. OGC lawyers alsoparticipate in those
agencies' firequent reviews of all of the CIA's U-S. person queries of Section702-acquired
contentto ensure that each querysatisfies the legal standard referenced in the question. By law,
any compliance incident is also reported to the Congress and to the ForeignIntelligence
Surveillance Court. If confirmed, I will ensurethat the Office continues this important work.

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QUESTION 19:

What limitations and reporting requirements apply to U.S. person queries of Section 702derived metadata?

As thePrivacy and Civil Liberties Oversight Board explained in its July 2014 report, the CIA's
currentprocedures prohibit CIA personnelfrom queryingSection 702-derivedmetadata for an
unauthorized purpose. SeeReport on theSurveillance Program OperatedPursuant to Section
702 oftheForeign Intelligence Surveillance Act (July 2, 2014), at 58. The Boardrecommended
that CIA revise itsminimization procedures to require thata U.S.-person-metadata query be
based ona statement of facts showing thatit is reasonably likely to retum foreign intelligence
information. Id. at 12,139-40. I understand thatthe CIA plans to implement that
recommendation.

QUESTION 20:

Section 702 of EISA prohibits "reverse targeting" of U.S. persons. Given that the CIA can
both nominate foreign targets and conduct U.S. person queries intended to return

communications of or about U.S. persons, how should the Office of General Counsel guard
against any instances of reverse targeting?

As the question notes. Section 702 prohibits "reverse targeting" of U.S. persons. I understand
that OGC lawyers, in coordination with theCIA's FISA Program OfFice, provide in-person
training on this prohibition. OCG lawyers alsoreview and approve everyCIAnomination and
facilitate the Department of Justice's regular compliance reviews, which specifically look for
indications of "reverse targeting."

These and other measures appear to be effective. After a thorough review, thePrivacy and Civil
Liberties Oversight Board saw "no trace" of any "illegitimate activity associated with the [702]
program, or any attempt to intentionally circumvent legal limits."SeeReport on theSurveillance

Program Operated Pursuant to Section 702 ofthe Foreign Intelligence Surveillance Act (July 2,
2014) at 11. Still, Director Coats has committed toreview how Section 702 is being
implemented to determine whether any changes should bemade to further strengthen compliance
and oversight, including withrespect to the reverse targeting prohibition.
QUESTION 21:

Do you believe the CIA should be authorized to monitor U.S. persons' social media
activities? If so, under what circumstances and subject to what limitations?

With its focus on foreign intelligence, the roleof the CIA, with respect to U.S. persons, is and

should belimited. The CIA may collect information that is publicly available concerning U.S.
persons onlyif it is done in the course of the CIA's dulyauthorized intelligence activities andin
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fulfillment of the CIA's national security responsibilities, and only if the collection complies
fully with the Constitution, federal statutes, andpresidential directives. In particular, the CIA's
collection, retention, and dissemination ofinformation concerning U.S. persons must comply
with its recently revised and publicly available Attorney General-approved guidelines, CIA
Intelligence Activities: Procedures Approved by theAttorney GeneralPursuant toExecutive
Order 12333 (Attorney General Guidelines).

Like Director Pompeo, I think publicly available information, including public posts onsocial
media, can provide important clues in identifying those.who seek to harm Americans here and

abroad. I also agree with Director Pompeo thattheFBI and other appropriate government
agencies have a duty to use publicly available social-media activities as part oftheir lawfully
conducted investigations orintelligence gathering, subject to applicable privacy and other legal
restrictions and regulations.

a. What specific legal authorities would provide the basis for such monitoring?
The National Security Act of 1947 and the CIA Act of 1949 authorize and direct the CIA

Director to conduct intelligence activities byappropriate means, not to include police,
subpoena, or law enforcement power or intemal security functions. The President,
through Executive Order 12333 andother Presidential directives, has given the CIA
Director intelligence-related duties and responsibilities and has also placed important
limitations on the CIA'sintelligence activities. TheAttorney General Guidelines,
described above, placefurther limitations on the collection, retention, and dissemination
of information concerning U.S. persons. Forexample, the CIA maynot collect
information concerning U.S. persons solely for thepurpose of monitoring activities
protected bythe First Amendment. See Attomey General Guidelines § 3.3. Collectively,
these and other rules are designed to keep the CIA's focus on itsforeign intelligence
mission while also protecting privacy.

QUESTION 22:

What limitations apply to the CIA's collection, use and dissemination of information
collected in bulk known to include U.S. person information?

Pursuant to applicable law and the Attomey General Guidelines, theCIA is permitted in some
instances to engage in "bulk" collection activities in furtherance of its duly authorized
intelligence activities and in fulfillment of the CIA's national security responsibilities. "Bulk"
collection activities are activities that, due totechnical oroperational considerations, acquire data

without the use ofspecific identifiers orterms {e.g., names, phone mnnbers, oremail addresses).
The recently revised and publicly available Attomey General Guidelines impose stringent and
detailed restrictions oninformation collected in bulk, as well asunevaluated information, which
is generally presumed to contain incidentally acquired information conceming U.S. persons.

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QUESTION 23:

In his responses to questions, Director Pompeo wrote, in the context of CIA collection of
U.S. person information from foreign entities, that "In very limited circumstances,
however, the manner in which a foreign partner collected the information could be so
improper that it would not be appropriate for the CIA to receive, use, or further

disseminate the information." What circumstances would prevent the CIA from receiving,
using or disseminating that information?

In response to further questions on this subject, Director Pompeo explained that, in the quoted
sentence, he was "indicating that [he] could not rule out a circumstance in which the conduct of a
foreign partner is so egregious that CIA would not receive the information." He went on to

explain that "this would be a highly fact-specific determination" which wouldconsider, among
other things, the source of the information, the intent of the foreign partner, the nature of the
information, and the scope of the information. Because the decision would be based on a

consideration of all facts and circumstances and because I have not had personalexperience with
sucha decision, I amunable to offeran opinion beyond what Director Pompeo has already said.

QUESTION 24:

Would the CIA's receipt of intelligence from a foreign entity, or its subsequent use or
dissemination of that intelligence be restricted if it is known to include the communications

of U.S. persons engaged in First Amendment-protected political activity, as opposed to
those of suspected terrorists or foreign agents?

Information aboutU.S. persons must be handledwith great care, in full compliance with
applicable law andprocedures. As noted above, the recentlyrevisedAttorneyGeneral
Guidelines place stringent and detailed restrictions on the CIA's retention, use, and
dissemination of information conceming a U.S. person. I understand those restrictions apply no
matter howthe CIA received the information and no matter what the U.S. personmaybe saying
in or doing with the collected communication. The Guidelines also prohibitthe CIAfrom
"collect[ing] or maintain[ing] information conceming U.S. persons solelyfor the purpose of
monitoring (1) activities protected by the First Amendmentor (2) the lawful exercise of other
rights secured by the Constitution or laws of the United States." Attomey General Guidelines §
3.3. TheGuidelines also prohibit the CIA from requesting that a foreign entity undertake any
activity that the Guidelines prohibit. Id.

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QUESTION 25:

Section IV ("Processing Raw SIGINT"), paragraph (C)(2) of the Procedures for the
Availability or Dissemination of Raw Signals Intelligence Information by the National

Security Agency Under Section 2.3 of Executive Order 12333 states that, when raw signals
intelligence is shared with IC elements, queries for communications reasonably likely to be
to, from, or about a U.S. person or a person located in the United States may be conducted
for purposes of targeting that person if the Attorney General determines that the person is
an agent of a foreign power or an officer or employee of a foreign power and the purpose of
the selection is to acquire significant foreign intelligence or counterintelligence information.
a. What rules apply for a query of a U.S. person that is not for purposes of targeting
that person? Is Attorney General approval required?
I have not had experience with the CIA's implementation of the Procedures for the
Availability or Dissemination of Raw Signals Intelligence Information by the National
Security Agency Under Section 2.3 of Executive Order 12333,or the application of rules
that apply to a query of shared raw SIGINT or of signals intelligence collected by the
CIA designed to retrieve information concerning a U.S. person.
I would note that the Attorney General Guidelines contain procedures that address
querying under certain situations, and I understand that additional protections or
enhanced safeguards may also be applied. If confirmed, I will consult with the
appropriate experts at the Agency on these issues, and I will seek to ensure each query is
conducted carefully, for authorized purposes, and in full compliancewith applicable legal
requirements.

b. Do the same rules related to queries of U.S. persons apply for signals intelligence
collected by the CIA (as opposed to shared raw SIGINT) and is Attorney General
approval required? If not, please describe those rules.

Please see response to subpart (a).

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Relations with Congress
QUESTION 26:

The "Gang of Eight" provision in the National Security Act (Section 503(c)(2)) applies to
covert action.

a. Are there circumstances in which the "Gang of Eight" briefings can apply to other
than time-sensitive tactical matters? If so, please elaborate.

Section 503 of the National Security Act provides that a presidential finding or
notifieation about a covert action may be reported to onlythe chairmen and ranking
minority members of the congressional intelligence committees, the Speaker and
minority leader of the House of Representatives, the majority and minority leaders of the
Senate, and such other member or members of the congressional leadership as may be
included by the President, "if the President determines that it is essential to limit access"

to the fmding or notification in order "to meet extraordinary circumstances affecting vital
interests of the United States." 50 U.S.C. § 3093(e)(2). Thus the statutory language does
not confine limiting access in this maimer only to circumstances involving "timesensitive tactical matters." However, as noted above. Director Coats has said that, based
on his experience, limitednotifications are often a matter of timing.
b. Are there circumstances in which it can be used to conceal from the full Committee

ongoing programs or significant legal analyses related to intelligence activities? If
so, please elaborate.

To invoke the so-called "Gang of Eight" provision, the President must determine that "it

is essential to limit access" in order "to meet extraordinary circumstances affecting vital
interests ofthe UnitedStates." 50 U.S.C. § 3093(c)(2) (emphasis added). That
determination would be highly fact specific. It would not be proper to use the provision
to withhold from the full committee information or legal analysis relatedto intelligence
activities in the absence of such a determination.

In addition, as noted in the response to subpart (c), the "due regard" language of Section
502 of theNational Security Act recognizes that, in other rare cases, it maybe necessary
to initially brief only the "Gang of Eight" or the leadership of the congressional
intelligence committees. It would not be proper to use that provision to withhold from
the full committee information unless the limited access was done for the "protection
from unauthorized disclosure of classified information relating to sensitive intelligence
sources andmethods andotherexceptionally sensitive matters." 50 U.S.C. § 3092(a).

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c. Are there circumstances in which the "Gang of Eight" provision would apply to
non-covert action. If so, what would be the statutory basis for such limited
notifications?

Section 503, by its terms, applies only to covert action. I understand that, in rare cases

involving particularly sensitive non-covert action matters, it may be necessary to initially
brief only the "Gang of Eight" or the leadership of the congressional intelligence
committees. The statutory basis for such limitednotifications is found in the language of
National Security Act's reporting provisions which specify that notifications be made
"consistent with due regard for the protection from unauthorized disclosure of classified

information relating to sensitive intelligence sources andmethods and other exceptionally
sensitive matters." 50 U.S.C. § 3092(a). In practice, if confirmed, I would look to

Director Pompeo and Director Coats, both former members of the congressional
intelligence committees, for guidance and historical practice. Director Coats recently
told this committee that he expected limited initial notifications for non-covert actions
would be rare.

Lethal Authorities

QUESTION 27:

In his responses to questions, Director Pompeo stated that "when the United States knows

in advance that the specific object of its [lethal] attack is an individual U.S. citizen, it
proceeds on the assumption that constitutional rights - in particular, the Fifth
Amendment's Due Process Clause and the Fourth Amendment's prohibition on
unreasonable searches and seizures - attach to the U.S. citizen even while the individual is

abroad. Those rights are considered in assessing whether it is lawful to target the
individual."

a. Please describe how the constitutional rights of U.S. citizens would be applied in this
context.

The UnitedStates government must consider the constitutional rights of a U.S. citizen
before targeting him or her for lethal action. Because I have not hadprevious experience
applying constitutional law in this context - where the United States is considering the
use of lethal force against a U.S. citizen abroad -1 cannot speak to the specific
application of constitutional principles in that context. As this committee knows, the
Justice Department has set forth in a white paper its detailed and authoritative framework

for that constitutional analysis. I can assure you, if I am confirmed and presented with
this issue, I would givethe matterand the required legalanalysis my utmost care and
attention, including consultation with the Department of Justice.

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b. Do these rights apply to non-citizen U.S. persons overseas?

Because I have not hadprevious experience with that issue, I have not done the necessary
legalresearch and analysis required to answer that question properly. If I am confirmed
and presented with this issue, I would againgive the question my utmostcare and
attentionand would seek the guidance of the Departmentof Justice.
Transparency and Congressional Notification
QUESTION 28:

What is the role of the Office of the General Counsel in ensuring that the CIA classification
decisions are consistent with Executive Order 13526?

I understand thatthe Office of the General Counsel provides legal advice to CIA officers on the
proper interpretation and application of Executive Order 13526, to ensure that CIA classification

decisions are consistent with that Executive Order. The Office is also called upon to explain and
defend the Agency's classification decisions in litigation.

QUESTION 29:

50 U.S.C. § 3349 requires notification of Congress in the event of an authorized disclosure
to the press or the public of classified information that has not otherwise been declassified.

Based on the law, do you see any exceptions to this notification requirement?
I have not had previous experience with 50 U.S.C. § 3349, and have not studied how it has been

interpreted andapplied. Butsubsection (d) appears to list fourexceptions to the notification
requirement. In addition, other exceptions may arise from other federal statutes orprinciples of
law.

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