April 21, 2017 The Honorable Ron Wyden The Honorable Martin Heinrich Select Committee on Intelligence United States Senate 211 Hart Senate Office Building Washington, D.C. 20510 Dear Senators Wyden and Heinrich; Thank you for your letter dated April 7, 2017. enclosed my responses to your questions. Please find I look forward to appearing before your committee on April 26, 2017. iSincerely, <^urtney^ liriwooa Enclosure Prehearing Questions for Ms. Courtney Elwood upon her nnminatinn to be General Counsel of the Central Intelligence Agency Senatmre Wvden and Heinrich Detention, Interrogation. Rendition and Human Riehts 1. Were you everread intoCIA's Rendition, Detention and Interrogation (RDI) Program? If yes, please provide the date. I did not work on, nor have knowledge of, classified aspects ofthe CIA's RDI program. 2. nease describe anyinvolvement you had with theRDI program as part of the White House Counsel's oflBce, the Office ofttieVice President, or at the Department of Justice. I did not work on, nor have knowledge of, the CIA's highly classified RDI program when I served as anAssociate Counsel to the President and asDeputy Counsel to the Vice President. I also did not work on, nor have knowledge of, classified aspects ofthat program when I served inthe Justice Department. Although I was therefore not privy to any connection between the classified program andproposed legislation, I didfollow developments onthelegislation that became theDetainee Treatment Act of 2005, and the Mihtary Comnussions Actof2006, through periodic updates fi'om theindividuals at the , Department who wereinvolved day-to-day on that legislation. 3. In response toCommittee questions, you stated that, at the Department ofJustice, youworked on ''cas^ involving the constitutionality of nationalsecurity programs and detentionof enemy combatantsand military commissions." Please Hpfail those cases and any other involvement you may have had with regard to detention matters, as part of the White House Counsel's office, the Office of the Vice President, or at the Department of Justice. Following September 11, 2001, the Justice Department was often htigating well over a hundred terrorism-related civil cases at any one time. Those court cases were assigned to difierent components within the Department, depending onthe particular nlaims at issue and the stage ofthe litigation. Well before I arrived at the Department, the Attorney General had established a task force within the Department composed ofrepresentatives from different components toensure that these cases were properly handled and coordinated. That task force was chaired by a lawyer from theAttomey General's Office and, in late2005,1 assumed that responsibility. Generally, myrole was to convene weekly meetings ofthe task force where participaints discussed significant developments in the court cases and to ensure that the Attomey General was kept informed ofany matters that required his personal attention. As I recall, some of the cases involved federal court habeas challenges to the detention of enemy combatants heldat • Guantanamo. With regard tomy work, if any, on other detention matters, please see my response to Question 2, which I incorporate by reference. In addition, I consulted with the Solicitor General and hisDeputies onmatters thatrequired the Attorney General's involvement or were noteworthy for some otherreason, including on significant natinnal security cases that the Department was litigating in the U.S. Supreme Court or in the U.S. Courts of Appeal. 4. Do youbelieve that any of the CIA'sformerenhanced interrogation techniques are consistent with the Detainee Treatment Act? I was not involved in, norhave 1reviewed, theJustice Department's legal analysis ofthat question, and 1have notdone the legal and factual research thatwould be required to properly answer it. I would note that the law governing interrogation haschanged significantly in the past decade. Among other things. Section 1045 of the National Defense Authorization Actfor Fiscal Year 2016provides that no individual in U.S. custody may be subjected to anyinterrogation technique or approach thatis not authorized by and listed in the Army Field Manual. 1fiilly support Director Pompeo's commitment to ensurethat, during his tenure, the CIA fully complies with the law governing interrogation, including the legal bar on the useof anyinterrogation method not listed in the Army Field Manual. 5. Do you believe that any ofthe CIA's former enhanced interrogation techniques are consistent with U.S. statutory prohibition on torture? Please see my response to Question 4. 6. Do you believe that anyofthe CIA's former enhanced interrogation techniques are consistent with the War Crimes Act? Please see my response to Question 4. 7. Do you believe that anyofthe CIA's former enhanced interrogation techniques are consistent with U.S. obligationsunder the Convention Against Torture, Common Article3 of the Geneva Convention and other U.S.treaty obligations? Please see my response to Question 4. 8. Have you readthe declassified Executive Summary of the Committee's Studyofthe CIA's Detention and Interrogation Program? Yes. 9. During hisconfiumation process, Director Pompeo committed to reviewing parts of toe classified CommitteeStudy relevant to the position of the Director of the CIA and the Committee. Will you likewise commit to reviewingparts of the classified Study relevant to the Office of the General Counsel? Yes, if confirmed. 10. In response to the Conunittee Study, then-Directox Brennan directed the General Counsel, working with the ExecutiveDirector, to "develop a formal merfianisni for triggerii^ systematic reviews of OLC opinions regarding ongoingcovert action programs with the goal of ensuring that OLC's legal analysis is confirmed or updated as warranted by materialchanges in facts and circumstances.'' Willyou commit to implementing this reform? I understand that the Office of the General Counselimplemented that reform in 2013. If confirmed, I commit to evaluating formyselfthatreform and its implementation. 11.In responses to questionsasked during her confirmation process, former CIA General Counsel Caroline Krass wrote: "In my view, CIA t^cers should not continueto participate in the interrogation of detaineesin liaison custody when harsh or extreme interrogation techniques are used. For example, CIA officers should not participate in any interrogations when they witness, know or otherwise suspect a detainee has been tortured or mistreated, as their participation could, depending upon the circumstances, result in violations of law or administrative restrictions." Do you agree? Yes. 12. The statutory prohibition on interrogations not consistent vnth the Army Field Manual apply to any individual "in the custody or under the effective control of an officer, employee, or other agent of the United States Government; or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict." a. Please describe the factors that would indicate whether a detainee was in the "effective control" of an officer, employee, or other agent of the United States Government. I have not previously had the opportunityto consider this issue. To determine whether a detainee is in the "effective control" of an officer, employee, or otheragentof the United States Government, I would begin bylooking to thecommon meaning of thephrase and to past practice, and I would consultwith the experts on the subject. I would also consider otherstatutes containing, andjudicial decisions construing, the same or similar language. b. Please describe how you would define whether a detainee is "detained within a facility owned, operated, or controlled by a department or agency of the United States." I have not previously had the opportunityto consider this issue. To determine whether a detainee is "detained within a facility owned, operated, or controlled by a department or agency of the United States," I would begin bylooking to the common meaning of the terms and to past practice, and I would consult with the experts on the subject. I would also consider any other statutes containing, and judicial decisions constraing, thesame or similar language. 13. To the extent thatthe CIA participates in any updates ofthe Army Field Manual, do you agree to oppose any techniques that involve use or threat of force, as stipulated in theNational Defense Authorization Actfor Fiscal Year 2016 (P.L. 114-92)? Yes. 14. The United States recognizes its obligation, under theConvention Against Torture, not to "expel, return ('refouler') or extradite a person to another state where there are substantial grounds for believing that he would bein dangerofbeing subjected to torture." a. Towhat extent does U.S. compliance with thisobligation depend on "diplomatic assurances" provided by countries to which detainees may be extradited or rendered? I understand that diplomatic assurances have been a valuable tool for ensuring that detainees aretreated humanely. I also understand that the decision to rely on a diplomatic assurance is assessed ona case-by-case basis in light of all therelevant factors, including the practices of the country providing the assurzinces as well as rhaf country's record of complying withsimilar assurances provided to the United States and other countries. b. Should those assurances beconveyed in writing, so that a record oftheirprovision and receipt is established? As noted in response to subpart (a), the decision to rely on an assurance is assessed on a case-by-case basis, andI assume would entail considering the need for the assurance to beconveyed inwriting. That consideration might depend on, among other things, the identity of the government providing the assurances andthe nature of the situation to which the assurances relate. c. Should such assurances be accepted from countries with established records of committing torture? Under section 2242(a) of the Foreign Affairs Reform and Restructuring Act of 1998, it is the stated policy of the United States "notto expel, extradite, or otherwise effect the involuntary return ofany person to a country inwhich there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States." 8 U.S.C. § 1231 note. The decision torely an assurance would beassessed on a case-by-case basis in light ofall the relevant factors. d. What is the role of the Office of General Counsel in ensuring that "diplomatic assurances" tiiat detainees will not be subject to torture are credible? I amnotfamiliar with the specific rolethatthe Office of the General Counsel has played in connection with the decision to rely on diplomatic assurances. If confirmed, I will work to ensure thatthe Office is providing the advice mid support necessary to ensme that CIA officers fiilly and faithfully comply with applicable law. 15. In an August 6,2015, letter to Senators Wyden, Heinrich and Hirono, (hen-Director of the CIAJohn Brennan said that, "Whileweneither condonenor participate in activities that violatehuman rights standards, we do maintain cooperative liaison relationships with a variety of intelligence and security services around the world, some of whose constituent entities have engaged in human rights abuses." a. If a liaisonservice were to use CIA-provided resources to engagein human rights abuses, would the CIA bear any legal responsibility? I have notpreviously hadthe opportunity to consider thatquestion. I imagine that the CIA's legalculpability, if any, would turn on the specific facts and applicable law. b. Would the CIA have a l^al responsibility to end or modifyits relationship with a liaison service in such a scenario? I understand that the CIA has developed policies and procedures, coordinated with the Office of the Director of National Intelligence, on handlingrelationships with foreign liaison services whoare alleged to haveparticipated in human rights violations. Director Brennangenerally described that procedure in his letter of August 6,2015. Director Pompeo has further explained that, under his direction, each decision regarding the costs andbenefits of working witha liaison service alleged to have engaged in human rights abuses will continue to be weighedon an individual, cjise-by-case basis, would consider the unique utility or specific access of therelationship and the risk of future potential human rights abuse. Chief ofMission Authority 16.22 U.S.C. 3927requires that chiefsof mission"shall be kept fully and currently informed with respect to all activities and operations of the Gk>vemment within that country," including the activities and operations of the OA. As described in the Executive Summary of the Committee Study of the CIA's Detention and Interrogation Program, in two countri^, U^S. ambassadors were informed of plans . to establish CIA detention sites in the countries where they were serving only after the CIA had already entered into t^eements with the countries to host the detention sites. Didthe failure to inform chiefs of mission prior to entftring Into agreements with the host countries violate 22 U.S.C. 3927? It is important for the CIA and the State Department to work together aspartners, both in Washington and in the field. Although I do not have aU the facts needed to answer the specific question, I agree with Director Coats who stated in response to questions thatit is critical for the Chief ofMission to be informed ofintelligence operations that may affect diplomaticrelationships. 17.In two other countrieswhere negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. amhassadoi^. Did the CIA's direction to local government officialsnot to inform the U.S. chiefs of mission violate 22 U.S.C. 3927? Please see my response to Question 16. Surveillance 18. What differences, if any, exist with regard to CIA access to, queries of,and use, dissemination and retention of U.S. person communications collected pursuant to Executive Order 12333 as compared to communications collected pursuant to Section 702? Information about U.S. persons must always be handled withgreatcare, in full compliance with U.S. law and presidentialdirectives. In both cases - whether the communication was collected pursuant to Executive Order 12333 or pursuant to Section 702 - specific restrictions govern the CIA's retention, use, and dissemination. The requirements implementing E.G. 12333 are contained in the recently revised and publicly available Attorney General-approved guidelines, CIA Intelligence Activities: Procedures Approved by the Attorney General Pursuant to Executive Order12333 (Attorney General Guidelines). The Attomey General Guidelines also incorporate Congress's specific instructions in Section 309of the Intelligence Authorization Act for Fiscal Year 2015, regarding the protection of U.S. person communications. In addition, forU.S. person communications collected under Section 702, furthercourt-approved miriiniization procedures apply. 19.Please d^crihe the rules under which the CIA would approve requests for the unmasking of U.S. person identities in disseminated CIA products. The CIA's Attomey General Guidelinesplace stringent and detailed restrictions on the CIA'sretention, use, and dissemination ofinformation concerning a U.S. person. I understand that, when the CIA disseminates information concerning a U.S. person outside the Intelligence Community, the Attomey General Guidelines generkly require the CIA, to the extent practicable, to remove any identifying information unless (1) the information is necessary, or itis reasonably believed that the information may become necessary, tounderstand, assess, oract onthe information being disseminated and (2) the information fits within one ofthe specific categories listed in sections 7 and 8.2.1 of the Attorney General Guidelines. I understand that the same criteria would govern afollowup request for additional information regarding the identity ofa U.S. person. Additional protections or prohibitions may apply in some circumstances. For example, information collected under the Foreign Intelligence Surveillance Act may be disseminated only pursuant to court-approved ininiinization procedures. If confirmed, I look fmward to learning about the application ofthese requirements inpractice. Lethal Authorities 20. On December 2,2015, now-President Donald Trump stated the following: "The other thing with the terrorists is you have to take out their families, when you get these terrorists, you have to take out their families. They care about their lives, don't kid yourself. When ttiey say they don'tcare about their lives, you have totake out their families." Do you ^ee that this would he a violation of U.S. and international law? The intentional targeting of persons notpresenting a threat to the United States or its allies, orpersons who are not otherwise lawful targets under existing law, would implicate a variety of laws. If confirmed, I will work to ensure that all activities of the CIA fully and faithfully comply with the Constitution and U.S. law.