[Senate Hearing 107-841]
[From the U.S. Government Publishing Office]


                                                         S.Hrg. 107-841
 
                     NOMINATION OF SCOTT W. MULLER
                      TO BE GENERAL COUNSEL OF THE
                      CENTRAL INTELLIGENCE AGENCY
=======================================================================

                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                            OCTOBER 9, 2002
                            OCTOBER 16, 2002

                               __________

      Printed for the use of the Select Committee on Intelligence


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                    SELECT COMMITTEE ON INTELLIGENCE




                      BOB GRAHAM, Florida Chairman
                 RICHARD SHELBY, Alabama, Vice Chairman
CARL LEVIN, Michigan                 JON KYL, Arizona
JOHN D. ROCKEFELLER IV, West         JAMES M. INHOFE, Oklahoma
    Virginia                         ORRIN G. HATCH, Utah
DIANNE FEINSTEIN, California         PAT ROBERTS, Kansas
RON WYDEN, Oregon                    MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          FRED THOMPSON, Tennessee
EVAN BAYH, Indiana                   RICHARD G. LUGAR, Indiana
JOHN EDWARDS, North Carolina
BARBARA A. MIKULSKI, Maryland

              Thomas A. Daschle, South Dakota, Ex Officio
                  Trent Lott, Mississippi, Ex Officio

                     Alfred Cumming, Staff Director
                  Bill Duhnke, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk








                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held in Washington, D.C., October 9, 2002................     1
Statement of:
    Bond, Hon. Kit, a U.S. Senator from the State of Missouri....     4
    Graham, Hon. Bob, a U.S. Senator from the State of Florida...     1
    Muller, Scott W., Nominee to be General Counsel of the 
      Central Intelligence Agency................................     5
Supplemental Materials:
    Senate Select Committee on Intelligence Questionnaire for 
      Completion by Presidential Nominees........................    23
    Comstock, Amy L., Director, Office of Government Ethics, 
      letter to the Honorable Bob Graham, Chairman, Select 
      Committee on Intelligence dated September 6, 2002..........    69
    Financial Disclosure report of Scott W. Muller...............    70
    Muller, Scott W., letter dated September 4, 2002.............    91
    Rizzo, John A., Designated Agency Ethics Official CIA, letter 
      dated 
      September 5, 2002..........................................    94
    Muller, Scott W., letter dated October 8, 2002...............    96
Hearing held in Washington, D.C., October 16, 2002...............    97


                     NOMINATION OF SCOTT W. MULLER



                      TO BE GENERAL COUNSEL OF THE



                      CENTRAL INTELLIGENCE AGENCY

                              ----------                              


                       WEDNESDAY, OCTOBER 9, 2002

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 9:37 a.m., in 
room SH-216, Hart Senate Office Building, the Honorable Bob 
Graham (Chairman of the Senate Select Committee on 
Intelligence) presiding.
    Committee Members Present: Senators Graham and Rockefeller.

            OPENING STATEMENT OF SENATOR BOB GRAHAM

    Chairman Graham. The Committee will come to order.
    Today's hearing of the Select Committee on Intelligence is 
for the single purpose of receiving testimony from the 
President's nominee for the position of General Counsel of the 
Central Intelligence Agency, Mr. Scott W. Muller. Mr. Muller, 
we welcome you and thank you for coming today, particularly on 
such short notice.
    Mr. Muller. Thank you, Senator.
    Chairman Graham. We also welcome Mr. Muller's wife, 
Caroline, and two of his three children, Christopher and Pete, 
as well as his present and former assistants, Anna Corrales, 
Barbara Doan and Karen Baker, who are all here indicating their 
support. Would the family please stand and be recognized. Thank 
you very much.
    Mr. Muller is currently the managing partner of the 
Washington, D.C., office of the law firm of Davis, Polk & 
Wardwell. His law practice has included complex litigation 
matters that contain securities, antitrust and criminal 
aspects.
    Mr. Muller also served as an Assistant U.S. Attorney in the 
Southern District of New York from 1978-1982. We heard 
testimony yesterday from Mary Jo White, formerly the U.S. 
Attorney for the Southern District. This was part of our joint 
inquiry into the events of September 11. I know that the 
Southern District prosecutors are among the best and most 
highly recognized Federal prosecutors in the country.
    We hope Mr. Muller will elaborate today in his statement 
and in response to questions from the Members of the Committee 
on what he has learned in his career that has prepared him to 
be the General Counsel for the Central Intelligence Agency.
    If confirmed, Mr. Muller would be only the second CIA 
General Counsel to go through the confirmation process. 
Congress amended the Central Intelligence Agency Act of 1949 in 
1996 to require that the person to fill this position be 
selected with the advice and consent of the Senate. This 
reflects the importance we attribute to the functions performed 
by the CIA General Counsel.
    With the critical role played by the agencies of the 
intelligence community in the war on terrorism and, perhaps 
soon, the war on Iraq, now more than ever the CIA must have a 
strong General Counsel. This is, in part, the reason that we 
are holding this special meeting of the Committee today to hear 
from Mr. Muller, in hopes that we can expedite this process so 
that he will be able to assume his position prior to the 
adjournment of Congress.
    I am certain that Mr. Muller knows the role of lawyers at 
the CIA has evolved over the last 25 years. In the early 1970s 
there were only a handful of lawyers in the CIA. Today there 
are approximately 100. In the Counterterrorism Center alone the 
number has gone from one as recently as 1997 to seven today.
    This growth reflects the fact that after the Pike and 
Church Committees in the late 1970s completed their review of 
the performance of the intelligence agencies, intelligence 
operations became, as has been referred to, a heavily regulated 
industry.
    Executive Order 12333, first issued by President Ford in 
1976, created a set of guidelines for operations--particularly 
those against U.S. persons and those conducted inside the 
United States. The CIA and the FBI have classified regulations 
that further guide operations.
    These complex sets of rules need lawyers to interpret and 
apply them to day-to-day operations--and they must do it 
quickly, and they must get it right. Officers in the 
Directorate of Operations need lawyers they trust so that they 
can go about their business devising and implementing 
aggressive operations that will help us thwart the terrorists 
before they can do us harm.
    On that point, I would like a moment to speak about the 
issue of cautious lawyering at the CIA. I know from my work on 
this Committee for the past 10 years that lawyers at CIA 
sometimes have displayed a risk aversion in the advice they 
give their clients, particularly some of the lawyers assigned 
to the posts in the Directorate of Operations.
    Unfortunately, we are not living in times in which lawyers 
can say no to an operation just to play it safe. We need 
excellent, aggressive lawyers who give sound, accurate legal 
advice, not lawyers who say no to an otherwise legal operation 
just because it is easier to put on the brakes.
    I also know that the lawyers assigned to the Directorate of 
Operations are not always perceived as part of a team by their 
clients but, rather, a hurdle that must be surmounted before 
the operators can do their jobs. Team work requires mutual 
respect and I hope, if confirmed, that you will instill that in 
your lawyers.
    The previous General Counsel came before this Committee in 
a public hearing last year on the U.S.A. Patriot Act 
intelligence-related provisions and asserted that the officers 
in the Directorate of Operations needed ``adult supervision'' 
by their lawyers. As you might imagine, that comment was not 
well received at the Directorate of Operations. In my opinion, 
the Directorate of Operations officers are performing the most 
adult jobs in our Government today.
    I hope that if you are confirmed, Mr. Muller, you will 
instill in your lawyers the need to be a team player and to 
give cutting-edge legal advice that lets the operators do their 
jobs quickly and aggressively within the confines of law and 
regulation.
    We are joined this morning by my good friend and former 
colleague in the State House, Senator Kit Bond of Missouri. I 
know the close friendship that he has with Mr. Muller because 
he's been telling me about it on a daily basis for the last 6 
weeks.
    Senator Bond.
    [The prepared statement of Senator Bond follows:]
                   Prepared Statement of Senator Bond
    Good Morning Mr. Chairman, Members of the Committee. Thank you for 
the opportunity this morning to appear before the Intelligence 
Committee on behalf of Mr. Scott Muller.
    President Bush's nomination of Mr. Muller to the position of 
General Counsel of the CIA reflects careful deliberation and 
consideration on the part of the President for this important position.
    The Central Intelligence Agency, in addition to the entire 
Intelligence Community, now more than ever, faces the daunting and 
paramount task of gathering effective and reliable intelligence as we 
conduct the war on terror.
    Currently, in an effort to fulfill this paramount task, the 
relationships and interactions between the various entities within the 
Intelligence Community are being reexamined and restructured in an 
effort to facilitate more effective and reliable intelligence 
gathering.
    Throughout this reexamination, the CIA General Counsel will need to 
have an understanding of the laws governing these relationships. In 
addition, the CIA Counsel will need to be capable of carrying out 
careful and thorough analysis of all the legal ramifications of 
intelligence and law enforcement collaboration.
    I am convinced Scott Muller's extensive legal experience and 
training will afford him the ability to provide proactive, timely, 
objective and independent advice to the agency and the Intelligence 
Community, consistent with the laws and the Constitution of the United 
States.
    Scott began his higher education at my alma mater, Princeton 
University, graduating cum laude with a Bachelors degree in 1971. From 
there, he went on to Georgetown University Law Center earning his J.D., 
making Law Review and Law Review Executive Board.
    Since that time, Scott has distinguished himself amongst his 
colleagues in the legal community. For the past 24 years, he has been a 
litigator at Davis Polk & Wardel specializing in representing Fortune 
100-sized companies conducting what can best be described as ``crisis 
management.'' Scott is no stranger to being thrown into high-pressure, 
high-stakes legal arenas that have put his legal and managerial 
abilities to the test. His ability to assimilate quickly and then 
master new and multiple subject matters would serve the CIA and 
Intelligence Community well as it attempts to reexamine and restructure 
its collaborative sharing and intelligence gathering abilities.
    Among Scott's many honors and awards, he has received:
     FBI Commendation and Department of Agriculture 
Commendations
     One of New York Law Journal's ``Rising Stars in 13 of New 
York's Largest and Most Prestigious Law Firms''
     Included in ``Guide to The World's Leading White Collar 
Crime Lawyers''
     International Who's Who of Business Crime Lawyers
    Scott's interest in national security can be traced back to the 
mid-1980s when he served as a member of the Arms Control and National 
Security Affairs Committee of the Association of the Bar of New York 
City. He has over 25 years of experience with the Federal Criminal Law 
Enforcement process as a prosecutor, teacher, and defense lawyer and 
has worked extensively with general counsels of large organizations. 
After serving with the Watergate Special Prosecution Force, he:
     Clerked in the United States Court of Appeals for the 
Third Circuit.
     Was an Assistant United States Attorney in the Southern 
District of New York from 1978 to 1982
     Served as the Vice Chairman of the American Bar 
Association's White Collar Crime Committee
     Was Adjunct Professor at the Georgetown University Law 
Center where he taught an advanced course in Federal Law Enforcement.
    Mr. Chairman, Members of the Committee, it is for all of the 
aforementioned reasons in my statement this morning that I am confident 
my colleagues on both sides of the aisle will approve the nomination of 
Scott Muller to the position of General Counsel of the Central 
Intelligence Agency.
    The emerging challenges before the Intelligence and Law Enforcement 
Communities that will surface throughout their reexamination and 
restructuring will necessitate the talents and legal expertise of folks 
like Scott.
    Thank you again Mr. Chairman and Members of the Committee.

             OPENING STATEMENT OF SENATOR KIT BOND

    Senator Bond. Mr. Chairman, thank you very much for your 
very thoughtful and carefully worded guidance to the General 
Counsel's position. Most of all, thank you for conducting this 
hearing so promptly. I know the President and the 
Administration are very grateful that you are moving 
expeditiously because, as you indicated, this is a position of 
paramount importance given the challenges we face in the 
international and national arena today.
    In the interest of full disclosure, I will tell you that 
even though Mr. Muller lives in Maryland and practices in New 
York and Washington, D.C., I am here as a Senator from Missouri 
to offer my highest commendations. His son and my son were in 
high school together and now in college together and 
furthermore my wife has known him longer than I have, and I 
would say on behalf of Linda and Sam, he has their highest 
endorsement, and that's just one of the reasons I'm here today.
    The most important reason, obviously, is that President 
Bush's nomination of Mr. Muller to the position of General 
Counsel reflects, I think, careful deliberation and 
consideration on the part of the President for this important 
position. As you have indicated, Mr. Chairman, the Central 
Intelligence Agency, in addition to the entire intelligence 
community, now more than ever faces the daunting and paramount 
task of gathering effective and reliable intelligence as we 
conduct the war on terror.
    I have many more things to say about Mr. Muller that I will 
submit for the record because of the time constraints, but I 
think you've indicated that the CIA General Counsel will need 
to have an understanding of the laws governing these 
relationships, and the Counsel will need to be capable of 
carrying out careful and thorough analysis of all the legal 
ramifications of intelligence and law enforcement 
collaboration, not simply being the abominable no-man, but 
providing the best advice on how to comply with all the laws to 
get the job done.
    I'm convinced that Scott Muller's extensive legal 
experience and training will afford him the ability to provide 
proactive, timely, objective and independent advice to the 
Agency and the Intelligence Community consistent with the laws 
and the Constitution of the United States.
    Scott began his higher education at Princeton University, 
graduating cum laude in 1971, and from there he went to 
Georgetown University Law Center, earning his J.D., where he 
served on the Law Review and the Executive Board of the Law 
Review. Since that time he has distinguished himself among his 
colleagues in the legal community, for the past 24 years as a 
litigator at Davis Polk & Wardwell.
    He has received the FBI commendation, the Department of 
Agriculture commendations. His interest in national security 
can be traced back to the 1980s, when he served as a member of 
the Arms Control and National Security Affairs Committee of the 
Association of the Bar of New York City. He has also clerked in 
the U.S. Court of Appeals for the Third Circuit, and, as you 
indicated, was an Assistant U.S. Attorney.
    Mr. Chairman, Members of the Committee, for all the 
aforementioned reasons I am confident my colleagues on both 
sides of the aisle will consider this nomination carefully and 
approve the nomination of Scott Muller to be the General 
Counsel of the Central Intelligence Agency. I again offer my 
sincere thanks to the Committee for the expeditious hearing, 
and I offer any assistance I can in moving this nomination 
forward. Again, Mr. Chairman, my sincere thanks.
    Chairman Graham. Thank you very much, Senator. We are being 
joined by Senator Rockefeller. Senator Rockefeller, Senator 
Bond has just introduced Mr. Muller, and we are prepared to 
turn to his statement unless you would like to make an opening 
statement.
    Senator Rockefeller. No.
    Chairman Graham. Mr. Muller.

   STATEMENT OF SCOTT W. MULLER, GENERAL COUNSEL-DESIGNATE, 
                  CENTRAL INTELLIGENCE AGENCY

    Mr. Muller. Thank you, Mr. Chairman, Senator Rockefeller. 
Let me start, Mr. Chairman, by thanking you and the 
distinguished Members of this Committee for giving me this 
opportunity to appear before you and to make this introductory 
statement. I am honored that the President has nominated me to 
the position of General Counsel of the Central Intelligence 
Agency.
    The privilege I feel in being asked to serve is 
particularly great because this is an extremely challenging 
time for the Agency, the Intelligence Community, and the Nation 
as a whole. The laws governing the relationships between the 
Intelligence and Law Enforcement Communities and the practices 
of those communities are undergoing rapid and substantial 
change. A new and fresh perspective is being brought to 
balancing the need for collaboration and the simultaneous need 
to respect constitutional values and, in particular, the 
Intelligence Community is being asked to coordinate more 
closely than ever with criminal investigators and prosecutors 
on the domestic side and overseas.
    This re-examination is taking place in a real-time crisis 
situation where there are continuing, simultaneous demands on a 
number of fronts and a critical need for judgment, management 
skill and a collaborative spirit in the Office of General 
Counsel.
    For 24 years, I have been a litigator at Davis Polk & 
Wardwell specializing in representing Fortune 100-size 
companies and others at times when they were immersed in crisis 
and felt that they were under siege. A major part of my 
practice and experience can best be described as crisis 
management. I have frequently been asked to walk into fast-
moving, high-pressure, high-profile legal disaster areas, to 
assemble and manage large teams of lawyers and other experts, 
to work within new and complex institutional structures, to 
collaborate, as appropriate, with those representing diverse 
interests and to guide my clients' responses on multiple fronts 
simultaneously.
    I've had the opportunity to engage and, I trust, to master 
new subject matters, often extremely complex and usually 
technical, if not arcane, and to do so under severe time 
constraints. I've also had the opportunity to advise numerous 
large institutions on the establishment of legal compliance 
programs designed to avoid violations of law while at the same 
time giving business executives the tools they need to perform 
their jobs effectively. To add a word here, I might say that 
it's not cautious advice that's part of that; it's careful and 
timely advice. That's the critical element.
    The central part of my practice for the last 25 years has 
been Federal criminal law and enforcement, and my experience in 
that area is current and extensive. After serving with the 
Watergate Special Prosecution Force, I clerked in the U.S. 
Court of Appeals for the Third Circuit. I was an Assistant U.S. 
Attorney in the Southern District of New York from 1978 to 
1982. I served as the vice chairman of the American Bar 
Association's White Collar Crime Committee and as an Adjunct 
Professor at Georgetown University Law Center, where I taught 
an advanced course in Federal law enforcement. More 
importantly, the vast majority of my cases have involved 
Federal criminal law and interaction with Federal prosecutors 
and other Federal regulators at all levels.
    I believe that the job of General Counsel of the Central 
Intelligence Agency is to provide timely, objective and 
independent advice to assist the DCI, the Agency and the 
community as a whole in accomplishing their missions 
effectively and doing so in a way that is fully consistent with 
the laws and Constitution of the United States. I view a 
critical part of that job as working with this Committee and 
its House counterpart as you fulfill your important oversight 
responsibilities.
    I am enthusiastic about the opportunity to serve. I look 
forward to answering your questions and providing whatever 
information you feel may be necessary or that you may find 
useful as you consider my nomination. If confirmed, I look 
forward to working with you on the important matters that face 
the Central Intelligence Agency, the intelligence community, 
this Committee and its House counterpart, and as I said before, 
the Nation as a whole.
    Thank you, Mr. Chairman. I'm prepared to answer any 
questions you may have.
    Chairman Graham. Thank you, Mr. Muller. We will proceed 
with questions on a 5-minute rotating basis.
    As I indicated to you in our remarks before the hearing 
commenced, I was very impressed with the file that I had the 
opportunity to review. You have an impressive background. One 
question that would be raised in reviewing that is the fact 
that you have not had much previous experience in intelligence 
or intelligence-related activities. Could you tell us what you 
think in your background has best prepared you to assume this 
responsibility?
    Mr. Muller. Yes, Senator. I think that's a fair and 
appropriate question and I thank you for asking it. To start, I 
have no direct intelligence or national security experience. I 
have in the vast majority of my cases, however, specialized in 
mastering new subjects--often extremely complex subjects--in 
very short periods of time. That has been the essence of my 
practice over the past 25 years, and the range of subjects has 
been quite broad.
    In addition to that, as I said in my opening statement, I 
have come to specialize over time in what, as I've said, can 
best be described as crisis management, which essentially has 
meant going into very difficult situations with multiple 
challenges at the same time. Often I'll have the media, Federal 
investigators, Securities and Exchange Commission or civil 
anti-trust authorities, foreign investigators--every kind of 
possible challenge to an entity--all at the same time, all 
happening sometimes with lightening speed and be called in to 
try to marshal the resources necessary to deal with that 
problem. Often that involves hiring multiple law firms--
literally organizing and managing hundreds of lawyers--and then 
in a very brief time understanding the facts, and often brand 
new law, in a way which I can then advise on how best to 
respond on those fronts at the same time.
    Finally, and I think perhaps most importantly given the 
changes that are underway in the Intelligence Community, and as 
we re-examine the national security organization generally, I 
have an extensive experience in law enforcement--both as a 
former prosecutor, but again, most recently and more 
importantly, as a defense lawyer. I am fully conversant with 
the way the Federal investigative system works with FBI agents. 
I think I would have a credibility in dealing with them and 
understanding their problems and the interactions in a way 
which, while not unique, will be of extraordinary importance.
    Let me say as well that I asked myself this question when I 
was first approached about the possibility of serving as 
General Counsel of the Central Intelligence Agency, and I asked 
it on a number of occasions through the process in which I was 
interviewed. I've spoken now to four former General Counsels of 
the--and did speak prior to accepting the nomination--four 
prior General Counsels of the Central Intelligence Agency and 
the Acting General Counsel now. I spoke to two of the witnesses 
you had here before you yesterday, both of whom are my friends, 
Louis Freeh and Mary Jo White. I spoke to a former head of the 
Central Intelligence Agency and I spoke to the gentleman who is 
now the General Counsel for the National Security Council.
    Each and every one of them told me--and also a former 
Attorney General who is a friend--each and every one of them 
told me that in their view the most important requirement for 
the General Counsel of the Central Intelligence Agency is 
judgment and maturity and the ability to make decisions quickly 
but properly. I have no illusions about how much there is to 
learn. Clearly it's a lot. I also have no doubt that I can do 
it and do it well.
    Chairman Graham. Thank you, Mr. Muller. That was very 
reassuring statement. You are going to face a number of 
challenging legal issues should you be confirmed. One of those 
that has been discussed repeatedly, including yesterday by 
former FBI Director Louis Freeh and former U.S. Attorney for 
the Southern District of New York, has to do with the wall 
between law enforcement and intelligence. We have found 
instances where that wall has been so impenetrable as to keep 
information that would have been valuable, potentially even 
change the course of events, from passing in one direction or 
the other.
    There were some significant changes made in the law as part 
of the U.S.A. Patriot Act that was adopted in October of last 
year. At this stage, do you have any comments to make, 
including from your experience as a U.S. Attorney, as to how 
that wall of separation should be either modified, dismantled, 
strengthened?
    Mr. Muller. Well, let me start, Senator, by saying that I 
think the changes that were made in the U.S.A. Patriot Act were 
clearly necessary in light of the events of September 11 and I 
think have gone a long way toward creating at the operational 
level the kind of sharing and collaboration that this Committee 
and the Intelligence Community and the Bureau and law 
enforcement think need to occur. There's a lot of work left to 
be done.
    The wall that originally existed obviously had its basis in 
experience. The concept essentially was that to the extent 
there was a merger of foreign intelligence and law enforcement 
there would be both the incentive and the opportunity for 
abuse. But we now live in a world that's different than when 
that wall was first erected.
    First, unlike the days prior to the Church and Pike 
investigations, there is now Congressional oversight that is 
effective and extensive. In addition to that, the nature of the 
threat has changed dramatically. The distinction between 
domestic and foreign is difficult to apply in a world where the 
threats are truly transnational, just as the distinction 
between law enforcement and intelligence is difficult to 
sustain when the line between war and peace has essentially 
been eroded in the way that it has.
    Obviously, it's going to be a critical issue going forward 
to continually re-examine the relationship between domestic law 
enforcement and domestic activities on the one hand and foreign 
on the other. There are clearly things that can be done now, 
some of the issues relating to the FISA that are being 
litigated before the court that need to be examined, but as a 
general matter, while keeping an eye on the reasons why the 
wall was essentially erected in the first place, clearly we're 
moving toward other ways of achieving the goals of protecting 
U.S. civil liberties interest while getting the job done.
    Chairman Graham. Thank you very much, Mr. Muller.
    Senator Rockefeller.
    Senator Rockefeller. Thank you, Mr. Chairman. I bid you a 
good day.
    Mr. Muller, a couple of things. I think that essentially in 
life people have two parts to them. You get this all for free.
    Mr. Muller. My children are getting it, too.
    Chairman Graham. Senator Rockefeller might charge tuition 
for your children--always mindful of the family treasury.
    Senator Rockefeller. That's right. Always looking for more.
    [Laughter.]
    Senator Rockefeller. In other words, the skill sets that 
they're trained with and then sort of the way they adapt to how 
life puts them into a different circumstance. Skill sets--this 
is still a continuation of the Chairman's question--skill sets 
are powerful. Now, as Senators we have to manage time and all 
kinds of things. Lots of people have to do that. When a lawyer 
says I can manage time, get a hundred lawyers together, react 
to a crisis, and walk into a situation and master it, that's 
important. It was reassuring to the Chairman and it doesn't un-
reassure me, but I want to probe a little bit further.
    If you don't know about a subject, there is a price. I'll 
just pick an example out of the air. You can have mastery of 
the history of China, for example, but if you don't speak 
Chinese or if you don't speak several of its dialects, talking 
about this Agency, you're disadvantaged. Because it means that 
Mao Tse-dong, for example, could never, was never understood by 
more than one-third of the people of China because of the 
dialect and the province that he came from when he spoke.
    So for a lawyer for the CIA, General Counsel for the CIA, 
the skill set has to be, I think, quite broad. In your case 
it's a set of instincts as to how to gather together the 
threads needed to use, as you say, good judgment, common sense, 
as the others said, good judgment and common sense. I'm not 
questioning whether that's enough, but I'll just give you an 
example then, ask you to respond. I've used this several times 
before.
    We had here in open session not long ago a Minneapolis FBI 
agent and he had been dealing with the Moussaoui case. He had 
two choices. Moussaoui was working under an expired French 
visa, of that nature. Thus, he had broken the law and, 
therefore, law enforcement said, ``you go get that person.''
    Now there was another choice he could have made, which was 
to say, I know that this person, I suspect that this person has 
terrorist ties and, therefore, rather than nailing him for what 
I know I can get him on, wouldn't it be more useful for me to 
surveil him, to see who he has lunch with--to figure out, just 
to watch over a period of months what his interaction is and 
who he sees. In fact, this gets more and more important as we 
get more into all of this.
    He clearly, resolutely, proudly, definitively picked the 
first course and rejected the second, in his testimony to us. 
It's that I think that the Chairman and I are thinking about. 
Mastery--you've got to speak the language. You can go to the 
country, but you've got to speak the language. So with that 
kind of alliteration, I want you to expand more on just that 
good judgment is enough.
    Because it's like why Mormons are so important to the 
Agency because they get their language training for 2 years and 
then they go out and they go in the street. So they learn not 
just the dialect, which they've already learned, but they learn 
the colloquial language. Then some of them go to the Agency 
where they do unbelievably helpful things. But if they didn't 
have that, they couldn't do that. Now, you have this whole, 
huge field to survey.
    Mr. Muller. I understand your question, Senator. First, let 
me say, obviously, I agree with you. In order to do the job or 
understand China, you ultimately need to learn Chinese, and you 
need to learn it pretty fast. I will not know Chinese the day I 
arrive. I will be able to rely on people in the Agency and in 
the General Counsel's office for the time that it takes me to 
learn for a period of time. But I will need to learn fast, and 
I have no illusions about that.
    It is also true that this is a highly specialized area. 
It's not much you read about in books. You have to go out and 
actually spend some time and understand the business of what is 
done at the Agency.
    There is, of course, the legal part--the law--and, as I 
said, I have learned extraordinarily arcane areas of law and 
have done it fast. The more difficult part, and I think you're 
right, is to learn the business of the Agency----
    Senator Rockefeller. The instinct which pulls you back to 
one or another place.
    Mr. Muller. You're talking about the two choices, you mean.
    Senator Rockefeller. I just use that as an example. The 
question of the instinct. Where do you go? You get the 
information, but then where does it take you?
    Mr. Muller. It's hard to answer a question about instinct 
in the abstract. Let me say this and then I'll sort of venture 
into, as best I can, to try to answer that.
    I think one of the reasons why I have been lucky enough to 
have success going from one crisis management situation to 
another--why I get asked by different clients to do it is 
because I'm willing to make judgments. I'm willing to take 
risks when they have been carefully calculated. I'm willing to 
act with the speed that's required by the clients and the 
circumstances.
    As well, I think I've been able to show a number of clients 
that I can learn Chinese. If I may, I'll give you a brief 
example. I represented--one of the most arcane parts of the 
securities business is the loaning and borrowing of securities 
back and forth between firms. There are a handful of firms in 
the country and, indeed, in the world who do it. They make vast 
sums of money doing it. Two firms ran an operation together for 
a period of years and then had a dispute about how to account 
for the proceeds of it because their system seemed to be giving 
them results that weren't intuitively right.
    They interviewed a number of lawyers to try to find one who 
could come in and understand what was going on, and they gave 
that lawyer--and I was among a group of lawyers who were 
interviewed about doing it; I'd had no prior experience in the 
area at all and, indeed, relatively little in the way of 
accounting background. I knew nothing about the business; I had 
never heard of it.
    I had a month to do this because it was actually a dispute. 
I was being hired by one side. I went in with the people who 
had actually put the system together, and we took it apart, 
piece by piece. I learned the business. Not only that, I found 
imbedded in the assumptions--in one of the assumptions that 
underlay their system--a system that they had created and which 
they had looked at--and this particular issue they'd looked at 
over and over again, they had missed it.
    I ended up taking the system apart. I ended up putting 
their system back together. That system, the system that I 
created essentially for them, is now being used by that 
particular firm for hundreds of millions of dollars every year. 
That was Chinese--or Greek in that case. I learned it, and I 
was able to be helpful and fast.
    Now in terms of instinct, to come back to what I think is 
the core of your question, it's hard to answer again in the 
abstract. I have had, albeit awhile ago, the choices that you 
asked between does one act now to stop a particular individual 
or does one, in effect, let the chips ride to see what 
additional gains can be made.
    Those are judgments which can only be made on the basis of 
all the facts at the time. As a lawyer, I will not be making 
them in the first instance. Instead, I'll largely be advising 
as to what I perceive the risks are.
    I'll come, if I can, one further point. Senator Graham in 
his opening statement referred to a prior General Counsel who 
talked about the need for adult supervision--who had used the 
word adult supervision. I obviously and clearly do not view 
that as my role. I view the lawyer more as a navigator who will 
help the captains of the ship steer it as best they can as so 
it's not to hit shoals, to tell them where the water is deep 
and where it is shallow, and to give them their best judgment--
my best judgment as to how the ship will fare in particular 
seas. But I will not be running it. I will not be the captain. 
I will be advising as best I can on how to navigate.
    Senator Rockefeller. I'll wait for the second round. Thank 
you.
    Chairman Graham. I'd like to follow up on Senator 
Rockefeller's questions by posing, as one might in a law school 
classroom, a couple of hypotheticals.
    Mr. Muller. Sure.
    Chairman Graham. We don't expect a master's paper on this, 
but in 2 or 3 minutes, if you can sort of give us an idea of 
how your mind works, how you would go about approaching these 
issues.
    First, one of the most vexatious issues that we've been 
dealing with is the so-called leaks problem. We have an 
elaborate system by which information is classified, which 
means that its release to the public is restricted, and we have 
laws to protect that classification system, many of which point 
directly at the Director of Central Intelligence, who has 
specific legal responsibility, if he becomes aware of an 
inappropriate release of classified information, to take 
actions, including forwarding cases to the Department of 
Justice.
    The fact is, this system, from my information, has not 
resulted in a successful prosecution in some two or three 
decades. The number of leaks are rampant. You could probably 
pick up today's New York Times and Washington Post and find 
several of them on the front page. I've described we now are 
not dealing with leaks; we're dealing with dam breaks where big 
surges of information such as the Department of Defense battle 
plans for Iraq get released inappropriately.
    If during your third week on the job Director Tenet should 
come in to you and say that he shares this concern and clearly 
the current system is not functioning either as a deterrent or 
as a punishment system, how would you go through the process of 
approaching that problem? With whom would you consult? What 
would be your analytical steps, et cetera? I might say I hope 
this hypothetical issue becomes a real issue soon.
    Mr. Muller. Well, Senator, I think you are right. The issue 
of leaks is an extraordinarily important one. The damage that 
is done by leaks is no different than the damage done by a spy. 
The fact that it's done for, you know, what the leaker may view 
as appropriate reasons is absolutely no excuse given the 
horrendous damage that can occur. I think I would approach--
leaving aside for the moment the question of who I would 
consult--my mind wraps itself around the problem in the 
following way.
    The first question I ask myself is what are the legal 
authorities and what are the statutes that apply and are they 
adequate? In the case of leaks, I know that there are espionage 
statutes which relate to the leak problem. I also suspect that 
there is a certain amount of disinclination on the part of the 
Federal prosecutors to want to use the word espionage to deal 
with the problem of--with an issue of a U.S. person who is 
leaking as opposed to spying. So the first question I would ask 
is to find out what the statutes are, to find out whether 
they're adequate and, to the extent that they're inadequate, an 
issue which I think I would clearly address with the Department 
of Justice, the Criminal Division, and others, I would ask that 
question first.
    The most difficult question with respect to leaks has to do 
with actually investigating and finding them. In order to do 
that, you would want to have a specific case where it came to 
you or, to the extent that you could, you would want to put in 
place systems which would actually allow you to find them 
before they occurred or as they were occurring.
    More than anything else, you want to find a case that you 
can bring. You want to find a case that you can bring and bring 
successfully. You'd have to navigate your way through the 
problem of the threat of exposure of national security secrets 
as you do it.
    So to answer the question, again, I would first analyze 
what are the legal authorities and, most importantly, I would 
try to find a way--pro-actively rather than reactively--to, 
whether it's set a trap, or set up a system where I could 
actually come up with a way to do it. It's a very difficult 
problem.
    I think the reason why, at least to my knowledge, there 
haven't been leak prosecutions--leaving aside the issue of to 
what extent can we actually go to the media in order to deal 
with this--a highly sensitive question and one which the 
Department of Justice I know has thought about extensively--but 
if one is limited to looking internally, that's one of the 
great problems, is actually finding it.
    Chairman Graham. Thank you.
    Senator Rockefeller.
    Senator Rockefeller. Thank you, Mr. Chairman.
    I want to still go back to the first question. This is not 
unfriendly questioning. You recognize that there is this gap 
and you say that you can overcome it and it is our duty to try 
to make our best judgment that you are right about that.
    Mr. Muller. As I said Senator, I view it as a fair and 
appropriate question and I continue to.
    Senator Rockefeller Yes, you did and you are very 
forthcoming about that.
    There is an agency that used to be called HCFA--which is 
the Health Care Financing----
    Mr. Muller. I had a case involving them.
    Senator Rockefeller. You are involved with them?
    Mr. Muller. I had a case involving them. I had to learn 
something about them, yes.
    Senator Rockefeller. I think it takes somebody about 12 
years--it is my judgment--to learn health care, public policy, 
in and out. You can do it through the master's thing. You can 
do it through a Ph.D. at Johns Hopkins or wherever, but then 
you've got to practice it. Then the real world comes in on you 
and then you have the political process that comes in on you, 
and then OMB that comes in on you.
    President Bush's head of HCFA is a fellow named Tom Scully, 
who knows health care cold. That's what he's done. He's a 
lawyer. But he brings more to it than the law. He brings to it 
just flat out knowledge and the battle scars of what went wrong 
as he applied legal instincts versus the practical problems of 
a recalcitrant HHS Secretary or President or OMB or whatever.
    Am I justified in saying that fast learning skills--and 
then shoot me right down if you think I am wrong--that it 
really isn't just a matter of collating lawyers and learning 
quickly, but that instincts are not learned quickly. They come 
from experience. It's like an agent who has served overseas and 
does human intelligence. I mean, you don't just go get trained 
for it. It takes years to develop the instincts that allow you 
to know what you are doing--which is right, which is smart, 
that you should have done this or that. Now how do you help me?
    Mr. Muller. I understand your question. Let me first say 
instincts, I don't think, are learned. You have them, you 
develop them in whatever field you have over time. You then 
take those instincts and you apply them to whatever set of 
facts or area you are put into. That's what I do. There have 
been three prior General Counsels----
    Senator Rockefeller. Where do you get the instincts from?
    Mr. Muller. Your experience.
    Senator Rockefeller. But your experience isn't in this.
    Mr. Muller. No. But you don't need to have--with respect, 
Senator, I don't believe you need to have your instincts honed 
in this particular area. I think you need to have your 
instincts honed in the fight, in the well, in places where 
there are multiple people with different views where you have 
to navigate through them and where you have a sense of where a 
common sense good judgment would put you in the choices between 
letting someone stay out in the field so you can follow where 
they go and find the terrorist's co-conspirator, letting them 
have one more phone call, or instead taking the risk that they 
are going to do something. You simply look at all the facts and 
circumstances and you bring to it the best judgment you have.
    I have spent the last 25 years essentially making precisely 
those kinds of judgments in varying fields. In particular, I 
have made them in the law enforcement area for only 4 years as 
a prosecutor, although we ran undercover operations, we ran a 
sting operation and in one case in which I can't talk about 
here, we actually had a person who was in organized crime who 
was out on the edge of doing things with organized crime to 
keep his credibility going.
    I have lived those, albeit when I was younger. I have spent 
the rest of my career dealing, watching prosecutors having made 
the same decisions sometimes representing on the defense side. 
There have been three prior General Counsels of the Central 
Intelligence Agency who came to that job without intelligence 
experience. The first, named Tony Latham, came from Shea and 
Gardener. Russ Bremer came from Wilmer Cutler, and Stanley 
Sporkin from the SEC. Without knowing the ins and outs of how 
well they performed in your eyes Senator, I know from the 
people I have talked to in the Agency that several of those 
performed very well.
    I could add as well that I asked this question and I was--
as I said to a person from people who know this community and 
know me--said, ``don't worry about this. You will be able to do 
it. It will come naturally to you because of your experience 
and because of the amount of law that is involved is relatively 
speaking not the body of HCFA law.'' Would I know health care 
policy the way the gentleman you described? No. Do I think that 
my instincts and experience are such that I can add real value 
and help make sure that the lawyers are part of the team and 
not viewed as--and don't view themselves as--adult supervisors? 
Yes. The delivery of legal advice, working as a team, avoiding 
us versus them kinds of cultures, that's what I do.
    Senator Rockefeller. I thank you and I'll have the third 
round if you don't mind, Mr. Chairman.
    Chairman Graham. Thank you, Senator.
    I'd like to raise a second issue. The Intelligence 
Community is organized theoretically under the general 
supervision of the Director of Central Intelligence. By 
tradition and history, the Director of Central Intelligence 
also has served as the head of the CIA, one of the constituent 
agencies that make up the Intelligence Community.
    In your position, you are going to serve as the General 
Counsel to both of those positions--to both in his directorate 
of the whole community as well as his specific responsibilities 
at the CIA. One of the other agencies that's in that 
constellation of intelligence agencies is that part of the FBI 
which is involved in intelligence. This multiple responsibility 
creates the potential of conflicts of interest, as we have 
learned in our hearings. Not infrequently the FBI and the CIA 
have different views of the same matter which have resulted in 
patterns of action, including one ignoring the other.
    Think about and tell us how you would approach these 
multiple responsibilities and particularly how you would see, 
from your position as General Counsel, dealing with the 
conflicts between the FBI's intelligence responsibilities, the 
CIA's virtually total intelligence responsibilities, and the 
DCI's overview of all of the agencies of the agencies of the 
Intelligence Community.
    Mr. Muller. I think there are--I'll try to divide that 
question into a couple of parts if I can. One part has to do 
with the relationship and possible conflict between the FBI 
counterintelligence and domestic responsibilities and the CIA's 
foreign both counterintelligence and intelligence activities. 
The second question I think has to do with the role of the DCI 
as head of the community and what conflicts may exist both 
because of his dual capacity as head of the CIA and head of the 
community and, as a corollary to that, whatever conflicts I may 
have as General Counsel to him in those capacities.
    Let me address the first question first. The message of the 
U.S.A. Patriot Act and the lesson of 9/11, subject of course to 
the correct oversight, is that the parts of the FBI and the CIA 
need to work, and the Justice Department, fully hand-in-hand in 
the investigative stage, in the stage where they are trying to 
determine ways in which they can disrupt and detect terrorists 
and other threats.
    There is now increasing and should be full field-to-field 
coordination. It's precisely now--and just as in the past in 
espionage cases choices have had to be made along the lines of 
the choice that you referred to earlier, Senator Rockefeller, 
about when to bring a case and when not to bring a case, when 
to let one ride and when not to let one ride. Those choices 
will increasingly need to be made as those teams work together.
    They are also going to have significant issues to work on 
together as to whether or not cases are brought and where they 
are brought, what obligations will be under Brady against 
Maryland and a variety of related questions. There is no 
substitute for not only having the field agents working 
together but actually having the lawyers work together as well, 
the prosecutors, as they are now doing in the counterterrorist 
cases where, as I understand it, there is and has been an 
extraordinarily good relationship between the Federal 
prosecutors and the Southern District of New York and the 
Eastern District of Virginia, the FBI agents, and the CIA 
agents all working together.
    I would envision that there would be, over time, an 
extensive exchange not only of information but of personnel, 
hopefully even between the offices, so as to make that--and 
ultimately when the systems are pulled together in a way which 
I understand they are not now, then the walls should ultimately 
be transparent and then choices can then be made as to when 
cases should be brought, what the costs will be, where they 
will be.
    With respect to the second question having to do with the 
DCI's role, obviously that has been an issue not only for this 
Committee, but really for the Nation, most recently, but over 
time. It is one that when one looks at--every time I look at it 
and think through a possible solution to how the national 
security apparatus ought to be organized differently I see both 
advantages and disadvantages to it and there are obviously a 
host of proposals.
    In the current system, as General Counsel I would view 
myself as having those responsibilities which the DCI gives me 
with respect to the community. I have no question but that a 
significant amount of coordinating work can and should be done. 
There are lawyers from the General Counsel's office that are 
deployed to most of the other elements of the community, or can 
be--I think NSA may be an exception--but I would envision 
working very closely with the other General Counsels.
    I don't perceive a conflict. I have frequently represented 
multiple clients, to the extent that one can view this as a 
multiple client. My client is the mission. My client is the 
President and the Executive branch subject to this Committee's 
oversight. Actions speak louder than words. I think to the 
extent that there is a perception of a conflict it can be 
eliminated. To the extent that there is a conflict, I'll be the 
first to say so. I doubt it'll occur.
    Chairman Graham. Senator Rockefeller, could I ask two 
favors. First, could I ask a followup question beyond my 5 
minutes and then, second, I am going to have to leave. Could 
you continue the hearing and then conclude it when you have 
completed your questions? You're a scholar and occasionally a 
gentleman.
    We have had issues where, because of what now is agreed to 
have been erroneous legal advice, important decisions were 
either made or not made. The most prominent example is in this 
so-called Moussaoui case that Senator Rockefeller referred to 
in his questioning, where the field agent in Minneapolis was 
berating the central office here in Washington to seek a FISA 
in order to get information. The persons making the decision 
here in Washington, by all now agreement, were misapplying the 
law and denying this request, and then shortly after 9/11, when 
they did get access, found information that could have been 
very significant had it been available earlier.
    How do you see your responsibility in terms of the legal 
community which advises all of the agencies that make up the 
Intelligence Community, so that on something such as what are 
the rules for a FISA, that the information is uniformly 
disseminated, updates of change in the law are promulgated, and 
some degree of oversight to assure that the legal officers are 
applying the appropriate standard, that we have a continent of 
law and not a series of individual islands which may be 
drifting away from each other.
    Mr. Muller. I think within the Agency, to answer that 
question there first, what you have identified I think is one 
of the most important things that the General Counsel is 
responsible for ensuring. There needs to be careful management 
and coordination among all the lawyers giving advice within the 
Agency to assure that it is, A, uniform, B, correct, and, C, 
that it is not driven by concerns of caution not required by 
the law, and similarly that it is not--that it doesn't fail to 
take into account and raise to the appropriate levels any 
issues where the risks seem to be extreme.
    It also has to be client-driven. By that I mean it is 
imperative in the delivery of legal advice that the lawyer earn 
the trust of the client. You won't be asked back a second time, 
you won't be consulted when you need to be consulted unless you 
earn that trust. You earn that trust by doing everything you 
can to work with them to be part of the solution to the extent 
there's a problem, by being clear and simple about the rules 
that guide, to be clear and simple about the difference between 
law and policy, and to be sure as well, because you are with 
them in recognizing that the risk of illegal action in the 
environment that we are operating in is no different and no 
greater than the risk of inaction.
    Chairman Graham. Mr. Muller, thank you very much. I 
apologize that I have got to go to a 10:30 meeting. I thank you 
very much for the candor and the thoughtfulness of your 
responses and wish you and your family well. We will be 
attentive to moving this nomination as expeditiously as we can.
    Mr. Muller. Again, Mr. Chairman, thank you for scheduling 
the hearing. I know you all have been very busy doing very 
important work and I thank you.
    Chairman Graham. Senator.
    Senator Rockefeller. One of the interesting--well, not 
interesting--well it is interesting, but it is slightly 
depressing--facts is that there is a large and growing distrust 
between the executive branch and the legislative branch. It is 
often said--and this is not political because I think all 
Presidents are guilty of this or we are guilty of it--it really 
doesn't make any difference--there is quite a lot of disdain 
for oversight committees now. There is a great deal of disdain 
within the Intelligence Community for Oversight Committees--the 
Intelligence Committees in both Houses.
    That has been proven many, many times in the last number of 
weeks as we have been trying to carry on this 9/11 
investigation and deadlines and postponements and we'll have it 
for you in 24 hours and then it's we're OK with it, but we've 
got to take it over to the FBI or NSC and then it comes back 
and we end up getting it at 10 o'clock or at 9:55 and the 
hearing begins at 10 o'clock.
    That makes us--it means we can't read it, we can't read 
anything. That's deliberate or it's inadvertent. But in any 
event there is this disdain. I understand that because there 
are people putting their lives on the line out in the world and 
here these Congresspeople, who unfortunately have come on and 
off the Committee too quickly--but it comes at great cost. It 
comes at great cost.
    It causes us to do the one thing that I don't want to see 
happen as between oversight and the Intelligence Community, and 
that is the blame game. The blame game can come from two 
sources. One is that we get angry because we feel we are being 
looked down on and, you know, that we get sent second- and 
third-line people, and then sometimes we fail to recognize that 
the first-line people may have obligations they have to meet.
    But whatever it is, just accept what I say as being true, 
if you will.
    So then there comes a question of timely reports. There are 
timely reports on annual or one-time basis that the Congress 
requires and is owed which is frequently not met. That brings 
then the question of a General Counsel advising a Director of 
Central Intelligence about what to do about that. That is where 
you run into potentially the politics or we don't want them to 
know or why are they doing this to us or this is taking all of 
our time and I've got more important things to do than sit and 
answer questions.
    But the fact is that we do appropriate the money. We do 
represent the people. You work for the President and, more 
importantly, you work for the people who we also represent in 
smaller sections than obviously the President does.
    So my question is this. Are you the kind of personality, 
and if you are, I'd like to know--I want you to sort of prove 
it to me, give me an example--where you go in and you say to 
your boss you've got to do this and you are going to do it. You 
are going to do it. You don't want to do it and I understand 
that, but you are going to do it because it is the law, because 
it is required, because it is your instinct that it needs to be 
done, because these relations have to be good because if we 
don't then we just play gotcha all the time. That is human 
nature and it is bad human nature.
    But how can I have a sense that you are not just a skilled 
collator of facts and information leading you to, as you say, 
the right kinds of intuitions but that you'll also take on the 
person to whom you report and threaten to resign, if necessary, 
if the issue is important enough. What aspect of your 
personality should give me confidence?
    Mr. Muller. Good question. I am going to try to answer with 
a specific example. I am going to be a little bit opaque 
because I want to be careful about privilege. But I will give 
you a specific one and one which one of your witnesses from 
yesterday would be able to tell you more about from the 
government's perspective if it ever became appropriate.
    My firm represented and represents many financial 
institutions. I was called into a case on what was then not yet 
a case actually on a Wednesday to give advice to this financial 
institution about a Federal Reserve examination which was to 
begin the following Monday.
    I gave some advice with respect to what that client could 
do or not do in connection with preparing for that examination. 
It ended up taking the matter first to the CEO, from there to 
the board of directors, and ultimately, in a personal 
conversation with the chairman of the board when the advice was 
not taken, I told him that I was going to be consulting my 
firm. We withdrew from the representation of that client on a 
Sunday evening at about 11 o'clock. The Federal examination 
went forward. Two-and-a-half years later that client was 
indicted. It was indicted in connection with the matter that 
had been a part of the discussion that we had had.
    There is nothing more important to me than my credibility. 
There is nothing more important to me than my reputation. I 
will risk, indeed give up, the financial benefits of my 
practice for this job, but I will never do anything that would 
in any way call that into question and there is nothing that--I 
would never have any hesitation to give the advice that I think 
is correct. In fact, the people in the General Counsel's office 
already know I expect push-back when I come up with a view. I 
give push-back. I think that is my job.
    I am not sure I answered the entirety of your question, as 
I think back on it now. I was giving the example.
    Senator Rockefeller  Could you give me some more then?
    Mr. Muller. Well, I am trying to remember now if--you asked 
for an example--I am trying to remember now the general context 
in which I gave you the example. I remember the point of it. 
But the question was essentially whether I'd have any 
hesitation in effect in telling the DCI what he needed to do--
oh, I know.
    The context of the question had to do with the relationship 
between the Intelligence Community and the CIA on the one hand 
and this Committee on the other. Many of the crisis kinds of 
cases that I came into didn't need to be crises when they 
started. They became that because of the way in which the 
client dealt with the regulator or the U.S. Attorney or others, 
unnecessarily so. Whether the reason for the mistrust was 
inadvertence or deliberate is really irrelevant, because from 
the point of view of the regulator the result is the same and 
the two are indistinguishable.
    There have been a number of cases, and I am trying to think 
of any that are public, where we have come in and my approach 
has always been the same. There is no excuse for being anything 
other than forthright with your regulator. I have an expression 
which I sometimes give to clients, particularly in the criminal 
arena. I tell them you can try to punch the big bear in the 
nose or you can smile and try to work with it. The latter is 
generally the better course, particularly in an industry where 
you have no choice but to deal with that regulator.
    There may be times when in response to a subpoena or 
otherwise it is impossible or difficult to meet the deadline. 
You never let it pass. You talk about it. You do everything 
within your power to meet it. I read the report that 
accompanied this Committee's authorization bill this year which 
described the performance on congressionally-demanded reports 
as dismal. I looked at the statistics as well. I immediately 
asked to understand those facts. I understand that work is 
being done on it now, but I also fully understand why this 
Committee would be, and was and is upset about that.
    I can tell you that from my perspective there is nothing 
more important than full candor. I can't promise that without 
knowing particular facts that every question you ask I'll be 
able to answer. I can promise that if I can't answer those 
questions or if there is a reason why for one reason, 
legitimate reason, or another legitimate reason there is 
something that can't be done, you'll be told. You'll be told 
the reason so that there is transparency with that regard.
    Senator Rockefeller. Thank you. The final question I would 
have would be your transition assuming this all works out. One 
way of asking that would be what have you done to prepare. You 
have obviously just read something which I wouldn't have 
guessed you would have read, but you did and you know you had a 
reaction to that from that.
    There have been all kinds of reports that have been done 
over the last many years on the reorganization of the 
Intelligence Community. Those reports are always dead on 
arrival. It is sort of fated, but it doesn't mean that they are 
wrong. It is been really stunning, I think, to those of us on 
this Committee to see the lack of coordination and the turf 
nature of the Intelligence Community, in the case of the FBI 
because in the case of the lawyer he doesn't want to give up 
information because it might jeopardize his case and that's 
understandable. You put in the Intelligence Community and that 
information doesn't go to somebody else who needs to have it 
because they're surveilling and that is a fine line.
    But what have you done to prepare yourself to learn the so-
called Chinese language and what is your approach, given the 
ferocity of the pace at which everything is moving, to 
preparing yourself for the nuances that don't fall specifically 
under knowing the law?
    Mr. Muller. As you know I have had a practice of law, but I 
have also done what I think I could do up until now to begin to 
prepare. I didn't obviously want to pre-judge the conclusion of 
this Committee. But first, with respect to the reorganization, 
I have asked for--although not received--the Scowcroft report. 
I have clearances, but so far I think, understandably I am 
cleared up to only a certain level. I have not yet printed or 
gotten the report for Zoe Baird's group, but I obviously will 
read that.
    I have read a fairly thick set of materials that I have was 
given by John Rizzo and Fred Manget at the Agency to read to 
sort of get a general sense of the law. I have read and have 
the kind of understanding one gets without having a specific 
matter in front of you, you know, all of the statutes and 
Executive orders.
    I have read the authorization bills and then I have asked 
for and so far had briefings, again up to the secret level, 
from the heads of each of the groups within the General 
Counsel's office. I have read 1-page biographies of each of the 
lawyers in that office and I have given them--I guess I haven't 
given them yet--I have given orally and they have a longer list 
of things that I have asked for--things that come to the top of 
my head.
    With respect to that I have asked for an index of all of 
the IG reports for the last 10 years. I have asked for copies 
of each of the IG reports that relate to the General Counsel's 
office. I have asked for a collection of the findings in 
effect. I have asked for a variety of materials like that--a 
list and a compilation of the congressional prohibitions, 
whether precatory or otherwise that are still current.
    My plan, subject to the DCI, of course, and conversations 
with the deputies who are experienced in the office--and we had 
a brief conversation about this yesterday--is to spend a 
significant amount of time walking the building, meeting with 
the clients and learning the business.
    There is no way to give intelligent and sound advice 
without understanding the business and, of equal importance, 
without the client believing that you understand the business. 
So I would expect to spend a significant amount of the first at 
least 4 weeks trying to avoid the incoming while I go and learn 
what the battlefield looks like.
    Senator Rockefeller. I don't want this to sound wrong, but 
I just want to ask you for my own information. How much 
traveling have you done in the world? In the Middle East? In 
South and Southeast Asia?
    Mr. Muller. I spent two summers in Europe. I spent 6--
almost 4 months in the Middle East and Africa. In 1971 and 1972 
I was the--mostly by accident of fate--became the manager of 
Middle East and African sales for Harper and Row publishers. My 
job was to travel to meet booksellers and go to universities 
throughout the Middle East and Africa. I spent 2\1/2\ weeks in 
Lebanon at that time, well before the war--it was a beautiful 
place--and throughout Africa. I've been to Europe a number of 
times. I have never been to South America.
    In my work at Davis Polk I have had a number of European 
clients and spent a significant amount of time in Switzerland, 
in Spain, investigating and doing cases there, in Germany. I 
traveled in Eastern Europe on two occasions during summers, 
spent 2\1/2\ weeks in East Germany when I was 17. At one time, 
I had passable German and passable French--no longer.
    Senator Rockefeller. OK, Mr. Muller, I thank you. You 
understand the nature of our questions.
    Mr. Muller. Of course.
    Senator Rockefeller. They are the questions, as you 
indicated, that we should be asking. I am also very impressed, 
as Senator Graham is, by your candor and your composure and I 
think sense of precision and confidence, which is important.
    So I draw this hearing to a close and repeat what he says, 
that we'll do this as expeditiously as possible. The Agency 
needs a General Counsel and we want it to work.
    Mr. Muller. Thank you very much, Senator.
    Senator Rockefeller. Thank you, sir.
    [Whereupon, at 10:50 a.m., the hearing adjourned.]
      
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COMMITTEE BUSINESS MEETING TO VOTE ON THE NOMINATION OF SCOTT W. MULLER 
           TO BE GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE

                              ----------                              


                      WEDNESDAY, OCTOBER 16, 2002

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                   Washington, D.C.
    The Committee met, pursuant to notice, at 12:26 p.m., in 
room S-216, The Capitol, the Honorable Bob Graham (Chairman of 
the Committee) presiding.
    Committee Members Present: Senators Graham, Levin, 
Rockefeller, Wyden, Shelby, Kyl, Hatch, Roberts, and DeWine.
     Committee Staff Members Present: Al Cumming, Staff 
Director; Bill Duhnke, Minority Staff Director; Vicki Divoll, 
General Counsel; Kathleen McGhee, Chief Clerk; Melvin Dubee, 
Lorenzo Goco, Jim Hensler, Hyon Kim, Matt Pollard, Michal 
Schafer, Linda Taylor, and Jim Wolfe.
    Chairman Graham. Member, we now have a quorum of nine 
present.
    The Committee will consider the nomination of Mr. Scott W. 
Muller for the position of General Counsel of Central 
Intelligence Agency. Pursuant to Rule 5 of the Committees 
rules, I move the Committee vote to report favorably to the 
Senate the President's nomination of Mr. Scott W. Muller to be 
CIA General Counsel.
    Is there a second?
    Vice Chairman Shelby. Second, Mr. Chairman.
    Chairman Graham. The Clerk will call the roll.
    Mrs. McGhee. Mr. Levin.
    Senator Levin. Aye.
    Mrs. McGhee. Mr. Rockefeller.
    Senator Rockefeller. Aye.
    Mrs. McGhee. Mrs. Feinstein.
    Chairman Graham. Aye by proxy.
    Mrs. McGhee. Mr. Wyden.
    Senator Wyden Aye.
    Mrs. McGhee. Mr. Durbin.
    Chairman Graham. Aye by proxy.
    Mrs. McGhee. Mr. Bayh.
    Chairman Graham. Aye by proxy.
    Mrs. McGhee. Mr. Edwards.
    Chairman Graham. Aye by proxy.
    Mrs. McGhee. Ms. Mikulski.
    Chairman Graham. Aye by proxy.
    Mrs. McGhee. Mr. Kyl.
    Senator Kyl. Aye.
    Mrs. McGhee. Mr. Inhofe.
    Vice Chairman Shelby. Aye by proxy.
    Mrs. McGhee. Mr. Hatch.
    Senator Hatch. Aye.
    Mrs. McGhee. Mr. Roberts.
    Senator Roberts. Aye.
    Mrs. McGhee. Mr. DeWine.
    Senator DeWine. Aye.
    Mrs. McGhee. Mr. Thompson.
    Vice Chairman Shelby. Aye by proxy.
    Mrs. McGhee. Mr. Lugar.
    Vice Chairman Shelby. Mr. Lugar, aye by proxy.
    Mrs. McGhee. Mr. Shelby.
    Senator Kyl. Aye.
    Mrs. McGhee. Mr. Graham.
    Chairman Graham. Aye.
    Mrs. McGhee. Seventeen ayes.
    Chairman Graham. The ayes are seventeen, the nays are zero. 
The ayes have it. Mr. Muller's nomination for CIA General 
Counsel will be reported favorably.
    [Whereupon, at 12:28 p.m., the Committee adjourned.]
  

                                
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