[Senate Hearing 110-407]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-407
 
               NOMINATION OF JOHN A. RIZZO TO BE GENERAL
                  COUNSEL OF THE CENTRAL INTELLIGENCE
                                 AGENCY

=======================================================================

                                HEARINGS

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 19, 2007

                               __________

      Printed for the use of the Select Committee on Intelligence


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                    SELECT COMMITTEE ON INTELLIGENCE

           [Established by S. Res. 400, 94th Cong., 2d Sess.]

            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
              CHRISTOPHER S. BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California         JOHN WARNER, Virginia
RON WYDEN, Oregon                    CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana                   SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland        ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida                 RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
                     HARRY REID, Nevada, Ex Officio
                 MITCH McCONNELL, Kentucky, Ex Officio
                    CARL LEVIN, Michigan, Ex Officio
                    JOHN McCAIN, Arizona, Ex Officio
                              ----------                              
                   Andrew W. Johnson, Staff Director
                Louis B. Tucker, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk
                                CONTENTS

                              ----------                              

                             June 19, 2007
                           Opening Statements

                                                                   Page

Rockefeller, Hon. John D. IV, Chairman, a U.S. Senator from West 
  Virginia.......................................................     1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from 
  Missouri.......................................................    15
Warner, Hon. John, a U.S. Senator from Virginia..................    16
    Prepared statement...........................................    16

                           Witness Statement

    Rizzo, John A., Central Intelligence Agency General Counsel-
      Designate..................................................    17
    Prepared statement...........................................    20

                        Supplementary Materials

Senate Select Committee on Intelligence Questionnaire for 
  completion by Presidential nominees............................    46
Response to pre-hearing questions for John A Rizzo...............    61
 Letter dated March 16, 2006 from Marilyn L. Glynn, Acting 
  Director, Office of Government Ethics to the Honorable Pat 
  Roberts........................................................    79
Financial Disclosure Report of John A. Rizzo.....................    80
Memorandum dated December 7, 2005 from John A. Rizzo regarding 
  ethics agreement...............................................    83
Letter dated July 10, 2006 from Anthony A. Lapham, former CIA 
  General Counsel................................................     4
Letter dated April 27, 2007 from Jeffery H. Smith, former CIA 
  General Counsel................................................     6
Letter dated May 8, 2007 from Tom Malinowski, Elisa C. Massimino, 
  and Morton H. Halperin of Human Rights Watch and Human Rights 
  First..........................................................     8
December 2004 statement by President George W. Bush regarding 
  renditioning policy............................................    34


                   NOMINATION OF JOHN A. RIZZO TO BE



                     GENERAL COUNSEL OF THE CENTRAL



                          INTELLIGENCE AGENCY

                              ----------                              


                         TUESDAY, JUNE 19, 2007

                               U.S. Senate,
                  Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:35 p.m., in 
room SD-106, Dirksen Senate Office Building, the Honorable Jay 
Rockefeller (Chairman of the Committee) presiding.
    Present: Senators Rockefeller, Feinstein, Wyden, Bayh, 
Feingold, Whitehouse, Levin, Bond, Warner, and Snowe.

 OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A 
                U.S. SENATOR FROM WEST VIRGINIA

    Chairman Rockefeller. The hearing will come to order on the 
nomination of John A. Rizzo to be General Counsel of the 
Central Intelligence Agency.
    Today the Committee meets to consider the nomination of 
said Mr. John Rizzo to be General Counsel. Mr. Rizzo, we 
welcome you today. Before we proceed to the opening statements 
and questions, I want to recognize Mr. Rizzo's wife, Sharon, 
who is accompanying him.
    Mr. Rizzo, would you like to introduce any other members of 
your family?
    Mr. Rizzo. Yes, thank you, Mr. Chairman.
    Next to my wife, Sharon, is my son, James. Next to James is 
my sister, Nancy, who has traveled a considerable distance to 
be here. Next to Nancy is my step-daughter Stephanie Breed.
    Chairman Rockefeller. Well, we welcome you. The Vice 
Chairman and I both welcome you.
    I also want to welcome our valued colleague, the 
distinguished senior Senator from the State of Virginia, who 
will be introducing Mr. Rizzo in just a moment.
    Mr. Rizzo has worked in government service his entire 
career, and has spent the last 31 years at the Central 
Intelligence Agency. Starting as an attorney at the CIA's 
Operations and Management Law Division in 1976, Mr. Rizzo moved 
through a variety of offices within the Office of General 
Counsel. He also spent 1\1/2\ years in the CIA's Office of 
Inspector General, and more than 2 years in the CIA's Office of 
Congressional Affairs, where he was responsible for 
coordinating, in that position, CIA communications with the 
congressional committees investigating the Iran-Contra affair. 
In March 1995, he was named Senior Deputy General Counsel. John 
Rizzo has twice served as acting General Counsel when the 
General Counsel position became vacant--once from November of 
2001 to October of 2002, and again from August of 2004 to this 
day.
    Mr. Rizzo, we would like to thank you for your long 
government service. We do appreciate it. We often fail to say 
that.
    To understand why we are here today, it's important that we 
look at both the responsibilities of the CIA and the historical 
role of the CIA's General Counsel. The CIA's intelligence 
capabilities help us protect what we hold as fundamental to the 
American way of life. Yet even with today's great and immediate 
intelligence challenges, the CIA must constantly reaffirm the 
American principles of commitment to law, integrity and 
accountability. The CIA's General Counsel is at the heart of 
this balancing act.
    Although the person selected to fill this position has only 
required the advice and consent of the Senate since 1996, key 
committees have long recognized the importance of having an 
independent general counsel who has the backing of a 
Presidential appointment and Senate confirmation. In 1976, the 
Church Committee recognized the ``extraordinary 
responsibilities of the CIA's General Counsel to ensure that 
CIA activities are consistent with the Constitution and law of 
the United States.'' The Church Committee, therefore, 
recommended that the CIA General Counsel be nominated by the 
President and confirmed by the Senate to protect the General 
Counsel's ``independence of judgment.''
    In 1987, the Iran-Contra Committees concluded that the 
abuses of Iran-Contra stemmed in part from the misguided 
perception of certain government officials that worthy ends 
could justify violations of the law. The Iran-Contra Committees 
rejected this notion and instead recommended strengthening the 
role of the CIA General Counsel by requiring Senate 
confirmation.
    Congress ultimately acknowledged the importance of having a 
Senate-confirmed General Counsel in 1996, as I indicated. In 
amending the Central Intelligence Agency Act of 1949, Congress 
accepted the Senate Intelligence Committee's report that the 
confirmation process enhances accountability and strengthens 
the oversight process.
    Over a decade later, today's hearing is timely in 
addressing the difficult issues of accountability and 
oversight. As a country, we are struggling to find the 
equilibrium between fighting terrorism and protecting the 
liberties and the rule of law that define us as a nation. On 
the one hand, we do not want to deny CIA officers the tools 
they need to do their job. On the other, we must recognize that 
democracy and American values are at risk if we fail to live up 
to our ideals.
    The weight of this balance, interestingly, falls heavily on 
the shoulders of the General Counsel alone. As the CIA's 
activities are largely carried out in secret, the General 
Counsel often makes legal decisions without the benefit of 
public debate or the constraints of public scrutiny. By 
necessity, the public must therefore trust that the person in 
that position will ensure that the CIA's activities are 
consistent with both the spirit and the letter of the 
Constitution and the laws of the United States.
    Our country must have faith that the intelligence 
professionals working to defend us have a General Counsel who 
defends them by ensuring that they receive lawful guidance. 
However difficult it may be to draw legal lines, it cannot be 
those on the front lines who suffer from legal uncertainty. 
Equally so, it is those officers who suffer when the 
institutional integrity of the agency is weakened by 
questionable legal decisions. Public trust and professional 
respect are earned by navigating these very difficult paths.
    Ensuring that the CIA follows the law is important to 
protect not just the CIA and its intelligence officers, but 
also to protect the image of the United States. Our 
international security depends on upholding our ideals upon a 
world stage.
    Although the Attorney General, through the Department of 
Justice and the Office of Legal Counsel, is ultimately 
responsible for the legal decisions of the executive branch, 
the CIA's General Counsel has a responsibility to the CIA as an 
institution that the Attorney General does not share.
    The CIA General Counsel simply cannot rely on others to 
make those legal decisions. The General Counsel must make 
independent, sound legal assessments to determine what will 
best serve the CIA over the years to come. The Committee has a 
duty to make sure that the nominee sitting at that desk has the 
qualities necessary to fill that important role.
    Mr. Rizzo, we look forward to hearing your views about both 
past challenges and the CIA's future conduct. Your stewardship 
during recent years as acting General Counsel provides you with 
a unique insight into that position.
    Following the open session, we will further explore the 
Office of General Counsel's role in important matters in recent 
years in the closed portion of our hearing. The Committee has 
received letters of support for Mr. Rizzo's nomination from a 
number of his colleagues over the years, including CIA General 
Counsels Anthony Lapham, who was one of my closest friends 
throughout life, and Jeffrey Smith.
     Mr. Lapham, who sadly passed away last year, served as CIA 
General Counsel in the midseventies and saw the CIA through the 
Church Committee's investigations of its activities. Mr. Smith 
served as CIA General Counsel from 1995 to 1996 and has since 
been actively involved in the public debate on intelligence 
issues.
    We also received letters expressing concern about Mr. 
Rizzo's nomination from Human Rights Watch, Human Rights First, 
and the Open Society Policy Center. I ask unanimous consent 
that these letters be placed into the record. Without 
objection, it is so ordered.
    [The letters regarding Mr. Rizzo's nomination follow:]
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    Chairman Rockefeller. I now recognize our distinguished 
Vice Chairman Bond.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A 
                   U.S. SENATOR FROM MISSOURI

    Vice Chairman Bond. Thank you very much, Mr. Chairman, and 
I join with all my colleagues in wishing you happy birthday. 
But due to popular demand, I will not lead singing. Mr. 
Chairman, I'm not going to give away how old you are. But if I 
remember Missouri law correctly, if you were a Missourian, you 
would qualify under the State Historic Preservation Act as an 
historic artifact. And I want to congratulate you on achieving 
that distinguished goal.
    [Laughter.]
    Vice Chairman Bond. A very special welcome to John Rizzo 
and his family, and we're delighted to have all of them with 
you today.
    Friends, the events of September 11 clearly were a turning 
point for our intelligence community. Faced with an enemy 
determined to do harm to our country and our citizens, our 
intelligence agencies had to adapt to new operational and legal 
challenges, as well as more public scrutiny. The Central 
Intelligence Agency has been no exception. Its task of finding 
innovative ways to provide accurate and real-time intelligence, 
and to identify and neutralize those with militant ideologies 
threatening us, cannot be understated. It's within that context 
that the Committee begins this hearing today.
    As the CIA adapts its methods and priorities to fight the 
war on terror, its intelligence collectors and analysts must be 
fully instructed on and follow the Constitution and the laws of 
our land. In other words, they need good, strong legal 
guidance. Therefore, it's essential that we have a visible, 
accountable, and permanent leader within the legal ranks of the 
CIA.
    And Mr. Chairman, I'm very pleased that we're having this 
hearing, because it's been well over 2 years since the previous 
General Counsel left the CIA. Mr. Rizzo has occupied that post 
as acting General Counsel during that period. It's time that we 
have a permanent General Counsel confirmed by the Senate.
    Now Mr. Rizzo comes before us having spent most of his 
professional career as an agency attorney handling a variety of 
assignments. And I'm sure that he will explain what unique 
perspectives and experiences he can bring to the General 
Counsel position. I expect there will be many questions about 
decisions that have been made either by Mr. Rizzo or by other 
attorneys under his leadership.
    I also expect that there may be concerns among some 
Members, because we don't have certain documents. We can 
discuss that further in a closed setting. I believe we have 
received an unprecedented amount of documents, and we have had 
access that we have never had before, and I'm grateful for your 
help in that. As far as the closed hearing, I encourage our 
Members to refrain from raising classified matters, even 
indirectly, until we move to the closed session.
    And I would urge Mr. Rizzo, if he feels that the answer 
must be given in closed session, to do so.
    The purpose of the hearing today is not for us to make 
political statements, but for us to engage with the nominee on 
his thoughts, experiences and background, and qualifications 
for the post to which he's nominated.
    Mr. Chairman, I believe it's important that the Committee 
act on this nomination, that we give Mr. Rizzo a full and fair 
hearing, and move his nomination to the floor.
    Mr. Rizzo, again, we thank you for your service. We 
congratulate you on your nomination and look forward to your 
testimony.
    Thank you, Mr. Chairman.
    Chairman Rockefeller. I now recognize the Honorable Senator 
Warner, who will introduce the nominee.

  STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR FROM VIRGINIA

    Senator Warner. Thank you, Mr. Chairman, Senator Bond, and 
colleagues on the Committee.
    I deem it a privilege to introduce this fine public 
servant. The Chairman and Ranking Member have given detailed 
biographical summaries of this nominee's distinguished career, 
and therefore I will not further go into the facts, and ask 
that my statement be put into the record.
    Chairman Rockefeller. It will be done.
    Senator Warner. But we have before us one of the most 
seasoned, tested public servants still on active duty, so to 
speak, and I think it's marvelous that he and his family are 
willing to step up and take on this position. He's been in an 
acting position for some time.
    But, I'd say to my colleagues, you've covered all the 
facts, but I want to mention one other thing, and that is he 
has been the recipient of a number of awards during his career, 
perhaps most notably the Thomas C. Clark Award from the Federal 
Bar Association in 1996. Those of us who are members of the Bar 
would take due note of this. This is a highly competitive award 
that recognizes the single--I repeat, the single--most 
outstanding lawyer in the U.S. Government each year. He won 
that in 1996. He is the only attorney from the intelligence 
community to ever receive this award. Quite an achievement. He 
also received the CIA Director's Award in 2002, 2004 and 2006 
for his service as acting General Counsel.
    So I think, quite wisely, we should begin this open 
session, to the extent that colleagues wish to ask questions 
that can be answered here and then, as the Ranking Member said, 
begin the closed session because I and others are anxious to 
consider the Military Commissions Act, which was passed last 
October. I had a hand in that bill. And it requires this 
country to take due note of international treaties and so 
forth, and that work is now under way in our Administration and 
perhaps we can learn further from this nominee in the course of 
the closed hearing.
    So I thank the Chair and the Members of the Committee. 
You're on your own, my good friend.
    Mr. Rizzo. Thank you, sir.
    [The prepared statement of Senator Warner follows:]
                 Prepared Statement of Hon. John Warner
    Chairman Rockefeller, Vice Chairman Bond, distinguished colleagues; 
it is my pleasure to introduce to you today a great public servant and 
intelligence professional--Mr. John A. Rizzo--who has been nominated to 
serve as General Counsel for the Central Intelligence Agency. Mr. Rizzo 
has a long record of service to the nation, particularly in the great 
Commonwealth of Virginia, and I welcome him here today.
                                 family
    I would like to recognize Mr. Rizzo's family who is here to support 
him today as they have supported him during his long and distinguished 
career in service to our nation. Mr. Rizzo is joined today by his wife 
Sharon, his son James, and his sister Nancy. I am pleased to welcome 
them as well.
                           career highlights
    Mr. Rizzo has been a career public servant. Before joining the 
Central Intelligence Agency, he practiced law for 2 years for the U.S. 
Department of Treasury's Office of General Counsel, specializing in 
enforcement, customs, and narcotics issues.
    Mr. Rizzo joined the CIA in 1976 and began a long and distinguished 
career, where he has spent over 32 years practicing law in the Agency's 
Office of General Counsel. In 1995, Mr. Rizzo was named Senior Deputy 
General Counsel, which is the second highest legal position in the 
Agency. He also has served as Acting General Counsel on several 
occasions--most recently from July 2004 to the present. In that role he 
has been responsible for all legal issues regarding the initiation and 
implementation of intelligence collection and cover action operations. 
For the past 10 years he has served as the Senior Designated Agency 
Ethics Official.
    Mr. Rizzo has considerable experience working with the Congress. He 
served as Deputy Director of the Office of Congressional Affairs from 
1986 to 1989, and was the Agency's lead counsel in dealing with the 
House and Senate Committee's investigating Iran-Contra. For this work, 
he received CIA's Distinguished Officer in the Senior Intelligence 
Service Award in 1987.
                         awards and recognition
    Mr. Rizzo has been the recipient of a number of other awards during 
his career, perhaps most notably, the Thomas C. Clark award from the 
Federal Bar Association in 1996. This highly competitive award 
recognizes the single most outstanding lawyer in government each year. 
He is the only attorney from the Intelligence Community to ever receive 
this award--quite an achievement. Mr. Rizzo also received the CIA 
Director's Award in 2002, 2004, and 2006 for his service as Acting 
General Counsel.
                          academic credentials
    Mr. Rizzo earned his undergraduate degree in Political Science from 
Brown University in 1969 and graduated cum laude from George Washington 
University Law School in 1972.
                                summary
    In short, Mr. Rizzo has a long and distinguished record of service 
to the intelligence mission of this country, and I am very pleased to 
introduce him to the Committee today.

    Chairman Rockefeller. Thank you, Senator Warner.
    Mr. Rizzo, you may now proceed with your statement, sir.

STATEMENT OF JOHN A. RIZZO, CENTRAL INTELLIGENCE AGENCY GENERAL 
                       COUNSEL-DESIGNATE

    Mr. Rizzo. Mr. Chairman and Mr. Vice Chairman, at the 
outset, let me express my appreciation to you and to the 
Committee for giving me the opportunity to appear before you 
today. I am aware of the Committee's heavy workload this 
session, covering an array of significant policy issues, and I 
am grateful that you have found the time to consider my 
nomination.
    I also want to give special thanks to Senator Warner for 
his presence and his generous introduction, especially given 
the fact that I am not a Virginia resident. But having served 
many years in Langley, I feel a quasi-citizenship to that 
State.
    With the Committee's permission, I will now read a brief 
opening statement and will submit a more detailed statement for 
the record. I come here today halfway through my 32nd year of 
service as a lawyer for the Central Intelligence Agency. Put it 
another way, I have spent more than half of my life as a CIA 
attorney. Accordingly, while I was honored and gratified when 
the President first nominated me a little over a year ago, I do 
not consider myself to be a political appointee in the usual 
sense of that term, and indeed I do not consider myself a 
political person. I am first and foremost a career public 
servant and CIA officer.
    My situation as I appear before you today is unique. Over 
the past 35 years, every previous General Counsel, whether 
Senate- confirmed or otherwise, was new to the Agency. If 
confirmed, I would be the first CIA General Counsel ever to 
come up through the ranks. I do not take this distinction 
lightly.
    To put the span of my CIA career in brief chronological 
perspective, in January 1976, armed with a grand total of 3 
years' legal experience, I joined the Office of General 
Counsel. It was a critical juncture for CIA as an institution. 
The Church Committee, the Rockefeller Commission, and other 
investigative bodies had just finished exposing controversial 
and often troubling CIA activities in years gone by and were 
recommending massive legal and policy reforms at CIA. The 
congressional intelligence committees were about to be born, 
subjecting the Agency to real legislative oversight for the 
first time in its history.
    George H.W. Bush was the CIA Director when I came on board, 
the first of 10 CIA Directors under whom I have served. There 
were 18 other lawyers at the Agency in 1976; today, we are well 
over a hundred lawyers, and we expect our staff to grow even 
larger for the foreseeable future.
    Upon my arrival, and frankly, despite still having no idea 
what I was really getting myself into, I was immediately 
immersed in the incredibly diverse nature of CIA's legal 
practice. While it is fair to say I have spent the bulk of my 
career providing guidance on CIA's conduct of covert 
operations, I have also had to address issues in areas ranging 
from administrative and contract law to environmental and tax 
law, not to mention being in the middle of an always active and 
burgeoning litigation caseload.
     The CIA has had its equities and information at stake in 
virtually every major terrorist prosecution in the last two 
decades, along with a large number of other high-profile 
criminal cases.
    Overall, I can't think of a more stimulating, challenging, 
important and rewarding place to work as a lawyer, and I have 
loved going to work every day of my 30-plus years at CIA. So, 
by any measure, I am not new to the world of national security 
law. I come with a track record of more than three decades of 
experience with national security legal issues. I consider that 
to be a significant and unprecedented plus for a nominee to 
this job, and I hope that by the end of this process, the 
Committee concludes that as well.
    Mr. Chairman, I will be responsive and forthcoming in 
answering your questions in this open session. I suspect the 
Committee will have questions, especially with respect to legal 
issues I have been involved in in this post-9/11 era, which I 
can only address in closed session. Again, however, I pledge to 
be informative and candid in responding to those questions.
    Let me briefly address one substantive issue in my remarks, 
and that is the crucial issue of congressional oversight of 
intelligence activities. Until now, the seminal event in my CIA 
legal career took place two decades ago when I was the Agency's 
focal point in dealing with the joint congressional committee 
investigating the Iran-Contra Affair. As the year-long probe 
played out, I saw firsthand the tremendous damage my Agency 
sustained, and all of it stemmed from the fact that as an 
institution, the CIA had kept the Intelligence Committees in 
the dark about a significant high-risk covert action program. 
Worse yet, a few senior CIA officers, people I had worked with 
and admired for years, wound up being prosecuted for misleading 
Congress about their roles in the program. Their careers were 
ruined. The Agency's reputation was sullied. Overall, morale at 
CIA plunged and it took years for the Agency to rebuild its 
relationship with this Committee and its House counterpart.
    The lesson I learned from seeing up close all the damage 
from Iran-Contra has been lasting and indelible to me. It is 
this. CIA courts disaster whenever it loses sight of the 
absolute necessity to inform the intelligence committees on a 
timely basis what they need to know in order to perform 
effective, constructive oversight.
    I say that not just because that is what the law requires, 
and not just because it is wise policy, and not just because 
it's something I think the Committee wants to hear. There is 
yet another compelling, if coldly pragmatic reason that Iran-
Contra brought that lesson home to me, and it is this. The more 
the committees know about what CIA is doing, the more you are 
invested in the process, and the more frankly you will be 
willing and able to protect and defend CIA from the uninformed 
and often false charges of wrongdoing that seem to inevitably 
come our way from those on the outside. It is in that spirit of 
openness and candor that I will endeavor to address the 
Committee's questions, not just today, but down the road as 
well, if the Senate ultimately sees fit to confirm me as CIA 
General Counsel.
    Mr. Chairman, I recognize that a major focus of the 
Committee's attention in considering my nomination will be my 
role in the Agency's actions undertaken in the counterterrorist 
arena in the years following the 9/11 attacks. This is as it 
should be. After all, I have served as the CIA's acting General 
Counsel approximately 4 out of those 5\1/2\ eventful years. As 
I noted at the outset, much of this discussion necessarily must 
be reserved for a closed session. For now, I can say that this 
period has been the most rewarding in terms of service to this 
country, but by far the most challenging of my three-plus 
decades of practicing law at the CIA. While being a CIA lawyer 
has never been dull, the legal issues the Agency has had to 
contend with over the last 5 years would have been 
unprecedented and largely unimaginable to me on September 10, 
2001. A couple of brief examples.
    In the operational arena, CIA, in my experience, had never 
before been authorized to detain and interrogate an individual 
believed to be holding vital national security information. In 
the foreign intelligence collection arena, CIA had never before 
been authorized to collect more volumes of information from 
exponentially more sources, and to analyze and share that 
information faster with our counterparts in the law enforcement 
community, State and local governments, as well as our foreign 
partners.
    While only a very small portion of that information dealt 
with individual Americans, we had to be then, and must continue 
to be constantly mindful of the privacy rights of our fellow 
citizens. These were uncharted territories for me, for the 
Office of General Counsel, and indeed, for the U.S. Government 
as a whole, and we have had to navigate on one of the most 
difficult legal and policy terrains imaginable, in close 
consultation with legal experts throughout the Government.
    Throughout it all, my mission has been to decide every 
issue coming my way in accordance with one basic overriding 
principle that I have followed my entire CIA career. It is 
this--to facilitate CIA's discharge of its vital mission to 
protect the national security and the American people in a 
manner that at all times is faithful and in full compliance 
with the Constitution, U.S. law, and U.S. obligations under 
international treaties.
    Finally, Mr. Chairman, let me briefly address a question 
several long-time colleagues posed to me shortly after my 
nomination was announced, which was, why, as a career CIA 
lawyer for three decades, would you want to give up that status 
after all those years to become a political appointee subjected 
to the rigors and uncertainty of that entire process?
    Well, for me, it came down to two basic reasons. First, it 
is simply a great job. The work is as important as it gets. The 
palpable sense of contributing something to protect the 
Nation's security is there every day. And, as hard as it 
sometimes gets, I have always considered it to be the best job 
I could ever have.
    Second, I would respectfully suggest that the unprecedented 
fact of a career CIA lawyer coming up the ranks and becoming 
General Counsel sends a significant symbolic message to our 
constantly growing, ever-younger office. Namely, it says to a 
new lawyer coming on board that if he or she makes a commitment 
to a CIA career, works conscientiously and hard, even as 
administrations come and go, and maybe catches a few breaks 
along the way, then he or she could realistically aspire to be 
the General Counsel of what I consider to be the most vital 
agency in the U.S. Government in protecting the citizens of the 
United States. For me, establishing that precedent would be an 
immensely gratifying legacy.
    Mr. Chairman, that concludes my statement, and I welcome 
the Committee's questions.
    [The prepared statement of Mr. Rizzo follows with 
attachment.]
                  Prepared Statement of John S. Rizzo
    Mr. Chairman and Mr. Vice Chairman:
    At the outset, let me express my appreciation to you and to the 
Committee for giving me the opportunity to appear before you today. I 
am aware of the Committee's heavy workload this session, covering an 
array of significant policy issues, and I am grateful that you have 
found the time to consider my nomination.
    I come here today halfway through my 32nd year of service as a 
lawyer for the Central Intelligence Agency. Put another way, I have 
spent more than half of my life being a CIA attorney. Accordingly, 
while I was honored and gratified when the President first nominated me 
a little over a year ago, I do not consider myself to be a political 
appointee in the usual sense of that term, and indeed I do not consider 
myself a political person. I am first and foremost a career public 
servant and CIA officer.
    My situation, as I appear before you here today, is unique. Over 
the past 35 years, every previous General Counsel--whether Senate-
confirmed or otherwise--was new to the Agency. If confirmed, I would be 
the first CIA General Counsel ever to come up through the ranks. I do 
not take this distinction lightly.
    To put the span of my CIA career in brief chronological 
perspective, in January 1976, armed with a grand total of 3 years legal 
experience, I joined the Office of General Counsel. It was a critical 
juncture for CIA as an institution. The Church Committee and other 
investigative bodies had just finished exposing controversial and often 
troubling CIA activities in years gone by and were recommending massive 
legal and policy reforms at CIA. The Congressional intelligence 
committees were about to be born, subjecting the Agency to real 
legislative oversight for the first time in its history. George H. W. 
Bush was the CIA Director when I came on board, the first of 10 CIA 
Directors under whom I have served. There were 18 other lawyers at the 
Agency in 1976--today we have well over 100 lawyers, and we expect our 
staff to grow even larger for the foreseeable future.
    Upon my arrival, and frankly, despite still having no idea what I 
was getting myself into, I was immediately immersed in the incredibly 
diverse nature of CIA's legal practice. While it is fair to say that I 
have spent the bulk of my career providing guidance on how CIA conducts 
covert operations, I have also had to address issues in areas ranging 
from administrative and contract law to environmental and tax law--not 
to mention being in the middle of an always active and burgeoning 
litigation case load. CIA has had its equities and information at stake 
in virtually every major terrorist prosecution in the last two decades, 
along with a surprisingly large number of other high profile criminal 
cases. For the Committee's reference, attached at Tab A is a detailed 
summary of the scope of legal work performed by the Office of General 
Counsel. Overall, I cannot think of a more stimulating, challenging, 
important, and rewarding place to work as a lawyer, and I have loved 
going to work every day of my 30 plus years at CIA.
    So, by any measure, I am not new to the world of national security 
law. I come with a track record of more than three decades of 
experience. I consider my long experience with national security legal 
issues to be a significant and unprecedented plus for a nominee to this 
job, and I hope that by the end of this process the Committee concludes 
that as well.
    I will be responsive and forthcoming in answering your questions in 
this open session. I suspect that the Committee will have questions--
especially with respect to legal issues I have been involved with in 
this post-9/11 era--which I can only address in closed session. Again, 
however, I pledge to be informative and candid in responding to those 
questions.
    Let me briefly address one substantive issue in my remarks, and 
that is the crucial issue of Congressional oversight of intelligence 
activities. Until now, the seminal event in my CIA legal career took 
place two decades ago, when I was the Agency's focal point in dealing 
with the joint Committee investigating the Iran/Contra Affair. As the 
year-long Congressional probe played out, I saw first-hand the 
tremendous damage my Agency sustained, and all of it stemmed from the 
fact that, as an institution, CIA had kept the Intelligence Committees 
in the dark about a significant, high-risk covert action program. Worse 
yet, a few senior CIA officers--people I had worked with and admired 
for years--wound up being prosecuted for misleading Congress about 
their roles in the program. Their careers were ruined, the Agency's 
reputation was sullied, overall morale at CIA plunged, and it took 
years for the Agency to rebuild its relationship with this Committee 
and its House counterpart.
    The lesson I learned from seeing up close all the damage from Iran/
Contra has been lasting and indelible to me: It is this: that CIA 
courts disaster whenever it loses sight of the absolute necessity to 
inform the intelligence committees on a timely basis what they need to 
know in order to perform effective, constructive oversight. I say that 
not just because that is what the law requires; not just because it is 
wise public policy; and not just because I think it is something the 
Committee wants to hear. There is yet another compelling, if coldly 
pragmatic reason that Iran/Contra brought that lesson home to me. The 
more the Committees know what CIA is doing, the more you are invested 
in the process, and the more, frankly, the Committees will be willing 
and able to protect and defend CIA from the uninformed and often false 
charges of wrongdoing that seem to inevitably come our way from those 
on the outside. It is in that spirit of openness and candor that I will 
endeavor to address the Committee's questions--not just today, but down 
the road as well, if the Senate ultimately sees fit to confirm me as 
CIA General Counsel.
    I recognize that a major focus of the Committee's attention in 
considering my nomination will be my role in those Agency actions 
undertaken in the counterterrorist arena in the years following the 9/
11 attacks. This is as it should be--after all, I have served as CIA's 
Acting General Counsel approximately four out of those five and one-
half eventful years. As I noted at the outset, much of this discussion 
necessarily must be reserved for a closed session. For now, I can say 
that this period has been the most rewarding (in terms of service to 
this country), but by far the most challenging of my three plus decades 
of practicing law at the CIA. While being a CIA lawyer has never been 
dull, the legal issues the Agency has had to contend with over the past 
5 years would have been unprecedented and largely unimaginable to me on 
September 10, 2001.
    For example, in the operational arena, CIA in my experience had 
never before been authorized to detain and interrogate an individual 
believed to be holding vital national security information. 
Additionally, in the foreign intelligence collection arena, CIA had 
never before been authorized to collect more volumes of information 
from exponentially more sources and to analyze and share that 
information faster with our counterparts in the law enforcement 
community, state and local governments, and our foreign partners. While 
only a very small portion of that information dealt with individual 
Americans, we had to be and must continue to be constantly mindful of 
the privacy rights of our fellow citizens.
    These were unchartered territories for me, the Office of General 
Counsel, and indeed, for the US government as a whole. We have had to 
navigate on one of the most difficult legal and policy terrains 
imaginable in close consultation with legal experts throughout the US 
government. Throughout it all, my mission has been to decide every 
issue coming my way in accordance with one basic overriding principle 
that I have followed my entire CIA career: To facilitate CIA's 
discharge of its vital mission to protect the national security and the 
American people in a manner that at all times is faithful and in full 
compliance with the Constitution, U.S. law, and U.S. obligations under 
international treaties.
    Of course, the Committee deserves to know not just what I have done 
over the years as a CIA lawyer, but also, more importantly, what my 
vision would be for the Office of General Counsel if confirmed in this 
position. In the interest of time, I will briefly touch on two 
objectives I consider crucial to ensure my office remains effective in 
the future.
    First, I intend to continue to press forward my on-going efforts to 
increase the Office of General Counsel's presence and profile in all 
parts of CIA. As I indicated earlier, we have about six times as many 
lawyers here now than on the day I joined. That growth is due largely 
to our success in placing our lawyers ``on the scene'' in every 
component at CIA Headquarters to provide close support and counsel for 
CIA officers, as well as to serve as the General Counsel's ``eyes and 
ears''. The lawyers' presence is not only tolerated by our clients--but 
they want them there and they want more of them. To me, fostering this 
attitude and trend is extremely important for any number of reasons, so 
I am determined to continue in that direction.
    Second, as our office gets ever larger, I want our legal work force 
to be ever more diverse. I am proud that historically we have never 
followed a ``cookie cutter'' approach to hiring--we bring newly minted 
lawyers on from law schools all over the country, as well as 
experienced practioners from private law firms, military JAGS, and from 
other government agencies. In addition, more than half our attorneys 
are women, and roughly 15 percent are minorities. I am encouraged that 
these numbers represent a steady improvement for OGC in this area in 
recent years. Even so, we need to do a better job of attracting 
minorities, and I hope to devote my personal attention and focus in 
this direction if I am confirmed.
    Finally, let me briefly address a question several longtime 
colleagues posed to me shortly after my nomination was announced, which 
is, ``Why, as a career CIA lawyer for three decades, would you want to 
give up that status after all those years to become a ``political'' 
appointee subjected to the rigors and uncertainties of that entire 
process?'' For me, it came down to two basic reasons;
    First, it is simply a great job. The work is as important as it 
gets, the palpable sense of contributing something to protect the 
nation's security is there everyday and as hard as it sometimes gets, I 
have always considered it to be the best job I could ever have. Second, 
I would respectfully suggest that the unprecedented fact of a career 
CIA lawyer coming up the ranks and becoming General Counsel sends a 
significant symbolic message to our constantly growing, ever younger 
office. Namely, it says to a new lawyer coming on board that, if he or 
she makes a commitment to a CIA career, works conscientiously and hard 
even as Administrations come and go, and maybe catches a few breaks 
along the way, then he or she can realistically aspire to be the 
General Counsel of what I consider to be the most vital Agency in the 
US government in protecting the citizens of the United States. For me, 
establishing that precedent would be an immensely gratifying legacy. 
And, I would humbly submit, it would be a healthy thing for the Office 
of General Counsel, the Agency, and ultimately, the country.
                                 ______
                                 
                 Scope of the Office of General Counsel
                      administrative law division
    The General Counsel is responsible for the Agency's ethics program. 
The attorneys in the Administrative Law Division (ALD) provide guidance 
to present and former Agency personnel regarding the requirements of 
Government-wide and Agency-specific ethics statutes and regulations. 
Like other government organizations, we also have an Ethics Compliance 
program to ensure financial disclosure forms are timely completed and 
reviewed, and that we meet Office of Government Ethics (OGE) annual 
training requirements. In fact, OGE recognized our ethics program in 
March 2007 with a Program Award.
    In addition to advising on ethics issues, ALD attorneys also 
provide advice on the full range of administrative law questions, such 
as the proper expenditure of appropriated funds, the payment of travel 
expenses, the provision of training at Government expense, and the 
lawful use of deadly force by Agency personnel. ALD also represents the 
Agency in administrative equal employment opportunity (EEO) cases as 
well as provides EEO awareness training to Agency employees. Finally, 
ALD attorneys provide legal advice to Agency managers on Human 
Resources matters ranging from recruitment to retirement to diversity 
hiring, and in tragic cases, advise the Agency's casualty officer about 
the benefits available to the survivors of Agency personnel who die in 
the line of duty.
                         contract law division
    The Contract Law Division advises the Agency's Office of the 
Procurement Executive and the Office of Acquisitions in all aspects of 
the Agency mission on government contract matters. The lawyers in this 
division provide legal advice during the solicitation, evaluation, and 
negotiation of contracts, including review of source selection 
documentation and sole source justifications, and the final contract 
documents. Contract Law Division is responsible for representing the 
Agency in contract award protests (generally adjudicated by the 
Government Accountability Office) and contract performance disputes 
(generally adjudicated by a Board of Contract Appeals). In addition to 
advising on all aspects of contract formation, the Division attorneys 
advise on the administration of the contracts and all contract-related 
issues, including contract-related fiscal law, intellectual property, 
and organizational conflict of interest issues. The division attorneys 
also advise on all Agency real estate-related transactions, including 
construction and the leasing of real property.
    Contract Law Division also provides legal advice on environmental, 
safety, and health compliance issues for the Office of Medical 
Services' Environmental Safety Group (ESG), and advice on matters 
related to hazardous materials shipments. There is interaction with 
Department of Transportation to obtain regulatory permits (waivers) for 
activities, as needed. Contract Law Division also advises the Agency on 
copyright law and other intellectual property areas, and the settlement 
of Federal Tort Claims Act (automobile) and Military Personnel and 
Civilian Employees' Claims Act (personal property) claims.
                     intelligence support division
    The Intelligence Support Division (ISD) provides legal analysis on 
general legal issues relating to CIA operational activities. It 
supports and complements the Operations Division of OGC, which provides 
specific legal oversight of specific operational activities. ISD 
focuses on issues arising under the Fourth Amendment to the U.S. 
Constitution, various statutes protecting the privacy interests of U.S. 
persons, Executive Order 12333 and various CIA regulations intended to 
ensure that Agency operational activities remain in accordance with 
U.S. law and the Executive Order. ISD focuses primarily on issues ``of 
first impression,'' and one of ISD's primary responsibilities is to 
review new types of intelligence collection activities--particularly 
technical collection activities--to ensure that such activities comply 
with applicable law and regulations.
    ISD also provides legal expertise in specialized areas of the law--
including guidance on tax, import and export issues and certain issues 
of foreign or international law.
                          litigation division
    Litigation Division handles all of the litigation involving the 
Central Intelligence Agency or any of its employees where those 
employees' involvement is due to actions taken in their official 
capacity. Litigation Division's work encompasses both civil and 
criminal litigation. On the civil side, Litigation Division handles 
cases in which the CIA or its employees (in their official capacity) 
have been sued. These cases consist primarily of Freedom of Information 
Act and Privacy Act cases, Federal Tort Claims Act cases, employment 
related cases (such as Equal Employment Opportunity Act, Administrative 
Procedure Act, Bivens, and prepublication review cases), and cases 
regarding contracts.
    On the criminal side, the Division is involved in unauthorized 
disclosure cases in which the classified information that was 
compromised belongs to the CIA. The Division also represents the CIA's 
interests in criminal cases where the Agency has information that is 
discoverable to a defendant. Terrorism cases and narcotics cases 
comprise most of this category. In these cases, CIA uses the Classified 
Information Procedure Act to protect the classified information at 
issue.
    Lastly, the Division handles criminal cases in which a defendant is 
making a claim that his criminal conduct was authorized by the United 
States government generally and CIA in particular, i.e. the public 
authority defense.
                          operations division
    Operations Division is the focal point for questions involving the 
legality and propriety of activities carried out by the National 
Clandestine Service (NCS). The Division is charged with providing legal 
counsel and guidance to the NCS on matters involving clandestine 
intelligence collection and covert action, including matters arising 
under the Congressional notification provisions of the National 
Security Act. To serve the NCS more effectively, the attorneys in this 
Division are co-located with the various divisions and centers within 
the NCS.
    The Division's establishment of rotational positions began in the 
1980's with the placement of attorneys in newly created CIA centers for 
counterterrorism and counternarcotics. Over time, OGC attorneys filled 
positions in other CIA centers as well as all NCS geographical 
divisions. Attorneys in these components serve as clearinghouses for a 
broad spectrum of legal inquiries, including matters involving covert 
action, EO 12333, asset recruitment and termination, export control, 
support to law enforcement, litigation, Congressional notification, 
contracts, and administrative and personnel issues. OD also assists NCS 
components responsible for maintaining the proprietary and cover 
arrangements required to support Agency operations.
                 office of the chief financial officer
    The CFO Legal unit provides legal advice and counsel to the Office 
of the Chief Financial Officer (including the Office of the Procurement 
Executive) and to other Agency components, on a wide range of 
appropriations and fiscal law topics. These include, but are not 
limited to: Federal and Agency budget formulation and execution; Anti-
Deficiency Act; use of expired (prior year) funds; covert action 
resource issues; certain lease and construction issues; Economy Act; 
reprogramming of funds; Federal Managers' Financial Integrity Act; 
Agency's audited financial statements process; and, Congressional 
notification or reporting requirements and directions concerning 
certain of the preceding matters. The CFO Legal team also provides 
guidance (in coordination with Administrative Law Division) to the 
Office of the CFO on Federal employee ethics.
    CFO Legal reviews and authorizes proposed Agency regulations on 
financial administration and acquisition, and reviews and coordinates 
on all other proposed regulations and notices before they are 
published. On behalf of the CFO, CFO Legal reviews and comments on a 
broad spectrum of draft Intelligence Community policy documents, and on 
legislation or similar legislative materials as requested by the 
Agency's Office of Congressional Affairs. CFO Legal also provide 
modules of legal instruction as part of various budget and resource 
management courses offered to CIA employees.
                office of the chief information officer
    The attorneys that provide legal support to the Agency's Chief 
Information Officer (CIO) do so for the diverse components within the 
Office of the CIO, the CIA Privacy and Civil Liberties Program, the 
global communications activities .of the Directorate of Support, the 
Center for the Study of Intelligence, and the DNI's Open Source Center. 
CIO Legal provides guidance on legal issues relating to information 
technology, global communications, privacy and civil liberties, the 
classification and declassification of national security information, 
prepublication review, information sharing, records management, and 
information review and release programs mandated by law.
           office of congressional affairs/legislation group
    Legislation Group is part of the Office of Congressional Affairs 
(OCA). The group provides legislative drafting, monitoring and advice 
to the Director of the Central Intelligence Agency (D/CIA) and to the 
Central Intelligence Agency (CIA). The group's primary functions 
include: Preparing and coordinating the CIA's annual draft of the 
Intelligence Authorization Act; monitoring draft, introduced, and 
pending legislation, and related reports, letters, or testimony to 
determine the potential impact upon the CIA and its activities, and 
coordinating Agency positions on legislation that would affect Agency 
equities; overseeing and having primary responsibility for the 
provision of timely coordinated D/CIA responses to Legislative Referral 
Memorandums from the Office of Management and Budget that seek CIA 
concurrence and/or comments on various legislative proposals, draft 
testimony, or Administration signing statements; monitoring the 
Congressional Record and other sources daily for actions and items of 
interest to the CIA, and keeping CIA leadership and other elements 
informed, as appropriate, of major legislative developments; providing, 
supervising or coordinating the legal advice provided to OCA; and, 
briefing CIA training classes about Congress and Congressional 
oversight.

    Chairman Rockefeller. Thank you very much, Mr. Rizzo. And I 
have four routine questions, which are always asked.
    Mr. Rizzo, do you agree to appear before the Committee here 
or in other venues when invited?
    Mr. Rizzo. Yes, sir.
    Chairman Rockefeller. Do you agree to send the Office of 
General Counsel personnel here before the Committee and 
designated staff when invited?
    Mr. Rizzo. Yes. Yes, sir.
    Chairman Rockefeller. Do you agree to provide documents or 
any material requested by the Committee in order for it to 
carry out its oversight and its legislative responsibilities?
    Mr. Rizzo. Yes, sir.
    Chairman Rockefeller. Will you work to ensure that all CIA 
elements provide such material to the Committee when requested?
    Mr. Rizzo. Yes, sir.
    Chairman Rockefeller. Let me just start. You made an 
interesting distinction as you spoke about 2000 and forwards 
and 2000 and backwards. I'm not quite prepared to make that 
distinction, if we do it in the proper way, which does not in 
any way involve national security secrets or anything of that 
sort. But there are some general questions I think that one can 
ask that are of interest to this Committee, and so I will.
    Without getting into any classified details of the CIA's 
interrogation program, did you, as acting CIA General Counsel, 
issue legal guidance, prior to the program's start, that the 
program's interrogation techniques did not violate the Fifth, 
Eighth or Fourteenth Amendments of the U.S. Constitution?
    Mr. Rizzo. Yes, sir.
    Chairman Rockefeller. Now, the ``yes, sir'' means that you 
did, yes.
    Did the Department of Justice issue a legal opinion prior 
to the program's start that the interrogation techniques would 
not constitute conduct of the type that would be prohibited by 
the U.S. Constitution, and did you concur with this opinion?
    Mr. Rizzo. The Department of Justice, before the program 
began, did issue guidance relative to the issue of the program 
by laying the terms of the torture statute. That at that time 
was the extent of the legal guidance we received from the 
Department of Justice prior to the program's initiation.
    Chairman Rockefeller. OK.
    As acting CIA General Counsel in 2002, did you issue legal 
guidance that the interrogation techniques to be used by the 
CIA were lawful under the Convention Against Torture and the 
Geneva Convention?
    Mr. Rizzo. In 2002, yes, sir.
    Chairman Rockefeller. Both.
    Mr. Rizzo. Yes, sir.
    Chairman Rockefeller. Mr. Rizzo, during the operation of 
the CIA detention and interrogation program, were you made 
aware of any concerns expressed by CIA officers that they could 
be exposed to criminal prosecution for their involvement in the 
program?
    Mr. Rizzo. I'm sorry--at the outset of the program or in 
the course of the entire program?
    Chairman Rockefeller. In the course of.
    Mr. Rizzo. There have been some concerns so expressed, yes, 
sir.
    Chairman Rockefeller. We could discuss that in closed 
session.
    Mr. Rizzo. Yes, sir.
    Chairman Rockefeller. You can refuse to answer if you 
choose. What was the nature of these concerns, and what action 
did you take to address them?
    Mr. Rizzo. Well, it would be difficult to get into the 
nature of the concerns. I think I'd just--if you don't mind, I 
think I'd best address that in closed session.
    Chairman Rockefeller. That is your right.
    Final question from me, Mr. Rizzo. The Department of 
Justice's Office of Legal Counsel drafted an unclassified memo 
dated August 1, 2002 about standards of conduct under the 
Convention Against Torture and the criminal prohibitions on 
torture. That opinion concluded that physical pain amounting to 
torture must be ``equivalent in intensity to the pain 
accompanying serious physical injury such as organ failure, 
impairment of bodily function, or even death,'' and that 
prosecution under the criminal torture statue might be barred 
``because enforcement of the statute would represent an 
unconstitutional infringement of the President's authority to 
conduct war.'' The opinion was later repudiated by the Office 
of Legal Counsel.
    Did you concur with the legal analysis in this memo?
    If not, what portions did you disagree with?
    Mr. Rizzo. I obviously was aware of that legal memo when it 
was issued on August 1, 2002. I did not, certainly, object to 
the memo. As with most legal memos, my reaction was it was an 
aggressive, expansive reading, but I can't say that I had any 
specific objections to any specific parts of it. I do agree 
with the Department of Justice later analysis that the language 
that you cited did appear overbroad for the issue that it was 
intended to cover.
    Chairman Rockefeller. Thank you, sir.
    The Vice Chairman.
    Vice Chairman Bond. Thank you very much, Mr. Chairman.
    Mr. Rizzo, Senator Wyden and I have been seeking for some 
time in this session, as Chairman Roberts and Vice Chairman 
Rockefeller did in the past session, an unclassified, redacted 
version of the executive summary of the June 2005 CIA's 
Inspector General's report on accountability in terrorist 
attacks. This was a defining moment for the Nation, for the 
agency, and the American public has had a tremendous amount of 
information about all the things leading up to that and where 
our governmental agencies were, and they've had access to most 
of the Department of Justice's Inspector General report on the 
FBI and 9/11.
    Is there any legal reason why an unclassified, redacted 
version of the executive summary has not been provided to us 
and the public?
    Mr. Rizzo. No legal reason, no, sir.
    Vice Chairman Bond. Would you advise the Director of that, 
with our warm request?
    Mr. Rizzo. I will. I will.
    Vice Chairman Bond. Thank you.
    Mr. Rizzo, 9/11 clearly marked a milestone in the 
development and interpretation of counterterrorism laws. We've 
seen the Administration's proposal to update FISA, but there 
are other areas in which changes to current law are needed in 
order fully to address threats. There has been some discussion 
that Executive Order 12333 needs to be updated, particularly 
with regard to presumptions regarding U.S. persons.
    Are there that or any other general areas that you think we 
need to be looking at?
    Mr. Rizzo. Well, you know, with respect to the Executive 
Order 12333, which has been on the books for 25 years, and 
actually existed in slightly different iterations several years 
before that, it does need updating. I happen to believe, 
however, that the intelligence community has lived with its 
terms for a good period of time now, so I can't say that any of 
the substantive provisions in that order have hamstrung or 
damaged the community.
    Vice Chairman Bond. The WMD Commission recommended a 
working group to review U.S. persons rules governing 
collection, retention and dissemination of information across 
the IC. Were you involved in the review? If so, what's the 
status? Are there any changes we expect to see and how changes 
impact the operations of the agency?
    Mr. Rizzo. That review, Senator, has been ongoing under the 
aegis of the Director of National Intelligence's Office of 
General Counsel. We in CIA General Counsel's Office have played 
a role in that. I believe the process is well along, and I 
believe the group will be ready with some recommendations in 
the near future.
    Vice Chairman Bond. In your responses to prehearing 
questions, you noted the decision whether to allow CIA to 
conduct electronic surveillance within the United States is a 
question for the policymakers, and said its prohibition is not 
required under the Constitution.
    While the decision may be one for policymakers, are there 
legal and practical implications to allowing CIA to conduct 
electronic surveillance, and/or do you believe the prohibition 
should be lifted or modified, or should domestic surveillance 
activities be limited to the FBI?
    Mr. Rizzo. I happen to believe, Senator, that the CIA can 
continue to be effective in its assigned mission, in its 
expanded mission without any domestic surveillance authority 
capability, so I do believe, on a number of grounds, that that 
area is best left to the FBI and other domestic law enforcement 
agencies.
    Vice Chairman Bond. Thank you very much, Mr. Rizzo.
    Thank you, Mr. Chairman.
    Chairman Rockefeller. Senator, thank you.
    Senator Warner.
    Senator Warner. Thank you, Mr. Chairman. I'll be quite 
brief here so we can get to the closed hearing hopefully.
    I wish to compliment you on your opening statement. I 
listened to it very carefully. Clearly, it is a thoughtful 
document that you worked on for some time and expresses your 
innermost feelings about the challenges that lay ahead and how 
you're going to discharge those responsibilities. So I'd say 
well done, sir.
    The Supreme Court's 2006 decision in Hamdan versus Rumsfeld 
has been interpreted to provide protections under Common 
Article III of the Geneva Convention to unlawful combatants and 
particularly al-Qa'ida. Prior to that decision, is there some 
unclassified references that you would have to such legal 
advice as you gave the department interpreting the requirements 
of the Geneva Convention toward unlawful combatants?
    Mr. Rizzo. I will check if there is some unclassified 
advice. This whole area--over the years, we have tended to be 
encased in a highly classified program, but I will check on 
that.
    Senator Warner. All right.
    Mr. Rizzo. And the implication of Hamdan, obviously, was 
for the Supreme Court holding that Common Article III of the 
Geneva Convention did apply to the conflict with al-Qa'ida.
    Senator Warner. And you'll provide the Committee with such 
unclassified material as may have existed prior to that 
decision?
    Mr. Rizzo. Yes, sir.
    Senator Warner. And I thank you.
    I have no further questions.
    Chairman Rockefeller. Thank you, Senator Warner.
    Senator Whitehouse.
    Senator Whitehouse. Thank you.
    I'd like to ask a little bit about your notions of 
oversight in the context of a government of separated powers. 
And let me start by asking the broadest question, which is that 
although the Constitution tends to divide decisionmaking in 
certain areas between judicial, executive and legislative 
branches, there does not appear evident to me anywhere an area 
where congressional oversight, as opposed to decisionmaking, is 
forbidden.
     And in the scope of the activities that you are familiar 
with in the intelligence community, and without getting into 
any classified details, do you believe that there is any area 
of intelligence activity that is properly beyond congressional 
oversight?
    Mr. Rizzo. No, sir.
    Senator Whitehouse. There are various documents from the 
Office of Legal Counsel at the Department of Justice and from 
other Department of Justice elements regarding the 
counterterrorism program, in many respects essential documents, 
providing legal justification for various elements of the 
program, that we have not been provided. And I'm interested in 
your explanation of the justification for this Committee not 
being provided those documents, in light of what you have just 
said.
    Mr. Rizzo. Well, if I could characterize the Justice 
Department position in this regard, this is--these documents 
are part of the deliberative process of advice offered by the 
Department of Justice to other agencies in the executive 
branch, and the need for confidentiality in those 
communications.
    Senator Whitehouse. So it's a deliberative process 
privilege claim?
    Mr. Rizzo. Correct.
    Senator Whitehouse. Is there any other legitimate claim 
that protects them.
    Mr. Rizzo. Well, all I can tell you from the CIA's 
standpoint, there certainly would be no sources and methods or 
operational reason why we would independently withhold them 
from the Committee.
    Senator Whitehouse. Are you aware of whether there are 
other opinions of the Office of Legal Counsel in other areas 
that are equally kept from public or congressional review under 
this basis? I mean, it seems to me, there are an awful lot of 
OLC opinions that are published and catalogued, and you can go 
look them up.
    Mr. Rizzo. Yeah, no, there are. As we speak here today, 
certainly there are no other opinions to CIA that fall into 
that category. And I would add, Senator, you know, in the 
course of my long career at CIA, past Office of Legal Counsels, 
and I can't cite you chapter and verse of what those opinions 
were, have held guidance back that they've provided to CIA on 
similar grounds. So this is not an entirely new phenomenon 
here.
    Senator Whitehouse. Let me ask you one other question on 
another topic. Recently General Petraeus sent a letter to all 
of our forces in Iraq, and he wrote the following:
    ``Some may argue that we would be more effective if we 
sanctioned torture or other expedient methods to obtain 
information from the enemy. They would be wrong. Beyond the 
basic fact that such actions are illegal, history shows that 
they also are frequently neither useful or necessary.
    ``Certainly extreme physical action can make someone 
`talk.' However, what the individual says may be of 
questionable value. In fact,'' he went on to say, ``our 
experience in applying the interrogation standards laid out in 
the Army Field Manual on Human Intelligence Collector 
Operations that was published last year shows that the 
techniques in the manual work effectively and humanely in 
eliciting information from detainees.''
    Do you believe that statement by General Petraeus to be 
correct?
    Mr. Rizzo. Yes, I don't have an objection to that 
statement.
    Senator Whitehouse. Do you believe that the use of enhanced 
interrogation techniques, to use a phrase that--my light is on.
    I won't proceed to the second question.
    Mr. Chairman.
    Chairman Rockefeller. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    And welcome to you, Mr. Rizzo. When we met last week, you 
and I discussed some specific documents that I've requested to 
be provided to the Committee. I understand the CIA is reviewing 
those documents so that they can be turned over. Have you made 
any progress on those reviews?
    Mr. Rizzo. We're working on them now, Senator. We didn't 
actually receive the documents until the day after our meeting. 
So we're working very hard on them.
    Senator Levin. The Chairman made reference to the first 
Bybee memo, which said that for an act to constitute torture, 
it must inflict pain that's difficult to endure. Physical pain 
amounting to torture must be equivalent in intensity to the 
pain accompanying serious physical injury, such as organ 
failure, impairment of bodily function, or even death.
    The Chairman asked you the question, and I didn't think you 
directly answered it, so let me ask it again. Did you agree 
with that conclusion at the time?
    Mr. Rizzo. I thought that particular piece was--was 
overbroad.
    Senator Levin. Did you not tell me that you thought it was 
a reasonable statement?
    Mr. Rizzo. Well, I thought--I believe I told you I thought 
that the opinion on the whole was a reasonable one, persuasive 
document.
    Senator Levin. But that particular statement, did you not 
tell me that you thought that was a reasonable conclusion?
    Mr. Rizzo. If I did, Senator, I meant to put it in a 
different context. I mean, I wanted to make the point to the 
Chairman that I did not object to that statement at the time; I 
did not.
    Senator Levin. Now, on Bybee number two, did you request 
that the Office of Legal Council produce that memo?
    Mr. Rizzo. Yes, sir.
    Senator Levin. And who gave the Department of Justice the 
interrogation practices which they analyzed?
    Mr. Rizzo. Well, the----
    Senator Levin. Did you do that?
    Mr. Rizzo. My office was the vehicle for getting that to 
the Department of Justice, yes, sir.
    Senator Levin. And you were in charge of the office?
    Mr. Rizzo. Yes, sir.
    Senator Levin. Was the definition of torture in the first 
Bybee memo the basis for determining whether the interrogation 
techniques evaluated in the second Bybee memo were legal under 
the anti-torture statute?
    Mr. Rizzo. Well, they were--as you know, they were issued 
on the same day, and in many respects, they play off each 
other. I, frankly, was more concerned and relied more heavily 
on the classified guidance of the second Bybee memo that was 
addressed specifically to us.
    Senator Levin. But do you know the answer to my question?
    Mr. Rizzo. I'm sorry.
    Senator Levin. Let me go on to another one, then.
    At the time that it was approved in 2002, did you think 
that the CIA's interrogation program was humane--at that time?
    Mr. Rizzo. The--I'm trying to be responsive in a way that--
without getting into a detailed explanation.
    We believed then and we have believed throughout this 
process that the CIA program, as it was conceived--the 
procedures, the criteria, when taken in total leads to the 
conclusion--justifies the conclusion that the program was from 
the outset and remains conducted in a humane fashion.
    Senator Levin. Why is it so complicated to answer a very 
direct question that you think the CIA's interrogation program 
was humane at the time that it was approved?
    Mr. Rizzo. OK, well, I'm sorry. I was trying to answer. I 
found it complicated because to get the----
    Senator Levin. Well, let me ask it again, then.
    Mr. Rizzo. OK.
    Senator Levin. At the time it was approved in 2002, did you 
think the CIA's interrogation program was humane?
    Mr. Rizzo. Yes, sir.
    Senator Levin. Is that what you told me in the office?
    Mr. Rizzo. I hope that's what I told you in the office 
because that's what I believe.
    Senator Levin. All right. Have we ever rendered or has CIA 
ever rendered to countries detainees that--excuse me. Have 
detainees been rendered by us, including the CIA, to countries 
that use torture?
    Mr. Rizzo. That's an important question, and the only way I 
could give you the proper answer would be in a classified 
session.
    Senator Levin. You can't even answer in an unclassified--
I'm not asking you which countries. I'm just asking you whether 
we've ever rendered detainees to countries which use torture.
    Mr. Rizzo. Well, again, if you don't mind, Senator, it's 
difficult to give a yes or no answer to that in an open 
session. I would just greatly prefer to give it the attention 
it deserves in our closed session.
    Senator Levin. Thank you. Thank you, Mr. Chairman.
    Chairman Rockefeller. Is that it, Senator Levin?
    Senator Feinstein. We have a vote which started at 3:20.
    Oh, I'm sorry. I'm sorry, Senator Feinstein. Senator Wyden.
    That's my mistake, and I apologize to you. Senator Wyden is 
here.
    Senator Wyden. Thank you very much, Mr. Chairman.
    Mr. Rizzo, thank you very much for your response to Senator 
Bond's question with respect to the CIA Inspector General 
report. That's very important and very much in the public 
interest.
    Just so we're clear on this Bybee amendment, because I know 
a number of colleagues have asked about it, the key part of 
that memo is the question of inflicting physical pain and it 
not being torture unless the pain is equivalent to organ 
failure and the related circumstances.
    Do you think you should have objected at the time?
    Mr. Rizzo. I honestly--I can't say I should have objected 
at the time. I read the opinion at the time. As I say, I want 
to emphasize that there was a companion opinion issued to us 
that did not contain that sort of language and that really we 
relied on.
    But no, I can't honestly sit here today and say I should 
have objected to that.
    Senator Wyden. I think that's unfortunate, because it seems 
to me that language, on a very straightforward reading, is over 
the line. And that's what I think all of us wanted to hear, is 
that you wish you had objected.
    Mr. Rizzo, is the CIA bound by the Geneva Convention, 
particularly Article III? And I would like to know if you think 
we're bound by Article III in its entirety.
    Mr. Rizzo. Well, we're certainly bound by Article III of 
the Geneva Convention as interpreted and made in statutory form 
by the Congress, yes, sir.
    Senator Wyden. So--in its entirety?
    Mr. Rizzo. In its entirety as interpreted and enacted by 
statute, yes, sir.
    Senator Wyden. I believe that ``as interpreted'' means that 
you comply with it in its entirety? I'll just ask it once more.
    Mr. Rizzo. Yes, sir.
    Senator Wyden. Thank you.
    Now, as the occupying power in Iraq, the United States has 
certain legal privileges and responsibilities. If we start to 
draw down the number of U.S. troops in Iraq, at what point 
would our occupation end?
    Mr. Rizzo. Oh, boy, Senator. That is outside my lane. I 
don't profess to be an authority on occupying power and drawing 
down of forces. I'm sorry.
    Senator Wyden. Well, I'm asking from a legal standpoint. 
I'm asking about the legal terminology. Do you believe our 
occupation is over?
    Mr. Rizzo. As a legal matter, Senator, I'll be happy to 
research that. I just have never had occasion to research that 
particular issue. It doesn't impact directly on CIA or CIA 
personnel there.
    Senator Wyden. You emphasized the importance of keeping the 
Congress and the Committee fully and currently informed about 
intelligence activities, which is required by law.
     Do you believe that the Committee was kept fully and 
currently informed, as the statute also requires, about the 
CIA's detention program?
    Mr. Rizzo. Well, as you know, for a considerable period of 
time the interrogation techniques aspect of the program was 
kept to the leadership of the Committees. It has now been 
briefed to the full Committee.
    As you also know, there are provisions in the National 
Security Act allowing limited notifications in certain 
extraordinary circumstances. So I believe the way the matter 
was briefed originally was legally appropriate. I do believe 
that I certainly am more comfortable and feel better now that 
the whole Committee has been briefed into the program, yes, 
sir.
    Senator Wyden. So you would say, though, that keeping only 
two Members of the Committee informed--because that is what we 
faced under this program--is still keeping the Committee fully 
and currently informed?
    Mr. Rizzo. Well, as I say, the law does allow--first of 
all, let me----
    Senator Wyden. I want to hear your opinion. I want to hear 
your opinion as to whether having two Members of this Committee 
constitutes keeping the Committee fully and currently informed. 
Does it?
    Mr. Rizzo. I do believe the law does allow in certain 
extraordinary instances for that system of reporting.
    Senator Wyden. I'd just like to ask it once again. Do you 
in your opinion think having two Members of the Committee know 
about something like this, of this importance, constitutes 
keeping the Committee currently and fully informed?
    Mr. Rizzo. I think it's a legally appropriate step.
    Senator Wyden. Thank you.
    Thank you, Mr. Chairman.
    Chairman Rockefeller. I'm going to make a Chairman's 
decision here. We only have about 5 minutes left in a vote, and 
Vice Chairman Bond has gone off to vote. What I would suggest 
is we adjourn and come right back. We will vote--there's only 
one vote, Mr. Rizzo--then we'll be right back. That way, we all 
get to vote.
    Senator Levin. Mr. Chairman, could I make a unanimous 
consent request?
    Chairman Rockefeller. Of course.
    Senator Levin. I'd ask unanimous consent that a statement 
of the President in December of 2005 that we do not render to 
countries that torture--a statement made in public--be inserted 
in the record at this point, in contrast to Mr. Rizzo's 
statement that he could not answer that question in public.
    Chairman Rockefeller. It will be done.
    [The information referred to follows:]
    [GRAPHIC] [TIFF OMITTED] 41205.012
    
    [GRAPHIC] [TIFF OMITTED] 41205.013
    
    Chairman Rockefeller. The Committee stands in recess.
    [Recess.]
    Vice Chairman Bond [presiding]. This hearing will 
reconvene, and again, with apologies for the Senate schedule. 
But I know Mr. Rizzo is familiar with how that always messes 
things up.
    And I believe Senator Feingold is up to ask questions.
    Senator Feingold. I thank the Vice Chairman for starting up 
the hearing.
    Welcome, Mr. Rizzo.
    Let me ask you, are the statutes governing the authorities 
of the CIA binding or are they subject to Presidential 
assertions of Article II authority to violate the law?
    Mr. Rizzo. No, Senator, all statutes affecting CIA are 
clearly binding on CIA.
    Senator Feingold. Regardless of Article II authority?
    Mr. Rizzo. Well, I mean, sure. I mean----
    Senator Feingold. OK.
    The National Security Act provides that the CIA shall have 
no police, subpoena or law enforcement powers or internal 
security functions. Is this law binding or is it subject to 
Presidential assertions of Article II authority to violate the 
law?
    Mr. Rizzo. Well no, I mean, I've always considered that--
that is one of the earliest statutes on CIA, and yes, I 
consider it binding.
    Senator Feingold. So the President cannot override it 
simply based on Article II authority; correct?
    Mr. Rizzo. That's my--that would be my opinion, yes, sir.
    Senator Feingold. In 2002, the Department of Justice 
concluded even if an interrogation method might violate the 
statutory prohibition against torture, the statute would be 
``unconstitutional if it impermissibly encroached on the 
President's constitutional power to conduct a military 
campaign.''
    Do you believe that the statutory prohibition against 
torture encroaches on the President's constitutional power?
    Mr. Rizzo. No. The statutory prohibition on torture is 
absolute. There are no countervailing considerations. So no, 
that's an absolute ban.
    Senator Feingold. The 2002 Department of Justice memo also 
concluded that an official could not be punished under the 
statutory prohibition on torture for ``aiding the President in 
exercising his exclusive constitutional authorities.''
    Do you believe that an individual who violates the law can 
use a Presidential authorization as a defense?
    Mr. Rizzo. No. A violation of law is a violation of law.
    Senator Feingold. Thank you.
    Do you agree that any intelligence activity that has 
foreign policy implications should be notified to the full 
Senate Intelligence Committee?
    Mr. Rizzo. I wouldn't go that far, Senator. I believe the--
you know, all covert actions or all intelligence activities--
the Intelligence Committee should be kept fully and currently 
informed as the law provides.
    Senator Feingold. Well, I'm a little concerned, as a Member 
of the Foreign Relations Committee. You indicated that you 
would not necessarily agree with that, correct?
    Mr. Rizzo. Correct.
    Senator Feingold. I'm also a Member of the Foreign 
Relations Committee as well as the Intelligence Committee, so 
I'm a little puzzled by that. When this Committee was 
established 30 years ago, the Senate specifically intended that 
members of the Foreign Relations Committee be represented so 
that intelligence activities could be considered in their full 
policy context. Refusing to disclose this information to those 
Members seriously undermines congressional oversight of both 
intelligence and foreign policy, so I hope you will consider 
your opinion on that. And would you like to respond again?
    Mr. Rizzo. Well, no, only to say I read your letter you 
sent Director Hayden a few weeks ago on this subject. I found 
it thoughtful and thought-provoking and certainly I take your 
points.
    Senator Feingold. Do you agree that an intelligence 
activity should not be kept from the full Senate Intelligence 
Committee, merely because it's based on a novel or 
controversial legal theory?
    Mr. Rizzo. No. No, I believe the law requires the 
committees to be fully and currently informed of all 
intelligence activities.
    Senator Feingold. I thank you, sir, for your answers.
    Thank you, Mr. Chairman.
    Vice Chairman Bond. Thank you, Senator Feingold.
    I'm was a little bit puzzled about some of your answers, 
Mr. Rizzo. When you're dealing with the President's authority 
as Commander in Chief under Article II and also, in some 
instances, under the foreign intelligence surveillance 
provision, does his power not supersede statutory limitations 
which may infringe on that or give power which is not otherwise 
specifically authorized by Congress?
    Mr. Rizzo. Well, sir, first of all, I can't sit here and 
tell you I'm a constitutional law expert in this regard.
    Vice Chairman Bond. I used to try it, but I thought a 
constitutional provision generally superseded a statutory 
provision. Is that not the kind of basic Law 101?
    Mr. Rizzo. I believe that's correct. I was trying to answer 
the question--the Senator's question in the context of 
intelligence activities. As you know, CIA intelligence 
activities certainly have been governed and been governed, as 
long as I've been involved, based on statutory dictates and 
statutory requirements. That was the point I was trying to 
make.
    Vice Chairman Bond. Right. And we understand that. But if 
the present President issued an order--or, for example, if the 
President determines in the national security to keep something 
classified or limited access, that is within his power--that's 
beyond the CIA. In other words, the CIA does not make the 
decisions when they come to the Presidential level under 
Article II.
    Mr. Rizzo. Sir--I mean, clearly in the area of activities 
that I'm most familiar with, in terms of, let us say, limited 
notification of covert action activities, the President makes 
that determination on limited notice, yes, sir.
    Vice Chairman Bond. I had a couple other questions I wanted 
to ask. As a lawyer dealing with it directly, I'd like to know 
your assessment of the efficacy of the Intelligence Reform and 
Terrorism Prevention Act, whether the creation of a Director of 
National Intelligence has been beneficial and whether you think 
that Director has the statutory authority needed to make the 
new plan work.
    Mr. Rizzo. First of all, I believe the current statutory 
authority granted the DNI, at least to my lights, are adequate 
for him to carry out the responsibilities he's been given. My 
reaction thus far to the effects of the Intelligence Reform 
Act--still a work in progress. I have a very close relationship 
with my counterpart in the Director of National Intelligence 
General Counsel. We have a very strong relationship. We 
complement each other. So in terms of my sphere, I believe the 
Act and the office has worked out well.
    Vice Chairman Bond. I've been very much concerned about the 
impact of leaks, notable and unfortunate, of vital intelligence 
programs. Can you describe in general, without getting into 
specifics, what impact these may have had on the ability of the 
intelligence community to carry out its responsibilities? And 
do you have suggestions on what can be done to protect national 
security from these unauthorized disclosures?
    Mr. Rizzo. Yes, sir. Of course, being in CIA as long as I 
have, I've had to--I have been an observer and also a 
participant in the leak referral process. I will say a couple 
of things. The unauthorized disclosures of classified 
information, at least to my lights, have proliferated in the 
last several years, have gotten far more damaging than I can 
recall them ever being. In recent times, you know, different 
kinds of leaks have different kinds of impact, but I can't 
remember a time like the recent history where leaks have caused 
such significant and real damage to intelligence equities, so I 
believe it's an extraordinarily serious and, for that reason, 
growing problem.
    Vice Chairman Bond. What needs to be done?
    Mr. Rizzo. Well, I mean, I think, we have to be--and when I 
say we, I believe the executive branch, of which I am part--for 
our part we have to be much more disciplined in the way we 
protect classified information. I believe the oversight 
committees, the oversight system--you know, that is not the 
problem. I believe that we just have to--you know, all I know 
about is the executive branch. My own view----
    Vice Chairman Bond. How about prosecuting some of them?
    Mr. Rizzo. Well, if we can find them, Senator, we try to 
prosecute them. I just think we have to be more disciplined. I 
think far too many people know far too much, and we have to, I 
think, be more disciplined in keeping truly secret information 
in tightly held compartments.
    Vice Chairman Bond. Thank you very much, Mr. Rizzo.
    Mr. Rizzo. Thank you.
    Vice Chairman Bond. Mr. Chairman.
    Chairman Rockefeller [presiding]. Thank you very much, Mr. 
Vice Chairman.
    Senator Feinstein, I don't mean to catch you unawares here, 
but nobody catches you unawares.
    Senator Feinstein. Well, that's not quite true, but I very 
much appreciate the sentiment.
    Chairman Rockefeller. But you are up.
    Senator Feinstein. Thank you very much.
    Mr. Rizzo, I'm sorry. I've been in and out, and I know I've 
missed some. But I'd kind of like to go back to the questioning 
of Senator Wyden and Senator Levin.
    I happen to have a very strong belief that the legal 
foundation on which torture was based was deeply flawed. And I 
mean, if you were part of that legal foundation, it's very 
difficult for me to vote for you. Because I believe that one of 
the reasons we are so hated abroad is because we appear to be 
hypocrites. We say one thing and we practice another. So I'm 
just going to try in a simple way to get some yes or no 
answers, and I know that may be difficult for you.
    Do you interpret Common Article III to prohibit all 
humiliating and degrading treatment, or only humiliating and 
degrading treatment that meets the threshold of being an 
outrage? And Common Article III prohibits outrages upon human 
dignity, in particular humiliating and degrading treatment.
    Mr. Rizzo. Yes, I would not object to your characterization 
of Common Article III. If I could, Senator, with your 
indulgence----
    Senator Feinstein. But you are saying--you are interpreting 
that you have to meet the threshold of a so-called outrage. Is 
that correct?
    Mr. Rizzo. Outrage is--yes. Outrage on personal dignity, in 
particular humiliating and degrading treatment, yes.
    Senator Feinstein. Well, how would you evaluate that?
    Mr. Rizzo. In terms--again, I think this is an area where I 
could be most helpful and informative in a classified session. 
I take it the premise of your question is: How do I evaluate 
that in the context of the interrogation program over the 
years? Well, I'm delighted to do that. I just feel constrained 
in this atmosphere, Senator.
    Senator Feinstein. OK. All right. Well, let me try this 
one.
    Was Common Article III applied to people like the 14 high-
value detainees that are now in Guantanamo while they were in 
CIA custody?
    Mr. Rizzo. Common Article 13, as you know, the Supreme----
    Senator Feinstein. Common Article III.
    Mr. Rizzo. I'm sorry. Common Article III of the Geneva 
Convention were applied to certainly the 14. However, it was 
not until June 1996 that the Supreme Court held that Common 
Article III applied to the al-Qa'ida conflict. Prior to that 
time, based on existing authorities and existing precedents, 
enemy combatants, as you know, were not considered to come 
within the rubric of Common Article III--Common Article III, 
yes.
    Senator Feinstein. So you said the date was September 12?
    Mr. Rizzo. No, no. The date was the date of the Hamdan 
case.
    Senator Feinstein. Hamdan----
    Mr. Rizzo. June 2006. So my point is, Senator, they were 
held--obviously, they were captured and held before that time. 
I can't tell you that before the time of the Hamdan decision 
that Common Article III--that we applied--that those standards 
were applied to enemy combatants like they were.
    Senator Feinstein. Well, now, Senator Levin asked you the 
same question I'm asking, but in a somewhat different way. Is 
the CIA bound by Common Article III? And your answer was, ``and 
as interpreted.'' I'd like to ask one more time--and I don't 
mean to push you, but can you answer that question yes or no?
    Mr. Rizzo. Well, yes. I wasn't trying to be disingenuous or 
avoid the question. It's just, as you know, the Congress, in 
the wake of the Hamdan decision, passed the Military 
Commissions Act some months later, which took the Hamdan 
decision, applied Common Article III, established specific war 
crimes. That was my only point, that Common Article--that 
Congress in its statutory role interpreted and applied Common 
Article III as to make it legally binding on the U.S. 
Government.
    Senator Feinstein. Let me ask you how you look at this job. 
In considering legal opinions in the area of detention, 
interrogation and rendition, would the Office of General 
Counsel look at or advise the Director only on legality, or 
would you make recommendations based on matters such as the 
impact on the Nation's international standing, or whether 
United States actions in these areas will affect the ways 
United States military or other personnel be treated if they 
are detained?
    Mr. Rizzo. Yes, that would certainly be within the role of 
the General Counsel. It's frankly one of the things I've always 
found most rewarding about being a lawyer at CIA, is that one's 
opinion is solicited and listened to, not just on strictly 
legal issues, but also policy, operational, matters of 
congressional relations across the board. So sure. My advice 
would not be limited--never has been limited to straight legal 
conclusions.
    Senator Feinstein. OK. My time is up. Thank you, Mr. 
Chairman.
    Chairman Rockefeller. Thank you, Senator Feinstein.
    I just have two questions, and then, unless others have 
questions, then we will go to the second phase of this.
    The Detainee Treatment Act prohibits ``cruel, inhuman or 
degrading treatment or punishment.'' What do you understand 
this prohibition to mean, and how is it different from the 
Common Article III prohibition that you and Senator Feinstein 
were discussing?
    Mr. Rizzo. Well, the prohibitions are actually somewhat 
similar. The Detainee Treatment Act, as you know, Senator, was 
enacted at the end of 2005. The Military Commissions Act, in 
the wake of the Hamdan decision, was enacted in late 2006. So 
we view them as complementary statutes.
    The Article III, the cruel, inhuman and degrading treatment 
or punishment standard--just to cut to the chase--as a legal 
matter; involves a test of what is called shocking--``shocks 
the conscience.'' Certain government--the Due Process Clause 
bars interrogation techniques that ``shock the conscience.'' So 
that would be the applicable legal standard I would say in both 
statutes.
    Chairman Rockefeller. Shock the conscience.
    OK. This is my final question for here. The Military 
Commissions Act of 2006 gives the President the authority to 
interpret the meaning and application of non-grave breaches of 
the Geneva Convention, and to promulgate administrative 
regulations for non-grave breaches of the Geneva Convention.
    Have such administrative regulations been promulgated by 
the CIA?
    Mr. Rizzo. Not to date. As you know, we are awaiting the 
President's Executive order, which would be the next step in 
the process.
    Chairman Rockefeller. If you could make that more clear for 
me. ``Not to date.'' In other words, no?
    Mr. Rizzo. No, the CIA has not issued administrative 
regulations in this arena, as of today.
    Chairman Rockefeller. The reason I just wanted to parse 
words a little bit is because I got a legal lesson from Senator 
Levin when I asked you in my opening question, did you object 
to--no--or you answered, ``I don't object to.'' And what he 
pursued with was, ``Did you approve?'' And of course I'm not a 
lawyer, he is. And I learned that little lesson. That's 
accusing you of nothing, it's just me saying that I learned 
from that experience.
    Mr. Rizzo. No, that's very good. I mean----
    Chairman Rockefeller. You think I did well?
    [Laughter.]
    Chairman Rockefeller. Thank you.
    Has the President established the administrative rules and 
procedures for compliance with the Detainee Treatment Act 
provision on ``cruel, inhuman or degrading treatment or 
punishment,'' as referenced in the Military Commissions Act?
    Mr. Rizzo. Not to date, no, sir.
    Chairman Rockefeller. It has not?
    Are there limits on how the President can interpret non-
grave breaches of Common Article III of the Geneva Convention? 
Does the President have the authority under the Military 
Commissions Act to interpret this prohibition on ``humiliating 
and degrading treatment'' to mean nothing more than the 
prohibition in the Detainee Treatment Act--sorry for the 
complexity of this--that is, a prohibition on the ``cruel, 
inhuman or degrading treatment or in punishment prohibited by 
the Fifth, Eighth and Fourteenth Amendment of the 
Constitution.''
     Now, if you can remember all of that and answer it, I 
would be grateful.
    Mr. Rizzo. OK. Let me give it a shot.
    The Military Commissions Act--it features three of the--it 
made three aspects--provides specific offenses that would 
constitute Federal crimes if committed by or against U.S. 
persons. Those involve torture, cruel and inhuman treatment, 
and intentionally causing bodily injury. Those are the so-
called grave offenses to Common Article III.
    There is a second category of authorities granted by the 
Military Commissions Act that place authority for interpreting 
the Geneva Convention outside of these so-called grave breaches 
specified in the War Crimes Act, with the President. So it's a 
two-tier process. The grave, inhuman breaches would be--are 
made criminal by the Act. So a lesser set of categories, if you 
will, the Act gives to the President to interpret.
    Chairman Rockefeller. All right.
    Mr. Rizzo. But I guess the answer to your question is yes.
    Chairman Rockefeller. Yes, I hope so.
    Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    There was two other areas I wanted to get in real briefly. 
Mr. Rizzo, does the President have the authority to direct the 
CIA to capture and detain an American overseas?
    Mr. Rizzo. I'm sorry, Senator. I'm trying to hesitate 
because I want to answer that question in a way that's accurate 
and unclassified.
    Well, I really should--this is too serious a question for 
me to handle in a shorthand fashion. Let me--let it just 
suffice to say it would be extraordinarily problematic in terms 
of the rights of an American citizen for certainly the CIA to 
capture him overseas.
    Senator Wyden. But you're saying it could be done. You've 
said it would be extraordinary circumstances.
    I'm going to go into this at length in closed session. But 
you've said it could be done, and that certainly raises 
troubling issues for me.
    Mr. Rizzo. Well, I'm not--again, I don't want to say it 
could be done. What I am--what I----
    Senator Wyden. You just said in extraordinary 
circumstances.
    Mr. Rizzo. I said it would be extraordinarily difficult--if 
I didn't say that, I meant that--given the rights that attach 
to a U.S. citizen in terms of due process, for the President to 
direct the CIA to capture a U.S. citizen overseas.
    Senator Wyden. Let me ask you about the matter I discussed 
earlier, the question of the United States being an occupying 
power in Iraq. And you sort of intimated you thought it was 
just a policy question and not a legal question--a judgment I 
don't share.
    But how do you know what aspects of the Geneva Convention 
apply if you don't know whether the United States is still 
occupying Iraq as a legal matter?
    Mr. Rizzo. All I can tell you, Senator, is our attention, 
our focus on the Geneva Convention, the impact it has on CIA 
and currently authorized CIA activities have to do with 
terrorist activities, not with respect to the military conflict 
in Iraq.
     So that's why I frankly am not--I don't feel terribly 
comfortable opining on the scope of Geneva as it pertains to 
the current conflict in Iraq.
    Senator Wyden. I can see why you wouldn't feel particularly 
comfortable, but I'm still unclear as to how, given your 
answer, how you would instruct agency personnel with respect to 
their obligations. I'm going to ask some more about this when 
we're in closed session.
    Thank you, Mr. Chairman.
    Chairman Rockefeller. What we will do now, Mr. Rizzo, is, 
one, thank you for your public testimony and your family 
members and all those who chose to attend, and our Senators who 
are basically at four different very important mark-up-type 
sessions this afternoon and thus are in and out, for which I 
apologize.
    We will now end this hearing and resume it shortly.
    Mr. Rizzo. All right. Thank you, Mr. Chairman.
    Let me just say while we're still in open session, I do 
appreciate, I honestly do, the fairness and consideration with 
respect--with the way the Committee has treated me and my 
nomination, and I'm grateful to you, Senator Bond and your 
staff.
    Thank you.
    Chairman Rockefeller. I'm glad.
    This particular hearing is adjourned.
    [Whereupon, at 4:21 p.m., the Committee adjourned.]
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