[Senate Hearing 111-558]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 111-558
 
               NOMINATION OF ROBERT S. LITT TO BE GENERAL
                    COUNSEL, OFFICE OF THE DIRECTOR
                      OF NATIONAL INTELLIGENCE AND
                    NOMINATION OF STEPHEN W. PRESTON
                         TO BE GENERAL COUNSEL,
                      CENTRAL INTELLIGENCE AGENCY
=======================================================================


                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE

                                 OF THE

                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 21, 2009

                               __________

      Printed for the use of the Select Committee on Intelligence


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate




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                    SELECT COMMITTEE ON INTELLIGENCE

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

                 DIANNE FEINSTEIN, California, Chairman
              CHRISTOPHER S. BOND, Missouri, Vice Chairman

JOHN D. ROCKEFELLER IV, West         ORRIN G. HATCH, Utah
    Virginia                         OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon                    SAXBY CHAMBLISS, Georgia
EVAN BAYH, Indiana                   RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland        TOM COBURN, Oklahoma
RUSSELL D. FEINGOLD, Wisconsin       JAMES E. RISCH, Idaho
BILL NELSON, Florida
SHELDON WHITEHOUSE, Rhode Island
                     HARRY REID, Nevada, Ex Officio
                 MITCH McCONNELL, Kentucky, Ex Officio
                    CARL LEVIN, Michigan, Ex Officio
                    JOHN McCAIN, Arizona, Ex Officio
                              ----------                              
                     David Grannis, Staff Director
                Louis B. Tucker, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk
                                CONTENTS

                              ----------                              

                         THURSDAY, MAY 21, 2009

                           OPENING STATEMENTS

Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California.     1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from 
  Missouri.......................................................     4

                               WITNESSES

Litt, Robert S., Office of the Director of National Intelligence 
  General Counsel-Designate......................................     5
    Prepared statement...........................................     6
Preston, Stephen W., Central Intelligence Agency General Counsel-
  Designate......................................................     8
    Prepared statement...........................................     8

                         SUPPLEMENTAL MATERIAL

Questionnaire for Completion by Presidential Nominees for Robert 
  S. Litt........................................................    30
Prehearing Questions for the Record and Responses of Mr. Litt....    54
Questions for the Record and Responses of Mr. Litt...............    76
Letter from Robert I. Cusick, Office of Government Ethics, Dated 
  May 4, 2009, Transmitting Public Financial Disclosure Report 
  for Mr. Litt...................................................   106
Questionnaire for Completion by Presidential Nominees for Stephen 
  W. Preston.....................................................   119
Prehearing Questions for the Record and Responses of Mr. Preston.   143
Questions for the Record and Responses of Mr. Preston............   164
Letter from Robert I. Cusick, Office of Government Ethics, Dated 
  May 20, 2009, Transmitting Public Financial Disclosure Report 
  for Mr. Preston................................................   184


                   NOMINATION OF ROBERT S. LITT TO BE

                     GENERAL COUNSEL, OFFICE OF THE


                   DIRECTOR OF NATIONAL INTELLIGENCE


                  AND NOMINATION OF STEPHEN W. PRESTON


           TO BE GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY

                              ----------                              


                         THURSDAY, MAY 21, 2009

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:33 p.m., in 
Room SH-216, Hart Senate Office Building, the Honorable Dianne 
Feinstein (Chairman of the Committee) presiding.
    Committee Members Present: Senators Feinstein, Wyden, 
Mikulski, Feingold, Whitehouse, Levin, Bond, Snowe, and Risch.
    Chairman Feinstein. Because we have a vote coming up at 
2:40, which is about seven minutes from now, I'm going to begin 
the hearing and try to keep it going during the vote. I know 
the Vice Chairman is on his way. We have three other Members 
here, so I think I'll begin and I'll begin with my statement.

 OPENING STATEMENT OF HON. DIANNE FEINSTEIN, CHAIRMAN, A U.S. 
                    SENATOR FROM CALIFORNIA

    Chairman Feinstein. The committee meets today to receive 
testimony to consider two nominations: Mr. Robert Litt, 
nominated to be the General Counsel in the Office of the 
Director of National Intelligence, and Mr. Stephen Preston, 
nominated to be General Counsel of the Central Intelligence 
Agency. And I welcome both of them.
    If you have family with you that you would like to 
introduce right now I think that would be very nice. I know you 
both do, so, Mr. Litt, why don't we begin with you and let 
everybody meet your two daughters, your wife, your mother-in-
law----
    Mr. Litt. Thank you, Madam Chairman. Directly behind me is 
my oldest daughter, Rebecca, who spent three-and-a-half years 
working as a legislative assistant for Senator Mikulski. Next 
to her is my wife Deborah, who is one of the most patient women 
in the world. Then my youngest daughter, Rachel----
    Chairman Feinstein [continuing]. And I asked who's the boss 
in the family, and Rachel immediately said she was.
    Mr. Litt. Immediately and correctly. My mother, Edith Litt, 
and mother-in-law, Joan Gordon. My middle daughter Miriam is 
not here today because she's on her honeymoon--she got married 
10 days ago, and so I'm probably the rare nominee that comes 
before you and can't say for sure that this is the most 
stressful thing he's done this week. [Laughter.]
    Chairman Feinstein. Mr. Preston.
    Mr. Preston. Thank you, Madam Chairman. I am very pleased 
to introduce to the Committee my wife Mary Manemann Preston, 
and our daughter Julia and our son Collett.
    Chairman Feinstein. Well, I hope the families know they are 
very much welcomed.
    Both nominees have provided written responses to background 
questions and to questions about legal issues they will 
confront if confirmed. Their answers will be posted today on 
the committee's Web site. I have met with both nominees and 
came away from both meetings duly impressed.
    It is crystal clear that the intelligence community, and 
perhaps the CIA more than the other 15 agencies, needs 
absolutely clear, authoritative, and accurate legal advice. The 
intelligence community and the nation have struggled with 
questions about the legality of counterterrorism operations--
notably rendition, detention and interrogation--over the past 
few years.
    There have been similar doubts about the legality of the 
warrantless surveillance program conducted outside of the 
Foreign Intelligence Surveillance Act. I expect Members will 
have questions about many intelligence activities, and we look 
forward to your responses, gentlemen.
    To me, the key questions are: will these two nominees, if 
confirmed, provide sound and careful legal advice and also 
their best counsel and judgment to the director of national 
intelligence and the Director of the CIA.
    If necessary, will they do everything within their power to 
prevent any activity that they believe to be unlawful and 
unwise? And I would add this: Will they ensure that there is 
appropriate oversight within all three branches of the federal 
government to ensure that programs only go forward after all 
relevant and required views are obtained and followed?
    Let me say a few words about each nominee and the position 
to which they are nominated.
    Mr. Robert Litt is a graduate of Harvard University and 
Yale Law School. He clerked for Judge Edward Weinfeld of the 
Southern District of New York and Justice Potter Stewart of the 
Supreme Court. He served as an Assistant U.S. Attorney in the 
Southern District of New York for six years. He later became a 
partner at the law firm of Williams & Connolly, and then, from 
1993 to 1999, served in the State Department and at the 
Department of Justice, where he rose to be Principal Deputy 
Attorney General, with responsibilities including FISA 
applications, covert action reviews and other national security 
matters.
    He has been a partner with the law firm of Arnold and 
Porter since 1999. If confirmed, Mr. Litt would be the second 
General Counsel in the Office of the Director of National 
Intelligence. The first person to hold the position, Ben 
Powell, appeared regularly before this committee and should be 
commended for his straightforward and helpful testimony and 
advice.
    The General Counsel is the chief legal officer of the 
Office of Director of National Intelligence. In providing legal 
advice to the DNI, he must have insight into activities 
throughout the intelligence community, including those of the 
General Counsel offices in the various intelligence community 
elements.
    The committee expects that Mr. Litt will be aware of and 
have an opportunity to evaluate all of the significant legal 
decisions made throughout the intelligence community. As the 
committee recently discussed with Director Blair, the General 
Counsel will also represent the executive branch in proposing 
and negotiating legislative provisions for our annual 
intelligence authorization bill, which is coming up, and other 
legislation that effects the equities of the intelligence 
community.
    Stephen Preston is a graduate of Yale University and 
Harvard Law School. He clerked for Judge Phyllis A. Kravitch, 
U.S. Court of Appeals for the 11th Circuit, and joined Wilmer, 
Cutler & Pickering, where he became a partner. From 1993 to 
2000, Mr. Preston served in the Department of Defense and the 
Department of Justice.
    He was Principal Deputy General Counsel of the Department 
of Defense, Deputy Assistant Attorney General, Civil Division, 
in the Department of Justice, and General Counsel of the 
Department of the Navy. He has been a partner at WilmerHale 
since 2001.
    The position of CIA General Counsel has been vacant since 
July of 2004. Frankly, I can't think of an agency in the United 
States government that is in stronger need of a Senate-
confirmed General Counsel than the CIA.
    This is an agency that operates outside of the law around 
the world but is required to operate in strict compliance with 
United States law. This is an extremely challenging legal 
position and one that requires a strong and principled General 
Counsel.
    The CIA Office of General Counsel played a key role in the 
creation of the detention and interrogation program. It 
provided significant information to the Office of Legal Counsel 
at the Department of Justice. It participated in most of the 
briefings to the National Security Council and to Congress. And 
it was in charge of interpreting and implementing the Office of 
Legal Counsel's guidance to CIA interrogators in the field.
    As I said before, the CIA and the nation need a strong 
General Counsel of unimpeachable integrity and an unwavering 
commitment to the Constitution and laws of the United States, 
and I cannot say that too strongly.
    I am pleased that the two nominees before us are both 
highly qualified, highly respected in their field, and well 
suited to provide this advice to both the Director of National 
Intelligence and the CIA.
    I now turn to the Vice Chairman. Before I do, I would just 
like Members to know that we would like to have a brief 
classified session on some recent happenings in--we can go to 
211 directly following this and hopefully these hearings, 
because they are so qualified, will go quickly.
    Mr. Vice Chairman.

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

    Vice Chairman Bond. Madam Chair, thank you. I think that's 
a good idea. I think I can fire off all my questions in one 
round or submit them for the record. And I agree with you it's 
time that we had that meeting. But I welcome Mr. Litt and Mr. 
Preston and their families to the committee--to Mr. Litt to be 
the General Counsel for ODNI, Mr. Preston to be General Counsel 
for the CIA.
    Madam Chair, I think both men come to this hearing with 
impressive credentials, considerable experience and a modest 
recognition that they still have to learn much about national 
security law. Fortunately, there are many talented lawyers at 
the ODNI and CIA offices of the General Counsel who will assist 
them in getting up to speed on the national security learning 
curve.
    These are extremely important positions and nominations, as 
you've pointed out, Madam Chair. Many people don't understand 
the crucial role that the lawyers play within the intelligence 
community.
    National security lawyers routinely review operational 
activities to ensure that they are conducted within the bounds 
of the law. Sometimes they have to deliver bad news and 
disapprove certain operations. And that is very important--to 
say no when it has to be said.
    At the same time, they serve as problem solvers who ought 
to be able to find a way to comply with the law, to satisfy the 
legal requirements and still accomplish the intelligence 
objectives for which their agencies are charged.
    In addition to the important oversight role, national 
security lawyers are often called upon to provide Congress with 
necessary technical assistance to ensure that relevant 
legislation does not adversely impact intelligence equities 
and, having worked extremely closely with the lawyers during 
FISA, I know how valuable their assistance is with respect to 
national security legislation.
    We've relied on them in the past years and we will again in 
the USA PATRIOT Act, the Patriot Improvement Reauthorization 
Act, and implementing further recommendations of the 9/11 
Commissions Act. I think it's safe to say that the two men now 
sitting before us will play an important role in future 
legislation.
    I have met privately with each of the nominees and was very 
favorably impressed. I think both men are talented lawyers who 
are capable of being effective leaders and managers of their 
respective offices and have the necessary character, quality, 
experience and knowledge to do the job.
    I congratulate you on your nominations. I look forward to 
your testimony, and assuming you are confirmed, which I think 
you will be, I look forward to working with you to ensure that 
the ODNI and the CIA offices of the General Counsel continue to 
provide outstanding legal support to the intelligence community 
and to Congress.
    Thank you, Madam Chair.
    Chairman Feinstein. And I thank you, Mr. Vice Chairman. 
Members should know that Mr. Litt's remarks are under tab C, 
and Mr. Preston's under tab D, and they are both concise and 
short.
    Mr. Litt, would you care to make a brief statement to the 
committee and then we'll follow with Mr. Preston, and then a 
few questions.

STATEMENT OF ROBERT S. LITT, OFFICE OF THE DIRECTOR OF NATIONAL 
             INTELLIGENCE GENERAL COUNSEL-DESIGNATE

    Mr. Litt. Thank you, Madam Chairman. My oral remarks will 
be even shorter.
    Madam Chairman, Vice Chairman Bond and Members of the 
committee, I want to thank you for the opportunity to appear 
before you here today. I also have appreciated the opportunity 
to meet privately with a number of you to hear what's on your 
mind and what your concerns are about the law and the 
intelligence community.
    I am deeply honored that President Obama has nominated me 
to be the General Counsel of the Office of the Director of 
National Intelligence. The past few years, as you know, have 
been trying ones for the Intelligence Community. It has been 
accused of a wide variety of failures. It's been accused of 
errors of omission and errors of commission. It's been accused 
of excessive passivity and of over-aggressiveness. And it is 
still dealing with the restructuring that Congress ordered with 
the Intelligence Reform and Terrorism Prevention Act of 2004, 
which is the most substantial reorganization of the 
intelligence community since the passage of the National 
Security Act in 1947.
    Our nation needs a strong and vital intelligence community 
in order to protect itself from its enemies; but the 
intelligence community equally needs clear legal rules that 
define what it can and cannot do. These twin needs are 
reflected in the twin statutory responsibilities of the 
Director of National Intelligence--one, to ensure that the 
president, the executive branch and the Congress are provided 
intelligence that is ``timely, objective, independent of 
political considerations, and based upon all sources available 
to the intelligence community and other appropriate entities,'' 
and; two, to ensure that the activities of the intelligence 
community are carried out in ``compliance with the Constitution 
and laws of the United States.'' If I am confirmed as General 
Counsel, I look forward to assisting Director Blair in carrying 
out these responsibilities.
    I know, from talking with some of you, that the Members of 
this committee are very concerned with whether the Director of 
National Intelligence has the proper authorities to carry out 
these important responsibilities. And, if confirmed, I will pay 
close attention to how those authorities work in practice, and 
if there are any deficiencies in them I will bring them to the 
attention of this committee and work with the committee to try 
to remedy them.
    I will also be mindful of the need for Congress to exercise 
effective oversight of the activities of the intelligence 
community. I believe that congressional oversight is 
particularly important in the area of intelligence because of 
the central role that intelligence plays in protecting national 
security, because of the power of the tools that are given to 
the intelligence community, and their potential risks to 
privacy and civil liberty if they are abused, and because of 
the necessarily secret nature of much of what the intelligence 
community does.
    Director Blair has emphasized to the entire intelligence 
community the importance of keeping the intelligence committees 
fully and currently informed about intelligence activities--and 
if confirmed I will fully support him in that and will work 
with you to try to ensure that you are able to exercise this 
oversight function in the manner in which it needs to be 
exercised.
    In addition, there are a wide range of important and 
challenging legal issues affecting the intelligence community, 
some of which I discuss in my written statement. If confirmed, 
I will not only provide Director Blair my best views on the law 
based on a thorough understanding of the facts and the law--
whatever those views may be--but also my counsel and judgment 
on the wisdom and propriety of particular courses of conduct.
    Madam Chairman, in the course of my professional career, I 
have been privileged to get to know many individuals who work 
as part of the intelligence community, both lawyers and non-
lawyers. They are dedicated professionals, many of whom gave up 
a potentially lucrative career in the private sector for the 
privilege of serving the United States and protecting its 
people. If I am confirmed, I look forward to the great 
privilege of assisting them in that vital task.
    Thank you for your consideration of my nomination.
    [The prepared statement of Mr. Litt follows:]
                  Prepared Statement of Robert S. Litt
    Madam Chairman, Vice Chairman Bond, Members of the Committee, thank 
you for giving me the opportunity to appear before you today. I have 
also appreciated the opportunity to meet privately with several of you 
and to discuss a variety of issues that are important to you.
    I am deeply honored that President Obama has nominated me to be the 
General Counsel of the Office of the Director of National Intelligence. 
The past few years have been trying ones for the Intelligence 
Community. It has been accused of a wide variety of failures, of errors 
of omission and of commission, of excessive passivity and of over-
aggressiveness. And it is still dealing with a restructuring, initiated 
by Congress with the passage of the Intelligence Reform and Terrorism 
Prevention Act of 2004, that is unparalleled since the passage of the 
original National Security Act in 1947.
    Our nation needs a strong and vital Intelligence Community in order 
to protect itself from its enemies; but the Intelligence Community 
equally needs clear rules that define what it can and cannot do. These 
twin mandates are reflected in the twin statutory responsibilities of 
the Director of National Intelligence to ensure both that the 
President, the Executive Branch and the Congress are provided 
intelligence that is ``timely, objective, independent of political 
considerations, and based upon all sources available to the 
intelligence community and other appropriate entities,'' and that the 
activities of the Intelligence Community are carried out in 
``compliance with the Constitution and laws of the United States.'' If 
confirmed as General Counsel, I look forward to assisting Director 
Blair in carrying out these responsibilities.
    Director Blair has made clear to me that he expects my role to 
encompass the provision of both sound legal advice and sound judgment, 
and if confirmed I am prepared to do so. I have been fortunate to be 
mentored by a number of outstanding lawyers from whom I have drawn 
lessons that guide my approach to the practice of law. My father was a 
general practice lawyer in the New York suburbs. He made me conscious 
from a young age of the lawyer's broad responsibilities both to ensure 
that justice is done in the individual case, and towards the 
improvement of society as a whole. I have always tried to keep in mind 
his example.
    After graduating from Harvard College and Yale Law School, I had 
the great honor to clerk for two outstanding judges. The first was the 
legendary Judge Edward Weinfeld of the United States District Court for 
the Southern District of New York. Judge Weinfeld was justly famous for 
his extraordinary diligence, his fairness and his thoroughness. He was 
fond of saying that ``every case is important,'' and for him this was 
more than a platitude: it characterized his approach to the law, in 
that he gave every case the same degree of attention and thought. I 
often feel his guiding presence looming over my shoulder. After Judge 
Weinfeld, I clerked on the United States Supreme Court for Justice 
Potter Stewart. Like Judge Weinfeld, Justice Stewart did not approach 
the law with ideological preconceptions. He was always concerned with 
finding the right outcome in the law, not in justifying a predetermined 
outcome that fit his personal preferences.
    I was then hired as an Assistant United States Attorney for the 
Southern District of New York by Robert B. Fiske, Jr., an outstanding 
lawyer and leader whose career exemplifies the old-fashioned ideal of 
the lawyer as public servant. After six years as a federal prosecutor, 
I joined the firm of Williams & Connolly in Washington, where I had the 
opportunity to work closely with Edward Bennett Williams, one of the 
giants of the bar, known for his preparation, his judgment and insight 
into human nature, and his zealous devotion to his clients' interests. 
Finally, I had the privilege to work in the Department of Justice with 
former Attorney General Janet Reno and present Attorney General Eric 
Holder, each of whom I admire for their unfailing commitment to doing 
the right thing in all circumstances and for their understanding of the 
moral responsibilities of a government lawyer.
    Each of these very different individuals left their mark on me. I 
cannot hope to match their achievements but I have learned much by 
their example. I have learned that a lawyer has the responsibility to 
try to help a client achieve his or her goals within the law, but 
equally to tell a client forthrightly when a proposed course of conduct 
is not within the law. I have learned that a lawyer's duty to a client 
encompasses first of all a careful, dispassionate and unbiased analysis 
to determine what the law actually is. But a lawyer should also 
exercise independent judgment and advise the client as to the prudence 
or wisdom of the proposed course of conduct. I have learned that a 
lawyer for the government in particular has obligations not only to his 
or her client agency but also to the public at large, and if the 
client's proposed action would not serve the public interest, the 
government lawyer should say so even if that action is legal. If 
confirmed, I pledge that I will approach my responsibilities as General 
Counsel in this spirit.
    Over the years I have had the opportunity to work on a variety of 
matters affecting the Intelligence Community. While at the Department 
of Justice I worked on matters involving the Foreign Intelligence 
Surveillance Act and the Classified Information Procedures Act; I 
participated in reviews of covert actions and in evaluating crimes 
reports and requests for legal opinions from the Intelligence 
Community. I have spoken and written about the law and the Intelligence 
Community. I have represented several members of the Intelligence 
Community in a variety of matters.
    As a result of this experience, as well as my discussions both with 
the staff at the Office of the Director of National Intelligence and 
the members of this Committee, I have some knowledge of the legal 
issues that the Intelligence Community faces. I would like briefly to 
touch upon some of the issues that I expect I will be dealing with if I 
am confirmed as General Counsel. First, I know that Members of this 
Committee are concerned with whether the Director of National 
Intelligence has the proper authorities to do the jobs that Congress 
has set out for him, and if confirmed I will pay close attention to how 
those authorities operate in practice and will bring any deficiencies 
to the attention of this Committee.
    If confirmed, I will also be mindful of the need for Congress to 
exercise oversight of the activities of the Intelligence Community. I 
believe that Congressional oversight is particularly important in the 
area of intelligence, because of the central role of intelligence in 
protecting our national security, the power of the tools given to the 
Intelligence Community and their potential risks to privacy and civil 
liberties if used improperly, and the necessarily secret nature of much 
of what the Intelligence Community does. Sections 502 and 503 of the 
National Security Act require that the two intelligence committees be 
kept ``fully and currently informed'' about significant intelligence 
activities, and Director Blair has reiterated to the entire community 
the need to comply strictly with this requirement.
    There are also several substantive areas that I expect will 
continue to be at the forefront of the activities of the Office of 
General Counsel. One of the principal responsibilities of the Director 
of National Intelligence is to ensure that relevant information is 
shared to the maximum extent possible within the Intelligence 
Community. We cannot afford to have information that is essential to 
our national security ``stovepiped'' within individual components of 
the community. The Office of General Counsel is deeply involved in 
writing the rules that will encourage this sharing of information and, 
if confirmed, I look forward to assisting Director Blair in moving 
towards an ever more integrated and cooperative Intelligence Community.
    At the same time, the collection, analysis and dissemination of 
intelligence information must be done in a manner that protects 
constitutional and statutory rights. Again, it is my understanding that 
the Office of General Counsel, along with the Civil Liberties 
Protection Officer, plays an important role in creating and overseeing 
the structures and rules that ensure that intelligence activity is 
consistent with the civil liberties and privacy of Americans. This is 
one of those areas where it is important to provide clear guidance to 
the Intelligence Community, so that they know what they can and cannot 
do and do not feel the need to consult with lawyers on a daily or 
hourly basis as they do their jobs--which is neither efficient nor 
realistic.
    One particular area of concern to me is the security of our 
information and communications systems. While at the Department of 
Justice, I helped create and stand up the Criminal Division's Computer 
Crime Section, and I am acutely aware that our networks are not only 
vulnerable to attack but are repeatedly attacked every day. The 
President has ordered a review of our cybersecurity policies. While I 
do not want to prejudge its conclusions I would anticipate that the 
Intelligence Community would of necessity have a vital role to play in 
this area, and that the Office of General Counsel would play an 
important role in ensuring that the Intelligence Community's activities 
in this area are consistent with the law.
    In the course of my professional career I have been privileged to 
get to know many individuals who work as part of the Intelligence 
Community, both lawyers and non-lawyers. They are dedicated 
professionals, many of whom gave up potentially lucrative career 
opportunities and have chosen to serve the United States and protect 
its people. If confirmed, I look forward to the great privilege of 
assisting them in that vital task.
    Thank you for your consideration of my nomination.

    Chairman Feinstein. Thank you very much, Mr. Litt.
    Mr. Preston.

 STATEMENT OF STEPHEN W. PRESTON, CENTRAL INTELLIGENCE AGENCY 
                   GENERAL COUNSEL-DESIGNATE

    Mr. Preston. Thank you, Madam Chairman, Mr. Vice Chairman 
and Members of the Committee. I am greatly honored to appear 
before you as the President's nominee to be General Counsel of 
the Central Intelligence Agency. Madam Chairman, you were kind 
enough to let me introduce my wife and children a moment ago. I 
should point out that today is our wedding anniversary and so I 
ought to thank the Committee for this occasion to get together. 
[Laughter.]
    Chairman Feinstein. Congratulations. Which one is it?
    Mr. Preston. It's our fifteenth.
    Chairman Feinstein. Congratulations.
    Mr. Preston. It is our fifteenth anniversary and I thank 
you for bringing us together on this occasion.
    In all seriousness, these are the most important people in 
my life. And it is because of them that I am here today, 
prepared to undertake what I expect will be the most meaningful 
and likely the most difficult job in my professional life.
    I want to thank President Obama and Director Panetta for 
their trust and confidence in me. If confirmed, I look forward 
to working with you, the Director and the fine men and women of 
the CIA to confront the ongoing threats to our national 
security and ultimately to protect families like mine all over 
this country.
    Given the scarcity of time and the abundance of business 
before you, I would like to submit the remainder of my 
statement for the record. Let me say, I appreciate this 
opportunity to appear before the Committee today, and I would 
be happy to answer any questions.
    [The prepared statement of Mr. Preston follows:]
                Prepared Statement of Stephen W. Preston
    Thank you, Madam Chairman, Mr. Vice Chairman, and members of the 
Committee. I am greatly honored to appear before you as the President's 
nominee to be General Counsel of the Central Intelligence Agency. With 
your indulgence, I would like to introduce the members of my family: my 
wife, Mary Manemann Preston; our daughter, Julia Preston; and our son, 
Collett Preston. These are the most important people in my life, and it 
is because of them that I am here today, prepared to undertake what I 
expect will be the most meaningful, and likely the most difficult, job 
in my professional life. I want to thank President Obama and Director 
Panetta for their trust and confidence in me. If confirmed, I look 
forward to working with you, the Director, and the fine men and women 
of the CIA to confront the ongoing threats to our national security 
and, ultimately, to protect families like mine all over this country.
    This is a dangerous time for the United States and a challenging 
time for the Central Intelligence Agency. The threat of radical 
jihadist terrorists is real, immediate and unrelenting, and in the 
fight against them the Agency is at the very tip of the spear. America 
is counting on the Agency to help disrupt and dismantle al Qa 'ida, and 
to learn the intentions of our other adversaries. We will do this, 
through the quiet efforts and untold sacrifices of the talented and 
dedicated men and women who are the Agency. At the same time, the 
Agency must respond to continued scrutiny concerning past practices. We 
will do this, too, cooperating with this Committee in its review, 
supporting those who sought and followed authoritative legal guidance, 
and all the while remaining focused on our vital mission going forward.
    The General Counsel has no role more important than ensuring the 
CIA's compliance with applicable laws of the United States. If I am 
confirmed, I will assume this responsibility with the utmost 
seriousness. I believe I have had a good deal of useful experience, 
having spent most of my career in law and national security, both in 
government--as General Counsel of the Department of the Navy, and as 
Principal Deputy General Counsel and Acting General Counsel of the 
Department of Defense, as well as at the U.S. Department of Justice--
and more recently in private practice. I also bring to the job strong 
commitments, to public service and the protection of U.S. national 
security, to the rule of law in our society and adherence to the law in 
what we do, and to the exercise of independent judgment and common 
sense in furtherance of all of these. I pledge my full support to the 
Director, and I am eager to join my future colleagues at the Agency and 
in the Intelligence Community.
    If confirmed, I look forward to working with this Committee and the 
Congress to maintain effective communication, and in addressing the 
range of legal issues that may arise during my tenure. In the meantime, 
I appreciate this opportunity to appear before the Committee today and 
would be happy to answer any questions.

    Chairman Feinstein. Thank you very much. I'll begin the 
questions. There is a standard of initial questions for all 
nominees and I will quickly read this and if you will say yes 
or no:
    Do you both agree to appear before the Committee here or in 
other venues when invited?
    Mr. Litt. Yes.
    Mr. Preston. Yes.
    Chairman Feinstein. Do you both agree to send officials 
from your respective offices to appear before the Committee and 
designated staff when requested?
    Mr. Litt. Yes.
    Mr. Preston. Yes.
    Chairman Feinstein. Do you agree to provide documents or 
any other material requested by the Committee in order for it 
to carry out its oversight and legislative responsibilities?
    Mr. Litt. Yes.
    Mr. Preston. Yes.
    Chairman Feinstein. Will you ensure that your respective 
offices provide such material to the Committee when requested?
    Mr. Litt. Yes.
    Mr. Preston. Yes.
    Chairman Feinstein. Thank you very much.
    In its short history, the Director of National Intelligence 
has used intelligence community directives to set out guidance 
and regulation across the entire intelligence community--much 
like the director of the CIA issued DCI directives before the 
DNI position was created.
    Three recent examples of these ICDs are: ICD 101, 
intelligence community policy system, January 16th of this 
year; ICD 501, discovery and dissemination or retrieval of 
information within the intelligence community, January 21st; 
and ICD 402, Director of National Intelligence representatives, 
May 19th, 2009. Do you believe that the DNI has the authority 
to issue directives to agencies of the intelligence community? 
Mr. Litt.
    Mr. Litt. Yes, I do.
    Chairman Feinstein. Mr. Preston.
    Mr. Preston. Yes, ma'am.
    Chairman Feinstein. Do you believe that these intelligence 
community directives are binding on individual agencies of the 
intelligence community? Mr. Litt.
    Mr. Litt. Yes, I do.
    Mr. Preston. Yes, I believe a properly issued and final ICD 
is binding on agencies in the community.
    Chairman Feinstein. Thank you very much. And just one other 
question.
    On page six of the written questions and answers, Mr. 
Preston, I'd like to ask you to clarify one answer, and here it 
is: ``By virtue of its relationship with the entire 
intelligence community, the General Counsel's Office is well-
positioned to identify conflicting legal interpretations within 
the community. Because the General Counsel does not have 
decisional authority to resolve such conflicts, if there are 
conflicting legal views on an issue, I would bring the relevant 
General Counsels together to discuss the issues and attempt to 
resolve any differing opinions.''
    This is your writing. How do you mean this?
    Mr. Preston. I believe that comes from Mr. Litt's 
questionnaire, although I would be happy to address it.
    Chairman Feinstein. Oh, I beg your pardon.
    Mr. Litt. I was going to say, I thought it was my writing, 
Madam Chairman.
    Chairman Feinstein. Well, that's what piqued my interest in 
the question. I thought it was his.
    Mr. Litt. No, no.
    Chairman Feinstein. But I think----
    Mr. Litt. Is the answer clearer when you----
    Chairman Feinstein [continuing]. The answer is much clearer 
when it comes from you, because I think the point that I wanted 
to make clear in my first question, and with this, is the fact 
that we passed legislation to create an overarching head of the 
16 intelligence agencies. And that is the Director of National 
Intelligence. And he is the boss.
    And as a matter of fact, we had Mr. Panetta here at his 
hearing, and we asked him, and he verified, yes, the DNI is my 
boss. And I want to be sure that that is the impression of the 
new legal counsel for the CIA.
    Mr. Preston. Understood.
    Chairman Feinstein. Okay. Mr. Vice Chairman.
    Vice Chairman Bond [presiding]. Madam Chair, you are going 
to go vote, I understand----
    Chairman Feinstein. I'll go vote and come right back.
    Vice Chairman Bond [continuing]. I will ask questions and 
hope you get back speedily because I will probably have to go 
vote and if Senator Snowe wants to stay around and ask 
questions after I run, I will be happy to turn it over. 
Otherwise, I will exercise the gavel in an apparently 
untrammeled manner, here, for a couple of minutes--as long as I 
think I can get away with it and still vote on time.
    Gentlemen, one of the questions I ought to ask everybody, 
and I will ask again to get your views on the record--and since 
we've practiced it before, I'm sure you can be brief and to the 
point--for all national security lawyers, I like to ask--and 
I'll first ask Mr. Litt and then Mr. Preston--if the President 
of the United States has inherent authority under Article II of 
the Constitution to engage in warrantless foreign intelligence 
surveillance or physical searches or, in your opinion, does 
FISA trump Article II? Mr. Litt?
    Mr. Litt. Mr. Vice Chairman, I think the answer to that is 
that there is a very express exclusivity provision in FISA that 
says that it's the sole means for executing electronic 
surveillance that comes within its terms, and I think that this 
administration has indicated it intends to abide by that 
exclusivity. Obviously to the extent that there are matters 
that are entirely outside the scope of FISA--the President, I 
think, does have inherent Article II authority to conduct 
activities that are necessary to the defense of the nation.
    Vice Chairman Bond. So you're saying he doesn't have the 
authority if it's within the scope of FISA.
    Mr. Litt. I think that this administration has indicated 
that it will abide by the exclusivity provision. This is 
obviously, as you know, one of the constitutional questions 
that scholars of considerably more wisdom than I have been 
debating for years and years.
    Vice Chairman Bond. I'll let you get by with that.
    Mr. Litt. Thank you. [Laughter.]
    Vice Chairman Bond. Mr. Preston.
    Mr. Preston. In that case, I'd like to associate myself 
with his remarks.
    Vice Chairman Bond. I want to see if you can do a better 
job. [Laughter.]
    Mr. Litt. I'm sure he can.
    Mr. Preston. I think Bob has accurately described the state 
of the play and where the difficulty lies. I have an answer 
perhaps not satisfactory to constitutional scholars and a 
little more simple-minded, but I don't think the President is 
above the law and the FISA amendments establish procedures that 
the President has acknowledged he intends to follow.
    And if there remains, under Article II, powers for him to 
do differently in special circumstances, I would have to defer 
to the constitutional scholars on that.
    Vice Chairman Bond. Well, heaven forbid we get into that 
situation where it's needed, but I'll be interested in hearing 
what you have to say should that occasion arise. Mr. Litt.
    Mr. Litt. If I could just add on that, I'm quite confident 
that if that situation ever arose, you would be hearing from us 
about it.
    Vice Chairman Bond. I used to be a constitutional lawyer, 
not a scholar, but I'll be happy to talk with you about it.
    Mr. Litt, I'm very much concerned and I've asked the DNI 
and these lawyers many times if they had the authorities they 
need to do the job. Some representatives of the DNI indicated 
they might not. I think that question continues to arise. We 
talked about it. Have you had a chance to study it any further 
since our initial discussion?
    Mr. Litt. Not really. In my mind, Mr. Vice Chairman, what's 
going to be most important is to have an opportunity to 
actually see how the authorities operate in practice. I can 
read the words of the statute, but until I actually have an 
opportunity to be in place and watch how they're used and see 
if there are any gaps, I'd be cautious in forming any judgments 
about whether any additional authorities are needed.
    Vice Chairman Bond. There may be an opportunity very 
shortly. I have questions that we've discussed before; I'll 
submit them for the record.
    Mr. Preston, the Committee has begun a review of the CIA 
detention and interrogation program. Do you think the 
Department of Justice should conduct criminal investigations on 
those individuals involved in detention and interrogation of 
al-Qa'ida terrorists in accordance with procedures approved by 
the OLC and if authorized by the President?
    Mr. Preston. Sir, I would note that the President, as well 
as the Attorney General, the DNI, the D/CIA have decided--and 
the others have agreed--that the people who, in good faith, 
sought and followed what was believed to be authoritative legal 
guidance with respect to the interrogation program ought not be 
subject to prosecution--as Director Panetta said, ought not be 
subject to investigation and prosecution.
    The fact of the matter is that there has been in place at 
CIA an investigatory mechanism in the form of the IG, which has 
been, since the time that the interrogation program was in 
place, investigating allegations of abuse. So it's not as if 
there isn't already in place investigation efforts, and I just 
would echo the concept that those who acted in good faith, in 
reliance on that authoritative legal authority, ought not be 
punished for it.
    Vice Chairman Bond. Do you think the DOJ should conduct 
criminal investigation of the lawyers who wrote the CIA 
opinions, the senior Executive Branch officials who authorized 
the program, or congressional members who were aware of the 
program's details and chose to fail to exercise their 
congressional oversight to stop them?
    Mr. Preston. Senator, my focus has been principally on the 
Agency and its role and, frankly, its role going forward. With 
respect to people at the Justice Department and elsewhere, I 
really haven't formulated a conclusion. I will tell you, 
broadly, I believe that public servants who act in good faith 
and in reasonable belief that they're acting lawfully in 
defense of our country ought not be punished for that. I would 
prefer not to comment on other agencies.
    Vice Chairman Bond. Mr. Litt, any further expansion?
    Mr. Litt. Mr. Vice Chairman, I certainly believe that it is 
essential to the operation of government that people be able to 
rely on opinions from the Justice Department without fear that 
those opinions will later be pulled back from them and leave 
them exposed to criminal liability.
    Vice Chairman Bond. I'm asking about if a lawyer gives an 
opinion you think is bad, should they be prosecuted for it?
    Mr. Litt. I'm not aware of any such case, Mr. Vice 
Chairman.
    Vice Chairman Bond. I am concerned that we're moving back 
to a pre-9/11 mentality, where international terrorists are 
considered as ordinary criminals that should be afforded all 
the due-process rights of our criminal courts. Mr. Preston, 
what are your views on this issue?
    Mr. Preston. I haven't conceived of the situation in those 
terms, but my thinking on it is that our government, the past 
administration and the current administration, have recognized 
radical jihadist terrorist organizations as posing a serious, 
real and enduring threat to our national security and have been 
committed to applying the full panoply of tools at our disposal 
in combating that threat.
    Vice Chairman Bond. Mr. Litt, quick answer?
    Mr. Litt. Mr. Vice Chairman, I would simply point to the 
President's speech this morning, in which he indicated that 
there are some terrorists who we have who are amenable and 
properly tried in normal criminal courts; there are some who 
ought to be tried in military commissions for acts against the 
law of war; and that there may be some who cannot be tried, but 
will need to be detained under some legal framework worked out 
cooperatively among the executive branch and the legislative 
branch.
    Vice Chairman Bond. Gentlemen, I'll suspend the hearing. It 
will resume at such time as the Chair returns.
    [Recess.]
    Senator Wyden [presiding]. I want to thank both our 
nominees, and I'm sorry that it's so hectic on the floor, and 
you'll have us shuttling back and forth here for a period of 
time.
    Let me start with you, if I could, Mr. Preston. As I 
indicated to you in the office, I think your position is one of 
extraordinary importance. When you're the General Counsel of 
the CIA, your clients are the men and women of the Agency, and 
it's your job to protect your clients by ensuring that 
intelligence activities comply with the law.
    The dedicated people who work at the Agency take big risks 
to protect their country and uphold American values and they 
deserve to have confidence that they're never going to end up 
in trouble because they were asked to participate in a program 
that did not have a strong legal foundation. And as you know, 
Mr. Preston, I've taken a great interest in this position in 
the past and I will continue to do so, and that's why I have a 
few specific questions for you.
    If you're confirmed as the CIA General Counsel, and the 
Department of Justice hands you a poorly-reasoned legal 
opinion--like the Bybee memo--and tells you to use it as the 
legal basis for a sensitive intelligence program, what would 
you do?
    Mr. Preston. Senator, I strongly believe that as the chief 
legal officer of the Agency, by statute, I have a 
responsibility to exercise independent judgment in matters of 
law affecting the Agency. I recognize that OLC opinions are 
treated, and properly treated, as binding, if you will, within 
the executive branch. But if I were confronted with a 
circumstance of the sort you described, and I had a strong 
disagreement with an opinion, I would make my disagreement 
known. I would make it known to the Director, who is my 
principal and make it known to the leadership of the Justice 
Department and elsewhere, as appropriate.
    Senator Wyden. So you would bring it up specifically with 
the Department of Justice and you would say, this memo doesn't 
cut it and you don't believe it's an adequate foundation for a 
significant program?
    Mr. Preston. I think that's a fair statement.
    Senator Wyden. Okay. One other question I had for you--and 
this was just something that struck me and I'd like to get your 
thoughts with respect to what it was you were trying to convey. 
In response to one of the prehearing written questions to Peru, 
you stated that CIA Office of General Counsel attorneys might 
somehow advise their clients not to create discoverable 
documents in situations that might involve litigation. My 
question is, would you agree that government employees have an 
obligation to make accurate records of their actions and not 
try to cover up anything by refusing to write it down?
    Mr. Preston. I would agree with that, Senator. Let me say, 
as I hope I made clear in my written response, I am not 
familiar with the circumstances of the Peru incident--have not 
reviewed the IG report. From my private practice experience, I 
know it's not at all uncommon to advise clients to take care in 
what they put in writing, take care with the use of e-mail, 
what have you, when you are in a circumstance of civil 
litigation or possible civil liability. I consider that worlds 
apart from telling people not to make proper records or to, in 
any way, falsify or destroy records or anything of the sort.
    Senator Wyden. I appreciate that because it seemed to me 
that the Peru issue certainly is hard to get all the facts in 
terms of your situation at this time, but I just wanted to get 
on the record that you did not mean that the office of the 
General Counsel should somehow advise CIA employees to not keep 
records.
    Mr. Preston. That is a correct understanding and I should 
have been clearer.
    Senator Wyden. Very good. Let me ask you just one question, 
Mr. Litt, if I might. When we met in my office, we discussed 
the statutory requirements of the executive branch to keep the 
Committee fully and currently informed about intelligence 
activities, and you actually called afterwards to clarify your 
answer. I'm encouraged that there is a lawyer who cares that 
much about making sure that they get the question right.
    And, for the record, just tell us, if you would, your views 
on this law and specifically address the practice of notifying 
only the Chairman and the Vice Chairman rather than the full 
membership of the Committee.
    Mr. Litt. Senator, I understand that this is a question of 
great importance to the Committee, and I think it's of great 
importance to the intelligence community as well because of the 
importance of oversight that I mentioned in my opening 
statement.
    Section 502 of the National Security Act requires that the 
intelligence Committees be kept fully and currently informed of 
all significant intelligence activities. And Director Blair, a 
couple of months ago, as I mentioned, sent around a memorandum 
to the entire intelligence community emphasizing this.
    And as I believe he said recently, this notification should 
be to the full Committee in all but the most extraordinary 
circumstances when there are compelling national interests. 
Director Blair has also, I think, promised this Committee that 
if there are such extraordinary circumstances, he will discuss 
with the Chair and the Vice Chairman how and when the full 
Committee should be briefed.
    If confirmed, I look forward to assisting him in the 
overall process of ensuring that this Committee is kept fully 
and currently informed.
    Senator Wyden. Is there any basis in law for limiting 
notification of any intelligence activities other than covert 
actions to just the Chairman and the Vice Chairman?
    Mr. Litt. Section 502 begins with a clause that says that 
the notification is to the extent consistent with due regard 
for the protection from unauthorized disclosure of classified 
information relating to sensitive intelligence sources and 
methods or other exceptionally sensitive matters.
    I think that this is at least arguable recognition that 
there may be extraordinary circumstances in which a more 
limited notification is appropriate, but I would emphasize that 
in my view this should be done only rarely, only when it's 
essential because of a vital interest and extraordinary 
circumstances, and should only be done in consultation with the 
Chairman and Vice Chairman.
    Senator Wyden. My time has expired, but what would be an 
example of an extraordinary circumstance? I mean, part of the 
reason I'm asking you this is for the reasons that we talked 
about.
    Most of this Committee was kept in the dark for years and 
years on the interrogation issue, and not just one or two 
years, but you're hearing all this discussion now about how 
everybody on this Committee was kept in the loop over the years 
on the interrogation question.
    That's just a position that's disconnected from reality. I 
mean, I was on the Committee starting in 2001 and even the 
Agency's records indicate that we weren't briefed until 2006. 
So this is an issue I feel strongly about. I think others do.
    So let me close my questioning. I'm over my time, Madam 
Chair.
    Give me an example of an extraordinary circumstance where 
you wouldn't see notification to the Committee.
    Mr. Litt. I'm hampered in that by not having actually been 
on the ground and seen many of the circumstances in which 
notification actually occurs. It would seem to me that one 
example might be where there is exceptionally grave and 
immediate risk to the lives of American agents. That's a 
situation where you might consider it. But it's difficult for 
me to give specifics on that without having been in the job and 
seeing how it operates.
    Senator Wyden. Well, the law to me seems to be that it 
really is an exception only for covert activities. I know we're 
going to talk about this further. Both of you bring, in my 
view, a great professionalism to these positions. I look 
forward to voting for you.
    Thank you, Madam Chairman.
    Chairman Feinstein [presiding]. Thank you, Senator Wyden.
    Senator Feingold, I think you're next, and then Senator 
Whitehouse.
    Senator Feingold. I thank the Chair and congratulate both 
the nominees on your nomination.
    I do need to pursue what Senator Wyden very appropriately 
began, and that is the issue of the Gang of Eight statute. I 
heard the language ``fully and completely inform the 
Committee,'' and the Senator went through what the statute 
says.
    The exception only applies to covert action, not to 
collection programs or activities, and I'm just trying to 
figure out what the legal basis is for this circumstance that 
you're imagining of grave risk and so on. What is the legal 
basis or where is the language that allows that kind of an 
independent interpretation of the plain statute?
    Mr. Litt. Senator, Section 502 begins, ``To the extent 
consistent with due regard for the protection from unauthorized 
disclosure of classified information relating to sensitive 
intelligence sources and methods or other exceptionally 
sensitive matters, the Director of National Intelligence and 
the heads of all departments, agencies and other entities of 
the United States government involved in intelligence 
activities shall keep the congressional intelligence committees 
fully and currently informed,'' and so on.
    So there clearly is a qualification. In my view, that 
qualification--and let me make it very clear--I do not think 
that that qualification is a limitation on whether the 
intelligence committees should be kept informed. I think it 
does afford some wiggle room on how the intelligence committees 
are kept fully informed.
    As I said, in my view this is something that should be done 
only in the most extraordinary of circumstances and only in 
consultation with the Chairman and Vice Chairman of the 
Committee.
    Senator Feingold. Well, I appreciate the reference to that 
language. First of all, the notion that a Committee can be 
fully informed when just two Members are notified to me is 
illogical, but I understand the argument you're trying to make.
    But do you agree that the provision which allows for a 
Presidential determination that limited access is essential 
``to meet extraordinary circumstances affecting vital interests 
of the United States'' was not intended, of course, to 
authorize hiding matters from the full Committee because they 
are politically sensitive or legally controversial?
    Mr. Litt. Not on those bases alone, no, sir.
    Senator Feingold. Mr. Preston, your answer to this area, 
please.
    Mr. Preston. I would agree on that, certainly.
    Senator Feingold. And what is your general position with 
regard to the explicit language of the statute and the very 
narrow exception that's provided?
    Mr. Preston. I think I would agree with Mr. Litt's 
construction of the statute to the extent that that opening 
language does provide a qualification on the obligation. 
However, I would emphasize, with equal or greater weight, the 
point he has made that it should be truly exceptional 
circumstances and that the legal requirement here is for 
complete and timely provision of information to the full 
Committee. The law admits of exceptions only on an 
extraordinary basis.
    I am keenly aware of the concern on this Committee, and I 
know that Director Panetta is aware of the concern, about the 
use, or many would say overuse, of restricted briefings. He is 
committed to addressing that. I will join him in working to 
improve effective communication between the Agency and the 
Committee and to get notification and reporting done right.
    Senator Feingold. I believe both of you are sincere in 
wanting to get this right, but let me just underscore what it 
means if, after what was frankly a rogue administration's 
approach to this, somehow the approach is ratified by a second 
administration that did not take such a cavalier attitude but 
sort of says, well, actually there are these independent things 
you can do despite the statute, how serious that would be for 
this. But I've heard your words and I look forward to working 
with you on it.
    Mr. Litt, you have informed the Committee that you 
represent several current and former CIA employees who had some 
role in rendition, detention and interrogation. You indicated 
that to avoid conflicts of interest you will not participate in 
any decisions affecting the outcome of any prosecutions or 
investigation of these or similarly situated individuals, nor 
will you offer opinions with regard to particular interrogation 
procedures that may have been employed in the past and that 
``relate to the subject of my representation.''
    Given that we can't predict how current and future policy 
deliberations might ultimately affect your clients, shouldn't 
you proceed under the assumption that any opinions you offer on 
detention, interrogation and rendition could present an 
appearance of a conflict of interest?
    Mr. Litt. Senator, obviously, as you know, I'm keenly aware 
of this issue. I did send a letter to the Committee about it. 
And I will consult regularly with the designated Agency ethics 
official about what is and is not appropriate for me to 
participate in.
    My approach to the law is generally that I try to apply the 
law to a specific set of facts, and it's my current judgment 
that if I am presented with a set of facts in the future where 
somebody asks me, can we use this interrogation technique in 
this circumstance, that I would be able to offer an opinion or 
my best legal judgment on that without affecting the interests 
of my clients. But obviously I would be constantly consulting 
with the ethics officer on that.
    Senator Feingold. Finally, Mr. Preston, the President said 
today that he disagreed with the legal analysis and the OLC 
memos on torture. Do you as well, and do you consider the 
interrogation techniques described in the OLC memos to be 
torture?
    Mr. Preston. Sir, you said Mr. Preston----
    Senator Feingold. Yes.
    Mr. Preston [continuing]. But you seem to be looking at Mr. 
Litt.
    Senator Feingold. I'm sorry. Go ahead.
    Mr. Preston. Shall I answer?
    Senator Feingold. Please, Mr. Preston.
    Mr. Preston. Senator, I believe that the four OLC memos at 
issue are flawed. I look to the Justice Department's own 
actions in reaching that conclusion. The Justice Department, 
during the last administration, repudiated publicly the legal 
reasoning of the unclassified August 2, 2002, memo from which 
the classified August 2, 2002, memo was derived, formally 
withdrew the former and later superseded the latter in May 
2005.
    More recently, the Department of Justice has indicated the 
flawed nature of all four memos, having now withdrawn all four, 
such that they are now dead letters.
    Senator Feingold. Do you consider the interrogation 
techniques described in the OLC memos to be torture?
    Mr. Preston. I have not reached that conclusion. I have 
very studiously focused on the four opinions as they are 
relevant to the tasks that will lie ahead of me. My view is 
that by virtue of the fact that the practices outlined in those 
memos have now ended, the law has changed since 2002 and 2005 
in significant fashion. And, as I pointed out, the letters have 
been withdrawn.
    Senator Feingold. You've not reached a contrary conclusion 
either, right?
    Mr. Preston. I have not.
    Senator Feingold. Okay. I apologize for going over my time.
    Chairman Feinstein. Thank you very much Senator.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Madam Chair. Welcome to the 
minefield, gentlemen. [Laughter.]
    Senator Whitehouse. Two issues. One, we urgently need a new 
cyber policy. The trajectory of what the Bush administration 
has left us is not sustainable. Indeed, I think you've been 
left in a bit of a trap. It's all too classified to discuss 
further, but I would point it out publicly it is a very big 
mine in the minefield.
    Two is torture. This is a question that has three 
components. The first is what we did. And I could not advise 
you more strongly to acquaint yourself with the details, to 
drill down to the cables, to bring people in and ask hard 
questions, and to not be fobbed off with sanitized summaries. 
Do it yourself or assure that it's done by someone not tainted 
by the program, independent, and who you can trust.
    Ask about conditions, hygiene, humanity and dignity, 
medical care. Ask about the intensity, duration and 
multiplicity of techniques. Find out if they complied with the 
limits and the predicates--and the predicates--of the OLC 
opinions. How bad is it? You need to know in order to advise 
your principals well.
    Second is how this happened. Institutions were damaged to 
make this happen, most profoundly, the Office of Legal Counsel 
of the Department of Justice. But how is it that no lawyer 
within the intelligence community found United States v. Lee on 
waterboarding, or our history of military prosecutions. Evan 
Wallach's Law Review article I would commend to you on the 
availability of that information. What went wrong? Why didn't 
they ask about it?
    And, third, this is a problem with a long history of false 
and misleading information, from the President saying it's not 
torture when we've prosecuted it as torture--as not only a 
crime but as a war crime--in our history. We were told it was 
clearly lawful and the OLC opinions were likely phonied up. 
Objections to them from within the administration were not 
answered but rather were suppressed. CIA appears to have turned 
a blind eye to it. ``Clearly lawful'' seems to exaggerate a 
good deal.
    It's the same as the SERE training, we were told. We do it 
to our troops. CIA's own IG report and the OMS section of that 
belies that. And if you've answered the first question you know 
it's false, the first question being about what was actually 
done.
    We were told that we need to back our brave CIA agents who 
did all this, and now we find out that the worst of the program 
was actually led by private contractors. We were led to believe 
that waterboarding was irresistible and immediately effective. 
Then we find out that KSM was waterboarded 183 times and 
another detainee 83 times. We were told that KSM lasted only 
seconds on the waterboard, it was that irresistible, and it 
never had to be done again. That was plainly false.
    We were told that it produced actionable data. I have not 
yet seen evidence of that, and the things that suggest that 
that's true are carefully worded, I think to mislead. Certainly 
Director Mueller has said he's seen no evidence of it also. 
Look carefully. Is there actually real evidence of actionable 
intelligence on the waterboard?
    Finally, military and FBI interrogators have been derided 
as amateurish and ineffective, with the opposite argument being 
that it's the expert and experienced folks at the CIA who don't 
need the Army field manual, sort of like it's training wheels 
on a bicycle, in order to do their jobs. In fact, the opposite 
is true.
    The FBI and the military and some career CIA folks were the 
real experts. The people who came in improvised a program. 
There was no previous expertise in that area, and the people 
who did it had no previous experience in interrogation. There 
is a strong record of that at this point.
    This whole question of the false and misleading information 
raises the question whether this is just a giant collective 
misunderstanding or whether there has been a calculated plan to 
deceive, and, whichever, it feeds into a consistent storyline 
that is, by all the evidence we've seen so far, false, and yet 
was maintained as early as today.
    Do not be taken in, I urge you, and do not allow your 
principals to be taken in. We know too much right now that is 
false. Your reactions?
    Mr. Preston. Well, Senator, I appreciate the admonition and 
the guidance. You clearly have followed this closely and are 
taking an active interest in it, which I and others at the 
Agency I am sure appreciate. And I think your observations and 
admonitions will be useful to me if I have the privilege of 
serving.
    Mr. Litt. Senator, I agree with what Steve said. I would 
also just comment that I know that this Committee is 
undertaking a review of the past interrogation practices, and I 
think that this Committee is particularly well situated to do 
that in an appropriate manner by virtue of the bipartisan 
tradition of the Committee and the expertise that it has in 
intelligence. And if I'm confirmed I look forward to doing what 
I can in working with you in that area.
    Senator Whitehouse. If I may add one final point in 
reaction to that, I could not be more proud of what Chairman 
Feinstein is doing. I could not be more confident in her 
leadership. But there are limitations to what a congressional 
committee can do in terms of the access that we're allowed to 
information, in terms of the consequences if we are misled, in 
terms of the boundary of executive privilege that protects 
certain things, or can be asserted to protect certain things.
    I very much hope that the executive branch of government is 
not relying on this Committee to sort out the mess that was 
made. For whatever we're doing, you have an independent 
responsibility as lawyers and as occupants of the offices you--
I hope soon--will hold to conduct your own independent, equally 
rigorous review of this so that you and the principals that you 
represent are not fooled, are not misled, and have a full 
understanding of what took place.
    Chairman Feinstein. Thank you very much, Senator 
Whitehouse.
    Senator Levin.
    Senator Levin. Madam Chairman, thank you very much and 
welcome to our witnesses and their families.
    I want to get back at the answer that you gave, Mr. 
Preston, I understand, to Senator Feingold about whether or not 
specific techniques represented torture or not, and I think 
your answer was you haven't reached that conclusion, or 
something like that?
    Mr. Preston. That's right.
    Senator Levin. Have you reached the opposite conclusion?
    Mr. Preston. No, sir.
    Senator Levin. Have you given some thought to the question?
    Mr. Preston. I have indeed.
    Senator Levin. And why haven't you reached a conclusion, if 
you have given thought to it?
    Mr. Preston. Well, it's difficult to answer the question 
with general reference to the techniques referenced in the 
opinions.
    Senator Levin. How about waterboarding 183 times?
    Mr. Preston. I will answer that. I just want to say the 
point I was making with Senator Feingold was that my focus has 
principally been on the issues I am likely to face going 
forward. To the extent that practices have ended by order of 
the President, the law changed after 2005, and we have a 
process in place to try to identify permissible practices. I 
have been focused in that direction and not so much on the 
judgments or misjudgments that were made in the past.
    Senator Levin. The Attorney General is in the same position 
you are, if you are confirmed.
    Mr. Preston. Yes, sir.
    Senator Levin. The President had said he's no longer going 
to use waterboarding. The Attorney General was very forthright. 
In his judgment, waterboarding is torture. He didn't say what 
you just said--hey, the President said he's not going to use 
it. So now let me ask you: is waterboarding torture?
    Mr. Preston. Well, as you point out, it has been determined 
at the highest level of our government, by the President and by 
the chief legal officer of the country, that waterboarding is 
torture and that the United States will not engage in that 
practice going forward. That's a decision made and I support 
the decision. Yes, sir.
    Senator Levin. You support that conclusion?
    Mr. Preston. Yes, sir.
    Senator Levin. Are you familiar with SERE techniques?
    Mr. Preston. I am generally familiar with them. Yes, sir.
    Senator Levin. Have you read the opinions that describe 
what those techniques are and how we use those to help train 
our people under very carefully controlled conditions as to 
what they might expect from people who torture them?
    Mr. Preston. Yes, sir.
    Senator Levin. Have you read the way in which those 
techniques were utilized not to help train our people to 
survive brutality but to inflict brutality. Have you read about 
techniques that were used?
    Mr. Preston. I have, sir.
    Senator Levin. And, in your judgment were the--and you read 
the Bradbury opinion, for instance?
    Mr. Preston. I have.
    Senator Levin. And in your judgment, were the techniques 
that were utilized against detainees utilized in the same way 
that SERE techniques are used to help our own folks resist 
intimidation or abuse?
    Mr. Preston. Senator, my understanding is that there are 
some differences that one might consider substantial.
    Senator Levin. Do you consider them substantial?
    Mr. Preston. I would. Among them----
    Senator Levin. Does that mean I do?
    Mr. Preston [continuing]. Yes, sir. Among the differences 
is that obviously one voluntarily enters into SERE training 
and, as I understand it, the participants are given a code 
word, if you will, the utterance of which will cause a 
cessation of the practice. Those strike me as significant 
differences.
    Senator Levin. The folks that run that program are called 
the Joint Personnel Recovery Agency, JPRA. They're the ones who 
help to train our people in case they're captured and abused, 
to try to survive that. A memo from that agency to the General 
Counsel of the Department of Defense said the following--that 
the use of coercive techniques in interrogation, out in 
training under controlled circumstances, including the one that 
you've just given, you can end it at any moment, but that the 
use of coercive techniques in interrogation would ``increase 
resistance, would create doubts about the accuracy and 
reliability of the information obtained, and could be used by 
enemies as justification for the torture of captured U.S. 
personnel.'' Do you agree with that assessment?
    Mr. Preston. I am not familiar with the memo, Senator. And 
I certainly understand that those and other points have been 
made in support of the proposition that these coercive 
techniques are not effective and ill advised.
    Senator Levin. And do you share those same doubts about----
    Mr. Preston. I share some of the same concerns. Yes, sir.
    Senator Levin. Madam Chair, is my time up? I'm over my 
time. I'm sorry, Madam Chair.
    Chairman Feinstein. We thank you very much, Senator.
    Senator Risch.
    Senator Risch. Pass.
    Chairman Feinstein. Senator, would you like to ask another 
question?
    Senator Levin. Yes. But I could come back. I didn't realize 
that----
    Chairman Feinstein. He passed.
    Senator Levin. Oh, okay. Thank you.
    General Petraeus in May of 2007 said 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 are also 
frequently neither useful nor necessary. Certainly extreme 
physical action can make someone talk. However, what the 
individual says may be of questionable value. Do you agree with 
General Petraeus?
    Mr. Preston. Senator, I would like to respond as completely 
as I can, but I frankly am not expert in the efficacy of 
interrogation techniques, the spectrum of interrogation 
techniques.
    Senator Levin. Are you concerned that if torture is used 
that someone will say anything in order to stop the torture?
    Mr. Preston. I beg your pardon?
    Senator Levin. Are you concerned that if torture is used 
that somebody who was being tortured will say anything to end 
the torture?
    Mr. Preston. Certainly, that's an intuitively 
understandable proposition. I just don't have any experience 
base with interrogation methods. And I would say certainly with 
respect to torture, as the President's made clear, we will not 
engage in torture.
    Senator Levin. Thank you. Thank you, Madam.
    Chairman Feinstein. Yes. Thank you very much, Senator 
Levin.
    Let me ask my questions. My curiosity was piqued by 
something, Mr. Preston, you wrote in the responses to 
prehearing questions about the unclassified conclusions of the 
CIA Inspector General's report entitled ``Procedures Used in 
Narcotics Airbridge Denial Program in Peru, 1995-2001.''
    On question 20(a), you state that the Office of General 
Counsel attorneys have a legitimate role to play in advising 
CIA personnel on mitigating potential civil liability, 
including advising their clients not to create discoverable 
documents during civil litigation or while facing the threat of 
civil litigation.
    Let me read a press statement written by the Vice Chairman 
of the House Intelligence Committee on January 13th. ``The CIA 
Inspector General also found that persons within the CIA 
mounted an extensive cover-up of the facts of this tragedy from 
the White House, the Justice Department, and Congress. The CIA 
lied to Congress and the executive branch about the downing of 
the Bowers' plane to shield its personnel from being held 
accountable and from possible prosecution.''
    Now, as you know, Mrs. Bowers was killed when the Peruvian 
Air Force shot at the plane and the bullet went through her 
into the brain of the baby she was holding in her lap and 
killed the baby as well. Who is the client of the CIA General 
Counsel--the United States, the CIA, the CIA Director, 
supervisors, the CIA personnel with accountability functions, 
or all individual CIA personnel? Who is your actual client?
    Mr. Preston. That is an excellent question and one that I 
have given thought to and I will answer as directly as I can. 
In your absence, Senator Wyden also asked me about this and 
gave me an opportunity to clarify that I am not familiar with 
the circumstances of the Peru incident, have not had access to 
the IG report, and am not in a position to comment on the 
particular observation or allegation about the making of 
discoverable documents. I was simply trying to make the point 
that it is not uncommon, certainly in private sector experience 
and I think increasingly in the public sector, that an attorney 
could properly advise a client or agency personnel not to 
unnecessarily generate documents that would be discoverable in 
a civil litigation context.
    Chairman Feinstein. Well, it's one thing to do that; it's 
another thing to inspire a direct cover up.
    Mr. Preston. And as I tried to clarify with Senator Wyden, 
I think what I am describing is worlds apart from anything I 
would call a cover up or instructions not to create records 
that are regularly kept or to alter records, to destroy records 
or otherwise not cooperate in, for example, a criminal 
investigation.
    Chairman Feinstein. Let me ask you----
    Mr. Preston. I do want to answer your question.
    Chairman Feinstein [continuing]. Another question.
    Mr. Preston. Yes, ma'am.
    Chairman Feinstein. Are there any circumstances under which 
the CIA should be permitted to lie to Congress?
    Mr. Preston. I don't believe--I cannot think of any.
    Chairman Feinstein. And if you believed the CIA were in 
fact lying to Congress, what would you see it to be your duty 
to do?
    Mr. Preston. Well, I would follow the lead of Director 
Panetta on this, and he has said it is neither the policy nor 
the practice of the Agency to lie to or mislead Congress. I 
would view an instance of lying to Congress as being in direct 
tension and direct opposition with that stated policy and 
practice by the Director. And I would, at a minimum, bring it 
to the Director's attention so that we could discuss the 
appropriate response.
    Chairman Feinstein. I would very much hope you would not 
condone it.
    Mr. Preston. Oh, absolutely not.
    Chairman Feinstein. And that you would do more than bring 
it to his attention for a response.
    Mr. Preston. Well, by which I simply meant that I would 
engage with him and that we would decide--he would decide with 
the benefit of my judgment how to rectify the situation. I 
don't mean to suggest it's merely a matter of letting him know 
about it.
    Chairman Feinstein. Well, let me ask you, if you are 
confirmed, that you do review the Inspector General's report on 
this.
    Mr. Preston. I plan to. And I do want to answer your 
question. I believe my client will be the Agency and ultimately 
the United States. I take my direction from the Director, and 
in some very real ways the men and women who are the Agency we 
regard as our clients. But in, for example, a matter in which 
there's possible criminal misconduct, neither I nor the lawyers 
in my office have any business providing personal counsel to 
individuals who may have exposure. Our client is the Agency, 
the United States, and the people of the United States.
    Chairman Feinstein. Thank you very much.
    Mr. Ranking Member, do you have a question?
    Vice Chairman Bond. I've heard enough.
    Chairman Feinstein. Okay.
    Senator Whitehouse, do you have additional questions?
    Senator Whitehouse. If I may.
    Chairman Feinstein. Please, go ahead.
    Senator Whitehouse. Thank you.
    Mr. Preston, you, in responding to Chairman Levin, 
indicated a tendency, if you will, to try to address the 
forward-looking problems of the Agency that with any luck you 
will soon be representing, as opposed to the backward-looking 
problems. As lawyers, as you know, when we come in, those old 
messes are still our problems. You don't get to say, well, that 
happened before I got here. It's not my problem.
    You have under American law the corpus delicti of a crime. 
Waterboarding under American law is a crime established by the 
United States Court of Appeals for the Fifth Circuit, the 
United States v. Lee.
    So now the question is, is anybody criminally liable for 
it? You found a body, doesn't necessarily mean somebody is 
criminally liable for it. You have to investigate further. You 
have at least one U.S. Attorney investigating a related issue. 
I think that the notion that somehow this can be wished away or 
isn't going to be a very real and immediate part of your 
professional life is misguided.
    I understand that there is something of a tension between 
the President's desire to look forward, which I think is both 
correct and commendable and appropriate for his office, and the 
problem that, frankly, this can't be wished away. And you will 
be at the junction point of the Presidential desire to go 
forward, and yet the facts and the practicalities of really not 
being able to until this is resolved. And I'd be interested to 
hear how you would resolve that tension.
    I'd also like you to comment on another tension. You will 
be representing--both of you actually--principals, your bosses, 
the director of National Intelligence and the Director of the 
CIA, who are new to their positions and who rely to a very 
substantial degree on career staff to provide them advice. And 
in both cases, it is possible that within that staff chain of 
command are people who are actually implicated in the decisions 
that led to the torture of detainees.
    It seems to me that that creates a very significant 
management and legal problem for your principals if they have 
not, particularly on this issue, built a chain of command to 
advise them on it that is clear and independent of any taint of 
association with the program.
    That's particularly complex in Mr. Litt's case because he 
has his own separate conflict issues related to this.
    So how do you intend to balance the President's desire of 
the President of the United States to look forward with your 
responsibilities as Agency counsel with a very significant and 
as yet unresolved problem in your past to resolve? And what is 
your responsibility for assuring that your principal has a 
clean and untainted chain of command that is informing him 
about this so that cover-ups aren't happening in that chain of 
command?
    Mr. Preston. Let me begin with the first question and 
underscore my agreement with you that one cannot wish away the 
issues arising from the past practices. And I don't mean to 
suggest anything of the sort. I recognize that those----
    Senator Whitehouse. We all wish they never happened, but 
that's a different----
    Mr. Preston [continuing]. Well, that may be. I recognize 
that these are real and present issues that the Agency, the 
Director, myself will need to deal with responsibly, and I have 
every intention of doing that. My reference to looking ahead 
was really by way of explanation as to why as these issues come 
to me I don't expect the dead letters of the OLC opinions to be 
providing guidance to me. I will be looking at the facts that 
are presented then and the guiding principles that now apply 
and apply my best judgment for the benefit of my client.
    Senator Whitehouse [continuing]. And on the question of an 
untainted reporting chain?
    Mr. Preston. Pardon?
    Senator Whitehouse. And on the question of an untainted 
reporting chain?
    Mr. Preston. On the question of reporting chain, it's an 
interesting point. I think it's more than an interesting point. 
It's an important point. One of the things I can do to help the 
Agency and to help the Director is to come in as someone who 
has no prior involvement with the matters under examination 
and, starting with me, provide guidance, advice and counsel 
that is uninformed and, to the outside observer, untainted, to 
use your word, by prior involvement.
    The Agency and other members of the intelligence community 
don't wholesale change out the leadership when there's a change 
in administration, and that's a good thing. I would expect that 
both the Director and I will come to rely on the solid career 
people at the Agency, senior staff and otherwise, that from 
administration to administration we have come to rely on.
    I think you flag an issue that we need to be sensitive to 
as we navigate these shoals. But I do think and I have--from my 
experience with the senior staff in the Office of General 
Counsel that I've worked with, I know them to be dedicated and 
capable. And to the extent that people were there at the time 
the matters under examination were happening, that's something 
that we will simply have to factor into our actions and 
decisionmaking.
    Senator Whitehouse. But you do recognize that for all the 
wonderful work that the CIA career folks do and, as the son of 
a former CIA employee and career federal employee, I think 
very, very highly of what they do. This is not a slam on them. 
This is just a fact that if you allow your chain of reporting 
to be only through people who are potentially implicated in an 
incident, it is not clear that your principal who you represent 
will be getting untainted information. And getting to your 
principal untainted and complete information I think is one of 
your highest duties.
    Thank you, Chairman.
    Chairman Feinstein. Do you have any other questions?
    Senator Levin. Just a couple, if you would, Madam Chairman.
    You said a few moments ago that if a Director of CIA said 
something that was misleading. Is that who you were referring 
to, that you would then talk to him about how to rectify the 
situation?
    Mr. Preston. That wasn't how the question was presented to 
me.
    Senator Levin. Who was the question referring to? Was it 
not the CIA Director?
    Mr. Preston. Well, the Chairman referred to the CIA--if the 
CIA were to lie to Congress.
    Senator Levin. All right. So if the CIA Director said 
something which was misleading or erroneous publicly, what 
would you do?
    Mr. Preston. I think my first responsibility would be to 
apprise him of my concerns about the accuracy of his 
statements.
    Senator Levin. And what would be the second thing, if he 
continued.
    Mr. Preston. It may well depend on what his response is.
    Senator Levin. Well, he said, ``I'm not going to correct 
it. You're right. It's erroneous, but I'm not going to correct 
it.''
    Mr. Preston. Well, I think one can suppose any number of 
circumstances where my client or the Director would choose not 
to follow my advice or act against my counsel. That would 
present to me a dilemma in which, depending on the issue and 
the strength of my disagreement, I might find myself compelled 
to seek employment elsewhere. I certainly hope and with this 
Director confidently predict that's not going to be a problem.
    Senator Levin. I'm sure that's our hope and our confident 
prediction, but we don't know how these things turn out. 
Director Tenet said some things publicly which were false and, 
by the way, acknowledged later on in his book that they were 
erroneous. A top policymaker of the United States, the Vice 
President, said some things which were false. Director Tenet 
said, gee, looking back, I'm sure we should have done something 
to force a correction of that.
    We went to war based on misleading, erroneous information 
that was passed on by our top policymakers based on 
intelligence, particularly alleging a link between al-Qa'ida 
and Saddam Hussein. These are serious matters involving a huge 
amount of lives. And it's important to me that I know what's in 
your gut about, if and when that happened, how seriously you 
would take it.
    Mr. Preston. I think that it is a gravely serious matter. I 
think there's been a lot learned from that experience. I think 
this process by which Director Panetta was selected and 
confirmed, and to a lesser extent myself, is one in which 
hopefully we are capably communicating the gravity with which 
we would regard that and our every intention not to let it 
happen.
    Senator Levin. The Chairman made reference to an IG report 
on the shootdown of a missionary family's plane in Peru, which 
was a Michigan missionary family, and made reference to the 
fact that the lawyers from the CIA Office of General Counsel 
advised CIA personnel to avoid putting anything in writing lest 
it be discoverable in legal proceedings. My understanding was 
that you indicated in a prehearing answer that such advice 
could be justified, but then I thought you said that you have 
clarified this with one of our colleagues. Is that correct?
    Mr. Preston. Well, there was a colloquy with Senator Wyden 
in which he just wished to make clear--I wished to make clear 
that I was not commenting on the specific facts in the Peru 
incident because I am not aware of those facts and I have not 
seen the report. I had made the observation that is not 
uncommon and may be entirely proper for counsel to advise 
client personnel not to generate unnecessary documents that 
might prejudice the Agency's case in civil litigation. But 
beyond that, I really am not familiar with the Peru incident or 
what advice was given and do not want to express a judgment one 
way or the other on that.
    Senator Levin. I think you should become familiar with that 
report so you can give us your opinion. Would you do that?
    Mr. Preston. I have every intention of reviewing that----
    Senator Levin. Promptly.
    Mr. Preston [continuing]. When I take office.
    Senator Levin. Well, no. I'd like you to do that promptly.
    Mr. Preston. Yes, sir.
    Senator Levin. If you do that in the next couple of days, I 
would be appreciated.
    Mr. Preston. Well, it's classified and I am not able to 
have access to it, but my plan was, if I am privileged to take 
office, to make it one of my first priorities.
    Chairman Feinstein. If I may, I think what Senator Levin 
and some of us are pointing out is that you are not just an 
attorney representing any client. You're representing an agency 
that presents itself as a difficult client because of its 
mission. And our expectation is that the law will be followed 
and that we will not be lied to. And these are problems of war 
and peace, as Senator Levin pointed out. And I think anything 
other than the truth, as somebody knows it at the time, is 
really unacceptable. And to some extent, the burden is going to 
be yours.
    Now, you said if the question were of such magnitude and 
the Director, let's say--I guess it is the Director--would not 
take your advice, that you would resign. And I think that's the 
appropriate thing. And I think there has to be a legal 
conscience for the Agency and your office is going to be it.
    Mr. Preston. I appreciate your insights into that and I am 
in agreement with you. I am confident, as I told Senator Levin, 
that with Director Panetta things would not get to that point, 
but I do not mention it lightly and I would not take that step 
lightly. But I agree entirely with you in terms of the great 
importance of both adherence to the law and candor with the 
oversight committees.
    Chairman Feinstein. Okay.
    At the conclusion of the hearing, the Committee is going to 
have questions for the record that we will submit to the 
nominees in writing. I'd like to ask that Members submit their 
questions by noon on Tuesday, and I'd like to ask both you, Mr. 
Preston, and you, Mr. Litt, that you respond to them ASAP. As 
soon as we receive them, have an opportunity to review them, we 
will mark up your nomination and hopefully be able to move it 
out to the floor.
    So at this time, once again, if the Members could meet in 
room 211, that would be appreciated. And this hearing is 
adjourned.
    [Whereupon, at 4:02 p.m., the Committee adjourned.]
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