    [Senate Hearing 115-73]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-73

                       HEARING TO CONSIDER THE NOMINATION
                        OF COURTNEY SIMMONS ELWOOD TO BE
                         GENERAL COUNSEL OF THE CENTRAL
                              INTELLIGENCE AGENCY

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

                                    HEARING

                                   BEFORE THE

                        SELECT COMMITTEE ON INTELLIGENCE

                                     OF THE

                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           WEDNESDAY, APRIL 26, 2017

                                   __________

          Printed for the use of the Select Committee on Intelligence

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                        SELECT COMMITTEE ON INTELLIGENCE

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

                     RICHARD BURR, North Carolina, Chairman
                    MARK R. WARNER, Virginia, Vice Chairman

    JAMES E. RISCH, Idaho                DIANNE FEINSTEIN, California
    MARCO RUBIO, Florida                 RON WYDEN, Oregon
    SUSAN COLLINS, Maine                 MARTIN HEINRICH, New Mexico
    ROY BLUNT, Missouri                  ANGUS KING, Maine
    JAMES LANKFORD, Oklahoma             JOE MANCHIN, West Virginia
    TOM COTTON, Arkansas                 KAMALA HARRIS, California
    JOHN CORNYN, Texas
                     MITCH McCONNELL, Kentucky, Ex Officio
                      CHUCK SCHUMER, New York, Ex Officio
                        JOHN McCAIN, Arizona, Ex Officio
                      JACK REED, Rhode Island, Ex Officio
                                  ----------
                          Chris Joyner, Staff Director
                     Michael Casey, Minority Staff Director
                       Kelsey Stroud Bailey, Chief Clerk

                                    CONTENTS

                                  ----------

                                 APRIL 26, 2017

                               OPENING STATEMENTS

    Burr, Hon. Richard, Chairman, a U.S. Senator from North Carolina.     1
    Warner, Hon. Mark R., Vice Chairman, a U.S. Senator from Virginia     3

                                   WITNESSES

    Kaine, Hon. Tim, a U.S. Senator from Virginia....................     4
    Elwood, Courtney, nominated to be General Counsel................     6
        Prepared Statement...........................................     9

                             SUPPLEMENTAL MATERIAL

    Questionnaire for Completion by Presidential Nominees............    32
    Prehearing Questions and Responses...............................    49
    Follow up Questions for Mrs. Elwood from Senators Wyden and
      Heinrich.......................................................    68

                       HEARING TO CONSIDER THE NOMINATION
                        OF COURTNEY SIMMONS ELWOOD TO BE
                         GENERAL COUNSEL OF THE CENTRAL
                              INTELLIGENCE AGENCY

                                  ----------

                           WEDNESDAY, APRIL 26, 2017

                                           U.S. Senate,
                              Select Committee on Intelligence,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:08 a.m. in
    Room SD-106, Dirksen Senate Office Building, Hon. Richard Burr
    (Chairman of the Committee) presiding.
        Committee Members Present: Senators Burr (presiding),
    Warner, Collins, Blunt, Lankford, Cotton, Cornyn, Feinstein,
    Wyden, Heinrich, King, and Harris.

       OPENING STATEMENT OF HON. RICHARD BURR, CHAIRMAN, A U.S.
                      SENATOR FROM NORTH CAROLINA

        Chairman Burr. I'd like to call the hearing to order. I'd
    like to welcome our witness today, Mrs. Courtney Elwood,
    President Trump's nominee to be the next General Counsel of the
    Central Intelligence Agency. Courtney, congratulations on your
    nomination. And I'd like to recognize your husband John--John,
    wave your hand there.
        [Mr. Elwood waves.]
        Thank you John for the support you give to Courtney.
        Courtney, you've served the country with distinction in
    your previous posts at the White House and the Department of
    Justice, and we appreciate your continued willingness to serve.
        Our goal in conducting this hearing is to enable the
    committee to consider Mrs. Elwood's qualifications and to allow
    for thoughtful deliberation by our members. She's already
    provided substantive written questions--answers to more than 90
    questions presented by the committee and its members. Today, of
    course, members will be able to ask additional questions and to
    hear from Mrs. Elwood in this open session.
        Courtney comes in front of the committee with a
    distinguished legal career. After graduating Yale Law School in
    1994, Courtney clerked for the U.S. District Court of Appeals
    for the Fourth Circuit, after which she went to clerk for Chief
    Justice William Rehnquist of the Supreme Court. Courtney then
    took a job as an associate with the firm of Kellogg Hansen,
    where she is now a partner.
        In January 2001, she left the firm to serve as Associate
    Counsel to the President, rising through the ranks to Deputy
    Counsel to the Vice President and then Deputy Chief of Staff
    and Counselor to the Attorney General. During the extremely
    difficult time in the days and weeks and months after 9/11,
    Mrs. Elwood provided sound legal counsel to our Nation's
    leaders as they considered what tools the intelligence
    community needed to combat terrorism and to secure our Nation.
        Mrs. Elwood, you've been asked to serve as the chief legal
    officer of the Central Intelligence Agency at a time when the
    Agency and the intelligence community as a whole face complex
    legal questions and a host of challenging priorities. The CIA's
    General Counsel must provide sound and timely legal advice to
    the Director and must manage an office responsible for legal
    oversight and compliance at the world's premier intelligence
    agency.
        But, more than that, the CIA General Counsel maintains a
    vital public trust. Part of your job will be to ensure for the
    American people that above all the Agency operates lawfully,
    ethically, and morally. Since you left government service, the
    nature and number of challenges and threats the intelligence
    community is tracking have multiplied significantly. While
    Americans continue to engage in robust debate about which
    intelligence authorities are right, appropriate, and lawful, I
    expect you to ensure that the Agency operates within the bounds
    of the law and to ensure that the Office of General Counsel is
    positioned to provide the best legal advice possible to
    Director Pompeo and to the Agency as a whole.
        This committee has received letters of support from your
    current and former colleagues and a letter of support signed by
    those that have served in both Democrat and Republican
    administrations. Your former colleagues praised your acumen,
    integrity, and judgment, and--and I quote--``deep respect for
    the rule of law.''
        Jack Goldsmith, a professor at the Harvard Law School who
    has known you since you were a law student at Yale, referred to
    you as ``a superb, independent-minded lawyer.'' A letter from
    the D.C. Bar Association Committee on National Security Law,
    Policy, and Practices highlighted your deep-seated commitment
    to the rule of law and to our democratic principles. And your
    colleague Ben Powell, former General Counsel to the DNI, had
    this to say: ``She's simply one of the finest lawyers and
    persons I've ever worked with in my career.''
        After meeting you, it's easy to see how you've garnered
    such widespread, consistent accolades. I know that your strong
    moral compass and sharp legal mind will serve you well as the
    General Counsel of the Central Intelligence Agency.
        As I mentioned to Director Pompeo during his nomination
    hearing, I can assure you that this committee will continue to
    faithfully follow its charter and conduct vigorous and real-
    time oversight over the intelligence community, its operations,
    and its activities. We'll ask difficult questions, probing
    questions, of you and your staff, and we expect honest,
    complete, and, more importantly, timely responses.
        I look forward to supporting your nomination and ensuring
    its consideration without delay. Thank you again for being here
    and for your service to the country. I look forward to your
    testimony.
        I now recognize the Vice Chairman for any opening
    statements he might make.

    STATEMENT OF HON. MARK R. WARNER, VICE CHAIRMAN, A U.S. SENATOR
                             FROM VIRGINIA

        Vice Chairman Warner. Thank you, Mr. Chairman.
        Welcome, Mrs. Elwood. Again, congratulations on your
    nomination to serve as General Counsel of the CIA. I see John
    as well, although I do have to question to a degree your legal
    judgment by bringing my friend Tim Kaine as an introducing
    factor, but I will overlook that.
        [Laughter.]
        Obviously, this position is tremendous responsibility, one
    that requires a careful review of the qualifications and
    character of the individual nominated. I echo a lot of the
    comments that the Chairman has made.
        If confirmed, you'll be sitting at a critical intersection
    between intelligence and policymaking. As the CIA's top legal
    officer, the Director will turn to you to make judgments on
    whether a contemplated activity is legal or not. This job
    requires a leader with unimpeachable integrity and unwavering
    commitment to the Constitution and laws of the United States,
    who will apply both sound legal analysis and good judgment to
    the task of providing counsel to the agency.
        During our conversation when we had a chance to visit, you
    and I agreed that politics has no place in the CIA General
    Counsel's Office. We discussed the need to follow the law,
    including the Army Field Manual, to ensure that torture does
    not tarnish the reputation of the intelligence community or
    this country again.
        Mrs. Elwood, during my questions I will again want your
    public assurance today that you will always seek to provide
    unbiased, unvarnished, and timely legal counsel to the Director
    of the CIA, even when doing so might be inconvenient or
    uncomfortable.
        Obviously, there will be a number of challenges that will
    require that kind of legal judgment going forward. Those
    challenges will include making sure we continue to protect the
    privacy and civil liberties of Americans; the increasing use
    and relevance of vast amounts of public information creates a
    significant challenge and opportunity for the whole CIA and the
    whole IC. We've got to always make sure that we are protecting
    the privacy and civil liberties of United States citizens as we
    take on these new tools moving forward.
        An issue I know a number of us on the committee have been
    very concerned about and I think will come back again is
    encryption. Again, related to privacy concerns, the
    intelligence community needs to find ways to access the
    communications of our adversaries while protecting privacy
    rights and American commercial ingenuity. I believe we cannot
    tie the hands of our technology leaders by unilaterally
    disarming them with possible security loopholes.
        An area again that this committee has looked on is
    information-sharing. The rapid change of information technology
    enables significant sharing of classified information and we
    must work to find ways to have the appropriate level of
    sharing.
        Finally, a subject that has had a lot of the attention of
    the committee recently. Chairman Burr and I have committed to
    conduct a review of the intelligence supporting the
    intelligence community's assessment that Russia, at the
    direction of President Vladimir Putin, sought to influence the
    2016 U.S. presidential election. It's important that all
    Americans fully understand the extent of Russia's involvement.
        It is vital that the CIA, pursuant to your legal guidance,
    support our investigation to the maximum extent possible and
    allow this committee to follow the facts wherever they may
    lead. This is a charge I take seriously, all the members of the
    committee take seriously, on behalf of the American people, and
    we will continue to pursue this both thoroughly and
    expeditiously.
        I will again during my questions ask you to commit to me
    and all members of the committee that you will fully cooperate
    with this review and that you will do all you can to ensure
    that we're provided the information we will require to conduct
    it.
        With that, again thank you for being here, Mrs. Elwood, and
    I look forward to today's hearing.
        Thank you, Mr. Chairman.
        Chairman Burr. Thank you, Vice Chairman.
        I'd like to at this time recognize our colleague the
    distinguished Senator from Virginia Tim Kaine, who will
    introduce Mrs. Elwood. Senator Kaine.

       STATEMENT OF HON. TIM KAINE, A U.S. SENATOR FROM VIRGINIA

        Senator Kaine. Thank you, Mr. Chair, Vice Chair, and
    members of the committee. This is an honor. One of my favorite
    things to do in the Senate is bring talented Virginians before
    the body who are committed to public service and Mrs. Elwood is
    such an individual.
        I'm just going to warn you, doing this in front of my
    senior Senator and also the only Alexandria native in the
    Senate, Senator King from Maine, makes me feel a little bit
    nervous. Some of you need to know that, the non-Virginians here
    need to know, that Mrs. Elwood lives down the street from
    Senator Warner. On that score, Mark, will you take your
    Christmas lights down?
        [Laughter.]
        That was a joke. Actually, she has trick or treated at
    Senator Warner's house and the first test of her discretion as
    an intel professional will be not revealing costumes that she's
    seen over the years.
        [Laughter.]
        As I said, it's always rewarding. I know all of us feel
    this way about our states, that we have deep talent pools of
    wonderful people who are public servants, and public servants
    often don't get the thanks that they deserve. They don't get
    the appreciation they deserve. But bringing somebody before
    this committee or others who is willing to serve in a really
    important position does give me a real sense of pride.
        I think that people who arrive here are the creatures of
    their experience. So frequently that experience begins with an
    upbringing and lessons learned as kids through parents,
    teachers, grandparents, counselors, or other mentors. With Mrs.
    Elwood, that's no exception. She had a foundation in family
    that really laid the groundwork for her public service career.
        Her father, the late General Edwin Simmons, served in World
    War II, Korea, and Vietnam as a United States Marine, and his
    legacy continues in the Marine Corps today. One of the
    buildings at Marine Corps University in Quantico is named after
    her dad. Her mother was a dedicated public servant as well,
    working and traveling the world in the Foreign Service before
    settling in Northern Virginia.
        Courtney's been a path-breaker in her career. She was in
    the first class of a high school, Fairfax West Potomac High
    School, that was formed through the merger of two very
    competitive high schools and this first class had to create new
    traditions and bring together folks who had been, at least on
    the athletic fields, rivals before. Then she went to Washington
    and Lee for undergrad, where she was in the second class of
    women and people used to say she must be a feminist because she
    raised her hand. So she's been willing to be a path-breaker and
    has had encouragement from family and professors to do that.
        When Courtney finished at W&L, as was mentioned, she went
    to Yale Law School and she worked with our Senate colleagues,
    the younger Senators Bennet and Coons, who were at Yale Law
    School the same time as she was.
        She's now worked in the legal profession for 20 years and
    the Chairman went through some of her experience, including
    public service experience serving as a clerk on the Fourth
    Circuit, serving in the very prestigious position as a clerk on
    the Supreme Court for Chief Justice Rehnquist, as counsel in
    the White House, the Office of Vice President, the Department
    of Justice. And I also know many of Courtney's law partners in
    private practice well and it's a private firm that is filled
    with people that are very public-spirited, Democrats and
    Republicans. They appreciate those who are public-spirited and
    I know Courtney has absorbed that lesson from them as well.
        Courtney will I know talk about her family. Her husband
    John is here. The two boys, ages 15 and 12, live in Alexandria.
    They're in school today.
        But I'll just conclude and say that so much of what we do
    depends upon the talent of the people that we bring into these
    very, very different positions. With Courtney Elwood you have
    somebody of a sterling professional background, but more
    importantly I think for purposes of this position, with a
    sterling reputation for integrity that is necessary in the CIA
    General Counsel position. It's my honor to present her to the
    committee.
        As I said to the Chairman, I have a bill being marked up in
    the HELP Committee. Usually my bills actually go better when
    I'm not there, but I probably should at least go up to make
    sure that that's okay. So I hope you'll excuse me so I can head
    upstairs.
        Chairman Burr. Tim, thank you. You are excused. And if you
    would shepherd my bill through the markup.
        Senator Kaine. His is being marked up as well.
        Thank you so much.
        Senator King. I was hoping we'd have a chance to question
    Senator Kaine.
        [Laughter.]
        Senator Heinrich. I would second that.
        Chairman Burr. I'd prefer to do that in closed session.
        [Laughter.]
        Mrs. Elwood, would you please stand and raise your right
    hand.
        [Witness stands.]
        Do you solemnly swear to give this committee the truth, the
    full truth, and nothing but the truth, so help you God?
        Mrs. Elwood. I do.
        Chairman Burr. Please be seated.

     STATEMENT OF COURTNEY SIMMONS ELWOOD, NOMINATED TO BE GENERAL
               COUNSEL OF THE CENTRAL INTELLIGENCE AGENCY

        Chairman Burr. Courtney, before we move to your statement
    I'd like to ask you to answer five questions that the committee
    poses to each nominee who appears before us. They require just
    a simple yes or no answer for the record.
        Do you agree to appear before the committee here or in any
    other venue when you're invited?
        Mrs. Elwood. Yes, sir.
        Chairman Burr. If confirmed, do you agree to send officials
    from your office to appear before the committee and designated
    staff when invited?
        Mrs. Elwood. Yes, sir.
        Chairman Burr. Do you agree to provide documents or any
    other materials requested by the committee in order for us to
    carry out our oversight function and legislative
    responsibilities?
        Mrs. Elwood. Yes, consistent with the law.
        Chairman Burr. Will you both ensure that your office and
    your staff provide such materials to the committee when
    requested?
        Mrs. Elwood. Yes, consistent with the law.
        Chairman Burr. Do you agree to inform and fully brief to
    the fullest extent possible all members of this committee of
    intelligence activities and covert action, rather than only the
    Chair and the Vice Chair?
        Mrs. Elwood. Again, consistent with the law, yes, sir.
        Chairman Burr. Thank you very much. We'll now proceed to
    your opening statement, after which I'll recognize members by
    seniority for up to five minutes of questions.
        Mrs. Elwood, welcome and the floor is yours.
        Mrs. Elwood. Thank you. Chairman Burr, Vice Chairman
    Warner, members of the committee: It is an honor to appear
    before you as the nominee to be General Counsel of the Central
    Intelligence Agency. I want to thank President Trump and
    Director Pompeo for their trust and confidence in me.
        I also want to thank Senator Kaine for that nice
    introduction. It was a great privilege and pleasure to meet not
    just one, but both, of my home State Senators as part of this
    process.
        I'd like to use this opportunity to tell you a little bit
    more about me and what I view as essential qualifications for a
    CIA General Counsel. I come from a national security family. As
    Senator Kaine alluded, my father devoted his life to the Marine
    Corps and to this country. He spent 36 years in uniform, seeing
    active combat in World War II, Korea, and Vietnam. There is
    little doubt that good intelligence kept him and his men alive
    during those years. He would later write about the remarkably
    good intelligence brought by bold foreign agents during his
    fight at the Chosin Reservoir.
        When dad returned home from Vietnam in 1971, he formed the
    Marine Corps' history division, which he led for 24 years. He
    was a prolific author of military histories and he supported
    the work of many other military historians. He did so because
    he believed that there were lessons to be learned from the
    great achievements and the mistakes of U.S. warfare, mistakes
    that future generations must not forget.
        My mother in her own way was no less brave and tough than
    her Marine husband. She overcame poverty and more than her
    share of life's adversities to have a career in the Foreign
    Service before she married and raised our family.
        The lessons around our kitchen table were about personal
    responsibility, honor and valor. We were taught to adhere to
    our principles even if it comes at great personal or
    professional sacrifice. We were taught there is a clear
    difference between right and wrong, and we heard stories about
    America's place in this world as a force for good.
        If my parents were alive today, they would take great pride
    in my being considered for this position. It is thanks to them
    that I believe I have some of the necessary qualifications.
        Chairman Burr has spoken eloquently of the first
    prerequisite, unwavering integrity. In addressing Director
    Pompeo's fitness for his position, Chairman Burr rightly
    observed that because the CIA is an agency that works in the
    shadows, it requires a leader to be unwavering in integrity,
    who will ensure that the organization operates lawfully,
    ethically, and morally. I believe the same holds true for its
    General Counsel.
        I hope and believe that people who know me well would tell
    you that I'm a person of integrity. I certainly have lived my
    life with that goal at the forefront of my mind.
        A second prerequisite for the job is independence. There
    have been many times in my life where it would have been easier
    to go along to get along or to be for what's going to happen,
    but I haven't done so. When the law or circumstances have
    required, I have told clients and superiors things they didn't
    want to hear. If I were not prepared to do the same in this
    position, I would not accept the challenge. And if confirmed
    for this position, I will tell the attorneys of the office that
    I expect the same from them.
        But these qualities, integrity and independence, are
    already embedded in the culture of the CIA. The intelligence
    community has placed among its core competencies for all senior
    officers, quote, ``the integrity and courage, moral,
    intellectual, and physical, to seek and speak the truth, to
    innovate and to change things for the better, regardless of
    personal or professional risk.'' It would be an honor to join a
    community that quietly lives those values and to work side by
    side with the dedicated and skilled professionals who have
    labored in anonymity to keep this country safe.
        Of course, an effective General Counsel of the CIA must
    also have strong legal skills. You have heard my background in
    this respect. I have had the privilege of many great teachers,
    mentors, and role models, more than I could possibly thank. But
    today one stands above the rest: Chief Justice William H.
    Rehnquist.
        The Chief showed us it was possible to adhere to your
    principles without alienating those who hold other views. A
    prime example is that Justice William Brennan considered the
    Chief to be his best friend on the Court. The Chief built warm
    personal relationships with all of his colleagues through his
    modesty and humor, by being unfailingly civil and fair, by
    focusing on points of agreement over disagreement, and by
    listening and making accommodations where possible. I have
    tried to follow his example in all aspects of my life.
        Finally, and with your indulgence, I'd like to take a
    moment again to recognize my constant and shining example of
    all the attributes I've mentioned today, my husband of more
    than 20 years, John Elwood.
        There are also two other people whom I'd like to mention
    and who are dearest to our hearts, our two wonderful children.
    I hope that 50 years from now they will look back on my service
    to this country with pride. So that I could give you my
    undivided attention, they have remained in school today.
        With that, I look forward to answering your questions.
        [The prepared statement of Mrs. Elwood follows:]
        [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

        Chairman Burr. Mrs. Elwood, thank you for that very fine
    statement, and I hope that the school is accommodating by
    letting your kids possibly watch this on TV.
        Mrs. Elwood, there's been much discussion about the role of
    the Central Intelligence Agency and how it played into the
    detention and interrogation of terrorism subjects as part of
    the RDI program. Those detention facilities operated by the CIA
    have long since been closed and President Obama officially
    ended the program seven years ago. I think the debate space on
    this subject has become confused and I'm certain that the law
    is now very clear.
        Here's my question: Do you agree that it would require a
    change in law for the CIA or any government agency to lawfully
    employ any interrogation techniques beyond those defined in the
    Army Field Manual?
        Mrs. Elwood. Yes, sir.
        Chairman Burr. The intelligence community is at its
    strongest when operating with the full confidence that its
    activities are legal, moral, and ethical, and thereby in line
    with the public's trust. I think it's also safe to say that
    increasing judicial and Congressional oversight only increases
    that public trust.
        Do you believe that President Bush's Terrorist Surveillance
    Program was strengthened when we brought it under FISA Court
    and Congressional oversight in 2007?
        Mrs. Elwood. Yes, Mr. Chairman, I agree. I believed at the
    time and I believe today that the legal foundation for what
    became known as the President's Terrorist Surveillance Program
    was strengthened by bringing it under the then existing FISA
    provisions and the review of the FISA Court.
        Chairman Burr. Great.
        Before I turn to the Vice Chairman, I'd like to make one
    final comment in lieu of a question. You noted in your opening
    statement that a second prerequisite to the job is
    independence. I and many of my colleagues would agree
    wholeheartedly with that statement. Being an independent voice
    is not always easy and you'll be asked repeatedly to speak
    truth to power when serving as the CIA's General Counsel. I
    think you've displayed in your career the ability to be
    independent and I'm confident that you will continue to do so
    at the CIA. Thank you.
        Mrs. Elwood. Thank you, Chairman.
        Chairman Burr. Vice Chairman.
        Vice Chairman Warner. Thank you, Mr. Chairman.
        Mrs. Elwood, again thank you for your very eloquent opening
    statement and our opportunity to visit. I'm going to revisit
    some of the things we talked about. Following up on the
    Chairman's comments about rendition and the fact that the law
    is very clear in terms of the fact that the Army Field Manual
    applies to CIA interrogations, one of the things that during
    the confirmation process of Director Pompeo, he committed to
    reviewing parts of the classified committee study on rendition
    and interrogation that are relevant. Will you likewise commit
    to reading and reviewing those parts of that classified study
    that are relevant to the office of the General Counsel?
        Mrs. Elwood. Yes, sir.
        Vice Chairman Warner. This committee is spending an awful
    lot of time, as you are aware and the press has made aware as
    well, on the Russia investigation. We have asked, the Chairman
    and I, and received in many ways unprecedented access and that
    has been the subject of some fairly extensive discussion. But
    the Chairman and I have worked through that with the Director
    of the CIA.
        But this is an ongoing process, so we're going to need
    additional information. My question is: Can you commit to
    ensuring that this committee will be provided with all the
    information requested pursuant to our ongoing Russia
    investigation, and that you yourself will do everything within
    your power to make sure that this is done, including by making
    available all necessary materials, intelligence reports, CIA
    cables, products, and other materials requested as promptly as
    possible; and finally, to ensure the CIA personnel be made
    available for interviews as requested by this committee?
        Mrs. Elwood. Yes, sir, consistent with the law, I do make
    that commitment. As we expressed in our private conversation, I
    view the work that the committee is doing as being vitally
    important, and I'd like to commend your leadership on that. As
    an American and as a Virginian, I was very pleased by the
    leadership that you and the Chairman have shown on the
    investigation. It is very serious work.
        Vice Chairman Warner. Well, this will go to the heart of
    again independence. There have been times with Director
    Pompeo--and I understand he has equities as well. But it is
    absolutely critical that we follow the intelligence wherever it
    leads. Again, we're going to need your help going forward.
        One other question I have--and I know fellow members of the
    committee have raised this at times. I think we may need a
    fresh look at the whole Gang of Eight and who's briefed on
    what, when they're not briefed, the timeliness of those
    briefings. Will you commit to making sure that those matters
    that are not involved in Gang of Eight covert action
    notification and other information regarding time-sensitive
    tactical matters, that you will commit to fully briefing the
    whole committee in as timely a manner as possible?
        Mrs. Elwood. Senator, I have heard in my private
    conversations with you and others the frustration that you feel
    or that other members of the committee feel when they don't get
    briefed in, and I do think that this is an opportunity at this
    time, with Director Pompeo and Director Coats having sat in the
    chairs that you sit in, to sort of revisit some of the
    practices of the past and to make sure that the full committees
    are briefed to the maximum extent possible consistent with
    obligations to protect the, in rare instances, exceptionally
    sensitive information.
        Vice Chairman Warner. I think the Chairman and I both would
    rather the committee hear all the information that we often
    have. So I think there have been times--and other members of
    this committee have brought this up--where under the frame of
    the Gang of Eight it becomes information that gets caught in
    that bucket and then never, at least so far, has been able to
    have been shared with other members. I think it is appropriate
    to have a fresh look at this issue.
        Mrs. Elwood. Yes, I certainly will follow the lead of
    Director Pompeo and Director Coats on this. I will note that
    Director Coats had commented that it's often a conversation
    with the leadership on when they extend the briefing to the
    full committee, that he works or in the past the Director has
    worked with the Chair and the Vice Chair on timing of extending
    that.
        Vice Chairman Warner. The more we can get all the members
    read in on more activities, I think the better.
        Thank you, Mr. Chairman.
        Chairman Burr. Senator Blunt.
        Senator Blunt. Thank you, Mr. Chairman.
        Mrs. Elwood, it's good to have you here. I was appreciative
    of your testimony and your desire to follow in the public
    service commitments that both your mother and your father had,
    very much in line with when I asked you, when we had a chance
    to visit, why would you take this job? This is a hard job at a
    hard time, and it's good to have you step forward to do it.
        I've got several questions about, frankly, the Terrorist
    Surveillance Program and not very long to ask them. So if
    others want to further exhaust your answers, I'd ask you to
    keep these relatively brief. I notice in a number of questions
    you were asked to respond to it was about that program.
        Give me a sense: What were the jobs you had on 9/11 and
    then after, and then the rest of your service in the Bush
    Administration?
        Mrs. Elwood. Leading up to 9/11, nobody, obviously, was
    anticipating, at least not at my level. My role in the
    Associate Counsel's Office had nothing to do with national
    security, frankly. But we all became sort of focused on
    national security. We were in the White House on September 11th
    and immediately thereafter I and a couple members of my office
    were sent to the Senate and to the House to negotiate the
    Patriot Act.
        Senator Blunt. Were you working then for the Justice
    Department or the Vice President?
        Mrs. Elwood. On September 11th I was working for the--I was
    Associate Counsel to the President, so I was in the Office of
    the President. And I stayed in that position until May 2002,
    when we had our first child. I returned to government service
    in January or February of 2003. I think it was January of 2003,
    to the Office of the Vice President, where I stayed until the
    beginning of
        Senator Blunt. And then you were where?
        Mrs. Elwood. Then I went with Judge Gonzales to the
    Attorney General's front office.
        Senator Blunt. And your job there was what?
        Mrs. Elwood. I was Deputy Chief of Staff and Counselor to
    the Attorney General. As any staffer in your offices would tell
    you, it changes by the day, but by and large my portfolio fell
    under the Associate Attorney General's portfolio, so it would
    be those components that fall in the Department of Justice
    under the Associate Attorney General, the Civil Division. In
    addition, I would monitor the Office of Legal Counsel, the
    Office of the Solicitor General, the Office of Legal Policy,
    among others.
        Senator Blunt. What would you have known in that job or
    what did you know about the Terrorist Surveillance Program?
        Mrs. Elwood. Senator, I learned--my work on--I learned and
    my work on the Terrorist Surveillance Program began in December
    of 2005, when the President publicly disclosed that aspect of
    the President's surveillance program.
        Senator Blunt. To the best of your knowledge, were you
    aware of it before that?
        Mrs. Elwood. No, sir.
        Senator Blunt. Did you have a reason to have a reaction at
    the time to the critics of the program, critics like David
    Kris, who is a former Assistant Attorney General for National
    Security?
        Mrs. Elwood. Interestingly enough, David and I are old
    friends and have known each other forever, and once he heard
    about it he kind of asked me, ``So what are the legal
    authorities that support this?'' And we had a conversation. I
    was aware of the public statements about the legal authorities
    supporting the program and we had a conversation and some
    communications about it, and ultimately he did not agree with
    all of the reasoning, but he recognized that, as I did, that
    these are complex issues on which reasonable people could
    disagree.
        Senator Blunt. It would be fair to characterize him as a
    public critic of the program, wouldn't it?
        Mrs. Elwood. Yes, sir.
        Senator Blunt. I notice he's one of the people recommending
    you for this job?
        Mrs. Elwood. Yes, sir. He very kindly sent a letter of
    support and actually organized a letter of support on my
    behalf.
        Senator Blunt. Are there other people who were critics of
    that program who are included on that list?
        Mrs. Elwood. I am quite confident that there are people
    that have signed the letter of support who did not think many
    of the things that occurred in the Bush Administration would be
    things that they would agree with. But I don't know of any
    others who have publicly stated.
        Senator Blunt. How do you think that experience of the
    Terrorist Surveillance Program and what happened when there was
    a disagreement, how do you think that would impact the way you
    would serve in this job?
        Mrs. Elwood. That's a very interesting question. I think
    that my experience with respect to that important program and
    how it was handled initially and then through the reexamination
    of the legality of the program in 2004, we hope we learned from
    how things were handled initially and the intense secrecy
    around the program, even within the Executive Branch. I believe
    I would be more prepared or would be able to better advise the
    Director on how to ensure that programs that would necessarily
    be secret, if they should be disclosed are thoroughly thought
    through and recognizing that in some instances you'll have to
    publicly justify how decisions are made on the front end on and
    on the back end.
        Senator Blunt. Thank you, Mr. Chairman.
        Chairman Burr. Senator Feinstein.
        Senator Feinstein. Thanks very much, Mr. Chairman.
        I just want to begin by saying I was really very pleased to
    meet you, have an opportunity to speak with you, and I very
    much respect your experience and your intellect. I'm going to
    put the question that the Chairman asked you in a slightly,
    well, harsher view, but I think it's a real view. During his
    campaign, President-elect Trump publicly called for U.S. forces
    to use torture in the war on terror. He said he'd re-institute
    waterboarding, which he called a minor form of torture, and
    bring back, quote, ``a hell of a lot worse than
    waterboarding.''
        Now, this brought a lot of condemnation from our allies and
    our own intelligence and security professionals who did not
    believe that these President EITs were effective in producing
    operational intelligence. Director Pompeo said at one point
    early on that he would support the return of waterboarding.
    Gina Haspel said that she would. When I talked with both of
    them and asked hard questions, they had made very strong
    statements against it both in writing and before this
    committee.
        So let me ask you the same question I asked Director Pompeo
    in his confirmation hearing. If you were ordered by the
    President--excuse me. If the CIA were ordered by the President
    to restart the CIA's use of enhanced interrogation techniques
    that fall outside the Army Field Manual, would you do--what
    would you do? What would you do as General Counsel?
        Mrs. Elwood. I absolutely would not follow that order.
        Senator Feinstein. But what would you do?
        Mrs. Elwood. I would inform the President that that would
    be a violation of the law and I would ensure that the--I am
    confident that the Director would also impress upon the
    President that that would be an unlawful act.
        Senator Feinstein. So I would specifically take it as your
    responsibility as General Counsel to do so?
        Mrs. Elwood. Absolutely.
        Senator Feinstein. Okay, thank you.
        In your prehearing question you were asked, do you support
    the standards for detainee treatment specified in the Revised
    Army Field Manual on Interrogation, as required by Section 1045
    of the National Defense Authorization Act for FY16? Could you
    please here under oath reaffirm your commitment to fully comply
    with all governing interrogations, including the legal bar on
    the use of any interrogation method not listed in the Army
    Field Manual?
        Mrs. Elwood. Senator Feinstein, I commit not only to
    ensuring that the CIA complies with the letter, but also the
    spirit of that law.
        Senator Feinstein. Okay. Thank you. That's good.
        You informed me earlier this week that you had read the
    full 500-page declassified executive summary of the Senate
    Intelligence Committee's study on the CIA's detention and
    interrogation program. While some may continue to have
    differences of opinion, the Senate report is fact-based on
    documents, cables, emails, and to the best of my reading
    nothing in the report has been refuted.
        I think I mentioned to you, if the CIA had a problem with
    any of it we looked at that, we made some changes where we felt
    the CIA was correct, and where we felt they were wrong we so
    noted it. But their view is in that report.
        The full report is more than 6,700 pages, with nearly
    38,000 footnotes. I believe it's time to acknowledge truthfully
    what was done and then move forward with strength and resolve
    to make sure that a program like this never happens again.
    Would you commit to this committee that you will read the
    classified version of the report's findings and conclusions if
    confirmed as General Counsel?
        Mrs. Elwood. Yes, Senator Feinstein. I'd be particularly
    interested in the parts of the report that address the General
    Counsel's Office.
        Senator Feinstein. Thank you, but that's just a small part
    of the report.
        Mrs. Elwood. I'll commit to the whole thing, but those are
    where my--that would be where my focus is.
        Senator Feinstein. It's a long lead, but if you look at
    things like where the Agency has detailed 25 cases where they
    believed it was responsible for their apprehension, the report
    classified version details where the information actually came
    from that led to that.
        I think--I feel very strongly that the time is coming for
    this report to be declassified, that it should not be hidden,
    that people in government ought to read it, people in areas of
    responsibility ought to read it, and to shy away from it,
    because it is an official document now, I think is a mistake.
    As you know, President Obama did put it in his library, so at
    least it's perpetuated there.
        Second question, use of contractors. This is one of the
    things that I have been most concerned with, not the least--it
    wasn't lost on me the three big cases where materials
    disappeared and security was broken were done by contractors,
    including the largest one ever, Edward Snowden, and more
    recently Hal Martin. Previously when I was Chairman I worked
    with Director Panetta and he had agreed to a decrease of a
    certain percent every year in the number of contractors, and
    the number of contractors has gone down.
        Government contractors are only supposed to be used if they
    are performing tasks that are not an inherent governmental
    function. So intelligence collection clearly is inherently
    governmental as a function, and I think that we need to
    continue to reduce the number of contractors.
        The question I have for you is: Do you agree that
    intelligence work is clearly an inherently governmental
    function?
        Mrs. Elwood. Senator Feinstein, you raise an excellent
    point. It does sound like a core government function to me, and
    I think you raise a very important issue with respect to the
    use of contractors.
        Senator Feinstein. Thank you. I agree with that.
        My time has expired. Thank you, Mr. Chairman.
        Chairman Burr. Senator Cornyn.
        Senator Cornyn. Mrs. Elwood, welcome and congratulations to
    you and your family on this tremendous honor.
        I would--I know you've been asked about the Russia
    investigation by Senator Warner and I would just suggest that
    the same challenge that you and Director Pompeo will face and
    the importance of your integrity, your resilience, and your
    courage in withstanding outside pressure, the same sorts of
    characteristics I think are going to need to be demonstrated by
    this committee to maintain the bipartisan leadership that
    Chairman Burr and Senator Warner have provided, because there's
    going to be an awful lot of people who are going to try to
    influence this committee and get us off track. So the same
    challenges to our integrity, resilience, and courage to resist
    pressure from outside groups you'll be having to demonstrate,
    we will as well.
        I wonder--you've been asked a lot about post-9/11
    interrogation and other practices. It really is kind of amazing
    to me that here we are 16 years after 9/11, the Chairman
    mentioned 7 years, I think, since some of the practices that
    have been asked about have long since ended, where we continue
    to revisit these decisions which were made, I think, consistent
    with the appropriate legal authority at the time.
        I'm very troubled by the idea that you as the General
    Counsel and the lawyers in the administration will be telling
    intelligence officers you can do this, you can't do that and
    if, consistent with legal authority that you identify, they do
    something, later on they're going to be criticized, perhaps for
    political or other reasons, for doing what is legally
    authorized.
        So can you tell us, who is the final legal authority on the
    scope of activities of the Central Intelligence Agency?
        Mrs. Elwood. Ultimately, under longstanding eighteenth
    century precedent the Attorney General is the ultimate
    determiner of the scope of legal authorities of a government
    agency.
        Senator Cornyn. And that's because these cases don't go to
    court typically, right?
        Mrs. Elwood. Generally not.
        Senator Cornyn. There are of course exceptions, the Hamdan
    case and others, where there is the Supreme Court. But I think
    this is an area where people are somewhat confused. They think
    that this is black letter law and often it's a matter of legal
    opinion by the Office of Legal Counsel at the Attorney
    General's Office.
        Mrs. Elwood. Yes, sir, Senator. As I was alluding to in my
    conversations with David Kris, on many of these complex issues
    there is a range of reasonable interpretations and the
    Department of Justice or the lawyers being asked to provide an
    opinion give their best reading of the law, but it doesn't mean
    that there can't be another interpretation that is reasonable.
    But the Department of Justice ultimately gives its best reading
    of the law.
        Senator Cornyn. And just because somebody disagrees with
    the legal opinion doesn't mean that the authorities that you've
    identified or that other lawyers in the administration identify
    as conferring that authority, it doesn't mean that's wrong
    either, does it?
        Mrs. Elwood. That's true, yes, sir.
        Senator Cornyn. So I think this is--this is a real problem
    for the intelligence community, because, as I mentioned during
    Director Pompeo's confirmation hearing, I like General Hayden's
    book and concept of playing to the edge, but you're going to be
    the one that draws that line of demarcation and identifies
    where that edge is. And if intelligence officers play to the
    edge in order to maintain our national security here in the
    United States, I don't want them to be criticized later on or
    taken to court, publicly humiliated, or even forced to buy
    liability insurance for doing their job.
        Mrs. Elwood. Yes, Senator. As part of this process, in
    preparation for it, I reviewed the transcripts of some people
    who were nominated to this position, and I noted that some of
    the Senators were stressing the importance that the lawyers go
    to the legal limits. So back not that many years ago, the
    lawyers were being criticized for being too conservative.
        Senator Cornyn. Well, post-9/11 we didn't know as a Nation,
    certainly didn't know as a government, whether there were going
    to be follow-on attacks. So you were under a tremendous--or the
    Agency and our intelligence officials were under tremendous
    pressure by members of Congress and others to go as far as you
    legally could, correct?
        Mrs. Elwood. Yes, sir, absolutely.
        Senator Cornyn. And I guess it's just human nature that in
    the safety and security and after the passage of years, when we
    don't feel these imminent threats, then we somehow decide,
    well, maybe we didn't have to go as far as we did.
        Well, I appreciate your answers to the questions and I,
    too, believe that you're eminently qualified for this position.
    Thank you for your willingness to take it on. Thanks to your
    family for their support.
        Mrs. Elwood. Thank you, Senator Cornyn.
        Chairman Burr. Senator Wyden.
        Senator Wyden. Thank you, Mr. Chairman.
        Mrs. Elwood, thank you for our meeting as well. I join my
    colleagues in appreciating that.
        During his confirmation process, I asked Director Pompeo
    about what he considered to be the boundaries that apply to the
    surveillance of Americans. He said those boundaries are set by
    law. You are the nominee to be the General Counsel who, if
    confirmed, would advise the Director of those boundaries.
    Because the advice is classified and may not even be known to
    the committee, it's critical that we get a sense of your views
    on the law prior to voting.
        So to me one of the most important legal matters facing the
    Agency is how it should handle large amounts of information on
    Americans who are not suspected of anything. I also asked
    Director Pompeo about this. He said he would consult with a
    lawyer and, so to speak, now the committee gets to ask the
    lawyer.
        You have written that the Attorney General Guidelines
    governing collection on 12333 would impose--and I quote here--
    ``stringent and detailed restrictions on big batches of
    information that include information on Americans.'' I read the
    guidelines differently. The CIA can actually conduct searches
    of those batches looking for Americans--looking for information
    on Americans.
        So my question to you deals with the statement you gave us.
    What stringent restrictions specifically are you talking about?
        Mrs. Elwood. Senator, as you know, the Attorney General
    Guidelines are publicly available and they were recently
    revised. They are public. They're not a secret.
        Senator Wyden. I want to know what you consider to be
    stringent restrictions.
        Mrs. Elwood. There are numerous restrictions. It depends
    upon the particular information at issue. So there are,
    obviously, less stringent use and retention requirements with
    respect to publicly available information. But even there, if
    it's U.S. person information, still the CIA's use of it is
    restricted. Then there is--it's a 30-page single-spaced
    document providing a framework----
        Senator Wyden. Give me an example? Because the way I read
    it, none of this changes the fact that the Agency can conduct
    searches looking for information on law-abiding Americans where
    there is no requirement that they're suspected of anything. So
    I'd just like to hear you tell me, since you stated it in
    writing, what stringent restrictions would protect that law-
    abiding American?
        Mrs. Elwood. Well, for example, Senator, before certain
    information is queried it has to--the standard that is applied
    would restrict--it is not simply--they can't go and query
    anything they want. It has to be for, necessary to an
    authorized activity, so for the purpose of an authorized
    activity, and no further query with respect to publicly
    available information, can't go any further than the necessary
    extent to further that purpose.
        Now, with respect to different categories of information
    that are collected under different authorities, 702 has a
    different query standard, as you know, than a bulk collection
    of information collected under 12333. And I don't want to give
    the inarticulate--I don't want to be inarticulate about the
    standards. I want to be precise. And they are spelled out in a
    public document.
        Senator Wyden. None of this--and I'll hold the record open
    for this. I'd like to just have you give me some concrete
    examples of----
        Mrs. Elwood. I'm happy to do that.
        Senator Wyden. But the point is the answer we've gotten
    this morning is none of what you have said changes the fact
    that the Agency can conduct searches looking for information on
    law-abiding Americans where there is no requirement that
    they're suspected of anything.
        Mrs. Elwood. Senator, there has to be a link to an
    authorized activity of the CIA at a bare minimum, even to
    search publicly available information. There are more stringent
    requirements with respect to collections depending upon the
    type of information involved. So I don't agree with you that
    there's no restraint on it.
        Senator Wyden. You get me the example of the stringent
    restrictions.
        Let me see if I can get one other question in very quickly.
    The Agency spied on the committee in 2014, searching our
    computers. They turned around and filed a crimes report with
    the Department of Justice against committee staffers. The
    Inspector General found there was no basis for the crimes
    report and it was based solely on inaccurate information
    provided by two attorneys from the CIA's Office of General
    Counsel.
        You, if confirmed, would be supervising those attorneys. Do
    you think there ought to be any accountability?
        Mrs. Elwood. Senator, I understand there was an
    accountability board convened that looked at that issue
    already----
        Senator Wyden. So----
        Mrs. Elwood [continuing]. And exonerated the lawyers
    involved.
        Senator Wyden. But do you believe, you, do you believe
    there should be any accountability when those lawyers, who
    would be under your supervision, provide inaccurate
    information?
        Mrs. Elwood. Senator, I understand there was already an
    independent accountability board----
        Senator Wyden. I'm not talking about the past thing. I want
    to hear about what you'd do going forward, inaccurate
    information.
        Mrs. Elwood. Going forward, if there was a situation like
    that to arise again and if the facts presented themselves in a
    situation where the lawyers had not done something properly,
    absolutely I would insist on accountability and proceed
    accordingly. But that's going forward. I'm not revisiting the
    past.
        Senator Wyden. Thank you, Mr. Chairman.
        Chairman Burr. Senator Heinrich.
        Senator Heinrich. Thank you Mr. Chairman.
        Thank you for joining us today, Mrs. Elwood. In reviewing
    your responses to committee questions, there was one theme that
    concerned me across your responses, and it's that you
    repeatedly repeat some very similar verbiage. I want to get
    this right, but you said at one point that you have not, quote,
    ``had personal experience with,'' end quote, issues raised by
    the committee. You, quote, ``have not previously had the
    opportunity to consider,'' end quote, issues raised by the
    committee; and that you have not--or that you have, quote,
    ``not done the legal and factual research that would be
    required to properly answer,'' end quote, important questions
    such as whether the CIA's former enhanced interrogation
    techniques are consistent with the Detainee Treatment Act.
        As you know, in this role you will be the principal legal
    adviser to the CIA Director, and you will be responsible for
    overseeing the CIA's Office of General Counsel. If confirmed, I
    hope that your lack of exposure to the important national
    security issues that we've raised will not encumber your
    ability to provide thorough, accurate, and effective legal
    advice to the CIA from day one.
        So I want to go from here--since you didn't express strong
    opinions on some very specific questions that the committee has
    asked, I'd like to focus more broadly on the scope of
    authorities granted by covert action authorizations and by
    presidential memorandums of notification. As I'm sure you know,
    these authorizations spell out the strategic goals and approved
    activities of individual covert actions.
        Is it your view that the authorized covert actions of the
    CIA are bound by the text of those authorities and that the CIA
    may not read into those authorities activities that are not
    explicitly approved within there?
        Mrs. Elwood. Senator, I assume that there is vigorous
    oversight by the General Counsel's Office to ensure that the
    findings are written carefully and that the activities
    undertaken under the findings are consistent with the findings.
    Does that answer your question?
        Senator Heinrich. What I'm saying is that it is my
    interpretation that those activities have to be explicitly
    authorized within either a covert action authorization or a
    presidential memorandum of notification. So is it your view
    that the authorized covert activities of the Agency are bound
    by the text of those authorities in terms of explicitly
    authorizing activities, or can the Agency just read into those
    authorizations?
        Mrs. Elwood. I would interpret it as a statute, which is
    that it would not necessarily have to be explicit, that every
    potential action be explicitly stated in the findings, but that
    it would have to be a proper interpretation of the findings.
        Senator Heinrich. I'll give you an example that concerns
    me. The September 17, 2001, memorandum of notification that
    authorized the CIA capture and detention program, for example,
    made no reference to interrogations or to coercive
    interrogation techniques, yet it was repeatedly cited by the
    Agency as the foundational authorization for that interrogation
    program. So just putting aside the bigger issues of whether the
    interrogation techniques themselves were in violation of any
    laws or treaty obligations, based on the lack of explicit
    authorization for those techniques in the MoN, do you believe
    that the use of those techniques was consistent with the
    approved authorities as written?
        Mrs. Elwood. Senator, I have neither looked at that
    particular MoN nor do I know anything beyond the executive
    summary of the Senate study to answer that question
    specifically. But I believe that it is fair reading of the--
    nobody has raised that that was not a fair reading of the
    notification.
        Senator Heinrich. Well, I'm raising it.
        Mrs. Elwood. Right.
        Senator Heinrich. So whether or not you've reviewed it
    isn't relevant to my underlying concern. When the committee
    receives a covert action finding or a MoN, we need to be
    confident that the Agency is not exceeding its approved
    authority. So if you can't give us your view on the proper
    scope of covert action authorities as a basic principle, it's
    difficult for me to be confident that under your legal guidance
    the Agency won't engage in activities that go beyond that legal
    guidance.
        Mrs. Elwood. It is a common practice in my 20 years of
    legal experience and also my experience as a clerk to have a
    statute or a rule of law provided, and you're not going to have
    a statute describe every possible activity to fall within the
    scope of the statute. But there could be a fair reading of the
    statute that would put things within the statute or without the
    statute.
        I would envision the same sort of legal analysis, legal
    analysis that I've been doing for more than 20 years, would
    apply in the context of a memorandum of notification.
        Senator Heinrich. I'm going to yield back my time. I have
    exceeded it. We're going to go to Senator King of Maine since
    we're the only----
        Senator Cornyn [presiding]. Since I'm the acting Chair,
    Senator King.
        Senator Heinrich. Thank you. I didn't see you over there,
    Senator Cornyn.
        Senator King. Thank you.
        Mrs. Elwood, thank you very much. Welcome to the committee.
        You started your introductory by talking about your dad's
    experience with military history and I want to commend to my
    colleagues I'm in the middle of H.R. McMaster's book about
    Vietnam, ``Dereliction of Duty,'' which I find an extraordinary
    document with really important insights. I have to mention--
    you've given me an opportunity to mention what I think is a
    very important book that should be read by everybody, everyone
    up here.
        Mrs. Elwood. Yes, sir. I understand that's now being taught
    in the officers' training course.
        Senator King. I hope General McMaster is also rereading it
    himself, given his new position.
        In your answer to I think it was Chairman Burr's, one of
    his opening questions, you said that you thought the 2007 law
    strengthened the legal basis for the Terrorist Surveillance
    Program. That implies--does that imply that you believe that
    there was a legal basis for it? In other words, does the
    President have inherent Article II power to do warrantless
    surveillance of U.S. citizens?
        Mrs. Elwood. Senator, the legal authorities underpinning
    the Terrorist Surveillance Program, as described in the public
    white paper I reviewed and then in the much longer, then-
    classified but largely declassified, opinion of OLC, did not
    rest entirely on the President's Article II authorities, but
    also rested first on the authorities provided by the AUMF.
        Senator King. The 2001 AUMF?
        Mrs. Elwood. Yes, sir.
        Senator King. Let's exclude that for a moment. Do you
    believe that the President has inherent authority under the
    Commander-in-Chief provision of Article II to order warrantless
    surveillance of American citizens, of American persons?
        Mrs. Elwood. Under existing law, absolutely not.
        Senator King. Thank you. And that gets to a more subtle
    question along these lines, which is reverse targeting under
    FISA. As I understand the way FISA is now interpreted, you can
    surveil foreign persons and there is incidental--there may be
    so-called ``incidental-pickup''----
        Mrs. Elwood. Collection.
        Senator King [continuing]. Collection on American persons.
    The question then is, does it take further interaction with the
    FISA Court in order to query the data that involves the U.S.
    persons?
        Mrs. Elwood. The FISA Court, as you know, sets out the
    parameters, sets out the framework for that type of querying,
    and then subsequently does not revisit it any time an
    individual query wants to be taking place. However----
        Senator King. But you see my question. The question is
    reverse targeting.
        Mrs. Elwood. Yes.
        Senator King. You can be going after a foreign person, you
    pick up an American person and that becomes the focus of the
    query.
        Mrs. Elwood. Well, reverse targeting is prohibited
    expressly.
        Senator King. And you don't believe that that is a
    potential issue or problem because of that express prohibition?
        Mrs. Elwood. I don't, Senator, because I think that reverse
    targeting is with the intention of actually picking up a U.S.
    citizen's or a U.S. person's communication, by creating the fig
    leaf by targeting somebody at the side that they know they're
    going to be communicating with.
        What we're talking about with respect to incidental
    collection is just that, incidental. Those queries that are
    conducted with incidental, there's multiple layers of
    oversight, the first being the one we discussed with the FISA
    Court setting the parameters for those.
        Senator King. My understanding is the government has taken
    the position in the recent past under the prior administration
    that once that data is in the database then they can query
    about the U.S. person without further approval of anyone.
        Mrs. Elwood. No, not--well, without going back to the FISA
    Court. It would be--I think Director Brennan and perhaps
    Director Clapper as well said that that would be a big mistake,
    to require going back to the court again each time there needed
    to be a query of the--and we're talking here about 702
    collection. But there are multiple, multiple lawyers of
    oversight, including by the Department of Justice, the Office
    of the DNI in the Executive Branch. There is also----
        Senator King. All that oversight you just enunciated is all
    within the Executive Branch. I like having an independent
    body----
        Mrs. Elwood. Right.
        Senator King [continuing]. Called a court have a role in
    it.
        Mrs. Elwood. Well, having a court do it in every warrant,
    or a warrant or an order on every one of those, would mean that
    far fewer of them are done. It could seriously hamper the
    operational impact. I'm looking forward to, if confirmed,
    getting an opportunity to see how these are implemented----
        Senator King. But you have to understand that this is a
    bootstrap operation, where you are in fact talking about the
    authorization of a warrantless examination of a U.S. person's
    correspondence.
        Mrs. Elwood. If I might add, sir, there is more than just--
    there is an independent bipartisan board that also oversees
    these queries and has looked at it thoroughly and determined
    there was not a trace--that was their words--``no trace of
    illegitimate activity'' with respect to these sorts of queries.
        So it is layer upon layer upon layer already of existing
    oversight. And you're right that you don't have to go back to
    the FISA Court each time you want to query, but the FISA Court
    is involved in setting up the procedures from the front end and
    there are multiple lawyers of oversight on the back end. And
    while it may seem that the fox is guarding the henhouse, it's
    not. This is serious oversight by the ODNI and by the
    Department of Justice, checking every single query every 60
    days.
        Senator King. I'm sure we'll have further discussion on
    this. I understand your position and appreciate it. I still
    remain somewhat concerned that you end up with a trove of data
    that involves American citizens, that can then be queried
    without further intervention by the court, which to me is the
    essence of the Fourth Amendment.
        But we can follow up.
        Mrs. Elwood. Absolutely. If I'm confirmed, I would really
    look forward to that discussion.
        Senator King. Thank you.
        Senator Cornyn. Senator Lankford.
        Senator Lankford. Thank you. It was good to get a chance to
    visit with you again. I appreciate it. I hope this has been
    helpful in getting information out, things that you're
    passionate about.
        I always like to be able to remind people that for the
    folks that serve with the CIA, they don't wear uniforms, they
    serve all around the world, they don't get parades, they don't
    get recognition, no one sees them at restaurant and buys their
    meal to say thank you, because no one knows who they are.
        But would you pass on as you encounter these folks our
    gratitude.
        Mrs. Elwood. Absolutely.
        Senator Lankford. As we try to do face to face as well. Any
    time I'm in Langley and I walk down the halls, I see people
    that are walking around the halls, they're thinking about
    tucking their kids in at night and they're thinking about all
    these critical things, but they're also counting on having a
    really good counsel, because they deal with really hard issues,
    and they need great advice and sometimes they need it really
    fast.
        Mrs. Elwood. Thank you, Senator. You make a very valuable
    point about these men and women who labor in anonymity to keep
    this country safe.
        Senator Lankford. Well, grateful to be able to have you
    engaged. You've got a tremendous background in dealing with a
    lot of these hard legal issues. You've been around a lot of
    these hard conversations and been through it. So we're glad to
    be able to have someone that can engage in that.
        I need to ask you one that your predecessor has also said
    is hard. Recently, in fact this week, Caroline Krass, who is
    the person you'd be replacing, had a speech and in her speech
    at Georgetown University Law School, of all the issues that
    she's dealt with, she listed this. She said: ``I think the
    hardest legal questions were those that surround cyber. It's an
    evolving area of the law, trying to determine answers to
    questions like what constitutes a use of force, where are the
    measures to combat such a use of force.''
        They're really difficult issues and they're issues that
    we're struggling with on this committee. They're issues that
    this committee and other committees have complained about
    bitterly to the Administration, to say there seems to be no
    cyber doctrine, and we're well behind the curve on dealing with
    a clear cyber doctrine issue. This is going to be an area we're
    going to have to write a new statute, but it's also an area
    you're going to have to interpret a lot of the issues.
        So my question to you is a more general one than just
    trying to drive down into it. Will you be a part of helping
    craft a cyber doctrine and will you be willing to interact with
    this committee to say, this is an area that is too gray, I'm
    going to have to make a decision that puts the people at the
    CIA too vulnerable, we need a statute to clarify this and to be
    able to help us through that process so that we don't put the
    good people at the CIA at risk in the future, but that we also
    don't make everyone second-guess what can and can't be done?
        Mrs. Elwood. Senator, you raise a very, very important
    issue, and I would be delighted, if confirmed, to work with you
    on that. That's an issue that other members have raised with me
    in our conversations as well. And I certainly respect Caroline
    Krass, who is a long-time friend. We went to law school
    together and she has been an adviser through this process, and
    I will look forward to working with her in the future to
    continue to advise me should I be confirmed in this role.
        Senator Lankford. This is one of those ongoing issues. As
    you go through this process, when you get to that spot, just
    know this committee is thinking about cyber doctrine a lot and
    how we can actually get that established, how we work agency to
    agency, how we work through the whole of the United States
    Government on that, and what is needed legislatively to be able
    to help provide clarity on that. We look forward to that type
    of cooperation and direction we're going to go.
        Tell me as well--we've talked a lot about protecting the
    American people. That's the other side of this. The folks that
    work at the CIA are counting on having a really good counsel.
    The American people are also counting on having a really good
    lawyer in the middle of it that's able to push back and to be
    able to say, no, that is something that violates constitutional
    rights and freedoms.
        You are in many ways the first line of that accountability.
    Though there's good follow-up, there's good tracking of it, and
    there's good oversight through the process, the first line of
    that would be you. So there are a couple of things that we
    need, that I need to just be able to hear quickly from you. One
    is that you understand that you're not only the CIA's lawyer,
    but you're the first line of defense for the American people in
    protecting their constitutional rights. The second part of that
    is protecting sources and methods worldwide that are also
    essential for their security and for national security as well.
        Mrs. Elwood. Yes, Senator. The client of the General
    Counsel of the CIA is the Agency as an institution and
    ultimately the United States, and it is important for the
    Agency to use the intelligence-gathering tools that Congress
    has provided, but they must do so lawfully, protecting the
    privacy rights and civil liberties of all Americans.
        Senator Lankford. Thank you, Mr. Chairman. I yield back.
        Chairman Burr [presiding]. Senator Harris.
        Senator Harris. Following up on Senator Lankford's
    question, when the CIA is considering doing something of
    dubious legal authority and the Director and the men and women
    of the CIA look to you for guidance, I know, and you've
    actually stated, the American people generally have a right to
    make sure that this Agency is following the law, but the
    American people generally will have no ability or visibility
    into the process by which you counsel your client, the Agency.
        So the question that I have for you is: How will you engage
    this committee to ensure that there is oversight of this
    significant, but often secret, legal guidance that you will
    give the Agency?
        Mrs. Elwood. Two points that I'd like to make in response
    to that, Senator Harris. The first is I will obviously provide
    the Director and the men and women of the Agency with my sound
    legal advice, but I will also provide them with my judgment.
    Sometimes things are legal, as you know, but unwise.
        Then, with respect to ensuring that this committee is
    aware, I have a legal obligation, as you know, under the
    National Security Act to make sure that this committee is
    informed of the legal basis that underpins any of the CIA's
    intelligence activities, and I would fully and timely provide
    that legal advice and legal basis.
        Senator Harris. How would you propose to do that? For
    example, would this be through a Congressional notification? Or
    how can we as a committee expect that you will reach out to us
    and notify and inform us of those decisions?
        Mrs. Elwood. There are a couple of different things. One is
    any time the committee requests information with respect to the
    legal basis, I have an obligation to respond. Then, secondly,
    there is a new provision within the National Security Act that
    requires a notification to the committee of any sort of novel
    or significant new legal interpretations under the law, and I
    would obviously comply with that as well.
        Senator Harris. Let's talk a bit about what we--I'd like to
    hear about your interpretation of what becomes significant. In
    your questions for the record you mentioned that and indicated
    that you would give timely and complete information about the
    Agency's significant intelligence activities and failures,
    subject to the limitations around protecting tradecraft and
    other sensitive information.
        Based on your experience, what circumstances would be
    considered significant and who would make the determination of
    significance?
        Mrs. Elwood. Senator Harris, that's an excellent question
    and I actually have not had firsthand experience with what is
    significant and what falls under significant. I obviously would
    look to past practice as well as, frankly, some common sense in
    determining whether something rises to the level of
    notification.
        Now, I know from just conversations I have had with
    Congressional affairs, and also reading about it in the history
    about it, the amount of notifications that this committee gets
    is extraordinary, multiple a day. So I assume from that that
    the threshold is fairly low on what is significant, but I don't
    have any additional information to provide with respect to how
    I would define that.
        Senator Harris. What character of, for example, let's talk
    about the Russia investigation. Would you agree that any
    information or developments as it relates to Russia's role in
    the 2016 election would be considered significant?
        Mrs. Elwood. If something was new that the CIA had
    information about, I would imagine that would rise to the level
    of significant.
        Senator Harris. Well, they've already done it. The election
    is past. So it would not be new in terms of conduct.
        Mrs. Elwood. New information.
        Senator Harris. So you're saying that if there's any
    information, if it is not new you would not consider that
    significant in terms of sharing that with this committee?
        Mrs. Elwood. Well, if it had already been shared, if it was
    just redundant. But I would examine it, obviously, on a case by
    case basis and based upon how the office has been doing it for
    many, many years and be consistent with that.
        Senator Harris. Are you willing to commit to this committee
    that if you come across information that relates to that
    incident of Russia tampering with the 2016 election and if you
    become aware that that information has not been shared with
    this committee, that you will share it with this committee
    because it is significant?
        Mrs. Elwood. I have no reason to think that it would not
    rise--that it would be insignificant. It sounds like something
    that would be significant, given the work that this committee
    is doing on that investigation.
        Senator Harris. And that means yes?
        Mrs. Elwood. Sounds like it.
        Senator Harris. I'm going to hold you to that. I'm
    interpreting that as a yes. It sounds like the committee is as
    well. So thank you for that.
        The role of the General Counsel is obviously to provide
    legal advice to the Agency and the Director. Do you agree that
    the role of General Counsel requires providing an unbiased
    legal position on all matters relating to the CIA free from
    political considerations?
        Mrs. Elwood. Absolutely.
        Senator Harris. And if confirmed, will you provide legal
    guidance even if it ran counter to the Administration's policy
    or statements during the campaign or afterwards?
        Mrs. Elwood. Absolutely, Senator.
        Senator Harris. Thank you.
        Chairman Burr. Senator Collins.
        Senator Collins. Thank you, Mr. Chairman.
        First let me say, Mrs. Elwood, that I very much appreciated
    the office meeting that we had, in which we went over many of
    the issues that have been raised here today, and I believe that
    you appear to have an extraordinary background for this very
    important post.
        I do want to get on the record a couple of issues that we
    discussed in my office. One is I referred to the fact that John
    Rizzo, CIA's General Counsel during the Agency's enhanced
    interrogation program, wrote in his autobiography that it was a
    big mistake that all members of the Intelligence Committees
    were not briefed on the program until 2006, which was four
    years after the program began. And indeed, the existence of the
    program for a time was concealed even from the Secretary of
    Defense and the Secretary of State.
        Do you agree with his view that it was a mistake for
    Congress not to have been briefed on this program? The
    Intelligence Committees, I should say.
        Mrs. Elwood. In a more timely way, yes, should have been
    briefed in a more timely way, the full committee.
        Senator Collins. Second, I want to follow up on an issue
    that several members have mentioned--Senator Lankford, Senator
    Harris, but in a more direct way. That is, in the private
    sector when you are counsel to a corporate entity, for example,
    it's very clear where your loyalties lie and who your client
    is. I want to talk to you just a little bit more to flesh out
    what you've already been asked, by asking you, what is your
    understanding of who would be your primary client as General
    Counsel of the CIA?
        Mrs. Elwood. It's a very good question, an important one
    for all of us government lawyers, if I become one again, to
    remember. The client for the General Counsel of the CIA is the
    Agency as an institution and ultimately the United States. Now,
    casually we think of the Director or the men and women at an
    agency as being the CIA's client. That is only true in their
    official capacities. If their interests diverge with that of
    the Agency, that CIA lawyer can no longer represent them.
        I remember very well when I was in the counsel's office
    thinking often and being reminded often that we did not
    represent the President, we represented the Office of the
    President.
        Senator Collins. Thank you very much.
        Thank you, Mr. Chairman.
        Chairman Burr. Senator Cotton.
        Senator Cotton. Thank you.
        Mrs. Elwood, congratulations on your well-deserved
    nomination. I want to speak briefly about Presidential Policy
    Directive 28. The Obama administration through PPD-28 and in
    other ways spoke about the need to consider and recognize the
    privacy rights of non-U.S. persons located outside of the
    United States.
        Do you agree that U.S. constitutional and privacy rights do
    not extend to non-U.S. persons located outside the United
    States?
        Mrs. Elwood. It is true that our Constitution--and of
    course we're talking here about the Bill of Rights--protects
    the individual rights of United States citizens and individuals
    in the United States at large. And I am also not aware of any
    statutory law that extends broad privacy protections to
    foreigners abroad.
        Senator Cotton. Is it a controversial statement of law that
    the U.S. Constitution and statutes do not extend to non-U.S.
    persons located outside the United States?
        Mrs. Elwood. I don't think people would find that
    controversial.
        Senator Cotton. I would agree.
        Do you think the CIA should take into account the privacy
    considerations of hostile intelligence services and would-be
    terrorists when conducting espionage overseas?
        Mrs. Elwood. No, sir.
        Senator Cotton. I agree.
        Can you commit to me that you will read the PCLOB's PPD-28
    classified annex regarding the operational impacts on the
    intelligence community, once you have received your security
    clearance?
        Mrs. Elwood. Yes, sir. I look forward to doing that if I'm
    confirmed.
        Senator Cotton. Thank you.
        I want to turn my attention to Section 702 now of the
    Foreign Intelligence Surveillance Act. Director Pompeo stated
    in a speech a couple weeks ago at CSIS, quote: ``CIA steals
    secrets from our adversaries, hostile entities, and terrorist
    organizations. We utilize the whole toolkit, fully employing
    the authorities and capabilities that Congress, the courts, and
    the Executive Branch have provided to us, consistent with our
    American ideals.'' End quote.
        Part of that toolkit is Section 702. Director of
    Intelligence Dan Coats recently called it his top legislative
    priority to have reauthorized before it expires at the end of
    the year. Would you please comment on the importance of the
    Foreign Intelligence Surveillance Act in general and Section
    702 in particular to the CIA's mission?
        Mrs. Elwood. Yes, Senator. I obviously have not had the
    access to the classified information on the benefits of 702,
    but I have spoken to and I have read the statements of those
    who have. And they have, with broad consensus, all concluded
    that it is a highly effective and valuable tool and it has
    disrupted--and it's played a key role in disrupting specific
    terrorist threats that were aimed at the United States and
    abroad.
        Senator Cotton. Could you please describe some of the
    various layers of oversight and compliance that occur at the
    CIA General Counsel's Office, as well as the Department of
    Justice and ODNI and here at this committee?
        Mrs. Elwood. Well, there are many, many layers, as I was
    discussing with Senator King. With respect to inside the
    General Counsel's Office at the CIA, CIA lawyers provide in-
    person training and they sit with the officers who are doing
    the querying. The CIA does not do the collection under the 702,
    but they do have the authority to do querying.
        Outside of the Agency--and the Agency's querying is then
    audited by the Office of the DNI, as well as the DOJ, on a
    regular basis, and the General Counsel's Office is involved in
    those audits.
        That same level of oversight occurs at the NSA with respect
    to ODNI and DOJ audits every 60 days, and indeed every single
    selector that is used under 702 is audited. Not a single one is
    missed.
        In addition to the Executive Branch oversight, there is of
    course the inspector generals of the agencies have oversight
    authority as well. Outside of the Executive Branch, there is a
    Congressional oversight through the committees. There is also
    the FISC provides oversight, like I said, in the standards and
    reviewing and getting reports on any mistakes that are made.
        Then there's the fourth layer of oversight, which is
    related to the Privacy and Civil Liberties Oversight Board,
    which did a thorough and detailed review of the use of 702,
    established that it had been a highly effective tool in
    disrupting specific terrorist plots, and they also found, as I
    mentioned to Senator King, no trace of illegitimate activity or
    intentional misuse of the tool.
        Senator Cotton. Thank you for the answer and thank you for
    your willingness to come serve our country once again. And
    thanks to all the many men and women you will be leading in the
    Office of General Counsel, which I think is great.
        Mrs. Elwood. Thank you, sir.
        Chairman Burr. Senator Cotton, thank you.
        Senator King.
        Senator King. Two very quick follow-ups. One is, I think
    it's important to note that we've done a lot of talking about
    the PCLOB. There's only one member confirmed, and I hope that
    you will use your good offices to try to move that process
    along, because this is an important part of the overall scheme
    here and right now we don't have a full complement of board
    members.
        Number two, I couldn't help but notice when you answered
    the Chairman's sort of five routine questions at the beginning,
    that you qualified them. When he said, will you keep the
    committee fully and currently informed, you said: I will,
    according to the law. I've never heard a witness use that.
    What's your mental reservation here?
        Mrs. Elwood. Right, consistent with the law. I'm just
    holding out--as you know, the statute provides that there are
    limits with respect to protection of sources and methods. So
    the Agency is obligated to provide information subject only to
    withholding specific operational details about sources and
    methods. That's what I was referring to.
        Senator King. So that's what you were referring to?
        Mrs. Elwood. Yes, sir.
        Senator King. I understand that. That is fine. I was hoping
    there wasn't a broader----
        Mrs. Elwood. There's no broader principle I was alluding
    to.
        Senator King. Thank you.
        Thank you, Mr. Chairman.
        Chairman Burr. Thank you, Senator King.
        Let me note for the record that there have been some other
    witnesses that have qualified for I think the same reason.
        Senator Warner.
        Vice Chairman Warner. I would simply say, I know that this
    will go beyond kind of the focus of your job. This whole
    revisiting of how we're all briefed, what falls into which
    bucket, I'm candidly not even fully sure I fully appreciate and
    understand, although I do think it would be very timely to
    revisit some of those principles, because I do feel like there
    are times when Gang of Eight information, which in my mind
    should normally be things in advance of presidential action
    that Congress needs to be notified, not necessarily information
    that is simply sequestered into this very discrete group
    without having the full benefit of the committee's
    understanding, would be worthwhile to reexamine.
        Mrs. Elwood. If confirmed, Senator, I'd be very interested
    in digging into that and discussing it with you further.
        Chairman Burr. I thank all of my colleagues for your
    thorough questioning of our witness.
        Mrs. Elwood, thank you very much for, one, your willingness
    to serve; two, the expertise you bring to this nomination. I'll
    work with the Vice Chairman as quickly as we can to have any
    post-hearing questions presented to you. If you'd expedite
    those back to us, we'll very quickly set up a confirmation
    hearing, and hopefully get your nomination to the floor. We
    need you at CIA yesterday.
        Thank you very much.
        Mrs. Elwood. Thank you for your time. Thank you, Mr.
    Chairman. Thank you, Vice Chairman.
        Chairman Burr. The hearing is adjourned.
        [Whereupon, at 11:37 a.m., the hearing was adjourned.]

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