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                                                       S. Hrg. 109-809
                           NATIONAL SECURITY



                               BEFORE THE

                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                              MAY 16, 2006


      Printed for the use of the Select Committee on Intelligence

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           [Established by S. Res. 400, 94th Cong., 2d Sess.]
                     PAT ROBERTS, Kansas, Chairman
          JOHN D. ROCKEFELLER IV, West Virginia, Vice Chairman
ORRIN G. HATCH, Utah                 CARL LEVIN, Michigan
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
CHRISTOPHER S. BOND, Missouri        RON WYDEN, Oregon
TRENT LOTT, Mississippi              EVAN BAYH, Indiana
OLYMPIA J. SNOWE, Maine              BARBARA A. MIKULSKI, Maryland
CHUCK HAGEL, Nebraska                RUSSELL D. FEINGOLD, Wisconsin
                   BILL FRIST, Tennessee, Ex Officio
                     HARRY REID, Nevada, Ex Officio
                  JOHN W. WARNER, Virginia, Ex Officio
             Bill Duhnke, Staff Director and Chief Counsel
               Andrew W. Johnson, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk

                            C O N T E N T S


                              MAY 16, 2006
                           OPENING STATEMENTS

    Roberts, Hon. Pat, Chairman, a U.S. Senator from the State of 
      Kansas.....................................................     3
    Warner, Hon. John, a U.S. Senator from the Commonwealth of 
      Virginia...................................................     1
    Levin, Hon. Carl., a U.S. Senator from the State of Michigan.     4
    Allen, Hon. George, a U.S. Senator from the Commomwealth of 
      Virginia...................................................     6
    Bond, Hon. Christopher, a U.S. Senator from the State of 
      Missouri...................................................    45


    Wainstein, Kenneth L., Assistant Attorney General for 
      National Security-Designate................................     6
        Prepared statement.......................................     7

                         SUPPLEMENTAL MATERIAL

FBI Memorandums..................................................    12


                           NATIONAL SECURITY


                         TUESDAY, MAY 16, 2006

                               U.S. Senate,
                  Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:55 a.m., in 
room SH-216, Hart Senate Office Building, the Honorable Pat 
Roberts (Chairman of the Committee) presiding.
    Present: Senators Roberts, Bond, Warner, Levin, and Wyden.
    Chairman Roberts. The Committee will come to order. The 
Committee meets today to receive testimony on the President's 
nomination for the newly created position of Assistant Attorney 
General for National Security at the Department of Justice. Our 
witness today is the President's nominee--Mr. Kenneth 
    Mr. Wainstein, the Committee welcomes you. I also note that 
members of your family are with you, and would like to have you 
introduce them at this time. I'm talking about your wife, 
Elizabeth, your daughters Ellie and Mackie, and your parents, 
Leonard and Eleanor, whom I have met. I understand that Cecily, 
who is 13 months, is not attending, but she's with us in 
    Mr. Wainstein. Yes, she is.
    Chairman Roberts. If you would like to have them stand, 
sir, and we will certainly welcome them to the Committee.
    Thank you, folks, for being here.
    Mr. Wainstein. Thank you, Mr. Chairman.
    Chairman Roberts. The Committee also welcomes our 
distinguished colleague from the State of Virginia, the 
distinguished Chairman of the Armed Services Committee and ex 
officio Member of this Committee, Senator Warner, who will 
introduce the nominee.
    Senator Warner, thank you for being here today.

                         FROM VIRGINIA

    Senator Warner. Thank you, Mr. Chairman, and my 
distinguished colleague, Senator Levin.
    We all are privileged from time to time to do these 
introductions, but every so often there is one that's very 
special, and this one is very special to me. And at one time in 
an earlier chapter of my life, I was on the staff as an 
assistant in the U.S. Attorney's Office for the Nation's 
Capital. And this fine gentlemen to my left, I had a modest 
hand in seeing that he was appointed to that position.
    So this is a special moment for me personally, as well as a 
moment in history--he will be the first in what I presume will 
be a long line of very distinguished individuals to hold this 
exceedingly important position in our Government.
    I introduce this fellow Virginian, Kenneth L. Wainstein, 
who's been nominated to serve as Assistant Attorney General for 
the National Security Division.
    Mr. Wainstein is joined today by his family, whom the 
distinguished Chairman has recognized.
    As the Committee knows, the position of Assistant Attorney 
General for the National Security Division is a newly created 
position through the reauthorization of the USA PATRIOT Act. 
The position was created by Congress in an effort to streamline 
the Department of Justice's national security, 
counterterrorism, counterintelligence, and foreign intelligence 
surveillance operations under a single authority. The Assistant 
Attorney General for the National Security Division is 
responsible for leadership and oversight of all the division's 
programs and policies.
    Without a doubt, serving as the first Assistant Attorney 
General for the National Security Division will be an 
incredibly challenging task. Based on his extensive experience 
within the Department of Justice, Kenneth Wainstein, will be an 
outstanding person for this position.
    In 1984, Mr. Wainstein received his undergraduate degree 
from the University of Virginia, and in 1988 he received his 
law degree from the School of Law at the University of 
California at Berkeley. Upon graduation, he clerked for the 
Honorable Thomas Penfield Jackson in the U.S. District Court 
for the District of Columbia. And I was privileged to know that 
jurist and appear before him in years past.
    Subsequent to his judicial clerkship, he began his work as 
a Federal prosecutor and served as an Assistant U.S. Attorney 
in the Southern District of New York. In 1992, he transferred 
to the U.S. Attorney's Office in the Nation's Capital, here in 
the District, where he served for 9 years specializing in the 
prosecution of Federal racketeering cases against violent 
street gangs.
    In 2001 he became the Director of the Executive Office for 
the U.S. Attorneys. This position serves as a liaison between 
the 94 U.S. Attorneys offices throughout America and the 
Department of Justice. In 2002, he joined the Federal Bureau of 
Investigation as General Counsel, and later became chief of 
staff at the FBI for Director Mueller.
    Based on his distinguished career in 2004, he was selected 
to serve as the interim U.S. Attorney for the District of 
Columbia. On October 7, 2005, he was unanimously confirmed by 
the U.S. Senate in this position as the U.S. Attorney for the 
Nation's Capital.
    In my view, his vast experience in a number of areas at the 
Department of Justice clearly gives him a breadth of knowledge 
that will serve him well in the National Security Division.
    I thank the Chair and the Ranking Member, and good luck. 
You're on your own my good friend.

                   A U.S. SENATOR FROM KANSAS

    Chairman Roberts. The Chair thanks Senator Warner for a 
most appropriate introduction and endorsement.
    Last spring, this Committee was the first to embrace the 
concept of an Assistant Attorney General for National Security 
by introducing legislation that would have created the position 
and a National Security Division within the Department of 
Justice. Based on discussions with the Department of Justice, a 
compromise was included in the USA PATRIOT Improvement and 
Reauthorization Act as of last winter. By law, the Assistant 
Attorney General will lead the newly created National Security 
Division within the Department of Justice. He will serve as the 
Attorney General's principal legal advisor on national security 
issues and as the Department's primary liaison to the Director 
of National Intelligence.
    Now, this is a very important position. The National 
Security Division will provide crucial legal services and 
policy guidance for the operational elements of the 
intelligence community. The division will be responsible for 
managing the FISA process and ensuring that terrorists and 
spies are successfully prosecuted. These prosecutions in and of 
themselves can yield important foreign intelligence information 
to protect our Nation. National Security Division attorneys 
will balance the Nation's interest in prosecuting these 
criminals with a need to protect intelligence operations, 
sources and methods. The division will also have a significant 
policy role relative to the FBI and the intelligence community.
    I believe that Mr. Wainstein is well-qualified for this 
position. He has served with distinction, as mentioned by 
Senator Warner, at nearly every level within the Department of 
    Let me just quickly list a few of the highlights of his 
impressive career. Some of this is repetitive, but it certainly 
bears repeating.
    Mr. Wainstein has had nearly a 17-year career with the 
Department of Justice. He is currently the U.S. Attorney for 
the District of Columbia. On September 11, 2001, he was the 
Director of the Executive Office of the U.S. Attorneys, and 
later served as the General Counsel to the FBI, and then as the 
chief of staff to the FBI Director, Robert Mueller. In 
addition, Mr. Wainstein served as a Federal prosecutor in both 
the Southern District of New York and in Washington, DC. Mr. 
Wainstein is a graduate of the University of Virginia and the 
Boalt Hall School of Law at the University of California at 
    Before beginning his career with the Department of Justice, 
Mr. Wainstein clerked for Judge Thomas Penfield Jackson of the 
U.S. District Court for the District of Columbia.
    If confirmed--and I trust he will be--I trust that this 
range of experience will serve Mr. Wainstein well as he assumes 
the challenge of being the first Assistant Attorney General for 
National Security.
    I don't have to remind Mr. Wainstein that our Nation is at 
war on a global scale against a vicious and determined enemy. 
Winning this war will require a coordinated effort across our 
government. As the Attorney General's primary liaison to the 
DNI, the Assistant Attorney General will play a crucial role in 
this effort by ensuring that intelligence activities are being 
conducted in a manner consistent with our civil liberties and 
in compliance with our Constitution and laws.
    Mr. Wainstein must also ensure, however, that unnecessary 
or inaccurate legal interpretations do not deprive the 
intelligence community of the tools it needs to aggressively 
target national security threats. We need an intelligence 
community that is willing to use every lawful technique to 
prevent the next terrorist attack or undetected spy.
    As we all know, the attacks of September 11 highlighted the 
danger posed when overly cautious and inaccurate 
interpretations of law are allowed to control the conduct of 
intelligence operations. We can no longer afford to build 
artificial walls that hinder the intelligence community's 
ability to protect us.
    As Chairman of this Committee, I expect the lawyers in the 
National Security Division to provide clear legal and policy 
guidance based upon our Constitution and our laws. I expect our 
intelligence community to use every lawful tool, to the fullest 
extent of its authority, to protect the Nation. Indeed, that is 
what America expects from our intelligence agencies, despite 
the second-guessing that often occurs in the media and by 
    If you meet these standards as the Assistant Attorney 
General for National Security, you, sir, will get nothing but 
praise from this Chairman. While I cannot speak for my 
colleagues, I hope they share that sentiment.
    Mr. Wainstein, if confirmed, this Committee will look to 
you and the lawyers of the National Security Division to 
provide the intelligence community with the legal expertise 
necessary to formulate and execute sound national security 
policy, from the operational planning to execution, to 
prosecution or otherwise.
    I expect the lawyers of the National Security Division to 
provide timely legal support to the men and women of our 
intelligence community. As you can see, my expectations for the 
Assistant Attorney General for National Security are quite 
high, but I am confident that you are certainly up to the task.
    With that said, I welcome you to the Committee. I look 
forward to your testimony. The Vice Chairman sends his regrets, 
as he is necessarily absent today. In the Vice Chairman's 
absence, I now recognize the distinguished Senator from 
Michigan, Senator Levin, for the purpose of making a statement.
    Senator Levin.


    Senator Levin. Thank you, Mr. Chairman. And first let me 
thank you for recognizing me to make the opening statement for 
this side, in Senator Rockefeller's absence.
    I join you in welcoming Mr. Wainstein, who is the first 
person nominated to the newly created position of Assistant 
Attorney General for National Security at the Department of 
Justice. And I join you in welcoming also his family, who is 
strongly behind him. I've talked to two of his three daughters, 
I want you to know. And their presence makes a real difference 
to their dad. I know that because I have three daughters, just 
the way Mr. Wainstein does, and I know how important their 
support has always been to me.
    The nomination of Mr. Wainstein is currently pending before 
the Judiciary Committee, and I understand that this Committee 
will formally consider the nomination after the Judiciary 
Committee has acted upon it.
    The person who assumes the job of Assistant Attorney 
General for National Security will play a central role in 
establishing legal policy for the intelligence community. He 
will be in charge of two prosecutorial sections within the 
Department of Justice--the Counterterrorism and the 
Counterespionage sections. He will also have responsibility for 
the Office of Intelligence Policy and Review, which is the 
Department of Justice unit that represents the government 
before the Foreign Intelligence Surveillance Court, FISC. In 
addition, the Assistant Attorney General for National Security 
will serve as the Department of Justice's liaison to the 
Director of National Intelligence.
    Mr. Wainstein's nomination comes at a critical time, for 
the reasons which have been set forth by the Chairman and also 
by Chairman Warner, whose support of you is also very, very 
helpful to this Committee and important to this Committee.
    Many reasons have been given by our Chairman for why this 
position is so critical at this time, and I'm not going to 
repeat them. I will, however, just add one other thought, and 
that is that a number of legal opinions in recent years have 
arbitrarily applied our laws, from the assertion that the use 
of force resolution authorizes warrantless surveillance of 
American citizens to some specific laws relative to treatment 
of detainees. And I would hope that our nominee would be aware 
of that history and would always act with the guideline that 
our Chairman set forth, which is that every opinion he renders 
be consistent with the Constitution, laws, meaning and intent 
of the statutes of the United States.
    I want to thank you for your service to this Nation. You've 
served, I believe, now almost 18 years in your career at the 
Department of Justice, and the Nation is very much in your debt 
for your willingness to undertake this very, very heavy and 
serious responsibility.
    And again, I thank your family for the support that they 
provide you.
    Thank you, Mr. Chairman.
    Chairman Roberts. Senator Levin, we have facilitated a 
request on your part for a document that you requested, and I 
understand that Mr. Wainstein will provide that document to you 
sometime today.
    Senator Levin. I thank you, Mr. Chairman.
    Chairman Roberts. Mr. Wainstein, Senator Allen could not be 
here to introduce you in person, but he has submitted a written 
statement on your behalf. It is glowing. That statement will be 
included in the record, without objection.
    [The prepared statement of Senator Allen follows:]
 Prepared Statement of Hon. George Allen, a U.S. Senator from Virginia
    Senate Select Committee on Intelligence Mr. Chairman and Members of 
the Committee, I thank you for the opportunity to introduce one of my 
constituents, Ken Wainstein of Alexandria, Virginia. Ken is here today 
with his wife, Elizabeth, two of his three daughters, Ellie and Mackie, 
and his parents. Ken grew up outside Alexandria, Virginia, attended the 
University of Virginia, and now makes his home in Alexandria, where he 
and his family are active members of the community.
    Ken has dedicated his career to justice and the Justice Department. 
He started out as an Assistant U.S. Attorney in the Southern District 
of New York, and then transferred to the U.S. Attorney's Office here in 
the District of Columbia. During his tenure in that Office, Ken 
specialized in prosecuting homicide and Federal racketeering cases 
against violent street gangs, and eventually was appointed Interim 
United States Attorney in 2001.
    Ken then gained valuable experience and insight into our war on 
terror, when he served as General Counsel and as Chief of Staff for FBI 
Director Robert Mueller. In May of 2004, Ken returned to the U.S. 
Attorney's Office, and he was subsequently nominated and confirmed as 
United States Attorney. As U.S. Attorney, Ken has proudly worked 
alongside the dedicated public servants in that Office to investigate 
and prosecute cases ranging from domestic violence to public 
    Under Ken's leadership, the Office has maintained a strong 
tradition of service to the residents of the District of Columbia, 
building on its community prosecution outreach effort and establishing 
a Homicide Section that is strengthening murder prosecutions in the 
District and helping to take killers off the streets. At the same time, 
the Office has significantly enhanced its role in the prosecution of 
white-collar and other Federal cases that have broader and often 
national implications. Ken and his colleagues have prosecuted a number 
of important fraud and public corruption cases. Last year Ken 
established a National Security Section that focuses on the terrorism, 
espionage, export control and other cases that protect our nation 
against threats from overseas.
    It is my opinion that the President has chosen well with his 
nomination for the position of Assistant Attorney General for National 
Security. With his experience in both the prosecutorial and the 
intelligence worlds, Ken is an ideal choice for this position. I 
respectfully urge this committee to move quickly toward his 

    Chairman Roberts. And you may begin, sir, with your 


    Mr. Wainstein. Thank you very much, Mr. Chairman, Senator 
Levin, Senator Bond, and Senator Warner. I will limit my 
remarks to several points, and then I will allow time for 
questions that you may have for me.
    First, I want to thank Senator Warner again for his very 
kind introduction. As an alumnus of the office that I have the 
privilege of leading right now and somebody who has been in the 
trenches of prosecution in the District of Columbia, it's a 
particular honor and privilege for me to have him introduce me 
on this special occasion. And I also want to thank Senator 
Allen for the statement that he put in the record, and that 
means a lot to me. I'd also like to acknowledge and thank my 
family you've already been introduced to: My parents and my 
daughters, my wife, and also two dear friends, John and Suzanne 
Kaminski, who are here to share this occasion with me. And I 
appreciate their being here.
    I also want to acknowledge a number of friends and 
colleagues from the U.S. Attorney's Office who are here today 
with me. It means a lot that they've come.
    I just want to say that it's been a tremendous honor to 
serve the Department of Justice over the last 17 years, and 
particularly to serve with the dedicated men and women of the 
U.S. Attorney's Office in DC. I've been blessed to work with a 
tremendous group of professionals. They've taught me a lot 
about public service, and I expect that I will take those 
lessons with me if I'm fortunate enough to serve in this new 
    I also want to thank the President for honoring me with 
this nomination. I'm humbled that he and the Attorney General 
have placed their trust in me in regards to this important job 
of establishing this new division within the Department of 
    As to this new division, I see this as a moment of great 
opportunity for DOJ. The creation of this new division will 
open the doors to improving our operations in a number of 
critical ways. I'd like to just briefly summarize them.
    First, it will consolidate our intelligence attorneys with 
our national security prosecutors and consolidate them in one 
division, which allows us to take full advantage of the 
lowering of the proverbial wall in the coordination between law 
enforcement and intelligence personnel that was authorized by 
the USA PATRIOT Act. And by doing that, it also implements one 
of the key recommendations of the WMD Commission.
    It will also streamline and enhance the management of the 
national security program within the Department of Justice by 
bringing together the different national security components 
under the leadership of one Assistant Attorney General. It will 
establish stronger liaison and coordination with the 
intelligence community and the Office of the Director of 
National Intelligence, coordination that is vital as we 
continue to assess how best to deploy our intelligence and our 
law enforcement operational options to address the threats that 
we face. It will facilitate our interaction with Congress, and 
especially with the Intelligence Committees, on matters 
relating to our national security programs.
    And finally, this new division will give us a focal point 
for considering and formulating policies that best maximize our 
ability to neutralize threats to our national security while 
securing and protecting our civil liberties.
    In short, this new division presents us with a great 
opportunity to build and to improve. And it's an opportunity 
that I would very much like to be a part of.
    If I am confirmed, I assure you that I will devote my 
complete dedication and energy to building this new division 
and to pursuing the mission of defending both our national 
security and the precious civil liberties and freedoms of all 
    Thank you so much for the courtesy, Mr. Chairman, and I 
look forward to answering your questions.
    [The prepared statement of Mr. Wainstein follows:]
Prepared Statement of Kenneth L. Wainstein, Assistant Attorney General 
                    for National Security-Designate
    Chairman Roberts, Vice Chairman Rockefeller, Members of the 
    I am honored and privileged to come before you today as the 
President's nominee to be the first Assistant Attorney General for 
National Security. As a long-time Federal prosecutor, I have devoted my 
career to protecting this nation and its communities against crime and 
defending our civil liberties. Now, I hope to have the opportunity to 
continue that service as the AAG for the National Security Division.
    When Congress passed the USA PATRIOT Improvement and 
Reauthorization Act, it created a new National Security Division within 
the Department of Justice. The new Division combines for the first time 
all of the Department's primary national security elements: the 
Counterterrorism and Counterespionage Sections of the Criminal 
Division, as well as the experts from the Office of Intelligence Policy 
and Review (OIPR) who specialize in the Foreign Intelligence 
Surveillance Act (FISA). The Division's creation responds to and 
completely fulfills a key recommendation of the March 31, 2005, report 
of the Commission on the Intelligence Capabilities of the United States 
Regarding Weapons of Mass Destruction (WMD Commission). The Department 
is particularly appreciative of your efforts Mr. Chairman, and the 
efforts of this Committee, to enact the legislation creating this 
Division and the position for which I have been nominated.
    The new Division brings together all the strengths of the 
Counterterrorism and Counterespionage Sections with OIPR's expertise in 
FISA, and will enable us to fight threats to our national security more 
effectively and efficiently. Prevention of another terrorist attack 
remains the Department's highest priority. The prevention strategy 
implemented following the tragic events of 9/11 has served the 
Department well, but it demands constant coordination and information 
flow. The National Security Division is the next evolution of that 
strategy; it will improve coordination and unity of purpose against 
terrorism within the Department of Justice. By consolidating the 
intelligence lawyers in OIPR with the national security prosecutors in 
CES and CTS, the Department is now situated to take full advantage of 
the information flow between law enforcement and intelligence personnel 
that was authorized by the USA PATRIOT Act. Moreover, by placing those 
personnel in a single division under one AAG, the Department is 
positioning itself to drive the changes necessary to continue enhancing 
our counterterrorism program.
    Of importance to this Committee, our integration will also make the 
Department more responsive to the needs of the Intelligence Community. 
Having one senior official at DOJ, whose title and responsibilities 
enable that person to represent DOJ in interagency processes related to 
national security, is a significant advantage: it provides one point of 
coordination and one point of contact for our colleagues in the 
Intelligence Community. If fortunate enough to be confirmed, I will act 
as the primary liaison to the ODNI. Indeed, I have already met with 
senior leadership at the ODNI, and I look forward to fostering that 
    Furthermore, the Division will facilitate coordination with 
Congress and congressional oversight, as it will serve as the central 
location for congressional inquiries relating to our national security 
    This reorganization also makes good management sense for the 
Department of Justice. Prior to this reorganization, no official below 
the Deputy Attorney General (DAG) had complete responsibility for all 
the core national security issues that the Department handles. With 
responsibility for the entire Department, the DAG had many 
responsibilities besides addressing the myriad national security issues 
that arise each day. It made sense to consolidate handling of those 
issues in the hands of a single AAG, who can then provide informed 
advice and recommendations up the leadership chain.
    This new position will be one of challenges, but it will also be 
one of great opportunity. If confirmed, I look forward to using this 
opportunity to build on the strong efforts and progress of the past few 
years, and to explore new ways by which the Department can serve its 
role as protector of national security and defender of civil liberties.
    I have been a Department employee for 17 years, and it has been a 
tremendous privilege to serve the Nation in every position I have held. 
It will be a particular honor to work with the Departments fine and 
dedicated counterterrorism and counterespionage professionals to help 
ensure the safety and security of our homeland.
    In closing, I want to thank the President and the Attorney General 
for honoring me with this nomination. I am humbled by the trust and 
faith they have placed in me. I want to assure this Committee that if I 
am confirmed, I will devote all my energies to the mission of 
protecting our national security and defending civil liberties and the 
freedoms that we hold so dear.
    I look forward to answering any questions the members of this 
Committee may have.

    Chairman Roberts. Mr. Wainstein, we have some obligatory 
questions that we need to ask you. Mr. Wainstein, do you agree 
to appear before the Committee here or in other venues when 
    Mr. Wainstein. Yes, I do, Mr. Chairman.
    Chairman Roberts. Do you agree to send National Security 
Division personnel to appear before the Committee and 
designated staff when invited?
    Mr. Wainstein. Yes, I do, Mr. Chairman.
    Chairman Roberts. Do you agree to promptly provide 
documents or any material requested by the Committee in order 
to carry out its oversight and its legislative 
    Mr. Wainstein. Yes, consistent with established practice 
and law.
    Chairman Roberts. Will you ensure that the congressionally 
mandated reports within the National Security Division's 
responsibility will be submitted to the appropriate committees 
in a timely fashion?
    Mr. Wainstein. Yes, I do, Mr. Chairman.
    Chairman Roberts. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    First is a question which Senator Rockefeller has asked 
that I ask you. In your pre-hearing answers to questions, you 
responded that you had not yet been confirmed as Assistant 
Attorney General and so it would not be appropriate for you to 
prejudge the current organization or comment on something which 
you're not yet in charge of. One of those questions related to 
the Office of Intelligence Policy and Review, the OIPR.
    Could you, even though you can't prejudge the current 
organization, could you let us know what the Department's plans 
are for OIPR, even if you're not in a position to give final 
decisions on this since you haven't arrived there yet?
    Mr. Wainstein. Yes, Senator Levin. OIPR, the Office of 
Intelligence Policy Review, is one of the three components 
that, pursuant to legislation, is part of this new National 
Security Division: OIPR, the Counterterrorism section, the 
Counterespionage section. The whole unit will become a part of 
the NSD.
    My response on the questionnaire was, as you said, that it 
would be premature for me to come out with firm opinions about 
how I would implement any management changes, if I ultimately 
implement any at all, if I am fortunate enough to be confirmed. 
And that's based on my experiences going into different 
management positions throughout the Department.
    I go in with a sort of sense about gee, there seem to be 
some problems here, there seem to be some strengths here, but I 
often find that when I get on board, when I actually sort of 
get there and start looking at the ground truth, what I came in 
with, the impression I came in with is a little bit off. And 
so, I've learned through experience not to sort of prejudge 
things, either prejudge structure or prejudge personnel.
    I can tell you, though, that if I get this position and if 
I end up overseeing OIPR as the Assistant Attorney General, I 
will do everything I can management-wise to pursue the 
objectives that Chairman Roberts laid out, the objectives of 
serving the intelligence community, serving the mission of 
national security, serving the mission of protecting civil 
    So everything will be on the table. No management structure 
that's in place--nothing is going to be off-limits. And it's 
been made clear to me that the Department wants me to take that 
approach when I go in, take a look at everything.
    Senator Levin. Thank you. Mr. Wainstein, I want to address 
the documents which you and I talked about in my office, one of 
which was referred to by the Chairman. And I appreciate your 
getting that document for me later on today.
    But these documents relate to a period of time at 
Guantanamo when you were the General Counsel for the FBI, from 
July 2002 to March 2003, and when you were Director Mueller's 
chief of staff, from March 2003 to May of 2004.
    What the documents show is that FBI agents and FBI 
personnel at Guantanamo repeatedly objected to DOD 
interrogation techniques, which, in the words of one of these 
memos, ``differed drastically'' from FBI's memos. That's 
Document 1.
    FBI agents described some of the methods that were used by 
DOD personnel as torture techniques, which is Document 1-A, and 
expressed alarm over the military interrogation plans in 
messages back to FBI headquarters which said, ``You won't 
believe it,'' which is Document 1-B. They described heated 
discussions between FBI personnel and Defense leaders at 
Guantanamo and in video teleconferences at the Pentagon.
    Now, that same memo, Memo 1, describes weekly meetings in 
2002 or early 2003, between Department of Justice personnel and 
FBI people, at which DOD interrogation techniques were 
discussed. And concerns about these techniques were so serious 
that law enforcement agents had guidance from FBI leaders to 
``stand clear'' when military interrogators used those 
    Now that you've had an opportunity to review the documents, 
I'm wondering whether or not you can tell us whether you are 
aware of those concerns that I talked about, including heated 
discussions, reference to torture techniques, and a direction 
to FBI and law enforcement personnel to ``stand clear'' when 
military interrogators were using the techniques.
    Mr. Wainstein. Thank you for that question, Senator Levin. 
I also want to thank you for seeing me yesterday, and I want to 
thank you for giving me a heads-up about this line of 
questioning and providing me with this package, that I could 
look at it last night. That was very considerate. I appreciate 
    As I mentioned yesterday, I was General Counsel of the FBI 
starting in July 2002 and held that position until March of 
2003, when I became chief of staff.
    There were FBI personnel--and I don't know exactly what the 
timing was--but FBI personnel down in Guantanamo Bay for 
purposes of obtaining intelligence and interviewing detainees 
down there.
    I did become aware of the fact that there were concerns on 
the part of personnel down at Guantanamo that the DOD way of 
conducting interrogations was not effective at getting useful 
intelligence. That was the concern that was raised, that they 
were using methods of interviewing these detainees that was not 
building a rapport, which is the approach that the FBI favors. 
And they thought that it wasn't useful and wasn't effective and 
that they wanted to see--``they'' being the FBI personnel down 
there--wanted to see an approach that was more consistent with 
what the FBI practices.
    At no time do I ever recall hearing anything about 
allegations of torture or violations of the law. I certainly 
understood that there were aggressive techniques being used 
down in Guantanamo, but I never heard anything that said that 
torture was taking place down there or that there was anything 
that violated the law. And, in fact, I never understood that 
there was anything taking place that hadn't been specifically 
sanctioned as lawful interrogation techniques.
    In terms of the stand-clear directive, that FBI should 
stand clear from those specific interviews down in Guantanamo, 
I don't recall anything that was specific to Guantanamo. I do 
know, however, that Director Mueller at one point made a policy 
directive that FBI personnel should not, in any situation in 
any place, engage or participate in interviews which were not 
conducted completely consistent with FBI guidelines. And FBI 
guidelines, as we discussed yesterday, Senator Levin, 
essentially say that FBI agents have to conduct interviews in a 
way that any statements that are elicited could be admissible 
in a court of law.
    So with the exception, I believe, of possibly not 
Mirandizing the interviewees, FBI agents were instructed 
specifically that they should not engage in any interview that 
wasn't conducted consistent with FBI guidelines. That was then 
memorialized later on in an electronic communication from the 
    Senator Levin. Now, the decision of the Director to have 
FBI and Department of Justice personnel not participate and to 
stand down, when was that decision made?
    Mr. Wainstein. I don't remember exactly when the Director's 
directive went out. I know that it was memorialized in a 
document in May of 2004, which is after the Abu Ghraib 
allegations came out, but it memorialized a policy that had 
been in place for quite some time.
    Senator Levin. As long as a year?
    Mr. Wainstein. I'd be guessing, but I'd say yes.
    Senator Levin. I think that flashing red light means my 
time is up, and I don't have time here. If I'm unable to stay 
for a second round, Mr. Chairman, I would ask that I be allowed 
to ask questions for the record.
    Chairman Roberts. Without objection, it is so ordered.
    We have two votes scheduled at 12. We have three Members 
here. If we can work in a second round, I'll be more than happy 
to do so.
    Senator Levin. And I would also ask, Mr. Chairman, that the 
documents which I have laid before our nominee be made part of 
the record so that the questions for the record can make sense 
when they refer to the documents.
    Chairman Roberts. Without objection.
    Senator Levin. Thank you.
    [The information referred to follows:]
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    Chairman Roberts. Senator Warner.
    Senator Warner. Thank you, Mr. Chairman.
    Mr. Chairman, I have before me the Commission on the 
Intelligence Capability of the United States regarding Weapons 
of Mass Destruction, which came forth with the recommendation 
for the creation of the office to which this distinguished 
public servant has been appointed by the President.
    And then I refer to the PATRIOT Act, section 507(a), the 
Assistant Attorney General for National Security.
    And using those documents as background, I ask the 
following questions:
    Have you proceeded to the point where you've talked with 
Ambassador Negroponte regarding the relationship between the 
DNI and the Attorney General, given that, under these 
precedents that I've cited, you've become the principal liaison 
from the Attorney General to the office of the DNI, as stated 
in the statute? Have you had a chance to talk it over with him?
    Mr. Wainstein. Yes, Senator Warner. I've actually met with 
several of his staff.
    Senator Warner. Have you met with him?
    Mr. Wainstein. And then I met with Ambassador Negroponte 
for quite some time and had a very good visit, and we talked 
about the need for close coordination between DOJ and his 
office. And, in fact, the Attorney General, I know, consulted 
with Ambassador Negroponte about my nomination pursuant to the 
    Senator Warner. We have experienced--I say ``we,'' this 
country--the resignation just announced by Porter Goss. And it 
seems like, Mr. Chairman, it was only yesterday when he sat in 
that very chair before this Committee under the advise and 
consent procedures of the Constitution and the responsibilities 
of the Senate. I personally regret this very deeply, just 
because I had been associated with our distinguished colleague, 
a former Member of the House of Representatives, for many 
    But that's history; it's behind us.
    And in the course of the work of this Committee on General 
Hayden, I support General Hayden, but I want to try and 
understand what did transpire such that Porter Goss felt it was 
his duty to step aside and what it is the General's going to do 
that Porter Goss was either not doing or doing inconsistent 
with law and precedence, whatever. That's for another day.
    But I see that if there were a dispute now between the DNI 
and the Director of the Federal Bureau of Investigation, would 
you be the arbitrator of that?
    Mr. Wainstein. No, Senator Warner, I wouldn't. As the 
Assistant Attorney General of the National Security Division, I 
wouldn't be the arbitrator necessarily. What I would do, I 
believe, if I were fortunate enough to be confirmed for this 
position is, as the liaison between the Department of Justice 
and the Director of National Intelligence, I think it would be 
my job to try to facilitate any negotiations, airing out of 
different views between the Department of Justice and the 
Director of National Intelligence.
    Obviously, it would be for the Attorney General or the 
Director of the FBI to make decisions about policy within their 
respective--the FBI and the Department--ultimately, the 
Attorney General would make the ultimate decision about 
positions that the Department will take, including the FBI.
    But I would work closely with the Director and work closely 
with the Attorney General to make sure that I understood the 
reasons for our views and convey them to the ODNI. So in that 
sense, I would be a conduit for information. I wouldn't be the 
one to actually make the call.
    Senator Warner. But nevertheless, you would consult with 
the Attorney General and give your perspectives on that.
    Mr. Wainstein. Absolutely.
    Senator Warner. I would hope that it would not arise, but 
the--both of those individuals, I know them quite well. They 
are strong- willed individuals, and there do occur in public 
office from time to time legitimate disputes.
    What is your understanding of the authority the DNI might 
have over your office?
    Mr. Wainstein. Well, pursuant to law, the Director of 
National Intelligence had to be consulted about my nomination, 
and he was and he agreed with the Attorney General's 
recommendation to the President that I be nominated. He does 
not have line--or the ODNI doesn't have line authority over the 
National Security Division. That being said, obviously, the 
National Security Division is going to be working closely with 
the intelligence community and closely with the Director of 
National Intelligence, and he and his office will have a big 
say in the matters that we deal with.
    So I assume that we'll be working very closely together, 
and that I will be getting quite a bit of input from them and 
vice versa.
    Senator Warner. Let me turn to your responsibilities in 
overseeing the FISA statute, and the requests, as well as the 
attorneys who oversee counterterrorism and counterintelligence 
    Could you advise the Committee how you intend to discharge 
that responsibility? FISA has come under close scrutiny by the 
Congress, given the unfortunate chapter here of the Dubai 
acquisition that was announced and then withdrawn.
    And our distinguished Chairman of the Banking Committee, 
together with his equally distinguished Ranking Member, are 
working on a revision of that statute. Will you be consulting 
with them on the revision of that statute?
    Mr. Wainstein. Senator Warner, if you're referring to 
CFIUS, the organization that----
    Senator Warner. Yeah, the FISA, on FISA--F-I-S-A.
    Mr. Wainstein. Right. I believe FISA is the Foreign 
Intelligence Surveillance Act.
    Senator Warner. That's correct.
    Mr. Wainstein. And CFIUS is----
    Senator Warner. CFIUS is over on one side. But do you have 
anything to do with the CFIUS? Because it was a national 
security issue that came under scrutiny and resulted in the 
termination of the Dubai.
    Mr. Wainstein. Yes.
    Senator Warner. I want to treat both, and I may have mixed 
it there momentarily. Take CFIUS first.
    Mr. Wainstein. They're both national security matters. And 
I think CFIUS has come to the fore because of that controversy.
    The Department of Justice does participate in the CFIUS 
process--analyzing, evaluating potential acquisitions of 
American businesses by foreign entities. And the Department has 
a seat at that table. At this point, that's been managed by the 
Criminal Division within the Department of Justice. There's a 
person there who has the point responsibility on behalf of the 
Attorney General.
    That's one of those issues I think will have to be worked 
out once the National Security Division gets stood up, whether 
that particular assignment remains with the Criminal Division, 
because it does draw on some expertise in the Criminal 
Division--cyber expertise and this kind of thing--or should 
that move over to the National Security Division because it's a 
national security matter, or should it be shared. That is yet 
to be determined.
    But I think that regardless, we----
    Senator Warner. You do have a hand in it, the degree to 
    Mr. Wainstein. We will have a hand and we will have input, 
yes, sir.
    Senator Warner. Turning now to the FISA, first, have you 
gone back and reread that statute? It's, I think, in need of 
revision, given the technological changes that have taken place 
since the time of its enactment. Do you have a view on that?
    Mr. Wainstein. Yes, Senator. I think it's a statute that I 
became aware of and familiar with, relatively familiar with, 
when I got to the FBI back in 2002 and started working with 
agents who were seeking to get wiretap authority pursuant to 
FISA. It's a complicated statute. It's one that was written 
back in 1978, and as you pointed out, a lot of technology has 
come along since then. There were some refinements in the 
PATRIOT Act, in the PATRIOT Act reauthorization, that were very 
    I will take a good hard look at that, at the statute and 
any areas of further refinement or improvement or streamlining 
of the process under the statute once I get in place.
    I think, though, for purposes of really expediting, 
streamlining and enhancing our FISA operations, as Chairman 
Roberts suggested, we have to look not only at the law, but 
also at the procedures that we put in place to follow the law, 
and make sure that not only the law, but the procedures are as 
streamlined as they can be. And that will be--I see this new 
division as an opportunity to take a fresh look at that.
    Senator Warner. Well, I share in that. And I do believe 
that we need to bring that law up into this century.
    Thank you, Mr. Chairman.
    Chairman Roberts. Thank you, Senator.
    Senator Bond.
    [The prepared statement of Senator Bond follows:]
      Prepared Statement of Hon. Christopher Bond, a U.S. Senator 
                             from Missouri
    Mr. Chairman, regarding the nomination of Kenneth Wainstein to be 
the Assistant Attorney General for National Security, the Senate Select 
Committee on Ethics advises me that the consignment agreement between 
my wife, Linda Bond, and Elizabeth Wainstein, the wife of the nominee, 
does not present a conflict of interest for me in considering his 
nomination before this Committee. Additionally, the consignment 
agreement between my wife and the nominee's wife was reached before the 
nomination, the agreement was negotiated at arms length and it contains 
provisions standard to industry practice. Therefore, I intend to uphold 
my obligation as a Senator and member of this Committee to consider the 
Wainstein nomination and vote on the nomination before this Committee 
and on the Senate floor.

    Senator Bond. Mr. Chairman, I have a statement for the 
record on the nomination of Mr. Wainstein, and welcome him 
    And I certainly agree with your comments about the 
notorious wall between intelligence and law enforcement--very 
unfortunate and caused, perhaps, great loss as a result of its 
erection. And there is some sense and I've seen some 
suggestions that the culture derived from the existence of the 
wall that shouldn't have been there may still exist in 
cooperation between law enforcement and intelligence agencies.
    Based on your experience, have you seen any areas where the 
culture of separation between law enforcement and intelligence 
operations could be improved? And do you have any suggestions 
on how to ensure effective integration of intelligence and law 
enforcement in cases concerning terrorism and national 
    Mr. Wainstein. Well, thank you, Senator Bond. That's 
actually a critically important question, because you can 
change the law, but the implementation of the law doesn't 
necessarily change the moment that the law is enacted.
    That was a big undertaking as soon as the PATRIOT Act was 
passed back on October 25, 2001, I believe. It was a big 
undertaking on the part of the Department and the intelligence 
community to make sure that we could take full advantage of the 
fact that the wall was down.
    And bureaucratically speaking, looking at it in terms of 
sort of how bureaucracies move, I think things moved 
tremendously smoothly and did move toward the merging.
    There's still a long way to go. I mean, there's no question 
that we still have to keep refining our processes.
    This new division is a great example of that ongoing effort 
and evolution toward taking full advantage of lowering the 
wall. Here we have our prosecutors and our intelligence 
attorneys, who do the FISA work, in the same division, 
reporting to the same person. The heads of the components will 
be meeting every morning, sharing information, making sure that 
if there's a particular threat or a particular terrorist that 
we're looking at, we're thinking, with the FBI, with the 
intelligence community, of every single tool that we can use to 
neutralize that threat.
    And that tool might be an intelligence tool to try to 
surveil, develop sources, get more intelligence about him and 
his cohorts, or it might be a law enforcement tool--arresting 
him, incapacitating him right then.
    I see it as our job in this National Security Division, if 
I'm fortunate enough to become part of it, to perfect each of 
those options as best as possible, so the decisionmakers have 
every option at their disposal to decide how they're going to 
deploy their options.
    And so I see that process happening, or I saw it when I was 
at the Bureau between 2002 and 2004. I hope to be a part of 
sort of accelerating that process here.
    Senator Bond. If you can achieve the goal of totally 
thorough and effective intercommunication and cooperation 
between any agencies involved in this field, your career will 
be a great success. And we wish you well. We look forward to 
    We have, in meetings in this Committee, seen examples as 
recently as a year and a half ago where other agencies--not the 
FBI--were still not talking to each other when they were 
supposedly working on the same task. And I trust now that that 
will never happen in the FBI. So we're looking forward to that.
    We have had some problems in the past when this Committee 
and its staff has been conducting briefings in oversight of 
certain groups, individuals and intelligence operations where 
once the FBI took the lead from the intelligence community to 
prosecute certain individuals, the Committee was told that 
further information on those cases would not be shared for our 
oversight because the FBI would be using subsequent information 
to prepare cases. What is your view concerning the scope of 
this Committee's intelligence oversight in cases of terrorism 
and national security where the FBI is preparing cases for 
    Mr. Wainstein. Well, Senator, I will have to admit that I 
am not an expert on the sort of parameters of oversight by the 
Intelligence Committees. I understand and I appreciate the very 
significant role the Intelligence Committees in the Congress in 
general play, for purposes of oversight especially, and the 
mission of protecting our national security.
    You have pointed to, alluded to a situation, I believe, 
where--and I'm speculating here--where the obstacle to 
providing information is that it was procured under Rule 6(e). 
In other words, it's procured by the grand jury, and that maybe 
this is grand jury-protected information, or information that 
is part of an ongoing investigation. Those are valid. One's a 
legal concern, and the other is a very valid practical concern.
    My understanding is that there is a tradition between the 
Department and the Intelligence Committees of reaching 
accommodations as best we can. I've been instructed that if I 
have this position--and I've received this instruction in 
previous incarnations, or previous capacities I've served in--
that I should do what I can to get the relevant information to 
the Committee to satisfy your appropriate oversight 
responsibilities while at the same time respecting whatever 
concerns that the Department might have.
    So, the long and short of it is I don't know the exact 
parameters. But my understanding is that it's something that 
gets hammered out on a case-by-case basis.
    Senator Bond. Well, I can just tell you, the Committee is 
not a bunch of happy campers when we aren't able to follow on 
the intelligence. And I trust that we will reach accommodation 
to assure that what we need in intelligence oversight is made 
available. And I will submit a final question for the record.
    Thank you, Mr. Chairman.
    Chairman Roberts. Without objection. And the distinguished 
Senator's prepared remarks will be also be made part of the 
record at the beginning of his line of questioning.
    Senator Wyden.
    Senator Bond. Thank you.
    Senator Wyden. Thank you, Mr. Chairman. I want to thank the 
nominee for coming over yesterday, and I thought we had a 
constructive discussion.
    We talked at some length yesterday about national security 
letters. And I want to ask you some additional questions with 
regard to them. I had gotten the impression from our discussion 
yesterday that, by and large, you are satisfied with current 
laws and policy regarding national security letters. Is that 
    Mr. Wainstein. Well, Senator, I believe that, as I recall, 
what I expressed was that I thought that the changes to the 
national security letter authorities in the PATRIOT Act 
reauthorization ended up producing a good tool that had the 
necessary safeguards.
    Senator Wyden. Let us look at it, then, in a more detailed 
kind of way; I think in a fashion that is consistent with what 
I hear folks talking about in the field and at home. If the 
head of an FBI field office issued a national security letter 
and obtained financial records that had nothing to do with that 
current inquiry, what is the current policy for dealing with 
those records?
    Mr. Wainstein. I'll have to say, Senator, the short answer 
is I don't know.
    I know that there are guidelines--strict guidelines--
Attorney General guidelines that govern national security 
investigations that say when you're allowed to use that tool 
and other tools. And as I recall, you would not be allowed to 
use that tool to get records that have no relationship at all 
to an authorized investigation.
    Senator Wyden. So again, I'd like you to furnish that for 
the record so that we get a sense that--so you're comfortable 
with current policy with respect to national security, you 
know, letters. What I wanted to do was get a general sense, and 
I want to ask you a specific question with respect to the head 
of a FBI field office. And I will tell you that I don't know 
what happens to those you know, financial records. I want to 
know what happens to them, and I think there needs to be rules 
with respect to how they're handled, and I look forward to 
working with you on that.
    Mr. Wainstein. If I may, Senator----
    Senator Wyden. Yeah, of course.
    Mr. Wainstein. If I may just clarify, as a U.S. Attorney 
for the last 2 years, I don't deal with national security 
letters. Those are used in national security investigations.
    Senator Wyden. I understand that.
    Mr. Wainstein. So, I don't think I could sort of say right 
now I am satisfied or I'm not satisfied with the current policy 
because I don't know what the current policy is. I haven't 
actually looked at it for 2 years, and I assume it has changed 
with the changes in the law. So I will certainly take a good, 
hard look at them to see, as part of the oversight 
responsibilities in this new position--if I'm confirmed, I 
would--that would be my job.
    Senator Wyden. Get back to us, then, and make sure that we 
as a Committee understand what happens if you all get the 
information by accident.
    Mr. Wainstein. I'd be happy to.
    Senator Wyden. Because my concern is, is that there may be 
a substantial information floating around out there, and I want 
to get a sense of how it's handled and what the rules are.
    Now, obviously we've been talking a lot about FISA. One 
reason administration officials have given as their explanation 
to circumvent FISA is getting a proper warrant through FISA is 
time consuming. It looks to me like the current FISA statute is 
pretty lean--pretty lean and pretty direct. So I'm wondering 
whether bureaucratic processes have developed to the point 
where there are some barriers that the law doesn't seem to 
reveal. What steps, if any, do you think are necessary to 
improve the FISA application process?
    Mr. Wainstein. Well, Senator, that's a very important 
issue. And as I said, I think in response to Senator Warner, 
it's not just a matter of looking at the FISA statute, but it's 
also a matter of looking at the FISA processes. And I do know, 
somewhat as a matter of looking back historically, that there 
was a major effort after 
9/11 to revisit some of the understood processes that were in 
place to obtain FISA warrants because there was a sudden 
increase in the volume of FISA warrants. There was a huge 
increase in demand. And I think one of the statistics out there 
is that in 1 year we got 3 times as many emergency applications 
from the FISA Court than we did in all 23 years between the 
enactment of the law and 2001. So I know they have taken steps 
over the last few years to refine some of the processes.
    I think once again this would be an opportunity to go in 
and take a look at them, a new look at them--I think I would 
want to do that with a fresh set of eyes--and see whether there 
are any processes in place which are unnecessarily burdensome, 
and once again, taking a look at the management of our 
operation because sometimes management and processes are 
indistinguishable. So I'll be looking at both.
    Senator Wyden. A question about privacy rights, obviously 
something very much on the minds of our citizens and something 
we'll certainly be talking about on Thursday in this room. I 
and others feel very strongly about how important it is to 
fight terrorism aggressively and just throw everything we got 
against the terrorists, while at the same time calibrating all 
of this so as to be sensitive to the concerns of privacy and 
the rights of our citizens.
    You're going to have an opportunity, it seems to me, to 
interact with two key places where we look to strike the 
balance. One will be the Civil Liberties Board, and the second 
will be the DNI civil liberties officer. So you're going to get 
confirmed for this position, there's two places where you can 
be involved on a regular basis in terms of interacting with 
administration positions in terms of helping us strike that 
kind of constructive balance.
    How do you see interacting with these two important posts 
in terms of striking the balance?
    Mr. Wainstein. Well, I see that as a critical component of 
the job description of the Assistant Attorney General for 
National Security, that being ensuring that civil liberties are 
perfectly protected as we pursue terrorists. And I expect that 
I'll be working, if I get this position, I'll be working very 
closely with both of those entities. I also think that I would 
be--within the NSD we'd be taking steps to ensure the 
protection of civil liberties on our own with our oversight 
responsibilities, with the decisions we make.
    Senator Wyden. Any steps that you're contemplating now?
    Mr. Wainstein. Well, I'd certainly want to--I mean, 
obviously, one of the advantages of this division or creating 
this new division is to enhance the management and get more 
resources into the component that does both the FISAs and the 
oversight of the intelligence activities.
    With the rush of FISAs over the last few years, it's been 
hard to actually have the resources to commit to the oversight 
function. I see this as an opportunity to beef up that function 
so that we can actually strengthen it. I see us doing that. I 
see myself doing as AAG in this new division and what I've done 
as a prosecutor my whole career, which is be very aggressive 
going after bad guys, getting after criminals, but at the same 
time recognizing that it's my obligation that we do so within 
the law and we do so in accordance with the rules. And that's 
what a Federal prosecutor--that's our job. That's our mandate, 
and I expect to do the same thing as AAG.
    Senator Wyden. I'll wrap this up.
    I could see why there would be personnel issues surrounding 
the whole FISA warrant process because of some of the 
unanswered questions about how it works and the whole nature of 
the debate. But I do think this is going to be a question, at 
some point, of political will. I mean, it's got to be a higher 
priority, and it seems--I mean, even in terms of the funding of 
these offices--we always put them into laws as we did in the 
Intelligence Reform Act, and somehow they get zeroed out.
    So it seems that this end of the balance gets short shrift. 
I hope that you will take specific steps to try to ensure, as 
the Founding Fathers did--they always saw it as a 
constitutional teeter-totter. They always said you got to put 
both on this. You got to have the collective security and you 
got to have privacy, and it just looks to me--I wouldn't 
pretend to be able to make analogies like the distinguished 
Chairman of the Committee has over the years, but suffice it to 
say, I want to see that constitutional balance maintained, and 
I'm concerned that it has not been.
    I thank the Chairman, and I look forward to working with 
the nominee.
    Mr. Wainstein. Thank you, Senator Wyden.
    Chairman Roberts. Thank you, Senator.
    I just have a few wrap-up questions, and then we will let 
you have lunch with your family.
    There have been some recent cases of improper disclosure 
during prosecutions, which is probably the understatement of 
the morning. My question to you, are modifications to the 
Classified Information Procedures Act needed to ensure that 
both classified information is adequately protected during 
prosecutions while protecting the rights of the accused?
    Mr. Wainstein. Senator, that's a very important issue and 
one that I deal with to some extent, as the U.S. Attorney in 
DC, to the extent that we're prosecuting cases that involve 
classified information, and we are. But I will be heavily 
involved in that issue if I'm the AAG in national security 
overseeing the counterespionage and counterterrorism 
prosecutors who are handling cases which are often based on 
classified information.
    The Classified Information Procedures Act, CIPA, allows the 
government to go to a judge, as you know, Senator, and ask the 
judge to limit the disclosure of classified information. It's a 
balancing, obviously, between the need to retain the 
classification of evidence and the need to ensure that a 
defendant has his right to defend himself.
    It's a statute that I'll be looking at very closely because 
I know it's one that goes to the core of our ability to 
prosecute some cases, our ability to be able to protect this 
    I know that the Department has proposed legislation that 
would ensure that if the government requests that a judge hear 
its request that information remain classified, that that be 
done in an ex parte setting so that it not be disclosed to 
defense counsel. That only makes sense to me, because if the 
judge says, ``Government, you're going to have to disclose that 
information,'' then it will go to the defense attorney.
    But at least it allows the government to then decide, OK, 
let me think about my options, because that's such important 
information. If you put the cart before the horse and actually 
have to disclose the fact that there's classified information 
to defense counsel, possibly in open courtroom, then you might 
well have disclosed some important information just by 
disclosing the fact of classified information. I think that's a 
very sound proposal, and I'm not sure exactly where in the 
process it is, but I know that it's been proposed, and that's 
one possible change that I would support.
    Beyond that, I'd have to go in and really noodle through 
the statute and see what other refinements might be advisable.
    Chairman Roberts. Well, we'll be happy to work with you on 
    This is sort of a repeat question. I think you're aware 
that the DOJ Inspector General is conducting an investigation 
that was congressionally mandated on the slow implementation of 
the FISA business records provision. It took nearly 2\1/2\ 
years after the passage of the PATRIOT Act for the Department 
of Justice to submit the first application for a FISA business 
records court order.
    I think you might agree with me that 2\1/2\ years for this 
kind of implementation period is simply unacceptable, to say 
the least.
    So my question to you is how you will ensure that the 
National Security Division provides prompt operational support, 
given the circumstances that we face with the war against 
terrorism, to those agencies that request the FISA techniques 
or policy guidance on other matters.
    Mr. Wainstein. Well, thank you, Senator, and that's a very 
important issue, going to your initial comments about the need 
to provide prompt assistance to the intelligence community and 
to our investigators. I've always seen it as my job as a 
Federal prosecutor to assist investigators when they're trying 
to run down cases.
    If a homicide detective needs a search warrant, and he's 
got the basis for it, and it seems like it's a well-advised 
step, it's my job to help him get it or help her get it, 
advocate for it, if necessary, before the judge. I see that as 
being the role of a prosecutor. I see that as being the role of 
an attorney in the National Security Division helping our 
national security investigators, and we don't help them if we 
sit on things for a long time.
    These are investigations that happen quickly. And I know, 
just from having kept pace with these threat investigations 
when I was with the FBI, these threats move fast and we have to 
be ready to jump, and we can't be ready to jump if we take an 
application or request from an agent and sit on it.
    I don't know what happened in that particular case, and 
there might well be very good reasons for the implementation 
being delayed. But I can tell you that on my watch in the 
National Security Division, if I end up there, I'm going to be 
putting a premium on expeditious handling of these requests and 
turning them around as quickly as possible, and I will put a 
management structure in place, as I've tried to do elsewhere, 
to make sure that we've got the managers demanding that of the 
people in the ranks.
    And I tell you we've got good people over there in those 
components who are going to staff up the National Security 
Division. They like the challenge, they like to serve, and they 
see themselves as being the ally of the investigator--to 
protect our civil liberties, but also be ally of the 
investigator. I intend to work to maximize our effectiveness.
    Chairman Roberts. We will help you in that endeavor.
    Last year, this Committee supported the creation of an 
administrative subpoena, and we received testimony from the FBI 
General Counsel describing the extensive process for approval 
of national security letters, the question that was asked 
before. And I remain convinced that the FBI needs a national 
security administrative subpoena just like the authority that 
is provided in 335 other contexts. I won't go into them all.
    Will you examine this issue closely and report back to the 
Committee on the need for this or other authorities?
    Mr. Wainstein. I certainly will, Mr. Chairman.
    Chairman Roberts. I think most of these other questions 
here have been answered.
    Mr. Wainstein, I thank you for your time. I advise all 
Members that the record will remain open through the close of 
business today for the submission of questions for the record.
    Prior to this meeting being adjourned, how many attorneys 
do you have behind you there, that are your cohorts?
    Mr. Wainstein. I believe six of my friends are here from 
the U.S. Attorneys Office.
    Chairman Roberts. Why don't they ever smile?
    Mr. Wainstein. That's part of U.S. Attorney training.
    Chairman Roberts. I see. They're a very imposing group, and 
I'm sure they're very--and I know they're prosecutors. So I 
want to assure you all that we back your efforts and we view 
your work with admiration and support.
    Mr. Wainstein, thank you very much, and we wish you well, 
and we will try to expedite the process.
    Mr. Wainstein. Thank you very much, Chairman Roberts.
    Chairman Roberts. And thank you, sir.
    The Committee stands adjourned.
    [Whereupon, at 11:55 a.m., the Committee adjourned.]