[Congressional Record: June 25, 2009 (Senate)]
[Page S7109-S7111]
Nomination of Robert S. Litt and Stephen W. Preston
Mrs. FEINSTEIN. Mr. President, I rise today to support the
confirmation of Robert S. Litt to be the second general counsel of the
Office of the Director of National Intelligence. I also rise in support
of the confirmation of Stephen W. Preston as general counsel of the
Central Intelligence Agency, to fill the vacancy in that office that
has existed since 2004. President Obama's decision to place these
distinguished lawyers at the helms of these vitally important legal
offices is an essential step in ensuring that the intelligence
community operates within the rule of law.
On June 11, the Select Committee on Intelligence, which I am
privileged to chair, favorably reported the nominations by a bipartisan
14-1 vote. The committee's support of the nominees is based on an
extensive public record. We questioned them at an open hearing on May
21. That day we also placed on our website their responses to our
questionnaire for presidential nominees and to additional prehearing
questions about the offices for which they have been nominated.
On June 5, we placed on our website their responses to a further,
extensive round of posthearing questions. We also examined financial
information that is available to the public through the Office of
Government Ethics and confidential communications to the committee from
the nominees that supplement their public answers about how they will
approach potential conflicts relating to their private law practices.
Mr. Litt is a graduate of Harvard University and Yale Law School. He
clerked for Judge Edward Weinfeld of the Southern District of New York
and Justice Potter Stewart of the Supreme Court. He served as an
assistant U.S. attorney in the Southern District of New York for 6
years. He later became a partner at the law firm of Williams &
Connolly. Then from 1993 to 1999, after a year at the State Department,
he held two important posts at the Department of Justice. There, after
service as a deputy assistant attorney general in the criminal
division, he rose to be Principal Associate Deputy Attorney General. At
the DOJ, his responsibilities included FISA applications, covert action
reviews, computer security, and other national security matters.
He has been a partner with the law firm of Arnold and Porter since
1999 and has been active in intelligence and national security policy
matters through bar association and other public activities.
Stephen Preston is a graduate of Yale University and Harvard Law
School. He clerked for Judge Phyllis A. Kravitch of the U.S. Court of
Appeals for the 11th Circuit, and joined Wilmer, Cutler, and Pickering,
where he became a partner. From 1993 to 2000, Mr. Preston served in the
Department of
[[Page S7110]]
Defense and the Department of Justice. At the Department of Defense, he
was a deputy general counsel and then the principal deputy general
counsel, which included a period as acting general counsel and later,
general counsel for the Department of the Navy. At the Department of
Justice, he was a deputy assistant attorney general in the civil
division. While at DOD, the chief counsels at the defense intelligence
agencies reported to him, and while at the Navy Department he had legal
and oversight responsibilities for the Naval Criminal Investigative
Service. He has informed the committee that in his DOD and Navy
positions, he dealt with other national security agencies, including
the CIA.
Mr. Preston has been a partner at the law firm of WilmerHale since
2001, dealing in both his practice and public and private activities
with national security matters.
The Director of National Intelligence has the statutory
responsibility of ensuring compliance with the Constitution and laws of
the United States by the Office of the DNI and the CIA and ensuring
that compliance by other elements of the intelligence community through
their host executive departments. As the chief legal officer of the
Office of Director of National Intelligence, the general counsel has
the critically important responsibility of aiding the DNI in fulfilling
this mandate.
In providing legal advice to the DNI, the general counsel must have
insight into activities throughout the intelligence community including
those of the general counsel offices in the various intelligence
community elements. As we made clear during this nomination process,
the committee expects that the ODNI general counsel will be aware of
and have an opportunity to evaluate all of the significant legal
decisions made throughout the intelligence community. The general
counsel also represents the executive branch in proposing and
negotiating legislative provisions for our annual intelligence
authorization bill, which is coming up, and for other legislation that
affects the equities of the intelligence community. The first ODNI
general counsel, Benjamin Powell, played an indispensable role, for
which our committee is deeply grateful, in working with the Congress on
the FISA Amendments Act of 2008.
The Central Intelligence Agency operates around the world outside of
the law of other nations but is required to operate in strict
compliance with United States law, including the Constitution, acts of
Congress, and treaties made under the authority of the United States.
The CIA general counsel serves to ensure that compliance. Because of
the independent legal judgment the role requires, the position of CIA
general counsel is an extremely challenging one that requires a strong
and principled leader. It has been the longstanding position of the
Senate, as manifested in the recommendations of the Iran-Contra
Committees upon examining the significant failures they exposed, that
it is essential that the CIA general counsel be confirmed by the
Senate.
The CIA Office of General Counsel played a key role in the creation
of the CIA detention and interrogation program. It provided significant
information to the Office of Legal Counsel at the Department of
Justice. It participated in briefings to the National Security Council
and to Congress. And it was in charge of interpreting and implementing
the Office of Legal Counsel's guidance to CIA interrogators in the
field.
An examination of the role of the general counsel's office in the
detention and interrogation program--something that the Intelligence
Committee's review of the program will explore--demonstrates how
important it is that the office has a strong leader who applies both
sound legal analysis and good judgment to the task of providing counsel
to the Director.
As I mentioned earlier in these remarks, the nominees answered the
committee's many questions both in writing and in testimony before us.
Individual members of the committee may have disagreements with
individual answers, and some of these were discussed in the committee's
consideration of both. To some extent, the nominees are at the
disadvantage of not yet knowing the often still classified context of
various questions. I am confident that they will quickly learn.
Moreover, a nomination process is a two-way communication. We use it
to learn about the nominees, but it is also a process in which they
learn about our concerns. Both nominees now have an abundantly clear
idea, for example, of the importance we place on the law's requirements
for keeping the committee fully and currently informed. Of course, they
will also have the responsibility of implementing the clear commitments
that Directors Blair and Panetta have made to that cornerstone of
accountability and oversight.
For both the ODNI and the CIA, the Nation needs a strong general
counsel of unimpeachable integrity and an unwavering commitment to the
Constitution and laws of the United States. I cannot say that too
strongly. I am pleased that our committee has determined that the two
nominees are both highly qualified and well suited to serve the Nation
by providing counsel to the Director of National Intelligence and the
CIA. I urge my colleagues to confirm them.
