[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 
  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 
  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.