S. Hrg. 111-163
NOMINATION OF DAVID S. KRIS TO BE ASSISTANT ATTORNEY GENERAL FOR
NATIONAL SECURITY
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 10, 2009
__________
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.]
DIANNE FEINSTEIN, California, Chairman
CHRISTOPHER S. BOND, Missouri, Vice Chairman
JOHN D. ROCKEFELLER IV, West ORRIN G. HATCH, Utah
Virginia OLYMPIA J. SNOWE, Maine
RON WYDEN, Oregon SAXBY CHAMBLISS, Georgia
EVAN BAYH, Indiana RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland TOM COBURN, Oklahoma
RUSSELL D. FEINGOLD, Wisconsin JAMES E. RISCH, Idaho
BILL NELSON, Florida
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
David Grannis, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
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MARCH 10, 2009
OPENING STATEMENTS
Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California. 1
Bond, Christopher S., Vice Chairman, a U.S. Senator from Missouri 2
WITNESS
Kris, David S., Assistant Attorney General for National Security-
Designate...................................................... 3
Prepared statement........................................... 4
SUPPLEMENTAL MATERIAL
Prehearing Questions for the Record and Responses................ 20
Questionnaire for Completion by Presidential Nominees............ 52
March 6, 2009 Letter from Robert I. Cusick, Office of Government
Ethics, to Senator Dianne Feinstein............................ 71
Public Financial Disclosure Report............................... 72
February 18, 2009 Letter from Benjamin A. Powell................. 99
January 30, 2009 Letter from Daniel Marcus....................... 101
January 30, 2009 Letter from Michael Chertoff.................... 102
February 2, 2009 Letter from Richard Cullen...................... 103
February 4, 2009 Letter from Larry D. Thompson................... 105
February 1, 2009 Letter from Janet Reno.......................... 106
February 3, 2009 Letter from Daniel Levin........................ 107
February 3, 2009 Letter from Robert S. Litt...................... 108
NOMINATION OF DAVID S. KRIS TO BE
ASSISTANT ATTORNEY GENERAL
FOR NATIONAL SECURITY
----------
TUESDAY, MARCH 10, 2009
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:32 p.m., in
Room SD-106, Dirksen Senate Office Building, the Honorable
Dianne Feinstein (Chairman of the Committee) presiding.
Committee Members Present: Senators Feinstein, Rockefeller,
Wyden, Feingold, Bond, and Chambliss.
OPENING STATEMENT OF HON. DIANNE FEINSTEIN, CHAIRMAN, A U.S.
SENATOR FROM CALIFORNIA
Chairman Feinstein. The hearing will come to order. I
apologize for this large hearing room. It is not the most
intimate of surroundings but it is public and that is our
requirement.
The Committee meets today to consider the nomination of
David Kris to be Assistant Attorney General for National
Security.
Mr. Kris, at this time, are there any members of your
family that you would like to introduce?
Mr. Kris. Yes, Senator, there is my wife just behind me
here, Jody Kris.
Chairman Feinstein. Good. Welcome, Mrs. Kris.
I had the opportunity to preside at a hearing of the
Judiciary Committee on Mr. Kris' nomination on February 25 of
this year, and the Judiciary Committee reported out the
nomination unanimously on March 5. Because of a provision in
the PATRIOT Act Reauthorization Act of 2006 that created this
Assistant Attorney position, the nomination is now before the
Committee. Now, given that the Judiciary Committee conducted
its reviews and posted information on its website and that six
of this Committee's members serve on Judiciary, I hope to be
able to move this nomination quickly, and it would be my
intention to try to mark it up at Thursday afternoon's meeting.
The Assistant Attorney General for National Security is the
bridge between our nation's intelligence community and the
Department of Justice. The Assistant Attorney General
represents the government before the FISA court and is also the
government's chief counterterrorism and counterespionage
prosecutor. The work of that official is, therefore, of great
interest to our Committee. Among the important acts this year
for Mr. Kris, if confirmed, will be to prepare the new
certifications and supporting materials that the Executive
Branch will submit to the FISA court under last year's FISA
Court Act.
As such, he would be the official at the Department of
Justice most directly involved in questions of setting
minimization, which is a very important part of that bill, and
targeting procedures, also an important part, reviewing the
Attorney General's guidelines under the Act, and making sure
that intelligence collection is carried out faithfully under
the law.
The Assistant Attorney General is also highly involved in
decisions concerning the information that the FBI is allowed to
share with Congress, a matter I discussed recently with
Director Muller.
Another issue I raised with Mr. Kris at the Judiciary
Committee is the authorities for detaining individuals
currently held at Guantanamo Bay, and in particular what is
allowed under the law of war and the Geneva Conventions.
This Committee is very interested in prosecuting those
involved in terrorism. But we are also concerned by the threat
that detainees may pose if they are returned to nations that
are unwilling or unable to keep them from resuming extremism.
And although they may not be convictable of an instant attack,
they can still be a future threat to our nation's security. And
I believe that we consider that we have the proper procedures
in place to be able to examine that.
So I might say, Mr. Kris, we will look forward to working
closely with you as we encounter these problems.
I'd like now to turn to the distinguished Vice Chairman for
his comments.
OPENING STATEMENT OF CHRISTOPHER S. BOND, VICE CHAIRMAN, A U.S.
SENATOR FROM MISSOURI
Vice Chairman Bond. Thank you, Madam Chair.
Although I didn't have the privilege of sitting in on the
hearing of the Judiciary Committee, I've had a very good
discussion with Mr. Kris and I welcome you here today on your
nomination to be the next Assistant Attorney General for
National Security.
As I believe the Chair and I agree, it's extremely
important that we establish early on a close working
relationship, because your position is one which is critical in
our relations with the Department of Justice and your advice
and counsel and sometimes our advice, wanted or unwanted, is
important to be able to exchange.
I extend a very special welcome to your wife, Jody, and I
commend you, Mrs. Kris, for your dedicated support. Most
spouses only have to sit through one confirmation hearing for a
given position, but two hearings, while necessary in this case,
may border on, if not cruel and unusual punishment, at least
excessive testing of one's sense of humor.
You will be the third Assistant Attorney General, Mr. Kris.
Ken Wainstein, Pat Rowan, and the dedicated men and women of
the National Security Division really deserve our gratitude and
praise for their tireless efforts to stand up this new division
within the DOJ while continuing to provide crucial legal
services to the intelligence community and in many instances to
Congress.
For example, NSD has already played an essential role in
making important revisions to national security legislation and
policy during the passage of the Protect America Act and its
successor, the FISA Amendments Act, in which I was somewhat
involved. Attorneys from that National Security Division
provided key technical assistance to me and advice to the
Committee. And the attorneys also participated in revision of
Executive Order 12333 and the Attorney General's guidelines for
domestic FBI operations.
Just as important, NSD has essentially eliminated the pre-
existing backlog of FISA applications so that the FISA process
is now running smoothly.
Now in your hearing with the Judiciary Committee, you laid
out three procedural and three substantive areas on which you
intend to focus on the short run, the procedural areas--
strengthening internal relationships within components of the
NSD, the external relationships within the IC, including the
FBI. These are necessary and important. And the three
substantive areas you identified also are of particular concern
to the Committee--Guantanamo Bay, the FISA Amendments Act and
the FBI Domestic Operations Guidelines. I suggest there may be
a fourth area requiring your immediate attention--the FISA
provisions that are due to sunset this year as part of the USA
PATRIOT Act.
Now in our meeting we discussed these issues and I was very
much impressed with your knowledge of the subject matter and by
the caliber of the individuals who are supporting your
nomination. You have some good friends and have some people on
which you really have some goods. I believe that you're
particularly well qualified for this position and therefore I
welcome your nomination and look forward to supporting it.
I agree with the Chair that, barring any reason that we
don't know about, it's important for the Committee and the
Senate to move quickly so you can get to work. And another
advantage to moving quickly is that the Attorney General will
be able to designate you as one of the officials who can
certify FISA applications. Experience has shown that this added
flexibility is essential.
Mr. Kris, I congratulate you on your nomination, and look
forward to your testimony and to working with you to ensure
that the National Security Division continues to provide
outstanding legal support to the Department of Justice, the
intelligence community and Congress.
Thank you, Madam Chair.
Chairman Feinstein. Thank you. Thank you very much, Mr.
Vice Chairman. I appreciate your comments.
Before beginning the first round of questions, if you have
an opening statement, would you like to give it at this time?
STATEMENT OF DAVID S. KRIS, ASSISTANT ATTORNEY GENERAL FOR
NATIONAL SECURITY-DESIGNATE
Mr. Kris. Yes, thank you.
Madam Chairman, Vice Chairman Bond and Senator Rockefeller,
it's an honor to appear before you.
In my opening statement to the Judiciary Committee a few
weeks ago, I outlined these three sets of issues, procedural
and substantive, and I agree with you Senator Bond, the FISA
sunsetting provisions is probably a fourth area. And I won't
elaborate on those here.
I did also say before the Judiciary Committee that I wanted
to respond appropriately and quickly to Congressional oversight
and maintain strong cooperative relationships with the
Judiciary Committee and other committees. And I do want to say
the same thing, with some emphasis and elaboration, before this
Committee.
I haven't studied all of the history and law of
intelligence oversight, but I think I do appreciate its
fundamental importance to our democracy, and especially the
critically important role of this Committee and its counterpart
in the House in helping to resolve the tensions that sometimes
inevitably will arise between, on the one hand, the need to
protect classified sources and methods and, on the other hand,
the fact that we live in a democracy that rests fundamentally
on the knowledge and consent of the governed. And I think these
committees--Americans depend on this Committee and the House
Intelligence Committee to provide the kind of oversight that
the public itself cannot provide.
And I'm aware of the fact that the Committee cannot fulfill
that function unless we in the Executive Branch in turn fulfill
our requirement to keep it fully and currently informed. As CIA
Director Panetta said, this is not optional; this is the law
and it is our solemn obligation to meet it.
And so I want to join Director Panetta and Admiral Blair,
in expressing my desire to build a close working relationship
with the Committee. I think this will be good for democracy,
and I think it will be good for the National Security Division.
So thank you very much.
[The prepared statement of David S. Kris follows:]
Prepared Statement of David S. Kris
Madame Chairman, Vice Chairman Bond, and distinguished Members of
the Committee, it is an honor to appear before you. I am grateful to
President Obama for nominating me, to Attorney General Holder for
supporting me, and to the Committee for considering me. I also
appreciate the Members who met with me prior to this afternoon.
In my opening statement before the Judiciary Committee two weeks
ago, I identified three procedural issues, and three substantive
issues, on which I hope to focus if confirmed, subject to the important
caveat that I remain an outsider, without detailed knowledge of certain
classified and operational matters. At the risk of repetition for the
Members who serve on both Committees, I thought I would mention those
issues again, and then devote the balance of my time to discussing what
I see as the special and vital oversight role of this Committee.
The three procedural issues I identified are (1) continuing to
strengthen internal connections among NSD's various components; (2)
focusing on NSD's relationships with the NSC and the Intelligence
Community; and (3) continuing the positive evolution of NSD's working
relationship with the FBI. My answers to some of your questions for the
record address these issues in more detail.
The three substantive issues I identified are (1) Guantanamo Bay;
(2) the FISA Amendments Act; and (3) the new FBI Domestic Operations
Guidelines. Again, my answers to questions for the record discuss these
matters in more detail, and I am happy to discuss them here if there
are additional questions.
When I went before the Judiciary Committee, I said that I wanted to
respond appropriately and quickly to Congressional oversight, and
maintain strong, cooperative relationships with it and with other
Committees. I want to say the same thing, with emphasis and
elaboration, before this Committee.
While I have not studied all of the history and law of intelligence
oversight, I do understand its fundamental importance to our democracy.
And I especially appreciate the critical role of this Committee (and
its counterpart in the House of Representatives) in helping to resolve
the tensions that sometimes arise from the need to protect classified
sources and methods in a system of government that rests fundamentally
on the knowledge and consent of the governed.
Americans count on the Committee to provide oversight that the
public cannot provide. The Committee, in turn, cannot fulfill that
function unless we fulfill our requirement to keep it ``fully and
currently'' informed. As Director Panetta said, this is not optional;
it is the law; it is our solemn obligation. So I want to join Director
Panetta, and Admiral Blair, in expressing my desire to rebuild a close
working relationship with the Committee. I think this will be good for
democracy, and also good for NSD--there is a lot of expertise in this
hearing room. We maynot always agree on everything, and I know that you
will question, challenge, and hold us accountable when appropriate, but
I am quite sure that we are at our strongest, and our best, when we
work together, and if confirmed I look forward to doing that.
Again, I want to thank the Committee for holding this hearing. I
would be pleased to answer your questions. Thank you.
Chairman Feinstein. Thank you very much, Mr. Kris.
Before beginning the first round of questions, I have some
procedural questions to ask you. A yes-or-no answer will
suffice.
If confirmed, Mr. Kris, do you agree to appear before the
Committee here or in other venues, if invited?
Mr. Kris. Yes.
Chairman Feinstein. Do you agree to send officials from the
National Security Division to appear before the Committee and
designated staff when invited?
Mr. Kris. Yes.
Chairman Feinstein. Do you agree to provide documents or
any other material requested by the Committee in order for it
to carry out its oversight and legislative responsibilities?
Mr. Kris. Yes.
Chairman Feinstein. Will you ensure that the National
Security Division provides such material to the Committee when
requested?
Mr. Kris. Yes.
Chairman Feinstein. And do you agree that you will inform
and fully brief, to the fullest extent possible, all members of
the Committee of intelligence activities, rather than only the
Chairman and Vice Chairman?
Mr. Kris. Yes, in keeping with law, yes.
Chairman Feinstein. Thank you very much.
Let me begin my questions. The FISA Amendments Act was
signed into law in July 2008. It provides for annual
authorizations by the Attorney General and the DNI for the
collection of foreign intelligence targeted against persons
reasonably believed to be located outside the United States.
Starting this summer, the next Assistant Attorney General for
National Security will have responsibility for presenting to
the FISA court the certifications and supporting material for
the annual renewal of collection authority.
Having looked at the legislation, what questions do you
intend to ask about the targeting and minimization procedures?
Have you considered what the Attorney General guidelines, also
required in the FISA legislation, should be?
Mr. Kris. Well, Senator, I appreciate very much that
question, and as we've discussed, the FISA Amendments Act is at
the top of my list of things to do if I am fortunate enough to
be confirmed. I'm a little bit at a disadvantage in
anticipating all of the things that I will want to do if I am
confirmed in this area, because in my current posture I am not
aware of the classified information about the implementation of
the FISA Amendments Act, and I do think that this is a statute
that is both very complex, very broad and very important to
understand the ground truth of the implementation.
Chairman Feinstein. My question was limited to the
minimization and targeting.
Mr. Kris. Yes. With respect to the targeting procedures, I
would really want to understand technologically what kinds of
safeguards there are to ensure that there is a reasonable
belief about the location of the target. There are provisions
in the Act, as you know, that forbid the intentional
acquisition of known domestic communications, and I would want
to understand very much how those safeguards are being
implemented.
I have written publicly about the difficulty in identifying
the location of communicating parties in the world of modern
mobile communications and web-based communications, and I would
be very interested to know how they are overcoming those kinds
of difficulties to be able to form a reasonable belief about
the location of a party.
And, with respect to minimization, I think I would be
particularly interested in, first, protection for U.S.-person
identifiers, to the extent they are incidentally acquired, and
how the minimization procedures differentiate between non-U.S.-
person and U.S.-person identifiers and identities, because I
think that's also increasingly challenging in the world that
we're living in today.
Chairman Feinstein. Well, I would hope to discuss this with
you, and the Vice Chairman may want to as well, as soon as you
become familiar.
Vice Chairman Bond. I think we'd best discuss this in a
classified session.
Chairman Feinstein. Yeah. Well, that's what I essentially
said.
By its first anniversary in July, the FISA Amendments Act
also requires completion of a comprehensive IG review of the
terrorist surveillance program. The report is to be
unclassified but may include a classified annex. Many in
Congress supported the FISA legislation because there would be
this review by the IG of the terrorist surveillance program.
That was a way to ensure that there would be a fact-finding
effort, given that the immunity provision in the bill ensured
that the courts would not be a venue for this effort.
The Assistant AG for National Security could well have an
important role in the declassification process for the IG
review. What do you expect that role to be in the
declassification process?
And secondly, what standards--and this is in general, but I
think it's important because there's a lot of discussion among
us on this point--what standards would you apply to the
declassification process, including what weight, you mentioned
this, should be given to the interest in public information
about a program, particularly in light of the action of
Congress to bring to a conclusion litigation against electronic
communications service providers?
Mr. Kris. Thank you, Senator.
I feel very strongly that, in general, we are well served
when information about our intelligence operations can be made
public, consistent with the obvious need to protect classified
information. And, as the author of a book in this area and a
teacher of law school classes, I do feel personally sympathetic
to the desire to produce as much information publicly as can be
produced. So, I have a very strong sort of support for that
general principle.
In terms of the Inspector General reports and my role in
them, I would think--obviously, subject to the Attorney
General's direction--that the National Security Division and
the Assistant Attorney General would play a role in reviewing
and serving as a ``bridge,'' I think you said, between the
agencies, whose operational equities may be at stake, and the
Inspector General, who wishes to publicize as much as possible,
and do a little testing on assertions that information is
classified, and try to help facilitate and broker a
constructive arrangement to settle any differences that might
occur.
So, that's, in the abstract, without having consulted with
the people involved there, I think what I would see the role
for NSD to be there.
Chairman Feinstein. Thank you very much. My time is up.
The Vice Chairman.
Vice Chairman Bond. Thank you very much, Madam Chair. And I
know that Mr. Kris has extensive experience in this area, and I
believe you understand the declassification area.
Last week this Committee initiated a bipartisan study of
the CIA's detention and interrogation program--not designed for
political theater, for a deconstruction of the legality of the
program, which would fall outside of our Committee's
jurisdiction. Rather, the Committee's focus should and will be
on CIA's action, with our ultimate purpose being to shape
detention and interrogation policies moving forward.
But, you will be in a different position than we are, if
confirmed, so I'd like to know, do you think the DOJ should
conduct criminal investigations of individuals involved in the
program, who acted in accordance with procedures approved by
the Office of Legal Counsel and authorized by the President of
the United States?
Mr. Kris. Senator, a two-part answer to that question: The
first is that, as your question indicates, no one is above the
law----
Vice Chairman Bond. Right.
Mr. Kris [continuing]. And prosecutorial judgments of this
kind are always fact-intensive. But what you said was, can you
imagine prosecution of people who followed in good faith and
reasonably relied on authoritative pronouncements from the
Justice Department about what the law is? I think there a
second principle begins to apply, that I think, in light of
settled doctrines--advice of counsel, due process concerns, not
to mention the Military Commissions Act immunity provision that
Congress enacted--I think it would be very difficult to imagine
a prosecution of someone who really was told by the Justice
Department ``what you're doing is legal,'' even if the Justice
Department later changes its mind.
Vice Chairman Bond. If senior Executive Branch officials
authorized the detention and interrogation program, should they
be prosecuted?
Mr. Kris. I think the same answer would probably apply to
that question, Senator.
Vice Chairman Bond. What about the lawyers who wrote the
OLC opinions?
Mr. Kris. I am not aware--same answer, but with an
additional modifier, which is I think that the lawyers, it's
even, perhaps, more difficult to figure out how you would make
that fit.
Vice Chairman Bond. We lawyers always take care of our own
and make it difficult to proceed against one another.
On the PATRIOT Act, I know you were heavily involved in the
passage of the PATRIOT Act. Three provisions of the Act related
to FISA are due to sunset this year--the lone wolf, roving
wiretap authority, and Section 215 business records court
order. Do you believe that each of these provisions should be
made permanent? And how much weight do you believe should be
given to the frequency with which a particular provision has
been used?
Mr. Kris. This is an area where, being an outsider, it's
difficult to know, because one of the things I'd want to know,
if I am confirmed, would be: How have these been used? How
often? Have they been misused? If so, how often? Are there
possible uses that people can think of that actually haven't
happened but could happen?
Frequency of use would be one factor, but lack of frequency
would not necessarily mean that the provision ought not be
renewed or made permanent. I just would want to see what the
operational environment is, and the importance of the
provision, as well as its frequency of use.
Vice Chairman Bond. Well, that leads me to a follow-up
question. If a particular authority has not been used because
of unnecessary administrative burdens, would you review that
with an eye to cutting out extra red tape and analysts so that
the authority would be usable, if it were held up by reason of
excessive regulation?
Mr. Kris. Yes. I would certainly want to look at that.
Vice Chairman Bond. You were involved in the revision of
2003 National Security guidelines that knocked down the walls
between criminal and national security. I think you've had an
opportunity to review the newly revised AG guidelines for
domestic FBI operations--which, in my opinion, hit home the
point that the FBI should be able to use all of the tools in
its toolbox.
What are your opinions of these guidelines? Can you see any
reason why the FBI shouldn't use the same tools to track down
terrorists as it uses to catch white-collar criminals or drug
dealers?
Mr. Kris. As I said in my opening statement and in my
questions for the record, I think there are several elements of
the new guidelines that I support. One is the unification, the
transparency--they're more public than they used to be. I think
they reflect the FBI's evolution into a security service, which
I think is a good thing; and I think they reflect an increasing
evolution of the operational partnership between DOJ and the
FBI, all of which is a good thing.
I have some questions about how they apply in practice, and
that's an area that I'd want to explore if I am fortunate
enough to be confirmed, but I do think the elements that I
mentioned are positive about these guidelines.
Vice Chairman Bond. Thank you, Mr. Kris.
Thank you, Madam Chair.
Chairman Feinstein. Thank you very much, Mr. Vice Chairman.
Senator Rockefeller.
Senator Rockefeller. Thank you, Madam Chair.
Mr. Kris, if you're an American citizen reading a
newspaper, and you read that the leadership of Intelligence
Committee has been fully briefed on a subject--I'm in FISA now,
okay?----
Mr. Kris. Okay.
Senator Rockefeller [continuing]. Fully briefed, what do
you, as an American citizen, tend to feel?
Mr. Kris. I think I feel good, if that's true.
Senator Rockefeller. Well, that is my second question. Do
you know anything about the briefing process?
Mr. Kris. Yes, a little bit, yes.
Senator Rockefeller. Do you feel the word ``fully briefed''
is applicable?
Mr. Kris. I'm sorry, the standard is ``fully and currently
informed,'' and I think that standard applies without----
Senator Rockefeller. And I was going to ask that to you
about keeping the Intelligence Committee, in general, up to
date.
Mr. Kris. Yes, sir.
Senator Rockefeller. I'll just tell you that the whole idea
that we were fully briefed or fully advised is a farce. And it
was from the beginning--the very first to the very end. Now,
that, I just wanted to ask.
When you use the words ``fully and currently informed'' as
keeping the Intelligence Committee briefed, understanding that
intelligence does not belong to the Intelligence Committee but
it belongs to the Executive Branch and, therefore, the
Executive Branch only gives us what they want to give us, a
tactic which was used quite deftly in the last administration--
and I hope won't be in this--what is your understanding of
``fully and currently?''
Mr. Kris. Well, in my questions for the record, Senator, I
gave some discussion of this and I actually quoted from the
legislative history of FISA, where there's a discussion of the
standard.
I think it anticipates and it involves a very robust and
cooperative relationship where the Committee gets access to a
tremendous amount of information in a timely way. I mean, the
details of it may depend in the particular circumstance.
There's legislative history, for example, that the Committee
may not always want to get the names of human sources or
individuals involved, certain tactical information about troop
movements. But, short of that, I think the standard, as I
understand it, calls for a very robust exchange of information
between the Executive branch and the Committees. That's why the
Committees were established.
Senator Rockefeller. Do you know the term ``gang of
eight''?
Mr. Kris. I do.
Senator Rockefeller. Which could be gang of four, gang of
eight, gang of whatever.
Do you have any idea how often we met since----
Mr. Kris. Not really.
Senator Rockefeller [continuing]. Senator Bond and I were
both Chairman and Vice Chairman at different times, and we
participated in these.
Mr. Kris. I don't, honestly. I'm sorry.
Senator Rockefeller. Very infrequently--very infrequently.
And usually to inform us of something which was not actually
germane to the overall intelligence purpose, except to pump us
up a little bit.
So is it your understanding that gang of eight
notifications are meant to be rare and temporary or that the
gang of eight is a little bit obsolete in that it gives you a
way of going over the Intelligence Committee and just saying,
well, you briefed two in the Senate and two in the House and so
that's that?
Mr. Kris. No. The former, Senator, is my understanding.
Yes.
Senator Rockefeller. That's fine. Thank you.
Chairman Feinstein. Thank you very much, Senator.
Senator Wyden.
Senator Wyden. Thank you, Madam Chair.
And Mr. Kris, welcome.
Let me ask you first about national security letters. The
Department of Justice's Inspector General uncovered in the past
fairly significant levels of misuse of this authority. And my
understanding is that some steps have been taken to address
this concern. But I think what I'd like to know is, are you
convinced at this point, based on what you know, that
everything necessary has been done to prevent misuse of
national security letter authority in the future?
Mr. Kris. That's an excellent question and it's a very
important area. The short answer is I am not--from where I sit
now--thoroughly convinced that everything that should be done
or that could be done has been done. I just don't know enough.
I was also very troubled by the disclosures in the March
2007 IG report. I was somewhat heartened by the corrective
measures identified in the March 2008 report, but I think that
report contemplated that the work would be ongoing. This is
something that I would want to look into if I was confirmed,
but I'm not sitting here now totally confident that everything
has been done.
Senator Wyden. Can you get back to the Committee, through
the Chair and our Vice Chairman, within, say, 30 days, if
confirmed, with your opinion as to whether additional steps are
necessary to prevent misuse of national security letter
authority?
Mr. Kris. I will certainly try to do that, yes.
Senator Wyden. Very good.
The second issue I want to ask you about involves a process
for reviewing, redacting and publishing key opinions from the
FISA court. These are, of course, authoritative rulings with
enormous impact. And I very much would like to see a process
for regular review of these opinions, taking steps to put in
place redactions and whatever is necessary to protect
operations and methods, but to make the opinions public.
I think the American people have a right to this, as long
as steps are taken to protect our national security and our
nation's wellbeing. Would you be willing to work with this
Committee to set in place a process of this nature?
Mr. Kris. Absolutely, yes. I will work with you on that.
Senator Wyden. All right. That's very helpful.
And I think the last question involves what essentially are
these Linder letters--these letters that reflect the FBI
position with respect to briefing the Committee on terrorism
and counterintelligence investigations.
Now, my sense is that the FBI feels it shouldn't brief, the
community shouldn't brief the Congress, because it in some way
would jeopardize an ongoing criminal investigation or
prosecution. I know of no member of this Committee--neither a
Democrat or a Republican--who would ever want to get in the way
of one of those ongoing investigations and prosecutions. But
I've got to think there is a way to structure briefings from
the FBI and the DOJ for this Committee that can go forward
without compromising these investigations and prosecutions.
If you're confirmed, would you commit to following up with
the Committee and the FBI to address this issue?
Mr. Kris. Yes, I will be happy to do that.
Senator Wyden. All right. I look forward to working with
you. I believe you're going to be confirmed. You're certainly
going to have my support. And I appreciated our discussion, and
my sense is that you're going to work in a very bipartisan way,
which is something I feel very strongly about and I'll look
forward to pursuing these issues with you.
Thank you, Madam Chair.
Chairman Feinstein. Thank you very much.
Senator Rockefeller. And my support as well.
Chairman Feinstein. Thank you very much, Senator Wyden.
Senator Feingold, you're next, and then Senator Chambliss.
Senator Feingold. I thank the Chair.
Mr. Kris, let me congratulate you again.
On September 25, 2001, John Yoo of the OLC sent you a memo
purporting to analyze the constitutionality of proposed PATRIOT
Act provisions. However, Yoo's memo, which the Department of
Justice recently made public, also answered a question you
hadn't actually asked. It argued that ``as national security
concerns in the wake of the September 11th attacks have
dramatically increased, the constitutional powers of the
Executive branch have expanded, while judicial competence has
correspondingly receded.''
As one of the Justice Department lawyers looking at that
time right after 9/11 to work through the FISA court, what do
you think of the assertion that judicial competence had
receded?
Mr. Kris. I think the Supreme Court has made very clear
that September 11th did not trigger a radical rebalancing of
our constitutional system of shared and separated powers. And
I'm thinking of the decisions in Hamdi, Hamdan and Gumadeen. I
think all reflect the view that judicial competence has not
receded.
Senator Feingold. Thank you.
Mr. Kris, in response to written questions posed to you
before this hearing, you indicated that there was nothing in
the FISA statute to indicate that the President could disregard
it. Is that accurate?
Mr. Kris. Yes, it is. There is nothing in FISA to suggest
the President may disregard the statute. On the contrary.
Senator Feingold. Thank you. In other words, any violation
of FISA would be clearly in the third category of the Jackson
test, which you just alluded to and would constitute what you
have called a ``grave and extraordinary'' act, one that has
never been upheld by the Supreme Court. Is that a correct
summary of your views?
Mr. Kris. Yes. I am not aware of any case in which the
Supreme Court has upheld the exercise of a commander-in-chief
power in category three.
Senator Feingold. Mr. Kris, you testified in the Judiciary
Committee you could not evaluate the constitutionality of the
warrantless wiretapping program without the facts. And I
appreciate that as a careful lawyer you would not want to give
advice to your client without access to all the relevant
information. But for purposes of this hearing, let us work with
the facts as stipulated by the Bush Administration.
The government wiretapped communications into and out of
the United States without the warrant required by FISA. It did
so under a lesser standard than that which is required by the
court. ``The trigger is quicker and a bit softer than it is for
a FISA warrant'' was how General Hayden put it. And they did
all this for over five years.
Can you even imagine some fact known only to those read
into the program that might render these acknowledged
activities legitimate assertions of Article 2 authority?
Mr. Kris. Senator, you're right. I do try to be a careful
lawyer, in part because of the grave and extraordinary nature
of the question that is being posed. But I will say, based on
your description sitting here right now, I cannot think of any
facts that would make that TSP constitutional in 2005 when it
was revealed.
And I think the FISA Amendments Act shows that Congress,
when informed of a problem, is capable of responding, which
moves the President from category 3, as you know, into category
1, where he's strongest and where I think, at least, the
government as a whole is at its best.
Senator Feingold. Thank you for your clear and encouraging
answers and I wish you well.
Chairman Feinstein. Thank you very much, Senator Feingold.
Senator Chambliss.
Senator Chambliss. Thank you, Madam Chairman.
Mr. Kris, I don't want to duplicate what has been before,
but you and I had a conversation about the PATRIOT Act and the
provisions that are expiring. And I wish you'd just go back
through that for the record and talk about these expiring
provisions, what your position is on them, and your experience
in helping actually draft those provisions.
Mr. Kris. Yes, sir. Thank you, Senator.
I did speak just briefly to this before. I think it's
important to understand--and one of the things I would want to
do if I'm confirmed is to understand the ground truth--how
these provisions have been used or how they could be used and
whether they've been misused or could have been misused. I'd
want to understand the operational reality before making a
judgment one way or the other about whether they ought to be
changed or continued. And those are the kinds of things I would
want to look into if I were fortunate enough to be confirmed.
Senator Chambliss. One thing we talked about was the roving
wiretap. And I remember your comment was just as you stated
there. You wanted to see how it had functioned from an
operational standpoint. But it may be one of those things that
we might not need with the emergency procedures that are set
forth in the revised Act.
I would only comment to you that--and I know you will look
at it closely--but those emergency procedures would not give
the intelligence community the same ability to follow that
individual phone-to-phone without going back to the FISA Court
to get a new emergency warrant. So the roving wiretap still is
one of the more valuable types of tools that I think--I hope at
least--that you will find is something that is critically
important to our folks.
Mr. Kris. Yes sir.
Senator Chambliss. With respect to Gitmo, again I don't
want to duplicate what's been said but I know you understand
the seriousness of the remaining prisoners that are there. You
were very direct in our conversation that you want to make sure
that the right thing is done and that the President has
identified three different categories of prisoners that these
folks at Gitmo would fall into.
I would simply say that I am very much concerned about the
potential for any of these remaining 240, or whatever the
number may wind up being at the end of the day when there is
final closure to Gitmo, coming to the United States, being on
U.S. soil, having the benefit of not just the same criminal
assets that any common criminal in the United States might
have, but maybe even greater assets than a common criminal
would have. And the potential for those folks being released on
U.S. soil into our society scares me to no end.
And I would simply say that--again, you and I talked about
this but just for the record--any comments you have on the
release of prisoners from Gitmo, where you think they may go,
what may happen to them if they do come to U.S. soil.
Mr. Kris. Yes, Senator. This is obviously a very important
question and, as you mentioned, the Executive Order that the
President issued calls for an ongoing thoughtful, careful
review. And with respect to releasing any detainees at large
into the United States, I think I am substantially bolstered
and I think you should be and the Committee should be as well
by the D.C. Circuit's decision in the Kayemba case--which I
think really stands for the proposition and holds that unless
there's a statute that compels the release, the courts don't
have authority to order it.
So I think to have someone released at large in the United
States, if we believe they are genuinely dangerous, I think is
not a very plausible outcome at all.
Senator Chambliss. Thank you, Madam Chairman.
Chairman Feinstein. You're welcome, Senator.
I had one other question if I might, Mr. Kris. On March 2,
2009, as it was referred to earlier, the DOJ released a number
of OLC opinions from 2001 to 2002, and that was during the time
you were Associate AG.
One of those opinions was addressed to you and that was
dated September 25th, 2001, and entitled ``Constitutionality of
Amending Foreign Intelligence Surveillance Act to Change the
Purpose Standard for Searches.'' And this became the basis of a
15-page letter to the Senate Intelligence and Judiciary
Committees on October 1 of 2001.
On January 15, 2009, in a memorandum to the files also
released on March 2 of this year, Steven Bradbury, who was then
the Principal Deputy Assistant Attorney General for OLC, wrote
that a portion of your September 25th opinion did not reflect
the current views of OLC. The part that Mr. Bradbury addressed
had asserted the view that judicial precedence--approving the
use of deadly force in self-defense or to protect others--
justified the conclusion that warrantless searches conducted to
defend the nation from attack would be consistent with the
Fourth Amendment.
Did you review the entire September 25th opinion when you
received it?
Mr. Kris. I'm sure that I did. Yes.
Chairman Feinstein. Do you recall what your assessment was
of the deadly force argument?
Mr. Kris. Not really. I know I had some reservations about
the opinion, but I was very much focused on working with the
Congress to get the statutory change that we were seeking there
with respect to the Purpose Amendment and really wasn't focused
on at that time--especially in the immediate aftermath of
September 11th--on sort of these other kinds of questions
which, in hindsight, have taken on greater significance.
Chairman Feinstein. Did you discuss with anyone at DOJ any
reaction that you had at the time?
Mr. Kris. I want to be careful, both because it's a while
back and because I don't want to get into areas that might be
inappropriate for a public hearing.
Chairman Feinstein. I understand that. But you don't
recall? You don't remember?
Mr. Kris. Yes. I think I would like to take it up, if
possible, in a different setting.
Chairman Feinstein. Okay. What now is your assessment?
Mr. Kris. I think the analogy to the law of self-defense--I
agree at least with Mr. Bradbury's assessment of Mr. Yoo's
analysis there.
Chairman Feinstein. In what respect?
Mr. Kris. Mr. Bradbury's recent memo rejects that analogy,
and I certainly agree with that.
Chairman Feinstein. And you do as well?
Mr. Kris. Yes.
Chairman Feinstein. Did you become aware of or read at that
time any other opinions of OLC on matters relating to
surveillance at any time after September 11th until you left
the department in 2003?
Mr. Kris. I can think of one other opinion that I believe
has been made public that Mr. Yoo wrote for me which had to do
with the authority of the Deputy Attorney General to issue
approvals under Section 2.5 of 12333 with respect to U.S.
persons abroad. I mean, there may have been other opinions that
I've read. I have been authorized by the Department to say
publicly--and I have said publicly--that I was not read into
the terrorist surveillance program, the TSP, so I did not have
access to and still haven't seen those opinions, if any.
Chairman Feinstein. All right. Well, thank you very much
and, again, it is my intent to mark up this appointment on
Thursday. And if I may, Mr. Vice Chairman, I'm going to turn
the gavel over to you.
Vice Chairman Bond. It's exciting.
Chairman Feinstein. It is exciting isn't it? You're
welcome.
Vice Chairman Bond [presiding]. Thank you very much, Madam
Chairman. I think we're a very few minutes away from a vote, if
they maintain the schedule.
I would say, Mr. Kris, and for the record I had been
advised informally by former members of the Big Eight that
while the full Committee was not advised, the Gang of Eight was
fully briefed at the inception and during the conduct at the
Terrorist Surveillance Program prior to the time that those of
us on the full Committee were advised.
I also have a suspicion that you probably had a pretty good
idea what was going on, as some of us who visited with our
other particular locations where it was going on. But putting
that aside, on the national security letters, I've been
disappointed by some characterization of errors by the FBI
contained in Inspector General reports as ``abuses'' of NSLs. I
think we can all agree that exigent letters, which are not
NSLs, weren't used properly but we need to be careful about
what we characterize as abuses of the NSLs.
A good solution to eliminating the administrative errors
raised in the IG reports is one you presented to a House
subcommittee last year--create a single statute providing for
national security subpoenas to replace all of the current NSL
provisions.
If you are confirmed in this position, would you take a
serious look at the merits of having a single NSL statute and
report back to the Committee?
Mr. Kris. Yes, I would be happy to do that.
Vice Chairman Bond. I figured that was an easy one.
Turning to the media shield, do you believe that those who
leaked classified information, as well as journalists who
release it, should be prosecuted to the fullest extent of the
law?
Mr. Kris. Yes.
Vice Chairman Bond. There was a recent instance where there
was a published acknowledgment by someone who had access to
classified information and that they actually did release
classified information. If there is a public affirmation of a
leak, in general, is this the kind of thing that should
initiate action with appropriate resolution?
Mr. Kris. Yes, if I understand you correctly, yes.
Vice Chairman Bond. During the last Congress we heard
pretty strong objections from veteran DOJ prosecutors about the
negative impact the proposed Free Flow of Information Act,
known as Media Shield, could have on the ability to prosecute
those who leak classified information. Have you spoken with
veteran DOJ prosecutors and do you have a position on whether
this legislation should be supported?
Mr. Kris. Senator, I haven't spoken to any veteran
prosecutors about leak investigations recently, although when I
was there before I had some conversations, I'm thinking, with
Mr. Fitzgerald perhaps. I don't have an opinion on the
particular piece of legislation to which you refer.
I do know the Attorney General, in his Judiciary testimony,
expressed sort of a general support, subject to some important
caveats, one of which is the need to consult with professional
prosecutors in this area, and the other is the need not to
cripple our ability to do these leak investigations.
Vice Chairman Bond. Well, that was going to be my next
question.
Mr. Kris. Oh, sorry.
Vice Chairman Bond. I think those are two caveats that are
very important.
Mr. Kris. Yes.
Vice Chairman Bond. A couple of weeks ago, S.417, the State
Secrets Protection Act, was introduced. This troubles me
because it seems to water down the well-established state
secrets privilege and imposes some pretty steep barriers for
the government in trying to protect our national security
secrets. I believe in the past the DOJ has said that this would
harm our national security.
Do you think we need to codify the state secrets privilege?
Or should we preserve the long-standing common law approach?
Mr. Kris. Senator, that's something that I would like to
study if I am confirmed. I am aware of I believe it was a
letter from the Attorney General and the DNI in the last
Administration outlining some concerns, and I'd want to
consider those and the views of the professionals at the
Department before I would render an opinion on that question.
Vice Chairman Bond. Thank you, Mr. Kris. I'll now turn to
Senator Chambliss for his questions.
Senator Chambliss. I don't have anything further.
Vice Chairman Bond. Well, I do happen to have a few more.
And for all of my colleagues who were not here we will ask that
any--and I ask the staff present--if they have any further
questions of Mr. Kris, please get them in by 5:00 today, so you
have a full hour-and-a-half, if there's anything you really
need to know. But as of that time our harassment and
questioning will end.
Mr. Kris, House version of the stimulus bill contained a
version of whistleblower protection that has been opposed by
both the Clinton and Bush Administrations, in part because of
how the legislation handles issues like security clearances and
classified information. Fortunately, the provision was stripped
out. Do you see any need for modifying the current laws
providing whistleblower protection?
Mr. Kris. That is also an area that I would want to study
and understand better before taking a position.
Vice Chairman Bond. And on to my favorite area; do you
believe the President has the inherent authority under Article
II of the Constitution to engage in warrantless foreign
intelligence surveillance? Or, in your opinion, does FISA trump
Article II?
Mr. Kris. I don't think any statute can trump the
Constitution, Senator.
Vice Chairman Bond. Thank you.
What is your view of the FISA Amendment's Act, including
carrier liability protections?
Mr. Kris. Well, as a general matter, it appears to me that
the FISA Amendments Act was the product of kind of a bipartisan
compromise. I think it is a new and very important statute with
a broad grant of authority and I think it underlies an
extremely important collection program. I don't know, from
where I sit now, exactly how it functions and that is something
that I have said I would want to focus on very, very early on
if I were to be confirmed.
I think it's an important statute and I really want to
understand how it operates and see whether there are
improvements that need to be made in that area or whether
everything is working well.
With respect to the immunity, I think that's probably an
issue that will be handled, in the first instance anyway, by
the Civil Division rather than the National Security Division.
But, as I understand it, Attorney General Mukasey has
certified, Attorney General Holder has said he would not
withdraw the certifications absent something truly
extraordinary. And as I understand DOJ's public statements,
they are not withdrawing and are defending the
constitutionality of the immunity provision.
Vice Chairman Bond. And when you have an opportunity to
review the operation of it, I would ask for your comments, if
you would share with us whether it was a good idea to put
Section 2.5 from Executive Order 12333 into FISA.
And I'd also like your advice on whether it should be made
permanent. I will not be around to worry about the permanency
but perhaps it would save the Department of Justice and quite a
few members of the intelligence community some problems if it
were made permanent, knowing that it can always be amended.
Mr. Kris. Yes, sir.
Vice Chairman Bond. When you were at the DOJ during the
Clinton and Bush Administrations did you support the use of
extraordinary renditions to other countries, including Egypt?
Mr. Kris. I don't really recall ever working on rendition,
so I don't think I had much involvement in it that I can
remember anyway, sitting here today.
Vice Chairman Bond. Do you have an opinion on whether
extraordinary renditions should remain in the intelligence
community toolbox?
Mr. Kris. I think in talking about rendition, it's helpful
to break it down a little bit. I mean, renditions, say, to this
country for judicial process is one thing.
Vice Chairman Bond. And rendition back to the country, the
home country of the person who is detained. And another form of
a rendition, extraordinary rendition refers to returning the
person to a third country.
Mr. Kris. I think there you have to be concerned about
adhering to our international obligations and treaties, and you
want to get assurances that there won't be improper action
taken against the person in the receiving country. And I think
this is part of the study that President Obama has ordered in
the third of his Executive Orders on January 22.
I don't want to prejudge the results of that study, but you
can imagine the kinds of factors that would be considered--to
include what kind of assurances, from whom, and to whom and so
forth. And I imagine that will be part of that review.
Vice Chairman Bond. Since the September 11 terrorist
attacks, a number of applications for electronic surveillance
or physical search approved by the FISA court have increased
almost two-and-a-half times; the actual number I don't think we
need to get into. We've heard some concerns the increase means
that less attention is being given to U.S. persons privacy,
that the FISA court is simply a rubber stamp. Based on your
experience at DOJ and with the FISA court, do you have any
reason to be concerned that FISA is not being utilized
appropriately or administered appropriately by the FISA court?
Mr. Kris. No. On the contrary, my experience when I was
there was that the FISA court was not a rubber stamp. I can
safely assert that.
Vice Chairman Bond. Finally, it's been DOJ practice to
present FISA business record applications to the FISA court.
Unlike other FISA applications, Section 215 applications are
submitted only by FBI officials, not by the DOJ. Now, I
understand there have been delays in getting these applications
through the DOJ administrative process, and I believe it would
speed things up if the FBI national security law branch
attorneys could appear before the FISA court and present the
applications themselves, given that the business record
applications are submitted only by the FBI without any need for
Attorney General certification.
Do you see any reason why FBI lawyers shouldn't be allowed
to present applications directly to the FISA court?
Mr. Kris. That is something I would certainly want to go
back and discuss with the FBI lawyers and with the DOJ lawyers
before taking a position on it. I do know about the delays that
you've talked about. I've read about them in the unclassified
IG reports. And I share your concern about that. It's something
I would want to address if and when I'm confirmed.
Vice Chairman Bond. Well, Mr. Kris, if you will answer any
questions that come in promptly, we hope to vote on your
nomination Thursday afternoon and get the confirmation process
completed as quickly as possible so we can get to work on our
areas of mutual concern.
I thank you very much for being willing to undertake this
position. I wish you well and look forward to working with you.
The hearing is adjourned.
Mr. Kris. Thank you very much, Senator.
[Whereupon, at 3:27 p.m., the Committee adjourned.]
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