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31-315 PDF 2007

S. HRG. 109–809

NOMINATION OF KENNETH L. WAINSTEIN TO

BE ASSISTANT ATTORNEY GENERAL FOR

NATIONAL SECURITY

HEARING

BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 16, 2006

Printed for the use of the Select Committee on Intelligence

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/senate

(II)

SELECT COMMITTEE ON INTELLIGENCE

[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

MIKE DeWINE, Ohio

CHRISTOPHER S. BOND, Missouri

TRENT LOTT, Mississippi

OLYMPIA J. SNOWE, Maine

CHUCK HAGEL, Nebraska

SAXBY CHAMBLISS, Georgia

CARL LEVIN, Michigan

DIANNE FEINSTEIN, California

RON WYDEN, Oregon

EVAN BAYH, Indiana

BARBARA A. MIKULSKI, Maryland

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

(III)

CONTENTS

Page

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

WITNESSES

Wainstein, Kenneth L., Assistant Attorney General for National SecurityDesignate ....................................................................................................... 6

Prepared statement ................................................................................... 7

SUPPLEMENTAL MATERIAL

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

(1)

NOMINATION OF KENNETH L. WAINSTEIN TO

BE ASSISTANT ATTORNEY GENERAL FOR

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 Wainstein.

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 spirit.

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.

STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR

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

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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.

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OPENING STATEMENT OF HON. PAT ROBERTS, CHAIRMAN,

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 Justice.

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 Berkeley.

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

4

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 others.

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.

OPENING STATEMENT OF HON. CARL LEVIN, A U.S. SENATOR

FROM MICHIGAN

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.

5

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 AlVerDate 11-MAY-2000 11:43 Feb 27, 2007 Jkt 031315 PO 00000 Frm 00009 Fmt 6633 Sfmt 6621 C:\DOCS\31315.TXT DianeA PsN: DianeA
6

exandria, 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 corruption.

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 confirmation.

Chairman ROBERTS. And you may begin, sir, with your statement.

STATEMENT OF KENNETH L. WAINSTEIN, ASSISTANT

ATTORNEY GENERAL FOR NATIONAL SECURITY-DESIGNATE

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 capacity.

7

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 Justice.

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 Americans.

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 Committee.

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

8

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 relationship.

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 programs.

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 invited?

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 responsibilities?

9

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 liberties.

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

10

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 techniques.

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 that.

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

11

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 FBI.

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 statute.

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 years.

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

44

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 strongwilled 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 matters.

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.

45

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

which——

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 helpful.

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 proviVerDate 11-MAY-2000 11:43 Feb 27, 2007 Jkt 031315 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 C:\DOCS\31315.TXT DianeA PsN: DianeA
46

sions 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 here.

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 security?

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

47

involved in this field, your career will be a great success. And we

wish you well. We look forward to it.

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 trial?

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.

48

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 correct?

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.

49

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?

50

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

51

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 information.

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

that.

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 21⁄2 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 21⁄2 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

52

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?

[Laughter.]

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.]

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