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S. HRG. 110–407

NOMINATION OF JOHN A. RIZZO TO BE GENERAL

COUNSEL OF THE CENTRAL INTELLIGENCE

AGENCY

HEARINGS

BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JUNE 19, 2007

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.]

JOHN D. ROCKEFELLER IV, West Virginia, Chairman

CHRISTOPHER S. BOND, Missouri, Vice Chairman

DIANNE FEINSTEIN, California

RON WYDEN, Oregon

EVAN BAYH, Indiana

BARBARA A. MIKULSKI, Maryland

RUSSELL D. FEINGOLD, Wisconsin

BILL NELSON, Florida

SHELDON WHITEHOUSE, Rhode Island

JOHN WARNER, Virginia

CHUCK HAGEL, Nebraska

SAXBY CHAMBLISS, Georgia

ORRIN G. HATCH, Utah

OLYMPIA J. SNOWE, Maine

RICHARD BURR, North Carolina

HARRY REID, Nevada, Ex Officio

MITCH McCONNELL, Kentucky, Ex Officio

CARL LEVIN, Michigan, Ex Officio

JOHN McCAIN, Arizona, Ex Officio

ANDREW W. JOHNSON, Staff Director

LOUIS B. TUCKER, Minority Staff Director

KATHLEEN P. MCGHEE, Chief Clerk

(III)

CONTENTS

June 19, 2007

OPENING STATEMENTS

Page

Rockefeller, Hon. John D. IV, Chairman, a U.S. Senator from West Virginia ... 1

Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from Missouri ....... 15

Warner, Hon. John, a U.S. Senator from Virginia ................................................ 16

Prepared statement .......................................................................................... 16

WITNESS STATEMENT

Rizzo, John A., Central Intelligence Agency General Counsel-Designate ... 17

Prepared statement .......................................................................................... 20

SUPPLEMENTARY MATERIALS

Senate Select Committee on Intelligence Questionnaire for completion by

Presidential nominees .......................................................................................... 46

Response to pre-hearing questions for John A Rizzo ............................................ 61

Letter dated March 16, 2006 from Marilyn L. Glynn, Acting Director, Office

of Government Ethics to the Honorable Pat Roberts ........................................ 79

Financial Disclosure Report of John A. Rizzo ....................................................... 80

Memorandum dated December 7, 2005 from John A. Rizzo regarding ethics

agreement ............................................................................................................. 83

Letter dated July 10, 2006 from Anthony A. Lapham, former CIA General

Counsel .................................................................................................................. 4

Letter dated April 27, 2007 from Jeffery H. Smith, former CIA General

Counsel .................................................................................................................. 6

Letter dated May 8, 2007 from Tom Malinowski, Elisa C. Massimino, and

Morton H. Halperin of Human Rights Watch and Human Rights First ......... 8

December 2004 statement by President George W. Bush regarding

renditioning policy ............................................................................................... 34

(1)

NOMINATION OF JOHN A. RIZZO TO BE

GENERAL COUNSEL OF THE CENTRAL

INTELLIGENCE AGENCY

TUESDAY, JUNE 19, 2007

U.S. SENATE,

SELECT COMMITTEE ON INTELLIGENCE,

Washington, DC.

The Committee met, pursuant to notice, at 2:35 p.m., in room

SD–106, Dirksen Senate Office Building, the Honorable Jay Rockefeller (Chairman of the Committee) presiding.

Present: Senators Rockefeller, Feinstein, Wyden, Bayh, Feingold,

Whitehouse, Levin, Bond, Warner, and Snowe.

OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV,

CHAIRMAN, A U.S. SENATOR FROM WEST VIRGINIA

Chairman ROCKEFELLER. The hearing will come to order on the

nomination of John A. Rizzo to be General Counsel of the Central

Intelligence Agency.

Today the Committee meets to consider the nomination of said

Mr. John Rizzo to be General Counsel. Mr. Rizzo, we welcome you

today. Before we proceed to the opening statements and questions,

I want to recognize Mr. Rizzo’s wife, Sharon, who is accompanying

him.

Mr. Rizzo, would you like to introduce any other members of

your family?

Mr. RIZZO. Yes, thank you, Mr. Chairman.

Next to my wife, Sharon, is my son, James. Next to James is my

sister, Nancy, who has traveled a considerable distance to be here.

Next to Nancy is my step-daughter Stephanie Breed.

Chairman ROCKEFELLER. Well, we welcome you. The Vice Chairman and I both welcome you.

I also want to welcome our valued colleague, the distinguished

senior Senator from the State of Virginia, who will be introducing

Mr. Rizzo in just a moment.

Mr. Rizzo has worked in government service his entire career,

and has spent the last 31 years at the Central Intelligence Agency.

Starting as an attorney at the CIA’s Operations and Management

Law Division in 1976, Mr. Rizzo moved through a variety of offices

within the Office of General Counsel. He also spent 11⁄2 years in

the CIA’s Office of Inspector General, and more than 2 years in the

CIA’s Office of Congressional Affairs, where he was responsible for

coordinating, in that position, CIA communications with the congressional committees investigating the Iran-Contra affair. In

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March 1995, he was named Senior Deputy General Counsel. John

Rizzo has twice served as acting General Counsel when the General Counsel position became vacant—once from November of 2001

to October of 2002, and again from August of 2004 to this day.

Mr. Rizzo, we would like to thank you for your long government

service. We do appreciate it. We often fail to say that.

To understand why we are here today, it’s important that we

look at both the responsibilities of the CIA and the historical role

of the CIA’s General Counsel. The CIA’s intelligence capabilities

help us protect what we hold as fundamental to the American way

of life. Yet even with today’s great and immediate intelligence challenges, the CIA must constantly reaffirm the American principles

of commitment to law, integrity and accountability. The CIA’s General Counsel is at the heart of this balancing act.

Although the person selected to fill this position has only required the advice and consent of the Senate since 1996, key committees have long recognized the importance of having an independent general counsel who has the backing of a Presidential appointment and Senate confirmation. In 1976, the Church Committee recognized the ‘‘extraordinary responsibilities of the CIA’s

General Counsel to ensure that CIA activities are consistent with

the Constitution and law of the United States.’’ The Church Committee, therefore, recommended that the CIA General Counsel be

nominated by the President and confirmed by the Senate to protect

the General Counsel’s ‘‘independence of judgment.’’

In 1987, the Iran-Contra Committees concluded that the abuses

of Iran-Contra stemmed in part from the misguided perception of

certain government officials that worthy ends could justify violations of the law. The Iran-Contra Committees rejected this notion

and instead recommended strengthening the role of the CIA General Counsel by requiring Senate confirmation.

Congress ultimately acknowledged the importance of having a

Senate-confirmed General Counsel in 1996, as I indicated. In

amending the Central Intelligence Agency Act of 1949, Congress

accepted the Senate Intelligence Committee’s report that the confirmation process enhances accountability and strengthens the

oversight process.

Over a decade later, today’s hearing is timely in addressing the

difficult issues of accountability and oversight. As a country, we are

struggling to find the equilibrium between fighting terrorism and

protecting the liberties and the rule of law that define us as a nation. On the one hand, we do not want to deny CIA officers the

tools they need to do their job. On the other, we must recognize

that democracy and American values are at risk if we fail to live

up to our ideals.

The weight of this balance, interestingly, falls heavily on the

shoulders of the General Counsel alone. As the CIA’s activities are

largely carried out in secret, the General Counsel often makes legal

decisions without the benefit of public debate or the constraints of

public scrutiny. By necessity, the public must therefore trust that

the person in that position will ensure that the CIA’s activities are

consistent with both the spirit and the letter of the Constitution

and the laws of the United States.

3

Our country must have faith that the intelligence professionals

working to defend us have a General Counsel who defends them by

ensuring that they receive lawful guidance. However difficult it

may be to draw legal lines, it cannot be those on the front lines

who suffer from legal uncertainty. Equally so, it is those officers

who suffer when the institutional integrity of the agency is weakened by questionable legal decisions. Public trust and professional

respect are earned by navigating these very difficult paths.

Ensuring that the CIA follows the law is important to protect not

just the CIA and its intelligence officers, but also to protect the

image of the United States. Our international security depends on

upholding our ideals upon a world stage.

Although the Attorney General, through the Department of Justice and the Office of Legal Counsel, is ultimately responsible for

the legal decisions of the executive branch, the CIA’s General

Counsel has a responsibility to the CIA as an institution that the

Attorney General does not share.

The CIA General Counsel simply cannot rely on others to make

those legal decisions. The General Counsel must make independent, sound legal assessments to determine what will best serve

the CIA over the years to come. The Committee has a duty to make

sure that the nominee sitting at that desk has the qualities necessary to fill that important role.

Mr. Rizzo, we look forward to hearing your views about both past

challenges and the CIA’s future conduct. Your stewardship during

recent years as acting General Counsel provides you with a unique

insight into that position.

Following the open session, we will further explore the Office of

General Counsel’s role in important matters in recent years in the

closed portion of our hearing. The Committee has received letters

of support for Mr. Rizzo’s nomination from a number of his colleagues over the years, including CIA General Counsels Anthony

Lapham, who was one of my closest friends throughout life, and

Jeffrey Smith.

Mr. Lapham, who sadly passed away last year, served as CIA

General Counsel in the midseventies and saw the CIA through the

Church Committee’s investigations of its activities. Mr. Smith

served as CIA General Counsel from 1995 to 1996 and has since

been actively involved in the public debate on intelligence issues.

We also received letters expressing concern about Mr. Rizzo’s

nomination from Human Rights Watch, Human Rights First, and

the Open Society Policy Center. I ask unanimous consent that

these letters be placed into the record. Without objection, it is so

ordered.

[The letters regarding Mr. Rizzo’s nomination follow:]

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8

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Chairman ROCKEFELLER. I now recognize our distinguished Vice

Chairman Bond.

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE

CHAIRMAN, A U.S. SENATOR FROM MISSOURI

Vice Chairman BOND. Thank you very much, Mr. Chairman, and

I join with all my colleagues in wishing you happy birthday. But

due to popular demand, I will not lead singing. Mr. Chairman, I’m

not going to give away how old you are. But if I remember Missouri

law correctly, if you were a Missourian, you would qualify under

the State Historic Preservation Act as an historic artifact. And I

want to congratulate you on achieving that distinguished goal.

[Laughter.]

Vice Chairman BOND. A very special welcome to John Rizzo and

his family, and we’re delighted to have all of them with you today.

Friends, the events of September 11 clearly were a turning point

for our intelligence community. Faced with an enemy determined

to do harm to our country and our citizens, our intelligence agencies had to adapt to new operational and legal challenges, as well

as more public scrutiny. The Central Intelligence Agency has been

no exception. Its task of finding innovative ways to provide accurate and real-time intelligence, and to identify and neutralize those

with militant ideologies threatening us, cannot be understated. It’s

within that context that the Committee begins this hearing today.

As the CIA adapts its methods and priorities to fight the war on

terror, its intelligence collectors and analysts must be fully instructed on and follow the Constitution and the laws of our land.

In other words, they need good, strong legal guidance. Therefore,

it’s essential that we have a visible, accountable, and permanent

leader within the legal ranks of the CIA.

And Mr. Chairman, I’m very pleased that we’re having this hearing, because it’s been well over 2 years since the previous General

Counsel left the CIA. Mr. Rizzo has occupied that post as acting

General Counsel during that period. It’s time that we have a permanent General Counsel confirmed by the Senate.

Now Mr. Rizzo comes before us having spent most of his professional career as an agency attorney handling a variety of assignments. And I’m sure that he will explain what unique perspectives

and experiences he can bring to the General Counsel position. I expect there will be many questions about decisions that have been

made either by Mr. Rizzo or by other attorneys under his leadership.

I also expect that there may be concerns among some Members,

because we don’t have certain documents. We can discuss that further in a closed setting. I believe we have received an unprecedented amount of documents, and we have had access that we have

never had before, and I’m grateful for your help in that. As far as

the closed hearing, I encourage our Members to refrain from raising classified matters, even indirectly, until we move to the closed

session.

And I would urge Mr. Rizzo, if he feels that the answer must be

given in closed session, to do so.

The purpose of the hearing today is not for us to make political

statements, but for us to engage with the nominee on his thoughts,

16

experiences and background, and qualifications for the post to

which he’s nominated.

Mr. Chairman, I believe it’s important that the Committee act on

this nomination, that we give Mr. Rizzo a full and fair hearing, and

move his nomination to the floor.

Mr. Rizzo, again, we thank you for your service. We congratulate

you on your nomination and look forward to your testimony.

Thank you, Mr. Chairman.

Chairman ROCKEFELLER. I now recognize the Honorable Senator

Warner, who will introduce the nominee.

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

VIRGINIA

Senator WARNER. Thank you, Mr. Chairman, Senator Bond, and

colleagues on the Committee.

I deem it a privilege to introduce this fine public servant. The

Chairman and Ranking Member have given detailed biographical

summaries of this nominee’s distinguished career, and therefore I

will not further go into the facts, and ask that my statement be put

into the record.

Chairman ROCKEFELLER. It will be done.

Senator WARNER. But we have before us one of the most seasoned, tested public servants still on active duty, so to speak, and

I think it’s marvelous that he and his family are willing to step up

and take on this position. He’s been in an acting position for some

time.

But, I’d say to my colleagues, you’ve covered all the facts, but I

want to mention one other thing, and that is he has been the recipient of a number of awards during his career, perhaps most notably the Thomas C. Clark Award from the Federal Bar Association

in 1996. Those of us who are members of the Bar would take due

note of this. This is a highly competitive award that recognizes the

single—I repeat, the single—most outstanding lawyer in the U.S.

Government each year. He won that in 1996. He is the only attorney from the intelligence community to ever receive this award.

Quite an achievement. He also received the CIA Director’s Award

in 2002, 2004 and 2006 for his service as acting General Counsel.

So I think, quite wisely, we should begin this open session, to the

extent that colleagues wish to ask questions that can be answered

here and then, as the Ranking Member said, begin the closed session because I and others are anxious to consider the Military Commissions Act, which was passed last October. I had a hand in that

bill. And it requires this country to take due note of international

treaties and so forth, and that work is now under way in our Administration and perhaps we can learn further from this nominee

in the course of the closed hearing.

So I thank the Chair and the Members of the Committee. You’re

on your own, my good friend.

Mr. RIZZO. Thank you, sir.

[The prepared statement of Senator Warner follows:]

PREPARED STATEMENT OF HON. JOHN WARNER

Chairman Rockefeller, Vice Chairman Bond, distinguished colleagues; it is my

pleasure to introduce to you today a great public servant and intelligence professional—Mr. John A. Rizzo—who has been nominated to serve as General Counsel

17

for the Central Intelligence Agency. Mr. Rizzo has a long record of service to the

nation, particularly in the great Commonwealth of Virginia, and I welcome him here

today.

FAMILY

I would like to recognize Mr. Rizzo’s family who is here to support him today as

they have supported him during his long and distinguished career in service to our

nation. Mr. Rizzo is joined today by his wife Sharon, his son James, and his sister

Nancy. I am pleased to welcome them as well.

CAREER HIGHLIGHTS

Mr. Rizzo has been a career public servant. Before joining the Central Intelligence

Agency, he practiced law for 2 years for the U.S. Department of Treasury’s Office

of General Counsel, specializing in enforcement, customs, and narcotics issues.

Mr. Rizzo joined the CIA in 1976 and began a long and distinguished career,

where he has spent over 32 years practicing law in the Agency’s Office of General

Counsel. In 1995, Mr. Rizzo was named Senior Deputy General Counsel, which is

the second highest legal position in the Agency. He also has served as Acting General Counsel on several occasions—most recently from July 2004 to the present. In

that role he has been responsible for all legal issues regarding the initiation and

implementation of intelligence collection and cover action operations. For the past

10 years he has served as the Senior Designated Agency Ethics Official.

Mr. Rizzo has considerable experience working with the Congress. He served as

Deputy Director of the Office of Congressional Affairs from 1986 to 1989, and was

the Agency’s lead counsel in dealing with the House and Senate Committee’s investigating Iran-Contra. For this work, he received CIA’s Distinguished Officer in the

Senior Intelligence Service Award in 1987.

AWARDS AND RECOGNITION

Mr. Rizzo has been the recipient of a number of other awards during his career,

perhaps most notably, the Thomas C. Clark award from the Federal Bar Association

in 1996. This highly competitive award recognizes the single most outstanding lawyer in government each year. He is the only attorney from the Intelligence Community to ever receive this award—quite an achievement. Mr. Rizzo also received the

CIA Director’s Award in 2002, 2004, and 2006 for his service as Acting General

Counsel.

ACADEMIC CREDENTIALS

Mr. Rizzo earned his undergraduate degree in Political Science from Brown University in 1969 and graduated cum laude from George Washington University Law

School in 1972.

SUMMARY

In short, Mr. Rizzo has a long and distinguished record of service to the intelligence mission of this country, and I am very pleased to introduce him to the Committee today.

Chairman ROCKEFELLER. Thank you, Senator Warner.

Mr. Rizzo, you may now proceed with your statement, sir.

STATEMENT OF JOHN A. RIZZO, CENTRAL INTELLIGENCE

AGENCY GENERAL COUNSEL-DESIGNATE

Mr. RIZZO. Mr. Chairman and Mr. Vice Chairman, at the outset,

let me express my appreciation to you and to the Committee for

giving me the opportunity to appear before you today. I am aware

of the Committee’s heavy workload this session, covering an array

of significant policy issues, and I am grateful that you have found

the time to consider my nomination.

I also want to give special thanks to Senator Warner for his presence and his generous introduction, especially given the fact that

I am not a Virginia resident. But having served many years in

Langley, I feel a quasi-citizenship to that State.

18

With the Committee’s permission, I will now read a brief opening

statement and will submit a more detailed statement for the

record. I come here today halfway through my 32nd year of service

as a lawyer for the Central Intelligence Agency. Put it another

way, I have spent more than half of my life as a CIA attorney. Accordingly, while I was honored and gratified when the President

first nominated me a little over a year ago, I do not consider myself

to be a political appointee in the usual sense of that term, and indeed I do not consider myself a political person. I am first and foremost a career public servant and CIA officer.

My situation as I appear before you today is unique. Over the

past 35 years, every previous General Counsel, whether Senateconfirmed or otherwise, was new to the Agency. If confirmed, I

would be the first CIA General Counsel ever to come up through

the ranks. I do not take this distinction lightly.

To put the span of my CIA career in brief chronological perspective, in January 1976, armed with a grand total of 3 years’ legal

experience, I joined the Office of General Counsel. It was a critical

juncture for CIA as an institution. The Church Committee, the

Rockefeller Commission, and other investigative bodies had just

finished exposing controversial and often troubling CIA activities in

years gone by and were recommending massive legal and policy reforms at CIA. The congressional intelligence committees were

about to be born, subjecting the Agency to real legislative oversight

for the first time in its history.

George H.W. Bush was the CIA Director when I came on board,

the first of 10 CIA Directors under whom I have served. There

were 18 other lawyers at the Agency in 1976; today, we are well

over a hundred lawyers, and we expect our staff to grow even larger for the foreseeable future.

Upon my arrival, and frankly, despite still having no idea what

I was really getting myself into, I was immediately immersed in

the incredibly diverse nature of CIA’s legal practice. While it is fair

to say I have spent the bulk of my career providing guidance on

CIA’s conduct of covert operations, I have also had to address

issues in areas ranging from administrative and contract law to environmental and tax law, not to mention being in the middle of an

always active and burgeoning litigation caseload.

The CIA has had its equities and information at stake in virtually every major terrorist prosecution in the last two decades,

along with a large number of other high-profile criminal cases.

Overall, I can’t think of a more stimulating, challenging, important and rewarding place to work as a lawyer, and I have loved

going to work every day of my 30-plus years at CIA. So, by any

measure, I am not new to the world of national security law. I

come with a track record of more than three decades of experience

with national security legal issues. I consider that to be a significant and unprecedented plus for a nominee to this job, and I hope

that by the end of this process, the Committee concludes that as

well.

Mr. Chairman, I will be responsive and forthcoming in answering

your questions in this open session. I suspect the Committee will

have questions, especially with respect to legal issues I have been

involved in in this post-9/11 era, which I can only address in closed

19

session. Again, however, I pledge to be informative and candid in

responding to those questions.

Let me briefly address one substantive issue in my remarks, and

that is the crucial issue of congressional oversight of intelligence

activities. Until now, the seminal event in my CIA legal career took

place two decades ago when I was the Agency’s focal point in dealing with the joint congressional committee investigating the IranContra Affair. As the year-long probe played out, I saw firsthand

the tremendous damage my Agency sustained, and all of it

stemmed from the fact that as an institution, the CIA had kept the

Intelligence Committees in the dark about a significant high-risk

covert action program. Worse yet, a few senior CIA officers, people

I had worked with and admired for years, wound up being prosecuted for misleading Congress about their roles in the program.

Their careers were ruined. The Agency’s reputation was sullied.

Overall, morale at CIA plunged and it took years for the Agency

to rebuild its relationship with this Committee and its House counterpart.

The lesson I learned from seeing up close all the damage from

Iran-Contra has been lasting and indelible to me. It is this. CIA

courts disaster whenever it loses sight of the absolute necessity to

inform the intelligence committees on a timely basis what they

need to know in order to perform effective, constructive oversight.

I say that not just because that is what the law requires, and not

just because it is wise policy, and not just because it’s something

I think the Committee wants to hear. There is yet another compelling, if coldly pragmatic reason that Iran-Contra brought that lesson home to me, and it is this. The more the committees know

about what CIA is doing, the more you are invested in the process,

and the more frankly you will be willing and able to protect and

defend CIA from the uninformed and often false charges of wrongdoing that seem to inevitably come our way from those on the outside. It is in that spirit of openness and candor that I will endeavor

to address the Committee’s questions, not just today, but down the

road as well, if the Senate ultimately sees fit to confirm me as CIA

General Counsel.

Mr. Chairman, I recognize that a major focus of the Committee’s

attention in considering my nomination will be my role in the

Agency’s actions undertaken in the counterterrorist arena in the

years following the 9/11 attacks. This is as it should be. After all,

I have served as the CIA’s acting General Counsel approximately

4 out of those 51⁄2 eventful years. As I noted at the outset, much

of this discussion necessarily must be reserved for a closed session.

For now, I can say that this period has been the most rewarding

in terms of service to this country, but by far the most challenging

of my three-plus decades of practicing law at the CIA. While being

a CIA lawyer has never been dull, the legal issues the Agency has

had to contend with over the last 5 years would have been unprecedented and largely unimaginable to me on September 10, 2001. A

couple of brief examples.

In the operational arena, CIA, in my experience, had never before been authorized to detain and interrogate an individual believed to be holding vital national security information. In the foreign intelligence collection arena, CIA had never before been auVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00023 Fmt 6633 Sfmt 6601 C:\DOCS\41205.TXT DianeA PsN: DianeA
20

thorized to collect more volumes of information from exponentially

more sources, and to analyze and share that information faster

with our counterparts in the law enforcement community, State

and local governments, as well as our foreign partners.

While only a very small portion of that information dealt with individual Americans, we had to be then, and must continue to be

constantly mindful of the privacy rights of our fellow citizens.

These were uncharted territories for me, for the Office of General

Counsel, and indeed, for the U.S. Government as a whole, and we

have had to navigate on one of the most difficult legal and policy

terrains imaginable, in close consultation with legal experts

throughout the Government.

Throughout it all, my mission has been to decide every issue

coming my way in accordance with one basic overriding principle

that I have followed my entire CIA career. It is this—to facilitate

CIA’s discharge of its vital mission to protect the national security

and the American people in a manner that at all times is faithful

and in full compliance with the Constitution, U.S. law, and U.S. obligations under international treaties.

Finally, Mr. Chairman, let me briefly address a question several

long-time colleagues posed to me shortly after my nomination was

announced, which was, why, as a career CIA lawyer for three decades, would you want to give up that status after all those years

to become a political appointee subjected to the rigors and uncertainty of that entire process?

Well, for me, it came down to two basic reasons. First, it is simply a great job. The work is as important as it gets. The palpable

sense of contributing something to protect the Nation’s security is

there every day. And, as hard as it sometimes gets, I have always

considered it to be the best job I could ever have.

Second, I would respectfully suggest that the unprecedented fact

of a career CIA lawyer coming up the ranks and becoming General

Counsel sends a significant symbolic message to our constantly

growing, ever-younger office. Namely, it says to a new lawyer coming on board that if he or she makes a commitment to a CIA career, works conscientiously and hard, even as administrations come

and go, and maybe catches a few breaks along the way, then he

or she could realistically aspire to be the General Counsel of what

I consider to be the most vital agency in the U.S. Government in

protecting the citizens of the United States. For me, establishing

that precedent would be an immensely gratifying legacy.

Mr. Chairman, that concludes my statement, and I welcome the

Committee’s questions.

[The prepared statement of Mr. Rizzo follows with attachment.]

PREPARED STATEMENT OF JOHN S. RIZZO

Mr. Chairman and Mr. Vice Chairman:

At the outset, let me express my appreciation to you and to the Committee for

giving me the opportunity to appear before you today. I am aware of the Committee’s heavy workload this session, covering an array of significant policy issues, and

I am grateful that you have found the time to consider my nomination.

I come here today halfway through my 32nd year of service as a lawyer for the

Central Intelligence Agency. Put another way, I have spent more than half of my

life being a CIA attorney. Accordingly, while I was honored and gratified when the

President first nominated me a little over a year ago, I do not consider myself to

be a political appointee in the usual sense of that term, and indeed I do not consider

21

myself a political person. I am first and foremost a career public servant and CIA

officer.

My situation, as I appear before you here today, is unique. Over the past 35 years,

every previous General Counsel—whether Senate-confirmed or otherwise—was new

to the Agency. If confirmed, I would be the first CIA General Counsel ever to come

up through the ranks. I do not take this distinction lightly.

To put the span of my CIA career in brief chronological perspective, in January

1976, armed with a grand total of 3 years legal experience, I joined the Office of

General Counsel. It was a critical juncture for CIA as an institution. The Church

Committee and other investigative bodies had just finished exposing controversial

and often troubling CIA activities in years gone by and were recommending massive

legal and policy reforms at CIA. The Congressional intelligence committees were

about to be born, subjecting the Agency to real legislative oversight for the first time

in its history. George H. W. Bush was the CIA Director when I came on board, the

first of 10 CIA Directors under whom I have served. There were 18 other lawyers

at the Agency in 1976—today we have well over 100 lawyers, and we expect our

staff to grow even larger for the foreseeable future.

Upon my arrival, and frankly, despite still having no idea what I was getting myself into, I was immediately immersed in the incredibly diverse nature of CIA’s legal

practice. While it is fair to say that I have spent the bulk of my career providing

guidance on how CIA conducts covert operations, I have also had to address issues

in areas ranging from administrative and contract law to environmental and tax

law—not to mention being in the middle of an always active and burgeoning litigation case load. CIA has had its equities and information at stake in virtually every

major terrorist prosecution in the last two decades, along with a surprisingly large

number of other high profile criminal cases. For the Committee’s reference, attached

at Tab A is a detailed summary of the scope of legal work performed by the Office

of General Counsel. Overall, I cannot think of a more stimulating, challenging, important, and rewarding place to work as a lawyer, and I have loved going to work

every day of my 30 plus years at CIA.

So, by any measure, I am not new to the world of national security law. I come

with a track record of more than three decades of experience. I consider my long

experience with national security legal issues to be a significant and unprecedented

plus for a nominee to this job, and I hope that by the end of this process the Committee concludes that as well.

I will be responsive and forthcoming in answering your questions in this open session. I suspect that the Committee will have questions—especially with respect to

legal issues I have been involved with in this post-9/11 era—which I can only address in closed session. Again, however, I pledge to be informative and candid in

responding to those questions.

Let me briefly address one substantive issue in my remarks, and that is the crucial issue of Congressional oversight of intelligence activities. Until now, the seminal

event in my CIA legal career took place two decades ago, when I was the Agency’s

focal point in dealing with the joint Committee investigating the Iran/Contra Affair.

As the year-long Congressional probe played out, I saw first-hand the tremendous

damage my Agency sustained, and all of it stemmed from the fact that, as an institution, CIA had kept the Intelligence Committees in the dark about a significant,

high-risk covert action program. Worse yet, a few senior CIA officers—people I had

worked with and admired for years—wound up being prosecuted for misleading

Congress about their roles in the program. Their careers were ruined, the Agency’s

reputation was sullied, overall morale at CIA plunged, and it took years for the

Agency to rebuild its relationship with this Committee and its House counterpart.

The lesson I learned from seeing up close all the damage from Iran/Contra has

been lasting and indelible to me: It is this: that CIA courts disaster whenever it

loses sight of the absolute necessity to inform the intelligence committees on a timely basis what they need to know in order to perform effective, constructive oversight.

I say that not just because that is what the law requires; not just because it is wise

public policy; and not just because I think it is something the Committee wants to

hear. There is yet another compelling, if coldly pragmatic reason that Iran/Contra

brought that lesson home to me. The more the Committees know what CIA is doing,

the more you are invested in the process, and the more, frankly, the Committees

will be willing and able to protect and defend CIA from the uninformed and often

false charges of wrongdoing that seem to inevitably come our way from those on the

outside. It is in that spirit of openness and candor that I will endeavor to address

the Committee’s questions—not just today, but down the road as well, if the Senate

ultimately sees fit to confirm me as CIA General Counsel.

I recognize that a major focus of the Committee’s attention in considering my

nomination will be my role in those Agency actions undertaken in the

22

counterterrorist arena in the years following the 9/11 attacks. This is as it should

be—after all, I have served as CIA’s Acting General Counsel approximately four out

of those five and one-half eventful years. As I noted at the outset, much of this discussion necessarily must be reserved for a closed session. For now, I can say that

this period has been the most rewarding (in terms of service to this country), but

by far the most challenging of my three plus decades of practicing law at the CIA.

While being a CIA lawyer has never been dull, the legal issues the Agency has had

to contend with over the past 5 years would have been unprecedented and largely

unimaginable to me on September 10, 2001.

For example, in the operational arena, CIA in my experience had never before

been authorized to detain and interrogate an individual believed to be holding vital

national security information. Additionally, in the foreign intelligence collection

arena, CIA had never before been authorized to collect more volumes of information

from exponentially more sources and to analyze and share that information faster

with our counterparts in the law enforcement community, state and local governments, and our foreign partners. While only a very small portion of that information

dealt with individual Americans, we had to be and must continue to be constantly

mindful of the privacy rights of our fellow citizens.

These were unchartered territories for me, the Office of General Counsel, and indeed, for the US government as a whole. We have had to navigate on one of the

most difficult legal and policy terrains imaginable in close consultation with legal

experts throughout the US government. Throughout it all, my mission has been to

decide every issue coming my way in accordance with one basic overriding principle

that I have followed my entire CIA career: To facilitate CIA’s discharge of its vital

mission to protect the national security and the American people in a manner that

at all times is faithful and in full compliance with the Constitution, U.S. law, and

U.S. obligations under international treaties.

Of course, the Committee deserves to know not just what I have done over the

years as a CIA lawyer, but also, more importantly, what my vision would be for the

Office of General Counsel if confirmed in this position. In the interest of time, I will

briefly touch on two objectives I consider crucial to ensure my office remains effective in the future.

First, I intend to continue to press forward my on-going efforts to increase the

Office of General Counsel’s presence and profile in all parts of CIA. As I indicated

earlier, we have about six times as many lawyers here now than on the day I joined.

That growth is due largely to our success in placing our lawyers ‘‘on the scene’’ in

every component at CIA Headquarters to provide close support and counsel for CIA

officers, as well as to serve as the General Counsel’s ‘‘eyes and ears’’. The lawyers’

presence is not only tolerated by our clients—but they want them there and they

want more of them. To me, fostering this attitude and trend is extremely important

for any number of reasons, so I am determined to continue in that direction.

Second, as our office gets ever larger, I want our legal work force to be ever more

diverse. I am proud that historically we have never followed a ‘‘cookie cutter’’ approach to hiring—we bring newly minted lawyers on from law schools all over the

country, as well as experienced practioners from private law firms, military JAGS,

and from other government agencies. In addition, more than half our attorneys are

women, and roughly 15 percent are minorities. I am encouraged that these numbers

represent a steady improvement for OGC in this area in recent years. Even so, we

need to do a better job of attracting minorities, and I hope to devote my personal

attention and focus in this direction if I am confirmed.

Finally, let me briefly address a question several longtime colleagues posed to me

shortly after my nomination was announced, which is, ‘‘Why, as a career CIA lawyer

for three decades, would you want to give up that status after all those years to

become a ‘‘political’’ appointee subjected to the rigors and uncertainties of that entire process?’’ For me, it came down to two basic reasons;

First, it is simply a great job. The work is as important as it gets, the palpable

sense of contributing something to protect the nation’s security is there everyday

and as hard as it sometimes gets, I have always considered it to be the best job

I could ever have. Second, I would respectfully suggest that the unprecedented fact

of a career CIA lawyer coming up the ranks and becoming General Counsel sends

a significant symbolic message to our constantly growing, ever younger office.

Namely, it says to a new lawyer coming on board that, if he or she makes a commitment to a CIA career, works conscientiously and hard even as Administrations come

and go, and maybe catches a few breaks along the way, then he or she can realistically aspire to be the General Counsel of what I consider to be the most vital Agency

in the US government in protecting the citizens of the United States. For me, establishing that precedent would be an immensely gratifying legacy. And, I would humVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00026 Fmt 6633 Sfmt 6621 C:\DOCS\41205.TXT DianeA PsN: DianeA
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bly submit, it would be a healthy thing for the Office of General Counsel, the Agency, and ultimately, the country.

SCOPE OF THE OFFICE OF GENERAL COUNSEL

ADMINISTRATIVE LAW DIVISION

The General Counsel is responsible for the Agency’s ethics program. The attorneys

in the Administrative Law Division (ALD) provide guidance to present and former

Agency personnel regarding the requirements of Government-wide and Agency-specific ethics statutes and regulations. Like other government organizations, we also

have an Ethics Compliance program to ensure financial disclosure forms are timely

completed and reviewed, and that we meet Office of Government Ethics (OGE) annual training requirements. In fact, OGE recognized our ethics program in March

2007 with a Program Award.

In addition to advising on ethics issues, ALD attorneys also provide advice on the

full range of administrative law questions, such as the proper expenditure of appropriated funds, the payment of travel expenses, the provision of training at Government expense, and the lawful use of deadly force by Agency personnel. ALD also

represents the Agency in administrative equal employment opportunity (EEO) cases

as well as provides EEO awareness training to Agency employees. Finally, ALD attorneys provide legal advice to Agency managers on Human Resources matters

ranging from recruitment to retirement to diversity hiring, and in tragic cases, advise the Agency’s casualty officer about the benefits available to the survivors of

Agency personnel who die in the line of duty.

CONTRACT LAW DIVISION

The Contract Law Division advises the Agency’s Office of the Procurement Executive and the Office of Acquisitions in all aspects of the Agency mission on government contract matters. The lawyers in this division provide legal advice during the

solicitation, evaluation, and negotiation of contracts, including review of source selection documentation and sole source justifications, and the final contract documents. Contract Law Division is responsible for representing the Agency in contract

award protests (generally adjudicated by the Government Accountability Office) and

contract performance disputes (generally adjudicated by a Board of Contract Appeals). In addition to advising on all aspects of contract formation, the Division attorneys advise on the administration of the contracts and all contract-related issues,

including contract-related fiscal law, intellectual property, and organizational conflict of interest issues. The division attorneys also advise on all Agency real estaterelated transactions, including construction and the leasing of real property.

Contract Law Division also provides legal advice on environmental, safety, and

health compliance issues for the Office of Medical Services’ Environmental Safety

Group (ESG), and advice on matters related to hazardous materials shipments.

There is interaction with Department of Transportation to obtain regulatory permits

(waivers) for activities, as needed. Contract Law Division also advises the Agency

on copyright law and other intellectual property areas, and the settlement of Federal Tort Claims Act (automobile) and Military Personnel and Civilian Employees’

Claims Act (personal property) claims.

INTELLIGENCE SUPPORT DIVISION

The Intelligence Support Division (ISD) provides legal analysis on general legal

issues relating to CIA operational activities. It supports and complements the Operations Division of OGC, which provides specific legal oversight of specific operational

activities. ISD focuses on issues arising under the Fourth Amendment to the U.S.

Constitution, various statutes protecting the privacy interests of U.S. persons, Executive Order 12333 and various CIA regulations intended to ensure that Agency

operational activities remain in accordance with U.S. law and the Executive Order.

ISD focuses primarily on issues ‘‘of first impression,’’ and one of ISD’s primary responsibilities is to review new types of intelligence collection activities—particularly

technical collection activities—to ensure that such activities comply with applicable

law and regulations.

ISD also provides legal expertise in specialized areas of the law—including guidance on tax, import and export issues and certain issues of foreign or international

law.

24

LITIGATION DIVISION

Litigation Division handles all of the litigation involving the Central Intelligence

Agency or any of its employees where those employees’ involvement is due to actions

taken in their official capacity. Litigation Division’s work encompasses both civil

and criminal litigation. On the civil side, Litigation Division handles cases in which

the CIA or its employees (in their official capacity) have been sued. These cases consist primarily of Freedom of Information Act and Privacy Act cases, Federal Tort

Claims Act cases, employment related cases (such as Equal Employment Opportunity Act, Administrative Procedure Act, Bivens, and prepublication review cases),

and cases regarding contracts.

On the criminal side, the Division is involved in unauthorized disclosure cases in

which the classified information that was compromised belongs to the CIA. The Division also represents the CIA’s interests in criminal cases where the Agency has

information that is discoverable to a defendant. Terrorism cases and narcotics cases

comprise most of this category. In these cases, CIA uses the Classified Information

Procedure Act to protect the classified information at issue.

Lastly, the Division handles criminal cases in which a defendant is making a

claim that his criminal conduct was authorized by the United States government

generally and CIA in particular, i.e. the public authority defense.

OPERATIONS DIVISION

Operations Division is the focal point for questions involving the legality and propriety of activities carried out by the National Clandestine Service (NCS). The Division is charged with providing legal counsel and guidance to the NCS on matters

involving clandestine intelligence collection and covert action, including matters

arising under the Congressional notification provisions of the National Security Act.

To serve the NCS more effectively, the attorneys in this Division are co-located with

the various divisions and centers within the NCS.

The Division’s establishment of rotational positions began in the 1980’s with the

placement of attorneys in newly created CIA centers for counterterrorism and counternarcotics. Over time, OGC attorneys filled positions in other CIA centers as well

as all NCS geographical divisions. Attorneys in these components serve as clearinghouses for a broad spectrum of legal inquiries, including matters involving covert

action, EO 12333, asset recruitment and termination, export control, support to law

enforcement, litigation, Congressional notification, contracts, and administrative

and personnel issues. OD also assists NCS components responsible for maintaining

the proprietary and cover arrangements required to support Agency operations.

OFFICE OF THE CHIEF FINANCIAL OFFICER

The CFO Legal unit provides legal advice and counsel to the Office of the Chief

Financial Officer (including the Office of the Procurement Executive) and to other

Agency components, on a wide range of appropriations and fiscal law topics. These

include, but are not limited to: Federal and Agency budget formulation and execution; Anti-Deficiency Act; use of expired (prior year) funds; covert action resource

issues; certain lease and construction issues; Economy Act; reprogramming of funds;

Federal Managers’ Financial Integrity Act; Agency’s audited financial statements

process; and, Congressional notification or reporting requirements and directions

concerning certain of the preceding matters. The CFO Legal team also provides

guidance (in coordination with Administrative Law Division) to the Office of the

CFO on Federal employee ethics.

CFO Legal reviews and authorizes proposed Agency regulations on financial administration and acquisition, and reviews and coordinates on all other proposed regulations and notices before they are published. On behalf of the CFO, CFO Legal

reviews and comments on a broad spectrum of draft Intelligence Community policy

documents, and on legislation or similar legislative materials as requested by the

Agency’s Office of Congressional Affairs. CFO Legal also provide modules of legal

instruction as part of various budget and resource management courses offered to

CIA employees.

OFFICE OF THE CHIEF INFORMATION OFFICER

The attorneys that provide legal support to the Agency’s Chief Information Officer

(CIO) do so for the diverse components within the Office of the CIO, the CIA Privacy

and Civil Liberties Program, the global communications activities .of the Directorate

of Support, the Center for the Study of Intelligence, and the DNI’s Open Source

Center. CIO Legal provides guidance on legal issues relating to information technology, global communications, privacy and civil liberties, the classification and deVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00028 Fmt 6633 Sfmt 6621 C:\DOCS\41205.TXT DianeA PsN: DianeA
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classification of national security information, prepublication review, information

sharing, records management, and information review and release programs mandated by law.

OFFICE OF CONGRESSIONAL AFFAIRS/LEGISLATION GROUP

Legislation Group is part of the Office of Congressional Affairs (OCA). The group

provides legislative drafting, monitoring and advice to the Director of the Central

Intelligence Agency (D/CIA) and to the Central Intelligence Agency (CIA). The

group’s primary functions include: Preparing and coordinating the CIA’s annual

draft of the Intelligence Authorization Act; monitoring draft, introduced, and pending legislation, and related reports, letters, or testimony to determine the potential

impact upon the CIA and its activities, and coordinating Agency positions on legislation that would affect Agency equities; overseeing and having primary responsibility

for the provision of timely coordinated D/CIA responses to Legislative Referral Memorandums from the Office of Management and Budget that seek CIA concurrence

and/or comments on various legislative proposals, draft testimony, or Administration signing statements; monitoring the Congressional Record and other sources

daily for actions and items of interest to the CIA, and keeping CIA leadership and

other elements informed, as appropriate, of major legislative developments; providing, supervising or coordinating the legal advice provided to OCA; and, briefing

CIA training classes about Congress and Congressional oversight.

Chairman ROCKEFELLER. Thank you very much, Mr. Rizzo. And

I have four routine questions, which are always asked.

Mr. Rizzo, do you agree to appear before the Committee here or

in other venues when invited?

Mr. RIZZO. Yes, sir.

Chairman ROCKEFELLER. Do you agree to send the Office of General Counsel personnel here before the Committee and designated

staff when invited?

Mr. RIZZO. Yes. Yes, sir.

Chairman ROCKEFELLER. Do you agree to provide documents or

any material requested by the Committee in order for it to carry

out its oversight and its legislative responsibilities?

Mr. RIZZO. Yes, sir.

Chairman ROCKEFELLER. Will you work to ensure that all CIA

elements provide such material to the Committee when requested?

Mr. RIZZO. Yes, sir.

Chairman ROCKEFELLER. Let me just start. You made an interesting distinction as you spoke about 2000 and forwards and 2000

and backwards. I’m not quite prepared to make that distinction, if

we do it in the proper way, which does not in any way involve national security secrets or anything of that sort. But there are some

general questions I think that one can ask that are of interest to

this Committee, and so I will.

Without getting into any classified details of the CIA’s interrogation program, did you, as acting CIA General Counsel, issue legal

guidance, prior to the program’s start, that the program’s interrogation techniques did not violate the Fifth, Eighth or Fourteenth

Amendments of the U.S. Constitution?

Mr. RIZZO. Yes, sir.

Chairman ROCKEFELLER. Now, the ‘‘yes, sir’’ means that you did,

yes.

Did the Department of Justice issue a legal opinion prior to the

program’s start that the interrogation techniques would not constitute conduct of the type that would be prohibited by the U.S.

Constitution, and did you concur with this opinion?

Mr. RIZZO. The Department of Justice, before the program began,

did issue guidance relative to the issue of the program by laying

26

the terms of the torture statute. That at that time was the extent

of the legal guidance we received from the Department of Justice

prior to the program’s initiation.

Chairman ROCKEFELLER. OK.

As acting CIA General Counsel in 2002, did you issue legal guidance that the interrogation techniques to be used by the CIA were

lawful under the Convention Against Torture and the Geneva Convention?

Mr. RIZZO. In 2002, yes, sir.

Chairman ROCKEFELLER. Both.

Mr. RIZZO. Yes, sir.

Chairman ROCKEFELLER. Mr. Rizzo, during the operation of the

CIA detention and interrogation program, were you made aware of

any concerns expressed by CIA officers that they could be exposed

to criminal prosecution for their involvement in the program?

Mr. RIZZO. I’m sorry—at the outset of the program or in the

course of the entire program?

Chairman ROCKEFELLER. In the course of.

Mr. RIZZO. There have been some concerns so expressed, yes, sir.

Chairman ROCKEFELLER. We could discuss that in closed session.

Mr. RIZZO. Yes, sir.

Chairman ROCKEFELLER. You can refuse to answer if you choose.

What was the nature of these concerns, and what action did you

take to address them?

Mr. RIZZO. Well, it would be difficult to get into the nature of the

concerns. I think I’d just—if you don’t mind, I think I’d best address that in closed session.

Chairman ROCKEFELLER. That is your right.

Final question from me, Mr. Rizzo. The Department of Justice’s

Office of Legal Counsel drafted an unclassified memo dated August

1, 2002 about standards of conduct under the Convention Against

Torture and the criminal prohibitions on torture. That opinion concluded that physical pain amounting to torture must be ‘‘equivalent

in intensity to the pain accompanying serious physical injury such

as organ failure, impairment of bodily function, or even death,’’ and

that prosecution under the criminal torture statue might be barred

‘‘because enforcement of the statute would represent an unconstitutional infringement of the President’s authority to conduct war.’’

The opinion was later repudiated by the Office of Legal Counsel.

Did you concur with the legal analysis in this memo?

If not, what portions did you disagree with?

Mr. RIZZO. I obviously was aware of that legal memo when it was

issued on August 1, 2002. I did not, certainly, object to the memo.

As with most legal memos, my reaction was it was an aggressive,

expansive reading, but I can’t say that I had any specific objections

to any specific parts of it. I do agree with the Department of Justice later analysis that the language that you cited did appear

overbroad for the issue that it was intended to cover.

Chairman ROCKEFELLER. Thank you, sir.

The Vice Chairman.

Vice Chairman BOND. Thank you very much, Mr. Chairman.

Mr. Rizzo, Senator Wyden and I have been seeking for some time

in this session, as Chairman Roberts and Vice Chairman Rockefeller did in the past session, an unclassified, redacted version of

27

the executive summary of the June 2005 CIA’s Inspector General’s

report on accountability in terrorist attacks. This was a defining

moment for the Nation, for the agency, and the American public

has had a tremendous amount of information about all the things

leading up to that and where our governmental agencies were, and

they’ve had access to most of the Department of Justice’s Inspector

General report on the FBI and 9/11.

Is there any legal reason why an unclassified, redacted version

of the executive summary has not been provided to us and the public?

Mr. RIZZO. No legal reason, no, sir.

Vice Chairman BOND. Would you advise the Director of that,

with our warm request?

Mr. RIZZO. I will. I will.

Vice Chairman BOND. Thank you.

Mr. Rizzo, 9/11 clearly marked a milestone in the development

and interpretation of counterterrorism laws. We’ve seen the Administration’s proposal to update FISA, but there are other areas in

which changes to current law are needed in order fully to address

threats. There has been some discussion that Executive Order

12333 needs to be updated, particularly with regard to presumptions regarding U.S. persons.

Are there that or any other general areas that you think we need

to be looking at?

Mr. RIZZO. Well, you know, with respect to the Executive Order

12333, which has been on the books for 25 years, and actually existed in slightly different iterations several years before that, it

does need updating. I happen to believe, however, that the intelligence community has lived with its terms for a good period of

time now, so I can’t say that any of the substantive provisions in

that order have hamstrung or damaged the community.

Vice Chairman BOND. The WMD Commission recommended a

working group to review U.S. persons rules governing collection, retention and dissemination of information across the IC. Were you

involved in the review? If so, what’s the status? Are there any

changes we expect to see and how changes impact the operations

of the agency?

Mr. RIZZO. That review, Senator, has been ongoing under the

aegis of the Director of National Intelligence’s Office of General

Counsel. We in CIA General Counsel’s Office have played a role in

that. I believe the process is well along, and I believe the group will

be ready with some recommendations in the near future.

Vice Chairman BOND. In your responses to prehearing questions,

you noted the decision whether to allow CIA to conduct electronic

surveillance within the United States is a question for the policymakers, and said its prohibition is not required under the Constitution.

While the decision may be one for policymakers, are there legal

and practical implications to allowing CIA to conduct electronic

surveillance, and/or do you believe the prohibition should be lifted

or modified, or should domestic surveillance activities be limited to

the FBI?

Mr. RIZZO. I happen to believe, Senator, that the CIA can continue to be effective in its assigned mission, in its expanded misVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00031 Fmt 6633 Sfmt 6601 C:\DOCS\41205.TXT DianeA PsN: DianeA
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sion without any domestic surveillance authority capability, so I do

believe, on a number of grounds, that that area is best left to the

FBI and other domestic law enforcement agencies.

Vice Chairman BOND. Thank you very much, Mr. Rizzo.

Thank you, Mr. Chairman.

Chairman ROCKEFELLER. Senator, thank you.

Senator Warner.

Senator WARNER. Thank you, Mr. Chairman. I’ll be quite brief

here so we can get to the closed hearing hopefully.

I wish to compliment you on your opening statement. I listened

to it very carefully. Clearly, it is a thoughtful document that you

worked on for some time and expresses your innermost feelings

about the challenges that lay ahead and how you’re going to discharge those responsibilities. So I’d say well done, sir.

The Supreme Court’s 2006 decision in Hamdan versus Rumsfeld

has been interpreted to provide protections under Common Article

III of the Geneva Convention to unlawful combatants and particularly al-Qa’ida. Prior to that decision, is there some unclassified

references that you would have to such legal advice as you gave the

department interpreting the requirements of the Geneva Convention toward unlawful combatants?

Mr. RIZZO. I will check if there is some unclassified advice. This

whole area—over the years, we have tended to be encased in a

highly classified program, but I will check on that.

Senator WARNER. All right.

Mr. RIZZO. And the implication of Hamdan, obviously, was for

the Supreme Court holding that Common Article III of the Geneva

Convention did apply to the conflict with al-Qa’ida.

Senator WARNER. And you’ll provide the Committee with such

unclassified material as may have existed prior to that decision?

Mr. RIZZO. Yes, sir.

Senator WARNER. And I thank you.

I have no further questions.

Chairman ROCKEFELLER. Thank you, Senator Warner.

Senator Whitehouse.

Senator WHITEHOUSE. Thank you.

I’d like to ask a little bit about your notions of oversight in the

context of a government of separated powers. And let me start by

asking the broadest question, which is that although the Constitution tends to divide decisionmaking in certain areas between judicial, executive and legislative branches, there does not appear evident to me anywhere an area where congressional oversight, as opposed to decisionmaking, is forbidden.

And in the scope of the activities that you are familiar with in

the intelligence community, and without getting into any classified

details, do you believe that there is any area of intelligence activity

that is properly beyond congressional oversight?

Mr. RIZZO. No, sir.

Senator WHITEHOUSE. There are various documents from the Office of Legal Counsel at the Department of Justice and from other

Department of Justice elements regarding the counterterrorism

program, in many respects essential documents, providing legal

justification for various elements of the program, that we have not

been provided. And I’m interested in your explanation of the jusVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00032 Fmt 6633 Sfmt 6601 C:\DOCS\41205.TXT DianeA PsN: DianeA
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tification for this Committee not being provided those documents,

in light of what you have just said.

Mr. RIZZO. Well, if I could characterize the Justice Department

position in this regard, this is—these documents are part of the deliberative process of advice offered by the Department of Justice to

other agencies in the executive branch, and the need for confidentiality in those communications.

Senator WHITEHOUSE. So it’s a deliberative process privilege

claim?

Mr. RIZZO. Correct.

Senator WHITEHOUSE. Is there any other legitimate claim that

protects them.

Mr. RIZZO. Well, all I can tell you from the CIA’s standpoint,

there certainly would be no sources and methods or operational

reason why we would independently withhold them from the Committee.

Senator WHITEHOUSE. Are you aware of whether there are other

opinions of the Office of Legal Counsel in other areas that are

equally kept from public or congressional review under this basis?

I mean, it seems to me, there are an awful lot of OLC opinions that

are published and catalogued, and you can go look them up.

Mr. RIZZO. Yeah, no, there are. As we speak here today, certainly

there are no other opinions to CIA that fall into that category. And

I would add, Senator, you know, in the course of my long career

at CIA, past Office of Legal Counsels, and I can’t cite you chapter

and verse of what those opinions were, have held guidance back

that they’ve provided to CIA on similar grounds. So this is not an

entirely new phenomenon here.

Senator WHITEHOUSE. Let me ask you one other question on another topic. Recently General Petraeus sent a letter to all of our

forces in Iraq, and he wrote the following:

‘‘Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information

from the enemy. They would be wrong. Beyond the basic fact that

such actions are illegal, history shows that they also are frequently

neither useful or necessary.

‘‘Certainly extreme physical action can make someone ‘talk.’

However, what the individual says may be of questionable value.

In fact,’’ he went on to say, ‘‘our experience in applying the interrogation standards laid out in the Army Field Manual on Human Intelligence Collector Operations that was published last year shows

that the techniques in the manual work effectively and humanely

in eliciting information from detainees.’’

Do you believe that statement by General Petraeus to be correct?

Mr. RIZZO. Yes, I don’t have an objection to that statement.

Senator WHITEHOUSE. Do you believe that the use of enhanced

interrogation techniques, to use a phrase that—my light is on.

I won’t proceed to the second question.

Mr. Chairman.

Chairman ROCKEFELLER. Senator Levin.

Senator LEVIN. Thank you, Mr. Chairman.

And welcome to you, Mr. Rizzo. When we met last week, you and

I discussed some specific documents that I’ve requested to be provided to the Committee. I understand the CIA is reviewing those

30

documents so that they can be turned over. Have you made any

progress on those reviews?

Mr. RIZZO. We’re working on them now, Senator. We didn’t actually receive the documents until the day after our meeting. So

we’re working very hard on them.

Senator LEVIN. The Chairman made reference to the first Bybee

memo, which said that for an act to constitute torture, it must inflict pain that’s difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily

function, or even death.

The Chairman asked you the question, and I didn’t think you directly answered it, so let me ask it again. Did you agree with that

conclusion at the time?

Mr. RIZZO. I thought that particular piece was—was overbroad.

Senator LEVIN. Did you not tell me that you thought it was a

reasonable statement?

Mr. RIZZO. Well, I thought—I believe I told you I thought that

the opinion on the whole was a reasonable one, persuasive document.

Senator LEVIN. But that particular statement, did you not tell

me that you thought that was a reasonable conclusion?

Mr. RIZZO. If I did, Senator, I meant to put it in a different context. I mean, I wanted to make the point to the Chairman that I

did not object to that statement at the time; I did not.

Senator LEVIN. Now, on Bybee number two, did you request that

the Office of Legal Council produce that memo?

Mr. RIZZO. Yes, sir.

Senator LEVIN. And who gave the Department of Justice the interrogation practices which they analyzed?

Mr. RIZZO. Well, the——

Senator LEVIN. Did you do that?

Mr. RIZZO. My office was the vehicle for getting that to the Department of Justice, yes, sir.

Senator LEVIN. And you were in charge of the office?

Mr. RIZZO. Yes, sir.

Senator LEVIN. Was the definition of torture in the first Bybee

memo the basis for determining whether the interrogation techniques evaluated in the second Bybee memo were legal under the

anti-torture statute?

Mr. RIZZO. Well, they were—as you know, they were issued on

the same day, and in many respects, they play off each other. I,

frankly, was more concerned and relied more heavily on the classified guidance of the second Bybee memo that was addressed specifically to us.

Senator LEVIN. But do you know the answer to my question?

Mr. RIZZO. I’m sorry.

Senator LEVIN. Let me go on to another one, then.

At the time that it was approved in 2002, did you think that the

CIA’s interrogation program was humane—at that time?

Mr. RIZZO. The—I’m trying to be responsive in a way that—without getting into a detailed explanation.

We believed then and we have believed throughout this process

that the CIA program, as it was conceived—the procedures, the criVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00034 Fmt 6633 Sfmt 6601 C:\DOCS\41205.TXT DianeA PsN: DianeA
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teria, when taken in total leads to the conclusion—justifies the conclusion that the program was from the outset and remains conducted in a humane fashion.

Senator LEVIN. Why is it so complicated to answer a very direct

question that you think the CIA’s interrogation program was humane at the time that it was approved?

Mr. RIZZO. OK, well, I’m sorry. I was trying to answer. I found

it complicated because to get the——

Senator LEVIN. Well, let me ask it again, then.

Mr. RIZZO. OK.

Senator LEVIN. At the time it was approved in 2002, did you

think the CIA’s interrogation program was humane?

Mr. RIZZO. Yes, sir.

Senator LEVIN. Is that what you told me in the office?

Mr. RIZZO. I hope that’s what I told you in the office because

that’s what I believe.

Senator LEVIN. All right. Have we ever rendered or has CIA ever

rendered to countries detainees that—excuse me. Have detainees

been rendered by us, including the CIA, to countries that use torture?

Mr. RIZZO. That’s an important question, and the only way I

could give you the proper answer would be in a classified session.

Senator LEVIN. You can’t even answer in an unclassified—I’m not

asking you which countries. I’m just asking you whether we’ve ever

rendered detainees to countries which use torture.

Mr. RIZZO. Well, again, if you don’t mind, Senator, it’s difficult

to give a yes or no answer to that in an open session. I would just

greatly prefer to give it the attention it deserves in our closed session.

Senator LEVIN. Thank you. Thank you, Mr. Chairman.

Chairman ROCKEFELLER. Is that it, Senator Levin?

Senator Feinstein. We have a vote which started at 3:20.

Oh, I’m sorry. I’m sorry, Senator Feinstein. Senator Wyden.

That’s my mistake, and I apologize to you. Senator Wyden is

here.

Senator WYDEN. Thank you very much, Mr. Chairman.

Mr. Rizzo, thank you very much for your response to Senator

Bond’s question with respect to the CIA Inspector General report.

That’s very important and very much in the public interest.

Just so we’re clear on this Bybee amendment, because I know a

number of colleagues have asked about it, the key part of that

memo is the question of inflicting physical pain and it not being

torture unless the pain is equivalent to organ failure and the related circumstances.

Do you think you should have objected at the time?

Mr. RIZZO. I honestly—I can’t say I should have objected at the

time. I read the opinion at the time. As I say, I want to emphasize

that there was a companion opinion issued to us that did not contain that sort of language and that really we relied on.

But no, I can’t honestly sit here today and say I should have objected to that.

Senator WYDEN. I think that’s unfortunate, because it seems to

me that language, on a very straightforward reading, is over the

32

line. And that’s what I think all of us wanted to hear, is that you

wish you had objected.

Mr. Rizzo, is the CIA bound by the Geneva Convention, particularly Article III? And I would like to know if you think we’re bound

by Article III in its entirety.

Mr. RIZZO. Well, we’re certainly bound by Article III of the Geneva Convention as interpreted and made in statutory form by the

Congress, yes, sir.

Senator WYDEN. So—in its entirety?

Mr. RIZZO. In its entirety as interpreted and enacted by statute,

yes, sir.

Senator WYDEN. I believe that ‘‘as interpreted’’ means that you

comply with it in its entirety? I’ll just ask it once more.

Mr. RIZZO. Yes, sir.

Senator WYDEN. Thank you.

Now, as the occupying power in Iraq, the United States has certain legal privileges and responsibilities. If we start to draw down

the number of U.S. troops in Iraq, at what point would our occupation end?

Mr. RIZZO. Oh, boy, Senator. That is outside my lane. I don’t profess to be an authority on occupying power and drawing down of

forces. I’m sorry.

Senator WYDEN. Well, I’m asking from a legal standpoint. I’m

asking about the legal terminology. Do you believe our occupation

is over?

Mr. RIZZO. As a legal matter, Senator, I’ll be happy to research

that. I just have never had occasion to research that particular

issue. It doesn’t impact directly on CIA or CIA personnel there.

Senator WYDEN. You emphasized the importance of keeping the

Congress and the Committee fully and currently informed about intelligence activities, which is required by law.

Do you believe that the Committee was kept fully and currently

informed, as the statute also requires, about the CIA’s detention

program?

Mr. RIZZO. Well, as you know, for a considerable period of time

the interrogation techniques aspect of the program was kept to the

leadership of the Committees. It has now been briefed to the full

Committee.

As you also know, there are provisions in the National Security

Act allowing limited notifications in certain extraordinary circumstances. So I believe the way the matter was briefed originally

was legally appropriate. I do believe that I certainly am more comfortable and feel better now that the whole Committee has been

briefed into the program, yes, sir.

Senator WYDEN. So you would say, though, that keeping only two

Members of the Committee informed—because that is what we

faced under this program—is still keeping the Committee fully and

currently informed?

Mr. RIZZO. Well, as I say, the law does allow—first of all, let

me——

Senator WYDEN. I want to hear your opinion. I want to hear your

opinion as to whether having two Members of this Committee constitutes keeping the Committee fully and currently informed. Does

it?

33

Mr. RIZZO. I do believe the law does allow in certain extraordinary instances for that system of reporting.

Senator WYDEN. I’d just like to ask it once again. Do you in your

opinion think having two Members of the Committee know about

something like this, of this importance, constitutes keeping the

Committee currently and fully informed?

Mr. RIZZO. I think it’s a legally appropriate step.

Senator WYDEN. Thank you.

Thank you, Mr. Chairman.

Chairman ROCKEFELLER. I’m going to make a Chairman’s decision here. We only have about 5 minutes left in a vote, and Vice

Chairman Bond has gone off to vote. What I would suggest is we

adjourn and come right back. We will vote—there’s only one vote,

Mr. Rizzo—then we’ll be right back. That way, we all get to vote.

Senator LEVIN. Mr. Chairman, could I make a unanimous consent request?

Chairman ROCKEFELLER. Of course.

Senator LEVIN. I’d ask unanimous consent that a statement of

the President in December of 2005 that we do not render to countries that torture—a statement made in public—be inserted in the

record at this point, in contrast to Mr. Rizzo’s statement that he

could not answer that question in public.

Chairman ROCKEFELLER. It will be done.

[The information referred to follows:]

34

35

36

Chairman ROCKEFELLER. The Committee stands in recess.

[Recess.]

Vice Chairman BOND [presiding]. This hearing will reconvene,

and again, with apologies for the Senate schedule. But I know Mr.

Rizzo is familiar with how that always messes things up.

And I believe Senator Feingold is up to ask questions.

Senator FEINGOLD. I thank the Vice Chairman for starting up

the hearing.

Welcome, Mr. Rizzo.

Let me ask you, are the statutes governing the authorities of the

CIA binding or are they subject to Presidential assertions of Article

II authority to violate the law?

Mr. RIZZO. No, Senator, all statutes affecting CIA are clearly

binding on CIA.

Senator FEINGOLD. Regardless of Article II authority?

Mr. RIZZO. Well, I mean, sure. I mean——

Senator FEINGOLD. OK.

The National Security Act provides that the CIA shall have no

police, subpoena or law enforcement powers or internal security

functions. Is this law binding or is it subject to Presidential assertions of Article II authority to violate the law?

Mr. RIZZO. Well no, I mean, I’ve always considered that—that is

one of the earliest statutes on CIA, and yes, I consider it binding.

Senator FEINGOLD. So the President cannot override it simply

based on Article II authority; correct?

Mr. RIZZO. That’s my—that would be my opinion, yes, sir.

Senator FEINGOLD. In 2002, the Department of Justice concluded

even if an interrogation method might violate the statutory prohibition against torture, the statute would be ‘‘unconstitutional if it

impermissibly encroached on the President’s constitutional power

to conduct a military campaign.’’

Do you believe that the statutory prohibition against torture encroaches on the President’s constitutional power?

Mr. RIZZO. No. The statutory prohibition on torture is absolute.

There are no countervailing considerations. So no, that’s an absolute ban.

Senator FEINGOLD. The 2002 Department of Justice memo also

concluded that an official could not be punished under the statutory prohibition on torture for ‘‘aiding the President in exercising

his exclusive constitutional authorities.’’

Do you believe that an individual who violates the law can use

a Presidential authorization as a defense?

Mr. RIZZO. No. A violation of law is a violation of law.

Senator FEINGOLD. Thank you.

Do you agree that any intelligence activity that has foreign policy

implications should be notified to the full Senate Intelligence Committee?

Mr. RIZZO. I wouldn’t go that far, Senator. I believe the—you

know, all covert actions or all intelligence activities—the Intelligence Committee should be kept fully and currently informed as

the law provides.

Senator FEINGOLD. Well, I’m a little concerned, as a Member of

the Foreign Relations Committee. You indicated that you would not

necessarily agree with that, correct?

37

Mr. RIZZO. Correct.

Senator FEINGOLD. I’m also a Member of the Foreign Relations

Committee as well as the Intelligence Committee, so I’m a little

puzzled by that. When this Committee was established 30 years

ago, the Senate specifically intended that members of the Foreign

Relations Committee be represented so that intelligence activities

could be considered in their full policy context. Refusing to disclose

this information to those Members seriously undermines congressional oversight of both intelligence and foreign policy, so I hope

you will consider your opinion on that. And would you like to respond again?

Mr. RIZZO. Well, no, only to say I read your letter you sent Director Hayden a few weeks ago on this subject. I found it thoughtful

and thought-provoking and certainly I take your points.

Senator FEINGOLD. Do you agree that an intelligence activity

should not be kept from the full Senate Intelligence Committee,

merely because it’s based on a novel or controversial legal theory?

Mr. RIZZO. No. No, I believe the law requires the committees to

be fully and currently informed of all intelligence activities.

Senator FEINGOLD. I thank you, sir, for your answers.

Thank you, Mr. Chairman.

Vice Chairman BOND. Thank you, Senator Feingold.

I’m was a little bit puzzled about some of your answers, Mr.

Rizzo. When you’re dealing with the President’s authority as Commander in Chief under Article II and also, in some instances, under

the foreign intelligence surveillance provision, does his power not

supersede statutory limitations which may infringe on that or give

power which is not otherwise specifically authorized by Congress?

Mr. RIZZO. Well, sir, first of all, I can’t sit here and tell you I’m

a constitutional law expert in this regard.

Vice Chairman BOND. I used to try it, but I thought a constitutional provision generally superseded a statutory provision. Is that

not the kind of basic Law 101?

Mr. RIZZO. I believe that’s correct. I was trying to answer the

question—the Senator’s question in the context of intelligence activities. As you know, CIA intelligence activities certainly have

been governed and been governed, as long as I’ve been involved,

based on statutory dictates and statutory requirements. That was

the point I was trying to make.

Vice Chairman BOND. Right. And we understand that. But if the

present President issued an order—or, for example, if the President

determines in the national security to keep something classified or

limited access, that is within his power—that’s beyond the CIA. In

other words, the CIA does not make the decisions when they come

to the Presidential level under Article II.

Mr. RIZZO. Sir—I mean, clearly in the area of activities that I’m

most familiar with, in terms of, let us say, limited notification of

covert action activities, the President makes that determination on

limited notice, yes, sir.

Vice Chairman BOND. I had a couple other questions I wanted

to ask. As a lawyer dealing with it directly, I’d like to know your

assessment of the efficacy of the Intelligence Reform and Terrorism

Prevention Act, whether the creation of a Director of National InVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00041 Fmt 6633 Sfmt 6601 C:\DOCS\41205.TXT DianeA PsN: DianeA
38

telligence has been beneficial and whether you think that Director

has the statutory authority needed to make the new plan work.

Mr. RIZZO. First of all, I believe the current statutory authority

granted the DNI, at least to my lights, are adequate for him to

carry out the responsibilities he’s been given. My reaction thus far

to the effects of the Intelligence Reform Act—still a work in

progress. I have a very close relationship with my counterpart in

the Director of National Intelligence General Counsel. We have a

very strong relationship. We complement each other. So in terms

of my sphere, I believe the Act and the office has worked out well.

Vice Chairman BOND. I’ve been very much concerned about the

impact of leaks, notable and unfortunate, of vital intelligence programs. Can you describe in general, without getting into specifics,

what impact these may have had on the ability of the intelligence

community to carry out its responsibilities? And do you have suggestions on what can be done to protect national security from

these unauthorized disclosures?

Mr. RIZZO. Yes, sir. Of course, being in CIA as long as I have,

I’ve had to—I have been an observer and also a participant in the

leak referral process. I will say a couple of things. The unauthorized disclosures of classified information, at least to my lights, have

proliferated in the last several years, have gotten far more damaging than I can recall them ever being. In recent times, you know,

different kinds of leaks have different kinds of impact, but I can’t

remember a time like the recent history where leaks have caused

such significant and real damage to intelligence equities, so I believe it’s an extraordinarily serious and, for that reason, growing

problem.

Vice Chairman BOND. What needs to be done?

Mr. RIZZO. Well, I mean, I think, we have to be—and when I say

we, I believe the executive branch, of which I am part—for our part

we have to be much more disciplined in the way we protect classified information. I believe the oversight committees, the oversight

system—you know, that is not the problem. I believe that we just

have to—you know, all I know about is the executive branch. My

own view——

Vice Chairman BOND. How about prosecuting some of them?

Mr. RIZZO. Well, if we can find them, Senator, we try to prosecute them. I just think we have to be more disciplined. I think far

too many people know far too much, and we have to, I think, be

more disciplined in keeping truly secret information in tightly held

compartments.

Vice Chairman BOND. Thank you very much, Mr. Rizzo.

Mr. RIZZO. Thank you.

Vice Chairman BOND. Mr. Chairman.

Chairman ROCKEFELLER [presiding]. Thank you very much, Mr.

Vice Chairman.

Senator Feinstein, I don’t mean to catch you unawares here, but

nobody catches you unawares.

Senator FEINSTEIN. Well, that’s not quite true, but I very much

appreciate the sentiment.

Chairman ROCKEFELLER. But you are up.

Senator FEINSTEIN. Thank you very much.

39

Mr. Rizzo, I’m sorry. I’ve been in and out, and I know I’ve missed

some. But I’d kind of like to go back to the questioning of Senator

Wyden and Senator Levin.

I happen to have a very strong belief that the legal foundation

on which torture was based was deeply flawed. And I mean, if you

were part of that legal foundation, it’s very difficult for me to vote

for you. Because I believe that one of the reasons we are so hated

abroad is because we appear to be hypocrites. We say one thing

and we practice another. So I’m just going to try in a simple way

to get some yes or no answers, and I know that may be difficult

for you.

Do you interpret Common Article III to prohibit all humiliating

and degrading treatment, or only humiliating and degrading treatment that meets the threshold of being an outrage? And Common

Article III prohibits outrages upon human dignity, in particular

humiliating and degrading treatment.

Mr. RIZZO. Yes, I would not object to your characterization of

Common Article III. If I could, Senator, with your indulgence——

Senator FEINSTEIN. But you are saying—you are interpreting

that you have to meet the threshold of a so-called outrage. Is that

correct?

Mr. RIZZO. Outrage is—yes. Outrage on personal dignity, in particular humiliating and degrading treatment, yes.

Senator FEINSTEIN. Well, how would you evaluate that?

Mr. RIZZO. In terms—again, I think this is an area where I could

be most helpful and informative in a classified session. I take it the

premise of your question is: How do I evaluate that in the context

of the interrogation program over the years? Well, I’m delighted to

do that. I just feel constrained in this atmosphere, Senator.

Senator FEINSTEIN. OK. All right. Well, let me try this one.

Was Common Article III applied to people like the 14 high-value

detainees that are now in Guantanamo while they were in CIA custody?

Mr. RIZZO. Common Article 13, as you know, the Supreme——

Senator FEINSTEIN. Common Article III.

Mr. RIZZO. I’m sorry. Common Article III of the Geneva Convention were applied to certainly the 14. However, it was not until

June 1996 that the Supreme Court held that Common Article III

applied to the al-Qa’ida conflict. Prior to that time, based on existing authorities and existing precedents, enemy combatants, as you

know, were not considered to come within the rubric of Common

Article III—Common Article III, yes.

Senator FEINSTEIN. So you said the date was September 12?

Mr. RIZZO. No, no. The date was the date of the Hamdan case.

Senator FEINSTEIN. Hamdan——

Mr. RIZZO. June 2006. So my point is, Senator, they were held—

obviously, they were captured and held before that time. I can’t tell

you that before the time of the Hamdan decision that Common Article III—that we applied—that those standards were applied to

enemy combatants like they were.

Senator FEINSTEIN. Well, now, Senator Levin asked you the same

question I’m asking, but in a somewhat different way. Is the CIA

bound by Common Article III? And your answer was, ‘‘and as interVerDate 11-MAY-2000 10:22 Jun 12, 2008 Jkt 041205 PO 10000 Frm 00043 Fmt 6633 Sfmt 6601 C:\DOCS\41205.TXT DianeA PsN: DianeA
40

preted.’’ I’d like to ask one more time—and I don’t mean to push

you, but can you answer that question yes or no?

Mr. RIZZO. Well, yes. I wasn’t trying to be disingenuous or avoid

the question. It’s just, as you know, the Congress, in the wake of

the Hamdan decision, passed the Military Commissions Act some

months later, which took the Hamdan decision, applied Common

Article III, established specific war crimes. That was my only point,

that Common Article—that Congress in its statutory role interpreted and applied Common Article III as to make it legally binding on the U.S. Government.

Senator FEINSTEIN. Let me ask you how you look at this job. In

considering legal opinions in the area of detention, interrogation

and rendition, would the Office of General Counsel look at or advise the Director only on legality, or would you make recommendations based on matters such as the impact on the Nation’s international standing, or whether United States actions in these areas

will affect the ways United States military or other personnel be

treated if they are detained?

Mr. RIZZO. Yes, that would certainly be within the role of the

General Counsel. It’s frankly one of the things I’ve always found

most rewarding about being a lawyer at CIA, is that one’s opinion

is solicited and listened to, not just on strictly legal issues, but also

policy, operational, matters of congressional relations across the

board. So sure. My advice would not be limited—never has been

limited to straight legal conclusions.

Senator FEINSTEIN. OK. My time is up. Thank you, Mr. Chairman.

Chairman ROCKEFELLER. Thank you, Senator Feinstein.

I just have two questions, and then, unless others have questions, then we will go to the second phase of this.

The Detainee Treatment Act prohibits ‘‘cruel, inhuman or degrading treatment or punishment.’’ What do you understand this

prohibition to mean, and how is it different from the Common Article III prohibition that you and Senator Feinstein were discussing?

Mr. RIZZO. Well, the prohibitions are actually somewhat similar.

The Detainee Treatment Act, as you know, Senator, was enacted

at the end of 2005. The Military Commissions Act, in the wake of

the Hamdan decision, was enacted in late 2006. So we view them

as complementary statutes.

The Article III, the cruel, inhuman and degrading treatment or

punishment standard—just to cut to the chase—as a legal matter;

involves a test of what is called shocking—‘‘shocks the conscience.’’

Certain government—the Due Process Clause bars interrogation

techniques that ‘‘shock the conscience.’’ So that would be the applicable legal standard I would say in both statutes.

Chairman ROCKEFELLER. Shock the conscience.

OK. This is my final question for here. The Military Commissions

Act of 2006 gives the President the authority to interpret the

meaning and application of non-grave breaches of the Geneva Convention, and to promulgate administrative regulations for nongrave breaches of the Geneva Convention.

Have such administrative regulations been promulgated by the

CIA?

41

Mr. RIZZO. Not to date. As you know, we are awaiting the President’s Executive order, which would be the next step in the process.

Chairman ROCKEFELLER. If you could make that more clear for

me. ‘‘Not to date.’’ In other words, no?

Mr. RIZZO. No, the CIA has not issued administrative regulations

in this arena, as of today.

Chairman ROCKEFELLER. The reason I just wanted to parse

words a little bit is because I got a legal lesson from Senator Levin

when I asked you in my opening question, did you object to—no—

or you answered, ‘‘I don’t object to.’’ And what he pursued with

was, ‘‘Did you approve?’’ And of course I’m not a lawyer, he is. And

I learned that little lesson. That’s accusing you of nothing, it’s just

me saying that I learned from that experience.

Mr. RIZZO. No, that’s very good. I mean——

Chairman ROCKEFELLER. You think I did well?

[Laughter.]

Chairman ROCKEFELLER. Thank you.

Has the President established the administrative rules and procedures for compliance with the Detainee Treatment Act provision

on ‘‘cruel, inhuman or degrading treatment or punishment,’’ as referenced in the Military Commissions Act?

Mr. RIZZO. Not to date, no, sir.

Chairman ROCKEFELLER. It has not?

Are there limits on how the President can interpret non-grave

breaches of Common Article III of the Geneva Convention? Does

the President have the authority under the Military Commissions

Act to interpret this prohibition on ‘‘humiliating and degrading

treatment’’ to mean nothing more than the prohibition in the Detainee Treatment Act—sorry for the complexity of this—that is, a

prohibition on the ‘‘cruel, inhuman or degrading treatment or in

punishment prohibited by the Fifth, Eighth and Fourteenth

Amendment of the Constitution.’’

Now, if you can remember all of that and answer it, I would be

grateful.

Mr. RIZZO. OK. Let me give it a shot.

The Military Commissions Act—it features three of the—it made

three aspects—provides specific offenses that would constitute Federal crimes if committed by or against U.S. persons. Those involve

torture, cruel and inhuman treatment, and intentionally causing

bodily injury. Those are the so-called grave offenses to Common Article III.

There is a second category of authorities granted by the Military

Commissions Act that place authority for interpreting the Geneva

Convention outside of these so-called grave breaches specified in

the War Crimes Act, with the President. So it’s a two-tier process.

The grave, inhuman breaches would be—are made criminal by the

Act. So a lesser set of categories, if you will, the Act gives to the

President to interpret.

Chairman ROCKEFELLER. All right.

Mr. RIZZO. But I guess the answer to your question is yes.

Chairman ROCKEFELLER. Yes, I hope so.

Senator Wyden.

Senator WYDEN. Thank you, Mr. Chairman.

42

There was two other areas I wanted to get in real briefly. Mr.

Rizzo, does the President have the authority to direct the CIA to

capture and detain an American overseas?

Mr. RIZZO. I’m sorry, Senator. I’m trying to hesitate because I

want to answer that question in a way that’s accurate and unclassified.

Well, I really should—this is too serious a question for me to

handle in a shorthand fashion. Let me—let it just suffice to say it

would be extraordinarily problematic in terms of the rights of an

American citizen for certainly the CIA to capture him overseas.

Senator WYDEN. But you’re saying it could be done. You’ve said

it would be extraordinary circumstances.

I’m going to go into this at length in closed session. But you’ve

said it could be done, and that certainly raises troubling issues for

me.

Mr. RIZZO. Well, I’m not—again, I don’t want to say it could be

done. What I am—what I——

Senator WYDEN. You just said in extraordinary circumstances.

Mr. RIZZO. I said it would be extraordinarily difficult—if I didn’t

say that, I meant that—given the rights that attach to a U.S. citizen in terms of due process, for the President to direct the CIA to

capture a U.S. citizen overseas.

Senator WYDEN. Let me ask you about the matter I discussed

earlier, the question of the United States being an occupying power

in Iraq. And you sort of intimated you thought it was just a policy

question and not a legal question—a judgment I don’t share.

But how do you know what aspects of the Geneva Convention

apply if you don’t know whether the United States is still occupying Iraq as a legal matter?

Mr. RIZZO. All I can tell you, Senator, is our attention, our focus

on the Geneva Convention, the impact it has on CIA and currently

authorized CIA activities have to do with terrorist activities, not

with respect to the military conflict in Iraq.

So that’s why I frankly am not—I don’t feel terribly comfortable

opining on the scope of Geneva as it pertains to the current conflict

in Iraq.

Senator WYDEN. I can see why you wouldn’t feel particularly

comfortable, but I’m still unclear as to how, given your answer,

how you would instruct agency personnel with respect to their obligations. I’m going to ask some more about this when we’re in

closed session.

Thank you, Mr. Chairman.

Chairman ROCKEFELLER. What we will do now, Mr. Rizzo, is,

one, thank you for your public testimony and your family members

and all those who chose to attend, and our Senators who are basically at four different very important mark-up-type sessions this

afternoon and thus are in and out, for which I apologize.

We will now end this hearing and resume it shortly.

Mr. RIZZO. All right. Thank you, Mr. Chairman.

Let me just say while we’re still in open session, I do appreciate,

I honestly do, the fairness and consideration with respect—with the

way the Committee has treated me and my nomination, and I’m

grateful to you, Senator Bond and your staff.

Thank you.

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Chairman ROCKEFELLER. I’m glad.

This particular hearing is adjourned.

[Whereupon, at 4:21 p.m., the Committee adjourned.]

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