U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

56–435 PDF 2010

S. HRG. 111–558 

NOMINATION OF ROBERT S. LITT TO BE GENERAL 

COUNSEL, OFFICE OF THE DIRECTOR 

OF NATIONAL INTELLIGENCE AND 

NOMINATION OF STEPHEN W. PRESTON 

TO BE GENERAL COUNSEL, 

CENTRAL INTELLIGENCE AGENCY 

HEARING 

BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE 

OF THE

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MAY 21, 2009 

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.] 

DIANNE FEINSTEIN, California, Chairman 

CHRISTOPHER S. BOND, Missouri, Vice Chairman 

JOHN D. ROCKEFELLER IV, West Virginia 

RON WYDEN, Oregon 

EVAN BAYH, Indiana 

BARBARA A. MIKULSKI, Maryland 

RUSSELL D. FEINGOLD, Wisconsin 

BILL NELSON, Florida 

SHELDON WHITEHOUSE, Rhode Island 

ORRIN G. HATCH, Utah 

OLYMPIA J. SNOWE, Maine 

SAXBY CHAMBLISS, Georgia 

RICHARD BURR, North Carolina 

TOM COBURN, Oklahoma 

JAMES E. RISCH, Idaho 

HARRY REID, Nevada, Ex Officio 

MITCH MCCONNELL, Kentucky, Ex Officio 

CARL LEVIN, Michigan, Ex Officio 

JOHN MCCAIN, Arizona, Ex Officio 

DAVID GRANNIS, Staff Director 

LOUIS B. TUCKER, Minority Staff Director 

KATHLEEN P. MCGHEE, Chief Clerk 

(III) 

CONTENTS 

THURSDAY, MAY 21, 2009 

OPENING STATEMENTS 

Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California .................. 1 

Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from Missouri ....... 4 

WITNESSES 

Litt, Robert S., Office of the Director of National Intelligence General Counsel-Designate ........................................................................................................ 5 

Prepared statement .......................................................................................... 6 

Preston, Stephen W., Central Intelligence Agency General Counsel-Designate 8 

Prepared statement .......................................................................................... 8 

SUPPLEMENTAL MATERIAL 

Questionnaire for Completion by Presidential Nominees for Robert S. Litt ...... 30 

Prehearing Questions for the Record and Responses of Mr. Litt ........................ 54 

Questions for the Record and Responses of Mr. Litt ............................................ 76 

Letter from Robert I. Cusick, Office of Government Ethics, Dated May 4, 

2009, Transmitting Public Financial Disclosure Report for Mr. Litt .............. 106 

Questionnaire for Completion by Presidential Nominees for Stephen W. Preston .......................................................................................................................... 119 

Prehearing Questions for the Record and Responses of Mr. Preston .................. 143 

Questions for the Record and Responses of Mr. Preston ...................................... 164 

Letter from Robert I. Cusick, Office of Government Ethics, Dated May 20, 

2009, Transmitting Public Financial Disclosure Report for Mr. Preston ........ 184 

(1) 

NOMINATION OF ROBERT S. LITT TO BE 

GENERAL COUNSEL, OFFICE OF THE 

DIRECTOR OF NATIONAL INTELLIGENCE 

AND NOMINATION OF STEPHEN W. PRESTON 

TO BE GENERAL COUNSEL, CENTRAL 

INTELLIGENCE AGENCY 

THURSDAY, MAY 21, 2009 

U.S. SENATE, SELECT COMMITTEE ON INTELLIGENCE, Washington, DC. 

The Committee met, pursuant to notice, at 2:33 p.m., in Room 

SH–216, Hart Senate Office Building, the Honorable Dianne Feinstein (Chairman of the Committee) presiding. 

Committee Members Present: Senators Feinstein, Wyden, Mikulski, Feingold, Whitehouse, Levin, Bond, Snowe, and Risch. 

Chairman FEINSTEIN. Because we have a vote coming up at 2:40, 

which is about seven minutes from now, I’m going to begin the 

hearing and try to keep it going during the vote. I know the Vice 

Chairman is on his way. We have three other Members here, so I 

think I’ll begin and I’ll begin with my statement. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, 

CHAIRMAN, A U.S. SENATOR FROM CALIFORNIA 

Chairman FEINSTEIN. The committee meets today to receive testimony to consider two nominations: Mr. Robert Litt, nominated to 

be the General Counsel in the Office of the Director of National Intelligence, and Mr. Stephen Preston, nominated to be General 

Counsel of the Central Intelligence Agency. And I welcome both of 

them. 

If you have family with you that you would like to introduce 

right now I think that would be very nice. I know you both do, so, 

Mr. Litt, why don’t we begin with you and let everybody meet your 

two daughters, your wife, your mother-in-law—— 

Mr. LITT. Thank you, Madam Chairman. Directly behind me is 

my oldest daughter, Rebecca, who spent three-and-a-half years 

working as a legislative assistant for Senator Mikulski. Next to her 

is my wife Deborah, who is one of the most patient women in the 

world. Then my youngest daughter, Rachel—— 

Chairman FEINSTEIN [continuing]. And I asked who’s the boss in 

the family, and Rachel immediately said she was. 

Mr. LITT. Immediately and correctly. My mother, Edith Litt, and 

mother-in-law, Joan Gordon. My middle daughter Miriam is not 

2 

here today because she’s on her honeymoon—she got married 10 

days ago, and so I’m probably the rare nominee that comes before 

you and can’t say for sure that this is the most stressful thing he’s 

done this week. [Laughter.] 

Chairman FEINSTEIN. Mr. Preston. 

Mr. PRESTON. Thank you, Madam Chairman. I am very pleased 

to introduce to the Committee my wife Mary Manemann Preston, 

and our daughter Julia and our son Collett. 

Chairman FEINSTEIN. Well, I hope the families know they are 

very much welcomed. 

Both nominees have provided written responses to background 

questions and to questions about legal issues they will confront if 

confirmed. Their answers will be posted today on the committee’s 

Web site. I have met with both nominees and came away from both 

meetings duly impressed. 

It is crystal clear that the intelligence community, and perhaps 

the CIA more than the other 15 agencies, needs absolutely clear, 

authoritative, and accurate legal advice. The intelligence community and the nation have struggled with questions about the legality of counterterrorism operations—notably rendition, detention 

and interrogation—over the past few years. 

There have been similar doubts about the legality of the 

warrantless surveillance program conducted outside of the Foreign 

Intelligence Surveillance Act. I expect Members will have questions 

about many intelligence activities, and we look forward to your responses, gentlemen. 

To me, the key questions are: will these two nominees, if confirmed, provide sound and careful legal advice and also their best 

counsel and judgment to the director of national intelligence and 

the Director of the CIA. 

If necessary, will they do everything within their power to prevent any activity that they believe to be unlawful and unwise? And 

I would add this: Will they ensure that there is appropriate oversight within all three branches of the federal government to ensure 

that programs only go forward after all relevant and required 

views are obtained and followed? 

Let me say a few words about each nominee and the position to 

which they are nominated. 

Mr. Robert Litt is a graduate of Harvard University and Yale 

Law School. He clerked for Judge Edward Weinfeld of the Southern 

District of New York and Justice Potter Stewart of the Supreme 

Court. He served as an Assistant U.S. Attorney in the Southern 

District of New York for six years. He later became a partner at 

the law firm of Williams & Connolly, and then, from 1993 to 1999, 

served in the State Department and at the Department of Justice, 

where he rose to be Principal Deputy Attorney General, with responsibilities including FISA applications, covert action reviews 

and other national security matters. 

He has been a partner with the law firm of Arnold and Porter 

since 1999. If confirmed, Mr. Litt would be the second General 

Counsel in the Office of the Director of National Intelligence. The 

first person to hold the position, Ben Powell, appeared regularly before this committee and should be commended for his straightforward and helpful testimony and advice. 

3 

The General Counsel is the chief legal officer of the Office of Director of National Intelligence. In providing legal advice to the 

DNI, he must have insight into activities throughout the intelligence community, including those of the General Counsel offices 

in the various intelligence community elements. 

The committee expects that Mr. Litt will be aware of and have 

an opportunity to evaluate all of the significant legal decisions 

made throughout the intelligence community. As the committee recently discussed with Director Blair, the General Counsel will also 

represent the executive branch in proposing and negotiating legislative provisions for our annual intelligence authorization bill, 

which is coming up, and other legislation that effects the equities 

of the intelligence community. 

Stephen Preston is a graduate of Yale University and Harvard 

Law School. He clerked for Judge Phyllis A. Kravitch, U.S. Court 

of Appeals for the 11th Circuit, and joined Wilmer, Cutler & Pickering, where he became a partner. From 1993 to 2000, Mr. Preston 

served in the Department of Defense and the Department of Justice. 

He was Principal Deputy General Counsel of the Department of 

Defense, Deputy Assistant Attorney General, Civil Division, in the 

Department of Justice, and General Counsel of the Department of 

the Navy. He has been a partner at WilmerHale since 2001. 

The position of CIA General Counsel has been vacant since July 

of 2004. Frankly, I can’t think of an agency in the United States 

government that is in stronger need of a Senate-confirmed General 

Counsel than the CIA. 

This is an agency that operates outside of the law around the 

world but is required to operate in strict compliance with United 

States law. This is an extremely challenging legal position and one 

that requires a strong and principled General Counsel. 

The CIA Office of General Counsel played a key role in the creation of the detention and interrogation program. It provided significant information to the Office of Legal Counsel at the Department of Justice. It participated in most of the briefings to the National Security Council and to Congress. And it was in charge of 

interpreting and implementing the Office of Legal Counsel’s guidance to CIA interrogators in the field. 

As I said before, the CIA and the nation need a strong General 

Counsel of unimpeachable integrity and an unwavering commitment to the Constitution and laws of the United States, and I cannot say that too strongly. 

I am pleased that the two nominees before us are both highly 

qualified, highly respected in their field, and well suited to provide 

this advice to both the Director of National Intelligence and the 

CIA. 

I now turn to the Vice Chairman. Before I do, I would just like 

Members to know that we would like to have a brief classified session on some recent happenings in—we can go to 211 directly following this and hopefully these hearings, because they are so qualified, will go quickly. 

Mr. Vice Chairman. 

4 

OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE 

CHAIRMAN, A U.S. SENATOR FROM MISSOURI 

Vice Chairman BOND. Madam Chair, thank you. I think that’s a 

good idea. I think I can fire off all my questions in one round or 

submit them for the record. And I agree with you it’s time that we 

had that meeting. But I welcome Mr. Litt and Mr. Preston and 

their families to the committee—to Mr. Litt to be the General 

Counsel for ODNI, Mr. Preston to be General Counsel for the CIA. 

Madam Chair, I think both men come to this hearing with impressive credentials, considerable experience and a modest recognition that they still have to learn much about national security law. 

Fortunately, there are many talented lawyers at the ODNI and 

CIA offices of the General Counsel who will assist them in getting 

up to speed on the national security learning curve. 

These are extremely important positions and nominations, as 

you’ve pointed out, Madam Chair. Many people don’t understand 

the crucial role that the lawyers play within the intelligence community. 

National security lawyers routinely review operational activities 

to ensure that they are conducted within the bounds of the law. 

Sometimes they have to deliver bad news and disapprove certain 

operations. And that is very important—to say no when it has to 

be said. 

At the same time, they serve as problem solvers who ought to be 

able to find a way to comply with the law, to satisfy the legal requirements and still accomplish the intelligence objectives for 

which their agencies are charged. 

In addition to the important oversight role, national security lawyers are often called upon to provide Congress with necessary technical assistance to ensure that relevant legislation does not adversely impact intelligence equities and, having worked extremely 

closely with the lawyers during FISA, I know how valuable their 

assistance is with respect to national security legislation. 

We’ve relied on them in the past years and we will again in the 

USA PATRIOT Act, the Patriot Improvement Reauthorization Act, 

and implementing further recommendations of the 9/11 Commissions Act. I think it’s safe to say that the two men now sitting before us will play an important role in future legislation. 

I have met privately with each of the nominees and was very favorably impressed. I think both men are talented lawyers who are 

capable of being effective leaders and managers of their respective 

offices and have the necessary character, quality, experience and 

knowledge to do the job. 

I congratulate you on your nominations. I look forward to your 

testimony, and assuming you are confirmed, which I think you will 

be, I look forward to working with you to ensure that the ODNI 

and the CIA offices of the General Counsel continue to provide outstanding legal support to the intelligence community and to Congress. 

Thank you, Madam Chair. 

Chairman FEINSTEIN. And I thank you, Mr. Vice Chairman. 

Members should know that Mr. Litt’s remarks are under tab C, 

and Mr. Preston’s under tab D, and they are both concise and 

short. 

5 

Mr. Litt, would you care to make a brief statement to the committee and then we’ll follow with Mr. Preston, and then a few questions. 

STATEMENT OF ROBERT S. LITT, OFFICE OF THE DIRECTOR 

OF NATIONAL INTELLIGENCE GENERAL COUNSEL-DESIGNATE 

Mr. LITT. Thank you, Madam Chairman. My oral remarks will 

be even shorter. 

Madam Chairman, Vice Chairman Bond and Members of the 

committee, I want to thank you for the opportunity to appear before you here today. I also have appreciated the opportunity to 

meet privately with a number of you to hear what’s on your mind 

and what your concerns are about the law and the intelligence 

community. 

I am deeply honored that President Obama has nominated me to 

be the General Counsel of the Office of the Director of National Intelligence. The past few years, as you know, have been trying ones 

for the Intelligence Community. It has been accused of a wide variety of failures. It’s been accused of errors of omission and errors of 

commission. It’s been accused of excessive passivity and of over-aggressiveness. And it is still dealing with the restructuring that 

Congress ordered with the Intelligence Reform and Terrorism Prevention Act of 2004, which is the most substantial reorganization 

of the intelligence community since the passage of the National Security Act in 1947. 

Our nation needs a strong and vital intelligence community in 

order to protect itself from its enemies; but the intelligence community equally needs clear legal rules that define what it can and cannot do. These twin needs are reflected in the twin statutory responsibilities of the Director of National Intelligence—one, to ensure 

that the president, the executive branch and the Congress are provided intelligence that is ‘‘timely, objective, independent of political 

considerations, and based upon all sources available to the intelligence community and other appropriate entities,’’ and; two, to ensure that the activities of the intelligence community are carried 

out in ‘‘compliance with the Constitution and laws of the United 

States.’’ If I am confirmed as General Counsel, I look forward to assisting Director Blair in carrying out these responsibilities. 

I know, from talking with some of you, that the Members of this 

committee are very concerned with whether the Director of National Intelligence has the proper authorities to carry out these important responsibilities. And, if confirmed, I will pay close attention 

to how those authorities work in practice, and if there are any deficiencies in them I will bring them to the attention of this committee and work with the committee to try to remedy them. 

I will also be mindful of the need for Congress to exercise effective oversight of the activities of the intelligence community. I believe that congressional oversight is particularly important in the 

area of intelligence because of the central role that intelligence 

plays in protecting national security, because of the power of the 

tools that are given to the intelligence community, and their potential risks to privacy and civil liberty if they are abused, and because of the necessarily secret nature of much of what the intelligence community does. 

6 

Director Blair has emphasized to the entire intelligence community the importance of keeping the intelligence committees fully 

and currently informed about intelligence activities—and if confirmed I will fully support him in that and will work with you to 

try to ensure that you are able to exercise this oversight function 

in the manner in which it needs to be exercised. 

In addition, there are a wide range of important and challenging 

legal issues affecting the intelligence community, some of which I 

discuss in my written statement. If confirmed, I will not only provide Director Blair my best views on the law based on a thorough 

understanding of the facts and the law—whatever those views may 

be—but also my counsel and judgment on the wisdom and propriety of particular courses of conduct. 

Madam Chairman, in the course of my professional career, I have 

been privileged to get to know many individuals who work as part 

of the intelligence community, both lawyers and non-lawyers. They 

are dedicated professionals, many of whom gave up a potentially 

lucrative career in the private sector for the privilege of serving the 

United States and protecting its people. If I am confirmed, I look 

forward to the great privilege of assisting them in that vital task. 

Thank you for your consideration of my nomination. 

[The prepared statement of Mr. Litt follows:] 

PREPARED STATEMENT OF ROBERT S. LITT

Madam Chairman, Vice Chairman Bond, Members of the Committee, thank you 

for giving me the opportunity to appear before you today. I have also appreciated 

the opportunity to meet privately with several of you and to discuss a variety of 

issues that are important to you. 

I am deeply honored that President Obama has nominated me to be the General 

Counsel of the Office of the Director of National Intelligence. The past few years 

have been trying ones for the Intelligence Community. It has been accused of a wide 

variety of failures, of errors of omission and of commission, of excessive passivity 

and of over-aggressiveness. And it is still dealing with a restructuring, initiated by 

Congress with the passage of the Intelligence Reform and Terrorism Prevention Act 

of 2004, that is unparalleled since the passage of the original National Security Act 

in 1947. 

Our nation needs a strong and vital Intelligence Community in order to protect 

itself from its enemies; but the Intelligence Community equally needs clear rules 

that define what it can and cannot do. These twin mandates are reflected in the 

twin statutory responsibilities of the Director of National Intelligence to ensure both 

that the President, the Executive Branch and the Congress are provided intelligence 

that is ‘‘timely, objective, independent of political considerations, and based upon all 

sources available to the intelligence community and other appropriate entities,’’ and 

that the activities of the Intelligence Community are carried out in ‘‘compliance with 

the Constitution and laws of the United States.’’ If confirmed as General Counsel, 

I look forward to assisting Director Blair in carrying out these responsibilities. 

Director Blair has made clear to me that he expects my role to encompass the 

provision of both sound legal advice and sound judgment, and if confirmed I am prepared to do so. I have been fortunate to be mentored by a number of outstanding 

lawyers from whom I have drawn lessons that guide my approach to the practice 

of law. My father was a general practice lawyer in the New York suburbs. He made 

me conscious from a young age of the lawyer’s broad responsibilities both to ensure 

that justice is done in the individual case, and towards the improvement of society 

as a whole. I have always tried to keep in mind his example. 

After graduating from Harvard College and Yale Law School, I had the great 

honor to clerk for two outstanding judges. The first was the legendary Judge Edward Weinfeld of the United States District Court for the Southern District of New 

York. Judge Weinfeld was justly famous for his extraordinary diligence, his fairness 

and his thoroughness. He was fond of saying that ‘‘every case is important,’’ and 

for him this was more than a platitude: it characterized his approach to the law, 

in that he gave every case the same degree of attention and thought. I often feel 

his guiding presence looming over my shoulder. After Judge Weinfeld, I clerked on 

7 

the United States Supreme Court for Justice Potter Stewart. Like Judge Weinfeld, 

Justice Stewart did not approach the law with ideological preconceptions. He was 

always concerned with finding the right outcome in the law, not in justifying a predetermined outcome that fit his personal preferences. 

I was then hired as an Assistant United States Attorney for the Southern District 

of New York by Robert B. Fiske, Jr., an outstanding lawyer and leader whose career 

exemplifies the old-fashioned ideal of the lawyer as public servant. After six years 

as a federal prosecutor, I joined the firm of Williams & Connolly in Washington, 

where I had the opportunity to work closely with Edward Bennett Williams, one of 

the giants of the bar, known for his preparation, his judgment and insight into 

human nature, and his zealous devotion to his clients’ interests. Finally, I had the 

privilege to work in the Department of Justice with former Attorney General Janet 

Reno and present Attorney General Eric Holder, each of whom I admire for their 

unfailing commitment to doing the right thing in all circumstances and for their understanding of the moral responsibilities of a government lawyer. 

Each of these very different individuals left their mark on me. I cannot hope to 

match their achievements but I have learned much by their example. I have learned 

that a lawyer has the responsibility to try to help a client achieve his or her goals 

within the law, but equally to tell a client forthrightly when a proposed course of 

conduct is not within the law. I have learned that a lawyer’s duty to a client encompasses first of all a careful, dispassionate and unbiased analysis to determine what 

the law actually is. But a lawyer should also exercise independent judgment and 

advise the client as to the prudence or wisdom of the proposed course of conduct. 

I have learned that a lawyer for the government in particular has obligations not 

only to his or her client agency but also to the public at large, and if the client’s 

proposed action would not serve the public interest, the government lawyer should 

say so even if that action is legal. If confirmed, I pledge that I will approach my 

responsibilities as General Counsel in this spirit. 

Over the years I have had the opportunity to work on a variety of matters affecting the Intelligence Community. While at the Department of Justice I worked on 

matters involving the Foreign Intelligence Surveillance Act and the Classified Information Procedures Act; I participated in reviews of covert actions and in evaluating 

crimes reports and requests for legal opinions from the Intelligence Community. I 

have spoken and written about the law and the Intelligence Community. I have represented several members of the Intelligence Community in a variety of matters. 

As a result of this experience, as well as my discussions both with the staff at 

the Office of the Director of National Intelligence and the members of this Committee, I have some knowledge of the legal issues that the Intelligence Community 

faces. I would like briefly to touch upon some of the issues that I expect I will be 

dealing with if I am confirmed as General Counsel. First, I know that Members of 

this Committee are concerned with whether the Director of National Intelligence 

has the proper authorities to do the jobs that Congress has set out for him, and if 

confirmed I will pay close attention to how those authorities operate in practice and 

will bring any deficiencies to the attention of this Committee. 

If confirmed, I will also be mindful of the need for Congress to exercise oversight 

of the activities of the Intelligence Community. I believe that Congressional oversight is particularly important in the area of intelligence, because of the central role 

of intelligence in protecting our national security, the power of the tools given to 

the Intelligence Community and their potential risks to privacy and civil liberties 

if used improperly, and the necessarily secret nature of much of what the Intelligence Community does. Sections 502 and 503 of the National Security Act require 

that the two intelligence committees be kept ‘‘fully and currently informed’’ about 

significant intelligence activities, and Director Blair has reiterated to the entire 

community the need to comply strictly with this requirement. 

There are also several substantive areas that I expect will continue to be at the 

forefront of the activities of the Office of General Counsel. One of the principal responsibilities of the Director of National Intelligence is to ensure that relevant information is shared to the maximum extent possible within the Intelligence Community. We cannot afford to have information that is essential to our national security 

‘‘stovepiped’’ within individual components of the community. The Office of General 

Counsel is deeply involved in writing the rules that will encourage this sharing of 

information and, if confirmed, I look forward to assisting Director Blair in moving 

towards an ever more integrated and cooperative Intelligence Community. 

At the same time, the collection, analysis and dissemination of intelligence information must be done in a manner that protects constitutional and statutory rights. 

Again, it is my understanding that the Office of General Counsel, along with the 

Civil Liberties Protection Officer, plays an important role in creating and overseeing 

the structures and rules that ensure that intelligence activity is consistent with the 

8 

civil liberties and privacy of Americans. This is one of those areas where it is important to provide clear guidance to the Intelligence Community, so that they know 

what they can and cannot do and do not feel the need to consult with lawyers on 

a daily or hourly basis as they do their jobs—which is neither efficient nor realistic. 

One particular area of concern to me is the security of our information and communications systems. While at the Department of Justice, I helped create and stand 

up the Criminal Division’s Computer Crime Section, and I am acutely aware that 

our networks are not only vulnerable to attack but are repeatedly attacked every 

day. The President has ordered a review of our cybersecurity policies. While I do 

not want to prejudge its conclusions I would anticipate that the Intelligence Community would of necessity have a vital role to play in this area, and that the Office 

of General Counsel would play an important role in ensuring that the Intelligence 

Community’s activities in this area are consistent with the law. 

In the course of my professional career I have been privileged to get to know 

many individuals who work as part of the Intelligence Community, both lawyers 

and non-lawyers. They are dedicated professionals, many of whom gave up potentially lucrative career opportunities and have chosen to serve the United States and 

protect its people. If confirmed, I look forward to the great privilege of assisting 

them in that vital task. 

Thank you for your consideration of my nomination. 

Chairman FEINSTEIN. Thank you very much, Mr. Litt. 

Mr. Preston. 

STATEMENT OF STEPHEN W. PRESTON, CENTRAL 

INTELLIGENCE AGENCY GENERAL COUNSEL-DESIGNATE 

Mr. PRESTON. Thank you, Madam Chairman, Mr. Vice Chairman 

and Members of the Committee. I am greatly honored to appear before you as the President’s nominee to be General Counsel of the 

Central Intelligence Agency. Madam Chairman, you were kind 

enough to let me introduce my wife and children a moment ago. I 

should point out that today is our wedding anniversary and so I 

ought to thank the Committee for this occasion to get together. 

[Laughter.] 

Chairman FEINSTEIN. Congratulations. Which one is it? 

Mr. PRESTON. It’s our fifteenth. 

Chairman FEINSTEIN. Congratulations. 

Mr. PRESTON. It is our fifteenth anniversary and I thank you for 

bringing us together on this occasion. 

In all seriousness, these are the most important people in my 

life. And it is because of them that I am here today, prepared to 

undertake what I expect will be the most meaningful and likely the 

most difficult job in my professional life. 

I want to thank President Obama and Director Panetta for their 

trust and confidence in me. If confirmed, I look forward to working 

with you, the Director and the fine men and women of the CIA to 

confront the ongoing threats to our national security and ultimately to protect families like mine all over this country. 

Given the scarcity of time and the abundance of business before 

you, I would like to submit the remainder of my statement for the 

record. Let me say, I appreciate this opportunity to appear before 

the Committee today, and I would be happy to answer any questions. 

[The prepared statement of Mr. Preston follows:] 

PREPARED STATEMENT OF STEPHEN W. PRESTON

Thank you, Madam Chairman, Mr. Vice Chairman, and members of the Committee. I am greatly honored to appear before you as the President’s nominee to be 

General Counsel of the Central Intelligence Agency. With your indulgence, I would 

9 

like to introduce the members of my family: my wife, Mary Manemann Preston; our 

daughter, Julia Preston; and our son, Collett Preston. These are the most important 

people in my life, and it is because of them that I am here today, prepared to undertake what I expect will be the most meaningful, and likely the most difficult, job 

in my professional life. I want to thank President Obama and Director Panetta for 

their trust and confidence in me. If confirmed, I look forward to working with you, 

the Director, and the fine men and women of the CIA to confront the ongoing 

threats to our national security and, ultimately, to protect families like mine all 

over this country. 

This is a dangerous time for the United States and a challenging time for the 

Central Intelligence Agency. The threat of radical jihadist terrorists is real, immediate and unrelenting, and in the fight against them the Agency is at the very tip 

of the spear. America is counting on the Agency to help disrupt and dismantle al 

Qa ’ida, and to learn the intentions of our other adversaries. We will do this, 

through the quiet efforts and untold sacrifices of the talented and dedicated men 

and women who are the Agency. At the same time, the Agency must respond to continued scrutiny concerning past practices. We will do this, too, cooperating with this 

Committee in its review, supporting those who sought and followed authoritative 

legal guidance, and all the while remaining focused on our vital mission going forward. 

The General Counsel has no role more important than ensuring the CIA’s compliance with applicable laws of the United States. If I am confirmed, I will assume 

this responsibility with the utmost seriousness. I believe I have had a good deal of 

useful experience, having spent most of my career in law and national security, both 

in government—as General Counsel of the Department of the Navy, and as Principal Deputy General Counsel and Acting General Counsel of the Department of Defense, as well as at the U.S. Department of Justice—and more recently in private 

practice. I also bring to the job strong commitments, to public service and the protection of U.S. national security, to the rule of law in our society and adherence to 

the law in what we do, and to the exercise of independent judgment and common 

sense in furtherance of all of these. I pledge my full support to the Director, and 

I am eager to join my future colleagues at the Agency and in the Intelligence Community. 

If confirmed, I look forward to working with this Committee and the Congress to 

maintain effective communication, and in addressing the range of legal issues that 

may arise during my tenure. In the meantime, I appreciate this opportunity to appear before the Committee today and would be happy to answer any questions. 

Chairman FEINSTEIN. Thank you very much. I’ll begin the questions. There is a standard of initial questions for all nominees and 

I will quickly read this and if you will say yes or no: 

Do you both agree to appear before the Committee here or in 

other venues when invited? 

Mr. LITT. Yes. 

Mr. PRESTON. Yes. 

Chairman FEINSTEIN. Do you both agree to send officials from 

your respective offices to appear before the Committee and designated staff when requested? 

Mr. LITT. Yes. 

Mr. PRESTON. Yes. 

Chairman FEINSTEIN. Do you agree to provide documents or any 

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

out its oversight and legislative responsibilities? 

Mr. LITT. Yes. 

Mr. PRESTON. Yes. 

Chairman FEINSTEIN. Will you ensure that your respective offices 

provide such material to the Committee when requested? 

Mr. LITT. Yes. 

Mr. PRESTON. Yes. 

Chairman FEINSTEIN. Thank you very much. 

In its short history, the Director of National Intelligence has 

used intelligence community directives to set out guidance and regVerDate Nov 24 2008 15:41 Aug 02, 2010 Jkt 055045 PO 00000 Frm 00013 Fmt 6633 Sfmt 6601 C:\DOCS\56435.TXT SHAUN PsN: DPROCT
10 

ulation across the entire intelligence community—much like the director of the CIA issued DCI directives before the DNI position was 

created. 

Three recent examples of these ICDs are: ICD 101, intelligence 

community policy system, January 16th of this year; ICD 501, discovery and dissemination or retrieval of information within the intelligence community, January 21st; and ICD 402, Director of National Intelligence representatives, May 19th, 2009. Do you believe 

that the DNI has the authority to issue directives to agencies of the 

intelligence community? Mr. Litt. 

Mr. LITT. Yes, I do. 

Chairman FEINSTEIN. Mr. Preston. 

Mr. PRESTON. Yes, ma’am. 

Chairman FEINSTEIN. Do you believe that these intelligence community directives are binding on individual agencies of the intelligence community? Mr. Litt. 

Mr. LITT. Yes, I do. 

Mr. PRESTON. Yes, I believe a properly issued and final ICD is 

binding on agencies in the community. 

Chairman FEINSTEIN. Thank you very much. And just one other 

question. 

On page six of the written questions and answers, Mr. Preston, 

I’d like to ask you to clarify one answer, and here it is: ‘‘By virtue 

of its relationship with the entire intelligence community, the General Counsel’s Office is well-positioned to identify conflicting legal 

interpretations within the community. Because the General Counsel does not have decisional authority to resolve such conflicts, if 

there are conflicting legal views on an issue, I would bring the relevant General Counsels together to discuss the issues and attempt 

to resolve any differing opinions.’’ 

This is your writing. How do you mean this? 

Mr. PRESTON. I believe that comes from Mr. Litt’s questionnaire, 

although I would be happy to address it. 

Chairman FEINSTEIN. Oh, I beg your pardon. 

Mr. LITT. I was going to say, I thought it was my writing, 

Madam Chairman. 

Chairman FEINSTEIN. Well, that’s what piqued my interest in the 

question. I thought it was his. 

Mr. LITT. No, no. 

Chairman FEINSTEIN. But I think—— 

Mr. LITT. Is the answer clearer when you—— 

Chairman FEINSTEIN [continuing]. The answer is much clearer 

when it comes from you, because I think the point that I wanted 

to make clear in my first question, and with this, is the fact that 

we passed legislation to create an overarching head of the 16 intelligence agencies. And that is the Director of National Intelligence. 

And he is the boss. 

And as a matter of fact, we had Mr. Panetta here at his hearing, 

and we asked him, and he verified, yes, the DNI is my boss. And 

I want to be sure that that is the impression of the new legal counsel for the CIA. 

Mr. PRESTON. Understood. 

Chairman FEINSTEIN. Okay. Mr. Vice Chairman. 

11 

Vice Chairman BOND [presiding]. Madam Chair, you are going to 

go vote, I understand—— 

Chairman FEINSTEIN. I’ll go vote and come right back. 

Vice Chairman BOND [continuing]. I will ask questions and hope 

you get back speedily because I will probably have to go vote and 

if Senator Snowe wants to stay around and ask questions after I 

run, I will be happy to turn it over. Otherwise, I will exercise the 

gavel in an apparently untrammeled manner, here, for a couple of 

minutes—as long as I think I can get away with it and still vote 

on time. 

Gentlemen, one of the questions I ought to ask everybody, and 

I will ask again to get your views on the record—and since we’ve 

practiced it before, I’m sure you can be brief and to the point—for 

all national security lawyers, I like to ask—and I’ll first ask Mr. 

Litt and then Mr. Preston—if the President of the United States 

has inherent authority under Article II of the Constitution to engage in warrantless foreign intelligence surveillance or physical 

searches or, in your opinion, does FISA trump Article II? Mr. Litt? 

Mr. LITT. Mr. Vice Chairman, I think the answer to that is that 

there is a very express exclusivity provision in FISA that says that 

it’s the sole means for executing electronic surveillance that comes 

within its terms, and I think that this administration has indicated 

it intends to abide by that exclusivity. Obviously to the extent that 

there are matters that are entirely outside the scope of FISA—the 

President, I think, does have inherent Article II authority to conduct activities that are necessary to the defense of the nation. 

Vice Chairman BOND. So you’re saying he doesn’t have the authority if it’s within the scope of FISA. 

Mr. LITT. I think that this administration has indicated that it 

will abide by the exclusivity provision. This is obviously, as you 

know, one of the constitutional questions that scholars of considerably more wisdom than I have been debating for years and years. 

Vice Chairman BOND. I’ll let you get by with that. 

Mr. LITT. Thank you. [Laughter.] 

Vice Chairman BOND. Mr. Preston. 

Mr. PRESTON. In that case, I’d like to associate myself with his 

remarks. 

Vice Chairman BOND. I want to see if you can do a better job. 

[Laughter.] 

Mr. LITT. I’m sure he can. 

Mr. PRESTON. I think Bob has accurately described the state of 

the play and where the difficulty lies. I have an answer perhaps 

not satisfactory to constitutional scholars and a little more simpleminded, but I don’t think the President is above the law and the 

FISA amendments establish procedures that the President has acknowledged he intends to follow. 

And if there remains, under Article II, powers for him to do differently in special circumstances, I would have to defer to the constitutional scholars on that. 

Vice Chairman BOND. Well, heaven forbid we get into that situation where it’s needed, but I’ll be interested in hearing what you 

have to say should that occasion arise. Mr. Litt. 

Mr. LITT. If I could just add on that, I’m quite confident that if 

that situation ever arose, you would be hearing from us about it. 

12 

Vice Chairman BOND. I used to be a constitutional lawyer, not 

a scholar, but I’ll be happy to talk with you about it. 

Mr. Litt, I’m very much concerned and I’ve asked the DNI and 

these lawyers many times if they had the authorities they need to 

do the job. Some representatives of the DNI indicated they might 

not. I think that question continues to arise. We talked about it. 

Have you had a chance to study it any further since our initial discussion? 

Mr. LITT. Not really. In my mind, Mr. Vice Chairman, what’s 

going to be most important is to have an opportunity to actually 

see how the authorities operate in practice. I can read the words 

of the statute, but until I actually have an opportunity to be in 

place and watch how they’re used and see if there are any gaps, 

I’d be cautious in forming any judgments about whether any additional authorities are needed. 

Vice Chairman BOND. There may be an opportunity very shortly. 

I have questions that we’ve discussed before; I’ll submit them for 

the record. 

Mr. Preston, the Committee has begun a review of the CIA detention and interrogation program. Do you think the Department 

of Justice should conduct criminal investigations on those individuals involved in detention and interrogation of al-Qa’ida terrorists 

in accordance with procedures approved by the OLC and if authorized by the President? 

Mr. PRESTON. Sir, I would note that the President, as well as the 

Attorney General, the DNI, the D/CIA have decided—and the others have agreed—that the people who, in good faith, sought and followed what was believed to be authoritative legal guidance with respect to the interrogation program ought not be subject to prosecution—as Director Panetta said, ought not be subject to investigation and prosecution. 

The fact of the matter is that there has been in place at CIA an 

investigatory mechanism in the form of the IG, which has been, 

since the time that the interrogation program was in place, investigating allegations of abuse. So it’s not as if there isn’t already in 

place investigation efforts, and I just would echo the concept that 

those who acted in good faith, in reliance on that authoritative 

legal authority, ought not be punished for it. 

Vice Chairman BOND. Do you think the DOJ should conduct 

criminal investigation of the lawyers who wrote the CIA opinions, 

the senior Executive Branch officials who authorized the program, 

or congressional members who were aware of the program’s details 

and chose to fail to exercise their congressional oversight to stop 

them? 

Mr. PRESTON. Senator, my focus has been principally on the 

Agency and its role and, frankly, its role going forward. With respect to people at the Justice Department and elsewhere, I really 

haven’t formulated a conclusion. I will tell you, broadly, I believe 

that public servants who act in good faith and in reasonable belief 

that they’re acting lawfully in defense of our country ought not be 

punished for that. I would prefer not to comment on other agencies. 

Vice Chairman BOND. Mr. Litt, any further expansion? 

Mr. LITT. Mr. Vice Chairman, I certainly believe that it is essential to the operation of government that people be able to rely on 

13 

opinions from the Justice Department without fear that those opinions will later be pulled back from them and leave them exposed 

to criminal liability. 

Vice Chairman BOND. I’m asking about if a lawyer gives an opinion you think is bad, should they be prosecuted for it? 

Mr. LITT. I’m not aware of any such case, Mr. Vice Chairman. 

Vice Chairman BOND. I am concerned that we’re moving back to 

a pre-9/11 mentality, where international terrorists are considered 

as ordinary criminals that should be afforded all the due-process 

rights of our criminal courts. Mr. Preston, what are your views on 

this issue? 

Mr. PRESTON. I haven’t conceived of the situation in those terms, 

but my thinking on it is that our government, the past administration and the current administration, have recognized radical 

jihadist terrorist organizations as posing a serious, real and enduring threat to our national security and have been committed to applying the full panoply of tools at our disposal in combating that 

threat. 

Vice Chairman BOND. Mr. Litt, quick answer? 

Mr. LITT. Mr. Vice Chairman, I would simply point to the President’s speech this morning, in which he indicated that there are 

some terrorists who we have who are amenable and properly tried 

in normal criminal courts; there are some who ought to be tried in 

military commissions for acts against the law of war; and that 

there may be some who cannot be tried, but will need to be detained under some legal framework worked out cooperatively 

among the executive branch and the legislative branch. 

Vice Chairman BOND. Gentlemen, I’ll suspend the hearing. It 

will resume at such time as the Chair returns. 

[Recess.] 

Senator WYDEN [presiding]. I want to thank both our nominees, 

and I’m sorry that it’s so hectic on the floor, and you’ll have us 

shuttling back and forth here for a period of time. 

Let me start with you, if I could, Mr. Preston. As I indicated to 

you in the office, I think your position is one of extraordinary importance. When you’re the General Counsel of the CIA, your clients 

are the men and women of the Agency, and it’s your job to protect 

your clients by ensuring that intelligence activities comply with the 

law. 

The dedicated people who work at the Agency take big risks to 

protect their country and uphold American values and they deserve 

to have confidence that they’re never going to end up in trouble because they were asked to participate in a program that did not 

have a strong legal foundation. And as you know, Mr. Preston, I’ve 

taken a great interest in this position in the past and I will continue to do so, and that’s why I have a few specific questions for 

you. 

If you’re confirmed as the CIA General Counsel, and the Department of Justice hands you a poorly-reasoned legal opinion—like the 

Bybee memo—and tells you to use it as the legal basis for a sensitive intelligence program, what would you do? 

Mr. PRESTON. Senator, I strongly believe that as the chief legal 

officer of the Agency, by statute, I have a responsibility to exercise 

independent judgment in matters of law affecting the Agency. I recVerDate Nov 24 2008 15:41 Aug 02, 2010 Jkt 055045 PO 00000 Frm 00017 Fmt 6633 Sfmt 6601 C:\DOCS\56435.TXT SHAUN PsN: DPROCT
14 

ognize that OLC opinions are treated, and properly treated, as 

binding, if you will, within the executive branch. But if I were confronted with a circumstance of the sort you described, and I had 

a strong disagreement with an opinion, I would make my disagreement known. I would make it known to the Director, who is my 

principal and make it known to the leadership of the Justice Department and elsewhere, as appropriate. 

Senator WYDEN. So you would bring it up specifically with the 

Department of Justice and you would say, this memo doesn’t cut 

it and you don’t believe it’s an adequate foundation for a significant 

program? 

Mr. PRESTON. I think that’s a fair statement. 

Senator WYDEN. Okay. One other question I had for you—and 

this was just something that struck me and I’d like to get your 

thoughts with respect to what it was you were trying to convey. In 

response to one of the prehearing written questions to Peru, you 

stated that CIA Office of General Counsel attorneys might somehow advise their clients not to create discoverable documents in situations that might involve litigation. My question is, would you 

agree that government employees have an obligation to make accurate records of their actions and not try to cover up anything by 

refusing to write it down? 

Mr. PRESTON. I would agree with that, Senator. Let me say, as 

I hope I made clear in my written response, I am not familiar with 

the circumstances of the Peru incident—have not reviewed the IG 

report. From my private practice experience, I know it’s not at all 

uncommon to advise clients to take care in what they put in writing, take care with the use of e-mail, what have you, when you are 

in a circumstance of civil litigation or possible civil liability. I consider that worlds apart from telling people not to make proper 

records or to, in any way, falsify or destroy records or anything of 

the sort. 

Senator WYDEN. I appreciate that because it seemed to me that 

the Peru issue certainly is hard to get all the facts in terms of your 

situation at this time, but I just wanted to get on the record that 

you did not mean that the office of the General Counsel should 

somehow advise CIA employees to not keep records. 

Mr. PRESTON. That is a correct understanding and I should have 

been clearer. 

Senator WYDEN. Very good. Let me ask you just one question, 

Mr. Litt, if I might. When we met in my office, we discussed the 

statutory requirements of the executive branch to keep the Committee fully and currently informed about intelligence activities, 

and you actually called afterwards to clarify your answer. I’m encouraged that there is a lawyer who cares that much about making 

sure that they get the question right. 

And, for the record, just tell us, if you would, your views on this 

law and specifically address the practice of notifying only the 

Chairman and the Vice Chairman rather than the full membership 

of the Committee. 

Mr. LITT. Senator, I understand that this is a question of great 

importance to the Committee, and I think it’s of great importance 

to the intelligence community as well because of the importance of 

oversight that I mentioned in my opening statement. 

15 

Section 502 of the National Security Act requires that the intelligence Committees be kept fully and currently informed of all significant intelligence activities. And Director Blair, a couple of 

months ago, as I mentioned, sent around a memorandum to the entire intelligence community emphasizing this. 

And as I believe he said recently, this notification should be to 

the full Committee in all but the most extraordinary circumstances 

when there are compelling national interests. Director Blair has 

also, I think, promised this Committee that if there are such extraordinary circumstances, he will discuss with the Chair and the 

Vice Chairman how and when the full Committee should be 

briefed. 

If confirmed, I look forward to assisting him in the overall process of ensuring that this Committee is kept fully and currently informed. 

Senator WYDEN. Is there any basis in law for limiting notification 

of any intelligence activities other than covert actions to just the 

Chairman and the Vice Chairman? 

Mr. LITT. Section 502 begins with a clause that says that the notification is to the extent consistent with due regard for the protection from unauthorized disclosure of classified information relating 

to sensitive intelligence sources and methods or other exceptionally 

sensitive matters. 

I think that this is at least arguable recognition that there may 

be extraordinary circumstances in which a more limited notification is appropriate, but I would emphasize that in my view this 

should be done only rarely, only when it’s essential because of a 

vital interest and extraordinary circumstances, and should only be 

done in consultation with the Chairman and Vice Chairman. 

Senator WYDEN. My time has expired, but what would be an example of an extraordinary circumstance? I mean, part of the reason 

I’m asking you this is for the reasons that we talked about. 

Most of this Committee was kept in the dark for years and years 

on the interrogation issue, and not just one or two years, but you’re 

hearing all this discussion now about how everybody on this Committee was kept in the loop over the years on the interrogation 

question. 

That’s just a position that’s disconnected from reality. I mean, I 

was on the Committee starting in 2001 and even the Agency’s 

records indicate that we weren’t briefed until 2006. So this is an 

issue I feel strongly about. I think others do. 

So let me close my questioning. I’m over my time, Madam Chair. 

Give me an example of an extraordinary circumstance where you 

wouldn’t see notification to the Committee. 

Mr. LITT. I’m hampered in that by not having actually been on 

the ground and seen many of the circumstances in which notification actually occurs. It would seem to me that one example might 

be where there is exceptionally grave and immediate risk to the 

lives of American agents. That’s a situation where you might consider it. But it’s difficult for me to give specifics on that without 

having been in the job and seeing how it operates. 

Senator WYDEN. Well, the law to me seems to be that it really 

is an exception only for covert activities. I know we’re going to talk 

16 

about this further. Both of you bring, in my view, a great professionalism to these positions. I look forward to voting for you. 

Thank you, Madam Chairman. 

Chairman FEINSTEIN [presiding]. Thank you, Senator Wyden. 

Senator Feingold, I think you’re next, and then Senator Whitehouse. 

Senator FEINGOLD. I thank the Chair and congratulate both the 

nominees on your nomination. 

I do need to pursue what Senator Wyden very appropriately 

began, and that is the issue of the Gang of Eight statute. I heard 

the language ‘‘fully and completely inform the Committee,’’ and the 

Senator went through what the statute says. 

The exception only applies to covert action, not to collection programs or activities, and I’m just trying to figure out what the legal 

basis is for this circumstance that you’re imagining of grave risk 

and so on. What is the legal basis or where is the language that 

allows that kind of an independent interpretation of the plain statute? 

Mr. LITT. Senator, Section 502 begins, ‘‘To the extent consistent 

with due regard for the protection from unauthorized disclosure of 

classified information relating to sensitive intelligence sources and 

methods or other exceptionally sensitive matters, the Director of 

National Intelligence and the heads of all departments, agencies 

and other entities of the United States government involved in intelligence activities shall keep the congressional intelligence committees fully and currently informed,’’ and so on. 

So there clearly is a qualification. In my view, that qualification—and let me make it very clear—I do not think that that qualification is a limitation on whether the intelligence committees 

should be kept informed. I think it does afford some wiggle room 

on how the intelligence committees are kept fully informed. 

As I said, in my view this is something that should be done only 

in the most extraordinary of circumstances and only in consultation 

with the Chairman and Vice Chairman of the Committee. 

Senator FEINGOLD. Well, I appreciate the reference to that language. First of all, the notion that a Committee can be fully informed when just two Members are notified to me is illogical, but 

I understand the argument you’re trying to make. 

But do you agree that the provision which allows for a Presidential determination that limited access is essential ‘‘to meet extraordinary circumstances affecting vital interests of the United 

States’’ was not intended, of course, to authorize hiding matters 

from the full Committee because they are politically sensitive or legally controversial? 

Mr. LITT. Not on those bases alone, no, sir. 

Senator FEINGOLD. Mr. Preston, your answer to this area, please. 

Mr. PRESTON. I would agree on that, certainly. 

Senator FEINGOLD. And what is your general position with regard to the explicit language of the statute and the very narrow exception that’s provided? 

Mr. PRESTON. I think I would agree with Mr. Litt’s construction 

of the statute to the extent that that opening language does provide a qualification on the obligation. However, I would emphasize, 

with equal or greater weight, the point he has made that it should 

17 

be truly exceptional circumstances and that the legal requirement 

here is for complete and timely provision of information to the full 

Committee. The law admits of exceptions only on an extraordinary 

basis. 

I am keenly aware of the concern on this Committee, and I know 

that Director Panetta is aware of the concern, about the use, or 

many would say overuse, of restricted briefings. He is committed 

to addressing that. I will join him in working to improve effective 

communication between the Agency and the Committee and to get 

notification and reporting done right. 

Senator FEINGOLD. I believe both of you are sincere in wanting 

to get this right, but let me just underscore what it means if, after 

what was frankly a rogue administration’s approach to this, somehow the approach is ratified by a second administration that did 

not take such a cavalier attitude but sort of says, well, actually 

there are these independent things you can do despite the statute, 

how serious that would be for this. But I’ve heard your words and 

I look forward to working with you on it. 

Mr. Litt, you have informed the Committee that you represent 

several current and former CIA employees who had some role in 

rendition, detention and interrogation. You indicated that to avoid 

conflicts of interest you will not participate in any decisions affecting the outcome of any prosecutions or investigation of these or 

similarly situated individuals, nor will you offer opinions with regard to particular interrogation procedures that may have been employed in the past and that ‘‘relate to the subject of my representation.’’ 

Given that we can’t predict how current and future policy deliberations might ultimately affect your clients, shouldn’t you proceed 

under the assumption that any opinions you offer on detention, interrogation and rendition could present an appearance of a conflict 

of interest? 

Mr. LITT. Senator, obviously, as you know, I’m keenly aware of 

this issue. I did send a letter to the Committee about it. And I will 

consult regularly with the designated Agency ethics official about 

what is and is not appropriate for me to participate in. 

My approach to the law is generally that I try to apply the law 

to a specific set of facts, and it’s my current judgment that if I am 

presented with a set of facts in the future where somebody asks 

me, can we use this interrogation technique in this circumstance, 

that I would be able to offer an opinion or my best legal judgment 

on that without affecting the interests of my clients. But obviously 

I would be constantly consulting with the ethics officer on that. 

Senator FEINGOLD. Finally, Mr. Preston, the President said today 

that he disagreed with the legal analysis and the OLC memos on 

torture. Do you as well, and do you consider the interrogation techniques described in the OLC memos to be torture? 

Mr. PRESTON. Sir, you said Mr. Preston—— 

Senator FEINGOLD. Yes. 

Mr. PRESTON [continuing]. But you seem to be looking at Mr. 

Litt. 

Senator FEINGOLD. I’m sorry. Go ahead. 

Mr. PRESTON. Shall I answer? 

Senator FEINGOLD. Please, Mr. Preston. 

18 

Mr. PRESTON. Senator, I believe that the four OLC memos at 

issue are flawed. I look to the Justice Department’s own actions in 

reaching that conclusion. The Justice Department, during the last 

administration, repudiated publicly the legal reasoning of the unclassified August 2, 2002, memo from which the classified August 

2, 2002, memo was derived, formally withdrew the former and later 

superseded the latter in May 2005. 

More recently, the Department of Justice has indicated the 

flawed nature of all four memos, having now withdrawn all four, 

such that they are now dead letters. 

Senator FEINGOLD. Do you consider the interrogation techniques 

described in the OLC memos to be torture? 

Mr. PRESTON. I have not reached that conclusion. I have very 

studiously focused on the four opinions as they are relevant to the 

tasks that will lie ahead of me. My view is that by virtue of the 

fact that the practices outlined in those memos have now ended, 

the law has changed since 2002 and 2005 in significant fashion. 

And, as I pointed out, the letters have been withdrawn. 

Senator FEINGOLD. You’ve not reached a contrary conclusion either, right? 

Mr. PRESTON. I have not. 

Senator FEINGOLD. Okay. I apologize for going over my time. 

Chairman FEINSTEIN. Thank you very much Senator. 

Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Madam Chair. Welcome to the 

minefield, gentlemen. [Laughter.] 

Senator WHITEHOUSE. Two issues. One, we urgently need a new 

cyber policy. The trajectory of what the Bush administration has 

left us is not sustainable. Indeed, I think you’ve been left in a bit 

of a trap. It’s all too classified to discuss further, but I would point 

it out publicly it is a very big mine in the minefield. 

Two is torture. This is a question that has three components. The 

first is what we did. And I could not advise you more strongly to 

acquaint yourself with the details, to drill down to the cables, to 

bring people in and ask hard questions, and to not be fobbed off 

with sanitized summaries. Do it yourself or assure that it’s done 

by someone not tainted by the program, independent, and who you 

can trust. 

Ask about conditions, hygiene, humanity and dignity, medical 

care. Ask about the intensity, duration and multiplicity of techniques. Find out if they complied with the limits and the predicates—and the predicates—of the OLC opinions. How bad is it? 

You need to know in order to advise your principals well. 

Second is how this happened. Institutions were damaged to make 

this happen, most profoundly, the Office of Legal Counsel of the 

Department of Justice. But how is it that no lawyer within the intelligence community found United States v. Lee on waterboarding, 

or our history of military prosecutions. Evan Wallach’s Law Review 

article I would commend to you on the availability of that information. What went wrong? Why didn’t they ask about it? 

And, third, this is a problem with a long history of false and misleading information, from the President saying it’s not torture 

when we’ve prosecuted it as torture—as not only a crime but as a 

war crime—in our history. We were told it was clearly lawful and 

19 

the OLC opinions were likely phonied up. Objections to them from 

within the administration were not answered but rather were suppressed. CIA appears to have turned a blind eye to it. ‘‘Clearly lawful’’ seems to exaggerate a good deal. 

It’s the same as the SERE training, we were told. We do it to 

our troops. CIA’s own IG report and the OMS section of that belies 

that. And if you’ve answered the first question you know it’s false, 

the first question being about what was actually done. 

We were told that we need to back our brave CIA agents who did 

all this, and now we find out that the worst of the program was 

actually led by private contractors. We were led to believe that 

waterboarding was irresistible and immediately effective. Then we 

find out that KSM was waterboarded 183 times and another detainee 83 times. We were told that KSM lasted only seconds on the 

waterboard, it was that irresistible, and it never had to be done 

again. That was plainly false. 

We were told that it produced actionable data. I have not yet 

seen evidence of that, and the things that suggest that that’s true 

are carefully worded, I think to mislead. Certainly Director Mueller 

has said he’s seen no evidence of it also. Look carefully. Is there 

actually real evidence of actionable intelligence on the waterboard? 

Finally, military and FBI interrogators have been derided as amateurish and ineffective, with the opposite argument being that it’s 

the expert and experienced folks at the CIA who don’t need the 

Army field manual, sort of like it’s training wheels on a bicycle, in 

order to do their jobs. In fact, the opposite is true. 

The FBI and the military and some career CIA folks were the 

real experts. The people who came in improvised a program. There 

was no previous expertise in that area, and the people who did it 

had no previous experience in interrogation. There is a strong 

record of that at this point. 

This whole question of the false and misleading information 

raises the question whether this is just a giant collective misunderstanding or whether there has been a calculated plan to deceive, 

and, whichever, it feeds into a consistent storyline that is, by all 

the evidence we’ve seen so far, false, and yet was maintained as 

early as today. 

Do not be taken in, I urge you, and do not allow your principals 

to be taken in. We know too much right now that is false. Your reactions? 

Mr. PRESTON. Well, Senator, I appreciate the admonition and the 

guidance. You clearly have followed this closely and are taking an 

active interest in it, which I and others at the Agency I am sure 

appreciate. And I think your observations and admonitions will be 

useful to me if I have the privilege of serving. 

Mr. LITT. Senator, I agree with what Steve said. I would also just 

comment that I know that this Committee is undertaking a review 

of the past interrogation practices, and I think that this Committee 

is particularly well situated to do that in an appropriate manner 

by virtue of the bipartisan tradition of the Committee and the expertise that it has in intelligence. And if I’m confirmed I look forward to doing what I can in working with you in that area. 

Senator WHITEHOUSE. If I may add one final point in reaction to 

that, I could not be more proud of what Chairman Feinstein is 

20 

doing. I could not be more confident in her leadership. But there 

are limitations to what a congressional committee can do in terms 

of the access that we’re allowed to information, in terms of the consequences if we are misled, in terms of the boundary of executive 

privilege that protects certain things, or can be asserted to protect 

certain things. 

I very much hope that the executive branch of government is not 

relying on this Committee to sort out the mess that was made. For 

whatever we’re doing, you have an independent responsibility as 

lawyers and as occupants of the offices you—I hope soon—will hold 

to conduct your own independent, equally rigorous review of this 

so that you and the principals that you represent are not fooled, 

are not misled, and have a full understanding of what took place. 

Chairman FEINSTEIN. Thank you very much, Senator Whitehouse. 

Senator Levin. 

Senator LEVIN. Madam Chairman, thank you very much and 

welcome to our witnesses and their families. 

I want to get back at the answer that you gave, Mr. Preston, I 

understand, to Senator Feingold about whether or not specific techniques represented torture or not, and I think your answer was you 

haven’t reached that conclusion, or something like that? 

Mr. PRESTON. That’s right. 

Senator LEVIN. Have you reached the opposite conclusion? 

Mr. PRESTON. No, sir. 

Senator LEVIN. Have you given some thought to the question? 

Mr. PRESTON. I have indeed. 

Senator LEVIN. And why haven’t you reached a conclusion, if you 

have given thought to it? 

Mr. PRESTON. Well, it’s difficult to answer the question with general reference to the techniques referenced in the opinions. 

Senator LEVIN. How about waterboarding 183 times? 

Mr. PRESTON. I will answer that. I just want to say the point I 

was making with Senator Feingold was that my focus has principally been on the issues I am likely to face going forward. To the 

extent that practices have ended by order of the President, the law 

changed after 2005, and we have a process in place to try to identify permissible practices. I have been focused in that direction and 

not so much on the judgments or misjudgments that were made in 

the past. 

Senator LEVIN. The Attorney General is in the same position you 

are, if you are confirmed. 

Mr. PRESTON. Yes, sir. 

Senator LEVIN. The President had said he’s no longer going to 

use waterboarding. The Attorney General was very forthright. In 

his judgment, waterboarding is torture. He didn’t say what you just 

said—hey, the President said he’s not going to use it. So now let 

me ask you: is waterboarding torture? 

Mr. PRESTON. Well, as you point out, it has been determined at 

the highest level of our government, by the President and by the 

chief legal officer of the country, that waterboarding is torture and 

that the United States will not engage in that practice going forward. That’s a decision made and I support the decision. Yes, sir. 

Senator LEVIN. You support that conclusion? 

21 

Mr. PRESTON. Yes, sir. 

Senator LEVIN. Are you familiar with SERE techniques? 

Mr. PRESTON. I am generally familiar with them. Yes, sir. 

Senator LEVIN. Have you read the opinions that describe what 

those techniques are and how we use those to help train our people 

under very carefully controlled conditions as to what they might 

expect from people who torture them? 

Mr. PRESTON. Yes, sir. 

Senator LEVIN. Have you read the way in which those techniques 

were utilized not to help train our people to survive brutality but 

to inflict brutality. Have you read about techniques that were 

used? 

Mr. PRESTON. I have, sir. 

Senator LEVIN. And, in your judgment were the—and you read 

the Bradbury opinion, for instance? 

Mr. PRESTON. I have. 

Senator LEVIN. And in your judgment, were the techniques that 

were utilized against detainees utilized in the same way that SERE 

techniques are used to help our own folks resist intimidation or 

abuse? 

Mr. PRESTON. Senator, my understanding is that there are some 

differences that one might consider substantial. 

Senator LEVIN. Do you consider them substantial? 

Mr. PRESTON. I would. Among them—— 

Senator LEVIN. Does that mean I do? 

Mr. PRESTON [continuing]. Yes, sir. Among the differences is that 

obviously one voluntarily enters into SERE training and, as I understand it, the participants are given a code word, if you will, the 

utterance of which will cause a cessation of the practice. Those 

strike me as significant differences. 

Senator LEVIN. The folks that run that program are called the 

Joint Personnel Recovery Agency, JPRA. They’re the ones who help 

to train our people in case they’re captured and abused, to try to 

survive that. A memo from that agency to the General Counsel of 

the Department of Defense said the following—that the use of coercive techniques in interrogation, out in training under controlled 

circumstances, including the one that you’ve just given, you can 

end it at any moment, but that the use of coercive techniques in 

interrogation would ‘‘increase resistance, would create doubts about 

the accuracy and reliability of the information obtained, and could 

be used by enemies as justification for the torture of captured U.S. 

personnel.’’ Do you agree with that assessment? 

Mr. PRESTON. I am not familiar with the memo, Senator. And I 

certainly understand that those and other points have been made 

in support of the proposition that these coercive techniques are not 

effective and ill advised. 

Senator LEVIN. And do you share those same doubts about—— 

Mr. PRESTON. I share some of the same concerns. Yes, sir. 

Senator LEVIN. Madam Chair, is my time up? I’m over my time. 

I’m sorry, Madam Chair. 

Chairman FEINSTEIN. We thank you very much, Senator. 

Senator Risch. 

Senator RISCH. Pass. 

22 

Chairman FEINSTEIN. Senator, would you like to ask another 

question? 

Senator LEVIN. Yes. But I could come back. I didn’t realize 

that—— 

Chairman FEINSTEIN. He passed. 

Senator LEVIN. Oh, okay. Thank you. 

General Petraeus in May of 2007 said 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 are also frequently neither useful 

nor necessary. Certainly extreme physical action can make someone talk. However, what the individual says may be of questionable 

value. Do you agree with General Petraeus? 

Mr. PRESTON. Senator, I would like to respond as completely as 

I can, but I frankly am not expert in the efficacy of interrogation 

techniques, the spectrum of interrogation techniques. 

Senator LEVIN. Are you concerned that if torture is used that 

someone will say anything in order to stop the torture? 

Mr. PRESTON. I beg your pardon? 

Senator LEVIN. Are you concerned that if torture is used that 

somebody who was being tortured will say anything to end the torture? 

Mr. PRESTON. Certainly, that’s an intuitively understandable 

proposition. I just don’t have any experience base with interrogation methods. And I would say certainly with respect to torture, as 

the President’s made clear, we will not engage in torture. 

Senator LEVIN. Thank you. Thank you, Madam. 

Chairman FEINSTEIN. Yes. Thank you very much, Senator Levin. 

Let me ask my questions. My curiosity was piqued by something, 

Mr. Preston, you wrote in the responses to prehearing questions 

about the unclassified conclusions of the CIA Inspector General’s 

report entitled ‘‘Procedures Used in Narcotics Airbridge Denial Program in Peru, 1995–2001.’’ 

On question 20(a), you state that the Office of General Counsel 

attorneys have a legitimate role to play in advising CIA personnel 

on mitigating potential civil liability, including advising their clients not to create discoverable documents during civil litigation or 

while facing the threat of civil litigation. 

Let me read a press statement written by the Vice Chairman of 

the House Intelligence Committee on January 13th. ‘‘The CIA Inspector General also found that persons within the CIA mounted 

an extensive cover-up of the facts of this tragedy from the White 

House, the Justice Department, and Congress. The CIA lied to 

Congress and the executive branch about the downing of the Bowers’ plane to shield its personnel from being held accountable and 

from possible prosecution.’’ 

Now, as you know, Mrs. Bowers was killed when the Peruvian 

Air Force shot at the plane and the bullet went through her into 

the brain of the baby she was holding in her lap and killed the 

baby as well. Who is the client of the CIA General Counsel—the 

United States, the CIA, the CIA Director, supervisors, the CIA personnel with accountability functions, or all individual CIA personnel? Who is your actual client? 

23 

Mr. PRESTON. That is an excellent question and one that I have 

given thought to and I will answer as directly as I can. In your absence, Senator Wyden also asked me about this and gave me an opportunity to clarify that I am not familiar with the circumstances 

of the Peru incident, have not had access to the IG report, and am 

not in a position to comment on the particular observation or allegation about the making of discoverable documents. I was simply 

trying to make the point that it is not uncommon, certainly in private sector experience and I think increasingly in the public sector, 

that an attorney could properly advise a client or agency personnel 

not to unnecessarily generate documents that would be discoverable in a civil litigation context. 

Chairman FEINSTEIN. Well, it’s one thing to do that; it’s another 

thing to inspire a direct cover up. 

Mr. PRESTON. And as I tried to clarify with Senator Wyden, I 

think what I am describing is worlds apart from anything I would 

call a cover up or instructions not to create records that are regularly kept or to alter records, to destroy records or otherwise not 

cooperate in, for example, a criminal investigation. 

Chairman FEINSTEIN. Let me ask you—— 

Mr. PRESTON. I do want to answer your question. 

Chairman FEINSTEIN [continuing]. Another question. 

Mr. PRESTON. Yes, ma’am. 

Chairman FEINSTEIN. Are there any circumstances under which 

the CIA should be permitted to lie to Congress? 

Mr. PRESTON. I don’t believe—I cannot think of any. 

Chairman FEINSTEIN. And if you believed the CIA were in fact 

lying to Congress, what would you see it to be your duty to do? 

Mr. PRESTON. Well, I would follow the lead of Director Panetta 

on this, and he has said it is neither the policy nor the practice of 

the Agency to lie to or mislead Congress. I would view an instance 

of lying to Congress as being in direct tension and direct opposition 

with that stated policy and practice by the Director. And I would, 

at a minimum, bring it to the Director’s attention so that we could 

discuss the appropriate response. 

Chairman FEINSTEIN. I would very much hope you would not 

condone it. 

Mr. PRESTON. Oh, absolutely not. 

Chairman FEINSTEIN. And that you would do more than bring it 

to his attention for a response. 

Mr. PRESTON. Well, by which I simply meant that I would engage 

with him and that we would decide—he would decide with the benefit of my judgment how to rectify the situation. I don’t mean to 

suggest it’s merely a matter of letting him know about it. 

Chairman FEINSTEIN. Well, let me ask you, if you are confirmed, 

that you do review the Inspector General’s report on this. 

Mr. PRESTON. I plan to. And I do want to answer your question. 

I believe my client will be the Agency and ultimately the United 

States. I take my direction from the Director, and in some very real 

ways the men and women who are the Agency we regard as our 

clients. But in, for example, a matter in which there’s possible 

criminal misconduct, neither I nor the lawyers in my office have 

any business providing personal counsel to individuals who may 

24 

have exposure. Our client is the Agency, the United States, and the 

people of the United States. 

Chairman FEINSTEIN. Thank you very much. 

Mr. Ranking Member, do you have a question? 

Vice Chairman BOND. I’ve heard enough. 

Chairman FEINSTEIN. Okay. 

Senator Whitehouse, do you have additional questions? 

Senator WHITEHOUSE. If I may. 

Chairman FEINSTEIN. Please, go ahead. 

Senator WHITEHOUSE. Thank you. 

Mr. Preston, you, in responding to Chairman Levin, indicated a 

tendency, if you will, to try to address the forward-looking problems of the Agency that with any luck you will soon be representing, as opposed to the backward-looking problems. As lawyers, as you know, when we come in, those old messes are still our 

problems. You don’t get to say, well, that happened before I got 

here. It’s not my problem. 

You have under American law the corpus delicti of a crime. 

Waterboarding under American law is a crime established by the 

United States Court of Appeals for the Fifth Circuit, the United 

States v. Lee. 

So now the question is, is anybody criminally liable for it? You 

found a body, doesn’t necessarily mean somebody is criminally liable for it. You have to investigate further. You have at least one 

U.S. Attorney investigating a related issue. I think that the notion 

that somehow this can be wished away or isn’t going to be a very 

real and immediate part of your professional life is misguided. 

I understand that there is something of a tension between the 

President’s desire to look forward, which I think is both correct and 

commendable and appropriate for his office, and the problem that, 

frankly, this can’t be wished away. And you will be at the junction 

point of the Presidential desire to go forward, and yet the facts and 

the practicalities of really not being able to until this is resolved. 

And I’d be interested to hear how you would resolve that tension. 

I’d also like you to comment on another tension. You will be representing—both of you actually—principals, your bosses, the director of National Intelligence and the Director of the CIA, who are 

new to their positions and who rely to a very substantial degree on 

career staff to provide them advice. And in both cases, it is possible 

that within that staff chain of command are people who are actually implicated in the decisions that led to the torture of detainees. 

It seems to me that that creates a very significant management 

and legal problem for your principals if they have not, particularly 

on this issue, built a chain of command to advise them on it that 

is clear and independent of any taint of association with the program. 

That’s particularly complex in Mr. Litt’s case because he has his 

own separate conflict issues related to this. 

So how do you intend to balance the President’s desire of the 

President of the United States to look forward with your responsibilities as Agency counsel with a very significant and as yet unresolved problem in your past to resolve? And what is your responsibility for assuring that your principal has a clean and untainted 

25 

chain of command that is informing him about this so that coverups aren’t happening in that chain of command? 

Mr. PRESTON. Let me begin with the first question and underscore my agreement with you that one cannot wish away the issues 

arising from the past practices. And I don’t mean to suggest anything of the sort. I recognize that those—— 

Senator WHITEHOUSE. We all wish they never happened, but 

that’s a different—— 

Mr. PRESTON [continuing]. Well, that may be. I recognize that 

these are real and present issues that the Agency, the Director, 

myself will need to deal with responsibly, and I have every intention of doing that. My reference to looking ahead was really by way 

of explanation as to why as these issues come to me I don’t expect 

the dead letters of the OLC opinions to be providing guidance to 

me. I will be looking at the facts that are presented then and the 

guiding principles that now apply and apply my best judgment for 

the benefit of my client. 

Senator WHITEHOUSE [continuing]. And on the question of an untainted reporting chain? 

Mr. PRESTON. Pardon? 

Senator WHITEHOUSE. And on the question of an untainted reporting chain? 

Mr. PRESTON. On the question of reporting chain, it’s an interesting point. I think it’s more than an interesting point. It’s an important point. One of the things I can do to help the Agency and 

to help the Director is to come in as someone who has no prior involvement with the matters under examination and, starting with 

me, provide guidance, advice and counsel that is uninformed and, 

to the outside observer, untainted, to use your word, by prior involvement. 

The Agency and other members of the intelligence community 

don’t wholesale change out the leadership when there’s a change in 

administration, and that’s a good thing. I would expect that both 

the Director and I will come to rely on the solid career people at 

the Agency, senior staff and otherwise, that from administration to 

administration we have come to rely on. 

I think you flag an issue that we need to be sensitive to as we 

navigate these shoals. But I do think and I have—from my experience with the senior staff in the Office of General Counsel that I’ve 

worked with, I know them to be dedicated and capable. And to the 

extent that people were there at the time the matters under examination were happening, that’s something that we will simply have 

to factor into our actions and decisionmaking. 

Senator WHITEHOUSE. But you do recognize that for all the wonderful work that the CIA career folks do and, as the son of a former 

CIA employee and career federal employee, I think very, very highly of what they do. This is not a slam on them. This is just a fact 

that if you allow your chain of reporting to be only through people 

who are potentially implicated in an incident, it is not clear that 

your principal who you represent will be getting untainted information. And getting to your principal untainted and complete information I think is one of your highest duties. 

Thank you, Chairman. 

Chairman FEINSTEIN. Do you have any other questions? 

26 

Senator LEVIN. Just a couple, if you would, Madam Chairman. 

You said a few moments ago that if a Director of CIA said something that was misleading. Is that who you were referring to, that 

you would then talk to him about how to rectify the situation? 

Mr. PRESTON. That wasn’t how the question was presented to 

me. 

Senator LEVIN. Who was the question referring to? Was it not 

the CIA Director? 

Mr. PRESTON. Well, the Chairman referred to the CIA—if the 

CIA were to lie to Congress. 

Senator LEVIN. All right. So if the CIA Director said something 

which was misleading or erroneous publicly, what would you do? 

Mr. PRESTON. I think my first responsibility would be to apprise 

him of my concerns about the accuracy of his statements. 

Senator LEVIN. And what would be the second thing, if he continued. 

Mr. PRESTON. It may well depend on what his response is. 

Senator LEVIN. Well, he said, ‘‘I’m not going to correct it. You’re 

right. It’s erroneous, but I’m not going to correct it.’’ 

Mr. PRESTON. Well, I think one can suppose any number of circumstances where my client or the Director would choose not to follow my advice or act against my counsel. That would present to me 

a dilemma in which, depending on the issue and the strength of my 

disagreement, I might find myself compelled to seek employment 

elsewhere. I certainly hope and with this Director confidently predict that’s not going to be a problem. 

Senator LEVIN. I’m sure that’s our hope and our confident prediction, but we don’t know how these things turn out. Director 

Tenet said some things publicly which were false and, by the way, 

acknowledged later on in his book that they were erroneous. A top 

policymaker of the United States, the Vice President, said some 

things which were false. Director Tenet said, gee, looking back, I’m 

sure we should have done something to force a correction of that. 

We went to war based on misleading, erroneous information that 

was passed on by our top policymakers based on intelligence, particularly alleging a link between al-Qa’ida and Saddam Hussein. 

These are serious matters involving a huge amount of lives. And 

it’s important to me that I know what’s in your gut about, if and 

when that happened, how seriously you would take it. 

Mr. PRESTON. I think that it is a gravely serious matter. I think 

there’s been a lot learned from that experience. I think this process 

by which Director Panetta was selected and confirmed, and to a 

lesser extent myself, is one in which hopefully we are capably communicating the gravity with which we would regard that and our 

every intention not to let it happen. 

Senator LEVIN. The Chairman made reference to an IG report on 

the shootdown of a missionary family’s plane in Peru, which was 

a Michigan missionary family, and made reference to the fact that 

the lawyers from the CIA Office of General Counsel advised CIA 

personnel to avoid putting anything in writing lest it be discoverable in legal proceedings. My understanding was that you indicated 

in a prehearing answer that such advice could be justified, but then 

I thought you said that you have clarified this with one of our colleagues. Is that correct? 

27 

Mr. PRESTON. Well, there was a colloquy with Senator Wyden in 

which he just wished to make clear—I wished to make clear that 

I was not commenting on the specific facts in the Peru incident because I am not aware of those facts and I have not seen the report. 

I had made the observation that is not uncommon and may be entirely proper for counsel to advise client personnel not to generate 

unnecessary documents that might prejudice the Agency’s case in 

civil litigation. But beyond that, I really am not familiar with the 

Peru incident or what advice was given and do not want to express 

a judgment one way or the other on that. 

Senator LEVIN. I think you should become familiar with that report so you can give us your opinion. Would you do that? 

Mr. PRESTON. I have every intention of reviewing that—— 

Senator LEVIN. Promptly. 

Mr. PRESTON [continuing]. When I take office. 

Senator LEVIN. Well, no. I’d like you to do that promptly. 

Mr. PRESTON. Yes, sir. 

Senator LEVIN. If you do that in the next couple of days, I would 

be appreciated. 

Mr. PRESTON. Well, it’s classified and I am not able to have access to it, but my plan was, if I am privileged to take office, to 

make it one of my first priorities. 

Chairman FEINSTEIN. If I may, I think what Senator Levin and 

some of us are pointing out is that you are not just an attorney representing any client. You’re representing an agency that presents 

itself as a difficult client because of its mission. And our expectation is that the law will be followed and that we will not be lied 

to. And these are problems of war and peace, as Senator Levin 

pointed out. And I think anything other than the truth, as somebody knows it at the time, is really unacceptable. And to some extent, the burden is going to be yours. 

Now, you said if the question were of such magnitude and the 

Director, let’s say—I guess it is the Director—would not take your 

advice, that you would resign. And I think that’s the appropriate 

thing. And I think there has to be a legal conscience for the Agency 

and your office is going to be it. 

Mr. PRESTON. I appreciate your insights into that and I am in 

agreement with you. I am confident, as I told Senator Levin, that 

with Director Panetta things would not get to that point, but I do 

not mention it lightly and I would not take that step lightly. But 

I agree entirely with you in terms of the great importance of both 

adherence to the law and candor with the oversight committees. 

Chairman FEINSTEIN. Okay. 

At the conclusion of the hearing, the Committee is going to have 

questions for the record that we will submit to the nominees in 

writing. I’d like to ask that Members submit their questions by 

noon on Tuesday, and I’d like to ask both you, Mr. Preston, and 

you, Mr. Litt, that you respond to them ASAP. As soon as we receive them, have an opportunity to review them, we will mark up 

your nomination and hopefully be able to move it out to the floor. 

So at this time, once again, if the Members could meet in room 

211, that would be appreciated. And this hearing is adjourned. 

[Whereupon, at 4:02 p.m., the Committee adjourned.] 

(29) 

Supplemental Material 

30 


Insert offset folio 01 here 56435.001
31 


Insert offset folio 2 here 56435.002
32 


Insert offset folio 3 here 56435.003
33 


Insert offset folio 4 here 56435.004
34 


Insert offset folio 5 here 56435.005
35 


Insert offset folio 6 here 56435.006
36 


Insert offset folio 7 here 56435.007
37 


Insert offset folio 8 here 56435.008
38 


Insert offset folio 9 here 56435.009
39 


Insert offset folio 10 here 56435.010
40 


Insert offset folio 11 here 56435.011
41 


Insert offset folio 12 here 56435.012
42 


Insert offset folio 13 here 56435.013
43 


Insert offset folio 14 here 56435.014
44 


Insert offset folio 15 here 56435.015
45 


Insert offset folio 16 here 56435.016
46 


Insert offset folio 17 here 56435.017
47 


Insert offset folio 18 here 56435.018
48 


Insert offset folio 19 here 56435.019
49 


Insert offset folio 20 here 56435.020
50 


Insert offset folio 21 here 56435.021
51 


Insert offset folio 22 here 56435.022
52 


Insert offset folio 23 here 56435.023
53 


Insert offset folio 24 here 56435.024
54 


Insert offset folio 25 here 56435.025
55 


Insert offset folio 26 here 56435.026
56 


Insert offset folio 27 here 56435.027
57 


Insert offset folio 28 here 56435.028
58 


Insert offset folio 29 here 56435.029
59 


Insert offset folio 30 here 56435.030
60 


Insert offset folio 31 here 56435.031
61 


Insert offset folio 32 here 56435.032
62 


Insert offset folio 33 here 56435.033
63 


Insert offset folio 34 here 56435.034
64 


Insert offset folio 35 here 56435.035
65 


Insert offset folio 36 here 56435.036
66 


Insert offset folio 37 here 56435.037
67 


Insert offset folio 38 here 56435.038
68 


Insert offset folio 39 here 56435.039
69 


Insert offset folio 40 here 56435.040
70 


Insert offset folio 41 here 56435.041
71 


Insert offset folio 42 here 56435.042
72 


Insert offset folio 43 here 56435.043
73 


Insert offset folio 44 here 56435.044
74 


Insert offset folio 45 here 56435.045
75 


Insert offset folio 46 here 56435.046
76 


Insert offset folio 47 here 56435.047
77 


Insert offset folio 48 here 56435.048
78 


Insert offset folio 49 here 56435.049
79 


Insert offset folio 50 here 56435.050
80 


Insert offset folio 51 here 56435.051
81 


Insert offset folio 52 here 56435.052
82 


Insert offset folio 53 here 56435.053
83 


Insert offset folio 54 here 56435.054
84 


Insert offset folio 55 here 56435.055
85 


Insert offset folio 56 here 56435.056
86 


Insert offset folio 57 here 56435.057
87 


Insert offset folio 58 here 56435.058
88 


Insert offset folio 59 here 56435.059
89 


Insert offset folio 60 here 56435.060
90 


Insert offset folio 61 here 56435.061
91 


Insert offset folio 62 here 56435.062
92 


Insert offset folio 63 here 56435.063
93 


Insert offset folio 64 here 56435.064
94 


Insert offset folio 65 here 56435.065
95 


Insert offset folio 66 here 56435.066
96 


Insert offset folio 67 here 56435.067
97 


Insert offset folio 68 here 56435.068
98 


Insert offset folio 69 here 56435.069
99 


Insert offset folio 70 here 56435.070
100 


Insert offset folio 71 here 56435.071
101 


Insert offset folio 72 here 56435.072
102 


Insert offset folio 73 here 56435.073
103 


Insert offset folio 74 here 56435.074
104 


Insert offset folio 75 here 56435.075
105 


Insert offset folio 76 here 56435.076
106 


Insert offset folio 77 here 56435.077
107 


Insert offset folio 78 here 56435.078
108 


Insert offset folio 79 here 56435.079
109 


Insert offset folio 80 here 56435.080
110 


Insert offset folio 81 here 56435.081
111 


Insert offset folio 82 here 56435.082
112 


Insert offset folio 83 here 56435.083
113 


Insert offset folio 84 here 56435.084
114 


Insert offset folio 85 here 56435.085
115 


Insert offset folio 86 here 56435.086
116 


Insert offset folio 87 here 56435.087
117 


Insert offset folio 88 here 56435.088
118 


Insert offset folio 89 here 56435.089
119 


Insert offset folio 90 here 56435.090
120 


Insert offset folio 91 here 56435.091
121 


Insert offset folio 92 here 56435.092
122 


Insert offset folio 93 here 56435.093
123 


Insert offset folio 94 here 56435.094
124 


Insert offset folio 95 here 56435.095
125 


Insert offset folio 96 here 56435.096
126 


Insert offset folio 97 here 56435.097
127 


Insert offset folio 98 here 56435.098
128 


Insert offset folio 99 here 56435.099
129 


Insert offset folio 100 here 56435.100
130 


Insert offset folio 101 here 56435.101
131 


Insert offset folio 102 here 56435.102
132 


Insert offset folio 103 here 56435.103
133 


Insert offset folio 104 here 56435.104
134 


Insert offset folio 105 here 56435.105
135 


Insert offset folio 106 here 56435.106
136 


Insert offset folio 107 here 56435.107
137 


Insert offset folio 108 here 56435.108
138 


Insert offset folio 109 here 56435.109
139 


Insert offset folio 110 here 56435.110
140 


Insert offset folio 111 here 56435.111
141 


Insert offset folio 112 here 56435.112
142 


Insert offset folio 113 here 56435.113
143 


Insert offset folio 114 here 56435.114
144 


Insert offset folio 115 here 56435.115
145 


Insert offset folio 116 here 56435.116
146 


Insert offset folio 117 here 56435.117
147 


Insert offset folio 118 here 56435.118
148 


Insert offset folio 119 here 56435.119
149 


Insert offset folio 120 here 56435.120
150 


Insert offset folio 121 here 56435.121
151 


Insert offset folio 122 here 56435.122
152 


Insert offset folio 123 here 56435.123
153 


Insert offset folio 124 here 56435.124
154 


Insert offset folio 125 here 56435.125
155 


Insert offset folio 126 here 56435.126
156 


Insert offset folio 127 here 56435.127
157 


Insert offset folio 128 here 56435.128
158 


Insert offset folio 129 here 56435.129
159 


Insert offset folio 130 here 56435.130
160 


Insert offset folio 131 here 56435.131
161 


Insert offset folio 132 here 56435.132
162 


Insert offset folio 133 here 56435.133
163 


Insert offset folio 134 here 56435.134
164 


Insert offset folio 135 here 56435.135
165 


Insert offset folio 136 here 56435.136
166 


Insert offset folio 137 here 56435.137
167 


Insert offset folio 138 here 56435.138
168 


Insert offset folio 139 here 56435.139
169 


Insert offset folio 140 here 56435.140
170 


Insert offset folio 141 here 56435.141
171 


Insert offset folio 142 here 56435.142
172 


Insert offset folio 143 here 56435.143
173 


Insert offset folio 144 here 56435.144
174 


Insert offset folio 145 here 56435.145
175 


Insert offset folio 146 here 56435.146
176 


Insert offset folio 147 here 56435.147
177 


Insert offset folio 148 here 56435.148
178 


Insert offset folio 149 here 56435.149
179 


Insert offset folio 150 here 56435.150
180 


Insert offset folio 151 here 56435.151
181 


Insert offset folio 152 here 56435.152
182 


Insert offset folio 153 here 56435.153
183 


Insert offset folio 154 here 56435.154
184 


Insert offset folio 155 here 56435.155
185 


Insert offset folio 156 here 56435.156
186 


Insert offset folio 157 here 56435.157
187 


Insert offset folio 158 here 56435.158
188 


Insert offset folio 159 here 56435.159
189 


Insert offset folio 160 here 56435.160
190 


Insert offset folio 161 here 56435.161
191 


Insert offset folio 162 here 56435.162
192 


Insert offset folio 163 here 56435.163
193 


Insert offset folio 164 here 56435.164
194 


Insert offset folio 165 here 56435.165
195 


Insert offset folio 166 here 56435.166
196 


Insert offset folio 167 here 56435.167
197 


Insert offset folio 168 here 56435.168
198 


Insert offset folio 169 here 56435.169
199 


Insert offset folio 170 here 56435.170
200 


Insert offset folio 171 here 56435.171
201 


Insert offset folio 172 here 56435.172
202 


Insert offset folio 173 here 56435.173
203 


Insert offset folio 174 here 56435.174
204 


Insert offset folio 175 here 56435.175
205 


Insert offset folio 176 here 56435.176
206 


Insert offset folio 177 here 56435.177
207 


Insert offset folio 178 here 56435.178
208 


Insert offset folio 179 here 56435.179
209 

Æ 


Insert offset folio 180 here 56435.180