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83–725 PDF 2003

S.HRG. 107–841

NOMINATION OF SCOTT W. MULLER

TO BE GENERAL COUNSEL OF THE

CENTRAL INTELLIGENCE AGENCY

HEARING

BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

OCTOBER 9, 2002

OCTOBER 16, 2002

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

BOB GRAHAM, Florida Chairman

RICHARD SHELBY, Alabama, Vice Chairman

CARL LEVIN, Michigan

JOHN D. ROCKEFELLER IV, West Virginia

DIANNE FEINSTEIN, California

RON WYDEN, Oregon

RICHARD J. DURBIN, Illinois

EVAN BAYH, Indiana

JOHN EDWARDS, North Carolina

BARBARA A. MIKULSKI, Maryland

JON KYL, Arizona

JAMES M. INHOFE, Oklahoma

ORRIN G. HATCH, Utah

PAT ROBERTS, Kansas

MIKE DeWINE, Ohio

FRED THOMPSON, Tennessee

RICHARD G. LUGAR, Indiana

THOMAS A. DASCHLE, South Dakota, Ex Officio

TRENT LOTT, Mississippi, Ex Officio

ALFRED CUMMING, Staff Director

BILL DUHNKE, Minority Staff Director

KATHLEEN P. MCGHEE, Chief Clerk

(III)

CONTENTS

Page

Hearing held in Washington, D.C., October 9, 2002 ............................................. 1

Statement of:

Bond, Hon. Kit, a U.S. Senator from the State of Missouri .......................... 4

Graham, Hon. Bob, a U.S. Senator from the State of Florida ...................... 1

Muller, Scott W., Nominee to be General Counsel of the Central Intelligence Agency ............................................................................................... 5

Supplemental Materials:

Senate Select Committee on Intelligence Questionnaire for Completion

by Presidential Nominees ............................................................................. 23

Comstock, Amy L., Director, Office of Government Ethics, letter to the

Honorable Bob Graham, Chairman, Select Committee on Intelligence

dated September 6, 2002 .............................................................................. 69

Financial Disclosure report of Scott W. Muller .............................................. 70

Muller, Scott W., letter dated September 4, 2002 ......................................... 91

Rizzo, John A., Designated Agency Ethics Official CIA, letter dated

September 5, 2002 ........................................................................................ 94

Muller, Scott W., letter dated October 8, 2002 .............................................. 96

Hearing held in Washington, D.C., October 16, 2002 ........................................... 97

(1)

NOMINATION OF SCOTT W. MULLER

TO BE GENERAL COUNSEL OF THE

CENTRAL INTELLIGENCE AGENCY

WEDNESDAY, OCTOBER 9, 2002

U.S. SENATE,

SELECT COMMITTEE ON INTELLIGENCE,

Washington, D.C.

The Committee met, pursuant to notice, at 9:37 a.m., in room

SH–216, Hart Senate Office Building, the Honorable Bob Graham

(Chairman of the Senate Select Committee on Intelligence) presiding.

Committee Members Present: Senators Graham and Rockefeller.

OPENING STATEMENT OF SENATOR BOB GRAHAM

Chairman GRAHAM. The Committee will come to order.

Today’s hearing of the Select Committee on Intelligence is for the

single purpose of receiving testimony from the President’s nominee

for the position of General Counsel of the Central Intelligence

Agency, Mr. Scott W. Muller. Mr. Muller, we welcome you and

thank you for coming today, particularly on such short notice.

Mr. MULLER. Thank you, Senator.

Chairman GRAHAM. We also welcome Mr. Muller’s wife, Caroline,

and two of his three children, Christopher and Pete, as well as his

present and former assistants, Anna Corrales, Barbara Doan and

Karen Baker, who are all here indicating their support. Would the

family please stand and be recognized. Thank you very much.

Mr. Muller is currently the managing partner of the Washington,

D.C., office of the law firm of Davis, Polk & Wardwell. His law

practice has included complex litigation matters that contain securities, antitrust and criminal aspects.

Mr. Muller also served as an Assistant U.S. Attorney in the

Southern District of New York from 1978–1982. We heard testimony yesterday from Mary Jo White, formerly the U.S. Attorney

for the Southern District. This was part of our joint inquiry into

the events of September 11. I know that the Southern District

prosecutors are among the best and most highly recognized Federal

prosecutors in the country.

We hope Mr. Muller will elaborate today in his statement and in

response to questions from the Members of the Committee on what

he has learned in his career that has prepared him to be the General Counsel for the Central Intelligence Agency.

If confirmed, Mr. Muller would be only the second CIA General

Counsel to go through the confirmation process. Congress amended

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the Central Intelligence Agency Act of 1949 in 1996 to require that

the person to fill this position be selected with the advice and consent of the Senate. This reflects the importance we attribute to the

functions performed by the CIA General Counsel.

With the critical role played by the agencies of the intelligence

community in the war on terrorism and, perhaps soon, the war on

Iraq, now more than ever the CIA must have a strong General

Counsel. This is, in part, the reason that we are holding this special meeting of the Committee today to hear from Mr. Muller, in

hopes that we can expedite this process so that he will be able to

assume his position prior to the adjournment of Congress.

I am certain that Mr. Muller knows the role of lawyers at the

CIA has evolved over the last 25 years. In the early 1970s there

were only a handful of lawyers in the CIA. Today there are approximately 100. In the Counterterrorism Center alone the number

has gone from one as recently as 1997 to seven today.

This growth reflects the fact that after the Pike and Church

Committees in the late 1970s completed their review of the performance of the intelligence agencies, intelligence operations became, as has been referred to, a heavily regulated industry.

Executive Order 12333, first issued by President Ford in 1976,

created a set of guidelines for operations—particularly those

against U.S. persons and those conducted inside the United States.

The CIA and the FBI have classified regulations that further guide

operations.

These complex sets of rules need lawyers to interpret and apply

them to day-to-day operations—and they must do it quickly, and

they must get it right. Officers in the Directorate of Operations

need lawyers they trust so that they can go about their business

devising and implementing aggressive operations that will help us

thwart the terrorists before they can do us harm.

On that point, I would like a moment to speak about the issue

of cautious lawyering at the CIA. I know from my work on this

Committee for the past 10 years that lawyers at CIA sometimes

have displayed a risk aversion in the advice they give their clients,

particularly some of the lawyers assigned to the posts in the Directorate of Operations.

Unfortunately, we are not living in times in which lawyers can

say no to an operation just to play it safe. We need excellent, aggressive lawyers who give sound, accurate legal advice, not lawyers

who say no to an otherwise legal operation just because it is easier

to put on the brakes.

I also know that the lawyers assigned to the Directorate of Operations are not always perceived as part of a team by their clients

but, rather, a hurdle that must be surmounted before the operators

can do their jobs. Team work requires mutual respect and I hope,

if confirmed, that you will instill that in your lawyers.

The previous General Counsel came before this Committee in a

public hearing last year on the U.S.A. Patriot Act intelligence-related provisions and asserted that the officers in the Directorate of

Operations needed ‘‘adult supervision’’ by their lawyers. As you

might imagine, that comment was not well received at the Directorate of Operations. In my opinion, the Directorate of Operations

3

officers are performing the most adult jobs in our Government

today.

I hope that if you are confirmed, Mr. Muller, you will instill in

your lawyers the need to be a team player and to give cutting-edge

legal advice that lets the operators do their jobs quickly and aggressively within the confines of law and regulation.

We are joined this morning by my good friend and former colleague in the State House, Senator Kit Bond of Missouri. I know

the close friendship that he has with Mr. Muller because he’s been

telling me about it on a daily basis for the last 6 weeks.

Senator Bond.

[The prepared statement of Senator Bond follows:]

PREPARED STATEMENT OF SENATOR BOND

Good Morning Mr. Chairman, Members of the Committee. Thank you for the opportunity this morning to appear before the Intelligence Committee on behalf of Mr.

Scott Muller.

President Bush’s nomination of Mr. Muller to the position of General Counsel of

the CIA reflects careful deliberation and consideration on the part of the President

for this important position.

The Central Intelligence Agency, in addition to the entire Intelligence Community, now more than ever, faces the daunting and paramount task of gathering effective and reliable intelligence as we conduct the war on terror.

Currently, in an effort to fulfill this paramount task, the relationships and interactions between the various entities within the Intelligence Community are being

reexamined and restructured in an effort to facilitate more effective and reliable intelligence gathering.

Throughout this reexamination, the CIA General Counsel will need to have an understanding of the laws governing these relationships. In addition, the CIA Counsel

will need to be capable of carrying out careful and thorough analysis of all the legal

ramifications of intelligence and law enforcement collaboration.

I am convinced Scott Muller’s extensive legal experience and training will afford

him the ability to provide proactive, timely, objective and independent advice to the

agency and the Intelligence Community, consistent with the laws and the Constitution of the United States.

Scott began his higher education at my alma mater, Princeton University, graduating cum laude with a Bachelors degree in 1971. From there, he went on to

Georgetown University Law Center earning his J.D., making Law Review and Law

Review Executive Board.

Since that time, Scott has distinguished himself amongst his colleagues in the

legal community. For the past 24 years, he has been a litigator at Davis Polk &

Wardel specializing in representing Fortune 100-sized companies conducting what

can best be described as ‘‘crisis management.’’ Scott is no stranger to being thrown

into high-pressure, high-stakes legal arenas that have put his legal and managerial

abilities to the test. His ability to assimilate quickly and then master new and multiple subject matters would serve the CIA and Intelligence Community well as it

attempts to reexamine and restructure its collaborative sharing and intelligence

gathering abilities.

Among Scott’s many honors and awards, he has received:

• FBI Commendation and Department of Agriculture Commendations

• One of New York Law Journal’s ‘‘Rising Stars in 13 of New York’s Largest and

Most Prestigious Law Firms’’

• Included in ‘‘Guide to The World’s Leading White Collar Crime Lawyers’’

• International Who’s Who of Business Crime Lawyers

Scott’s interest in national security can be traced back to the mid-1980s when he

served as a member of the Arms Control and National Security Affairs Committee

of the Association of the Bar of New York City. He has over 25 years of experience

with the Federal Criminal Law Enforcement process as a prosecutor, teacher, and

defense lawyer and has worked extensively with general counsels of large organizations. After serving with the Watergate Special Prosecution Force, he:

• Clerked in the United States Court of Appeals for the Third Circuit.

• Was an Assistant United States Attorney in the Southern District of New York

from 1978 to 1982

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• Served as the Vice Chairman of the American Bar Association’s White Collar

Crime Committee • Was Adjunct Professor at the Georgetown University Law Center where he

taught an advanced course in Federal Law Enforcement.

Mr. Chairman, Members of the Committee, it is for all of the aforementioned reasons in my statement this morning that I am confident my colleagues on both sides

of the aisle will approve the nomination of Scott Muller to the position of General

Counsel of the Central Intelligence Agency.

The emerging challenges before the Intelligence and Law Enforcement Communities that will surface throughout their reexamination and restructuring will necessitate the talents and legal expertise of folks like Scott.

Thank you again Mr. Chairman and Members of the Committee.

OPENING STATEMENT OF SENATOR KIT BOND

Senator BOND. Mr. Chairman, thank you very much for your

very thoughtful and carefully worded guidance to the General

Counsel’s position. Most of all, thank you for conducting this hearing so promptly. I know the President and the Administration are

very grateful that you are moving expeditiously because, as you indicated, this is a position of paramount importance given the challenges we face in the international and national arena today.

In the interest of full disclosure, I will tell you that even though

Mr. Muller lives in Maryland and practices in New York and

Washington, D.C., I am here as a Senator from Missouri to offer

my highest commendations. His son and my son were in high

school together and now in college together and furthermore my

wife has known him longer than I have, and I would say on behalf

of Linda and Sam, he has their highest endorsement, and that’s

just one of the reasons I’m here today.

The most important reason, obviously, is that President Bush’s

nomination of Mr. Muller to the position of General Counsel reflects, I think, careful deliberation and consideration on the part of

the President for this important position. As you have indicated,

Mr. Chairman, the Central Intelligence Agency, in addition to the

entire intelligence community, now more than ever faces the

daunting and paramount task of gathering effective and reliable intelligence as we conduct the war on terror.

I have many more things to say about Mr. Muller that I will submit for the record because of the time constraints, but I think

you’ve indicated that the CIA General Counsel will need to have

an understanding of the laws governing these relationships, and

the Counsel will need to be capable of carrying out careful and

thorough analysis of all the legal ramifications of intelligence and

law enforcement collaboration, not simply being the abominable noman, but providing the best advice on how to comply with all the

laws to get the job done.

I’m convinced that Scott Muller’s extensive legal experience and

training will afford him the ability to provide proactive, timely, objective and independent advice to the Agency and the Intelligence

Community consistent with the laws and the Constitution of the

United States.

Scott began his higher education at Princeton University, graduating cum laude in 1971, and from there he went to Georgetown

University Law Center, earning his J.D., where he served on the

Law Review and the Executive Board of the Law Review. Since

that time he has distinguished himself among his colleagues in the

5

legal community, for the past 24 years as a litigator at Davis Polk

& Wardwell.

He has received the FBI commendation, the Department of Agriculture commendations. His interest in national security can be

traced back to the 1980s, when he served as a member of the Arms

Control and National Security Affairs Committee of the Association

of the Bar of New York City. He has also clerked in the U.S. Court

of Appeals for the Third Circuit, and, as you indicated, was an Assistant U.S. Attorney.

Mr. Chairman, Members of the Committee, for all the aforementioned reasons I am confident my colleagues on both sides of the

aisle will consider this nomination carefully and approve the nomination of Scott Muller to be the General Counsel of the Central Intelligence Agency. I again offer my sincere thanks to the Committee for the expeditious hearing, and I offer any assistance I can

in moving this nomination forward. Again, Mr. Chairman, my sincere thanks.

Chairman GRAHAM. Thank you very much, Senator. We are

being joined by Senator Rockefeller. Senator Rockefeller, Senator

Bond has just introduced Mr. Muller, and we are prepared to turn

to his statement unless you would like to make an opening statement.

Senator ROCKEFELLER. No.

Chairman GRAHAM. Mr. Muller.

STATEMENT OF SCOTT W. MULLER, GENERAL COUNSELDESIGNATE, CENTRAL INTELLIGENCE AGENCY

Mr. MULLER. Thank you, Mr. Chairman, Senator Rockefeller. Let

me start, Mr. Chairman, by thanking you and the distinguished

Members of this Committee for giving me this opportunity to appear before you and to make this introductory statement. I am honored that the President has nominated me to the position of General Counsel of the Central Intelligence Agency.

The privilege I feel in being asked to serve is particularly great

because this is an extremely challenging time for the Agency, the

Intelligence Community, and the Nation as a whole. The laws governing the relationships between the Intelligence and Law Enforcement Communities and the practices of those communities are undergoing rapid and substantial change. A new and fresh perspective is being brought to balancing the need for collaboration and

the simultaneous need to respect constitutional values and, in particular, the Intelligence Community is being asked to coordinate

more closely than ever with criminal investigators and prosecutors

on the domestic side and overseas.

This re-examination is taking place in a real-time crisis situation

where there are continuing, simultaneous demands on a number of

fronts and a critical need for judgment, management skill and a

collaborative spirit in the Office of General Counsel.

For 24 years, I have been a litigator at Davis Polk & Wardwell

specializing in representing Fortune 100-size companies and others

at times when they were immersed in crisis and felt that they were

under siege. A major part of my practice and experience can best

be described as crisis management. I have frequently been asked

to walk into fast-moving, high-pressure, high-profile legal disaster

6

areas, to assemble and manage large teams of lawyers and other

experts, to work within new and complex institutional structures,

to collaborate, as appropriate, with those representing diverse interests and to guide my clients’ responses on multiple fronts simultaneously.

I’ve had the opportunity to engage and, I trust, to master new

subject matters, often extremely complex and usually technical, if

not arcane, and to do so under severe time constraints. I’ve also

had the opportunity to advise numerous large institutions on the

establishment of legal compliance programs designed to avoid violations of law while at the same time giving business executives

the tools they need to perform their jobs effectively. To add a word

here, I might say that it’s not cautious advice that’s part of that;

it’s careful and timely advice. That’s the critical element.

The central part of my practice for the last 25 years has been

Federal criminal law and enforcement, and my experience in that

area is current and extensive. After serving with the Watergate

Special Prosecution Force, I clerked in the U.S. Court of Appeals

for the Third Circuit. I was an Assistant U.S. Attorney in the

Southern District of New York from 1978 to 1982. I served as the

vice chairman of the American Bar Association’s White Collar

Crime Committee and as an Adjunct Professor at Georgetown University Law Center, where I taught an advanced course in Federal

law enforcement. More importantly, the vast majority of my cases

have involved Federal criminal law and interaction with Federal

prosecutors and other Federal regulators at all levels.

I believe that the job of General Counsel of the Central Intelligence Agency is to provide timely, objective and independent advice to assist the DCI, the Agency and the community as a whole

in accomplishing their missions effectively and doing so in a way

that is fully consistent with the laws and Constitution of the

United States. I view a critical part of that job as working with this

Committee and its House counterpart as you fulfill your important

oversight responsibilities.

I am enthusiastic about the opportunity to serve. I look forward

to answering your questions and providing whatever information

you feel may be necessary or that you may find useful as you consider my nomination. If confirmed, I look forward to working with

you on the important matters that face the Central Intelligence

Agency, the intelligence community, this Committee and its House

counterpart, and as I said before, the Nation as a whole.

Thank you, Mr. Chairman. I’m prepared to answer any questions

you may have.

Chairman GRAHAM. Thank you, Mr. Muller. We will proceed with

questions on a 5-minute rotating basis.

As I indicated to you in our remarks before the hearing commenced, I was very impressed with the file that I had the opportunity to review. You have an impressive background. One question

that would be raised in reviewing that is the fact that you have not

had much previous experience in intelligence or intelligence-related

activities. Could you tell us what you think in your background has

best prepared you to assume this responsibility?

Mr. MULLER. Yes, Senator. I think that’s a fair and appropriate

question and I thank you for asking it. To start, I have no direct

7

intelligence or national security experience. I have in the vast majority of my cases, however, specialized in mastering new subjects—often extremely complex subjects—in very short periods of

time. That has been the essence of my practice over the past 25

years, and the range of subjects has been quite broad.

In addition to that, as I said in my opening statement, I have

come to specialize over time in what, as I’ve said, can best be described as crisis management, which essentially has meant going

into very difficult situations with multiple challenges at the same

time. Often I’ll have the media, Federal investigators, Securities

and Exchange Commission or civil anti-trust authorities, foreign

investigators—every kind of possible challenge to an entity—all at

the same time, all happening sometimes with lightening speed and

be called in to try to marshal the resources necessary to deal with

that problem. Often that involves hiring multiple law firms—literally organizing and managing hundreds of lawyers—and then in

a very brief time understanding the facts, and often brand new

law, in a way which I can then advise on how best to respond on

those fronts at the same time.

Finally, and I think perhaps most importantly given the changes

that are underway in the Intelligence Community, and as we reexamine the national security organization generally, I have an extensive experience in law enforcement—both as a former prosecutor, but again, most recently and more importantly, as a defense

lawyer. I am fully conversant with the way the Federal investigative system works with FBI agents. I think I would have a credibility in dealing with them and understanding their problems and

the interactions in a way which, while not unique, will be of extraordinary importance.

Let me say as well that I asked myself this question when I was

first approached about the possibility of serving as General Counsel

of the Central Intelligence Agency, and I asked it on a number of

occasions through the process in which I was interviewed. I’ve spoken now to four former General Counsels of the—and did speak

prior to accepting the nomination—four prior General Counsels of

the Central Intelligence Agency and the Acting General Counsel

now. I spoke to two of the witnesses you had here before you yesterday, both of whom are my friends, Louis Freeh and Mary Jo

White. I spoke to a former head of the Central Intelligence Agency

and I spoke to the gentleman who is now the General Counsel for

the National Security Council.

Each and every one of them told me—and also a former Attorney

General who is a friend—each and every one of them told me that

in their view the most important requirement for the General

Counsel of the Central Intelligence Agency is judgment and maturity and the ability to make decisions quickly but properly. I have

no illusions about how much there is to learn. Clearly it’s a lot. I

also have no doubt that I can do it and do it well.

Chairman GRAHAM. Thank you, Mr. Muller. That was very reassuring statement. You are going to face a number of challenging

legal issues should you be confirmed. One of those that has been

discussed repeatedly, including yesterday by former FBI Director

Louis Freeh and former U.S. Attorney for the Southern District of

New York, has to do with the wall between law enforcement and

8

intelligence. We have found instances where that wall has been so

impenetrable as to keep information that would have been valuable, potentially even change the course of events, from passing in

one direction or the other.

There were some significant changes made in the law as part of

the U.S.A. Patriot Act that was adopted in October of last year. At

this stage, do you have any comments to make, including from your

experience as a U.S. Attorney, as to how that wall of separation

should be either modified, dismantled, strengthened?

Mr. MULLER. Well, let me start, Senator, by saying that I think

the changes that were made in the U.S.A. Patriot Act were clearly

necessary in light of the events of September 11 and I think have

gone a long way toward creating at the operational level the kind

of sharing and collaboration that this Committee and the Intelligence Community and the Bureau and law enforcement think

need to occur. There’s a lot of work left to be done.

The wall that originally existed obviously had its basis in experience. The concept essentially was that to the extent there was a

merger of foreign intelligence and law enforcement there would be

both the incentive and the opportunity for abuse. But we now live

in a world that’s different than when that wall was first erected.

First, unlike the days prior to the Church and Pike investigations, there is now Congressional oversight that is effective and extensive. In addition to that, the nature of the threat has changed

dramatically. The distinction between domestic and foreign is difficult to apply in a world where the threats are truly transnational,

just as the distinction between law enforcement and intelligence is

difficult to sustain when the line between war and peace has essentially been eroded in the way that it has.

Obviously, it’s going to be a critical issue going forward to continually re-examine the relationship between domestic law enforcement and domestic activities on the one hand and foreign on the

other. There are clearly things that can be done now, some of the

issues relating to the FISA that are being litigated before the court

that need to be examined, but as a general matter, while keeping

an eye on the reasons why the wall was essentially erected in the

first place, clearly we’re moving toward other ways of achieving the

goals of protecting U.S. civil liberties interest while getting the job

done.

Chairman GRAHAM. Thank you very much, Mr. Muller.

Senator Rockefeller.

Senator ROCKEFELLER. Thank you, Mr. Chairman. I bid you a

good day.

Mr. Muller, a couple of things. I think that essentially in life people have two parts to them. You get this all for free.

Mr. MULLER. My children are getting it, too.

Chairman GRAHAM. Senator Rockefeller might charge tuition for

your children—always mindful of the family treasury.

Senator ROCKEFELLER. That’s right. Always looking for more.

[Laughter.]

Senator ROCKEFELLER. In other words, the skill sets that they’re

trained with and then sort of the way they adapt to how life puts

them into a different circumstance. Skill sets—this is still a continuation of the Chairman’s question—skill sets are powerful. Now,

9

as Senators we have to manage time and all kinds of things. Lots

of people have to do that. When a lawyer says I can manage time,

get a hundred lawyers together, react to a crisis, and walk into a

situation and master it, that’s important. It was reassuring to the

Chairman and it doesn’t un-reassure me, but I want to probe a little bit further.

If you don’t know about a subject, there is a price. I’ll just pick

an example out of the air. You can have mastery of the history of

China, for example, but if you don’t speak Chinese or if you don’t

speak several of its dialects, talking about this Agency, you’re disadvantaged. Because it means that Mao Tse-dong, for example,

could never, was never understood by more than one-third of the

people of China because of the dialect and the province that he

came from when he spoke.

So for a lawyer for the CIA, General Counsel for the CIA, the

skill set has to be, I think, quite broad. In your case it’s a set of

instincts as to how to gather together the threads needed to use,

as you say, good judgment, common sense, as the others said, good

judgment and common sense. I’m not questioning whether that’s

enough, but I’ll just give you an example then, ask you to respond.

I’ve used this several times before.

We had here in open session not long ago a Minneapolis FBI

agent and he had been dealing with the Moussaoui case. He had

two choices. Moussaoui was working under an expired French visa,

of that nature. Thus, he had broken the law and, therefore, law enforcement said, ‘‘you go get that person.’’

Now there was another choice he could have made, which was

to say, I know that this person, I suspect that this person has terrorist ties and, therefore, rather than nailing him for what I know

I can get him on, wouldn’t it be more useful for me to surveil him,

to see who he has lunch with—to figure out, just to watch over a

period of months what his interaction is and who he sees. In fact,

this gets more and more important as we get more into all of this.

He clearly, resolutely, proudly, definitively picked the first course

and rejected the second, in his testimony to us. It’s that I think

that the Chairman and I are thinking about. Mastery—you’ve got

to speak the language. You can go to the country, but you’ve got

to speak the language. So with that kind of alliteration, I want you

to expand more on just that good judgment is enough.

Because it’s like why Mormons are so important to the Agency

because they get their language training for 2 years and then they

go out and they go in the street. So they learn not just the dialect,

which they’ve already learned, but they learn the colloquial language. Then some of them go to the Agency where they do unbelievably helpful things. But if they didn’t have that, they couldn’t

do that. Now, you have this whole, huge field to survey.

Mr. MULLER. I understand your question, Senator. First, let me

say, obviously, I agree with you. In order to do the job or understand China, you ultimately need to learn Chinese, and you need

to learn it pretty fast. I will not know Chinese the day I arrive. I

will be able to rely on people in the Agency and in the General

Counsel’s office for the time that it takes me to learn for a period

of time. But I will need to learn fast, and I have no illusions about

that.

10

It is also true that this is a highly specialized area. It’s not much

you read about in books. You have to go out and actually spend

some time and understand the business of what is done at the

Agency.

There is, of course, the legal part—the law—and, as I said, I

have learned extraordinarily arcane areas of law and have done it

fast. The more difficult part, and I think you’re right, is to learn

the business of the Agency——

Senator ROCKEFELLER. The instinct which pulls you back to one

or another place.

Mr. MULLER. You’re talking about the two choices, you mean.

Senator ROCKEFELLER. I just use that as an example. The question of the instinct. Where do you go? You get the information, but

then where does it take you?

Mr. MULLER. It’s hard to answer a question about instinct in the

abstract. Let me say this and then I’ll sort of venture into, as best

I can, to try to answer that.

I think one of the reasons why I have been lucky enough to have

success going from one crisis management situation to another—

why I get asked by different clients to do it is because I’m willing

to make judgments. I’m willing to take risks when they have been

carefully calculated. I’m willing to act with the speed that’s required by the clients and the circumstances.

As well, I think I’ve been able to show a number of clients that

I can learn Chinese. If I may, I’ll give you a brief example. I represented—one of the most arcane parts of the securities business

is the loaning and borrowing of securities back and forth between

firms. There are a handful of firms in the country and, indeed, in

the world who do it. They make vast sums of money doing it. Two

firms ran an operation together for a period of years and then had

a dispute about how to account for the proceeds of it because their

system seemed to be giving them results that weren’t intuitively

right.

They interviewed a number of lawyers to try to find one who

could come in and understand what was going on, and they gave

that lawyer—and I was among a group of lawyers who were interviewed about doing it; I’d had no prior experience in the area at

all and, indeed, relatively little in the way of accounting background. I knew nothing about the business; I had never heard of

it.

I had a month to do this because it was actually a dispute. I was

being hired by one side. I went in with the people who had actually

put the system together, and we took it apart, piece by piece. I

learned the business. Not only that, I found imbedded in the assumptions—in one of the assumptions that underlay their system—

a system that they had created and which they had looked at—and

this particular issue they’d looked at over and over again, they had

missed it.

I ended up taking the system apart. I ended up putting their system back together. That system, the system that I created essentially for them, is now being used by that particular firm for hundreds of millions of dollars every year. That was Chinese—or Greek

in that case. I learned it, and I was able to be helpful and fast.

11

Now in terms of instinct, to come back to what I think is the core

of your question, it’s hard to answer again in the abstract. I have

had, albeit awhile ago, the choices that you asked between does one

act now to stop a particular individual or does one, in effect, let the

chips ride to see what additional gains can be made.

Those are judgments which can only be made on the basis of all

the facts at the time. As a lawyer, I will not be making them in

the first instance. Instead, I’ll largely be advising as to what I perceive the risks are.

I’ll come, if I can, one further point. Senator Graham in his opening statement referred to a prior General Counsel who talked about

the need for adult supervision—who had used the word adult supervision. I obviously and clearly do not view that as my role. I

view the lawyer more as a navigator who will help the captains of

the ship steer it as best they can as so it’s not to hit shoals, to tell

them where the water is deep and where it is shallow, and to give

them their best judgment—my best judgment as to how the ship

will fare in particular seas. But I will not be running it. I will not

be the captain. I will be advising as best I can on how to navigate.

Senator ROCKEFELLER. I’ll wait for the second round. Thank you.

Chairman GRAHAM. I’d like to follow up on Senator Rockefeller’s

questions by posing, as one might in a law school classroom, a couple of hypotheticals.

Mr. MULLER. Sure.

Chairman GRAHAM. We don’t expect a master’s paper on this, but

in 2 or 3 minutes, if you can sort of give us an idea of how your

mind works, how you would go about approaching these issues.

First, one of the most vexatious issues that we’ve been dealing

with is the so-called leaks problem. We have an elaborate system

by which information is classified, which means that its release to

the public is restricted, and we have laws to protect that classification system, many of which point directly at the Director of Central

Intelligence, who has specific legal responsibility, if he becomes

aware of an inappropriate release of classified information, to take

actions, including forwarding cases to the Department of Justice.

The fact is, this system, from my information, has not resulted

in a successful prosecution in some two or three decades. The number of leaks are rampant. You could probably pick up today’s New

York Times and Washington Post and find several of them on the

front page. I’ve described we now are not dealing with leaks; we’re

dealing with dam breaks where big surges of information such as

the Department of Defense battle plans for Iraq get released inappropriately.

If during your third week on the job Director Tenet should come

in to you and say that he shares this concern and clearly the current system is not functioning either as a deterrent or as a punishment system, how would you go through the process of approaching

that problem? With whom would you consult? What would be your

analytical steps, et cetera? I might say I hope this hypothetical

issue becomes a real issue soon.

Mr. MULLER. Well, Senator, I think you are right. The issue of

leaks is an extraordinarily important one. The damage that is done

by leaks is no different than the damage done by a spy. The fact

that it’s done for, you know, what the leaker may view as approVerDate 03-FEB-2003 09:58 Mar 07, 2003 Jkt 083725 PO 00000 Frm 00015 Fmt 6633 Sfmt 6601 D:\INTELL\83725.TXT SSC2 PsN: SSC2
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priate reasons is absolutely no excuse given the horrendous damage that can occur. I think I would approach—leaving aside for the

moment the question of who I would consult—my mind wraps itself

around the problem in the following way.

The first question I ask myself is what are the legal authorities

and what are the statutes that apply and are they adequate? In the

case of leaks, I know that there are espionage statutes which relate

to the leak problem. I also suspect that there is a certain amount

of disinclination on the part of the Federal prosecutors to want to

use the word espionage to deal with the problem of—with an issue

of a U.S. person who is leaking as opposed to spying. So the first

question I would ask is to find out what the statutes are, to find

out whether they’re adequate and, to the extent that they’re inadequate, an issue which I think I would clearly address with the Department of Justice, the Criminal Division, and others, I would ask

that question first.

The most difficult question with respect to leaks has to do with

actually investigating and finding them. In order to do that, you

would want to have a specific case where it came to you or, to the

extent that you could, you would want to put in place systems

which would actually allow you to find them before they occurred

or as they were occurring.

More than anything else, you want to find a case that you can

bring. You want to find a case that you can bring and bring successfully. You’d have to navigate your way through the problem of

the threat of exposure of national security secrets as you do it.

So to answer the question, again, I would first analyze what are

the legal authorities and, most importantly, I would try to find a

way—pro-actively rather than reactively—to, whether it’s set a

trap, or set up a system where I could actually come up with a way

to do it. It’s a very difficult problem.

I think the reason why, at least to my knowledge, there haven’t

been leak prosecutions—leaving aside the issue of to what extent

can we actually go to the media in order to deal with this—a highly

sensitive question and one which the Department of Justice I know

has thought about extensively—but if one is limited to looking internally, that’s one of the great problems, is actually finding it.

Chairman GRAHAM. Thank you.

Senator Rockefeller.

Senator ROCKEFELLER. Thank you, Mr. Chairman.

I want to still go back to the first question. This is not unfriendly

questioning. You recognize that there is this gap and you say that

you can overcome it and it is our duty to try to make our best judgment that you are right about that.

Mr. MULLER. As I said Senator, I view it as a fair and appropriate question and I continue to.

Senator ROCKEFELLER Yes, you did and you are very forthcoming

about that.

There is an agency that used to be called HCFA—which is the

Health Care Financing——

Mr. MULLER. I had a case involving them.

Senator ROCKEFELLER. You are involved with them?

Mr. MULLER. I had a case involving them. I had to learn something about them, yes.

13

Senator ROCKEFELLER. I think it takes somebody about 12

years—it is my judgment—to learn health care, public policy, in

and out. You can do it through the master’s thing. You can do it

through a Ph.D. at Johns Hopkins or wherever, but then you’ve got

to practice it. Then the real world comes in on you and then you

have the political process that comes in on you, and then OMB that

comes in on you.

President Bush’s head of HCFA is a fellow named Tom Scully,

who knows health care cold. That’s what he’s done. He’s a lawyer.

But he brings more to it than the law. He brings to it just flat out

knowledge and the battle scars of what went wrong as he applied

legal instincts versus the practical problems of a recalcitrant HHS

Secretary or President or OMB or whatever.

Am I justified in saying that fast learning skills—and then shoot

me right down if you think I am wrong—that it really isn’t just a

matter of collating lawyers and learning quickly, but that instincts

are not learned quickly. They come from experience. It’s like an

agent who has served overseas and does human intelligence. I

mean, you don’t just go get trained for it. It takes years to develop

the instincts that allow you to know what you are doing—which is

right, which is smart, that you should have done this or that. Now

how do you help me?

Mr. MULLER. I understand your question. Let me first say instincts, I don’t think, are learned. You have them, you develop

them in whatever field you have over time. You then take those instincts and you apply them to whatever set of facts or area you are

put into. That’s what I do. There have been three prior General

Counsels——

Senator ROCKEFELLER. Where do you get the instincts from?

Mr. MULLER. Your experience.

Senator ROCKEFELLER. But your experience isn’t in this.

Mr. MULLER. No. But you don’t need to have—with respect, Senator, I don’t believe you need to have your instincts honed in this

particular area. I think you need to have your instincts honed in

the fight, in the well, in places where there are multiple people

with different views where you have to navigate through them and

where you have a sense of where a common sense good judgment

would put you in the choices between letting someone stay out in

the field so you can follow where they go and find the terrorist’s

co-conspirator, letting them have one more phone call, or instead

taking the risk that they are going to do something. You simply

look at all the facts and circumstances and you bring to it the best

judgment you have.

I have spent the last 25 years essentially making precisely those

kinds of judgments in varying fields. In particular, I have made

them in the law enforcement area for only 4 years as a prosecutor,

although we ran undercover operations, we ran a sting operation

and in one case in which I can’t talk about here, we actually had

a person who was in organized crime who was out on the edge of

doing things with organized crime to keep his credibility going.

I have lived those, albeit when I was younger. I have spent the

rest of my career dealing, watching prosecutors having made the

same decisions sometimes representing on the defense side. There

have been three prior General Counsels of the Central Intelligence

14

Agency who came to that job without intelligence experience. The

first, named Tony Latham, came from Shea and Gardener. Russ

Bremer came from Wilmer Cutler, and Stanley Sporkin from the

SEC. Without knowing the ins and outs of how well they performed

in your eyes Senator, I know from the people I have talked to in

the Agency that several of those performed very well.

I could add as well that I asked this question and I was—as I

said to a person from people who know this community and know

me—said, ‘‘don’t worry about this. You will be able to do it. It will

come naturally to you because of your experience and because of

the amount of law that is involved is relatively speaking not the

body of HCFA law.’’ Would I know health care policy the way the

gentleman you described? No. Do I think that my instincts and experience are such that I can add real value and help make sure

that the lawyers are part of the team and not viewed as—and don’t

view themselves as—adult supervisors? Yes. The delivery of legal

advice, working as a team, avoiding us versus them kinds of cultures, that’s what I do.

Senator ROCKEFELLER. I thank you and I’ll have the third round

if you don’t mind, Mr. Chairman.

Chairman GRAHAM. Thank you, Senator.

I’d like to raise a second issue. The Intelligence Community is organized theoretically under the general supervision of the Director

of Central Intelligence. By tradition and history, the Director of

Central Intelligence also has served as the head of the CIA, one of

the constituent agencies that make up the Intelligence Community.

In your position, you are going to serve as the General Counsel

to both of those positions—to both in his directorate of the whole

community as well as his specific responsibilities at the CIA. One

of the other agencies that’s in that constellation of intelligence

agencies is that part of the FBI which is involved in intelligence.

This multiple responsibility creates the potential of conflicts of interest, as we have learned in our hearings. Not infrequently the

FBI and the CIA have different views of the same matter which

have resulted in patterns of action, including one ignoring the

other.

Think about and tell us how you would approach these multiple

responsibilities and particularly how you would see, from your position as General Counsel, dealing with the conflicts between the

FBI’s intelligence responsibilities, the CIA’s virtually total intelligence responsibilities, and the DCI’s overview of all of the agencies of the agencies of the Intelligence Community.

Mr. MULLER. I think there are—I’ll try to divide that question

into a couple of parts if I can. One part has to do with the relationship and possible conflict between the FBI counterintelligence and

domestic responsibilities and the CIA’s foreign both counterintelligence and intelligence activities. The second question I think has

to do with the role of the DCI as head of the community and what

conflicts may exist both because of his dual capacity as head of the

CIA and head of the community and, as a corollary to that, whatever conflicts I may have as General Counsel to him in those capacities.

Let me address the first question first. The message of the U.S.A.

Patriot Act and the lesson of 9/11, subject of course to the correct

15

oversight, is that the parts of the FBI and the CIA need to work,

and the Justice Department, fully hand-in-hand in the investigative stage, in the stage where they are trying to determine ways

in which they can disrupt and detect terrorists and other threats.

There is now increasing and should be full field-to-field coordination. It’s precisely now—and just as in the past in espionage cases

choices have had to be made along the lines of the choice that you

referred to earlier, Senator Rockefeller, about when to bring a case

and when not to bring a case, when to let one ride and when not

to let one ride. Those choices will increasingly need to be made as

those teams work together.

They are also going to have significant issues to work on together

as to whether or not cases are brought and where they are brought,

what obligations will be under Brady against Maryland and a variety of related questions. There is no substitute for not only having

the field agents working together but actually having the lawyers

work together as well, the prosecutors, as they are now doing in

the counterterrorist cases where, as I understand it, there is and

has been an extraordinarily good relationship between the Federal

prosecutors and the Southern District of New York and the Eastern

District of Virginia, the FBI agents, and the CIA agents all working together.

I would envision that there would be, over time, an extensive exchange not only of information but of personnel, hopefully even between the offices, so as to make that—and ultimately when the systems are pulled together in a way which I understand they are not

now, then the walls should ultimately be transparent and then

choices can then be made as to when cases should be brought, what

the costs will be, where they will be.

With respect to the second question having to do with the DCI’s

role, obviously that has been an issue not only for this Committee,

but really for the Nation, most recently, but over time. It is one

that when one looks at—every time I look at it and think through

a possible solution to how the national security apparatus ought to

be organized differently I see both advantages and disadvantages

to it and there are obviously a host of proposals.

In the current system, as General Counsel I would view myself

as having those responsibilities which the DCI gives me with respect to the community. I have no question but that a significant

amount of coordinating work can and should be done. There are

lawyers from the General Counsel’s office that are deployed to most

of the other elements of the community, or can be—I think NSA

may be an exception—but I would envision working very closely

with the other General Counsels.

I don’t perceive a conflict. I have frequently represented multiple

clients, to the extent that one can view this as a multiple client.

My client is the mission. My client is the President and the Executive branch subject to this Committee’s oversight. Actions speak

louder than words. I think to the extent that there is a perception

of a conflict it can be eliminated. To the extent that there is a conflict, I’ll be the first to say so. I doubt it’ll occur.

Chairman GRAHAM. Senator Rockefeller, could I ask two favors.

First, could I ask a followup question beyond my 5 minutes and

then, second, I am going to have to leave. Could you continue the

16

hearing and then conclude it when you have completed your questions? You’re a scholar and occasionally a gentleman.

We have had issues where, because of what now is agreed to

have been erroneous legal advice, important decisions were either

made or not made. The most prominent example is in this so-called

Moussaoui case that Senator Rockefeller referred to in his questioning, where the field agent in Minneapolis was berating the central office here in Washington to seek a FISA in order to get information. The persons making the decision here in Washington, by

all now agreement, were misapplying the law and denying this request, and then shortly after 9/11, when they did get access, found

information that could have been very significant had it been available earlier.

How do you see your responsibility in terms of the legal community which advises all of the agencies that make up the Intelligence

Community, so that on something such as what are the rules for

a FISA, that the information is uniformly disseminated, updates of

change in the law are promulgated, and some degree of oversight

to assure that the legal officers are applying the appropriate standard, that we have a continent of law and not a series of individual

islands which may be drifting away from each other.

Mr. MULLER. I think within the Agency, to answer that question

there first, what you have identified I think is one of the most important things that the General Counsel is responsible for ensuring. There needs to be careful management and coordination

among all the lawyers giving advice within the Agency to assure

that it is, A, uniform, B, correct, and, C, that it is not driven by

concerns of caution not required by the law, and similarly that it

is not—that it doesn’t fail to take into account and raise to the appropriate levels any issues where the risks seem to be extreme.

It also has to be client-driven. By that I mean it is imperative

in the delivery of legal advice that the lawyer earn the trust of the

client. You won’t be asked back a second time, you won’t be consulted when you need to be consulted unless you earn that trust.

You earn that trust by doing everything you can to work with them

to be part of the solution to the extent there’s a problem, by being

clear and simple about the rules that guide, to be clear and simple

about the difference between law and policy, and to be sure as well,

because you are with them in recognizing that the risk of illegal

action in the environment that we are operating in is no different

and no greater than the risk of inaction.

Chairman GRAHAM. Mr. Muller, thank you very much. I apologize that I have got to go to a 10:30 meeting. I thank you very

much for the candor and the thoughtfulness of your responses and

wish you and your family well. We will be attentive to moving this

nomination as expeditiously as we can.

Mr. MULLER. Again, Mr. Chairman, thank you for scheduling the

hearing. I know you all have been very busy doing very important

work and I thank you.

Chairman GRAHAM. Senator.

Senator ROCKEFELLER. One of the interesting—well, not interesting—well it is interesting, but it is slightly depressing—facts is

that there is a large and growing distrust between the executive

branch and the legislative branch. It is often said—and this is not

17

political because I think all Presidents are guilty of this or we are

guilty of it—it really doesn’t make any difference—there is quite a

lot of disdain for oversight committees now. There is a great deal

of disdain within the Intelligence Community for Oversight Committees—the Intelligence Committees in both Houses.

That has been proven many, many times in the last number of

weeks as we have been trying to carry on this 9/11 investigation

and deadlines and postponements and we’ll have it for you in 24

hours and then it’s we’re OK with it, but we’ve got to take it over

to the FBI or NSC and then it comes back and we end up getting

it at 10 o’clock or at 9:55 and the hearing begins at 10 o’clock.

That makes us—it means we can’t read it, we can’t read anything. That’s deliberate or it’s inadvertent. But in any event there

is this disdain. I understand that because there are people putting

their lives on the line out in the world and here these

Congresspeople, who unfortunately have come on and off the Committee too quickly—but it comes at great cost. It comes at great

cost.

It causes us to do the one thing that I don’t want to see happen

as between oversight and the Intelligence Community, and that is

the blame game. The blame game can come from two sources. One

is that we get angry because we feel we are being looked down on

and, you know, that we get sent second- and third-line people, and

then sometimes we fail to recognize that the first-line people may

have obligations they have to meet.

But whatever it is, just accept what I say as being true, if you

will.

So then there comes a question of timely reports. There are timely reports on annual or one-time basis that the Congress requires

and is owed which is frequently not met. That brings then the

question of a General Counsel advising a Director of Central Intelligence about what to do about that. That is where you run into

potentially the politics or we don’t want them to know or why are

they doing this to us or this is taking all of our time and I’ve got

more important things to do than sit and answer questions.

But the fact is that we do appropriate the money. We do represent the people. You work for the President and, more importantly, you work for the people who we also represent in smaller

sections than obviously the President does.

So my question is this. Are you the kind of personality, and if

you are, I’d like to know—I want you to sort of prove it to me, give

me an example—where you go in and you say to your boss you’ve

got to do this and you are going to do it. You are going to do it.

You don’t want to do it and I understand that, but you are going

to do it because it is the law, because it is required, because it is

your instinct that it needs to be done, because these relations have

to be good because if we don’t then we just play gotcha all the time.

That is human nature and it is bad human nature.

But how can I have a sense that you are not just a skilled collator of facts and information leading you to, as you say, the right

kinds of intuitions but that you’ll also take on the person to whom

you report and threaten to resign, if necessary, if the issue is important enough. What aspect of your personality should give me

confidence?

18

Mr. MULLER. Good question. I am going to try to answer with a

specific example. I am going to be a little bit opaque because I

want to be careful about privilege. But I will give you a specific one

and one which one of your witnesses from yesterday would be able

to tell you more about from the government’s perspective if it ever

became appropriate.

My firm represented and represents many financial institutions.

I was called into a case on what was then not yet a case actually

on a Wednesday to give advice to this financial institution about

a Federal Reserve examination which was to begin the following

Monday.

I gave some advice with respect to what that client could do or

not do in connection with preparing for that examination. It ended

up taking the matter first to the CEO, from there to the board of

directors, and ultimately, in a personal conversation with the chairman of the board when the advice was not taken, I told him that

I was going to be consulting my firm. We withdrew from the representation of that client on a Sunday evening at about 11 o’clock.

The Federal examination went forward. Two-and-a-half years later

that client was indicted. It was indicted in connection with the

matter that had been a part of the discussion that we had had.

There is nothing more important to me than my credibility.

There is nothing more important to me than my reputation. I will

risk, indeed give up, the financial benefits of my practice for this

job, but I will never do anything that would in any way call that

into question and there is nothing that—I would never have any

hesitation to give the advice that I think is correct. In fact, the people in the General Counsel’s office already know I expect push-back

when I come up with a view. I give push-back. I think that is my

job.

I am not sure I answered the entirety of your question, as I think

back on it now. I was giving the example.

Senator ROCKEFELLER Could you give me some more then?

Mr. MULLER. Well, I am trying to remember now if—you asked

for an example—I am trying to remember now the general context

in which I gave you the example. I remember the point of it. But

the question was essentially whether I’d have any hesitation in effect in telling the DCI what he needed to do—oh, I know.

The context of the question had to do with the relationship between the Intelligence Community and the CIA on the one hand

and this Committee on the other. Many of the crisis kinds of cases

that I came into didn’t need to be crises when they started. They

became that because of the way in which the client dealt with the

regulator or the U.S. Attorney or others, unnecessarily so. Whether

the reason for the mistrust was inadvertence or deliberate is really

irrelevant, because from the point of view of the regulator the result is the same and the two are indistinguishable.

There have been a number of cases, and I am trying to think of

any that are public, where we have come in and my approach has

always been the same. There is no excuse for being anything other

than forthright with your regulator. I have an expression which I

sometimes give to clients, particularly in the criminal arena. I tell

them you can try to punch the big bear in the nose or you can

smile and try to work with it. The latter is generally the better

19

course, particularly in an industry where you have no choice but

to deal with that regulator.

There may be times when in response to a subpoena or otherwise

it is impossible or difficult to meet the deadline. You never let it

pass. You talk about it. You do everything within your power to

meet it. I read the report that accompanied this Committee’s authorization bill this year which described the performance on congressionally-demanded reports as dismal. I looked at the statistics

as well. I immediately asked to understand those facts. I understand that work is being done on it now, but I also fully understand why this Committee would be, and was and is upset about

that.

I can tell you that from my perspective there is nothing more important than full candor. I can’t promise that without knowing particular facts that every question you ask I’ll be able to answer. I

can promise that if I can’t answer those questions or if there is a

reason why for one reason, legitimate reason, or another legitimate

reason there is something that can’t be done, you’ll be told. You’ll

be told the reason so that there is transparency with that regard.

Senator ROCKEFELLER. Thank you. The final question I would

have would be your transition assuming this all works out. One

way of asking that would be what have you done to prepare. You

have obviously just read something which I wouldn’t have guessed

you would have read, but you did and you know you had a reaction

to that from that.

There have been all kinds of reports that have been done over

the last many years on the reorganization of the Intelligence Community. Those reports are always dead on arrival. It is sort of

fated, but it doesn’t mean that they are wrong. It is been really

stunning, I think, to those of us on this Committee to see the lack

of coordination and the turf nature of the Intelligence Community,

in the case of the FBI because in the case of the lawyer he doesn’t

want to give up information because it might jeopardize his case

and that’s understandable. You put in the Intelligence Community

and that information doesn’t go to somebody else who needs to

have it because they’re surveilling and that is a fine line.

But what have you done to prepare yourself to learn the so-called

Chinese language and what is your approach, given the ferocity of

the pace at which everything is moving, to preparing yourself for

the nuances that don’t fall specifically under knowing the law?

Mr. MULLER. As you know I have had a practice of law, but I

have also done what I think I could do up until now to begin to

prepare. I didn’t obviously want to pre-judge the conclusion of this

Committee. But first, with respect to the reorganization, I have

asked for—although not received—the Scowcroft report. I have

clearances, but so far I think, understandably I am cleared up to

only a certain level. I have not yet printed or gotten the report for

Zoe Baird’s group, but I obviously will read that.

I have read a fairly thick set of materials that I have was given

by John Rizzo and Fred Manget at the Agency to read to sort of

get a general sense of the law. I have read and have the kind of

understanding one gets without having a specific matter in front

of you, you know, all of the statutes and Executive orders.

20

I have read the authorization bills and then I have asked for and

so far had briefings, again up to the secret level, from the heads

of each of the groups within the General Counsel’s office. I have

read 1-page biographies of each of the lawyers in that office and

I have given them—I guess I haven’t given them yet—I have given

orally and they have a longer list of things that I have asked for—

things that come to the top of my head.

With respect to that I have asked for an index of all of the IG

reports for the last 10 years. I have asked for copies of each of the

IG reports that relate to the General Counsel’s office. I have asked

for a collection of the findings in effect. I have asked for a variety

of materials like that—a list and a compilation of the congressional

prohibitions, whether precatory or otherwise that are still current.

My plan, subject to the DCI, of course, and conversations with

the deputies who are experienced in the office—and we had a brief

conversation about this yesterday—is to spend a significant amount

of time walking the building, meeting with the clients and learning

the business.

There is no way to give intelligent and sound advice without understanding the business and, of equal importance, without the client believing that you understand the business. So I would expect

to spend a significant amount of the first at least 4 weeks trying

to avoid the incoming while I go and learn what the battlefield

looks like.

Senator ROCKEFELLER. I don’t want this to sound wrong, but I

just want to ask you for my own information. How much traveling

have you done in the world? In the Middle East? In South and

Southeast Asia?

Mr. MULLER. I spent two summers in Europe. I spent 6—almost

4 months in the Middle East and Africa. In 1971 and 1972 I was

the—mostly by accident of fate—became the manager of Middle

East and African sales for Harper and Row publishers. My job was

to travel to meet booksellers and go to universities throughout the

Middle East and Africa. I spent 21⁄2 weeks in Lebanon at that time,

well before the war—it was a beautiful place—and throughout Africa. I’ve been to Europe a number of times. I have never been to

South America.

In my work at Davis Polk I have had a number of European clients and spent a significant amount of time in Switzerland, in

Spain, investigating and doing cases there, in Germany. I traveled

in Eastern Europe on two occasions during summers, spent 21⁄2

weeks in East Germany when I was 17. At one time, I had passable German and passable French—no longer.

Senator ROCKEFELLER. OK, Mr. Muller, I thank you. You understand the nature of our questions.

Mr. MULLER. Of course.

Senator ROCKEFELLER. They are the questions, as you indicated,

that we should be asking. I am also very impressed, as Senator

Graham is, by your candor and your composure and I think sense

of precision and confidence, which is important.

So I draw this hearing to a close and repeat what he says, that

we’ll do this as expeditiously as possible. The Agency needs a General Counsel and we want it to work.

Mr. MULLER. Thank you very much, Senator.

21

Senator ROCKEFELLER. Thank you, sir.

[Whereupon, at 10:50 a.m., the hearing adjourned.]

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COMMITTEE BUSINESS MEETING TO VOTE ON

THE NOMINATION OF SCOTT W. MULLER TO

BE GENERAL COUNSEL OF THE CENTRAL

INTELLIGENCE

WEDNESDAY, OCTOBER 16, 2002

U.S. SENATE,

SELECT COMMITTEE ON INTELLIGENCE,

Washington, D.C.

The Committee met, pursuant to notice, at 12:26 p.m., in room

S–216, The Capitol, the Honorable Bob Graham (Chairman of the

Committee) presiding.

Committee Members Present: Senators Graham, Levin, Rockefeller, Wyden, Shelby, Kyl, Hatch, Roberts, and DeWine.

Committee Staff Members Present: Al Cumming, Staff Director;

Bill Duhnke, Minority Staff Director; Vicki Divoll, General Counsel; Kathleen McGhee, Chief Clerk; Melvin Dubee, Lorenzo Goco,

Jim Hensler, Hyon Kim, Matt Pollard, Michal Schafer, Linda Taylor, and Jim Wolfe.

Chairman GRAHAM. Member, we now have a quorum of nine

present.

The Committee will consider the nomination of Mr. Scott W.

Muller for the position of General Counsel of Central Intelligence

Agency. Pursuant to Rule 5 of the Committees rules, I move the

Committee vote to report favorably to the Senate the President’s

nomination of Mr. Scott W. Muller to be CIA General Counsel.

Is there a second?

Vice Chairman SHELBY. Second, Mr. Chairman.

Chairman GRAHAM. The Clerk will call the roll.

Mrs. MCGHEE. Mr. Levin.

Senator LEVIN. Aye.

Mrs. MCGHEE. Mr. Rockefeller.

Senator ROCKEFELLER. Aye.

Mrs. MCGHEE. Mrs. Feinstein.

Chairman GRAHAM. Aye by proxy.

Mrs. MCGHEE. Mr. Wyden.

Senator WYDEN Aye.

Mrs. MCGHEE. Mr. Durbin.

Chairman GRAHAM. Aye by proxy.

Mrs. MCGHEE. Mr. Bayh.

Chairman GRAHAM. Aye by proxy.

Mrs. MCGHEE. Mr. Edwards.

Chairman GRAHAM. Aye by proxy.

Mrs. MCGHEE. Ms. Mikulski.

100

Chairman GRAHAM. Aye by proxy.

Mrs. MCGHEE. Mr. Kyl.

Senator KYL. Aye.

Mrs. MCGHEE. Mr. Inhofe.

Vice Chairman SHELBY. Aye by proxy.

Mrs. MCGHEE. Mr. Hatch.

Senator HATCH. Aye.

Mrs. MCGHEE. Mr. Roberts.

Senator ROBERTS. Aye.

Mrs. MCGHEE. Mr. DeWine.

Senator DEWINE. Aye.

Mrs. MCGHEE. Mr. Thompson.

Vice Chairman SHELBY. Aye by proxy.

Mrs. MCGHEE. Mr. Lugar.

Vice Chairman SHELBY. Mr. Lugar, aye by proxy.

Mrs. MCGHEE. Mr. Shelby.

Senator KYL. Aye.

Mrs. MCGHEE. Mr. Graham.

Chairman GRAHAM. Aye.

Mrs. MCGHEE. Seventeen ayes.

Chairman GRAHAM. The ayes are seventeen, the nays are zero.

The ayes have it. Mr. Muller’s nomination for CIA General Counsel

will be reported favorably.

[Whereupon, at 12:28 p.m., the Committee adjourned.]

Æ