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52–740 PDF 2009

S. HRG. 111–163 

NOMINATION OF DAVID S. KRIS TO BE ASSISTANT 

ATTORNEY GENERAL FOR NATIONAL SECURITY 

HEARING 

BEFORE THE

SELECT COMMITTEE ON INTELLIGENCE 

OF THE

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

FIRST SESSION 

MARCH 10, 2009 

Printed for the use of the Select Committee on Intelligence 

( 

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 

MARCH 10, 2009 

OPENING STATEMENTS 

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

Bond, Christopher S., Vice Chairman, a U.S. Senator from Missouri ................ 2 

WITNESS 

Kris, David S., Assistant Attorney General for National Security-Designate .... 3 

Prepared statement .......................................................................................... 4 

SUPPLEMENTAL MATERIAL 

Prehearing Questions for the Record and Responses ........................................... 20 

Questionnaire for Completion by Presidential Nominees .................................... 52 

March 6, 2009 Letter from Robert I. Cusick, Office of Government Ethics, 

to Senator Dianne Feinstein ............................................................................... 71 

Public Financial Disclosure Report ........................................................................ 72 

February 18, 2009 Letter from Benjamin A. Powell ............................................. 99 

January 30, 2009 Letter from Daniel Marcus ....................................................... 101 

January 30, 2009 Letter from Michael Chertoff ................................................... 102 

February 2, 2009 Letter from Richard Cullen ...................................................... 103 

February 4, 2009 Letter from Larry D. Thompson ............................................... 105 

February 1, 2009 Letter from Janet Reno ............................................................. 106 

February 3, 2009 Letter from Daniel Levin .......................................................... 107 

February 3, 2009 Letter from Robert S. Litt ......................................................... 108 

(1) 

NOMINATION OF DAVID S. KRIS TO BE 

ASSISTANT ATTORNEY GENERAL 

FOR NATIONAL SECURITY 

TUESDAY, MARCH 10, 2009 

U.S. SENATE, 

SELECT COMMITTEE ON INTELLIGENCE, 

Washington, DC. 

The Committee met, pursuant to notice, at 2:32 p.m., in Room 

SD–106, Dirksen Senate Office Building, the Honorable Dianne 

Feinstein (Chairman of the Committee) presiding. 

Committee Members Present: Senators Feinstein, Rockefeller, 

Wyden, Feingold, Bond, and Chambliss. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, 

CHAIRMAN, A U.S. SENATOR FROM CALIFORNIA 

Chairman FEINSTEIN. The hearing will come to order. I apologize 

for this large hearing room. It is not the most intimate of surroundings but it is public and that is our requirement. 

The Committee meets today to consider the nomination of David 

Kris to be Assistant Attorney General for National Security. 

Mr. Kris, at this time, are there any members of your family that 

you would like to introduce? 

Mr. KRIS. Yes, Senator, there is my wife just behind me here, 

Jody Kris. 

Chairman FEINSTEIN. Good. Welcome, Mrs. Kris. 

I had the opportunity to preside at a hearing of the Judiciary 

Committee on Mr. Kris’ nomination on February 25 of this year, 

and the Judiciary Committee reported out the nomination unanimously on March 5. Because of a provision in the PATRIOT Act 

Reauthorization Act of 2006 that created this Assistant Attorney 

position, the nomination is now before the Committee. Now, given 

that the Judiciary Committee conducted its reviews and posted information on its website and that six of this Committee’s members 

serve on Judiciary, I hope to be able to move this nomination 

quickly, and it would be my intention to try to mark it up at Thursday afternoon’s meeting. 

The Assistant Attorney General for National Security is the 

bridge between our nation’s intelligence community and the Department of Justice. The Assistant Attorney General represents the 

government before the FISA court and is also the government’s 

chief counterterrorism and counterespionage prosecutor. The work 

of that official is, therefore, of great interest to our Committee. 

Among the important acts this year for Mr. Kris, if confirmed, will 

2 

be to prepare the new certifications and supporting materials that 

the Executive Branch will submit to the FISA court under last 

year’s FISA Court Act. 

As such, he would be the official at the Department of Justice 

most directly involved in questions of setting minimization, which 

is a very important part of that bill, and targeting procedures, also 

an important part, reviewing the Attorney General’s guidelines 

under the Act, and making sure that intelligence collection is carried out faithfully under the law. 

The Assistant Attorney General is also highly involved in decisions concerning the information that the FBI is allowed to share 

with Congress, a matter I discussed recently with Director Muller. 

Another issue I raised with Mr. Kris at the Judiciary Committee 

is the authorities for detaining individuals currently held at Guantanamo Bay, and in particular what is allowed under the law of 

war and the Geneva Conventions. 

This Committee is very interested in prosecuting those involved 

in terrorism. But we are also concerned by the threat that detainees may pose if they are returned to nations that are unwilling or 

unable to keep them from resuming extremism. And although they 

may not be convictable of an instant attack, they can still be a future threat to our nation’s security. And I believe that we consider 

that we have the proper procedures in place to be able to examine 

that. 

So I might say, Mr. Kris, we will look forward to working closely 

with you as we encounter these problems. 

I’d like now to turn to the distinguished Vice Chairman for his 

comments. 

OPENING STATEMENT OF CHRISTOPHER S. BOND, VICE 

CHAIRMAN, A U.S. SENATOR FROM MISSOURI 

Vice Chairman BOND. Thank you, Madam Chair. 

Although I didn’t have the privilege of sitting in on the hearing 

of the Judiciary Committee, I’ve had a very good discussion with 

Mr. Kris and I welcome you here today on your nomination to be 

the next Assistant Attorney General for National Security. 

As I believe the Chair and I agree, it’s extremely important that 

we establish early on a close working relationship, because your position is one which is critical in our relations with the Department 

of Justice and your advice and counsel and sometimes our advice, 

wanted or unwanted, is important to be able to exchange. 

I extend a very special welcome to your wife, Jody, and I commend you, Mrs. Kris, for your dedicated support. Most spouses only 

have to sit through one confirmation hearing for a given position, 

but two hearings, while necessary in this case, may border on, if 

not cruel and unusual punishment, at least excessive testing of 

one’s sense of humor. 

You will be the third Assistant Attorney General, Mr. Kris. Ken 

Wainstein, Pat Rowan, and the dedicated men and women of the 

National Security Division really deserve our gratitude and praise 

for their tireless efforts to stand up this new division within the 

DOJ while continuing to provide crucial legal services to the intelligence community and in many instances to Congress. 

3 

For example, NSD has already played an essential role in making important revisions to national security legislation and policy 

during the passage of the Protect America Act and its successor, 

the FISA Amendments Act, in which I was somewhat involved. Attorneys from that National Security Division provided key technical 

assistance to me and advice to the Committee. And the attorneys 

also participated in revision of Executive Order 12333 and the Attorney General’s guidelines for domestic FBI operations. 

Just as important, NSD has essentially eliminated the pre-existing backlog of FISA applications so that the FISA process is now 

running smoothly. 

Now in your hearing with the Judiciary Committee, you laid out 

three procedural and three substantive areas on which you intend 

to focus on the short run, the procedural areas—strengthening internal relationships within components of the NSD, the external relationships within the IC, including the FBI. These are necessary 

and important. And the three substantive areas you identified also 

are of particular concern to the Committee—Guantanamo Bay, the 

FISA Amendments Act and the FBI Domestic Operations Guidelines. I suggest there may be a fourth area requiring your immediate attention—the FISA provisions that are due to sunset this 

year as part of the USA PATRIOT Act. 

Now in our meeting we discussed these issues and I was very 

much impressed with your knowledge of the subject matter and by 

the caliber of the individuals who are supporting your nomination. 

You have some good friends and have some people on which you 

really have some goods. I believe that you’re particularly well 

qualified for this position and therefore I welcome your nomination 

and look forward to supporting it. 

I agree with the Chair that, barring any reason that we don’t 

know about, it’s important for the Committee and the Senate to 

move quickly so you can get to work. And another advantage to 

moving quickly is that the Attorney General will be able to designate you as one of the officials who can certify FISA applications. 

Experience has shown that this added flexibility is essential. 

Mr. Kris, I congratulate you on your nomination, and look forward to your testimony and to working with you to ensure that the 

National Security Division continues to provide outstanding legal 

support to the Department of Justice, the intelligence community 

and Congress. 

Thank you, Madam Chair. 

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

Vice Chairman. I appreciate your comments. 

Before beginning the first round of questions, if you have an 

opening statement, would you like to give it at this time? 

STATEMENT OF DAVID S. KRIS, ASSISTANT ATTORNEY 

GENERAL FOR NATIONAL SECURITY-DESIGNATE 

Mr. KRIS. Yes, thank you. 

Madam Chairman, Vice Chairman Bond and Senator Rockefeller, 

it’s an honor to appear before you. 

In my opening statement to the Judiciary Committee a few 

weeks ago, I outlined these three sets of issues, procedural and 

substantive, and I agree with you Senator Bond, the FISA 

4 

sunsetting provisions is probably a fourth area. And I won’t elaborate on those here. 

I did also say before the Judiciary Committee that I wanted to 

respond appropriately and quickly to Congressional oversight and 

maintain strong cooperative relationships with the Judiciary Committee and other committees. And I do want to say the same thing, 

with some emphasis and elaboration, before this Committee. 

I haven’t studied all of the history and law of intelligence oversight, but I think I do appreciate its fundamental importance to 

our democracy, and especially the critically important role of this 

Committee and its counterpart in the House in helping to resolve 

the tensions that sometimes inevitably will arise between, on the 

one hand, the need to protect classified sources and methods and, 

on the other hand, the fact that we live in a democracy that rests 

fundamentally on the knowledge and consent of the governed. And 

I think these committees—Americans depend on this Committee 

and the House Intelligence Committee to provide the kind of oversight that the public itself cannot provide. 

And I’m aware of the fact that the Committee cannot fulfill that 

function unless we in the Executive Branch in turn fulfill our requirement to keep it fully and currently informed. As CIA Director 

Panetta said, this is not optional; this is the law and it is our solemn obligation to meet it. 

And so I want to join Director Panetta and Admiral Blair, in expressing my desire to build a close working relationship with the 

Committee. I think this will be good for democracy, and I think it 

will be good for the National Security Division. 

So thank you very much. 

[The prepared statement of David S. Kris follows:] 

PREPARED STATEMENT OF DAVID S. KRIS

Madame Chairman, Vice Chairman Bond, and distinguished Members of the 

Committee, it is an honor to appear before you. I am grateful to President Obama 

for nominating me, to Attorney General Holder for supporting me, and to the Committee for considering me. I also appreciate the Members who met with me prior 

to this afternoon. 

In my opening statement before the Judiciary Committee two weeks ago, I identified three procedural issues, and three substantive issues, on which I hope to focus 

if confirmed, subject to the important caveat that I remain an outsider, without detailed knowledge of certain classified and operational matters. At the risk of repetition for the Members who serve on both Committees, I thought I would mention 

those issues again, and then devote the balance of my time to discussing what I see 

as the special and vital oversight role of this Committee. 

The three procedural issues I identified are (1) continuing to strengthen internal 

connections among NSD’s various components; (2) focusing on NSD’s relationships 

with the NSC and the Intelligence Community; and (3) continuing the positive evolution of NSD’s working relationship with the FBI. My answers to some of your 

questions for the record address these issues in more detail. 

The three substantive issues I identified are (1) Guantanamo Bay; (2) the FISA 

Amendments Act; and (3) the new FBI Domestic Operations Guidelines. Again, my 

answers to questions for the record discuss these matters in more detail, and I am 

happy to discuss them here if there are additional questions. 

When I went before the Judiciary Committee, I said that I wanted to respond appropriately and quickly to Congressional oversight, and maintain strong, cooperative 

relationships with it and with other Committees. I want to say the same thing, with 

emphasis and elaboration, before this Committee. 

While I have not studied all of the history and law of intelligence oversight, I do 

understand its fundamental importance to our democracy. And I especially appreciate the critical role of this Committee (and its counterpart in the House of Representatives) in helping to resolve the tensions that sometimes arise from the need 

5 

to protect classified sources and methods in a system of government that rests fundamentally on the knowledge and consent of the governed. 

Americans count on the Committee to provide oversight that the public cannot 

provide. The Committee, in turn, cannot fulfill that function unless we fulfill our 

requirement to keep it ‘‘fully and currently’’ informed. As Director Panetta said, this 

is not optional; it is the law; it is our solemn obligation. So I want to join Director 

Panetta, and Admiral Blair, in expressing my desire to rebuild a close working relationship with the Committee. I think this will be good for democracy, and also good 

for NSD—there is a lot of expertise in this hearing room. We maynot always agree 

on everything, and I know that you will question, challenge, and hold us accountable when appropriate, but I am quite sure that we are at our strongest, and our 

best, when we work together, and if confirmed I look forward to doing that. 

Again, I want to thank the Committee for holding this hearing. I would be pleased 

to answer your questions. Thank you. 

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

Before beginning the first round of questions, I have some procedural questions to ask you. A yes-or-no answer will suffice. 

If confirmed, Mr. Kris, do you agree to appear before the Committee here or in other venues, if invited? 

Mr. KRIS. Yes. 

Chairman FEINSTEIN. Do you agree to send officials from the National Security Division to appear before the Committee and designated staff when invited? 

Mr. KRIS. Yes. 

Chairman FEINSTEIN. Do you agree to provide documents or any 

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

out its oversight and legislative responsibilities? 

Mr. KRIS. Yes. 

Chairman FEINSTEIN. Will you ensure that the National Security 

Division provides such material to the Committee when requested? 

Mr. KRIS. Yes. 

Chairman FEINSTEIN. And do you agree that you will inform and 

fully brief, to the fullest extent possible, all members of the Committee of intelligence activities, rather than only the Chairman and 

Vice Chairman? 

Mr. KRIS. Yes, in keeping with law, yes. 

Chairman FEINSTEIN. Thank you very much. 

Let me begin my questions. The FISA Amendments Act was 

signed into law in July 2008. It provides for annual authorizations 

by the Attorney General and the DNI for the collection of foreign 

intelligence targeted against persons reasonably believed to be located outside the United States. Starting this summer, the next Assistant Attorney General for National Security will have responsibility for presenting to the FISA court the certifications and supporting material for the annual renewal of collection authority. 

Having looked at the legislation, what questions do you intend 

to ask about the targeting and minimization procedures? Have you 

considered what the Attorney General guidelines, also required in 

the FISA legislation, should be? 

Mr. KRIS. Well, Senator, I appreciate very much that question, 

and as we’ve discussed, the FISA Amendments Act is at the top of 

my list of things to do if I am fortunate enough to be confirmed. 

I’m a little bit at a disadvantage in anticipating all of the things 

that I will want to do if I am confirmed in this area, because in 

my current posture I am not aware of the classified information 

about the implementation of the FISA Amendments Act, and I do 

6 

think that this is a statute that is both very complex, very broad 

and very important to understand the ground truth of the implementation. 

Chairman FEINSTEIN. My question was limited to the minimization and targeting. 

Mr. KRIS. Yes. With respect to the targeting procedures, I would 

really want to understand technologically what kinds of safeguards 

there are to ensure that there is a reasonable belief about the location of the target. There are provisions in the Act, as you know, 

that forbid the intentional acquisition of known domestic communications, and I would want to understand very much how those 

safeguards are being implemented. 

I have written publicly about the difficulty in identifying the location of communicating parties in the world of modern mobile 

communications and web-based communications, and I would be 

very interested to know how they are overcoming those kinds of 

difficulties to be able to form a reasonable belief about the location 

of a party. 

And, with respect to minimization, I think I would be particularly interested in, first, protection for U.S.-person identifiers, to 

the extent they are incidentally acquired, and how the minimization procedures differentiate between non-U.S.-person and U.S.- 

person identifiers and identities, because I think that’s also increasingly challenging in the world that we’re living in today. 

Chairman FEINSTEIN. Well, I would hope to discuss this with 

you, and the Vice Chairman may want to as well, as soon as you 

become familiar. 

Vice Chairman BOND. I think we’d best discuss this in a classified session. 

Chairman FEINSTEIN. Yeah. Well, that’s what I essentially said. 

By its first anniversary in July, the FISA Amendments Act also 

requires completion of a comprehensive IG review of the terrorist 

surveillance program. The report is to be unclassified but may include a classified annex. Many in Congress supported the FISA legislation because there would be this review by the IG of the terrorist surveillance program. That was a way to ensure that there 

would be a fact-finding effort, given that the immunity provision in 

the bill ensured that the courts would not be a venue for this effort. 

The Assistant AG for National Security could well have an important role in the declassification process for the IG review. What 

do you expect that role to be in the declassification process? 

And secondly, what standards—and this is in general, but I 

think it’s important because there’s a lot of discussion among us on 

this point—what standards would you apply to the declassification 

process, including what weight, you mentioned this, should be 

given to the interest in public information about a program, particularly in light of the action of Congress to bring to a conclusion 

litigation against electronic communications service providers? 

Mr. KRIS. Thank you, Senator. 

I feel very strongly that, in general, we are well served when information about our intelligence operations can be made public, 

consistent with the obvious need to protect classified information. 

And, as the author of a book in this area and a teacher of law 

school classes, I do feel personally sympathetic to the desire to 

7 

produce as much information publicly as can be produced. So, I 

have a very strong sort of support for that general principle. 

In terms of the Inspector General reports and my role in them, 

I would think—obviously, subject to the Attorney General’s direction—that the National Security Division and the Assistant Attorney General would play a role in reviewing and serving as a 

‘‘bridge,’’ I think you said, between the agencies, whose operational 

equities may be at stake, and the Inspector General, who wishes 

to publicize as much as possible, and do a little testing on assertions that information is classified, and try to help facilitate and 

broker a constructive arrangement to settle any differences that 

might occur. 

So, that’s, in the abstract, without having consulted with the people involved there, I think what I would see the role for NSD to 

be there. 

Chairman FEINSTEIN. Thank you very much. My time is up. 

The Vice Chairman. 

Vice Chairman BOND. Thank you very much, Madam Chair. And 

I know that Mr. Kris has extensive experience in this area, and I 

believe you understand the declassification area. 

Last week this Committee initiated a bipartisan study of the 

CIA’s detention and interrogation program—not designed for political theater, for a deconstruction of the legality of the program, 

which would fall outside of our Committee’s jurisdiction. Rather, 

the Committee’s focus should and will be on CIA’s action, with our 

ultimate purpose being to shape detention and interrogation policies moving forward. 

But, you will be in a different position than we are, if confirmed, 

so I’d like to know, do you think the DOJ should conduct criminal 

investigations of individuals involved in the program, who acted in 

accordance with procedures approved by the Office of Legal Counsel and authorized by the President of the United States? 

Mr. KRIS. Senator, a two-part answer to that question: The first 

is that, as your question indicates, no one is above the law—— 

Vice Chairman BOND. Right. 

Mr. KRIS [continuing]. And prosecutorial judgments of this kind 

are always fact-intensive. But what you said was, can you imagine 

prosecution of people who followed in good faith and reasonably relied on authoritative pronouncements from the Justice Department 

about what the law is? I think there a second principle begins to 

apply, that I think, in light of settled doctrines—advice of counsel, 

due process concerns, not to mention the Military Commissions Act 

immunity provision that Congress enacted—I think it would be 

very difficult to imagine a prosecution of someone who really was 

told by the Justice Department ‘‘what you’re doing is legal,’’ even 

if the Justice Department later changes its mind. 

Vice Chairman BOND. If senior Executive Branch officials authorized the detention and interrogation program, should they be prosecuted? 

Mr. KRIS. I think the same answer would probably apply to that 

question, Senator. 

Vice Chairman BOND. What about the lawyers who wrote the 

OLC opinions? 

8 

Mr. KRIS. I am not aware—same answer, but with an additional 

modifier, which is I think that the lawyers, it’s even, perhaps, more 

difficult to figure out how you would make that fit. 

Vice Chairman BOND. We lawyers always take care of our own 

and make it difficult to proceed against one another. 

On the PATRIOT Act, I know you were heavily involved in the 

passage of the PATRIOT Act. Three provisions of the Act related 

to FISA are due to sunset this year—the lone wolf, roving wiretap 

authority, and Section 215 business records court order. Do you believe that each of these provisions should be made permanent? And 

how much weight do you believe should be given to the frequency 

with which a particular provision has been used? 

Mr. KRIS. This is an area where, being an outsider, it’s difficult 

to know, because one of the things I’d want to know, if I am confirmed, would be: How have these been used? How often? Have 

they been misused? If so, how often? Are there possible uses that 

people can think of that actually haven’t happened but could happen? 

Frequency of use would be one factor, but lack of frequency 

would not necessarily mean that the provision ought not be renewed or made permanent. I just would want to see what the operational environment is, and the importance of the provision, as well 

as its frequency of use. 

Vice Chairman BOND. Well, that leads me to a follow-up question. If a particular authority has not been used because of unnecessary administrative burdens, would you review that with an eye 

to cutting out extra red tape and analysts so that the authority 

would be usable, if it were held up by reason of excessive regulation? 

Mr. KRIS. Yes. I would certainly want to look at that. 

Vice Chairman BOND. You were involved in the revision of 2003 

National Security guidelines that knocked down the walls between 

criminal and national security. I think you’ve had an opportunity 

to review the newly revised AG guidelines for domestic FBI operations—which, in my opinion, hit home the point that the FBI 

should be able to use all of the tools in its toolbox. 

What are your opinions of these guidelines? Can you see any reason why the FBI shouldn’t use the same tools to track down terrorists as it uses to catch white-collar criminals or drug dealers? 

Mr. KRIS. As I said in my opening statement and in my questions 

for the record, I think there are several elements of the new guidelines that I support. One is the unification, the transparency— 

they’re more public than they used to be. I think they reflect the 

FBI’s evolution into a security service, which I think is a good 

thing; and I think they reflect an increasing evolution of the operational partnership between DOJ and the FBI, all of which is a 

good thing. 

I have some questions about how they apply in practice, and 

that’s an area that I’d want to explore if I am fortunate enough to 

be confirmed, but I do think the elements that I mentioned are 

positive about these guidelines. 

Vice Chairman BOND. Thank you, Mr. Kris. 

Thank you, Madam Chair. 

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

9 

Senator Rockefeller. 

Senator ROCKEFELLER. Thank you, Madam Chair. 

Mr. Kris, if you’re an American citizen reading a newspaper, and 

you read that the leadership of Intelligence Committee has been 

fully briefed on a subject—I’m in FISA now, okay?—— 

Mr. KRIS. Okay. 

Senator ROCKEFELLER [continuing]. Fully briefed, what do you, 

as an American citizen, tend to feel? 

Mr. KRIS. I think I feel good, if that’s true. 

Senator ROCKEFELLER. Well, that is my second question. Do you 

know anything about the briefing process? 

Mr. KRIS. Yes, a little bit, yes. 

Senator ROCKEFELLER. Do you feel the word ‘‘fully briefed’’ is applicable? 

Mr. KRIS. I’m sorry, the standard is ‘‘fully and currently informed,’’ and I think that standard applies without—— 

Senator ROCKEFELLER. And I was going to ask that to you about 

keeping the Intelligence Committee, in general, up to date. 

Mr. KRIS. Yes, sir. 

Senator ROCKEFELLER. I’ll just tell you that the whole idea that 

we were fully briefed or fully advised is a farce. And it was from 

the beginning—the very first to the very end. Now, that, I just 

wanted to ask. 

When you use the words ‘‘fully and currently informed’’ as keeping the Intelligence Committee briefed, understanding that intelligence does not belong to the Intelligence Committee but it belongs 

to the Executive Branch and, therefore, the Executive Branch only 

gives us what they want to give us, a tactic which was used quite 

deftly in the last administration—and I hope won’t be in this— 

what is your understanding of ‘‘fully and currently?’’ 

Mr. KRIS. Well, in my questions for the record, Senator, I gave 

some discussion of this and I actually quoted from the legislative 

history of FISA, where there’s a discussion of the standard. 

I think it anticipates and it involves a very robust and cooperative relationship where the Committee gets access to a tremendous 

amount of information in a timely way. I mean, the details of it 

may depend in the particular circumstance. There’s legislative history, for example, that the Committee may not always want to get 

the names of human sources or individuals involved, certain tactical information about troop movements. But, short of that, I think 

the standard, as I understand it, calls for a very robust exchange 

of information between the Executive branch and the Committees. 

That’s why the Committees were established. 

Senator ROCKEFELLER. Do you know the term ‘‘gang of eight’’? 

Mr. KRIS. I do. 

Senator ROCKEFELLER. Which could be gang of four, gang of 

eight, gang of whatever. 

Do you have any idea how often we met since—— 

Mr. KRIS. Not really. 

Senator ROCKEFELLER [continuing]. Senator Bond and I were 

both Chairman and Vice Chairman at different times, and we participated in these. 

Mr. KRIS. I don’t, honestly. I’m sorry. 

10 

Senator ROCKEFELLER. Very infrequently—very infrequently. 

And usually to inform us of something which was not actually germane to the overall intelligence purpose, except to pump us up a 

little bit. 

So is it your understanding that gang of eight notifications are 

meant to be rare and temporary or that the gang of eight is a little 

bit obsolete in that it gives you a way of going over the Intelligence 

Committee and just saying, well, you briefed two in the Senate and 

two in the House and so that’s that? 

Mr. KRIS. No. The former, Senator, is my understanding. Yes. 

Senator ROCKEFELLER. That’s fine. Thank you. 

Chairman FEINSTEIN. Thank you very much, Senator. 

Senator Wyden. 

Senator WYDEN. Thank you, Madam Chair. 

And Mr. Kris, welcome. 

Let me ask you first about national security letters. The Department of Justice’s Inspector General uncovered in the past fairly significant levels of misuse of this authority. And my understanding 

is that some steps have been taken to address this concern. But I 

think what I’d like to know is, are you convinced at this point, 

based on what you know, that everything necessary has been done 

to prevent misuse of national security letter authority in the future? 

Mr. KRIS. That’s an excellent question and it’s a very important 

area. The short answer is I am not—from where I sit now—thoroughly convinced that everything that should be done or that could 

be done has been done. I just don’t know enough. 

I was also very troubled by the disclosures in the March 2007 IG 

report. I was somewhat heartened by the corrective measures identified in the March 2008 report, but I think that report contemplated that the work would be ongoing. This is something that 

I would want to look into if I was confirmed, but I’m not sitting 

here now totally confident that everything has been done. 

Senator WYDEN. Can you get back to the Committee, through the 

Chair and our Vice Chairman, within, say, 30 days, if confirmed, 

with your opinion as to whether additional steps are necessary to 

prevent misuse of national security letter authority? 

Mr. KRIS. I will certainly try to do that, yes. 

Senator WYDEN. Very good. 

The second issue I want to ask you about involves a process for 

reviewing, redacting and publishing key opinions from the FISA 

court. These are, of course, authoritative rulings with enormous impact. And I very much would like to see a process for regular review of these opinions, taking steps to put in place redactions and 

whatever is necessary to protect operations and methods, but to 

make the opinions public. 

I think the American people have a right to this, as long as steps 

are taken to protect our national security and our nation’s 

wellbeing. Would you be willing to work with this Committee to set 

in place a process of this nature? 

Mr. KRIS. Absolutely, yes. I will work with you on that. 

Senator WYDEN. All right. That’s very helpful. 

And I think the last question involves what essentially are these 

Linder letters—these letters that reflect the FBI position with reVerDate Nov 24 2008 14:17 Nov 23, 2009 Jkt 052740 PO 00000 Frm 00014 Fmt 6633 Sfmt 6601 C:\DOCS\52740.TXT SHAUN PsN: DPROCT
11 

spect to briefing the Committee on terrorism and counterintelligence investigations. 

Now, my sense is that the FBI feels it shouldn’t brief, the community shouldn’t brief the Congress, because it in some way would 

jeopardize an ongoing criminal investigation or prosecution. I know 

of no member of this Committee—neither a Democrat or a Republican—who would ever want to get in the way of one of those ongoing investigations and prosecutions. But I’ve got to think there is 

a way to structure briefings from the FBI and the DOJ for this 

Committee that can go forward without compromising these investigations and prosecutions. 

If you’re confirmed, would you commit to following up with the 

Committee and the FBI to address this issue? 

Mr. KRIS. Yes, I will be happy to do that. 

Senator WYDEN. All right. I look forward to working with you. I 

believe you’re going to be confirmed. You’re certainly going to have 

my support. And I appreciated our discussion, and my sense is that 

you’re going to work in a very bipartisan way, which is something 

I feel very strongly about and I’ll look forward to pursuing these 

issues with you. 

Thank you, Madam Chair. 

Chairman FEINSTEIN. Thank you very much. 

Senator ROCKEFELLER. And my support as well. 

Chairman FEINSTEIN. Thank you very much, Senator Wyden. 

Senator Feingold, you’re next, and then Senator Chambliss. 

Senator FEINGOLD. I thank the Chair. 

Mr. Kris, let me congratulate you again. 

On September 25, 2001, John Yoo of the OLC sent you a memo 

purporting to analyze the constitutionality of proposed PATRIOT 

Act provisions. However, Yoo’s memo, which the Department of 

Justice recently made public, also answered a question you hadn’t 

actually asked. It argued that ‘‘as national security concerns in the 

wake of the September 11th attacks have dramatically increased, 

the constitutional powers of the Executive branch have expanded, 

while judicial competence has correspondingly receded.’’ 

As one of the Justice Department lawyers looking at that time 

right after 9/11 to work through the FISA court, what do you think 

of the assertion that judicial competence had receded? 

Mr. KRIS. I think the Supreme Court has made very clear that 

September 11th did not trigger a radical rebalancing of our constitutional system of shared and separated powers. And I’m thinking of the decisions in Hamdi, Hamdan and Gumadeen. I think all 

reflect the view that judicial competence has not receded. 

Senator FEINGOLD. Thank you. 

Mr. Kris, in response to written questions posed to you before 

this hearing, you indicated that there was nothing in the FISA 

statute to indicate that the President could disregard it. Is that accurate? 

Mr. KRIS. Yes, it is. There is nothing in FISA to suggest the 

President may disregard the statute. On the contrary. 

Senator FEINGOLD. Thank you. In other words, any violation of 

FISA would be clearly in the third category of the Jackson test, 

which you just alluded to and would constitute what you have 

called a ‘‘grave and extraordinary’’ act, one that has never been 

12 

upheld by the Supreme Court. Is that a correct summary of your 

views? 

Mr. KRIS. Yes. I am not aware of any case in which the Supreme 

Court has upheld the exercise of a commander-in-chief power in 

category three. 

Senator FEINGOLD. Mr. Kris, you testified in the Judiciary Committee you could not evaluate the constitutionality of the 

warrantless wiretapping program without the facts. And I appreciate that as a careful lawyer you would not want to give advice 

to your client without access to all the relevant information. But 

for purposes of this hearing, let us work with the facts as stipulated by the Bush Administration. 

The government wiretapped communications into and out of the 

United States without the warrant required by FISA. It did so 

under a lesser standard than that which is required by the court. 

‘‘The trigger is quicker and a bit softer than it is for a FISA warrant’’ was how General Hayden put it. And they did all this for 

over five years. 

Can you even imagine some fact known only to those read into 

the program that might render these acknowledged activities legitimate assertions of Article 2 authority? 

Mr. KRIS. Senator, you’re right. I do try to be a careful lawyer, 

in part because of the grave and extraordinary nature of the question that is being posed. But I will say, based on your description 

sitting here right now, I cannot think of any facts that would make 

that TSP constitutional in 2005 when it was revealed. 

And I think the FISA Amendments Act shows that Congress, 

when informed of a problem, is capable of responding, which moves 

the President from category 3, as you know, into category 1, where 

he’s strongest and where I think, at least, the government as a 

whole is at its best. 

Senator FEINGOLD. Thank you for your clear and encouraging answers and I wish you well. 

Chairman FEINSTEIN. Thank you very much, Senator Feingold. 

Senator Chambliss. 

Senator CHAMBLISS. Thank you, Madam Chairman. 

Mr. Kris, I don’t want to duplicate what has been before, but you 

and I had a conversation about the PATRIOT Act and the provisions that are expiring. And I wish you’d just go back through that 

for the record and talk about these expiring provisions, what your 

position is on them, and your experience in helping actually draft 

those provisions. 

Mr. KRIS. Yes, sir. Thank you, Senator. 

I did speak just briefly to this before. I think it’s important to 

understand—and one of the things I would want to do if I’m confirmed is to understand the ground truth—how these provisions 

have been used or how they could be used and whether they’ve 

been misused or could have been misused. I’d want to understand 

the operational reality before making a judgment one way or the 

other about whether they ought to be changed or continued. And 

those are the kinds of things I would want to look into if I were 

fortunate enough to be confirmed. 

Senator CHAMBLISS. One thing we talked about was the roving 

wiretap. And I remember your comment was just as you stated 

13 

there. You wanted to see how it had functioned from an operational 

standpoint. But it may be one of those things that we might not 

need with the emergency procedures that are set forth in the revised Act. 

I would only comment to you that—and I know you will look at 

it closely—but those emergency procedures would not give the intelligence community the same ability to follow that individual 

phone-to-phone without going back to the FISA Court to get a new 

emergency warrant. So the roving wiretap still is one of the more 

valuable types of tools that I think—I hope at least—that you will 

find is something that is critically important to our folks. 

Mr. KRIS. Yes sir. 

Senator CHAMBLISS. With respect to Gitmo, again I don’t want to 

duplicate what’s been said but I know you understand the seriousness of the remaining prisoners that are there. You were very direct in our conversation that you want to make sure that the right 

thing is done and that the President has identified three different 

categories of prisoners that these folks at Gitmo would fall into. 

I would simply say that I am very much concerned about the potential for any of these remaining 240, or whatever the number 

may wind up being at the end of the day when there is final closure to Gitmo, coming to the United States, being on U.S. soil, having the benefit of not just the same criminal assets that any common criminal in the United States might have, but maybe even 

greater assets than a common criminal would have. And the potential for those folks being released on U.S. soil into our society 

scares me to no end. 

And I would simply say that—again, you and I talked about this 

but just for the record—any comments you have on the release of 

prisoners from Gitmo, where you think they may go, what may 

happen to them if they do come to U.S. soil. 

Mr. KRIS. Yes, Senator. This is obviously a very important question and, as you mentioned, the Executive Order that the President 

issued calls for an ongoing thoughtful, careful review. And with respect to releasing any detainees at large into the United States, I 

think I am substantially bolstered and I think you should be and 

the Committee should be as well by the D.C. Circuit’s decision in 

the Kayemba case—which I think really stands for the proposition 

and holds that unless there’s a statute that compels the release, 

the courts don’t have authority to order it. 

So I think to have someone released at large in the United 

States, if we believe they are genuinely dangerous, I think is not 

a very plausible outcome at all. 

Senator CHAMBLISS. Thank you, Madam Chairman. 

Chairman FEINSTEIN. You’re welcome, Senator. 

I had one other question if I might, Mr. Kris. On March 2, 2009, 

as it was referred to earlier, the DOJ released a number of OLC 

opinions from 2001 to 2002, and that was during the time you were 

Associate AG. 

One of those opinions was addressed to you and that was dated 

September 25th, 2001, and entitled ‘‘Constitutionality of Amending 

Foreign Intelligence Surveillance Act to Change the Purpose Standard for Searches.’’ And this became the basis of a 15-page letter to 

14 

the Senate Intelligence and Judiciary Committees on October 1 of 

2001. 

On January 15, 2009, in a memorandum to the files also released 

on March 2 of this year, Steven Bradbury, who was then the Principal Deputy Assistant Attorney General for OLC, wrote that a portion of your September 25th opinion did not reflect the current 

views of OLC. The part that Mr. Bradbury addressed had asserted 

the view that judicial precedence—approving the use of deadly 

force in self-defense or to protect others—justified the conclusion 

that warrantless searches conducted to defend the nation from attack would be consistent with the Fourth Amendment. 

Did you review the entire September 25th opinion when you received it? 

Mr. KRIS. I’m sure that I did. Yes. 

Chairman FEINSTEIN. Do you recall what your assessment was of 

the deadly force argument? 

Mr. KRIS. Not really. I know I had some reservations about the 

opinion, but I was very much focused on working with the Congress to get the statutory change that we were seeking there with 

respect to the Purpose Amendment and really wasn’t focused on at 

that time—especially in the immediate aftermath of September 

11th—on sort of these other kinds of questions which, in hindsight, 

have taken on greater significance. 

Chairman FEINSTEIN. Did you discuss with anyone at DOJ any 

reaction that you had at the time? 

Mr. KRIS. I want to be careful, both because it’s a while back and 

because I don’t want to get into areas that might be inappropriate 

for a public hearing. 

Chairman FEINSTEIN. I understand that. But you don’t recall? 

You don’t remember? 

Mr. KRIS. Yes. I think I would like to take it up, if possible, in 

a different setting. 

Chairman FEINSTEIN. Okay. What now is your assessment? 

Mr. KRIS. I think the analogy to the law of self-defense—I agree 

at least with Mr. Bradbury’s assessment of Mr. Yoo’s analysis 

there. 

Chairman FEINSTEIN. In what respect? 

Mr. KRIS. Mr. Bradbury’s recent memo rejects that analogy, and 

I certainly agree with that. 

Chairman FEINSTEIN. And you do as well? 

Mr. KRIS. Yes. 

Chairman FEINSTEIN. Did you become aware of or read at that 

time any other opinions of OLC on matters relating to surveillance 

at any time after September 11th until you left the department in 

2003? 

Mr. KRIS. I can think of one other opinion that I believe has been 

made public that Mr. Yoo wrote for me which had to do with the 

authority of the Deputy Attorney General to issue approvals under 

Section 2.5 of 12333 with respect to U.S. persons abroad. I mean, 

there may have been other opinions that I’ve read. I have been authorized by the Department to say publicly—and I have said publicly—that I was not read into the terrorist surveillance program, 

the TSP, so I did not have access to and still haven’t seen those 

opinions, if any. 

15 

Chairman FEINSTEIN. All right. Well, thank you very much and, 

again, it is my intent to mark up this appointment on Thursday. 

And if I may, Mr. Vice Chairman, I’m going to turn the gavel over 

to you. 

Vice Chairman BOND. It’s exciting. 

Chairman FEINSTEIN. It is exciting isn’t it? You’re welcome. 

Vice Chairman BOND [presiding]. Thank you very much, Madam 

Chairman. I think we’re a very few minutes away from a vote, if 

they maintain the schedule. 

I would say, Mr. Kris, and for the record I had been advised informally by former members of the Big Eight that while the full 

Committee was not advised, the Gang of Eight was fully briefed at 

the inception and during the conduct at the Terrorist Surveillance 

Program prior to the time that those of us on the full Committee 

were advised. 

I also have a suspicion that you probably had a pretty good idea 

what was going on, as some of us who visited with our other particular locations where it was going on. But putting that aside, on 

the national security letters, I’ve been disappointed by some characterization of errors by the FBI contained in Inspector General reports as ‘‘abuses’’ of NSLs. I think we can all agree that exigent 

letters, which are not NSLs, weren’t used properly but we need to 

be careful about what we characterize as abuses of the NSLs. 

A good solution to eliminating the administrative errors raised in 

the IG reports is one you presented to a House subcommittee last 

year—create a single statute providing for national security subpoenas to replace all of the current NSL provisions. 

If you are confirmed in this position, would you take a serious 

look at the merits of having a single NSL statute and report back 

to the Committee? 

Mr. KRIS. Yes, I would be happy to do that. 

Vice Chairman BOND. I figured that was an easy one. 

Turning to the media shield, do you believe that those who 

leaked classified information, as well as journalists who release it, 

should be prosecuted to the fullest extent of the law? 

Mr. KRIS. Yes. 

Vice Chairman BOND. There was a recent instance where there 

was a published acknowledgment by someone who had access to 

classified information and that they actually did release classified 

information. If there is a public affirmation of a leak, in general, 

is this the kind of thing that should initiate action with appropriate resolution? 

Mr. KRIS. Yes, if I understand you correctly, yes. 

Vice Chairman BOND. During the last Congress we heard pretty 

strong objections from veteran DOJ prosecutors about the negative 

impact the proposed Free Flow of Information Act, known as Media 

Shield, could have on the ability to prosecute those who leak classified information. Have you spoken with veteran DOJ prosecutors 

and do you have a position on whether this legislation should be 

supported? 

Mr. KRIS. Senator, I haven’t spoken to any veteran prosecutors 

about leak investigations recently, although when I was there before I had some conversations, I’m thinking, with Mr. Fitzgerald 

16 

perhaps. I don’t have an opinion on the particular piece of legislation to which you refer. 

I do know the Attorney General, in his Judiciary testimony, expressed sort of a general support, subject to some important caveats, one of which is the need to consult with professional prosecutors in this area, and the other is the need not to cripple our ability 

to do these leak investigations. 

Vice Chairman BOND. Well, that was going to be my next question. 

Mr. KRIS. Oh, sorry. 

Vice Chairman BOND. I think those are two caveats that are very 

important. 

Mr. KRIS. Yes. 

Vice Chairman BOND. A couple of weeks ago, S.417, the State Secrets Protection Act, was introduced. This troubles me because it 

seems to water down the well-established state secrets privilege 

and imposes some pretty steep barriers for the government in trying to protect our national security secrets. I believe in the past the 

DOJ has said that this would harm our national security. 

Do you think we need to codify the state secrets privilege? Or 

should we preserve the long-standing common law approach? 

Mr. KRIS. Senator, that’s something that I would like to study if 

I am confirmed. I am aware of I believe it was a letter from the 

Attorney General and the DNI in the last Administration outlining 

some concerns, and I’d want to consider those and the views of the 

professionals at the Department before I would render an opinion 

on that question. 

Vice Chairman BOND. Thank you, Mr. Kris. I’ll now turn to Senator Chambliss for his questions. 

Senator CHAMBLISS. I don’t have anything further. 

Vice Chairman BOND. Well, I do happen to have a few more. And 

for all of my colleagues who were not here we will ask that any— 

and I ask the staff present—if they have any further questions of 

Mr. Kris, please get them in by 5:00 today, so you have a full hourand-a-half, if there’s anything you really need to know. But as of 

that time our harassment and questioning will end. 

Mr. Kris, House version of the stimulus bill contained a version 

of whistleblower protection that has been opposed by both the Clinton and Bush Administrations, in part because of how the legislation handles issues like security clearances and classified information. Fortunately, the provision was stripped out. Do you see any 

need for modifying the current laws providing whistleblower protection? 

Mr. KRIS. That is also an area that I would want to study and 

understand better before taking a position. 

Vice Chairman BOND. And on to my favorite area; do you believe 

the President has the inherent authority under Article II of the 

Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article II? 

Mr. KRIS. I don’t think any statute can trump the Constitution, 

Senator. 

Vice Chairman BOND. Thank you. 

What is your view of the FISA Amendment’s Act, including carrier liability protections? 

17 

Mr. KRIS. Well, as a general matter, it appears to me that the 

FISA Amendments Act was the product of kind of a bipartisan 

compromise. I think it is a new and very important statute with 

a broad grant of authority and I think it underlies an extremely 

important collection program. I don’t know, from where I sit now, 

exactly how it functions and that is something that I have said I 

would want to focus on very, very early on if I were to be confirmed. 

I think it’s an important statute and I really want to understand 

how it operates and see whether there are improvements that need 

to be made in that area or whether everything is working well. 

With respect to the immunity, I think that’s probably an issue 

that will be handled, in the first instance anyway, by the Civil Division rather than the National Security Division. But, as I understand it, Attorney General Mukasey has certified, Attorney General 

Holder has said he would not withdraw the certifications absent 

something truly extraordinary. And as I understand DOJ’s public 

statements, they are not withdrawing and are defending the constitutionality of the immunity provision. 

Vice Chairman BOND. And when you have an opportunity to review the operation of it, I would ask for your comments, if you 

would share with us whether it was a good idea to put Section 2.5 

from Executive Order 12333 into FISA. 

And I’d also like your advice on whether it should be made permanent. I will not be around to worry about the permanency but 

perhaps it would save the Department of Justice and quite a few 

members of the intelligence community some problems if it were 

made permanent, knowing that it can always be amended. 

Mr. KRIS. Yes, sir. 

Vice Chairman BOND. When you were at the DOJ during the 

Clinton and Bush Administrations did you support the use of extraordinary renditions to other countries, including Egypt? 

Mr. KRIS. I don’t really recall ever working on rendition, so I 

don’t think I had much involvement in it that I can remember anyway, sitting here today. 

Vice Chairman BOND. Do you have an opinion on whether extraordinary renditions should remain in the intelligence community 

toolbox? 

Mr. KRIS. I think in talking about rendition, it’s helpful to break 

it down a little bit. I mean, renditions, say, to this country for judicial process is one thing. 

Vice Chairman BOND. And rendition back to the country, the 

home country of the person who is detained. And another form of 

a rendition, extraordinary rendition refers to returning the person 

to a third country. 

Mr. KRIS. I think there you have to be concerned about adhering 

to our international obligations and treaties, and you want to get 

assurances that there won’t be improper action taken against the 

person in the receiving country. And I think this is part of the 

study that President Obama has ordered in the third of his Executive Orders on January 22. 

I don’t want to prejudge the results of that study, but you can 

imagine the kinds of factors that would be considered—to include 

18 

what kind of assurances, from whom, and to whom and so forth. 

And I imagine that will be part of that review. 

Vice Chairman BOND. Since the September 11 terrorist attacks, 

a number of applications for electronic surveillance or physical 

search approved by the FISA court have increased almost two-anda-half times; the actual number I don’t think we need to get into. 

We’ve heard some concerns the increase means that less attention 

is being given to U.S. persons privacy, that the FISA court is simply a rubber stamp. Based on your experience at DOJ and with the 

FISA court, do you have any reason to be concerned that FISA is 

not being utilized appropriately or administered appropriately by 

the FISA court? 

Mr. KRIS. No. On the contrary, my experience when I was there 

was that the FISA court was not a rubber stamp. I can safely assert that. 

Vice Chairman BOND. Finally, it’s been DOJ practice to present 

FISA business record applications to the FISA court. Unlike other 

FISA applications, Section 215 applications are submitted only by 

FBI officials, not by the DOJ. Now, I understand there have been 

delays in getting these applications through the DOJ administrative process, and I believe it would speed things up if the FBI national security law branch attorneys could appear before the FISA 

court and present the applications themselves, given that the business record applications are submitted only by the FBI without any 

need for Attorney General certification. 

Do you see any reason why FBI lawyers shouldn’t be allowed to 

present applications directly to the FISA court? 

Mr. KRIS. That is something I would certainly want to go back 

and discuss with the FBI lawyers and with the DOJ lawyers before 

taking a position on it. I do know about the delays that you’ve 

talked about. I’ve read about them in the unclassified IG reports. 

And I share your concern about that. It’s something I would want 

to address if and when I’m confirmed. 

Vice Chairman BOND. Well, Mr. Kris, if you will answer any 

questions that come in promptly, we hope to vote on your nomination Thursday afternoon and get the confirmation process completed as quickly as possible so we can get to work on our areas 

of mutual concern. 

I thank you very much for being willing to undertake this position. I wish you well and look forward to working with you. 

The hearing is adjourned. 

Mr. KRIS. Thank you very much, Senator. 

[Whereupon, at 3:27 p.m., the Committee adjourned.] 

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