Hearings
Hearing Type:
Open
Date & Time:
Tuesday, May 18, 2021 - 2:30pm
Location:
Hart 216
Witnesses
Full Transcript
[Senate Hearing 117-82]
[From the U.S. Government Publishing Office]
S. Hrg. 117-82
OPEN HEARING: NOMINATIONS OF
CHRISTOPHER C. FONZONE
TO BE GENERAL COUNSEL FOR THE OFFICE
OF THE DIRECTOR OF NATIONAL INTELLIGENCE;
AND
BRETT M. HOLMGREN
TO BE ASSISTANT SECRETARY OF STATE
FOR INTELLIGENCE AND RESEARCH,
U.S. DEPARTMENT OF STATE
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, MAY 18, 2021
__________
Printed for the use of the Select Committee on Intelligence
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
45-488 WASHINGTON : 2021
SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
MARK R. WARNER, Virginia, Chairman
MARCO RUBIO, Florida, Vice Chairman
DIANNE FEINSTEIN, California RICHARD BURR, North Carolina
RON WYDEN, Oregon JAMES E. RISCH, Idaho
MARTIN HEINRICH, New Mexico SUSAN COLLINS, Maine
ANGUS KING, Maine ROY BLUNT, Missouri
MICHAEL F. BENNET, Colorado TOM COTTON, Arkansas
BOB CASEY, Pennsylvania JOHN CORNYN, Texas
KIRSTEN E. GILLIBRAND, New York BEN SASSE, Nebraska
CHUCK SCHUMER, New York, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
JACK REED, Rhode Island, Ex Officio
JAMES INHOFE, Oklahoma, Ex Officio
----------
Michael Casey, Staff Director
Brian Walsh, Minority Staff Director
Kelsey Stroud Bailey, Chief Clerk
C O N T E N T S
----------
MAY 18, 2021
OPENING STATEMENTS
Page
Warner, Hon. Mark R., a U.S. Senator from Virginia............... 1
Rubio, Hon. Marco, a U.S. Senator from Florida................... 3
Klobuchar, Hon. Amy, a U.S. Senator from Minnesota............... 4
WITNESSES
Fonzone, Christopher C., to be General Counsel for the Office of
the Director of National Intelligence.......................... 6
Prepared statement........................................... 8
Holmgren, Brett M., to be Assistant Secretary of State for
Intelligence and Research, U.S. Department of State............ 10
Prepared statement........................................... 12
SUPPLEMENTAL MATERIAL
Nomination material for Christopher C. Fonzone
Questionnaire for Completion by Presidential Nominees........ 34
Additional Pre-Hearing Questions............................. 62
Post-Hearing Questions....................................... 97
Nomination material for Brett M. Holmgren
Questionnaire for Completion by Presidential Nominees........ 113
Additional Pre-Hearing Questions............................. 128
Response from Brett M. Holmgren to Question for the Record
submitted by Senator Dianne Feinstein...................... 154
OPEN HEARING: NOMINATIONS OF
CHRISTOPHER C. FONZONE
TO BE GENERAL COUNSEL FOR THE
OFFICE OF THE DIRECTOR OF
NATIONAL INTELLIGENCE;
AND
BRETT M. HOLMGREN
TO BE ASSISTANT SECRETARY OF STATE
FOR INTELLIGENCE AND RESEARCH,
U.S. DEPARTMENT OF STATE
----------
TUESDAY, MAY 18, 2021
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:34 p.m., in
Room SH-216, Hart Senate Office Building, Hon. Mark R. Warner
(Chairman of the Committee) presiding.
Present: Senators Warner, Rubio, Feinstein, Wyden,
Heinrich, King, Bennet, Casey, Gillibrand (via WebEx), Risch,
Cotton, Cornyn, and Sasse.
OPENING STATEMENT OF HON. MARK R. WARNER, A U.S. SENATOR FROM
VIRGINIA
Chairman Warner. I'd like to call the Committee to order.
Good afternoon, everyone. Welcome to our nominees
Christopher Fonzone and Brett Holmgren and welcome to your
families here or watching from home.
Congratulations on your respective nominations to serve as
the General Counsel for the Office of the DNI and as Assistant
Secretary of State for Intelligence and Research. These are
both critically important positions in the Nation's
Intelligence Community at a time of significant challenges and
also opportunities for America.
In a moment, I know we're going to be joined by our
colleague, Senator Klobuchar, who will be introducing Mr.
Holmgren.
Gentlemen, you both have distinguished records as public
servants in the fields of national security. Mr. Fonzone, who
is currently in private practice, previously served as Deputy
Assistant and Deputy Counsel to President Obama and legal
adviser to the National Security Council. Before this, he was
senior counsel to the General Counsel--that's a lot of
counsels--of the Defense Department and also served in the
Department of Justice.
Mr. Fonzone, as General Counsel for the ODNI, you will
advise the Director on the letter and spirit of the law,
including the legal obligation to keep this Committee fully and
currently informed on all key intelligence matters, while
ensuring that the civil liberties and privacy interests of all
Americans are protected.
As we've seen in recent years, this position carries with
it the responsibility to make some tough calls. To do so you
will need the judgment and ethical compass to make the right
decisions, even in the face of political or policy pressure.
In recent years, we've seen patriotic individuals who have
come forward as whistleblowers sidelined, fired, or even
retaliated against; and I would like to hear your thoughts on
how you will work to ensure that such IC whistleblowers are
protected going forward, regardless of who is in the White
House.
Specifically, I'd like to hear your thoughts on whether
there are any circumstances where it would be appropriate for a
General Counsel to intercede to prevent a whistleblower
complaint from going to Congress.
More broadly, after four years during which the expertise
and judgment of American civil servants and intelligence
professionals were at times discounted, belittled, or outright
ignored, I'd like to hear your thoughts on what you will do to
help restore the morale and install the utmost level of
integrity in the IC workforce.
Turning to Mr. Holmgren. Brett Holmgren also has an
impressive resume, having been Special Assistant to the
President and senior director for Intelligence Programs at NSC.
Before this, he was senior policy adviser to the assistant to
the President for Homeland Security and Counterterrorism and
special assistant to the deputy secretary of Defense.
If confirmed, Mr. Holmgren, you will be inheriting a long
institutional history at the State Department's Bureau of
Intelligence and Research. INR's well-deserved reputation for
not bending to political pressure was cemented by its famous
dissent to the IC's assessment of whether or not Saddam Hussein
possessed WMDs.
INR assessed he did not, stuck to their guns, wouldn't
budge, despite the immense pressure and they were ultimately
proven correct. INR's stance has become a model for all
intelligence analysts.
Whether it's China, Russia, North Korea, or the global
pandemic, our alliances will be vital to confronting the many
challenges we face around the globe. Our Foreign Service
officers, ambassadors, and the Secretary of State all rely on
the INR to provide them with the best intelligence assessments
to help them understand the world and advance American
diplomacy and foreign policy.
Should you be confirmed, fulfilling this Committee's
oversight obligation to require transparency and responsiveness
from both of you, we may ask you and your staff difficult
questions from time to time and we expect honest, complete, and
timely answers. But we also encourage you to come to the
Committee when our partnership is needed. You can always count
on us to hear you out, treat you fairly, usually without
partisanships we sometimes see elsewhere.
One concrete example of this partnership, Mr. Fonzone, will
be in examining and eventually reauthorizing critical FISA
authorities that are set to expire in 2023. This is an area
where early engagement with Congress and this Committee will be
extremely important.
Now, after the Vice Chairman and I give our opening
statements, Senator Klobuchar, who I think will shortly be
here, will say a few words and our witnesses will then give
their statements. After this, Member questions will be for five
minutes in order of seniority at the gavel.
Thank you again for agreeing to step forward to serve our
country. I look forward to your testimony and I now recognize
the distinguished Vice Chairman.
OPENING STATEMENT OF HON. MARCO RUBIO, A U.S. SENATOR FROM
FLORIDA
Vice Chairman Rubio. Thank you. And I join the Chairman in
welcoming both of you today to the hearing. Mr. Fonzone, Mr.
Holmgren: Congratulations on your nomination and thank you for
your willingness to serve.
Mr. Fonzone, the General Counsel of the Office of Director
of National Intelligence has to make sure that the Intelligence
Community, together with the Department of Justice, have the
authorities and the capabilities anytime to take collection and
surveillance that is critical to our national security. So we
look forward to hearing in your testimony how you will provide
the sound legal counsel to the intelligence agencies and
community on those important issues.
Importantly, I note that in your prior written responses
and communications with our Committee, you disclosed past work
that you performed on your law firm's behalf for the Ministry
of Commerce of the People's Republic of China and for Huawei
Technologies. I appreciate your candidness in reporting this
and the details you provided us. I expect that I, or maybe some
of our Members, as I told you personally, will follow-up with
some questions in that regard.
Mr. Holmgren, our Committee trusts that the State
Department intelligence element has a leader who engages with
the Intelligence Community's ongoing and substantive work.
Collaboration is important to assess and focus on the threats
facing our Nation. And we expect the Assistant Secretary of
State for Intelligence and Research to take on that mandate
from day one and to keep this Committee fully informed.
I hope with the significant changes announced at U.S.
Embassy Moscow, the Department of State will work in earnest to
reduce counterintelligence risks at the Embassy and to work to
achieve reciprocity in visas. And with no excuses, moving
forward, like we have seen in the past.
Our hearing today comes at a time when the threats from
China, from Russia, from Iran, from North Korea, and global
terrorism are complex and at times divisive. And our hope is
that your testimony will describe how you will ensure that, if
confirmed, you will provide the leadership, integrity, and
impeccable judgment to lead your respective Intelligence
Community components.
We also want to hear from you as to how you will be
responsive to our Committee's inquiries and requests and how
you will support our oversight obligation. So we have a lot of
issues to cover today. I want each of our Members to have the
opportunity to ask their questions. And I look forward to
today's conversation.
Again, thank you, Mr. Chairman.
Chairman Warner. I think we will go ahead and administer
the oath at this moment and then when Senator Klobuchar comes
she will deliver an introduction.
Will the witnesses please stand and raise their right hand?
Do you solemnly swear to give this Committee the truth, the
full truth, and nothing but the truth, so help you God?
Mr. Holmgren. I do.
Mr. Fonzone. I do.
Chairman Warner. Please be seated.
The Committee poses five questions to each nominee who
appears before us. They just require a simple yes or no answer
for the record. And we can do this, I believe, jointly, unless
there was disagreement on the answers.
First question, do you agree to appear before the Committee
here or in other venues when invited?
Mr. Fonzone. Yes.
Mr. Holmgren. Yes.
Chairman Warner. If confirmed, do you agree to send
officials from your office to appear before the Committee and
designated staff when invited?
Mr. Fonzone. Yes.
Mr. Holmgren. Yes.
Chairman Warner. Do you agree to provide documents or any
other materials requested by the Committee in order for it to
carry out its oversight and legislative responsibilities?
Mr. Fonzone. Yes.
Mr. Holmgren. Yes.
Chairman Warner. Will you ensure that your office and your
staff provides such material to the Committee when requested?
Mr. Fonzone. Yes.
Mr. Holmgren. Yes.
Chairman Warner. Do you agree to inform and fully brief to
the fullest extent possible all Members of this Committee on
intelligence activities and covert actions rather than only the
Chairman and the Vice Chairman?
Mr. Fonzone. Yes.
Mr. Holmgren. Yes.
Chairman Warner. So far you guys are doing pretty well.
I was going to turn to your opening statements but luckily,
with impeccable timing, our colleague, Senator Klobuchar from
Minnesota, has arrived to introduce one of the nominees,
Senator Klobuchar, welcome.
STATEMENT OF HON. AMY KLOBUCHAR, A U.S. SENATOR FROM MINNESOTA
Senator Klobuchar. Well, thank you very much, Mr. Chairman,
and thank you to Vice Chairman Rubio as well and distinguished
Members of this Committee.
I am glad to be here to introduce a friend and a fellow
Minnesotan, Brett Holmgren, as President Biden's nominee to be
Assistant Secretary of State for Intelligence and Research.
Because of the pandemic, Brett's family is unable to join us in
person but his parents, Mike, and Mary; and his siblings, Ryan,
Krista, and Stacie are all back in Minnesota and I know are
waving at him right now. While they can't be here, I know that
they are probably supporting Brett back from our home state.
Brett grew up in Blaine, where he was raised by parents who
showed him the value of public service from a young age. For
nearly 40 years, his mom taught at Coon Rapids High School, and
his dad worked as a teacher and administrator in the Mounds
Public Schools. My mom was a public teacher, too, so I know
from experience that teachers raise their kids with a drive to
always do better, a drive that has stuck with Brett through his
years working in national security.
He embodies our Minnesota values of hard work and service
that we need in our leaders. Those values came to the forefront
on 9/11, which Brad has said was a life changing moment
for him. As our Nation grappled with the grief, and the shock,
and the disbelief, like so many in his generation, Brett felt
the call to service.
After graduating from the University of Wisconsin Madison,
he joined the Defense Intelligence Agency as a counterterrorism
analyst and later went on to become a senior analyst at the
CIA. His work helped to disrupt plots against American
interests around the world and to degrade al-Qaeda.
He served in war zones and provided support to the military
and intelligence operations. He understands how intelligence
informs and supports our military, policymakers, and diplomats.
After eight years in the Intelligence Community, he went on
to serve in policy roles at the Pentagon and the White House,
where he held the most senior intelligence position on the
National Security Council staff as special assistant to the
President and senior director for Intelligence Programs. In
those roles he managed and provided leadership on some of the
most pressing national security issues, from cyber technology
to covert action and counterintelligence.
He also learned from incredible leaders, like Deputy
Attorney General Lisa Monaco, who embodies the integrity
Americans deserve. Brett has said that she taught him how to
lead with humility and showed him the importance of staying
calm under pressure, both qualities will serve him well as
Assistant Secretary of State for Intelligence and Research.
Brett's accomplishments have earned him several
recognitions including the Secretary of Defense Meritorious
Civilian Service Award, the Director of National Intelligence
Superior Service Award, and the CIA Hostile Actions Service
Medal.
In every conversation I've had with him, he has
demonstrated a deep understanding of the role of the Intel
Community and the importance of Congressional oversight. I know
he will be able to offer the State Department both his
expertise and an abiding commitment to speaking truth to power,
a commitment that has defined his career.
His experiences, judgment, and integrity will be in value,
both to the Bureau of Intelligence and Research, the State
Department, the Intel Community, and most importantly, the
American people. I'm confident you will see those qualities
over the course of this hearing, and I urge the Committee to
support his nomination.
Thank you.
Chairman Warner. Thank you, Senator Klobuchar, for a very
strong endorsement and introduction. And I know you've got to
go deal with our Canadian friends so the Committee will excuse
you.
We'll now move to our witnesses. I believe, Mr. Fonzone, I
think you were scheduled to go first.
STATEMENT OF CHRISTOPHER C. FONZONE, NOMINEE TO BE GENERAL
COUNSEL FOR THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Mr. Fonzone. Thank you Chairman Warner, Vice Chairman
Rubio, and Members of the Committee, it's an honor to appear
before you today as President Biden's nominee to be the General
Counsel of the Office of the Director of National Intelligence.
Thank you for taking the time to consider my nomination.
I'm only here today because of the efforts of others. My
parents, Charles and Mary Ann Fonzone, are watching today's
proceedings from home in Allentown, Pennsylvania--probably
pretty nervously. They instilled in me and my brother Steve
from a young age the importance of working hard and always
trying to do the right thing, and I think often of their
guidance. My wife Jill is here today and I can't thank her
enough for her love, counsel, and patience, and for always
being able to make me smile. Her support and encouragement--
even though she already knows what it is like to be married to
someone who works in a SCIF--is one of the main reasons I am
prepared to undertake this challenging role.
I'm also very thankful to President Biden and Director
Haines for placing their confidence in me. The Intelligence
Community plays a vital role in keeping the Nation safe, but it
can only operate effectively if the American people have
confidence that its activities are lawful and consistent with
the Nation's values. If confirmed, I pledge to do all I can to
assist Director Haines in leading an Intelligence Community
that earns the American people's trust. I know this is a
serious and important responsibility. Legal advice provided in
Washington can have far-reaching effects, including for
Intelligence Community personnel doing dangerous and difficult
jobs far away from headquarters. If confirmed, I would thus
strive to provide advice that not only ensures the Intelligence
Community carries out its important mission consistent with the
law, but also is mindful of context and useful to the
recipient. In short, my goal would be to work with the
dedicated and talented career lawyers in the General Counsel's
Office to be a partner to the Director and to all ODNI
employees, providing them with timely, practical, and sound
counsel on the issues and challenges they face, while remaining
unafraid to deliver tough advice, when necessary.
Another key focus of mine, if confirmed, would be to
maintain an effective working relationship with the Congress--
and this Committee, in particular. Under the Constitution, the
institutions of our government are ultimately accountable to
the American people. For this reason, I think the Intelligence
Community should be as transparent as it can be about the legal
basis for its activities. But much of the Intelligence
Community's work is necessarily secret, and it is therefore
crucial for Congress to have the information it needs to
exercise its oversight functions, particularly with respect to
legal matters. If confirmed, I would thus endeavor to be a
partner to this Committee and maintain open lines of
communication on the range of legal issues that may arise
during my tenure.
Finally, if confirmed, I would also look forward to working
with lawyers from across the Intelligence Community. National
security lawyers often have to confront novel questions for
which traditional legal sources do not provide clear answers.
In those cases, collaboration can be extremely helpful, and
cooperation between Intelligence Community components can also
help ensure that the Community's equities are presented
effectively in interagency legal discussions.
I recognize that there is probably no job with a mix of
responsibilities identical to the ODNI General Counsel's. But
I've been fortunate during my legal career to have had a number
of roles--clerking at the Departments of Justice and Defense,
at the National Security Council, and in private practice--that
I believe provide useful experience.
This experience also teaches me how special it is to serve
one's country. Put simply, there's a sense of mission and
purpose in working for the government that you simply can't
replicate anywhere else. I also know how lucky you have to be
and how many things have to break right to have the opportunity
to serve in a role like the one for which I've been nominated.
That's why, Mr. Chairman, Mr. Vice Chairman, and Members of the
Committee, I can commit to you that, if afforded the
opportunity to serve, I will do everything in my power to carry
out this important office to the best of my ability; to be an
effective counselor to and advocate for the Intelligence
Community; to be a partner to this Committee; and to be an
effective steward of the public's trust.
Thank you again for your consideration of my nomination,
and I look forward to your questions.
Chairman Warner. Thank you, Mr. Fonzone.
Mr. Holmgren.
[The prepared statement of Mr. Fonzone follows:]
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STATEMENT OF BRETT M. HOLMGREN, NOMINEE TO BE ASSISTANT
SECRETARY OF STATE FOR INTELLIGENCE AND RESEARCH, U.S.
DEPARTMENT OF STATE
Mr. Holmgren. Chairman Warner, Vice Chairman Rubio, and
Members of the Committee: It is an honor to appear before you
today as the nominee to be Assistant Secretary of State for the
Bureau of Intelligence and Research. I am deeply grateful to
President Biden and Secretary Blinken for the confidence they
have placed in me, and to Director of National Intelligence
Avril Haines for supporting my nomination. I also want to thank
Senator Klobuchar for leadership in the Senate, for her kind
words, and for supporting me today.
I'm excited to be here alongside my friend and colleague
Chris Fonzone. I worked closely with Chris when we served
together on the National Security Council staff, and I can
attest that while he is an exceptional lawyer, he's an even
better colleague and human being.
I would not be here today if it were not for the love and
support of my family: my wife, Dana; our son Teddy; my parents,
Michael and Mary; and my siblings Stacie, Krista, and Ryan.
Each of them has inspired me to live my life with a sense of
purpose, love, and humility.
Like many Americans of my generation, the tragic events of
9/11 were a turning point in my life. I left my home State
of Minnesota 18 years ago to pursue a career in public service
to defend the freedoms, values, and liberties that we all
cherish. I came to Washington with a sense of optimism and a
deep and abiding belief in the ideals of this country: that
America is a force for good in the world, and that all men and
women are created equal with the right to life, liberty, and
the pursuit of happiness.
These ideals derive from my upbringing in Minnesota, where
I was surrounded by family who believed deeply in the role of
service. Both of my grandfathers were World War II veterans. My
parents, both of whom were public school teachers for 40 years,
instilled in me and my siblings the importance of service. And
I still share that same sense of optimism and commitment to
public service that I brought with me to Washington nearly two
decades ago.
While I may be a new face to the Committee, I have a long
track record of working with the Intelligence Community. As an
analyst, first at the Defense Intelligence Agency and later at
Central Intelligence Agency, I authored all-source intelligence
products to inform policy decisions. Through deployments
overseas, including in warzones, I have seen firsthand the key
role that intelligence plays in shaping national security and
the tremendous sacrifices of our warfighters, diplomats, and
intelligence officers. Throughout my career, I have also served
in policy roles at the Pentagon and on the National Security
Council staff at the White House. These experiences gave me a
richer understanding of the vital role and the limitations of
intelligence in shaping policy. Most significantly, I gained,
through these experiences, a greater appreciation for the
importance of analytic objectivity and the need for the
Intelligence Community to tell the policymaker what they need
to know, and not what they want to hear.
I have been nominated for this position at a time when the
United States and its allies are facing a diverse,
interconnected array of threats against the backdrop of a
global pandemic that is straining governments and societies,
fueling unrest, and accelerating global competition. From
China, Russia, Iran, and North Korea the continuing threat of
terrorism, cyber, and evolving technologies, these threats pose
new challenges and opportunities for the Intelligence
Community.
Mr. Chairman, I believe INR has a unique role to play in
addressing these challenges. As the oldest civilian
intelligence agency in the United States, the Bureau has a long
and proud history of providing policymakers with valuable
insights into America's most pressing national security issues,
while empowering our diplomats with the information and
analysis they need to advance US foreign policy objectives.
If confirmed, I look forward to leading this remarkable
institution. I understand the role comes with important
responsibilities: serving as the principal intelligence advisor
to the Secretary of State and as the head of one of the
Nation's 18 intelligence agencies; providing timely, objective,
all-source analysis to inform consideration of foreign and
national security policies; and assuring that our intelligence
and sensitive law enforcement activities are consistent with,
and supportive of, U.S. foreign policy objectives.
If confirmed, four interrelated imperatives will shape my
approach to leading INR.
First, I will ensure that INR's capabilities and resources
are aligned and strategically prioritized to address the most
pressing challenges and opportunities, to include China, Iran,
Russia, North Korea, global health security, cyber, the impact
of climate change, and how to capitalize on the revolution in
open-source intelligence.
Second, I will prioritize investments in INR's greatest
asset--its people. We must continue to attract, train, and
retain top talent while placing greater emphasis on diversity
and inclusion.
Third, I will focus on upgrading INR's technology
infrastructure to empower the analysts with the tools they need
and to improve the delivery of INR's products and services to
better support its customers, namely, U.S. diplomats overseas.
Finally, I will insist on strong cybersecurity practices
throughout INR to safeguard the confidentiality, integrity, and
availability of its data, networks, and systems.
In closing, I want to recognize the important role that I
believe congressional oversight plays in ensuring that US
intelligence activities are lawful, ethical, and consistent
with our values. If confirmed, I very much look forward to
partnering with this Committee as we confront the many
challenges ahead.
Thank you, and I look forward to your questions.
[The prepared statement of Mr. Holmgren follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Warner. Well, thank you, gentlemen.
For planning purposes, any Members of the Committee wishing
to submit questions for the record after today's hearing,
please do so by 5 p.m. on this coming Thursday, May 20th.
The Chair and the Vice Chair will ask questions and we'll
have who came in at the gavel and then we'll go back and forth
based on order of arrival for five minute rounds.
Mr. Fonzone, I mean, we've seen some real challenges at
ODNI over the last couple years. I think Director Haines, I'm
encouraged by her early steps. What are you going to be able to
do and how can you help her efforts to restore the morale and
return that sense of integrity to the Office at ODNI and how do
we make sure that the analysis of law is free from any
political influence in the ODNI?
Mr. Fonzone. Thank you, Senator, for the question.
Making sure that the ODNI is a place where employees want
to work and that can deliver--that can say truth to power is, I
think, a fundamental part of the job of the General Counsel.
And I think there's a number of ways in which I would see doing
that.
One is I would want to, if confirmed, engage with the
General Counsel's Office and make sure they have everything
they need and that they feel supported by their General Counsel
so they can deliver clear and accurate legal advice to everyone
in the department.
I think the second thing I would want to make sure to do is
that everyone--ensuring that all ODNI employees understand how,
if they have any concerns about their legal advice or any
politicization of the analysis they're providing, that they
understand the channels that they can use to raise those
concerns, whether that be through their chains of command to
the ombudsman or the inspector general.
And then third, I think dissent is healthy in organizations
and I'd want to make sure that all people who do raise concerns
would be able to do so without fear of retaliation.
Chairman Warner. Let me do one more follow-up question then
I'll move to Mr. Holmgren.
One of the things we experienced, unfortunately, in the
last couple of years was perhaps an unwillingness at the ODNI
level and at the Legal Office of the ODNI to make sure that
whistleblowers had the ability to exercise their, I believe,
legal rights to get a report to Congress. Can you speak to us
for a moment about the importance of whistleblowers and making
sure their rights are protected?
Mr. Fonzone. Sure, Senator.
Whistleblowers play an integral part in any organization,
and particularly, the Intelligence Community where so much of
the work is secret and dissent has to come internally.
I know that Director Haines said during her confirmation
process that if the ICIG presented a whistleblower complaint on
a matter of urgent concern to her, she would transmit it to
this Committee and I would, obviously, support her in doing
that.
And more broadly, I would want to do two things, one is
making sure all ODNI employees, and to extent relevant, broader
IC employees, understand how they can raise complaints that
they have to the Inspector General or other places where they
can raise such complaints. And two, making sure that they're
free from retaliation if they do so and that they're protected
to the full extent of the law if they do.
Chairman Warner. Thank you.
Mr. Holmgren, one of the issues that this Committee is
really taken on is the challenges of China. And when we talk of
China, we always make clear that our beef is with the Communist
Party of China and the leadership of Xi Jinping, not the
Chinese people.
Matter of fact, there's a bill on the floor of the Senate
right now where this Committee has made in a broad bipartisan
way, I think, major commitments to investing in semiconductors
and competing in the realm of 5G and the next generation, so-
called O-RAN.
Can you speak to us for a moment about what you see is
INR's role in informing the United States and the State
Department policies to counter China's very aggressive
tendencies in terms of technology competition?
Mr. Holmgren. Yes. Thank you, Senator, for that question,
and I know several of you raised this issue with me during the
pre-hearing meetings.
You know, first, I want to commend this Committee, in
particular, for elevating the importance of the China and
technology challenges and the risks that it poses, not only to
our national security but also to our economic security and for
American workers here in the United States. So I very much
appreciate the issue. I think, you know, the Democracy
Technology Partnership Act that several of you have brought
forward, has great opportunities and ideas in there to
implement.
I think the important thing about China to understand is
that their technology agenda underpins and drives their
military and their economic ambitions. And so I think it's
vitally important for the United States to out-compete China
technologically in order to maintain our military and our
economic edge. And if confirmed, Mr. Chairman, I commit to you
that China will be an unparalleled priority for INR and that I
will ensure we have the resources and the capabilities and the
expertise to address that challenge.
Chairman Warner. Well, thank you. And my time is expired. I
just want to make one additional point. I won't ask for a
response but one of the issues that this Committee is really
also taken on in a very aggressive way recently, and again,
appreciate everybody's input, is what's been referred to in the
press as the so-called Havana Syndrome. And we've got a
commitment from Director Burns, from the Agency, to make this a
top priority. We'll expect that same kind of commitment from
the INR and the State Department writ large.
Senator Rubio.
Vice Chairman Rubio. Thank you.
Let me start with you, Mr. Fonzone because we've already
talked about it and I told you I wanted to give you an
opportunity to address this with the Committee as well.
Look, I mean, you just heard Mr. Holmgren's answer but I
think it reflects everyone else's view that, in fact, China
uses its technological ambitions to further its military and
global ambitions. And one of their national champions is
Huawei, as an example and one of the things that we've all been
focused on and one of the priorities that this country has had
is ensuring that Huawei doesn't embed itself in the
telecommunication infrastructure of this country and also of
other countries.
And so, obviously, you're going to get asked about the fact
that as a partner at a law firm that represented both the
Ministry of Commerce of the People's Republic of China and
Huawei. You know, I understand that your position is that the
work you did on this file was ``de minimis'' but I think the
question is really, you know, as you worked in the National
Security Council, so you were surely aware of the threat posed
by China to American interests.
And I think the reason why it becomes relevant is because
one of things we've seen is how the Chinese Communist Party
uses our own system against us, in essence, it uses powerful
law firms and other entities in Washington with lawyers that
are connected to go in and out of government to advance their
objective, be it in court or in the lobbying realm.
So I wanted to give you an opportunity to sort of address
sort of the work you did, what were the options you have
available to you at the time, and how that fits into the role
that you've now been nominated to assume or not be relevant to
it at all. But I thought it was important both to address it to
give you a chance to address it because I think you could
understand, seeing that there's going to be some questions
coming about that.
Mr. Fonzone. Senator Rubio, thank you for the question. I
appreciate the opportunity to address the China-related work I
did at my law firm. As I know that this is an issue of great
interest this Committee.
I think there are, as you mentioned, two clients that have
raised the most questions as I've gone through the pre-hearing
process. The first is the Chinese Ministry of Commerce. The
work I did there was, as senior partner of my firm, arguing on
behalf of the Ministry in the Supreme Court. It was a
commercial dispute about how foreign law is incorporated into
U.S. law, U.S. antitrust law.
I was asked to prepare for and then participate in a moot
court to prepare the advocates for the argument and I did that
to help make sure that the partner or firm was able to give the
court the information it needs to decide the case. And I've had
no follow-up on that since then.
The second representation, as you mentioned, was for Huawei
and it was similar in the sense that the firm asked me to look
into a question of how U.S. law works. I did a ``de minimis''
amount of work, less than 10 hours, to explain how U.S.
administrative law works. I provided it to my partners and I've
had no follow-up since then. Both of those occurred in 2018.
I don't think either of those representations, which were
consistent with my entire legal practice, which was largely
around helping companies understand and comply with U.S. law,
would affect my ability to give Director Haines objective
advice as she serves as the DNI.
Vice Chairman Rubio. Just to clarify, on the Ministry of
Commerce you helped prepare a partner for oral arguments, in
essence, a moot court practice situation. And on the Huawei
representation, you provided internal legal research on how
U.S. administrative law works.
Mr. Fonzone. That's correct, Senator.
Vice Chairman Rubio. Okay.
I'm sure there will be more follow-up but I don't want to
take all of our time on that. I know other Members may want to
dig into a little bit deeper. I didn't want to skip going to
Mr. Holmgren.
Foreign misinformation, informational warfare is a reality.
It's growing. It's always been there but we've now seen it sort
of diffuse and become a real weapon used in global competition.
What is or should be, through the Global Engagement Center,
the INR's role in supporting the Global Engagement Center
efforts? In essence, you know, how can we counter through the
Global Engagement Center the impact that disinformation and
misinformation campaigns are having, not just people think of
Russia, I mean, Iran and others are heavily engaged now in this
effort in the Western Hemisphere even. So how do you view the
role of the Global Engagement Center and your role, in
particular, in supporting those efforts?
Mr. Fonzone. Thank you, Vice Chairman, for that important
question.
Russia's interference in the 2016, you know, election was
an outrageous attack on our democracy. It was an attempt to sow
discord, to exacerbate divisions in our country, and it is an
effort, as the DNI has indicated, it's likely to be, you know,
replicated by other Nations besides Russia moving forward. And
so I think it absolutely is a serious issue that we must
confront. You know, I publicly called for the need for a whole
of government approach to combat foreign malign disinformation
and influence campaigns.
And so, Vice Chairman, to your question about the role that
State and INR, in particular, would play, I would view, if
confirmed, INR's role as providing support to the Global
Engagement Center, but also to the recently established Foreign
Malign Influence Center that the DNI created, which I think is
a very positive step in the right direction to fuse a lot of
the intelligence and threat information to share with
policymakers.
Chairman Warner. We'll now go to those Members who were
here at the gavel, which is Senator Casey and Senator Cornyn.
Senator Casey and then Senator Cornyn.
Senator Casey. Mr. Chairman, thanks very much.
I want to start by commending both of the nominees for your
willingness to serve the country again. Both Mr. Fonzone and
Mr. Holmgren are committing to further service and that's
laudable, especially at this time.
Mr. Fonzone, I wanted to highlight your Pennsylvania roots,
as well as your pride in growing up in the Lehigh Valley. You
told me earlier you're a graduate of Parkland High School, is
that correct? And then on to Cornell and Harvard Law School? So
we want to note that for the record.
And I want to say hello to your parents from a distance. I
don't know them. I won't wave to them; that probably is a
little too much. But I want to thank them for raising you and I
also want to commend your family, your wife, Jill, who I guess
is here. Jill. Good to see you. And your family's commitment to
public service.
I wanted to start with you and I'll try to get to both of
our nominees for a question each.
The question relates to supply chain concerns that I have
and I know a lot of people have, specifically as it relates to
China. I don't think there's any question right now that the
United States has capital investments that have the effect of,
in a very real sense, propping up China's governmental effort
to create a military-civil fusion strategy that ultimately can
compromise U.S. national security.
We've had for more than 40 years now the so-called CFIUS
process, the Committee on Foreign Investment, which scrutinizes
inbound investment. We don't have a similar or comparable
method to analyze outbound investment for the same questions.
So no mechanism to assess how outsourcing by U.S. companies to
countries of concern may compromise our national security.
So I guess my first question is, in your view, how
vulnerable is the United States supply chain to dependencies on
China?
Mr. Fonzone. Thank you, Senator, for the question and your
focus on this issue. It's an important one. Supply chain is an
issue of focus for this Committee and also the Intelligence
Community writ large.
And I think that outbound investment is something that
probably we should take a closer look at. Obviously, I'm not in
government now so I don't have the latest intelligence on
exactly what the risks are. I think what I can say is that, if
confirmed, I would commit to engaging with experts on this
issue in the Intelligence Community, at DNI specifically, and
in the Intelligence Community more broadly.
And then offering up my help and the help of my office,
working with you or the Committee on any proposals you would
have to address the threat raised by China and others with
respect to supply chains.
Senator Casey. I appreciate that. I look forward to working
with you. I hope we can help you by way of some new legislation
in this area, we hope, as well as to review with you some of
the legal tools that ODNI might have to track outbound
investment by companies that compromise our security.
Mr. Holmgren, the ``Quad'' intelligence sharing partnership
between the United States, Australia, India, and Japan is
emerging as an essential tool to combating Chinese aggression
in the Indo-Pacific region. My question for you is about
diplomacy. What role can diplomacy play in getting access to
critical intelligence regarding China's trade, diplomatic, and
military agendas?
Mr. Holmgren. Thank you, Senator, for that question. And as
I indicated previously, I share the concerns about the serious
threat China poses to the United States militarily,
economically, and technologically.
Working with our intelligence partners and allies is a
vital function in the Intelligence Community generally, but
especially at a place like the Department of State where
diplomacy is the business. INR serves at the intersection of
intelligence and diplomacy and so, if confirmed, I would view
INR's role as supporting engagements of our diplomats, to
include the Secretary of State, with those partners with the
intelligence that they need.
And second, to make sure that we are including those
partners that you mentioned--in particular our closest allies,
as well as the Five Eye countries--in the analytic exchanges
that INR leads on behalf of the Intelligence Community. They're
a couple hundred a year, where you bring in outside experts,
non-governmental experts, to focus on particular issues. So I
think ensuring that those partners and allies were included
would be an important step to help strengthen those
relationships.
Senator Casey. Thanks very much. Thanks, Mr. Chairman.
Chairman Warner. Senator Cornyn.
Senator Cornyn. Let me start by thanking both of you for
your willingness to serve and for your willingness to take a
cut in pay.
In all seriousness, Mr. Fonzone, you and I had a chance to
visit about some issues in my office and I thank you for that.
I note that Sidley Austin has registered different times
for representing clients in the Foreign Agents Registration
Act. Have you personally had to register under FARA?
Mr. Fonzone. No, I have not personally registered. I think
the firm, in one of its periodic registrations, lists all the
partners who were in the firm, but I have not registered
personally.
Senator Cornyn. Do share my concern about foreign
governments hiring lobbyists on K Street with the lack of any
real transparency, so that, basically, people like the Members
of this Committee don't know if they're being lobbied by
American citizens or by foreign governments?
Mr. Fonzone. Senator, I certainly think that Congress
should understand who's asking you to do things. And I can't
profess to be an expert on how exactly FARA works, but I think
to the extent that there are changes, if you don't feel you're
getting the disclosures needed I'd be happy to, if confirmed,
work with you on making sure you get the information you need.
Senator Cornyn. Well, once you're on the job, I hope you'll
work with us to try to figure this out. They have various
disclosure registrations called the Lobbyist Disclosure Act,
which then eliminates the need to register as a foreign agent.
But I think this is a big concern to a number of us on this
Committee and in Congress. And so I hope you'll help us work
through that.
I know President Biden asked the DNI to produce a threat
assessment on domestic violent extremists. And we certainly
recognize the importance of that. But in the United States, we
don't allow the Intelligence Community to spy on American
citizens, absent some proof of connection with a foreign
power--being an agent of the foreign power.
As you know, the FBI is the member of the Intelligence
Community that basically is in charge of law enforcement and
counterintelligence operations. But how do you draw the line
between what is permissible and what's impermissible under our
laws?
Mr. Fonzone. Thank you, Senator, for raising this issue.
As I've gone through the process of preparing for
confirmation and talked to folks who held this job before--and
others, I think this is one of the issues that would be a major
focus if I were lucky enough to be confirmed. There are
domestic threats and the government has a role to play in
addressing them. But as you just noted, I think there's a lot
of history that shows trouble can arise if the IC becomes too
involved. I think the way that works out in practice is, as you
noted, the FBI and DHS are in the lead. But as Director Haines
noted in her confirmation process, there may be some small role
the IC can play to support them.
If confirmed, I can say that it would be a major focus of
mine to make sure that the extent the IC is providing
assistance in addressing any domestic threats, it does so
consistent with its authorities and with due respect for the
Constitutional rights of U.S. citizens, and in particular their
First Amendment rights to both assembly and speech.
Senator Cornyn. As you know, China is usually the first
word out of our mouths these days when it comes to our national
security, economic and otherwise. In recent years, Congress has
passed some reforms. For example, the CFIUS process, the
Committee on Foreign Investment in the United States, to review
foreign investments for national security concerns and the
like.
I know that it's been a couple of years now and that
Treasury, I think, was primarily responsible for convening
CFIUS, has not yet completed some of the rulemaking process.
And I hope you will help us figure out what--not only how to
implement what we've already passed into law, but what other
loopholes are there available for our adversaries, primarily
China, because we know where they're relentless.
Do you have any sort of plenary thoughts about things that
we need to do to make that more effective?
Mr. Fonzone. Senator, I know that there were the amendments
to CFIUS that were passed. I'm not completely up to speed on
those types of implementation. If I was confirmed, I would
obviously help--to the extent that the DNI General Counsel had
a role to play there--to assist that.
And in looking into this and understanding how it's been
implemented, identified any gaps or areas where further
legislation would be helpful to address national security
threats. I would obviously work with this Committee to close
those gaps.
Senator Cornyn. Thank you.
Chairman Warner. I'd remind the panel that the Senator from
Texas was the lead Senator on that CFIUS reform.
We're going to continue. It's, again, based upon arrival
order, so Senator King, Senator Cotton, Senator Feinstein, and
Senator Sasse.
Senator King. Thank you, Mr. Chairman.
Mr. Holmgren, I can't imagine how difficult it would be to
grow up in Minnesota in the nineties when your father's got the
same name as the coach of the Green Bay Packers. That must have
been a challenge at times.
Mr. Holmgren. It was tough, Sir. Thanks--yes.
[Laughter]
Senator King. Character building, however.
Mr. Holmgren. Indeed.
Senator King. Mr. Holmgren, Dan Coats, I think, outlined
best the role of the Intelligence Community. He said our job is
to seek the truth and tell the truth. And one of the most
important characteristics is sometimes it's hard to tell the
truth if your customer doesn't want to hear the truth.
Are you willing to incur the displeasure of the Secretary
of State or indeed the President or this Committee in order to
defend the findings of the analysts in INR?
Mr. Holmgren. Thank you, Senator, for that important
question. As Chairman Warner indicated at the top of his
remarks, if confirmed, I would be joining an institution at INR
that has a long and proud history of speaking truth to power.
And so I feel as if I would be joining an institution
that's on solid foundation in that regard. Having said that, I
believe it is essential that the INR workforce, this Committee,
the American people have confidence in the integrity, the
accuracy, and the impartiality of Intelligence Community
assessments.
And so, if confirmed, I think it's a multi-pronged approach
to ensure that policymakers are receiving the professional
judgments and candid expertise of INR analysts.
Senator King. If 2003 repeated itself and the consensus in
the Intelligence Community was X and the finding of INR was Y,
would you inform this Committee of your findings different from
those of your colleagues in the community?
Mr. Holmgren. Yes, Senator. I believe that would be a
significant enough issue to inform the Committee.
Senator King. Thank you. I hope we don't have to face that
but I think that's an important part of your role. The most
important. Intelligence, bad intelligence can lead--does lead--
to bad decisions. And your job is to give us the best
intelligence that you have, us being policymakers.
Mr. Fonzone, this Committee really, I think, has one role
and one mission. The role is oversight of the Intelligence
Community. And it's an unusual one because in a democracy,
secret agencies are kind of an anomaly.
And all the other agencies of government have all kinds of
people looking at them: the press, the specialized press, the
constituents. Intelligence not so much. So this Committee has
an important responsibility. The mission it seems to me is
navigating the tension between the preamble of the
Constitution, to ensure domestic tranquility and provide for
the common defense, and the First, Fourth, and Fifth
Amendments, essentially the right of privacy of American
citizens.
Talk to me about how you navigate what is essentially a
legal tension.
Mr. Fonzone. Thank you, Senator. I think that's a fantastic
framing of the role of this Committee and an excellent
explanation for why the relationship between the Intelligence
Community and this Committee is so important. I think that the
Intelligence Community has a very important job to play in
keeping the Nation safe, but it can only do that if the
American people trust that what it's doing is lawful and
consistent with the Nation's values.
I think that because most of the work is in secret there
has to be mechanisms to ensure people of that. I think one is
that----
Senator King. Especially because it's in secret.
Mr. Fonzone. Especially because it's secret. And I think
one is that the IC should be transparent as much as it can be.
And if I was confirmed, I would be an advocate internally for
being transparent about what the IC is doing, particularly
about its legal basis.
Two, there are internal oversight mechanisms to help make
sure the IC is operating lawfully. There are Inspector
Generals, there's the PCLOB, there are General Counsel offices.
And third, and probably most important, there's this
Committee. And if I were lucky enough to be confirmed, I would
see a major focus in my role both ensuring that the Director
carries out her obligation to keep the Committee fully and
currently informed about significant intelligence activities,
and also just making sure that I'm a partner with the Committee
so that all the legal issues that come up that are
significant--we're working together on those.
Senator King. Hold that thought. Partner with the
Committee. That's an important concept. I'm just about out of
time, but I want to emphasize the importance, as the Chairman
mentioned, of the whistleblower statute. By definition,
whistleblowers are unpopular, certainly not within the
executive branch. So they need articulate and aggressive
defense. And I hope you will commit to doing so within the
Intelligence Community.
Mr. Fonzone. Certainly, Senator. That's something that a
number of Senators have spoken to me about in the run up to
this hearing. And I'm committed to, if confirmed, to ensuring
that whistleblowers know where to lodge their complaints and
receive the full protection of the law if they do so.
Senator King. Interestingly, the first American
whistleblower law was in 1778, prior to the adoption of the
Constitution. The people that founded this country understood
how important it was.
Thank you, Mr. Chairman.
Chairman Warner. Senator Cotton.
Senator Cotton. Thank you.
Mr. Fonzone, I want to return to some of the topics about
your legal work in private practice, specifically for the
Ministry of Commerce in the People's Republic of China and for
Huawei. You are a full equity partner at Sidley, is that
correct?
Mr. Fonzone. I did have some equity. I couldn't
characterize myself as a full partner. But I was a partner.
Senator Cotton. OK. Does Sidley have a policy to allow
lawyers to decline work for clients if they find it morally
objectionable?
Mr. Fonzone. Senator, I took the work I did for the
Ministry of Commerce and Huawei that I described for Senator
Rubio. It was work that was consistent with my practice of
helping companies understand U.S. law, comply with U.S. law,
and or prepare for an argument--in that case, prepare for an
argument before the Supreme Court.
So I took it in that vein. That's why I took that work.
Senator Cotton. So, I understand you took it but I'm asking
you if Sidley has a policy that allows lawyers to decline work
if they have objections to a client? I remember years ago firms
would allow lawyers to decline work for tobacco companies, for
instance, if they found that work morally objectionable.
Mr. Fonzone. Senator, I don't know if there's an official
policy to that end. I don't know if I would have been able to
decline the work if I would have tried.
Senator Cotton. Okay. Thank you.
Just this morning the New York Times reported on Apple's
years-long collaboration with the Chinese Communist Party to
provide every piece of data from Apple's devices in China to
Communist police forces, despite years, of course, of evidence
of oppression and genocide. This is just one more example of
Apple's deep, deep entanglement with the Chinese Communist
Party. And you list in your disclosures Apple as one of your
major clients.
Could you please characterize the nature of the work you
did for Apple?
Mr. Fonzone. Senator, I did a range of work for Apple on a
lot of topics. I don't recall doing anything vis-a-vis Apple
with respect to its relationship with China, but I worked with
them on a number of matters related to privacy and other
topics.
Senator Cotton. But you don't recall doing any work for
Apple that was related to its relationship with China?
Mr. Fonzone. Not that I recall, though I did a fair amount
of work with them over the years so I--.
Senator Cotton. Thank you. Thank you. I'll just say,
obviously, the Committee has concerns about what's come to be
known as the China lobby. And it's pervasive in this country,
far more pervasive than these clients you've had. And I don't
just mean registered agents for a Chinese company. It's
everywhere. Multi-national corporations or small manufacturers
in all our states have outsourced production to China.
The CEOs of major investment banks met with China's trade
negotiator right before he met with President Trump's trade
negotiator. Hollywood won't have movies with Chinese bad guys
because they want access to the Chinese market. University
presidents will lobby us to maintain the flow of Chinese
students who pay full fare at their universities. University
professors still want to get money from Chinese-owned entities.
So this is a very, very serious concern of the Committee
and I think this is why you have Members asking you questions
about the nature of this work.
Mr. Holmgren, I want to turn to question what we discussed
in our conversation a couple weeks ago. Nord Stream 2, which
is, I'd say, right now Vladimir Putin's number-one foreign
policy priority to complete. It's in the final stages of its
construction. It will be completed later this year if nothing
happens. It will make Western Europe even more dependent on
Russian gas while also depriving Eastern European NATO allies
of the concessions they get for the pipelines that come from
Russia to Western Europe.
Last year's defense bill greatly expanded the scope of
companies subject to sanctions for supporting this pipeline. I
understand the State Department has contacted some of these
companies to make them aware of their potential sanctions
exposure. If you're confirmed, can you commit to immediately
providing the Senate with the unclassified list of companies
involved in that project that the IC produced in response to
last year's National Defense Authorization Act?
Mr. Holmgren. Thank you, Senator Cotton. And I appreciate
our conversation on this issue. Just let me say at the outset I
am under no illusion that this pipeline is an economic
development project as Putin claims. I believe that it is the
latest example of Putin's desire to weaken Western alliances
and ultimately, as you indicated, to exert influence down the
road on our European partners and allies.
So I appreciate the seriousness of this issue. If
confirmed, I commit to you that INR will support the Department
and the Intelligence Community in identifying and assessing and
evaluating entities that may be involved in violating U.S.-
imposed sanctions. You have my commitment in that regard.
Senator Cotton. Thank you. Ultimately, this is not going to
be your call. It's going to be the Secretary's call. And really
President Biden's call.
I've seen troubling reports today that the Administration
may be preparing to waive sanctions on certain German entities.
So we'd be in the very strange position where we're sanctioning
the company that's trying to build the pipeline but we're not
going to sanction the company that's in charge of it or the
company that's going to be using it--all because we want to
maintain friendly relationships with Germany, which is
currently throwing our Eastern European allies under the bus
over this pipeline. So it's a matter of serious concern to the
Committee.
Chairman Warner. I would remind the Senator, and I agreed
with your comments about Apple and some of the others, the one
industry that refused to meet with this Committee when we were
doing our China classified road shows was private equity, which
was again, I think it----
Senator Cotton. There's basically no industry and no place,
no organization in America that's not potentially compromised
by the China lobby. That's why it's so important that we do the
work to expose the China lobby.
Chairman Warner. Senator Feinstein.
Senator Feinstein. Over a decade ago, the CIA engaged in
the use of waterboarding and other so-called enhanced
interrogation techniques during interrogations. The tactics
used were not only more brutal than what's known, they did not
produce actionable intelligence. This was all laid out in a
Senate Intelligence Committee's 6,000-plus-page classified
report and a 500-page declassified summary.
While you both provided straightforward answers in the pre-
hearing questions, I want to cover this topic because I believe
it remains a very high priority to see that we never return to
this. So let me ask you the same questions I asked Director
Haines and Director Burns when they were before us.
Do you agree that current law prohibits any interrogation
techniques not allowed by the U.S. Army Field Manual on
Interrogation?
Mr. Fonzone. I do, Senator.
Mr. Holmgren. Yes.
Senator Feinstein. Do you agree that waterboarding and
other so-called enhanced interrogation techniques are not
effective?
Mr. Holmgren. Yes.
Mr. Fonzone. Yes.
Senator Feinstein. Will you assure us that the IC will not
be in the business of running undeclared black site detention
facilities or engaging in interrogations that use techniques
beyond those listed in the Army Field Manual?
Mr. Fonzone. Yes.
Mr. Holmgren. Yes.
Senator Feinstein. Thank you very much. Thank you, Mr.
Chairman.
Chairman Warner. Senator Sasse and then Senator Wyden.
Senator Sasse. Thank you, Mr. Chairman. I'm not showing a
light, do you hear me? Great. Thanks. Thank you both for being
here. Congratulations on your nomination.
Mr. Fonzone, I'd like to go back to the conversation that
Vice Chairman Rubio started with, and that you and I discussed
on the phone.
Can you explain to me who Huawei is?
Do you regard them as a private sector company?
And what do you think of the role that they've played in
the Chinese Communist Party's genocide in Xinjiang?
Mr. Fonzone. Thank you, Senator, for the question. And I
know this--we discussed this before the hearing--I'm well aware
of what Director Haines has said about Huawei, about the fact
that Chinese telecommunication companies pose a significant
counterintelligence risk and she specifically named Huawei. I'm
also aware of the amount of focus this Committee has placed on
the risks posed by Huawei.
If confirmed, I would obviously have access to the way this
intelligence, including about Xinjiang--and that would be what
would guide the factual underpinning of any legal analysis I
would provide to Director Haines if I was lucky enough to be
confirmed.
Senator Sasse. But I'm trying to ask a different question.
I'm trying to ask why would you make a decision to work for
Huawei given who they are? And this isn't new news. You worked
in the NSC in the Obama years. And the 2019 DOJ indictment on
Huawei, on things as mundane--relative to the genocidal issues
we were just talking about in Xinjiang--but as mundane as their
intellectual property theft from T-Mobile from 2012 through
2014 was laid out in the indictment two years ago.
And this was roughly the time that you were working for
them. 2018, I think, was your legal work for them--2017, 2018.
But that followed you leaving the Obama administration. Did you
think Huawei was a morally neutral or a neutral or a good
actor?
Mr. Fonzone. Thank you, Senator. It was 2018, you're
correct there. As I stated in response to Senator Rubio's
question, my firm asked if I would help address some questions
on how U.S. administrative law works. I did a very small amount
of analysis on--with respect to that question. Less than 10
hours.
Senator Sasse. But you knew it was for Huawei?
Mr. Fonzone. I did know it was for Huawei and it was----
Senator Sasse. Who did you think they were?
Because they're the bad guys.
Mr. Fonzone. Senator, I understand the concerns you have
about Huawei.
Senator Sasse. Do you have concerns about Huawei?
Mr. Fonzone. I'm very aware of what Director Haines has
said about Huawei, what this Committee has said about Huawei,
and if I was confirmed, I would be driven by what the
Intelligence Community's views are of Huawei. That would
underpin my analysis. I did the work I did because a partner
asked me to help a company understand U.S. law, and that's the
advice I provided in a very small amount of work.
And there's been no follow-up with it since then.
Senator Sasse. This is a company that's involved in
genocide and this is a company that habitually, systematically
is involved in stealing IP from U.S. companies. Helping them
with rulemaking or their understanding of rulemaking is not
helping a morally neutral actor and it's not helping them
comply with U.S. law. It's helping them figure out how they can
skirt U.S. law.
You're well aware, I assume, that China's national security
laws compel China's ostensibly, but not really, private sector
companies to share all their information with the government,
correct?
Mr. Fonzone. I'm not an expert on Chinese law but that
sounds accurate to me, yes.
Senator Sasse. Thank you.
Mr. Holmgren, INR is very important and I think those of us
who feel a responsibility to not just help provide oversight
for the now 18 intelligence agencies, with Space Force, but
also to express gratitude for a lot of people who work in the
Intelligence Community who don't have people, private citizens
able to thank them often. INR is critically important. It
obviously has an illustrious history. But it's also had
challenges over the years in intelligence sharing with the
broader community.
Can you give us your sense of what INR's particular
challenges are as you arrive? That you need to deal with? And
how do you advance the agenda of intelligence sharing with the
broader community?
Mr. Holmgren. Thank you, Senator. And I appreciate those
remarks about INR. Again, INR is unique in the Intelligence
Community in that it is the only one of three all-source
intelligence agencies that serves at the intersection of
intelligence and diplomacy. And so, if confirmed, I think the
major challenges that I understand INR is facing also align to
the priorities I indicated at the top. But importantly in
making sure that our finite resources are aligned and
strategically and efficiently prioritized against the big four:
China, Iran, Russia, North Korea, as well as some other
important threats.
Second, on the technology front, I think there's both, in
my view, a need to further enable INR's technology
modernization program so that it can support our customers but
also the cyber security imperative to make sure that we are
adequately protecting its data networks and systems.
And then finally on the talent side, INR has a really long
and rich tradition of attracting some of the best and brightest
experts who spend their careers at INR. We want to encourage
that, but at the same time make sure that we have sufficient
expertise on the team to address a bunch of really challenging
new technical issues in the emerging technology space.
Senator Sasse. Thank you. Thanks for your charity yesterday
on our schedule bumps as well. I look forward to continuing the
discussions about emerging tech. I'm out of time now but I'll
follow-up with you. Thank you.
Chairman Warner. Thanks. Senator Wyden?
Senator Wyden. Thank you, Mr. Chairman.
Mr. Fonzone, we talked about whistleblowers when you came
to the office. And as you know, I think the Trump
administration regularly undermined whistleblowers. And to
their credit, the Biden administration officials have told me
that it's going to change on their watch.
So I want to be very clear on a point that is critical to
me. And I don't think we've gotten into this, but if the
inspector general transmits to the Director a whistleblower
complaint that the inspector general has said is urgent, is the
Director obligated by law to forward it to the Congress?
Mr. Fonzone. Thank you, Senator, for the question. I know
this is an issue of concern that we talked about before the
hearing.
With respect to your question, the law is clear. When the
ICIG presents a whistleblower complaint, it is a matter of
urgent concern to the DNI. The DNI shall transmit that complain
to Congress.
Senator Wyden. So the answer is yes.
Mr. Fonzone. Yes.
Senator Wyden. Operative ``shall.''
Mr. Fonzone. Yes.
Senator Wyden. Great. Thank you.
Let's go to data purchases then for a moment. Again, in the
office, we talked about the bipartisan legislation I have. The
Fourth Amendment is not for sale where the government basically
uses a credit card to throw the Fourth Amendment in the trash
can.
Now, I believe Americans have a right to know how the
government interprets laws, and that includes ways in which the
Intelligence Community goes around the courts by buying
Americans' private records from these data brokers, these
sleazy operators who are basically accountable to no one.
If you're confirmed, will you ensure that the Intelligence
Community is transparent about the circumstances in which it
does this?
Mr. Fonzone. Senator, during her confirmation process,
Director Haines committed to seeking to articulate a framework
for how the Intelligence Community purchases data so the public
can understand that and what the legal basis for purchasing the
data is. And I think the idea would be to make that framework
public to the maximum extent you can, consistent with sources
and methods. And if confirmed, I would look to support the
Director in pulling that framework together.
Senator Wyden. Do you agree that the public record should
include information on the amount of Americans' records
collected without a court order?
Mr. Fonzone. Senator, I think transparency is very
important to the IC.
Senator Wyden. That's not the question. The question is:
should the American people know the amount of records? Because
this is pretty obvious. If it goes on on a very rare basis,
then we're going to look at whether there was a sources and
methods concern. But I think we need to know the amount of
records being collected this way. And I'm interested in whether
you think that the public record should include information on
the amount.
Mr. Fonzone. Senator, I think the IC should provide as much
information as they can about the amount of information they're
collecting. I just don't know enough, not being in government
right now, about what the potential risks might be.
Senator Wyden. Well don't you learn a little bit more in
the next few days and get back to me within a week. Okay? On
that point--.
Mr. Fonzone. Senator, thank you.
Senator Wyden. Good. Now, there's a lot of confusion about
how the community interprets the Supreme Court's Carpenter
case. This is the big geolocation data case. And whether it can
collect Americans' geolocation information without a warrant.
If you're confirmed, would you clear this up by issuing
public guidance on how Carpenter applies to the Intelligence
Community?
Mr. Fonzone. Thank you, Senator.
Carpenter is a very important decision and, to the IC, it's
one of the Supreme Court's major statements about how
information created in the digital age is covered by the Fourth
Amendment. I know during her confirmation process Director
Haines committed to engaging with IC lawyers on whether
guidance on Carpenter is necessary. And if confirmed, I would
look forward to working with her on understanding Carpenter and
how it applies to the IC's actions and whether guidance is
necessary.
Senator Wyden. Why in the world would one say they need to
clear up whether guidance is needed? There's tremendous
confusion. The agencies are all over the map. That's a matter
of fact. So I'm still not clear. Do you think guidance is
necessary or not?
Mr. Fonzone. Senator, I can see why guidance might be
necessary. Carpenter is a very important decision. Not being in
government, I don't know the state of what the different IC
entities are--what their positions are on Carpenter. I know the
Director wants to look into this.
Senator Wyden. My time is pretty much up. Why don't you get
back to me within a week on that point as well? I'm not even
going to ask my other question, because given how much
confusion there is, I thought that at a minimum if confirmed
you would tell agencies to be transparent about what they're
doing. But clearly we're not even at that point. So, I would
like within a week an answer to the question of whether you
think guidance is necessary for the Community on the Carpenter
question, which speaks to geolocation and is right at the heart
of this question about whether people are going to have their
Fourth Amendment rights protected.
Thank you, Mr. Chairman.
Mr. Fonzone. Thank you, Senator.
Chairman Warner. The Chairman has no further questions.
Anybody else want a second round?
Senator Gillibrand. Mr. Chairman, I am on via WebEx.
Chairman Warner. Oh, I apologize, Senator Gillibrand.
Senator Gillibrand. Thank you.
Chairman Warner. That was my mistake.
Senator Gillibrand. No, no. I'm good.
Chairman Warner. Alright. Senator Gillibrand.
Senator Gillibrand. Perfect.
Mr. Holmgren, it has been reported that a growing number of
U.S. personnel overseas, including State Department employees,
have been targeted in a mysterious series of attacks causing
significant health impacts. This has reportedly occurred in
Cuba, China, and elsewhere. I cannot overstate how critical it
is that we get to the bottom of who is doing this, that we hold
the perpetrators accountable, and that we take care of our
people.
If you are confirmed, do you commit to doing everything in
your power to ensure that the Intelligence Community protects
these individuals, determines the origin of the attacks, and
makes sure that the victims are given the appropriate medical
care? And if confirmed do you commit to regularly engaging with
the Committee on this issue?
Mr. Holmgren. Thank you, Senator.
I know this is a concern raised by several Members of the
Committee during the pre-hearing meetings. And I very much
share those concerns. I've spoken to victims of these egregious
attacks and I know that they are suffering; I know that their
families are suffering. And Senator, if confirmed, I will have
no higher priority than ensuring that the Department of State
and the Intelligence Community are working to protect the
safety and security of U.S. personnel, their families, and U.S.
citizens overseas.
And as a testament to how serious I take this issue, if
confirmed, I will ask my staff to provide a classified briefing
on the matter on my first day in office. And to keep me
regularly updated on the issue. And, of course, pledge to keep
the Committee informed.
Senator Gillibrand. And let me give you some guidance. It's
very important with the kind of impact--disease impact that
these attacks seem to have been causing, that you create
experts in the field. And I would highly recommend that--[audio
interruption]--at one location such as Walter Reed where you
can have doctors that are read in and understanding what is at
stake so that these service members and Intelligence Community
members and members of the State Department are not looking far
and wide for experts.
With the 9/11 first responders and community members, we
developed state-of-the-art care for them based on the nature of
their exposure. I think we have to use what we learned there
and develop a state-of-the-art-care for the men and women who
have been exposed.
And I'd like your commitment to working toward that end.
Mr. Holmgren. Yes, Senator, and with INR specifically I
commit that this will be a priority in terms of supporting the
Department and ensuring that its personnel have the resources
they need. I very much appreciate the issue.
Senator Gillibrand. Okay. Thank you.
Now with regard to Mr. Fonzone: the families of the victims
of September 11th have long been seeking certain documents from
the FBI related to the facilitators who enabled the
perpetrators of the attacks. The last Administration blocked
the release of the requested documents. Almost 20 years after
the attacks, the families and the American people deserve much
better.
I have read these documents myself and I believe that
there's additional information that can be shared with the
families. I have asked DNI Avril Haines to work with me to
ensure that while sensitive sources and methods may need to be
protected and remain classified, that the documents undergo a
full review so that we can maximize transparency with the
families and the public.
If you are confirmed, will you commit to work with me to
ensure that all appropriate information on this topic is
reviewed for declassification so that it can hopefully be
shared with the families?
Mr. Fonzone. Thank you, Senator. If confirmed, I would work
with the Director and you on this issue.
Senator Gillibrand. Thank you. And my last question--do I
still have time, Mr. Chairman? Or has my time been consumed?
Chairman Warner. No, you've still got time for one more.
Senator Gillibrand. Okay. Mr. Fonzone, if confirmed you
will be the top lawyer in the Intelligence Community. What
would be your advice to the DNI regarding the role of the
Intelligence Community in addressing the threat of domestic
terrorism? Where do you see that line of authorities between
the significant domestic national security threat, the
Intelligence Community's capability, and the law enforcement
community?
And related, we've seen such an intense influx of
cyberattacks by sophisticated foreign adversaries who have
utilized U.S. computing infrastructure to mask the origin of
attacks. This has also raised concerns that the perpetrators
are exploiting a perceived gap in intelligence authorities that
make it difficult for the IC to track cyber threats on domestic
networks.
If confirmed as the top intelligence lawyer in the U.S.
Government, what would be your advice to the DNI regarding the
intelligence authorities needed to better defend the United
States from these type of attacks?
Mr. Fonzone. Thank you, Senator, for the question. I think
you flagged two very difficult legal issues where the threats
can span the domestic to the international, and drawing a line
between where the IC's authorities are and where the
authorities of other entities who are responsible for
addressing those threats are. If confirmed, I think both cyber
security and domestic threats would be areas of major focus for
me.
And I would commit to you that I would both, one, try to
make sure that the Intelligence Community is operating within--
ensure that the Intelligence Community is operating within its
authorities. Two, be very careful to ensure that the
Intelligence Community is not intruding on the domestic sphere
where it should not intrude and it's respecting the
Constitutional rights of U.S. citizens. And three, as your
question alluded to, if I identify any authority gaps where the
Intelligence Community lacks the authorities it needs to keep
the Nation safe, I would obviously bring those to this
Committee and work with this Committee to fill those gaps.
Senator Gillibrand. Yes. And I'm most concerned about the
third issue, because we've had several open sessions where
there are perceived gaps and perceived vulnerabilities because
of the way we have aligned our capabilities. And I think it
needs a deep dive and I think it needs advice.
Chairman Warner. Thank you, Senator.
Senator Gillibrand. Thank you.
Chairman Warner. Let me just reiterate one point that
Senator Gillibrand made. And it applies you, Mr. Holmgren, but
I think it also applies to you, Mr. Fonzone. This Committee,
frankly, has been shocked on this issue related to the so-
called Havana Syndrome. That for now close to five years we've
been getting reports. Many of the individuals that work for
various parts of the American government appeared not to get
treatment in an appropriate manner.
It's fairly stunning to, I think, all of us that we still
don't know four to five years in on an attribution issue: who
perpetrated these attacks? We don't know what devices were
used, and only recently do we feel like the individuals who--
clearly many who were harmed--were getting any kind of
respected treatment.
And the notion that we're asking people to serve all over
the world and the--not only the actual potential--the actual
threat posed by whatever actor using whatever device, but just
the psychological notion that you and your family could be
posted somewhere and be a victim of something that at least for
a number of years it appears like the American government
didn't take seriously enough in both a medical or from an
investigative standpoint.
I've had a number of conversations with the Director on
this. IC personnel, State Department personnel, DOD personnel.
It appears now people serving domestically here at home. We've
got to get to the bottom of this. And Senator Rubio and I and
every Member of this Committee is committed to getting those
answers. And we'll expect that kind of response.
I want to thank you both again, echoing what so many other
Members have said about your willingness to serve. These are
critical times. I think you hear from all of us, we're going to
ask you hard questions. But should you both be confirmed, this
Committee will have your back. But we will also expect
forthright, straightforward answers. And now more than ever,
it's important that the IC has the willingness to speak truth
to power.
And with that, the Committee is adjourned. Thank you both.
[Whereupon at 3:55 p.m. the hearing was adjourned.]
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