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[Senate Hearing 110-407]
[From the U.S. Government Printing Office]
S. Hrg. 110-407
NOMINATION OF JOHN A. RIZZO TO BE GENERAL
COUNSEL OF THE CENTRAL INTELLIGENCE
AGENCY
=======================================================================
HEARINGS
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
JUNE 19, 2007
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
CHRISTOPHER S. BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California JOHN WARNER, Virginia
RON WYDEN, Oregon CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
Andrew W. Johnson, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
----------
June 19, 2007
Opening Statements
Page
Rockefeller, Hon. John D. IV, Chairman, a U.S. Senator from West
Virginia....................................................... 1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from
Missouri....................................................... 15
Warner, Hon. John, a U.S. Senator from Virginia.................. 16
Prepared statement........................................... 16
Witness Statement
Rizzo, John A., Central Intelligence Agency General Counsel-
Designate.................................................. 17
Prepared statement........................................... 20
Supplementary Materials
Senate Select Committee on Intelligence Questionnaire for
completion by Presidential nominees............................ 46
Response to pre-hearing questions for John A Rizzo............... 61
Letter dated March 16, 2006 from Marilyn L. Glynn, Acting
Director, Office of Government Ethics to the Honorable Pat
Roberts........................................................ 79
Financial Disclosure Report of John A. Rizzo..................... 80
Memorandum dated December 7, 2005 from John A. Rizzo regarding
ethics agreement............................................... 83
Letter dated July 10, 2006 from Anthony A. Lapham, former CIA
General Counsel................................................ 4
Letter dated April 27, 2007 from Jeffery H. Smith, former CIA
General Counsel................................................ 6
Letter dated May 8, 2007 from Tom Malinowski, Elisa C. Massimino,
and Morton H. Halperin of Human Rights Watch and Human Rights
First.......................................................... 8
December 2004 statement by President George W. Bush regarding
renditioning policy............................................ 34
NOMINATION OF JOHN A. RIZZO TO BE
GENERAL COUNSEL OF THE CENTRAL
INTELLIGENCE AGENCY
----------
TUESDAY, JUNE 19, 2007
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 2:35 p.m., in
room SD-106, Dirksen Senate Office Building, the Honorable Jay
Rockefeller (Chairman of the Committee) presiding.
Present: Senators Rockefeller, Feinstein, Wyden, Bayh,
Feingold, Whitehouse, Levin, Bond, Warner, and Snowe.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A
U.S. SENATOR FROM WEST VIRGINIA
Chairman Rockefeller. The hearing will come to order on the
nomination of John A. Rizzo to be General Counsel of the
Central Intelligence Agency.
Today the Committee meets to consider the nomination of
said Mr. John Rizzo to be General Counsel. Mr. Rizzo, we
welcome you today. Before we proceed to the opening statements
and questions, I want to recognize Mr. Rizzo's wife, Sharon,
who is accompanying him.
Mr. Rizzo, would you like to introduce any other members of
your family?
Mr. Rizzo. Yes, thank you, Mr. Chairman.
Next to my wife, Sharon, is my son, James. Next to James is
my sister, Nancy, who has traveled a considerable distance to
be here. Next to Nancy is my step-daughter Stephanie Breed.
Chairman Rockefeller. Well, we welcome you. The Vice
Chairman and I both welcome you.
I also want to welcome our valued colleague, the
distinguished senior Senator from the State of Virginia, who
will be introducing Mr. Rizzo in just a moment.
Mr. Rizzo has worked in government service his entire
career, and has spent the last 31 years at the Central
Intelligence Agency. Starting as an attorney at the CIA's
Operations and Management Law Division in 1976, Mr. Rizzo moved
through a variety of offices within the Office of General
Counsel. He also spent 1\1/2\ years in the CIA's Office of
Inspector General, and more than 2 years in the CIA's Office of
Congressional Affairs, where he was responsible for
coordinating, in that position, CIA communications with the
congressional committees investigating the Iran-Contra affair.
In March 1995, he was named Senior Deputy General Counsel. John
Rizzo has twice served as acting General Counsel when the
General Counsel position became vacant--once from November of
2001 to October of 2002, and again from August of 2004 to this
day.
Mr. Rizzo, we would like to thank you for your long
government service. We do appreciate it. We often fail to say
that.
To understand why we are here today, it's important that we
look at both the responsibilities of the CIA and the historical
role of the CIA's General Counsel. The CIA's intelligence
capabilities help us protect what we hold as fundamental to the
American way of life. Yet even with today's great and immediate
intelligence challenges, the CIA must constantly reaffirm the
American principles of commitment to law, integrity and
accountability. The CIA's General Counsel is at the heart of
this balancing act.
Although the person selected to fill this position has only
required the advice and consent of the Senate since 1996, key
committees have long recognized the importance of having an
independent general counsel who has the backing of a
Presidential appointment and Senate confirmation. In 1976, the
Church Committee recognized the ``extraordinary
responsibilities of the CIA's General Counsel to ensure that
CIA activities are consistent with the Constitution and law of
the United States.'' The Church Committee, therefore,
recommended that the CIA General Counsel be nominated by the
President and confirmed by the Senate to protect the General
Counsel's ``independence of judgment.''
In 1987, the Iran-Contra Committees concluded that the
abuses of Iran-Contra stemmed in part from the misguided
perception of certain government officials that worthy ends
could justify violations of the law. The Iran-Contra Committees
rejected this notion and instead recommended strengthening the
role of the CIA General Counsel by requiring Senate
confirmation.
Congress ultimately acknowledged the importance of having a
Senate-confirmed General Counsel in 1996, as I indicated. In
amending the Central Intelligence Agency Act of 1949, Congress
accepted the Senate Intelligence Committee's report that the
confirmation process enhances accountability and strengthens
the oversight process.
Over a decade later, today's hearing is timely in
addressing the difficult issues of accountability and
oversight. As a country, we are struggling to find the
equilibrium between fighting terrorism and protecting the
liberties and the rule of law that define us as a nation. On
the one hand, we do not want to deny CIA officers the tools
they need to do their job. On the other, we must recognize that
democracy and American values are at risk if we fail to live up
to our ideals.
The weight of this balance, interestingly, falls heavily on
the shoulders of the General Counsel alone. As the CIA's
activities are largely carried out in secret, the General
Counsel often makes legal decisions without the benefit of
public debate or the constraints of public scrutiny. By
necessity, the public must therefore trust that the person in
that position will ensure that the CIA's activities are
consistent with both the spirit and the letter of the
Constitution and the laws of the United States.
Our country must have faith that the intelligence
professionals working to defend us have a General Counsel who
defends them by ensuring that they receive lawful guidance.
However difficult it may be to draw legal lines, it cannot be
those on the front lines who suffer from legal uncertainty.
Equally so, it is those officers who suffer when the
institutional integrity of the agency is weakened by
questionable legal decisions. Public trust and professional
respect are earned by navigating these very difficult paths.
Ensuring that the CIA follows the law is important to
protect not just the CIA and its intelligence officers, but
also to protect the image of the United States. Our
international security depends on upholding our ideals upon a
world stage.
Although the Attorney General, through the Department of
Justice and the Office of Legal Counsel, is ultimately
responsible for the legal decisions of the executive branch,
the CIA's General Counsel has a responsibility to the CIA as an
institution that the Attorney General does not share.
The CIA General Counsel simply cannot rely on others to
make those legal decisions. The General Counsel must make
independent, sound legal assessments to determine what will
best serve the CIA over the years to come. The Committee has a
duty to make sure that the nominee sitting at that desk has the
qualities necessary to fill that important role.
Mr. Rizzo, we look forward to hearing your views about both
past challenges and the CIA's future conduct. Your stewardship
during recent years as acting General Counsel provides you with
a unique insight into that position.
Following the open session, we will further explore the
Office of General Counsel's role in important matters in recent
years in the closed portion of our hearing. The Committee has
received letters of support for Mr. Rizzo's nomination from a
number of his colleagues over the years, including CIA General
Counsels Anthony Lapham, who was one of my closest friends
throughout life, and Jeffrey Smith.
Mr. Lapham, who sadly passed away last year, served as CIA
General Counsel in the midseventies and saw the CIA through the
Church Committee's investigations of its activities. Mr. Smith
served as CIA General Counsel from 1995 to 1996 and has since
been actively involved in the public debate on intelligence
issues.
We also received letters expressing concern about Mr.
Rizzo's nomination from Human Rights Watch, Human Rights First,
and the Open Society Policy Center. I ask unanimous consent
that these letters be placed into the record. Without
objection, it is so ordered.
[The letters regarding Mr. Rizzo's nomination follow:]
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Chairman Rockefeller. I now recognize our distinguished
Vice Chairman Bond.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A
U.S. SENATOR FROM MISSOURI
Vice Chairman Bond. Thank you very much, Mr. Chairman, and
I join with all my colleagues in wishing you happy birthday.
But due to popular demand, I will not lead singing. Mr.
Chairman, I'm not going to give away how old you are. But if I
remember Missouri law correctly, if you were a Missourian, you
would qualify under the State Historic Preservation Act as an
historic artifact. And I want to congratulate you on achieving
that distinguished goal.
[Laughter.]
Vice Chairman Bond. A very special welcome to John Rizzo
and his family, and we're delighted to have all of them with
you today.
Friends, the events of September 11 clearly were a turning
point for our intelligence community. Faced with an enemy
determined to do harm to our country and our citizens, our
intelligence agencies had to adapt to new operational and legal
challenges, as well as more public scrutiny. The Central
Intelligence Agency has been no exception. Its task of finding
innovative ways to provide accurate and real-time intelligence,
and to identify and neutralize those with militant ideologies
threatening us, cannot be understated. It's within that context
that the Committee begins this hearing today.
As the CIA adapts its methods and priorities to fight the
war on terror, its intelligence collectors and analysts must be
fully instructed on and follow the Constitution and the laws of
our land. In other words, they need good, strong legal
guidance. Therefore, it's essential that we have a visible,
accountable, and permanent leader within the legal ranks of the
CIA.
And Mr. Chairman, I'm very pleased that we're having this
hearing, because it's been well over 2 years since the previous
General Counsel left the CIA. Mr. Rizzo has occupied that post
as acting General Counsel during that period. It's time that we
have a permanent General Counsel confirmed by the Senate.
Now Mr. Rizzo comes before us having spent most of his
professional career as an agency attorney handling a variety of
assignments. And I'm sure that he will explain what unique
perspectives and experiences he can bring to the General
Counsel position. I expect there will be many questions about
decisions that have been made either by Mr. Rizzo or by other
attorneys under his leadership.
I also expect that there may be concerns among some
Members, because we don't have certain documents. We can
discuss that further in a closed setting. I believe we have
received an unprecedented amount of documents, and we have had
access that we have never had before, and I'm grateful for your
help in that. As far as the closed hearing, I encourage our
Members to refrain from raising classified matters, even
indirectly, until we move to the closed session.
And I would urge Mr. Rizzo, if he feels that the answer
must be given in closed session, to do so.
The purpose of the hearing today is not for us to make
political statements, but for us to engage with the nominee on
his thoughts, experiences and background, and qualifications
for the post to which he's nominated.
Mr. Chairman, I believe it's important that the Committee
act on this nomination, that we give Mr. Rizzo a full and fair
hearing, and move his nomination to the floor.
Mr. Rizzo, again, we thank you for your service. We
congratulate you on your nomination and look forward to your
testimony.
Thank you, Mr. Chairman.
Chairman Rockefeller. I now recognize the Honorable Senator
Warner, who will introduce the nominee.
STATEMENT OF HON. JOHN WARNER, A U.S. SENATOR FROM VIRGINIA
Senator Warner. Thank you, Mr. Chairman, Senator Bond, and
colleagues on the Committee.
I deem it a privilege to introduce this fine public
servant. The Chairman and Ranking Member have given detailed
biographical summaries of this nominee's distinguished career,
and therefore I will not further go into the facts, and ask
that my statement be put into the record.
Chairman Rockefeller. It will be done.
Senator Warner. But we have before us one of the most
seasoned, tested public servants still on active duty, so to
speak, and I think it's marvelous that he and his family are
willing to step up and take on this position. He's been in an
acting position for some time.
But, I'd say to my colleagues, you've covered all the
facts, but I want to mention one other thing, and that is he
has been the recipient of a number of awards during his career,
perhaps most notably the Thomas C. Clark Award from the Federal
Bar Association in 1996. Those of us who are members of the Bar
would take due note of this. This is a highly competitive award
that recognizes the single--I repeat, the single--most
outstanding lawyer in the U.S. Government each year. He won
that in 1996. He is the only attorney from the intelligence
community to ever receive this award. Quite an achievement. He
also received the CIA Director's Award in 2002, 2004 and 2006
for his service as acting General Counsel.
So I think, quite wisely, we should begin this open
session, to the extent that colleagues wish to ask questions
that can be answered here and then, as the Ranking Member said,
begin the closed session because I and others are anxious to
consider the Military Commissions Act, which was passed last
October. I had a hand in that bill. And it requires this
country to take due note of international treaties and so
forth, and that work is now under way in our Administration and
perhaps we can learn further from this nominee in the course of
the closed hearing.
So I thank the Chair and the Members of the Committee.
You're on your own, my good friend.
Mr. Rizzo. Thank you, sir.
[The prepared statement of Senator Warner follows:]
Prepared Statement of Hon. John Warner
Chairman Rockefeller, Vice Chairman Bond, distinguished colleagues;
it is my pleasure to introduce to you today a great public servant and
intelligence professional--Mr. John A. Rizzo--who has been nominated to
serve as General Counsel for the Central Intelligence Agency. Mr. Rizzo
has a long record of service to the nation, particularly in the great
Commonwealth of Virginia, and I welcome him here today.
family
I would like to recognize Mr. Rizzo's family who is here to support
him today as they have supported him during his long and distinguished
career in service to our nation. Mr. Rizzo is joined today by his wife
Sharon, his son James, and his sister Nancy. I am pleased to welcome
them as well.
career highlights
Mr. Rizzo has been a career public servant. Before joining the
Central Intelligence Agency, he practiced law for 2 years for the U.S.
Department of Treasury's Office of General Counsel, specializing in
enforcement, customs, and narcotics issues.
Mr. Rizzo joined the CIA in 1976 and began a long and distinguished
career, where he has spent over 32 years practicing law in the Agency's
Office of General Counsel. In 1995, Mr. Rizzo was named Senior Deputy
General Counsel, which is the second highest legal position in the
Agency. He also has served as Acting General Counsel on several
occasions--most recently from July 2004 to the present. In that role he
has been responsible for all legal issues regarding the initiation and
implementation of intelligence collection and cover action operations.
For the past 10 years he has served as the Senior Designated Agency
Ethics Official.
Mr. Rizzo has considerable experience working with the Congress. He
served as Deputy Director of the Office of Congressional Affairs from
1986 to 1989, and was the Agency's lead counsel in dealing with the
House and Senate Committee's investigating Iran-Contra. For this work,
he received CIA's Distinguished Officer in the Senior Intelligence
Service Award in 1987.
awards and recognition
Mr. Rizzo has been the recipient of a number of other awards during
his career, perhaps most notably, the Thomas C. Clark award from the
Federal Bar Association in 1996. This highly competitive award
recognizes the single most outstanding lawyer in government each year.
He is the only attorney from the Intelligence Community to ever receive
this award--quite an achievement. Mr. Rizzo also received the CIA
Director's Award in 2002, 2004, and 2006 for his service as Acting
General Counsel.
academic credentials
Mr. Rizzo earned his undergraduate degree in Political Science from
Brown University in 1969 and graduated cum laude from George Washington
University Law School in 1972.
summary
In short, Mr. Rizzo has a long and distinguished record of service
to the intelligence mission of this country, and I am very pleased to
introduce him to the Committee today.
Chairman Rockefeller. Thank you, Senator Warner.
Mr. Rizzo, you may now proceed with your statement, sir.
STATEMENT OF JOHN A. RIZZO, CENTRAL INTELLIGENCE AGENCY GENERAL
COUNSEL-DESIGNATE
Mr. Rizzo. Mr. Chairman and Mr. Vice Chairman, at the
outset, let me express my appreciation to you and to the
Committee for giving me the opportunity to appear before you
today. I am aware of the Committee's heavy workload this
session, covering an array of significant policy issues, and I
am grateful that you have found the time to consider my
nomination.
I also want to give special thanks to Senator Warner for
his presence and his generous introduction, especially given
the fact that I am not a Virginia resident. But having served
many years in Langley, I feel a quasi-citizenship to that
State.
With the Committee's permission, I will now read a brief
opening statement and will submit a more detailed statement for
the record. I come here today halfway through my 32nd year of
service as a lawyer for the Central Intelligence Agency. Put it
another way, I have spent more than half of my life as a CIA
attorney. Accordingly, while I was honored and gratified when
the President first nominated me a little over a year ago, I do
not consider myself to be a political appointee in the usual
sense of that term, and indeed I do not consider myself a
political person. I am first and foremost a career public
servant and CIA officer.
My situation as I appear before you today is unique. Over
the past 35 years, every previous General Counsel, whether
Senate- confirmed or otherwise, was new to the Agency. If
confirmed, I would be the first CIA General Counsel ever to
come up through the ranks. I do not take this distinction
lightly.
To put the span of my CIA career in brief chronological
perspective, in January 1976, armed with a grand total of 3
years' legal experience, I joined the Office of General
Counsel. It was a critical juncture for CIA as an institution.
The Church Committee, the Rockefeller Commission, and other
investigative bodies had just finished exposing controversial
and often troubling CIA activities in years gone by and were
recommending massive legal and policy reforms at CIA. The
congressional intelligence committees were about to be born,
subjecting the Agency to real legislative oversight for the
first time in its history.
George H.W. Bush was the CIA Director when I came on board,
the first of 10 CIA Directors under whom I have served. There
were 18 other lawyers at the Agency in 1976; today, we are well
over a hundred lawyers, and we expect our staff to grow even
larger for the foreseeable future.
Upon my arrival, and frankly, despite still having no idea
what I was really getting myself into, I was immediately
immersed in the incredibly diverse nature of CIA's legal
practice. While it is fair to say I have spent the bulk of my
career providing guidance on CIA's conduct of covert
operations, I have also had to address issues in areas ranging
from administrative and contract law to environmental and tax
law, not to mention being in the middle of an always active and
burgeoning litigation caseload.
The CIA has had its equities and information at stake in
virtually every major terrorist prosecution in the last two
decades, along with a large number of other high-profile
criminal cases.
Overall, I can't think of a more stimulating, challenging,
important and rewarding place to work as a lawyer, and I have
loved going to work every day of my 30-plus years at CIA. So,
by any measure, I am not new to the world of national security
law. I come with a track record of more than three decades of
experience with national security legal issues. I consider that
to be a significant and unprecedented plus for a nominee to
this job, and I hope that by the end of this process, the
Committee concludes that as well.
Mr. Chairman, I will be responsive and forthcoming in
answering your questions in this open session. I suspect the
Committee will have questions, especially with respect to legal
issues I have been involved in in this post-9/11 era, which I
can only address in closed session. Again, however, I pledge to
be informative and candid in responding to those questions.
Let me briefly address one substantive issue in my remarks,
and that is the crucial issue of congressional oversight of
intelligence activities. Until now, the seminal event in my CIA
legal career took place two decades ago when I was the Agency's
focal point in dealing with the joint congressional committee
investigating the Iran-Contra Affair. As the year-long probe
played out, I saw firsthand the tremendous damage my Agency
sustained, and all of it stemmed from the fact that as an
institution, the CIA had kept the Intelligence Committees in
the dark about a significant high-risk covert action program.
Worse yet, a few senior CIA officers, people I had worked with
and admired for years, wound up being prosecuted for misleading
Congress about their roles in the program. Their careers were
ruined. The Agency's reputation was sullied. Overall, morale at
CIA plunged and it took years for the Agency to rebuild its
relationship with this Committee and its House counterpart.
The lesson I learned from seeing up close all the damage
from Iran-Contra has been lasting and indelible to me. It is
this. CIA courts disaster whenever it loses sight of the
absolute necessity to inform the intelligence committees on a
timely basis what they need to know in order to perform
effective, constructive oversight.
I say that not just because that is what the law requires,
and not just because it is wise policy, and not just because
it's something I think the Committee wants to hear. There is
yet another compelling, if coldly pragmatic reason that Iran-
Contra brought that lesson home to me, and it is this. The more
the committees know about what CIA is doing, the more you are
invested in the process, and the more frankly you will be
willing and able to protect and defend CIA from the uninformed
and often false charges of wrongdoing that seem to inevitably
come our way from those on the outside. It is in that spirit of
openness and candor that I will endeavor to address the
Committee's questions, not just today, but down the road as
well, if the Senate ultimately sees fit to confirm me as CIA
General Counsel.
Mr. Chairman, I recognize that a major focus of the
Committee's attention in considering my nomination will be my
role in the Agency's actions undertaken in the counterterrorist
arena in the years following the 9/11 attacks. This is as it
should be. After all, I have served as the CIA's acting General
Counsel approximately 4 out of those 5\1/2\ eventful years. As
I noted at the outset, much of this discussion necessarily must
be reserved for a closed session. For now, I can say that this
period has been the most rewarding in terms of service to this
country, but by far the most challenging of my three-plus
decades of practicing law at the CIA. While being a CIA lawyer
has never been dull, the legal issues the Agency has had to
contend with over the last 5 years would have been
unprecedented and largely unimaginable to me on September 10,
2001. A couple of brief examples.
In the operational arena, CIA, in my experience, had never
before been authorized to detain and interrogate an individual
believed to be holding vital national security information. In
the foreign intelligence collection arena, CIA had never before
been authorized to collect more volumes of information from
exponentially more sources, and to analyze and share that
information faster with our counterparts in the law enforcement
community, State and local governments, as well as our foreign
partners.
While only a very small portion of that information dealt
with individual Americans, we had to be then, and must continue
to be constantly mindful of the privacy rights of our fellow
citizens. These were uncharted territories for me, for the
Office of General Counsel, and indeed, for the U.S. Government
as a whole, and we have had to navigate on one of the most
difficult legal and policy terrains imaginable, in close
consultation with legal experts throughout the Government.
Throughout it all, my mission has been to decide every
issue coming my way in accordance with one basic overriding
principle that I have followed my entire CIA career. It is
this--to facilitate CIA's discharge of its vital mission to
protect the national security and the American people in a
manner that at all times is faithful and in full compliance
with the Constitution, U.S. law, and U.S. obligations under
international treaties.
Finally, Mr. Chairman, let me briefly address a question
several long-time colleagues posed to me shortly after my
nomination was announced, which was, why, as a career CIA
lawyer for three decades, would you want to give up that status
after all those years to become a political appointee subjected
to the rigors and uncertainty of that entire process?
Well, for me, it came down to two basic reasons. First, it
is simply a great job. The work is as important as it gets. The
palpable sense of contributing something to protect the
Nation's security is there every day. And, as hard as it
sometimes gets, I have always considered it to be the best job
I could ever have.
Second, I would respectfully suggest that the unprecedented
fact of a career CIA lawyer coming up the ranks and becoming
General Counsel sends a significant symbolic message to our
constantly growing, ever-younger office. Namely, it says to a
new lawyer coming on board that if he or she makes a commitment
to a CIA career, works conscientiously and hard, even as
administrations come and go, and maybe catches a few breaks
along the way, then he or she could realistically aspire to be
the General Counsel of what I consider to be the most vital
agency in the U.S. Government in protecting the citizens of the
United States. For me, establishing that precedent would be an
immensely gratifying legacy.
Mr. Chairman, that concludes my statement, and I welcome
the Committee's questions.
[The prepared statement of Mr. Rizzo follows with
attachment.]
Prepared Statement of John S. Rizzo
Mr. Chairman and Mr. Vice Chairman:
At the outset, let me express my appreciation to you and to the
Committee for giving me the opportunity to appear before you today. I
am aware of the Committee's heavy workload this session, covering an
array of significant policy issues, and I am grateful that you have
found the time to consider my nomination.
I come here today halfway through my 32nd year of service as a
lawyer for the Central Intelligence Agency. Put another way, I have
spent more than half of my life being a CIA attorney. Accordingly,
while I was honored and gratified when the President first nominated me
a little over a year ago, I do not consider myself to be a political
appointee in the usual sense of that term, and indeed I do not consider
myself a political person. I am first and foremost a career public
servant and CIA officer.
My situation, as I appear before you here today, is unique. Over
the past 35 years, every previous General Counsel--whether Senate-
confirmed or otherwise--was new to the Agency. If confirmed, I would be
the first CIA General Counsel ever to come up through the ranks. I do
not take this distinction lightly.
To put the span of my CIA career in brief chronological
perspective, in January 1976, armed with a grand total of 3 years legal
experience, I joined the Office of General Counsel. It was a critical
juncture for CIA as an institution. The Church Committee and other
investigative bodies had just finished exposing controversial and often
troubling CIA activities in years gone by and were recommending massive
legal and policy reforms at CIA. The Congressional intelligence
committees were about to be born, subjecting the Agency to real
legislative oversight for the first time in its history. George H. W.
Bush was the CIA Director when I came on board, the first of 10 CIA
Directors under whom I have served. There were 18 other lawyers at the
Agency in 1976--today we have well over 100 lawyers, and we expect our
staff to grow even larger for the foreseeable future.
Upon my arrival, and frankly, despite still having no idea what I
was getting myself into, I was immediately immersed in the incredibly
diverse nature of CIA's legal practice. While it is fair to say that I
have spent the bulk of my career providing guidance on how CIA conducts
covert operations, I have also had to address issues in areas ranging
from administrative and contract law to environmental and tax law--not
to mention being in the middle of an always active and burgeoning
litigation case load. CIA has had its equities and information at stake
in virtually every major terrorist prosecution in the last two decades,
along with a surprisingly large number of other high profile criminal
cases. For the Committee's reference, attached at Tab A is a detailed
summary of the scope of legal work performed by the Office of General
Counsel. Overall, I cannot think of a more stimulating, challenging,
important, and rewarding place to work as a lawyer, and I have loved
going to work every day of my 30 plus years at CIA.
So, by any measure, I am not new to the world of national security
law. I come with a track record of more than three decades of
experience. I consider my long experience with national security legal
issues to be a significant and unprecedented plus for a nominee to this
job, and I hope that by the end of this process the Committee concludes
that as well.
I will be responsive and forthcoming in answering your questions in
this open session. I suspect that the Committee will have questions--
especially with respect to legal issues I have been involved with in
this post-9/11 era--which I can only address in closed session. Again,
however, I pledge to be informative and candid in responding to those
questions.
Let me briefly address one substantive issue in my remarks, and
that is the crucial issue of Congressional oversight of intelligence
activities. Until now, the seminal event in my CIA legal career took
place two decades ago, when I was the Agency's focal point in dealing
with the joint Committee investigating the Iran/Contra Affair. As the
year-long Congressional probe played out, I saw first-hand the
tremendous damage my Agency sustained, and all of it stemmed from the
fact that, as an institution, CIA had kept the Intelligence Committees
in the dark about a significant, high-risk covert action program. Worse
yet, a few senior CIA officers--people I had worked with and admired
for years--wound up being prosecuted for misleading Congress about
their roles in the program. Their careers were ruined, the Agency's
reputation was sullied, overall morale at CIA plunged, and it took
years for the Agency to rebuild its relationship with this Committee
and its House counterpart.
The lesson I learned from seeing up close all the damage from Iran/
Contra has been lasting and indelible to me: It is this: that CIA
courts disaster whenever it loses sight of the absolute necessity to
inform the intelligence committees on a timely basis what they need to
know in order to perform effective, constructive oversight. I say that
not just because that is what the law requires; not just because it is
wise public policy; and not just because I think it is something the
Committee wants to hear. There is yet another compelling, if coldly
pragmatic reason that Iran/Contra brought that lesson home to me. The
more the Committees know what CIA is doing, the more you are invested
in the process, and the more, frankly, the Committees will be willing
and able to protect and defend CIA from the uninformed and often false
charges of wrongdoing that seem to inevitably come our way from those
on the outside. It is in that spirit of openness and candor that I will
endeavor to address the Committee's questions--not just today, but down
the road as well, if the Senate ultimately sees fit to confirm me as
CIA General Counsel.
I recognize that a major focus of the Committee's attention in
considering my nomination will be my role in those Agency actions
undertaken in the counterterrorist arena in the years following the 9/
11 attacks. This is as it should be--after all, I have served as CIA's
Acting General Counsel approximately four out of those five and one-
half eventful years. As I noted at the outset, much of this discussion
necessarily must be reserved for a closed session. For now, I can say
that this period has been the most rewarding (in terms of service to
this country), but by far the most challenging of my three plus decades
of practicing law at the CIA. While being a CIA lawyer has never been
dull, the legal issues the Agency has had to contend with over the past
5 years would have been unprecedented and largely unimaginable to me on
September 10, 2001.
For example, in the operational arena, CIA in my experience had
never before been authorized to detain and interrogate an individual
believed to be holding vital national security information.
Additionally, in the foreign intelligence collection arena, CIA had
never before been authorized to collect more volumes of information
from exponentially more sources and to analyze and share that
information faster with our counterparts in the law enforcement
community, state and local governments, and our foreign partners. While
only a very small portion of that information dealt with individual
Americans, we had to be and must continue to be constantly mindful of
the privacy rights of our fellow citizens.
These were unchartered territories for me, the Office of General
Counsel, and indeed, for the US government as a whole. We have had to
navigate on one of the most difficult legal and policy terrains
imaginable in close consultation with legal experts throughout the US
government. Throughout it all, my mission has been to decide every
issue coming my way in accordance with one basic overriding principle
that I have followed my entire CIA career: To facilitate CIA's
discharge of its vital mission to protect the national security and the
American people in a manner that at all times is faithful and in full
compliance with the Constitution, U.S. law, and U.S. obligations under
international treaties.
Of course, the Committee deserves to know not just what I have done
over the years as a CIA lawyer, but also, more importantly, what my
vision would be for the Office of General Counsel if confirmed in this
position. In the interest of time, I will briefly touch on two
objectives I consider crucial to ensure my office remains effective in
the future.
First, I intend to continue to press forward my on-going efforts to
increase the Office of General Counsel's presence and profile in all
parts of CIA. As I indicated earlier, we have about six times as many
lawyers here now than on the day I joined. That growth is due largely
to our success in placing our lawyers ``on the scene'' in every
component at CIA Headquarters to provide close support and counsel for
CIA officers, as well as to serve as the General Counsel's ``eyes and
ears''. The lawyers' presence is not only tolerated by our clients--but
they want them there and they want more of them. To me, fostering this
attitude and trend is extremely important for any number of reasons, so
I am determined to continue in that direction.
Second, as our office gets ever larger, I want our legal work force
to be ever more diverse. I am proud that historically we have never
followed a ``cookie cutter'' approach to hiring--we bring newly minted
lawyers on from law schools all over the country, as well as
experienced practioners from private law firms, military JAGS, and from
other government agencies. In addition, more than half our attorneys
are women, and roughly 15 percent are minorities. I am encouraged that
these numbers represent a steady improvement for OGC in this area in
recent years. Even so, we need to do a better job of attracting
minorities, and I hope to devote my personal attention and focus in
this direction if I am confirmed.
Finally, let me briefly address a question several longtime
colleagues posed to me shortly after my nomination was announced, which
is, ``Why, as a career CIA lawyer for three decades, would you want to
give up that status after all those years to become a ``political''
appointee subjected to the rigors and uncertainties of that entire
process?'' For me, it came down to two basic reasons;
First, it is simply a great job. The work is as important as it
gets, the palpable sense of contributing something to protect the
nation's security is there everyday and as hard as it sometimes gets, I
have always considered it to be the best job I could ever have. Second,
I would respectfully suggest that the unprecedented fact of a career
CIA lawyer coming up the ranks and becoming General Counsel sends a
significant symbolic message to our constantly growing, ever younger
office. Namely, it says to a new lawyer coming on board that, if he or
she makes a commitment to a CIA career, works conscientiously and hard
even as Administrations come and go, and maybe catches a few breaks
along the way, then he or she can realistically aspire to be the
General Counsel of what I consider to be the most vital Agency in the
US government in protecting the citizens of the United States. For me,
establishing that precedent would be an immensely gratifying legacy.
And, I would humbly submit, it would be a healthy thing for the Office
of General Counsel, the Agency, and ultimately, the country.
______
Scope of the Office of General Counsel
administrative law division
The General Counsel is responsible for the Agency's ethics program.
The attorneys in the Administrative Law Division (ALD) provide guidance
to present and former Agency personnel regarding the requirements of
Government-wide and Agency-specific ethics statutes and regulations.
Like other government organizations, we also have an Ethics Compliance
program to ensure financial disclosure forms are timely completed and
reviewed, and that we meet Office of Government Ethics (OGE) annual
training requirements. In fact, OGE recognized our ethics program in
March 2007 with a Program Award.
In addition to advising on ethics issues, ALD attorneys also
provide advice on the full range of administrative law questions, such
as the proper expenditure of appropriated funds, the payment of travel
expenses, the provision of training at Government expense, and the
lawful use of deadly force by Agency personnel. ALD also represents the
Agency in administrative equal employment opportunity (EEO) cases as
well as provides EEO awareness training to Agency employees. Finally,
ALD attorneys provide legal advice to Agency managers on Human
Resources matters ranging from recruitment to retirement to diversity
hiring, and in tragic cases, advise the Agency's casualty officer about
the benefits available to the survivors of Agency personnel who die in
the line of duty.
contract law division
The Contract Law Division advises the Agency's Office of the
Procurement Executive and the Office of Acquisitions in all aspects of
the Agency mission on government contract matters. The lawyers in this
division provide legal advice during the solicitation, evaluation, and
negotiation of contracts, including review of source selection
documentation and sole source justifications, and the final contract
documents. Contract Law Division is responsible for representing the
Agency in contract award protests (generally adjudicated by the
Government Accountability Office) and contract performance disputes
(generally adjudicated by a Board of Contract Appeals). In addition to
advising on all aspects of contract formation, the Division attorneys
advise on the administration of the contracts and all contract-related
issues, including contract-related fiscal law, intellectual property,
and organizational conflict of interest issues. The division attorneys
also advise on all Agency real estate-related transactions, including
construction and the leasing of real property.
Contract Law Division also provides legal advice on environmental,
safety, and health compliance issues for the Office of Medical
Services' Environmental Safety Group (ESG), and advice on matters
related to hazardous materials shipments. There is interaction with
Department of Transportation to obtain regulatory permits (waivers) for
activities, as needed. Contract Law Division also advises the Agency on
copyright law and other intellectual property areas, and the settlement
of Federal Tort Claims Act (automobile) and Military Personnel and
Civilian Employees' Claims Act (personal property) claims.
intelligence support division
The Intelligence Support Division (ISD) provides legal analysis on
general legal issues relating to CIA operational activities. It
supports and complements the Operations Division of OGC, which provides
specific legal oversight of specific operational activities. ISD
focuses on issues arising under the Fourth Amendment to the U.S.
Constitution, various statutes protecting the privacy interests of U.S.
persons, Executive Order 12333 and various CIA regulations intended to
ensure that Agency operational activities remain in accordance with
U.S. law and the Executive Order. ISD focuses primarily on issues ``of
first impression,'' and one of ISD's primary responsibilities is to
review new types of intelligence collection activities--particularly
technical collection activities--to ensure that such activities comply
with applicable law and regulations.
ISD also provides legal expertise in specialized areas of the law--
including guidance on tax, import and export issues and certain issues
of foreign or international law.
litigation division
Litigation Division handles all of the litigation involving the
Central Intelligence Agency or any of its employees where those
employees' involvement is due to actions taken in their official
capacity. Litigation Division's work encompasses both civil and
criminal litigation. On the civil side, Litigation Division handles
cases in which the CIA or its employees (in their official capacity)
have been sued. These cases consist primarily of Freedom of Information
Act and Privacy Act cases, Federal Tort Claims Act cases, employment
related cases (such as Equal Employment Opportunity Act, Administrative
Procedure Act, Bivens, and prepublication review cases), and cases
regarding contracts.
On the criminal side, the Division is involved in unauthorized
disclosure cases in which the classified information that was
compromised belongs to the CIA. The Division also represents the CIA's
interests in criminal cases where the Agency has information that is
discoverable to a defendant. Terrorism cases and narcotics cases
comprise most of this category. In these cases, CIA uses the Classified
Information Procedure Act to protect the classified information at
issue.
Lastly, the Division handles criminal cases in which a defendant is
making a claim that his criminal conduct was authorized by the United
States government generally and CIA in particular, i.e. the public
authority defense.
operations division
Operations Division is the focal point for questions involving the
legality and propriety of activities carried out by the National
Clandestine Service (NCS). The Division is charged with providing legal
counsel and guidance to the NCS on matters involving clandestine
intelligence collection and covert action, including matters arising
under the Congressional notification provisions of the National
Security Act. To serve the NCS more effectively, the attorneys in this
Division are co-located with the various divisions and centers within
the NCS.
The Division's establishment of rotational positions began in the
1980's with the placement of attorneys in newly created CIA centers for
counterterrorism and counternarcotics. Over time, OGC attorneys filled
positions in other CIA centers as well as all NCS geographical
divisions. Attorneys in these components serve as clearinghouses for a
broad spectrum of legal inquiries, including matters involving covert
action, EO 12333, asset recruitment and termination, export control,
support to law enforcement, litigation, Congressional notification,
contracts, and administrative and personnel issues. OD also assists NCS
components responsible for maintaining the proprietary and cover
arrangements required to support Agency operations.
office of the chief financial officer
The CFO Legal unit provides legal advice and counsel to the Office
of the Chief Financial Officer (including the Office of the Procurement
Executive) and to other Agency components, on a wide range of
appropriations and fiscal law topics. These include, but are not
limited to: Federal and Agency budget formulation and execution; Anti-
Deficiency Act; use of expired (prior year) funds; covert action
resource issues; certain lease and construction issues; Economy Act;
reprogramming of funds; Federal Managers' Financial Integrity Act;
Agency's audited financial statements process; and, Congressional
notification or reporting requirements and directions concerning
certain of the preceding matters. The CFO Legal team also provides
guidance (in coordination with Administrative Law Division) to the
Office of the CFO on Federal employee ethics.
CFO Legal reviews and authorizes proposed Agency regulations on
financial administration and acquisition, and reviews and coordinates
on all other proposed regulations and notices before they are
published. On behalf of the CFO, CFO Legal reviews and comments on a
broad spectrum of draft Intelligence Community policy documents, and on
legislation or similar legislative materials as requested by the
Agency's Office of Congressional Affairs. CFO Legal also provide
modules of legal instruction as part of various budget and resource
management courses offered to CIA employees.
office of the chief information officer
The attorneys that provide legal support to the Agency's Chief
Information Officer (CIO) do so for the diverse components within the
Office of the CIO, the CIA Privacy and Civil Liberties Program, the
global communications activities .of the Directorate of Support, the
Center for the Study of Intelligence, and the DNI's Open Source Center.
CIO Legal provides guidance on legal issues relating to information
technology, global communications, privacy and civil liberties, the
classification and declassification of national security information,
prepublication review, information sharing, records management, and
information review and release programs mandated by law.
office of congressional affairs/legislation group
Legislation Group is part of the Office of Congressional Affairs
(OCA). The group provides legislative drafting, monitoring and advice
to the Director of the Central Intelligence Agency (D/CIA) and to the
Central Intelligence Agency (CIA). The group's primary functions
include: Preparing and coordinating the CIA's annual draft of the
Intelligence Authorization Act; monitoring draft, introduced, and
pending legislation, and related reports, letters, or testimony to
determine the potential impact upon the CIA and its activities, and
coordinating Agency positions on legislation that would affect Agency
equities; overseeing and having primary responsibility for the
provision of timely coordinated D/CIA responses to Legislative Referral
Memorandums from the Office of Management and Budget that seek CIA
concurrence and/or comments on various legislative proposals, draft
testimony, or Administration signing statements; monitoring the
Congressional Record and other sources daily for actions and items of
interest to the CIA, and keeping CIA leadership and other elements
informed, as appropriate, of major legislative developments; providing,
supervising or coordinating the legal advice provided to OCA; and,
briefing CIA training classes about Congress and Congressional
oversight.
Chairman Rockefeller. Thank you very much, Mr. Rizzo. And I
have four routine questions, which are always asked.
Mr. Rizzo, do you agree to appear before the Committee here
or in other venues when invited?
Mr. Rizzo. Yes, sir.
Chairman Rockefeller. Do you agree to send the Office of
General Counsel personnel here before the Committee and
designated staff when invited?
Mr. Rizzo. Yes. Yes, sir.
Chairman Rockefeller. Do you agree to provide documents or
any material requested by the Committee in order for it to
carry out its oversight and its legislative responsibilities?
Mr. Rizzo. Yes, sir.
Chairman Rockefeller. Will you work to ensure that all CIA
elements provide such material to the Committee when requested?
Mr. Rizzo. Yes, sir.
Chairman Rockefeller. Let me just start. You made an
interesting distinction as you spoke about 2000 and forwards
and 2000 and backwards. I'm not quite prepared to make that
distinction, if we do it in the proper way, which does not in
any way involve national security secrets or anything of that
sort. But there are some general questions I think that one can
ask that are of interest to this Committee, and so I will.
Without getting into any classified details of the CIA's
interrogation program, did you, as acting CIA General Counsel,
issue legal guidance, prior to the program's start, that the
program's interrogation techniques did not violate the Fifth,
Eighth or Fourteenth Amendments of the U.S. Constitution?
Mr. Rizzo. Yes, sir.
Chairman Rockefeller. Now, the ``yes, sir'' means that you
did, yes.
Did the Department of Justice issue a legal opinion prior
to the program's start that the interrogation techniques would
not constitute conduct of the type that would be prohibited by
the U.S. Constitution, and did you concur with this opinion?
Mr. Rizzo. The Department of Justice, before the program
began, did issue guidance relative to the issue of the program
by laying the terms of the torture statute. That at that time
was the extent of the legal guidance we received from the
Department of Justice prior to the program's initiation.
Chairman Rockefeller. OK.
As acting CIA General Counsel in 2002, did you issue legal
guidance that the interrogation techniques to be used by the
CIA were lawful under the Convention Against Torture and the
Geneva Convention?
Mr. Rizzo. In 2002, yes, sir.
Chairman Rockefeller. Both.
Mr. Rizzo. Yes, sir.
Chairman Rockefeller. Mr. Rizzo, during the operation of
the CIA detention and interrogation program, were you made
aware of any concerns expressed by CIA officers that they could
be exposed to criminal prosecution for their involvement in the
program?
Mr. Rizzo. I'm sorry--at the outset of the program or in
the course of the entire program?
Chairman Rockefeller. In the course of.
Mr. Rizzo. There have been some concerns so expressed, yes,
sir.
Chairman Rockefeller. We could discuss that in closed
session.
Mr. Rizzo. Yes, sir.
Chairman Rockefeller. You can refuse to answer if you
choose. What was the nature of these concerns, and what action
did you take to address them?
Mr. Rizzo. Well, it would be difficult to get into the
nature of the concerns. I think I'd just--if you don't mind, I
think I'd best address that in closed session.
Chairman Rockefeller. That is your right.
Final question from me, Mr. Rizzo. The Department of
Justice's Office of Legal Counsel drafted an unclassified memo
dated August 1, 2002 about standards of conduct under the
Convention Against Torture and the criminal prohibitions on
torture. That opinion concluded that physical pain amounting to
torture must be ``equivalent in intensity to the pain
accompanying serious physical injury such as organ failure,
impairment of bodily function, or even death,'' and that
prosecution under the criminal torture statue might be barred
``because enforcement of the statute would represent an
unconstitutional infringement of the President's authority to
conduct war.'' The opinion was later repudiated by the Office
of Legal Counsel.
Did you concur with the legal analysis in this memo?
If not, what portions did you disagree with?
Mr. Rizzo. I obviously was aware of that legal memo when it
was issued on August 1, 2002. I did not, certainly, object to
the memo. As with most legal memos, my reaction was it was an
aggressive, expansive reading, but I can't say that I had any
specific objections to any specific parts of it. I do agree
with the Department of Justice later analysis that the language
that you cited did appear overbroad for the issue that it was
intended to cover.
Chairman Rockefeller. Thank you, sir.
The Vice Chairman.
Vice Chairman Bond. Thank you very much, Mr. Chairman.
Mr. Rizzo, Senator Wyden and I have been seeking for some
time in this session, as Chairman Roberts and Vice Chairman
Rockefeller did in the past session, an unclassified, redacted
version of the executive summary of the June 2005 CIA's
Inspector General's report on accountability in terrorist
attacks. This was a defining moment for the Nation, for the
agency, and the American public has had a tremendous amount of
information about all the things leading up to that and where
our governmental agencies were, and they've had access to most
of the Department of Justice's Inspector General report on the
FBI and 9/11.
Is there any legal reason why an unclassified, redacted
version of the executive summary has not been provided to us
and the public?
Mr. Rizzo. No legal reason, no, sir.
Vice Chairman Bond. Would you advise the Director of that,
with our warm request?
Mr. Rizzo. I will. I will.
Vice Chairman Bond. Thank you.
Mr. Rizzo, 9/11 clearly marked a milestone in the
development and interpretation of counterterrorism laws. We've
seen the Administration's proposal to update FISA, but there
are other areas in which changes to current law are needed in
order fully to address threats. There has been some discussion
that Executive Order 12333 needs to be updated, particularly
with regard to presumptions regarding U.S. persons.
Are there that or any other general areas that you think we
need to be looking at?
Mr. Rizzo. Well, you know, with respect to the Executive
Order 12333, which has been on the books for 25 years, and
actually existed in slightly different iterations several years
before that, it does need updating. I happen to believe,
however, that the intelligence community has lived with its
terms for a good period of time now, so I can't say that any of
the substantive provisions in that order have hamstrung or
damaged the community.
Vice Chairman Bond. The WMD Commission recommended a
working group to review U.S. persons rules governing
collection, retention and dissemination of information across
the IC. Were you involved in the review? If so, what's the
status? Are there any changes we expect to see and how changes
impact the operations of the agency?
Mr. Rizzo. That review, Senator, has been ongoing under the
aegis of the Director of National Intelligence's Office of
General Counsel. We in CIA General Counsel's Office have played
a role in that. I believe the process is well along, and I
believe the group will be ready with some recommendations in
the near future.
Vice Chairman Bond. In your responses to prehearing
questions, you noted the decision whether to allow CIA to
conduct electronic surveillance within the United States is a
question for the policymakers, and said its prohibition is not
required under the Constitution.
While the decision may be one for policymakers, are there
legal and practical implications to allowing CIA to conduct
electronic surveillance, and/or do you believe the prohibition
should be lifted or modified, or should domestic surveillance
activities be limited to the FBI?
Mr. Rizzo. I happen to believe, Senator, that the CIA can
continue to be effective in its assigned mission, in its
expanded mission without any domestic surveillance authority
capability, so I do believe, on a number of grounds, that that
area is best left to the FBI and other domestic law enforcement
agencies.
Vice Chairman Bond. Thank you very much, Mr. Rizzo.
Thank you, Mr. Chairman.
Chairman Rockefeller. Senator, thank you.
Senator Warner.
Senator Warner. Thank you, Mr. Chairman. I'll be quite
brief here so we can get to the closed hearing hopefully.
I wish to compliment you on your opening statement. I
listened to it very carefully. Clearly, it is a thoughtful
document that you worked on for some time and expresses your
innermost feelings about the challenges that lay ahead and how
you're going to discharge those responsibilities. So I'd say
well done, sir.
The Supreme Court's 2006 decision in Hamdan versus Rumsfeld
has been interpreted to provide protections under Common
Article III of the Geneva Convention to unlawful combatants and
particularly al-Qa'ida. Prior to that decision, is there some
unclassified references that you would have to such legal
advice as you gave the department interpreting the requirements
of the Geneva Convention toward unlawful combatants?
Mr. Rizzo. I will check if there is some unclassified
advice. This whole area--over the years, we have tended to be
encased in a highly classified program, but I will check on
that.
Senator Warner. All right.
Mr. Rizzo. And the implication of Hamdan, obviously, was
for the Supreme Court holding that Common Article III of the
Geneva Convention did apply to the conflict with al-Qa'ida.
Senator Warner. And you'll provide the Committee with such
unclassified material as may have existed prior to that
decision?
Mr. Rizzo. Yes, sir.
Senator Warner. And I thank you.
I have no further questions.
Chairman Rockefeller. Thank you, Senator Warner.
Senator Whitehouse.
Senator Whitehouse. Thank you.
I'd like to ask a little bit about your notions of
oversight in the context of a government of separated powers.
And let me start by asking the broadest question, which is that
although the Constitution tends to divide decisionmaking in
certain areas between judicial, executive and legislative
branches, there does not appear evident to me anywhere an area
where congressional oversight, as opposed to decisionmaking, is
forbidden.
And in the scope of the activities that you are familiar
with in the intelligence community, and without getting into
any classified details, do you believe that there is any area
of intelligence activity that is properly beyond congressional
oversight?
Mr. Rizzo. No, sir.
Senator Whitehouse. There are various documents from the
Office of Legal Counsel at the Department of Justice and from
other Department of Justice elements regarding the
counterterrorism program, in many respects essential documents,
providing legal justification for various elements of the
program, that we have not been provided. And I'm interested in
your explanation of the justification for this Committee not
being provided those documents, in light of what you have just
said.
Mr. Rizzo. Well, if I could characterize the Justice
Department position in this regard, this is--these documents
are part of the deliberative process of advice offered by the
Department of Justice to other agencies in the executive
branch, and the need for confidentiality in those
communications.
Senator Whitehouse. So it's a deliberative process
privilege claim?
Mr. Rizzo. Correct.
Senator Whitehouse. Is there any other legitimate claim
that protects them.
Mr. Rizzo. Well, all I can tell you from the CIA's
standpoint, there certainly would be no sources and methods or
operational reason why we would independently withhold them
from the Committee.
Senator Whitehouse. Are you aware of whether there are
other opinions of the Office of Legal Counsel in other areas
that are equally kept from public or congressional review under
this basis? I mean, it seems to me, there are an awful lot of
OLC opinions that are published and catalogued, and you can go
look them up.
Mr. Rizzo. Yeah, no, there are. As we speak here today,
certainly there are no other opinions to CIA that fall into
that category. And I would add, Senator, you know, in the
course of my long career at CIA, past Office of Legal Counsels,
and I can't cite you chapter and verse of what those opinions
were, have held guidance back that they've provided to CIA on
similar grounds. So this is not an entirely new phenomenon
here.
Senator Whitehouse. Let me ask you one other question on
another topic. Recently General Petraeus sent a letter to all
of our forces in Iraq, and he wrote the following:
``Some may argue that we would be more effective if we
sanctioned torture or other expedient methods to obtain
information from the enemy. They would be wrong. Beyond the
basic fact that such actions are illegal, history shows that
they also are frequently neither useful or necessary.
``Certainly extreme physical action can make someone
`talk.' However, what the individual says may be of
questionable value. In fact,'' he went on to say, ``our
experience in applying the interrogation standards laid out in
the Army Field Manual on Human Intelligence Collector
Operations that was published last year shows that the
techniques in the manual work effectively and humanely in
eliciting information from detainees.''
Do you believe that statement by General Petraeus to be
correct?
Mr. Rizzo. Yes, I don't have an objection to that
statement.
Senator Whitehouse. Do you believe that the use of enhanced
interrogation techniques, to use a phrase that--my light is on.
I won't proceed to the second question.
Mr. Chairman.
Chairman Rockefeller. Senator Levin.
Senator Levin. Thank you, Mr. Chairman.
And welcome to you, Mr. Rizzo. When we met last week, you
and I discussed some specific documents that I've requested to
be provided to the Committee. I understand the CIA is reviewing
those documents so that they can be turned over. Have you made
any progress on those reviews?
Mr. Rizzo. We're working on them now, Senator. We didn't
actually receive the documents until the day after our meeting.
So we're working very hard on them.
Senator Levin. The Chairman made reference to the first
Bybee memo, which said that for an act to constitute torture,
it must inflict pain that's difficult to endure. Physical pain
amounting to torture must be equivalent in intensity to the
pain accompanying serious physical injury, such as organ
failure, impairment of bodily function, or even death.
The Chairman asked you the question, and I didn't think you
directly answered it, so let me ask it again. Did you agree
with that conclusion at the time?
Mr. Rizzo. I thought that particular piece was--was
overbroad.
Senator Levin. Did you not tell me that you thought it was
a reasonable statement?
Mr. Rizzo. Well, I thought--I believe I told you I thought
that the opinion on the whole was a reasonable one, persuasive
document.
Senator Levin. But that particular statement, did you not
tell me that you thought that was a reasonable conclusion?
Mr. Rizzo. If I did, Senator, I meant to put it in a
different context. I mean, I wanted to make the point to the
Chairman that I did not object to that statement at the time; I
did not.
Senator Levin. Now, on Bybee number two, did you request
that the Office of Legal Council produce that memo?
Mr. Rizzo. Yes, sir.
Senator Levin. And who gave the Department of Justice the
interrogation practices which they analyzed?
Mr. Rizzo. Well, the----
Senator Levin. Did you do that?
Mr. Rizzo. My office was the vehicle for getting that to
the Department of Justice, yes, sir.
Senator Levin. And you were in charge of the office?
Mr. Rizzo. Yes, sir.
Senator Levin. Was the definition of torture in the first
Bybee memo the basis for determining whether the interrogation
techniques evaluated in the second Bybee memo were legal under
the anti-torture statute?
Mr. Rizzo. Well, they were--as you know, they were issued
on the same day, and in many respects, they play off each
other. I, frankly, was more concerned and relied more heavily
on the classified guidance of the second Bybee memo that was
addressed specifically to us.
Senator Levin. But do you know the answer to my question?
Mr. Rizzo. I'm sorry.
Senator Levin. Let me go on to another one, then.
At the time that it was approved in 2002, did you think
that the CIA's interrogation program was humane--at that time?
Mr. Rizzo. The--I'm trying to be responsive in a way that--
without getting into a detailed explanation.
We believed then and we have believed throughout this
process that the CIA program, as it was conceived--the
procedures, the criteria, when taken in total leads to the
conclusion--justifies the conclusion that the program was from
the outset and remains conducted in a humane fashion.
Senator Levin. Why is it so complicated to answer a very
direct question that you think the CIA's interrogation program
was humane at the time that it was approved?
Mr. Rizzo. OK, well, I'm sorry. I was trying to answer. I
found it complicated because to get the----
Senator Levin. Well, let me ask it again, then.
Mr. Rizzo. OK.
Senator Levin. At the time it was approved in 2002, did you
think the CIA's interrogation program was humane?
Mr. Rizzo. Yes, sir.
Senator Levin. Is that what you told me in the office?
Mr. Rizzo. I hope that's what I told you in the office
because that's what I believe.
Senator Levin. All right. Have we ever rendered or has CIA
ever rendered to countries detainees that--excuse me. Have
detainees been rendered by us, including the CIA, to countries
that use torture?
Mr. Rizzo. That's an important question, and the only way I
could give you the proper answer would be in a classified
session.
Senator Levin. You can't even answer in an unclassified--
I'm not asking you which countries. I'm just asking you whether
we've ever rendered detainees to countries which use torture.
Mr. Rizzo. Well, again, if you don't mind, Senator, it's
difficult to give a yes or no answer to that in an open
session. I would just greatly prefer to give it the attention
it deserves in our closed session.
Senator Levin. Thank you. Thank you, Mr. Chairman.
Chairman Rockefeller. Is that it, Senator Levin?
Senator Feinstein. We have a vote which started at 3:20.
Oh, I'm sorry. I'm sorry, Senator Feinstein. Senator Wyden.
That's my mistake, and I apologize to you. Senator Wyden is
here.
Senator Wyden. Thank you very much, Mr. Chairman.
Mr. Rizzo, thank you very much for your response to Senator
Bond's question with respect to the CIA Inspector General
report. That's very important and very much in the public
interest.
Just so we're clear on this Bybee amendment, because I know
a number of colleagues have asked about it, the key part of
that memo is the question of inflicting physical pain and it
not being torture unless the pain is equivalent to organ
failure and the related circumstances.
Do you think you should have objected at the time?
Mr. Rizzo. I honestly--I can't say I should have objected
at the time. I read the opinion at the time. As I say, I want
to emphasize that there was a companion opinion issued to us
that did not contain that sort of language and that really we
relied on.
But no, I can't honestly sit here today and say I should
have objected to that.
Senator Wyden. I think that's unfortunate, because it seems
to me that language, on a very straightforward reading, is over
the line. And that's what I think all of us wanted to hear, is
that you wish you had objected.
Mr. Rizzo, is the CIA bound by the Geneva Convention,
particularly Article III? And I would like to know if you think
we're bound by Article III in its entirety.
Mr. Rizzo. Well, we're certainly bound by Article III of
the Geneva Convention as interpreted and made in statutory form
by the Congress, yes, sir.
Senator Wyden. So--in its entirety?
Mr. Rizzo. In its entirety as interpreted and enacted by
statute, yes, sir.
Senator Wyden. I believe that ``as interpreted'' means that
you comply with it in its entirety? I'll just ask it once more.
Mr. Rizzo. Yes, sir.
Senator Wyden. Thank you.
Now, as the occupying power in Iraq, the United States has
certain legal privileges and responsibilities. If we start to
draw down the number of U.S. troops in Iraq, at what point
would our occupation end?
Mr. Rizzo. Oh, boy, Senator. That is outside my lane. I
don't profess to be an authority on occupying power and drawing
down of forces. I'm sorry.
Senator Wyden. Well, I'm asking from a legal standpoint.
I'm asking about the legal terminology. Do you believe our
occupation is over?
Mr. Rizzo. As a legal matter, Senator, I'll be happy to
research that. I just have never had occasion to research that
particular issue. It doesn't impact directly on CIA or CIA
personnel there.
Senator Wyden. You emphasized the importance of keeping the
Congress and the Committee fully and currently informed about
intelligence activities, which is required by law.
Do you believe that the Committee was kept fully and
currently informed, as the statute also requires, about the
CIA's detention program?
Mr. Rizzo. Well, as you know, for a considerable period of
time the interrogation techniques aspect of the program was
kept to the leadership of the Committees. It has now been
briefed to the full Committee.
As you also know, there are provisions in the National
Security Act allowing limited notifications in certain
extraordinary circumstances. So I believe the way the matter
was briefed originally was legally appropriate. I do believe
that I certainly am more comfortable and feel better now that
the whole Committee has been briefed into the program, yes,
sir.
Senator Wyden. So you would say, though, that keeping only
two Members of the Committee informed--because that is what we
faced under this program--is still keeping the Committee fully
and currently informed?
Mr. Rizzo. Well, as I say, the law does allow--first of
all, let me----
Senator Wyden. I want to hear your opinion. I want to hear
your opinion as to whether having two Members of this Committee
constitutes keeping the Committee fully and currently informed.
Does it?
Mr. Rizzo. I do believe the law does allow in certain
extraordinary instances for that system of reporting.
Senator Wyden. I'd just like to ask it once again. Do you
in your opinion think having two Members of the Committee know
about something like this, of this importance, constitutes
keeping the Committee currently and fully informed?
Mr. Rizzo. I think it's a legally appropriate step.
Senator Wyden. Thank you.
Thank you, Mr. Chairman.
Chairman Rockefeller. I'm going to make a Chairman's
decision here. We only have about 5 minutes left in a vote, and
Vice Chairman Bond has gone off to vote. What I would suggest
is we adjourn and come right back. We will vote--there's only
one vote, Mr. Rizzo--then we'll be right back. That way, we all
get to vote.
Senator Levin. Mr. Chairman, could I make a unanimous
consent request?
Chairman Rockefeller. Of course.
Senator Levin. I'd ask unanimous consent that a statement
of the President in December of 2005 that we do not render to
countries that torture--a statement made in public--be inserted
in the record at this point, in contrast to Mr. Rizzo's
statement that he could not answer that question in public.
Chairman Rockefeller. It will be done.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED] 41205.012
[GRAPHIC] [TIFF OMITTED] 41205.013
Chairman Rockefeller. The Committee stands in recess.
[Recess.]
Vice Chairman Bond [presiding]. This hearing will
reconvene, and again, with apologies for the Senate schedule.
But I know Mr. Rizzo is familiar with how that always messes
things up.
And I believe Senator Feingold is up to ask questions.
Senator Feingold. I thank the Vice Chairman for starting up
the hearing.
Welcome, Mr. Rizzo.
Let me ask you, are the statutes governing the authorities
of the CIA binding or are they subject to Presidential
assertions of Article II authority to violate the law?
Mr. Rizzo. No, Senator, all statutes affecting CIA are
clearly binding on CIA.
Senator Feingold. Regardless of Article II authority?
Mr. Rizzo. Well, I mean, sure. I mean----
Senator Feingold. OK.
The National Security Act provides that the CIA shall have
no police, subpoena or law enforcement powers or internal
security functions. Is this law binding or is it subject to
Presidential assertions of Article II authority to violate the
law?
Mr. Rizzo. Well no, I mean, I've always considered that--
that is one of the earliest statutes on CIA, and yes, I
consider it binding.
Senator Feingold. So the President cannot override it
simply based on Article II authority; correct?
Mr. Rizzo. That's my--that would be my opinion, yes, sir.
Senator Feingold. In 2002, the Department of Justice
concluded even if an interrogation method might violate the
statutory prohibition against torture, the statute would be
``unconstitutional if it impermissibly encroached on the
President's constitutional power to conduct a military
campaign.''
Do you believe that the statutory prohibition against
torture encroaches on the President's constitutional power?
Mr. Rizzo. No. The statutory prohibition on torture is
absolute. There are no countervailing considerations. So no,
that's an absolute ban.
Senator Feingold. The 2002 Department of Justice memo also
concluded that an official could not be punished under the
statutory prohibition on torture for ``aiding the President in
exercising his exclusive constitutional authorities.''
Do you believe that an individual who violates the law can
use a Presidential authorization as a defense?
Mr. Rizzo. No. A violation of law is a violation of law.
Senator Feingold. Thank you.
Do you agree that any intelligence activity that has
foreign policy implications should be notified to the full
Senate Intelligence Committee?
Mr. Rizzo. I wouldn't go that far, Senator. I believe the--
you know, all covert actions or all intelligence activities--
the Intelligence Committee should be kept fully and currently
informed as the law provides.
Senator Feingold. Well, I'm a little concerned, as a Member
of the Foreign Relations Committee. You indicated that you
would not necessarily agree with that, correct?
Mr. Rizzo. Correct.
Senator Feingold. I'm also a Member of the Foreign
Relations Committee as well as the Intelligence Committee, so
I'm a little puzzled by that. When this Committee was
established 30 years ago, the Senate specifically intended that
members of the Foreign Relations Committee be represented so
that intelligence activities could be considered in their full
policy context. Refusing to disclose this information to those
Members seriously undermines congressional oversight of both
intelligence and foreign policy, so I hope you will consider
your opinion on that. And would you like to respond again?
Mr. Rizzo. Well, no, only to say I read your letter you
sent Director Hayden a few weeks ago on this subject. I found
it thoughtful and thought-provoking and certainly I take your
points.
Senator Feingold. Do you agree that an intelligence
activity should not be kept from the full Senate Intelligence
Committee, merely because it's based on a novel or
controversial legal theory?
Mr. Rizzo. No. No, I believe the law requires the
committees to be fully and currently informed of all
intelligence activities.
Senator Feingold. I thank you, sir, for your answers.
Thank you, Mr. Chairman.
Vice Chairman Bond. Thank you, Senator Feingold.
I'm was a little bit puzzled about some of your answers,
Mr. Rizzo. When you're dealing with the President's authority
as Commander in Chief under Article II and also, in some
instances, under the foreign intelligence surveillance
provision, does his power not supersede statutory limitations
which may infringe on that or give power which is not otherwise
specifically authorized by Congress?
Mr. Rizzo. Well, sir, first of all, I can't sit here and
tell you I'm a constitutional law expert in this regard.
Vice Chairman Bond. I used to try it, but I thought a
constitutional provision generally superseded a statutory
provision. Is that not the kind of basic Law 101?
Mr. Rizzo. I believe that's correct. I was trying to answer
the question--the Senator's question in the context of
intelligence activities. As you know, CIA intelligence
activities certainly have been governed and been governed, as
long as I've been involved, based on statutory dictates and
statutory requirements. That was the point I was trying to
make.
Vice Chairman Bond. Right. And we understand that. But if
the present President issued an order--or, for example, if the
President determines in the national security to keep something
classified or limited access, that is within his power--that's
beyond the CIA. In other words, the CIA does not make the
decisions when they come to the Presidential level under
Article II.
Mr. Rizzo. Sir--I mean, clearly in the area of activities
that I'm most familiar with, in terms of, let us say, limited
notification of covert action activities, the President makes
that determination on limited notice, yes, sir.
Vice Chairman Bond. I had a couple other questions I wanted
to ask. As a lawyer dealing with it directly, I'd like to know
your assessment of the efficacy of the Intelligence Reform and
Terrorism Prevention Act, whether the creation of a Director of
National Intelligence has been beneficial and whether you think
that Director has the statutory authority needed to make the
new plan work.
Mr. Rizzo. First of all, I believe the current statutory
authority granted the DNI, at least to my lights, are adequate
for him to carry out the responsibilities he's been given. My
reaction thus far to the effects of the Intelligence Reform
Act--still a work in progress. I have a very close relationship
with my counterpart in the Director of National Intelligence
General Counsel. We have a very strong relationship. We
complement each other. So in terms of my sphere, I believe the
Act and the office has worked out well.
Vice Chairman Bond. I've been very much concerned about the
impact of leaks, notable and unfortunate, of vital intelligence
programs. Can you describe in general, without getting into
specifics, what impact these may have had on the ability of the
intelligence community to carry out its responsibilities? And
do you have suggestions on what can be done to protect national
security from these unauthorized disclosures?
Mr. Rizzo. Yes, sir. Of course, being in CIA as long as I
have, I've had to--I have been an observer and also a
participant in the leak referral process. I will say a couple
of things. The unauthorized disclosures of classified
information, at least to my lights, have proliferated in the
last several years, have gotten far more damaging than I can
recall them ever being. In recent times, you know, different
kinds of leaks have different kinds of impact, but I can't
remember a time like the recent history where leaks have caused
such significant and real damage to intelligence equities, so I
believe it's an extraordinarily serious and, for that reason,
growing problem.
Vice Chairman Bond. What needs to be done?
Mr. Rizzo. Well, I mean, I think, we have to be--and when I
say we, I believe the executive branch, of which I am part--for
our part we have to be much more disciplined in the way we
protect classified information. I believe the oversight
committees, the oversight system--you know, that is not the
problem. I believe that we just have to--you know, all I know
about is the executive branch. My own view----
Vice Chairman Bond. How about prosecuting some of them?
Mr. Rizzo. Well, if we can find them, Senator, we try to
prosecute them. I just think we have to be more disciplined. I
think far too many people know far too much, and we have to, I
think, be more disciplined in keeping truly secret information
in tightly held compartments.
Vice Chairman Bond. Thank you very much, Mr. Rizzo.
Mr. Rizzo. Thank you.
Vice Chairman Bond. Mr. Chairman.
Chairman Rockefeller [presiding]. Thank you very much, Mr.
Vice Chairman.
Senator Feinstein, I don't mean to catch you unawares here,
but nobody catches you unawares.
Senator Feinstein. Well, that's not quite true, but I very
much appreciate the sentiment.
Chairman Rockefeller. But you are up.
Senator Feinstein. Thank you very much.
Mr. Rizzo, I'm sorry. I've been in and out, and I know I've
missed some. But I'd kind of like to go back to the questioning
of Senator Wyden and Senator Levin.
I happen to have a very strong belief that the legal
foundation on which torture was based was deeply flawed. And I
mean, if you were part of that legal foundation, it's very
difficult for me to vote for you. Because I believe that one of
the reasons we are so hated abroad is because we appear to be
hypocrites. We say one thing and we practice another. So I'm
just going to try in a simple way to get some yes or no
answers, and I know that may be difficult for you.
Do you interpret Common Article III to prohibit all
humiliating and degrading treatment, or only humiliating and
degrading treatment that meets the threshold of being an
outrage? And Common Article III prohibits outrages upon human
dignity, in particular humiliating and degrading treatment.
Mr. Rizzo. Yes, I would not object to your characterization
of Common Article III. If I could, Senator, with your
indulgence----
Senator Feinstein. But you are saying--you are interpreting
that you have to meet the threshold of a so-called outrage. Is
that correct?
Mr. Rizzo. Outrage is--yes. Outrage on personal dignity, in
particular humiliating and degrading treatment, yes.
Senator Feinstein. Well, how would you evaluate that?
Mr. Rizzo. In terms--again, I think this is an area where I
could be most helpful and informative in a classified session.
I take it the premise of your question is: How do I evaluate
that in the context of the interrogation program over the
years? Well, I'm delighted to do that. I just feel constrained
in this atmosphere, Senator.
Senator Feinstein. OK. All right. Well, let me try this
one.
Was Common Article III applied to people like the 14 high-
value detainees that are now in Guantanamo while they were in
CIA custody?
Mr. Rizzo. Common Article 13, as you know, the Supreme----
Senator Feinstein. Common Article III.
Mr. Rizzo. I'm sorry. Common Article III of the Geneva
Convention were applied to certainly the 14. However, it was
not until June 1996 that the Supreme Court held that Common
Article III applied to the al-Qa'ida conflict. Prior to that
time, based on existing authorities and existing precedents,
enemy combatants, as you know, were not considered to come
within the rubric of Common Article III--Common Article III,
yes.
Senator Feinstein. So you said the date was September 12?
Mr. Rizzo. No, no. The date was the date of the Hamdan
case.
Senator Feinstein. Hamdan----
Mr. Rizzo. June 2006. So my point is, Senator, they were
held--obviously, they were captured and held before that time.
I can't tell you that before the time of the Hamdan decision
that Common Article III--that we applied--that those standards
were applied to enemy combatants like they were.
Senator Feinstein. Well, now, Senator Levin asked you the
same question I'm asking, but in a somewhat different way. Is
the CIA bound by Common Article III? And your answer was, ``and
as interpreted.'' I'd like to ask one more time--and I don't
mean to push you, but can you answer that question yes or no?
Mr. Rizzo. Well, yes. I wasn't trying to be disingenuous or
avoid the question. It's just, as you know, the Congress, in
the wake of the Hamdan decision, passed the Military
Commissions Act some months later, which took the Hamdan
decision, applied Common Article III, established specific war
crimes. That was my only point, that Common Article--that
Congress in its statutory role interpreted and applied Common
Article III as to make it legally binding on the U.S.
Government.
Senator Feinstein. Let me ask you how you look at this job.
In considering legal opinions in the area of detention,
interrogation and rendition, would the Office of General
Counsel look at or advise the Director only on legality, or
would you make recommendations based on matters such as the
impact on the Nation's international standing, or whether
United States actions in these areas will affect the ways
United States military or other personnel be treated if they
are detained?
Mr. Rizzo. Yes, that would certainly be within the role of
the General Counsel. It's frankly one of the things I've always
found most rewarding about being a lawyer at CIA, is that one's
opinion is solicited and listened to, not just on strictly
legal issues, but also policy, operational, matters of
congressional relations across the board. So sure. My advice
would not be limited--never has been limited to straight legal
conclusions.
Senator Feinstein. OK. My time is up. Thank you, Mr.
Chairman.
Chairman Rockefeller. Thank you, Senator Feinstein.
I just have two questions, and then, unless others have
questions, then we will go to the second phase of this.
The Detainee Treatment Act prohibits ``cruel, inhuman or
degrading treatment or punishment.'' What do you understand
this prohibition to mean, and how is it different from the
Common Article III prohibition that you and Senator Feinstein
were discussing?
Mr. Rizzo. Well, the prohibitions are actually somewhat
similar. The Detainee Treatment Act, as you know, Senator, was
enacted at the end of 2005. The Military Commissions Act, in
the wake of the Hamdan decision, was enacted in late 2006. So
we view them as complementary statutes.
The Article III, the cruel, inhuman and degrading treatment
or punishment standard--just to cut to the chase--as a legal
matter; involves a test of what is called shocking--``shocks
the conscience.'' Certain government--the Due Process Clause
bars interrogation techniques that ``shock the conscience.'' So
that would be the applicable legal standard I would say in both
statutes.
Chairman Rockefeller. Shock the conscience.
OK. This is my final question for here. The Military
Commissions Act of 2006 gives the President the authority to
interpret the meaning and application of non-grave breaches of
the Geneva Convention, and to promulgate administrative
regulations for non-grave breaches of the Geneva Convention.
Have such administrative regulations been promulgated by
the CIA?
Mr. Rizzo. Not to date. As you know, we are awaiting the
President's Executive order, which would be the next step in
the process.
Chairman Rockefeller. If you could make that more clear for
me. ``Not to date.'' In other words, no?
Mr. Rizzo. No, the CIA has not issued administrative
regulations in this arena, as of today.
Chairman Rockefeller. The reason I just wanted to parse
words a little bit is because I got a legal lesson from Senator
Levin when I asked you in my opening question, did you object
to--no--or you answered, ``I don't object to.'' And what he
pursued with was, ``Did you approve?'' And of course I'm not a
lawyer, he is. And I learned that little lesson. That's
accusing you of nothing, it's just me saying that I learned
from that experience.
Mr. Rizzo. No, that's very good. I mean----
Chairman Rockefeller. You think I did well?
[Laughter.]
Chairman Rockefeller. Thank you.
Has the President established the administrative rules and
procedures for compliance with the Detainee Treatment Act
provision on ``cruel, inhuman or degrading treatment or
punishment,'' as referenced in the Military Commissions Act?
Mr. Rizzo. Not to date, no, sir.
Chairman Rockefeller. It has not?
Are there limits on how the President can interpret non-
grave breaches of Common Article III of the Geneva Convention?
Does the President have the authority under the Military
Commissions Act to interpret this prohibition on ``humiliating
and degrading treatment'' to mean nothing more than the
prohibition in the Detainee Treatment Act--sorry for the
complexity of this--that is, a prohibition on the ``cruel,
inhuman or degrading treatment or in punishment prohibited by
the Fifth, Eighth and Fourteenth Amendment of the
Constitution.''
Now, if you can remember all of that and answer it, I
would be grateful.
Mr. Rizzo. OK. Let me give it a shot.
The Military Commissions Act--it features three of the--it
made three aspects--provides specific offenses that would
constitute Federal crimes if committed by or against U.S.
persons. Those involve torture, cruel and inhuman treatment,
and intentionally causing bodily injury. Those are the so-
called grave offenses to Common Article III.
There is a second category of authorities granted by the
Military Commissions Act that place authority for interpreting
the Geneva Convention outside of these so-called grave breaches
specified in the War Crimes Act, with the President. So it's a
two-tier process. The grave, inhuman breaches would be--are
made criminal by the Act. So a lesser set of categories, if you
will, the Act gives to the President to interpret.
Chairman Rockefeller. All right.
Mr. Rizzo. But I guess the answer to your question is yes.
Chairman Rockefeller. Yes, I hope so.
Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
There was two other areas I wanted to get in real briefly.
Mr. Rizzo, does the President have the authority to direct the
CIA to capture and detain an American overseas?
Mr. Rizzo. I'm sorry, Senator. I'm trying to hesitate
because I want to answer that question in a way that's accurate
and unclassified.
Well, I really should--this is too serious a question for
me to handle in a shorthand fashion. Let me--let it just
suffice to say it would be extraordinarily problematic in terms
of the rights of an American citizen for certainly the CIA to
capture him overseas.
Senator Wyden. But you're saying it could be done. You've
said it would be extraordinary circumstances.
I'm going to go into this at length in closed session. But
you've said it could be done, and that certainly raises
troubling issues for me.
Mr. Rizzo. Well, I'm not--again, I don't want to say it
could be done. What I am--what I----
Senator Wyden. You just said in extraordinary
circumstances.
Mr. Rizzo. I said it would be extraordinarily difficult--if
I didn't say that, I meant that--given the rights that attach
to a U.S. citizen in terms of due process, for the President to
direct the CIA to capture a U.S. citizen overseas.
Senator Wyden. Let me ask you about the matter I discussed
earlier, the question of the United States being an occupying
power in Iraq. And you sort of intimated you thought it was
just a policy question and not a legal question--a judgment I
don't share.
But how do you know what aspects of the Geneva Convention
apply if you don't know whether the United States is still
occupying Iraq as a legal matter?
Mr. Rizzo. All I can tell you, Senator, is our attention,
our focus on the Geneva Convention, the impact it has on CIA
and currently authorized CIA activities have to do with
terrorist activities, not with respect to the military conflict
in Iraq.
So that's why I frankly am not--I don't feel terribly
comfortable opining on the scope of Geneva as it pertains to
the current conflict in Iraq.
Senator Wyden. I can see why you wouldn't feel particularly
comfortable, but I'm still unclear as to how, given your
answer, how you would instruct agency personnel with respect to
their obligations. I'm going to ask some more about this when
we're in closed session.
Thank you, Mr. Chairman.
Chairman Rockefeller. What we will do now, Mr. Rizzo, is,
one, thank you for your public testimony and your family
members and all those who chose to attend, and our Senators who
are basically at four different very important mark-up-type
sessions this afternoon and thus are in and out, for which I
apologize.
We will now end this hearing and resume it shortly.
Mr. Rizzo. All right. Thank you, Mr. Chairman.
Let me just say while we're still in open session, I do
appreciate, I honestly do, the fairness and consideration with
respect--with the way the Committee has treated me and my
nomination, and I'm grateful to you, Senator Bond and your
staff.
Thank you.
Chairman Rockefeller. I'm glad.
This particular hearing is adjourned.
[Whereupon, at 4:21 p.m., the Committee adjourned.]