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[Senate Hearing 107-841]
[From the U.S. Government Printing Office]
S.Hrg. 107-841
NOMINATION OF SCOTT W. MULLER
TO BE GENERAL COUNSEL OF THE
CENTRAL INTELLIGENCE AGENCY
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
OCTOBER 9, 2002
OCTOBER 16, 2002
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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SELECT COMMITTEE ON INTELLIGENCE
BOB GRAHAM, Florida Chairman
RICHARD SHELBY, Alabama, Vice Chairman
CARL LEVIN, Michigan JON KYL, Arizona
JOHN D. ROCKEFELLER IV, West JAMES M. INHOFE, Oklahoma
Virginia ORRIN G. HATCH, Utah
DIANNE FEINSTEIN, California PAT ROBERTS, Kansas
RON WYDEN, Oregon MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois FRED THOMPSON, Tennessee
EVAN BAYH, Indiana RICHARD G. LUGAR, Indiana
JOHN EDWARDS, North Carolina
BARBARA A. MIKULSKI, Maryland
Thomas A. Daschle, South Dakota, Ex Officio
Trent Lott, Mississippi, Ex Officio
Alfred Cumming, Staff Director
Bill Duhnke, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
C O N T E N T S
----------
Page
Hearing held in Washington, D.C., October 9, 2002................ 1
Statement of:
Bond, Hon. Kit, a U.S. Senator from the State of Missouri.... 4
Graham, Hon. Bob, a U.S. Senator from the State of Florida... 1
Muller, Scott W., Nominee to be General Counsel of the
Central Intelligence Agency................................ 5
Supplemental Materials:
Senate Select Committee on Intelligence Questionnaire for
Completion by Presidential Nominees........................ 23
Comstock, Amy L., Director, Office of Government Ethics,
letter to the Honorable Bob Graham, Chairman, Select
Committee on Intelligence dated September 6, 2002.......... 69
Financial Disclosure report of Scott W. Muller............... 70
Muller, Scott W., letter dated September 4, 2002............. 91
Rizzo, John A., Designated Agency Ethics Official CIA, letter
dated
September 5, 2002.......................................... 94
Muller, Scott W., letter dated October 8, 2002............... 96
Hearing held in Washington, D.C., October 16, 2002............... 97
NOMINATION OF SCOTT W. MULLER
TO BE GENERAL COUNSEL OF THE
CENTRAL INTELLIGENCE AGENCY
----------
WEDNESDAY, OCTOBER 9, 2002
U.S. Senate,
Select Committee on Intelligence,
Washington, D.C.
The Committee met, pursuant to notice, at 9:37 a.m., in
room SH-216, Hart Senate Office Building, the Honorable Bob
Graham (Chairman of the Senate Select Committee on
Intelligence) presiding.
Committee Members Present: Senators Graham and Rockefeller.
OPENING STATEMENT OF SENATOR BOB GRAHAM
Chairman Graham. The Committee will come to order.
Today's hearing of the Select Committee on Intelligence is
for the single purpose of receiving testimony from the
President's nominee for the position of General Counsel of the
Central Intelligence Agency, Mr. Scott W. Muller. Mr. Muller,
we welcome you and thank you for coming today, particularly on
such short notice.
Mr. Muller. Thank you, Senator.
Chairman Graham. We also welcome Mr. Muller's wife,
Caroline, and two of his three children, Christopher and Pete,
as well as his present and former assistants, Anna Corrales,
Barbara Doan and Karen Baker, who are all here indicating their
support. Would the family please stand and be recognized. Thank
you very much.
Mr. Muller is currently the managing partner of the
Washington, D.C., office of the law firm of Davis, Polk &
Wardwell. His law practice has included complex litigation
matters that contain securities, antitrust and criminal
aspects.
Mr. Muller also served as an Assistant U.S. Attorney in the
Southern District of New York from 1978-1982. We heard
testimony yesterday from Mary Jo White, formerly the U.S.
Attorney for the Southern District. This was part of our joint
inquiry into the events of September 11. I know that the
Southern District prosecutors are among the best and most
highly recognized Federal prosecutors in the country.
We hope Mr. Muller will elaborate today in his statement
and in response to questions from the Members of the Committee
on what he has learned in his career that has prepared him to
be the General Counsel for the Central Intelligence Agency.
If confirmed, Mr. Muller would be only the second CIA
General Counsel to go through the confirmation process.
Congress amended the Central Intelligence Agency Act of 1949 in
1996 to require that the person to fill this position be
selected with the advice and consent of the Senate. This
reflects the importance we attribute to the functions performed
by the CIA General Counsel.
With the critical role played by the agencies of the
intelligence community in the war on terrorism and, perhaps
soon, the war on Iraq, now more than ever the CIA must have a
strong General Counsel. This is, in part, the reason that we
are holding this special meeting of the Committee today to hear
from Mr. Muller, in hopes that we can expedite this process so
that he will be able to assume his position prior to the
adjournment of Congress.
I am certain that Mr. Muller knows the role of lawyers at
the CIA has evolved over the last 25 years. In the early 1970s
there were only a handful of lawyers in the CIA. Today there
are approximately 100. In the Counterterrorism Center alone the
number has gone from one as recently as 1997 to seven today.
This growth reflects the fact that after the Pike and
Church Committees in the late 1970s completed their review of
the performance of the intelligence agencies, intelligence
operations became, as has been referred to, a heavily regulated
industry.
Executive Order 12333, first issued by President Ford in
1976, created a set of guidelines for operations--particularly
those against U.S. persons and those conducted inside the
United States. The CIA and the FBI have classified regulations
that further guide operations.
These complex sets of rules need lawyers to interpret and
apply them to day-to-day operations--and they must do it
quickly, and they must get it right. Officers in the
Directorate of Operations need lawyers they trust so that they
can go about their business devising and implementing
aggressive operations that will help us thwart the terrorists
before they can do us harm.
On that point, I would like a moment to speak about the
issue of cautious lawyering at the CIA. I know from my work on
this Committee for the past 10 years that lawyers at CIA
sometimes have displayed a risk aversion in the advice they
give their clients, particularly some of the lawyers assigned
to the posts in the Directorate of Operations.
Unfortunately, we are not living in times in which lawyers
can say no to an operation just to play it safe. We need
excellent, aggressive lawyers who give sound, accurate legal
advice, not lawyers who say no to an otherwise legal operation
just because it is easier to put on the brakes.
I also know that the lawyers assigned to the Directorate of
Operations are not always perceived as part of a team by their
clients but, rather, a hurdle that must be surmounted before
the operators can do their jobs. Team work requires mutual
respect and I hope, if confirmed, that you will instill that in
your lawyers.
The previous General Counsel came before this Committee in
a public hearing last year on the U.S.A. Patriot Act
intelligence-related provisions and asserted that the officers
in the Directorate of Operations needed ``adult supervision''
by their lawyers. As you might imagine, that comment was not
well received at the Directorate of Operations. In my opinion,
the Directorate of Operations officers are performing the most
adult jobs in our Government today.
I hope that if you are confirmed, Mr. Muller, you will
instill in your lawyers the need to be a team player and to
give cutting-edge legal advice that lets the operators do their
jobs quickly and aggressively within the confines of law and
regulation.
We are joined this morning by my good friend and former
colleague in the State House, Senator Kit Bond of Missouri. I
know the close friendship that he has with Mr. Muller because
he's been telling me about it on a daily basis for the last 6
weeks.
Senator Bond.
[The prepared statement of Senator Bond follows:]
Prepared Statement of Senator Bond
Good Morning Mr. Chairman, Members of the Committee. Thank you for
the opportunity this morning to appear before the Intelligence
Committee on behalf of Mr. Scott Muller.
President Bush's nomination of Mr. Muller to the position of
General Counsel of the CIA reflects careful deliberation and
consideration on the part of the President for this important position.
The Central Intelligence Agency, in addition to the entire
Intelligence Community, now more than ever, faces the daunting and
paramount task of gathering effective and reliable intelligence as we
conduct the war on terror.
Currently, in an effort to fulfill this paramount task, the
relationships and interactions between the various entities within the
Intelligence Community are being reexamined and restructured in an
effort to facilitate more effective and reliable intelligence
gathering.
Throughout this reexamination, the CIA General Counsel will need to
have an understanding of the laws governing these relationships. In
addition, the CIA Counsel will need to be capable of carrying out
careful and thorough analysis of all the legal ramifications of
intelligence and law enforcement collaboration.
I am convinced Scott Muller's extensive legal experience and
training will afford him the ability to provide proactive, timely,
objective and independent advice to the agency and the Intelligence
Community, consistent with the laws and the Constitution of the United
States.
Scott began his higher education at my alma mater, Princeton
University, graduating cum laude with a Bachelors degree in 1971. From
there, he went on to Georgetown University Law Center earning his J.D.,
making Law Review and Law Review Executive Board.
Since that time, Scott has distinguished himself amongst his
colleagues in the legal community. For the past 24 years, he has been a
litigator at Davis Polk & Wardel specializing in representing Fortune
100-sized companies conducting what can best be described as ``crisis
management.'' Scott is no stranger to being thrown into high-pressure,
high-stakes legal arenas that have put his legal and managerial
abilities to the test. His ability to assimilate quickly and then
master new and multiple subject matters would serve the CIA and
Intelligence Community well as it attempts to reexamine and restructure
its collaborative sharing and intelligence gathering abilities.
Among Scott's many honors and awards, he has received:
FBI Commendation and Department of Agriculture
Commendations
One of New York Law Journal's ``Rising Stars in 13 of New
York's Largest and Most Prestigious Law Firms''
Included in ``Guide to The World's Leading White Collar
Crime Lawyers''
International Who's Who of Business Crime Lawyers
Scott's interest in national security can be traced back to the
mid-1980s when he served as a member of the Arms Control and National
Security Affairs Committee of the Association of the Bar of New York
City. He has over 25 years of experience with the Federal Criminal Law
Enforcement process as a prosecutor, teacher, and defense lawyer and
has worked extensively with general counsels of large organizations.
After serving with the Watergate Special Prosecution Force, he:
Clerked in the United States Court of Appeals for the
Third Circuit.
Was an Assistant United States Attorney in the Southern
District of New York from 1978 to 1982
Served as the Vice Chairman of the American Bar
Association's White Collar Crime Committee
Was Adjunct Professor at the Georgetown University Law
Center where he taught an advanced course in Federal Law Enforcement.
Mr. Chairman, Members of the Committee, it is for all of the
aforementioned reasons in my statement this morning that I am confident
my colleagues on both sides of the aisle will approve the nomination of
Scott Muller to the position of General Counsel of the Central
Intelligence Agency.
The emerging challenges before the Intelligence and Law Enforcement
Communities that will surface throughout their reexamination and
restructuring will necessitate the talents and legal expertise of folks
like Scott.
Thank you again Mr. Chairman and Members of the Committee.
OPENING STATEMENT OF SENATOR KIT BOND
Senator Bond. Mr. Chairman, thank you very much for your
very thoughtful and carefully worded guidance to the General
Counsel's position. Most of all, thank you for conducting this
hearing so promptly. I know the President and the
Administration are very grateful that you are moving
expeditiously because, as you indicated, this is a position of
paramount importance given the challenges we face in the
international and national arena today.
In the interest of full disclosure, I will tell you that
even though Mr. Muller lives in Maryland and practices in New
York and Washington, D.C., I am here as a Senator from Missouri
to offer my highest commendations. His son and my son were in
high school together and now in college together and
furthermore my wife has known him longer than I have, and I
would say on behalf of Linda and Sam, he has their highest
endorsement, and that's just one of the reasons I'm here today.
The most important reason, obviously, is that President
Bush's nomination of Mr. Muller to the position of General
Counsel reflects, I think, careful deliberation and
consideration on the part of the President for this important
position. As you have indicated, Mr. Chairman, the Central
Intelligence Agency, in addition to the entire intelligence
community, now more than ever faces the daunting and paramount
task of gathering effective and reliable intelligence as we
conduct the war on terror.
I have many more things to say about Mr. Muller that I will
submit for the record because of the time constraints, but I
think you've indicated that the CIA General Counsel will need
to have an understanding of the laws governing these
relationships, and the Counsel will need to be capable of
carrying out careful and thorough analysis of all the legal
ramifications of intelligence and law enforcement
collaboration, not simply being the abominable no-man, but
providing the best advice on how to comply with all the laws to
get the job done.
I'm convinced that Scott Muller's extensive legal
experience and training will afford him the ability to provide
proactive, timely, objective and independent advice to the
Agency and the Intelligence Community consistent with the laws
and the Constitution of the United States.
Scott began his higher education at Princeton University,
graduating cum laude in 1971, and from there he went to
Georgetown University Law Center, earning his J.D., where he
served on the Law Review and the Executive Board of the Law
Review. Since that time he has distinguished himself among his
colleagues in the legal community, for the past 24 years as a
litigator at Davis Polk & Wardwell.
He has received the FBI commendation, the Department of
Agriculture commendations. His interest in national security
can be traced back to the 1980s, when he served as a member of
the Arms Control and National Security Affairs Committee of the
Association of the Bar of New York City. He has also clerked in
the U.S. Court of Appeals for the Third Circuit, and, as you
indicated, was an Assistant U.S. Attorney.
Mr. Chairman, Members of the Committee, for all the
aforementioned reasons I am confident my colleagues on both
sides of the aisle will consider this nomination carefully and
approve the nomination of Scott Muller to be the General
Counsel of the Central Intelligence Agency. I again offer my
sincere thanks to the Committee for the expeditious hearing,
and I offer any assistance I can in moving this nomination
forward. Again, Mr. Chairman, my sincere thanks.
Chairman Graham. Thank you very much, Senator. We are being
joined by Senator Rockefeller. Senator Rockefeller, Senator
Bond has just introduced Mr. Muller, and we are prepared to
turn to his statement unless you would like to make an opening
statement.
Senator Rockefeller. No.
Chairman Graham. Mr. Muller.
STATEMENT OF SCOTT W. MULLER, GENERAL COUNSEL-DESIGNATE,
CENTRAL INTELLIGENCE AGENCY
Mr. Muller. Thank you, Mr. Chairman, Senator Rockefeller.
Let me start, Mr. Chairman, by thanking you and the
distinguished Members of this Committee for giving me this
opportunity to appear before you and to make this introductory
statement. I am honored that the President has nominated me to
the position of General Counsel of the Central Intelligence
Agency.
The privilege I feel in being asked to serve is
particularly great because this is an extremely challenging
time for the Agency, the Intelligence Community, and the Nation
as a whole. The laws governing the relationships between the
Intelligence and Law Enforcement Communities and the practices
of those communities are undergoing rapid and substantial
change. A new and fresh perspective is being brought to
balancing the need for collaboration and the simultaneous need
to respect constitutional values and, in particular, the
Intelligence Community is being asked to coordinate more
closely than ever with criminal investigators and prosecutors
on the domestic side and overseas.
This re-examination is taking place in a real-time crisis
situation where there are continuing, simultaneous demands on a
number of fronts and a critical need for judgment, management
skill and a collaborative spirit in the Office of General
Counsel.
For 24 years, I have been a litigator at Davis Polk &
Wardwell specializing in representing Fortune 100-size
companies and others at times when they were immersed in crisis
and felt that they were under siege. A major part of my
practice and experience can best be described as crisis
management. I have frequently been asked to walk into fast-
moving, high-pressure, high-profile legal disaster areas, to
assemble and manage large teams of lawyers and other experts,
to work within new and complex institutional structures, to
collaborate, as appropriate, with those representing diverse
interests and to guide my clients' responses on multiple fronts
simultaneously.
I've had the opportunity to engage and, I trust, to master
new subject matters, often extremely complex and usually
technical, if not arcane, and to do so under severe time
constraints. I've also had the opportunity to advise numerous
large institutions on the establishment of legal compliance
programs designed to avoid violations of law while at the same
time giving business executives the tools they need to perform
their jobs effectively. To add a word here, I might say that
it's not cautious advice that's part of that; it's careful and
timely advice. That's the critical element.
The central part of my practice for the last 25 years has
been Federal criminal law and enforcement, and my experience in
that area is current and extensive. After serving with the
Watergate Special Prosecution Force, I clerked in the U.S.
Court of Appeals for the Third Circuit. I was an Assistant U.S.
Attorney in the Southern District of New York from 1978 to
1982. I served as the vice chairman of the American Bar
Association's White Collar Crime Committee and as an Adjunct
Professor at Georgetown University Law Center, where I taught
an advanced course in Federal law enforcement. More
importantly, the vast majority of my cases have involved
Federal criminal law and interaction with Federal prosecutors
and other Federal regulators at all levels.
I believe that the job of General Counsel of the Central
Intelligence Agency is to provide timely, objective and
independent advice to assist the DCI, the Agency and the
community as a whole in accomplishing their missions
effectively and doing so in a way that is fully consistent with
the laws and Constitution of the United States. I view a
critical part of that job as working with this Committee and
its House counterpart as you fulfill your important oversight
responsibilities.
I am enthusiastic about the opportunity to serve. I look
forward to answering your questions and providing whatever
information you feel may be necessary or that you may find
useful as you consider my nomination. If confirmed, I look
forward to working with you on the important matters that face
the Central Intelligence Agency, the intelligence community,
this Committee and its House counterpart, and as I said before,
the Nation as a whole.
Thank you, Mr. Chairman. I'm prepared to answer any
questions you may have.
Chairman Graham. Thank you, Mr. Muller. We will proceed
with questions on a 5-minute rotating basis.
As I indicated to you in our remarks before the hearing
commenced, I was very impressed with the file that I had the
opportunity to review. You have an impressive background. One
question that would be raised in reviewing that is the fact
that you have not had much previous experience in intelligence
or intelligence-related activities. Could you tell us what you
think in your background has best prepared you to assume this
responsibility?
Mr. Muller. Yes, Senator. I think that's a fair and
appropriate question and I thank you for asking it. To start, I
have no direct intelligence or national security experience. I
have in the vast majority of my cases, however, specialized in
mastering new subjects--often extremely complex subjects--in
very short periods of time. That has been the essence of my
practice over the past 25 years, and the range of subjects has
been quite broad.
In addition to that, as I said in my opening statement, I
have come to specialize over time in what, as I've said, can
best be described as crisis management, which essentially has
meant going into very difficult situations with multiple
challenges at the same time. Often I'll have the media, Federal
investigators, Securities and Exchange Commission or civil
anti-trust authorities, foreign investigators--every kind of
possible challenge to an entity--all at the same time, all
happening sometimes with lightening speed and be called in to
try to marshal the resources necessary to deal with that
problem. Often that involves hiring multiple law firms--
literally organizing and managing hundreds of lawyers--and then
in a very brief time understanding the facts, and often brand
new law, in a way which I can then advise on how best to
respond on those fronts at the same time.
Finally, and I think perhaps most importantly given the
changes that are underway in the Intelligence Community, and as
we re-examine the national security organization generally, I
have an extensive experience in law enforcement--both as a
former prosecutor, but again, most recently and more
importantly, as a defense lawyer. I am fully conversant with
the way the Federal investigative system works with FBI agents.
I think I would have a credibility in dealing with them and
understanding their problems and the interactions in a way
which, while not unique, will be of extraordinary importance.
Let me say as well that I asked myself this question when I
was first approached about the possibility of serving as
General Counsel of the Central Intelligence Agency, and I asked
it on a number of occasions through the process in which I was
interviewed. I've spoken now to four former General Counsels of
the--and did speak prior to accepting the nomination--four
prior General Counsels of the Central Intelligence Agency and
the Acting General Counsel now. I spoke to two of the witnesses
you had here before you yesterday, both of whom are my friends,
Louis Freeh and Mary Jo White. I spoke to a former head of the
Central Intelligence Agency and I spoke to the gentleman who is
now the General Counsel for the National Security Council.
Each and every one of them told me--and also a former
Attorney General who is a friend--each and every one of them
told me that in their view the most important requirement for
the General Counsel of the Central Intelligence Agency is
judgment and maturity and the ability to make decisions quickly
but properly. I have no illusions about how much there is to
learn. Clearly it's a lot. I also have no doubt that I can do
it and do it well.
Chairman Graham. Thank you, Mr. Muller. That was very
reassuring statement. You are going to face a number of
challenging legal issues should you be confirmed. One of those
that has been discussed repeatedly, including yesterday by
former FBI Director Louis Freeh and former U.S. Attorney for
the Southern District of New York, has to do with the wall
between law enforcement and intelligence. We have found
instances where that wall has been so impenetrable as to keep
information that would have been valuable, potentially even
change the course of events, from passing in one direction or
the other.
There were some significant changes made in the law as part
of the U.S.A. Patriot Act that was adopted in October of last
year. At this stage, do you have any comments to make,
including from your experience as a U.S. Attorney, as to how
that wall of separation should be either modified, dismantled,
strengthened?
Mr. Muller. Well, let me start, Senator, by saying that I
think the changes that were made in the U.S.A. Patriot Act were
clearly necessary in light of the events of September 11 and I
think have gone a long way toward creating at the operational
level the kind of sharing and collaboration that this Committee
and the Intelligence Community and the Bureau and law
enforcement think need to occur. There's a lot of work left to
be done.
The wall that originally existed obviously had its basis in
experience. The concept essentially was that to the extent
there was a merger of foreign intelligence and law enforcement
there would be both the incentive and the opportunity for
abuse. But we now live in a world that's different than when
that wall was first erected.
First, unlike the days prior to the Church and Pike
investigations, there is now Congressional oversight that is
effective and extensive. In addition to that, the nature of the
threat has changed dramatically. The distinction between
domestic and foreign is difficult to apply in a world where the
threats are truly transnational, just as the distinction
between law enforcement and intelligence is difficult to
sustain when the line between war and peace has essentially
been eroded in the way that it has.
Obviously, it's going to be a critical issue going forward
to continually re-examine the relationship between domestic law
enforcement and domestic activities on the one hand and foreign
on the other. There are clearly things that can be done now,
some of the issues relating to the FISA that are being
litigated before the court that need to be examined, but as a
general matter, while keeping an eye on the reasons why the
wall was essentially erected in the first place, clearly we're
moving toward other ways of achieving the goals of protecting
U.S. civil liberties interest while getting the job done.
Chairman Graham. Thank you very much, Mr. Muller.
Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman. I bid you a
good day.
Mr. Muller, a couple of things. I think that essentially in
life people have two parts to them. You get this all for free.
Mr. Muller. My children are getting it, too.
Chairman Graham. Senator Rockefeller might charge tuition
for your children--always mindful of the family treasury.
Senator Rockefeller. That's right. Always looking for more.
[Laughter.]
Senator Rockefeller. In other words, the skill sets that
they're trained with and then sort of the way they adapt to how
life puts them into a different circumstance. Skill sets--this
is still a continuation of the Chairman's question--skill sets
are powerful. Now, as Senators we have to manage time and all
kinds of things. Lots of people have to do that. When a lawyer
says I can manage time, get a hundred lawyers together, react
to a crisis, and walk into a situation and master it, that's
important. It was reassuring to the Chairman and it doesn't un-
reassure me, but I want to probe a little bit further.
If you don't know about a subject, there is a price. I'll
just pick an example out of the air. You can have mastery of
the history of China, for example, but if you don't speak
Chinese or if you don't speak several of its dialects, talking
about this Agency, you're disadvantaged. Because it means that
Mao Tse-dong, for example, could never, was never understood by
more than one-third of the people of China because of the
dialect and the province that he came from when he spoke.
So for a lawyer for the CIA, General Counsel for the CIA,
the skill set has to be, I think, quite broad. In your case
it's a set of instincts as to how to gather together the
threads needed to use, as you say, good judgment, common sense,
as the others said, good judgment and common sense. I'm not
questioning whether that's enough, but I'll just give you an
example then, ask you to respond. I've used this several times
before.
We had here in open session not long ago a Minneapolis FBI
agent and he had been dealing with the Moussaoui case. He had
two choices. Moussaoui was working under an expired French
visa, of that nature. Thus, he had broken the law and,
therefore, law enforcement said, ``you go get that person.''
Now there was another choice he could have made, which was
to say, I know that this person, I suspect that this person has
terrorist ties and, therefore, rather than nailing him for what
I know I can get him on, wouldn't it be more useful for me to
surveil him, to see who he has lunch with--to figure out, just
to watch over a period of months what his interaction is and
who he sees. In fact, this gets more and more important as we
get more into all of this.
He clearly, resolutely, proudly, definitively picked the
first course and rejected the second, in his testimony to us.
It's that I think that the Chairman and I are thinking about.
Mastery--you've got to speak the language. You can go to the
country, but you've got to speak the language. So with that
kind of alliteration, I want you to expand more on just that
good judgment is enough.
Because it's like why Mormons are so important to the
Agency because they get their language training for 2 years and
then they go out and they go in the street. So they learn not
just the dialect, which they've already learned, but they learn
the colloquial language. Then some of them go to the Agency
where they do unbelievably helpful things. But if they didn't
have that, they couldn't do that. Now, you have this whole,
huge field to survey.
Mr. Muller. I understand your question, Senator. First, let
me say, obviously, I agree with you. In order to do the job or
understand China, you ultimately need to learn Chinese, and you
need to learn it pretty fast. I will not know Chinese the day I
arrive. I will be able to rely on people in the Agency and in
the General Counsel's office for the time that it takes me to
learn for a period of time. But I will need to learn fast, and
I have no illusions about that.
It is also true that this is a highly specialized area.
It's not much you read about in books. You have to go out and
actually spend some time and understand the business of what is
done at the Agency.
There is, of course, the legal part--the law--and, as I
said, I have learned extraordinarily arcane areas of law and
have done it fast. The more difficult part, and I think you're
right, is to learn the business of the Agency----
Senator Rockefeller. The instinct which pulls you back to
one or another place.
Mr. Muller. You're talking about the two choices, you mean.
Senator Rockefeller. I just use that as an example. The
question of the instinct. Where do you go? You get the
information, but then where does it take you?
Mr. Muller. It's hard to answer a question about instinct
in the abstract. Let me say this and then I'll sort of venture
into, as best I can, to try to answer that.
I think one of the reasons why I have been lucky enough to
have success going from one crisis management situation to
another--why I get asked by different clients to do it is
because I'm willing to make judgments. I'm willing to take
risks when they have been carefully calculated. I'm willing to
act with the speed that's required by the clients and the
circumstances.
As well, I think I've been able to show a number of clients
that I can learn Chinese. If I may, I'll give you a brief
example. I represented--one of the most arcane parts of the
securities business is the loaning and borrowing of securities
back and forth between firms. There are a handful of firms in
the country and, indeed, in the world who do it. They make vast
sums of money doing it. Two firms ran an operation together for
a period of years and then had a dispute about how to account
for the proceeds of it because their system seemed to be giving
them results that weren't intuitively right.
They interviewed a number of lawyers to try to find one who
could come in and understand what was going on, and they gave
that lawyer--and I was among a group of lawyers who were
interviewed about doing it; I'd had no prior experience in the
area at all and, indeed, relatively little in the way of
accounting background. I knew nothing about the business; I had
never heard of it.
I had a month to do this because it was actually a dispute.
I was being hired by one side. I went in with the people who
had actually put the system together, and we took it apart,
piece by piece. I learned the business. Not only that, I found
imbedded in the assumptions--in one of the assumptions that
underlay their system--a system that they had created and which
they had looked at--and this particular issue they'd looked at
over and over again, they had missed it.
I ended up taking the system apart. I ended up putting
their system back together. That system, the system that I
created essentially for them, is now being used by that
particular firm for hundreds of millions of dollars every year.
That was Chinese--or Greek in that case. I learned it, and I
was able to be helpful and fast.
Now in terms of instinct, to come back to what I think is
the core of your question, it's hard to answer again in the
abstract. I have had, albeit awhile ago, the choices that you
asked between does one act now to stop a particular individual
or does one, in effect, let the chips ride to see what
additional gains can be made.
Those are judgments which can only be made on the basis of
all the facts at the time. As a lawyer, I will not be making
them in the first instance. Instead, I'll largely be advising
as to what I perceive the risks are.
I'll come, if I can, one further point. Senator Graham in
his opening statement referred to a prior General Counsel who
talked about the need for adult supervision--who had used the
word adult supervision. I obviously and clearly do not view
that as my role. I view the lawyer more as a navigator who will
help the captains of the ship steer it as best they can as so
it's not to hit shoals, to tell them where the water is deep
and where it is shallow, and to give them their best judgment--
my best judgment as to how the ship will fare in particular
seas. But I will not be running it. I will not be the captain.
I will be advising as best I can on how to navigate.
Senator Rockefeller. I'll wait for the second round. Thank
you.
Chairman Graham. I'd like to follow up on Senator
Rockefeller's questions by posing, as one might in a law school
classroom, a couple of hypotheticals.
Mr. Muller. Sure.
Chairman Graham. We don't expect a master's paper on this,
but in 2 or 3 minutes, if you can sort of give us an idea of
how your mind works, how you would go about approaching these
issues.
First, one of the most vexatious issues that we've been
dealing with is the so-called leaks problem. We have an
elaborate system by which information is classified, which
means that its release to the public is restricted, and we have
laws to protect that classification system, many of which point
directly at the Director of Central Intelligence, who has
specific legal responsibility, if he becomes aware of an
inappropriate release of classified information, to take
actions, including forwarding cases to the Department of
Justice.
The fact is, this system, from my information, has not
resulted in a successful prosecution in some two or three
decades. The number of leaks are rampant. You could probably
pick up today's New York Times and Washington Post and find
several of them on the front page. I've described we now are
not dealing with leaks; we're dealing with dam breaks where big
surges of information such as the Department of Defense battle
plans for Iraq get released inappropriately.
If during your third week on the job Director Tenet should
come in to you and say that he shares this concern and clearly
the current system is not functioning either as a deterrent or
as a punishment system, how would you go through the process of
approaching that problem? With whom would you consult? What
would be your analytical steps, et cetera? I might say I hope
this hypothetical issue becomes a real issue soon.
Mr. Muller. Well, Senator, I think you are right. The issue
of leaks is an extraordinarily important one. The damage that
is done by leaks is no different than the damage done by a spy.
The fact that it's done for, you know, what the leaker may view
as appropriate reasons is absolutely no excuse given the
horrendous damage that can occur. I think I would approach--
leaving aside for the moment the question of who I would
consult--my mind wraps itself around the problem in the
following way.
The first question I ask myself is what are the legal
authorities and what are the statutes that apply and are they
adequate? In the case of leaks, I know that there are espionage
statutes which relate to the leak problem. I also suspect that
there is a certain amount of disinclination on the part of the
Federal prosecutors to want to use the word espionage to deal
with the problem of--with an issue of a U.S. person who is
leaking as opposed to spying. So the first question I would ask
is to find out what the statutes are, to find out whether
they're adequate and, to the extent that they're inadequate, an
issue which I think I would clearly address with the Department
of Justice, the Criminal Division, and others, I would ask that
question first.
The most difficult question with respect to leaks has to do
with actually investigating and finding them. In order to do
that, you would want to have a specific case where it came to
you or, to the extent that you could, you would want to put in
place systems which would actually allow you to find them
before they occurred or as they were occurring.
More than anything else, you want to find a case that you
can bring. You want to find a case that you can bring and bring
successfully. You'd have to navigate your way through the
problem of the threat of exposure of national security secrets
as you do it.
So to answer the question, again, I would first analyze
what are the legal authorities and, most importantly, I would
try to find a way--pro-actively rather than reactively--to,
whether it's set a trap, or set up a system where I could
actually come up with a way to do it. It's a very difficult
problem.
I think the reason why, at least to my knowledge, there
haven't been leak prosecutions--leaving aside the issue of to
what extent can we actually go to the media in order to deal
with this--a highly sensitive question and one which the
Department of Justice I know has thought about extensively--but
if one is limited to looking internally, that's one of the
great problems, is actually finding it.
Chairman Graham. Thank you.
Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman.
I want to still go back to the first question. This is not
unfriendly questioning. You recognize that there is this gap
and you say that you can overcome it and it is our duty to try
to make our best judgment that you are right about that.
Mr. Muller. As I said Senator, I view it as a fair and
appropriate question and I continue to.
Senator Rockefeller Yes, you did and you are very
forthcoming about that.
There is an agency that used to be called HCFA--which is
the Health Care Financing----
Mr. Muller. I had a case involving them.
Senator Rockefeller. You are involved with them?
Mr. Muller. I had a case involving them. I had to learn
something about them, yes.
Senator Rockefeller. I think it takes somebody about 12
years--it is my judgment--to learn health care, public policy,
in and out. You can do it through the master's thing. You can
do it through a Ph.D. at Johns Hopkins or wherever, but then
you've got to practice it. Then the real world comes in on you
and then you have the political process that comes in on you,
and then OMB that comes in on you.
President Bush's head of HCFA is a fellow named Tom Scully,
who knows health care cold. That's what he's done. He's a
lawyer. But he brings more to it than the law. He brings to it
just flat out knowledge and the battle scars of what went wrong
as he applied legal instincts versus the practical problems of
a recalcitrant HHS Secretary or President or OMB or whatever.
Am I justified in saying that fast learning skills--and
then shoot me right down if you think I am wrong--that it
really isn't just a matter of collating lawyers and learning
quickly, but that instincts are not learned quickly. They come
from experience. It's like an agent who has served overseas and
does human intelligence. I mean, you don't just go get trained
for it. It takes years to develop the instincts that allow you
to know what you are doing--which is right, which is smart,
that you should have done this or that. Now how do you help me?
Mr. Muller. I understand your question. Let me first say
instincts, I don't think, are learned. You have them, you
develop them in whatever field you have over time. You then
take those instincts and you apply them to whatever set of
facts or area you are put into. That's what I do. There have
been three prior General Counsels----
Senator Rockefeller. Where do you get the instincts from?
Mr. Muller. Your experience.
Senator Rockefeller. But your experience isn't in this.
Mr. Muller. No. But you don't need to have--with respect,
Senator, I don't believe you need to have your instincts honed
in this particular area. I think you need to have your
instincts honed in the fight, in the well, in places where
there are multiple people with different views where you have
to navigate through them and where you have a sense of where a
common sense good judgment would put you in the choices between
letting someone stay out in the field so you can follow where
they go and find the terrorist's co-conspirator, letting them
have one more phone call, or instead taking the risk that they
are going to do something. You simply look at all the facts and
circumstances and you bring to it the best judgment you have.
I have spent the last 25 years essentially making precisely
those kinds of judgments in varying fields. In particular, I
have made them in the law enforcement area for only 4 years as
a prosecutor, although we ran undercover operations, we ran a
sting operation and in one case in which I can't talk about
here, we actually had a person who was in organized crime who
was out on the edge of doing things with organized crime to
keep his credibility going.
I have lived those, albeit when I was younger. I have spent
the rest of my career dealing, watching prosecutors having made
the same decisions sometimes representing on the defense side.
There have been three prior General Counsels of the Central
Intelligence Agency who came to that job without intelligence
experience. The first, named Tony Latham, came from Shea and
Gardener. Russ Bremer came from Wilmer Cutler, and Stanley
Sporkin from the SEC. Without knowing the ins and outs of how
well they performed in your eyes Senator, I know from the
people I have talked to in the Agency that several of those
performed very well.
I could add as well that I asked this question and I was--
as I said to a person from people who know this community and
know me--said, ``don't worry about this. You will be able to do
it. It will come naturally to you because of your experience
and because of the amount of law that is involved is relatively
speaking not the body of HCFA law.'' Would I know health care
policy the way the gentleman you described? No. Do I think that
my instincts and experience are such that I can add real value
and help make sure that the lawyers are part of the team and
not viewed as--and don't view themselves as--adult supervisors?
Yes. The delivery of legal advice, working as a team, avoiding
us versus them kinds of cultures, that's what I do.
Senator Rockefeller. I thank you and I'll have the third
round if you don't mind, Mr. Chairman.
Chairman Graham. Thank you, Senator.
I'd like to raise a second issue. The Intelligence
Community is organized theoretically under the general
supervision of the Director of Central Intelligence. By
tradition and history, the Director of Central Intelligence
also has served as the head of the CIA, one of the constituent
agencies that make up the Intelligence Community.
In your position, you are going to serve as the General
Counsel to both of those positions--to both in his directorate
of the whole community as well as his specific responsibilities
at the CIA. One of the other agencies that's in that
constellation of intelligence agencies is that part of the FBI
which is involved in intelligence. This multiple responsibility
creates the potential of conflicts of interest, as we have
learned in our hearings. Not infrequently the FBI and the CIA
have different views of the same matter which have resulted in
patterns of action, including one ignoring the other.
Think about and tell us how you would approach these
multiple responsibilities and particularly how you would see,
from your position as General Counsel, dealing with the
conflicts between the FBI's intelligence responsibilities, the
CIA's virtually total intelligence responsibilities, and the
DCI's overview of all of the agencies of the agencies of the
Intelligence Community.
Mr. Muller. I think there are--I'll try to divide that
question into a couple of parts if I can. One part has to do
with the relationship and possible conflict between the FBI
counterintelligence and domestic responsibilities and the CIA's
foreign both counterintelligence and intelligence activities.
The second question I think has to do with the role of the DCI
as head of the community and what conflicts may exist both
because of his dual capacity as head of the CIA and head of the
community and, as a corollary to that, whatever conflicts I may
have as General Counsel to him in those capacities.
Let me address the first question first. The message of the
U.S.A. Patriot Act and the lesson of 9/11, subject of course to
the correct oversight, is that the parts of the FBI and the CIA
need to work, and the Justice Department, fully hand-in-hand in
the investigative stage, in the stage where they are trying to
determine ways in which they can disrupt and detect terrorists
and other threats.
There is now increasing and should be full field-to-field
coordination. It's precisely now--and just as in the past in
espionage cases choices have had to be made along the lines of
the choice that you referred to earlier, Senator Rockefeller,
about when to bring a case and when not to bring a case, when
to let one ride and when not to let one ride. Those choices
will increasingly need to be made as those teams work together.
They are also going to have significant issues to work on
together as to whether or not cases are brought and where they
are brought, what obligations will be under Brady against
Maryland and a variety of related questions. There is no
substitute for not only having the field agents working
together but actually having the lawyers work together as well,
the prosecutors, as they are now doing in the counterterrorist
cases where, as I understand it, there is and has been an
extraordinarily good relationship between the Federal
prosecutors and the Southern District of New York and the
Eastern District of Virginia, the FBI agents, and the CIA
agents all working together.
I would envision that there would be, over time, an
extensive exchange not only of information but of personnel,
hopefully even between the offices, so as to make that--and
ultimately when the systems are pulled together in a way which
I understand they are not now, then the walls should ultimately
be transparent and then choices can then be made as to when
cases should be brought, what the costs will be, where they
will be.
With respect to the second question having to do with the
DCI's role, obviously that has been an issue not only for this
Committee, but really for the Nation, most recently, but over
time. It is one that when one looks at--every time I look at it
and think through a possible solution to how the national
security apparatus ought to be organized differently I see both
advantages and disadvantages to it and there are obviously a
host of proposals.
In the current system, as General Counsel I would view
myself as having those responsibilities which the DCI gives me
with respect to the community. I have no question but that a
significant amount of coordinating work can and should be done.
There are lawyers from the General Counsel's office that are
deployed to most of the other elements of the community, or can
be--I think NSA may be an exception--but I would envision
working very closely with the other General Counsels.
I don't perceive a conflict. I have frequently represented
multiple clients, to the extent that one can view this as a
multiple client. My client is the mission. My client is the
President and the Executive branch subject to this Committee's
oversight. Actions speak louder than words. I think to the
extent that there is a perception of a conflict it can be
eliminated. To the extent that there is a conflict, I'll be the
first to say so. I doubt it'll occur.
Chairman Graham. Senator Rockefeller, could I ask two
favors. First, could I ask a followup question beyond my 5
minutes and then, second, I am going to have to leave. Could
you continue the hearing and then conclude it when you have
completed your questions? You're a scholar and occasionally a
gentleman.
We have had issues where, because of what now is agreed to
have been erroneous legal advice, important decisions were
either made or not made. The most prominent example is in this
so-called Moussaoui case that Senator Rockefeller referred to
in his questioning, where the field agent in Minneapolis was
berating the central office here in Washington to seek a FISA
in order to get information. The persons making the decision
here in Washington, by all now agreement, were misapplying the
law and denying this request, and then shortly after 9/11, when
they did get access, found information that could have been
very significant had it been available earlier.
How do you see your responsibility in terms of the legal
community which advises all of the agencies that make up the
Intelligence Community, so that on something such as what are
the rules for a FISA, that the information is uniformly
disseminated, updates of change in the law are promulgated, and
some degree of oversight to assure that the legal officers are
applying the appropriate standard, that we have a continent of
law and not a series of individual islands which may be
drifting away from each other.
Mr. Muller. I think within the Agency, to answer that
question there first, what you have identified I think is one
of the most important things that the General Counsel is
responsible for ensuring. There needs to be careful management
and coordination among all the lawyers giving advice within the
Agency to assure that it is, A, uniform, B, correct, and, C,
that it is not driven by concerns of caution not required by
the law, and similarly that it is not--that it doesn't fail to
take into account and raise to the appropriate levels any
issues where the risks seem to be extreme.
It also has to be client-driven. By that I mean it is
imperative in the delivery of legal advice that the lawyer earn
the trust of the client. You won't be asked back a second time,
you won't be consulted when you need to be consulted unless you
earn that trust. You earn that trust by doing everything you
can to work with them to be part of the solution to the extent
there's a problem, by being clear and simple about the rules
that guide, to be clear and simple about the difference between
law and policy, and to be sure as well, because you are with
them in recognizing that the risk of illegal action in the
environment that we are operating in is no different and no
greater than the risk of inaction.
Chairman Graham. Mr. Muller, thank you very much. I
apologize that I have got to go to a 10:30 meeting. I thank you
very much for the candor and the thoughtfulness of your
responses and wish you and your family well. We will be
attentive to moving this nomination as expeditiously as we can.
Mr. Muller. Again, Mr. Chairman, thank you for scheduling
the hearing. I know you all have been very busy doing very
important work and I thank you.
Chairman Graham. Senator.
Senator Rockefeller. One of the interesting--well, not
interesting--well it is interesting, but it is slightly
depressing--facts is that there is a large and growing distrust
between the executive branch and the legislative branch. It is
often said--and this is not political because I think all
Presidents are guilty of this or we are guilty of it--it really
doesn't make any difference--there is quite a lot of disdain
for oversight committees now. There is a great deal of disdain
within the Intelligence Community for Oversight Committees--the
Intelligence Committees in both Houses.
That has been proven many, many times in the last number of
weeks as we have been trying to carry on this 9/11
investigation and deadlines and postponements and we'll have it
for you in 24 hours and then it's we're OK with it, but we've
got to take it over to the FBI or NSC and then it comes back
and we end up getting it at 10 o'clock or at 9:55 and the
hearing begins at 10 o'clock.
That makes us--it means we can't read it, we can't read
anything. That's deliberate or it's inadvertent. But in any
event there is this disdain. I understand that because there
are people putting their lives on the line out in the world and
here these Congresspeople, who unfortunately have come on and
off the Committee too quickly--but it comes at great cost. It
comes at great cost.
It causes us to do the one thing that I don't want to see
happen as between oversight and the Intelligence Community, and
that is the blame game. The blame game can come from two
sources. One is that we get angry because we feel we are being
looked down on and, you know, that we get sent second- and
third-line people, and then sometimes we fail to recognize that
the first-line people may have obligations they have to meet.
But whatever it is, just accept what I say as being true,
if you will.
So then there comes a question of timely reports. There are
timely reports on annual or one-time basis that the Congress
requires and is owed which is frequently not met. That brings
then the question of a General Counsel advising a Director of
Central Intelligence about what to do about that. That is where
you run into potentially the politics or we don't want them to
know or why are they doing this to us or this is taking all of
our time and I've got more important things to do than sit and
answer questions.
But the fact is that we do appropriate the money. We do
represent the people. You work for the President and, more
importantly, you work for the people who we also represent in
smaller sections than obviously the President does.
So my question is this. Are you the kind of personality,
and if you are, I'd like to know--I want you to sort of prove
it to me, give me an example--where you go in and you say to
your boss you've got to do this and you are going to do it. You
are going to do it. You don't want to do it and I understand
that, but you are going to do it because it is the law, because
it is required, because it is your instinct that it needs to be
done, because these relations have to be good because if we
don't then we just play gotcha all the time. That is human
nature and it is bad human nature.
But how can I have a sense that you are not just a skilled
collator of facts and information leading you to, as you say,
the right kinds of intuitions but that you'll also take on the
person to whom you report and threaten to resign, if necessary,
if the issue is important enough. What aspect of your
personality should give me confidence?
Mr. Muller. Good question. I am going to try to answer with
a specific example. I am going to be a little bit opaque
because I want to be careful about privilege. But I will give
you a specific one and one which one of your witnesses from
yesterday would be able to tell you more about from the
government's perspective if it ever became appropriate.
My firm represented and represents many financial
institutions. I was called into a case on what was then not yet
a case actually on a Wednesday to give advice to this financial
institution about a Federal Reserve examination which was to
begin the following Monday.
I gave some advice with respect to what that client could
do or not do in connection with preparing for that examination.
It ended up taking the matter first to the CEO, from there to
the board of directors, and ultimately, in a personal
conversation with the chairman of the board when the advice was
not taken, I told him that I was going to be consulting my
firm. We withdrew from the representation of that client on a
Sunday evening at about 11 o'clock. The Federal examination
went forward. Two-and-a-half years later that client was
indicted. It was indicted in connection with the matter that
had been a part of the discussion that we had had.
There is nothing more important to me than my credibility.
There is nothing more important to me than my reputation. I
will risk, indeed give up, the financial benefits of my
practice for this job, but I will never do anything that would
in any way call that into question and there is nothing that--I
would never have any hesitation to give the advice that I think
is correct. In fact, the people in the General Counsel's office
already know I expect push-back when I come up with a view. I
give push-back. I think that is my job.
I am not sure I answered the entirety of your question, as
I think back on it now. I was giving the example.
Senator Rockefeller Could you give me some more then?
Mr. Muller. Well, I am trying to remember now if--you asked
for an example--I am trying to remember now the general context
in which I gave you the example. I remember the point of it.
But the question was essentially whether I'd have any
hesitation in effect in telling the DCI what he needed to do--
oh, I know.
The context of the question had to do with the relationship
between the Intelligence Community and the CIA on the one hand
and this Committee on the other. Many of the crisis kinds of
cases that I came into didn't need to be crises when they
started. They became that because of the way in which the
client dealt with the regulator or the U.S. Attorney or others,
unnecessarily so. Whether the reason for the mistrust was
inadvertence or deliberate is really irrelevant, because from
the point of view of the regulator the result is the same and
the two are indistinguishable.
There have been a number of cases, and I am trying to think
of any that are public, where we have come in and my approach
has always been the same. There is no excuse for being anything
other than forthright with your regulator. I have an expression
which I sometimes give to clients, particularly in the criminal
arena. I tell them you can try to punch the big bear in the
nose or you can smile and try to work with it. The latter is
generally the better course, particularly in an industry where
you have no choice but to deal with that regulator.
There may be times when in response to a subpoena or
otherwise it is impossible or difficult to meet the deadline.
You never let it pass. You talk about it. You do everything
within your power to meet it. I read the report that
accompanied this Committee's authorization bill this year which
described the performance on congressionally-demanded reports
as dismal. I looked at the statistics as well. I immediately
asked to understand those facts. I understand that work is
being done on it now, but I also fully understand why this
Committee would be, and was and is upset about that.
I can tell you that from my perspective there is nothing
more important than full candor. I can't promise that without
knowing particular facts that every question you ask I'll be
able to answer. I can promise that if I can't answer those
questions or if there is a reason why for one reason,
legitimate reason, or another legitimate reason there is
something that can't be done, you'll be told. You'll be told
the reason so that there is transparency with that regard.
Senator Rockefeller. Thank you. The final question I would
have would be your transition assuming this all works out. One
way of asking that would be what have you done to prepare. You
have obviously just read something which I wouldn't have
guessed you would have read, but you did and you know you had a
reaction to that from that.
There have been all kinds of reports that have been done
over the last many years on the reorganization of the
Intelligence Community. Those reports are always dead on
arrival. It is sort of fated, but it doesn't mean that they are
wrong. It is been really stunning, I think, to those of us on
this Committee to see the lack of coordination and the turf
nature of the Intelligence Community, in the case of the FBI
because in the case of the lawyer he doesn't want to give up
information because it might jeopardize his case and that's
understandable. You put in the Intelligence Community and that
information doesn't go to somebody else who needs to have it
because they're surveilling and that is a fine line.
But what have you done to prepare yourself to learn the so-
called Chinese language and what is your approach, given the
ferocity of the pace at which everything is moving, to
preparing yourself for the nuances that don't fall specifically
under knowing the law?
Mr. Muller. As you know I have had a practice of law, but I
have also done what I think I could do up until now to begin to
prepare. I didn't obviously want to pre-judge the conclusion of
this Committee. But first, with respect to the reorganization,
I have asked for--although not received--the Scowcroft report.
I have clearances, but so far I think, understandably I am
cleared up to only a certain level. I have not yet printed or
gotten the report for Zoe Baird's group, but I obviously will
read that.
I have read a fairly thick set of materials that I have was
given by John Rizzo and Fred Manget at the Agency to read to
sort of get a general sense of the law. I have read and have
the kind of understanding one gets without having a specific
matter in front of you, you know, all of the statutes and
Executive orders.
I have read the authorization bills and then I have asked
for and so far had briefings, again up to the secret level,
from the heads of each of the groups within the General
Counsel's office. I have read 1-page biographies of each of the
lawyers in that office and I have given them--I guess I haven't
given them yet--I have given orally and they have a longer list
of things that I have asked for--things that come to the top of
my head.
With respect to that I have asked for an index of all of
the IG reports for the last 10 years. I have asked for copies
of each of the IG reports that relate to the General Counsel's
office. I have asked for a collection of the findings in
effect. I have asked for a variety of materials like that--a
list and a compilation of the congressional prohibitions,
whether precatory or otherwise that are still current.
My plan, subject to the DCI, of course, and conversations
with the deputies who are experienced in the office--and we had
a brief conversation about this yesterday--is to spend a
significant amount of time walking the building, meeting with
the clients and learning the business.
There is no way to give intelligent and sound advice
without understanding the business and, of equal importance,
without the client believing that you understand the business.
So I would expect to spend a significant amount of the first at
least 4 weeks trying to avoid the incoming while I go and learn
what the battlefield looks like.
Senator Rockefeller. I don't want this to sound wrong, but
I just want to ask you for my own information. How much
traveling have you done in the world? In the Middle East? In
South and Southeast Asia?
Mr. Muller. I spent two summers in Europe. I spent 6--
almost 4 months in the Middle East and Africa. In 1971 and 1972
I was the--mostly by accident of fate--became the manager of
Middle East and African sales for Harper and Row publishers. My
job was to travel to meet booksellers and go to universities
throughout the Middle East and Africa. I spent 2\1/2\ weeks in
Lebanon at that time, well before the war--it was a beautiful
place--and throughout Africa. I've been to Europe a number of
times. I have never been to South America.
In my work at Davis Polk I have had a number of European
clients and spent a significant amount of time in Switzerland,
in Spain, investigating and doing cases there, in Germany. I
traveled in Eastern Europe on two occasions during summers,
spent 2\1/2\ weeks in East Germany when I was 17. At one time,
I had passable German and passable French--no longer.
Senator Rockefeller. OK, Mr. Muller, I thank you. You
understand the nature of our questions.
Mr. Muller. Of course.
Senator Rockefeller. They are the questions, as you
indicated, that we should be asking. I am also very impressed,
as Senator Graham is, by your candor and your composure and I
think sense of precision and confidence, which is important.
So I draw this hearing to a close and repeat what he says,
that we'll do this as expeditiously as possible. The Agency
needs a General Counsel and we want it to work.
Mr. Muller. Thank you very much, Senator.
Senator Rockefeller. Thank you, sir.
[Whereupon, at 10:50 a.m., the hearing adjourned.]
COMMITTEE BUSINESS MEETING TO VOTE ON THE NOMINATION OF SCOTT W. MULLER
TO BE GENERAL COUNSEL OF THE CENTRAL INTELLIGENCE
----------
WEDNESDAY, OCTOBER 16, 2002
U.S. Senate,
Select Committee on Intelligence,
Washington, D.C.
The Committee met, pursuant to notice, at 12:26 p.m., in
room S-216, The Capitol, the Honorable Bob Graham (Chairman of
the Committee) presiding.
Committee Members Present: Senators Graham, Levin,
Rockefeller, Wyden, Shelby, Kyl, Hatch, Roberts, and DeWine.
Committee Staff Members Present: Al Cumming, Staff
Director; Bill Duhnke, Minority Staff Director; Vicki Divoll,
General Counsel; Kathleen McGhee, Chief Clerk; Melvin Dubee,
Lorenzo Goco, Jim Hensler, Hyon Kim, Matt Pollard, Michal
Schafer, Linda Taylor, and Jim Wolfe.
Chairman Graham. Member, we now have a quorum of nine
present.
The Committee will consider the nomination of Mr. Scott W.
Muller for the position of General Counsel of Central
Intelligence Agency. Pursuant to Rule 5 of the Committees
rules, I move the Committee vote to report favorably to the
Senate the President's nomination of Mr. Scott W. Muller to be
CIA General Counsel.
Is there a second?
Vice Chairman Shelby. Second, Mr. Chairman.
Chairman Graham. The Clerk will call the roll.
Mrs. McGhee. Mr. Levin.
Senator Levin. Aye.
Mrs. McGhee. Mr. Rockefeller.
Senator Rockefeller. Aye.
Mrs. McGhee. Mrs. Feinstein.
Chairman Graham. Aye by proxy.
Mrs. McGhee. Mr. Wyden.
Senator Wyden Aye.
Mrs. McGhee. Mr. Durbin.
Chairman Graham. Aye by proxy.
Mrs. McGhee. Mr. Bayh.
Chairman Graham. Aye by proxy.
Mrs. McGhee. Mr. Edwards.
Chairman Graham. Aye by proxy.
Mrs. McGhee. Ms. Mikulski.
Chairman Graham. Aye by proxy.
Mrs. McGhee. Mr. Kyl.
Senator Kyl. Aye.
Mrs. McGhee. Mr. Inhofe.
Vice Chairman Shelby. Aye by proxy.
Mrs. McGhee. Mr. Hatch.
Senator Hatch. Aye.
Mrs. McGhee. Mr. Roberts.
Senator Roberts. Aye.
Mrs. McGhee. Mr. DeWine.
Senator DeWine. Aye.
Mrs. McGhee. Mr. Thompson.
Vice Chairman Shelby. Aye by proxy.
Mrs. McGhee. Mr. Lugar.
Vice Chairman Shelby. Mr. Lugar, aye by proxy.
Mrs. McGhee. Mr. Shelby.
Senator Kyl. Aye.
Mrs. McGhee. Mr. Graham.
Chairman Graham. Aye.
Mrs. McGhee. Seventeen ayes.
Chairman Graham. The ayes are seventeen, the nays are zero.
The ayes have it. Mr. Muller's nomination for CIA General
Counsel will be reported favorably.
[Whereupon, at 12:28 p.m., the Committee adjourned.]