Hearings
Hearing Type:
Open
Date & Time:
Wednesday, April 6, 2022 - 10:00am
Location:
Hart 216
Witnesses
Full Transcript
[Senate Hearing 117-306]
[From the U.S. Government Publishing Office]
S. Hrg. 117-306
NOMINATION OF KATE E. HEINZELMAN
TO BE GENERAL COUNSEL OF
THE CENTRAL INTELLIGENCE AGENCY
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HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
APRIL 6, 2022
__________
Printed for the use of the Select Committee on Intelligence
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
47-984 PDF WASHINGTON : 2022
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
MARK R. WARNER, Virginia, Chairman
MARCO RUBIO, Florida, Vice Chairman
DIANNE FEINSTEIN, California RICHARD BURR, North Carolina
RON WYDEN, Oregon JAMES E. RISCH, Idaho
MARTIN HEINRICH, New Mexico SUSAN COLLINS, Maine
ANGUS KING, Maine ROY BLUNT, Missouri
MICHAEL F. BENNET, Colorado TOM COTTON, Arkansas
BOB CASEY, Pennsylvania JOHN CORNYN, Texas
KIRSTEN E. GILLIBRAND, New York BEN SASSE, Nebraska
CHUCK SCHUMER, New York, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
JACK REED, Rhode Island, Ex Officio
JAMES INHOFE, Oklahoma, Ex Officio
----------
Michael Casey, Staff Director
Brian Walsh, Minority Staff Director
Kelsey Stroud Bailey, Chief Clerk
C O N T E N T S
----------
APRIL 6, 2022
OPENING STATEMENTS
Page
Warner, Hon. Mark R., a U.S. Senator from Virginia............... 1
Rubio, Hon. Marco, a U.S. Senator from Florida................... 3
Bennet, Michael F., a U.S. Senator from Colorado................. 5
WITNESS
Heinzelman, Kate E., Nominee to be General Counsel, Central
Intelligence Agency............................................ 6
Prepared statement........................................... 9
SUPPLEMENTAL MATERIAL
Nomination material for Kate E. Heinzelman
Questionnaire for Completion by Presidential Nominees........ 32
Additional Prehearing Questions.............................. 54
Post-hearing Questions....................................... 99
NOMINATION OF KATE E. HEINZELMAN
TO BE GENERAL COUNSEL OF
THE CENTRAL INTELLIGENCE AGENCY
----------
WEDNESDAY, APRIL 6, 2022
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m., in Room
SH-216 in the Hart Senate Office Building, Hon. Mark R. Warner
(Chairman of the Committee) presiding.
Present: Senators Warner, Rubio, Wyden, Heinrich, King,
Bennet, Casey, Burr, Collins, Blunt, Cotton, and Cornyn.
OPENING STATEMENT OF HON. MARK R. WARNER, A U.S. SENATOR FROM
VIRGINIA
Chairman Warner. I'm going to call this hearing to order.
I want to welcome our witness, Kate Heinzelman, the
President's nominee to be General Counsel to the CIA. We want
to welcome you and your family. I think you've got a number of
members. I hope you will introduce them in your opening
statement.
I also want to thank my friend Senator Bennet who, when I'm
done with my opening and Senator Rubio is done with his, is
going to introduce the witness.
We look forward to your testimony.
Ms. Heinzelman comes to this position with a very
impressive background. She is currently Chief Counselor in the
Office of the Attorney General and has previously been Deputy
General Counsel to the Department of Health and Human Services,
as well as Special Assistant and Associate General Counsel to
President Obama. She has also been counsel to the Assistant
Attorney General for National Security.
The General Counsel is the CIA's chief legal officer and
plays a critical role in ensuring that the Agency's
intelligence operations and collection adhere to the law, and
ensuring that the rights and liberties of Americans are
protected. The GC is also the principal legal advisor to the
Director of the CIA.
Ms. Heinzelman, should you be confirmed you'll need to
provide both sound legal analysis and good judgment. As the
CIA's top legal officer you would be responsible for ensuring
that CIA operations, including covert operations, are both
within the letter and the spirit of the law.
The Director will often turn to your advice on difficult
decisions that may involve, candidly, life and death and must
be made expeditiously. I'd like to hear from you today about
how you would go about providing such critical advice.
The Agency has not confirmed a General Counsel for over a
year, and it is vital that there be a confirmed GC in place.
Looking at recent headlines, it seems as if global security and
stability are increasingly in peril. I think every one of us on
this Committee has been shocked by the Russian actions in
Ukraine.
I heard General Milley saying it may be some of the most
dangerous times we have faced since World War II. We see some
of these Russian actions, from the President on down and
leaders all over the world, condemning Putin for war crimes. I
mean, again that brings its own legal definition.
But the truth is, as we've seen from the recent worldwide
threats hearing, threats faced by the United States go well
beyond Ukraine-Russia. Increasingly we've seen enormous
competition. And all of us on this Committee have taken the
lead on calling out the competition we face with China,
especially in the area of technology.
Iran and North Korea continue to pursue malign activities.
And terrorist groups still present a formidable threat. And of
course we all know the threat of cyberattacks, including
against our critical infrastructure as well as misinformation
and disinformation, continue to present serious concerns.
The CIA and our other intelligence agencies have been
critical in providing warning on these threats. I for one think
that, frankly, the forward-leaning aspect of the community has
really not only kept Vladimir Putin off guard in terms of being
willing to declassify information in a timely manner, but also
helped build the alliance.
The Agency operates around the world in difficult and
dangerous places. The CIA must also operate in strict
compliance with United States law, including the Constitution,
Acts of Congress, and treaties made under the authority of the
United States.
The General Counsel serves to ensure that compliance
regardless of the particular situation or pressures that may be
faced at that moment in time. This Committee, in performing its
oversight function, relies on you to keep us fully and
currently--and that currently is particularly important at this
point--informed at all times. And to come forward without
prompting to report any issues that could be a serious concern.
We've seen over the years the importance of legal
determinations in ensuring that the Agency's actions stay
within the bounds of law, from ensuring that detainees are
treated in a humane and legal manner, to ensuring that privacy
and the civil liberties of Americans are protected.
In the previous Administration, we know that a
whistleblower came forward to the General Counsel to report
wrongdoing. But instead of investigating that person's
allegations, the then-GC instead contacted the White House. And
I will need your assurance that should you ever be placed a
similar situation, you would ensure that such concerns are
addressed promptly in a way that also protects the
whistleblower's identity.
In sum, my colleagues and I who serve on this Committee see
every day that we live in an obviously very dangerous world.
And the CIA is clearly the point of the spear in terms of our
Intelligence Community. Truth is, you've got to make sure you
would do your job, should you be confirmed, with no pressure.
So congratulations again on your nomination. Thank you for
agreeing to step forward to serve our country.
Now after the Vice Chairman has given his opening
statement, I will call on Senator Bennet to make a formal
introduction. We will then swear you in. We will go by
seniority for the questioning. I ask all Members to observe the
five minute limit.
With that I look forward to the remarks of the
distinguished Vice Chairman.
OPENING STATEMENT OF HON. MARCO RUBIO, A U.S. SENATOR FROM
FLORIDA
Vice Chairman Rubio. Well thank you, Chairman Warner.
And thank you Ms. Heinzelman for being here. Welcome to
your family. Thanks for the chance yesterday to meet and to
discuss your nomination.
As I discussed with you, the General Counsel at the CIA is
an important role given the work the Agency does on behalf of
our country. The CIA can't execute its worldwide mission in
accordance with the authorities provided to it without a
General Counsel who provides both policy and legal advice to
the Director. No agency in American government is above the
law, certainly not the CIA. And it's important that their
activities always be within the law.
This Committee was created to provide oversight of the CIA
and the entire Intelligence Community. And that said, it is
important that counsels at the same time do not impede the
operations of the Agency when working under Presidential
authority and with congressional support through authorization
and funding. And so the role of the General Counsel is to make
sure they're following the law, but also not to become an
unnecessary impediment to the very difficult work of acting on
behalf of the national interest of our country.
I do want to make a broader editorial point which, while
related to this nomination, is not a direct statement about
you, who I'm interested to learn more about--you and your
background and so forth. But it really is more of an editorial
statement about an ongoing pattern that we've seen of some of
the nominees in this Administration, particularly in the
Intelligence Community. I think what it reflects is both the
difficulty of dealing with the holistic threat that's posed by
the Chinese Communist Party and at the same--the holistic
threat that it actually is as well.
So since the President took office, we've now processed a
number of nominees--by the way not just to the Intelligence
Community but other agencies--who have at some point done work
on behalf of either the Chinese Communist Party, or generally
Chinese entities directly linked to the Chinese State. I
understand people don't like it to be characterized as such,
but it is what it is. And anyone who understands the nature of
the threat posed by China understands that's what it is.
And here's how the pattern generally has gone. These are
highly credentialed folks, there's no doubt about it. And they
begin their work in a position of trust and national security
in the Executive Branch. They leave. They're even more highly
credentialed, and they go work for an international corporate
law firm. At that firm, despite having held positions in
government which he or she should have known the true nature of
the threat from China and all the ways they seek to influence
American policy, they end up representing or doing work on
behalf of some state-controlled entity in China, representing
them generally on matters such as helping them understand U.S.
law, right?
And now, forth, this increasingly credentialed person who
has worked in the Executive Branch, has worked outside of
government, seeks to come back into government service at the
highest levels in which trust and judgment are paramount. And
then that individual is nominated for a position.
So this pattern, the reason why I pointed it out is, I
think, two things are at play here. The first is how difficult
it's become to find highly qualified and credentialed
individuals to serve, who haven't at some point in the private
sector interacted with Chinese Communist Party-linked entities,
because that's just the nature of the challenge that we face
from China.
I think the other--as a broader editorial, I really hope
the Administration is more sensitive about this in the months
to come and in the future nominations that await, because this
is really a commentary on the U.S., and on our internationally
based law firms and how their business model in many ways is
now enabling and supporting the soft power and the subversive
efforts of CCP-controlled entities.
So look, this doesn't make any of these people who have
been nominated in the past bad people. It doesn't even
disqualify them from important or rewarding work on behalf of
the government. But I think it begins to demonstrate for us two
things, again--as I've already pointed out--how hard it is to
find people that are in a position to serve who haven't at some
point rubbed up against the influence efforts of the Chinese
government. And I think it also potentially reflects how some
are diminishing, how pervasive this has become, and what a
difficult challenge this China threat has become for us.
So with that said, obviously I look forward to learning
more about you, your background, your qualifications, your
views, and your role, should you be confirmed. As I said, the
General Counsel position is a really important one, as we
discussed yesterday. Yes, it's about making sure the CIA is
following the law, but it's also about providing advice and
counsel on options that exist to serve the national interest of
our country, within the framework of what the Agency is
authorized to do. I think that's just as important in this
role.
So thank you for your willingness to serve. And we look
forward to hearing your testimony.
Chairman Warner. Thank you, Senator Rubio.
I'm now going to ask our colleague on the Committee,
Senator Bennet, to make a formal introduction of the nominee.
Senator Bennet?
OPENING STATEMENT OF HON. MICHAEL F. BENNET, A U.S. SENATOR
FROM COLORADO
Senator Bennet. Thank you to the Chairman and the Vice
Chairman for allowing me to introduce Kate Heinzelman,
President Biden's nominee to serve as General Counsel of the
Central Intelligence Agency.
This Committee needs no reminder that we're at a crossroads
for American national security. This moment, perhaps more than
any in our lifetimes, challenges America to advance our
national security while upholding our deepest values, including
our commitment to the rule of law.
Ms. Heinzelman has a rigorous combination of legal and
national security experience to meet this moment. In one way,
this nomination brings Ms. Heinzelman back to where she began.
In 2003, she joined the CIA as an intern analyst. Today,
she sits before this Committee having had nearly 20 years of
experience in law and national security at the highest levels
across both Republican and Democratic administrations. She
graduated from Yale Law School and clerked for Merrick Garland
on the D.C. Circuit, and for Chief Justice Roberts on the
Supreme Court. Ms. Heinzelman's national security experience
includes time serving on the WMD Commission, which was charged
with examining the intelligence failures in the lead-up to the
Iraq war. She also served with Ambassador Negroponte in his
role as the first Director of National Intelligence and as
Counsel in the National Security Division at the Department of
Justice. She has since worked in other critical roles in the
Federal Government, from Associate Counsel to the President, to
Deputy General Counsel at HHS, to her current role as Chief
Counselor for Attorney General Garland. She was a partner at
Sidley Austin, where she worked on cybersecurity and privacy
matters.
Her colleagues, Mr. Chairman, say she's brilliant, generous
with her time, and deeply patriotic. I had the good fortune of
working with Merrick Garland many years ago at the Department
of Justice and there are few people I hold in higher regard. I
can tell you that Ms. Heinzelman has proven herself to be a
much better lawyer than I ever was, but I also can say that it
speaks volumes about her intellect and character that the
Attorney General asked her to work with him for a second time.
This Committee appreciates the challenging times ahead for
our national security and for the Intelligence Community in
particular. And at a time when democracy and the rule of law
have come under attack, not only in Ukraine but across the
globe, we know that defending our security and our values goes
hand in hand. In this difficult time, I am confident that Ms.
Heinzelman is up to the challenge.
And I want to just close by thanking her for stepping
forward to serve our country again. And I want to thank her
husband Jonathan and their two children, Penelope and August,
for supporting her in the days ahead.
Thank you, Mr. Chairman.
Chairman Warner. Thank you, Senator Bennet.
Will the witness please stand and raise her right hand?
Do you solemnly swear to give this Committee the truth, the
full truth, and nothing but the truth, so help you God?
Ms. Heinzelman. I do.
Chairman Warner. Please be seated.
Before moving to your opening statement, I will ask you to
answer the following five standard questions the Committee
poses to each nominee who appears before us. They require a
simple yes or no for the record.
First, do you agree to appear before the Committee here or
in other venues when invited?
Ms. Heinzelman. Yes.
Chairman Warner. If confirmed, do you agree to send
officials from your office to appear before the Committee and
designated staff when invited?
Ms. Heinzelman. Yes.
Chairman Warner. Do you agree to provide documents or other
materials requested by the Committee in order for it to carry
out its oversight and legislative responsibilities?
Ms. Heinzelman. Yes.
Chairman Warner. Will you ensure that your office and your
staff provide such materials to the Committee when requested?
Ms. Heinzelman. Yes.
Chairman Warner. Do you agree to inform and fully brief to
the fullest extent possible all Members of this Committee of
intelligence activities and covert actions rather than only the
Chairman and Vice Chairman?
Ms. Heinzelman. Yes.
Chairman Warner. Thank you very much.
We'll now proceed to your opening statement after which
I'll recognize Members again by seniority for up to five
minutes each.
Ms. Heinzelman?
STATEMENT OF KATE E. HEINZELMAN, NOMINEE TO BE GENERAL COUNSEL
OF THE CENTRAL INTELLIGENCE AGENCY
Ms. Heinzelman. Mr. Chairman, Mr. Vice Chairman, Members of
the Committee, thank you for the opportunity to appear before
you today.
Senator Bennet, thank you for that generous introduction.
I'm deeply honored by the President's nomination and by the
trust that he, Director Burns, and Deputy Director Cohen have
placed in me.
Throughout my years in public service, I've been blessed to
have had extraordinary mentors. These individuals, who have
served across administrations, have taught me about the
national security challenges we face and how to be a rigorous
lawyer and effective partner.
I believe this is a critical moment for the Intelligence
Community. Intelligence is key to helping decisionmakers, and
can serve as the country's best first-line of defense. Ensuring
that CIA conducts its mission at all times within the bounds of
the law is integral to that defense and an example to the world
about rule of law in America. It would be a great privilege to
serve as CIA's General Counsel.
I first came to the Intelligence Community as a summer
intern analyst at the Agency. That experience opened a window
for me into the professionalism and dedication of CIA officers.
It had a lasting impact. After graduating college, I joined the
staff of President Bush's WMD Commission, which was charged
with investigating the intelligence failures about Iraq's WMD
program and recommending a path forward. I then served in the
office of the first Director of National Intelligence.
Following law school and two clerkships where I had the
chance to see national security issues from another vantage
point, I worked in the National Security Division at the
Department of Justice, the creation of which had been one of
the WMD Commission's recommendations.
I then went to the White House Counsel's Office and later
served as a Deputy General Counsel at the U.S. Department of
Health and Human Services, where I helped lead an office of
hundreds of lawyers.
In 2017, I joined the law firm Sidley Austin, where my
practice focused on cybersecurity and privacy issues. Since
January 2021, I've been honored to serve as the Chief Counselor
in the Office of the Attorney General at the Department of
Justice.
If I am fortunate enough to be confirmed, I will bring each
of these experiences to bear in helping the CIA navigate the
challenges from nation-state and non-state actors we face
today; among these are Russia's invasion of Ukraine, China's
efforts to expand its power worldwide, cyber threats against
networks of all types, terrorist threats, and a multitude of
others.
Director Burns has established his priorities for the
Agency: China, Technology, People, and Partnerships. The
General Counsel's Office can play a critical role in enabling
the CIA to do its vital work and implement its priorities in a
manner that is fully consistent with the law. To this end, the
first objective of the General Counsel's Office should, in my
view, be to provide clear and accurate legal advice on the full
range of legal matters confronted by the Agency. Just as we
seek rigor and timeliness in intelligence, so too should we
demand these things from the talented and dedicated lawyers at
the Agency.
Second, the Office should be an important contributor to
the Agency's compliance work. I believe that lawyers should not
just give advice on the law but that they should make sure
their advice is actionable, and that they should anticipate to
the extent possible what lies around the next corner.
Third, the Office of the General Counsel should help
maintain public trust and reinforce accountability to the
American people. This includes working closely with this
Committee to help enable the congressional intelligence
committees' critical oversight work and helping to provide
appropriate transparency about the basis for CIA's actions.
This is particularly indispensable at the CIA, given that
the Agency's activities are generally conducted outside the
public view.
To achieve these objectives, the General Counsel must
maintain an office that invests in workforce and partnerships,
two of Director Burns' priorities. If confirmed, I would view
these two as foundational priorities.
To provide top-notch legal counsel in this operational
environment requires not only that lawyers have subject matter
expertise and close relationships with their clients, but also
the independence that enables them to deliver advice that at
times clients may not want to hear.
I am here, as I noted at the outset, because I have had the
chance to learn from extraordinary public servants. I am also
here because of the friends, teachers, and family who have
supported me. My husband is the rock of our family; there are
not words enough to thank him. And our children, with a third
due to arrive any day, are a daily reminder of what we work as
public servants to protect.
I've brought my children with me here today in the hopes
that seeing these halls and the great American tradition that
these proceedings represent, will leave as indelible an
impression on them as my encounters with the great institutions
of our government have left on me.
Thank you for considering my nomination and for holding
this hearing today. I look forward to answering your questions.
[The prepared statement of Ms. Heinzelman follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Warner. Well, thank you very much for that
testimony.
And my hope is that this hearing will not speed up the
delivery of your future daughter.
I want to make one comment. I think Senator Rubio's
comments raise a bigger issue because we have seen a number of
nominees come before this Committee who worked at big corporate
firms. And I don't know if there are many corporate firms
around that probably didn't have some clients at some point
that touched China.
This Committee took a real lead. In 2018 we did the first
of what we call our classified roadshows with bipartisan
presentations, where we met with business after business who
candidly told us the government had done a pretty crummy job of
explaining this threat. I remember once in Texas where one of
the college presidents said, I thought when a student visa came
in, the government had done their background screening.
I do think we ought to rethink relationships with China. I
think the CCP is one of our most major threats. But I do think
the notion that even if you're a lawyer in a corporation, we
need some guidance on this. And the vast majority of the
Fortune 500 unfortunately still do business with China. I think
they all candidly kowtow to the leadership of the CCP because
they always say, ``It's too big a market to move past.'' And
frankly, they turn a blind eye, whether it's human rights
abuses in Hong Kong or the Uyghurs in China. But I do hope we
would roll out a consistent policy on that on a going-forward
basis.
I want to go to a couple of my quick questions here.
The CIA GC has been a job that's been unfilled over the
last year. It's a large group of lawyers. How would you go in?
And I know you've had some management experience, but how would
you go in and reassert the role of the General Counsel and,
frankly, make sure that you've got appropriate management
principles in place?
Ms. Heinzelman. Thank you, Chairman, for the question.
You know, there is clearly a lot on the plate of the
incoming General Counsel at CIA. As I mentioned in my opening
statement, we are at a critical moment for the Intelligence
Community. You don't have to look very far in the news to see
the full array of both near-term and credibly pressing
priorities, and some of the longer-term challenges like how the
Agency deals with the many issues that new technologies are
posing both as an intelligence matter, and as an internal
management matter. So I have no doubt that the incoming GC has
a very full calendar.
I have had experience, as we've discussed Chairman--I
appreciated the opportunity to meet with you the other day--
coming into a General Counsel's office operation at HHS, a
considerable one, and figuring out how to be effective upon
entering an organization that is already functioning without
you. And I have every confidence that the acting leadership of
the CIA General Counsel has been doing a terrific job in the
meantime. But I would bring some of the lessons that I learned
from that experience to bear here. I would have open ears and
be observant. And I would want to take my first several weeks
to really look at and assess what the Office needs.
Chairman Warner. Thank you.
My last question is that this Committee had to wrestle
firsthand with the CIA whistleblower who came forward, went to
the GC in the previous Administration. The GC then, rather than
following traditional procedures, went to the DOJ and the White
House. And many of us believe appropriate procedures were not
followed. How do we, how do you, make sure that we protect
whistleblowers? Have a culture that says, if you're going to
come forward, there's not going to be retribution. That we try
to protect your anonymity. This is something that I just think,
on a going-forward basis, we need to make sure that those
individuals are protected. But I'd like you to comment on that.
Ms. Heinzelman. Chairman, I couldn't agree more with you
about the importance of ensuring that we follow all of the laws
and internal procedures that we have for appropriately
protecting whistleblowers.
I think that the way that the IC handles whistleblower
complaints, and making sure that we are doing so in accordance
with all of our procedures--appropriately protecting them,
making sure that information is appropriately protected in the
process, is a critical part of that goal of fostering and
continually re-earning trust, both the trust of the American
people, the trust of this Committee as a partner, and
internally the trust of the workforce.
So that will certainly be a priority of mine, if confirmed
to the position.
Chairman Warner. Thank you so much.
Senator Rubio?
Vice Chairman Rubio. Thank you.
Well, I wanted to cut to the chase, because I thought we
would talk about this today, and I want to give you an
opportunity to describe the work you did when you were Counsel
at the firm--to WuXi. Just for the information of everybody,
WuXi Biologics--the Chinese State media has dubbed it as the
``Huawei of China's pharma sector.'' So clearly, it has deep
connections to China's Communist Party and the State.
So I want you to describe it basically. At the time you
were not a partner; you were of Counsel at the firm?
Ms. Heinzelman. That's correct.
Vice Chairman Rubio. Okay. So just if you could walk us
through. I'm familiar with it, but maybe not everybody is. How
does that happen internally? How did you get the work? Who gave
you the work? What was it? What did it entail? How much was it?
That kind of thing.
Ms. Heinzelman. Absolutely. Thank you, Mr. Vice Chairman.
And thank you for the opportunity to meet and speak yesterday.
To the best of my recollection, the matter that you are
referring to came to me through a partner at the firm who asked
me to work on it--I was a counsel at the time--who asked me to
give the kind of advice to this company that I gave to a whole
range of companies for whom I did work for while at the firm,
which was privacy-compliance advice. In short--how to comply
with the U.S. Federal and state privacy laws, the purpose of
which is to protect U.S. consumer data. I did that work in
particular for companies that handled health data, given a
specialization that I developed in our statutes, our State and
Federal laws that protect health data.
And so that was the kind of advice that I gave to this
company on this one matter. I don't think I had any other
interactions with the company.
Vice Chairman Rubio. So this was somebody else at the firm,
some partner's client and they--because of your previous work--
they asked you to help advise the client on how to comply with
privacy laws in the United States, regarding healthcare
information?
Ms. Heinzelman. That's correct.
Vice Chairman Rubio. How many hours did you bill on that?
Ms. Heinzelman. This was under 10 hours. I believe it was 7
hours, 7.1.
Vice Chairman Rubio. Okay.
We did ask you about, in your prehearing questionnaire,
questions related to the current ODNI General Counsel's private
sector representation of Huawei. You confirmed that you did not
bill any hours or contribution to that representation while at
the firm, but noted that out of an abundance of caution that
you may have been part of an internal discussion related to a
newer potential engagement for the company.
Like I said, I appreciate your candor in mentioning it. Do
you recall your contribution to that discussion?
Ms. Heinzelman. I'm sorry, Mr. Vice Chair. Can you just
repeat the end of your question?
Vice Chairman Rubio. Yes.
So basically we asked you a question in the prehearing
process about the General Counsel at the ODNI, when he was at
the same firm, representing Huawei. And you noted that you did
not represent that client but that you said that out of an
abundance of caution that you may have been part of some
internal discussions related to a new or potential engagement
for the company.
Do you have anything further that at this point? I
appreciate you mentioning that proactively in the
questionnaire. I'm just curious whether you have any followup
on whether that actually happened or what--for Huawei?
Ms. Heinzelman. That's correct.
Mr. Vice Chairman, I tried to provide as much information
as possible knowing, understanding this Committee's interest.
But consistent with my recollection, the firm records that I've
consulted show that I never billed any time to that matter.
Vice Chairman Rubio. Okay.
One final question that I have is you've been acting or
you've been serving as Chief Counsel to the Office of the
Attorney General since the beginning of this Administration.
During your time in this position, have you been involved at
all in any of the investigations into what's called Anomalous
Health Incidents that have impacted Department of Justice
individual employees? Talking about Anomalous Health Incidents
that have occurred abroad.
Ms. Heinzelman. So I am familiar with the issue, of course,
of Anomalous Health Incidents, or AHIs, and how they have
affected public servants across the government at a high level.
And I know that this is a priority for Director Burns, for DNI
Haines, and that they are pursuing concurrently efforts to both
attribute and understand the cause of the attacks, and to
ensure that employees get the healthcare and the services that
they need. And that would be a priority of mine if confirmed to
this position as General Counsel.
Vice Chairman Rubio. Have you conducted or overseen any of
the investigative efforts on it? Has that been part of your
portfolio?
Ms. Heinzelman. Mr. Vice Chairman, in my role as Chief
Counselor, I advise the Attorney General on a range of matters
with a particular focus on national security issues. And you
know, I'm afraid I can't get into specific matters more than
that.
Vice Chairman Rubio. Okay.
Well, we'll followup in the appropriate setting. But again
I'm not asking for the details of the matter. I'm simply asking
if you have been involved in those in overseeing any of the
efforts on that matter. It's--it's a matter of public record
that the Department of Justice is interested in the matter.
Ms. Heinzelman. Yes. Mr. Vice Chairman, if I can just
answer that question. It is a matter of public record that the
Department has taken its own action to ensure that it complies
with directives to appoint people internal to the Department to
handle complaints appropriately. But, Sir, I don't have much
more to say about the Department's own handling of AHI matters.
I'm not aware of further action that it's taken publicly on
that.
Chairman Warner. Senator Wyden.
Senator Wyden. Thank you very much, Mr. Chairman. Ms.
Heinzelman welcome. I very much enjoyed our conversation. I
want to pick up on this issue of privacy for a moment; we
talked a bit about this in the office.
In the office we talked about the Supreme Court's Carpenter
case which essentially lays out that access to a person's
historical cell site records is a Fourth Amendment search
because it would otherwise violate somebody's expectation of
privacy when you're talking about physical movements. Now the
Carpenter case really changed Americans' understanding of their
Fourth Amendment rights. This was a significant development.
And yet as far as I can tell, the public really has never been
told whether it applies to the Intelligence Community.
So my question is, if you're confirmed would you ensure
that Americans are informed about whether and to what extent
Carpenter applies to the Intelligence Community or the CIA?
Ms. Heinzelman. Thank you, Senator Wyden. And thank you for
taking the time to meet with me the other day.
If I'm confirmed to the position, I would be very happy to
look into whether the CIA has guidance on Carpenter, to
determine whether or not it needs any guidance that it doesn't
have. And to work with you on seeing what can be done to make
public any significant interpretations, legal frameworks, about
significant issues.
As we discussed, I believe that's an important part of the
CIA's accountability. And I would look forward to working on
that issue more generally.
Senator Wyden. What possible argument would there be to
this major Supreme Court case laying out significant new
privacy law? What argument would there be for it not applying
to the Intelligence Community?
Ms. Heinzelman. Senator, the Carpenter decision is in some
ways, as self-described, a narrow ruling about CSLI or cell
site location information data. It's been interpreted in other
courts since, so one of the things I would want to look at, if
I'm confirmed to the position, is not just Carpenter but also
other subsequent Fourth Amendment case law interpreting
Carpenter in the lower courts. And unfortunately I don't know
enough, not being at the Agency now, about the potential
relevance to CIA's particular activities.
Senator Wyden. But you're not in fundamental disagreement
with where the court is taking our country.
Ms. Heinzelman. No, Senator. I don't have a--no.
Senator Wyden. Good.
One last question, if I might.
Earlier this year CIA released a portion of the report from
the Privacy and Civil Liberties Oversight Board. And this was
dealing with how to reform the CIA's activities under Executive
Order 12333.
And as we talked about, I've been very concerned about this
because we have two statutes out. The Foreign Intelligence
Surveillance Act, pretty specific, fair amount of details. I'm
certainly interested in some reforms but there's a fair amount
of roadmap on how it works. Executive Order 12333, we're
basically in a very barren area. There's virtually few
guidelines and rules. And I and Senator Heinrich would like to
change that.
Now Director Burns, to his credit, said at our recent open
hearing that he would address one of those key recommendations
of the Privacy Board ensuring that when the CIA conducts
searches for Americans' information, it documents a
justification, so we have a real record. If the government is
looking into people's records, we're going to have some
documentation.
Now the Privacy Board makes a number of other
recommendations that I think are very important.
And so my question is, would you make it a priority to make
sure you review all of the Privacy Board's recommendations and
let us know when and how they could be implemented?
Ms. Heinzelman. Senator Wyden, I appreciate and understand
your concern about this issue and would make it a priority to
review the PCLOB's full reports and be in touch with you about
it.
Senator Wyden. I'll wrap up with this. Would it be
acceptable to you, if confirmed--I hope you will be confirmed--
to report within six months of starting work on the status of
those other Privacy Board recommendations so we can take that
incomprehensible-to-the-public area, Executive Order 12333, and
begin to get some transparency. Can we get a report within six
months of your starting work?
Ms. Heinzelman. Senator, I know that you and Director Burns
have discussed undertaking a review and that I believe he and
you set a six month deadline for that and I'm looking forward
to supporting that effort and will----
Senator Wyden. My time is up.
Just so you know, I think Director Burns is off to a strong
start with respect to privacy and some new accountability. I'd
like to see you build on it. Thank you.
Thank you, Mr. Chairman.
Chairman Warner. Senator Burr.
Senator Burr. Thank you, Mr. Chairman. Kate welcome. Mr.
Chairman, I hope we'll move this as expeditiously as we can.
What do you see as the most important function of General
Counsel at the Agency?
Ms. Heinzelman. Senator Burr, thank you for the question.
Thank you for meeting with me the other day. I enjoyed our
opportunity to speak.
I think the first obligation of the General Counsel's
Office is to provide accurate, clear, rigorous, and timely
legal advice to enable CIA's mission. Given the importance of
all the work that CIA does, I think that is the first thing
that the Agency should ask of its lawyers and they should view
that as their first obligation.
Senator Burr. And if the Director of the Agency disagrees
with you, what do you do?
Ms. Heinzelman. If the Director were to disagree--well I
will say first that I welcome robust and rigorous discussion.
And I welcome being challenged on legal views. I think that's
one thing that clients and lawyers sometimes do for each other.
But if I were to be confirmed as the Chief Legal Officer of the
CIA, if it was my view that something was not lawful, and I so
advised the Director, and he nonetheless proceeded to disregard
my advice, I would have to consider of course resigning and
taking other action.
Senator Burr. So let's say that there's a gray area. And
your recommendation is: brief the Committee. And the Agency or
the Director chooses not to do that. Do you believe it's the
role of the General Counsel if you felt strongly enough to come
directly to the Committee?
Ms. Heinzelman. Senator, yes. I think that the General
Counsel has significant obligations under Sections 502 and 503
of the National Security Act, and under the CIA Act, to inform
this Committee, timely, of significant intelligence
developments and the legal basis for them. So I can see a
circumstance like the one you're describing that would
certainly fall within those obligations.
To address the questions more generally, I think the fact
that there's a lot of gray area in the law makes it all the
more important that agency counsel be very clear with clients
about areas where there are legal risks, and what those risks
are, versus questions about legal permissibility and
impermissibility. And one of the guiding principles that I have
used throughout my career is to be very clear about the
distinction between those two, to help enable clients to make
the best decisions on the basis of my legal advice.
Senator Burr. Well, thank you for today's testimony. I
thank the Chair.
Chairman Warner. Senator King.
Senator King. I want to follow that series of questions. A
secret agency is an anomaly in a democracy. And our government
is built upon an elaborate set of checks and balances, many of
which don't necessarily apply to a secret agency. And the law
is one of those checks that does. And so to follow Senator
Burr's questions and to go back to the very beginning of this
hearing, you answered yes to the Chairman's questions about
making information readily available on a timely basis to this
Committee.
I think that's critically important. And I hope--right
now--I'd like to give you an opportunity to renew that
commitment that you made earlier today, and that you just made
to Senator Burr.
Ms. Heinzelman. Yes, Senator King.
And thank you for taking the opportunity to speak with me
this week as well.
I think the obligations that the CIA Director, that the
General Counsel, are under to ensure that this Committee is
fully and timely informed are critical. As I mentioned in my
opening statement, I believe this is particularly critical at
an agency like the CIA that necessarily has to conduct a lot of
its work outside of the public view. And I will always do my
utmost to comply with those obligations. And to bring matters
to this Committee consistent with all obligations to protect
sensitive information, because I view a partnership with this
Committee as being absolutely essential to the success of the
Agency's mission overall.
Senator King. And it's part of the checks and balances in
our system that this Committee has this responsibility. This
isn't like the Department of Agriculture or the Department of
Commerce that has outside commentators and newsletters and the
press and all of those kinds of things. We're it. And that's
why our relationship with you is so important.
Lawyers, in these situations have two roles. The first is
counsel to your client. And generally your job is to tell your
client how to do legally what they want to do. But at some
point, you have to say no.
And my question is, are you willing to say no to the
Director of the CIA, and the President of the United States,
when you're in the Oval Office and the President says, We've
got to do this in order to protect national security even
though it's in violation of the law. Are you willing to say no
in that situation?
Ms. Heinzelman. Absolutely, Senator.
Senator King. And at some point, report that to this
Committee.
One of the areas that it seems to me that we're going to
have to be thinking about is that we've had this clear
distinction in our intelligence laws and in our law enforcement
between U.S. and abroad. The CIA doesn't operate in the United
States. The FBI does. NSA doesn't operate with regard to U.S.
persons.
Here's the problem. We're entering an area where that line
is harder to draw. For example, in the area of Cyber, there may
be a cyberattack that originates in Russia or China but goes
through servers in New Jersey or California. And the question
is, is that a domestic issue or a foreign issue? Give me some
thoughts about how we maintain the fencing-in, if you will, of
our intelligence agencies with regard to Americans, and yet at
the same time effectively respond to threats that are more
complex and the lines are harder to draw?
Ms. Heinzelman. Thank you, Senator King.
That issue, particularly when it comes to technology, is as
you note increasingly complex. And the CIA and the Intelligence
Community have several tools to help them work through those
issues. But fundamentally, a lot of those questions are our
legal questions, or questions on which lawyers give guidance.
And there are some of the types of issues that I think are the
most challenging. It's one of the reasons why I think it is a
huge advantage to have lawyers who really understand
technology. You know, sometimes generalists--knowledge is not
enough to help us answer those types of questions.
I think that working with the Intelligence Community, writ
large, as a community to figure out which agencies are best
suited, consistent with their authorities, consistent with
Executive Order 12333 guidelines, to be the lead on given
issues, is one of the most important features of our community
system of intelligence.
Senator King. And to one final point. I hope that as you
encounter gray areas or areas of indistinct legal distinction--
legal rules--that you'll come to the Committee and suggest this
is a place where legislation might be necessary to clarify this
issue.
Again, we're all on the same team here. And to the extent
you can advise us as to changes in authorities or other areas
where legislation can help to clarify and deal with these
difficult issues, I'd appreciate it if you would do so.
Thank you.
Thank you, Mr. Chairman.
Chairman Warner. Senator Collins.
Senator Collins. Thank you.
First of all let me welcome you.
I want to followup on questions that my colleagues have
asked about when it is appropriate for you not to disclose the
information to the Committee, because I'm a little bit
concerned about your response to the first prehearing question
in which you assert the CIA's obligation to keep the
congressional intelligence committees fully and currently
informed pursuant to the National Security Act, but say that
that can be impeded on the grounds for protecting from
unauthorized disclosure. And I realize that's in a clause in
the same law. So your interpretation is really important.
I want to go to the 2014 report from this Committee on the
CIA's use of enhanced interrogation techniques. And I filed
additional views in which I expressed my concern that Congress
was only informed about the RDI program to the bare minimum.
Later former CIA General Counsel, John Rizzo, reflected that,
quote, ``The decision in 2002 to limit congressional knowledge
of the EITs to the ``Gang of Eight,'' and to stick to that
position for four long years, as the prevailing political winds
were increasingly howling in the other direction was foolish
and feckless.''
So my question to you is, how do you intend to draw the
line on informing Congress on critical issues such as this one,
particularly if they may be embarrassing to the Administration?
Ms. Heinzelman. Thank you, Senator Collins, for that
question, and for raising this issue that is so fundamental to
the whole role of the Intelligence Community writ large.
As we've been discussing here this morning, the CIA unlike
other parts of our government has particular obligations to be
forthcoming with the intelligence committees to ensure that
these committees can carry out their functions. And Section 502
of the National Security Act of 1947, is a critical part of
that. So I want to be very clear about the way that I interpret
it.
I'd like to start by saying that I would like to get to the
Agency and--if confirmed, really understand how it's been
applied historically. But the only exception--and it's not an
exception--the only qualifier, I should say, that I see in that
language about keeping the committees fully and currently
informed is simply the admonition that the CIA must do that
consistent with due regard for the protection from unauthorized
disclosure of sensitive intelligence information.
And I understand that language to be more of a question
about the manner in which information is conveyed and not so
much about the overall obligation, which is very clear from the
text of both sections 502 and 503, to keep the committees fully
and currently informed.
Senator Collins. Thank you.
Let me switch to a different issue. You went to the White
House beginning in May, 2013. That happens to be right around
the time that Edward Snowden illegally disclosed highly
sensitive information and fled to Russia. Were you asked to go
to the White House to work on the Administration's response to
the many unauthorized disclosures by Mr. Snowden?
Ms. Heinzelman. No.
Senator Collins. And did you work on this issue while you
were there?
Ms. Heinzelman. Senator, as an Associate Counsel in the
White House Counsel's Office, my portfolio included a broad
range of national security issues. And as you note, I was
there--I think my start date coincided just a couple of days or
weeks before those disclosures. And so I did work on those
issues for the White House Counsel.
Senator Collins. Thank you.
Chairman Warner. Senator Casey.
Senator Casey. Thanks very much.
And Ms. Heinzelman, grateful for your presence here today,
and your willingness to serve again, to serve the Nation at a
difficult time especially in this position.
I want to ask you about the balance that you'll have to
strike I guess on most days between legal advice and the
engagement you have with the policy staff in matters of policy.
Tell me how you'd manage those different responsibilities as
General Counsel?
Ms. Heinzelman. Thank you, Senator, for that question.
I have been--as I think about the position and the
extraordinary responsibility, I've been thinking about this
question about how you balance all the priorities of the
General Counsel, in particular how to balance being responsive
to Agency leadership, and the amount of time that they need
from the General Counsel, as well as effectively manage the
office.
But to address your question specifically, you know, I view
the primary role of the General Counsel to advise on legal
issues--but also the General Counsel can at times provide a
non-legal counsel. And I view that principally as being counsel
about risk, the kinds of things that are within the competence
of a lawyer.
But I do want to say in response to your question that the
CIA is an intelligence agency, and they generally don't weigh
in on matters of pure policy. And I think that's an important
part of the ethos of the place. And as a lawyer, one of my
reigning philosophies from the very first days when I was
working as a junior staffer for judges, is to be very clear
about my areas of competence and only advising within those
areas. So even when giving non-legal counsel, I would be
careful about ensuring that I am advising within my core areas
of competence and not straying outside of them.
Senator Casey. Thank you.
And I know that when you serve as General Counsel,
especially at a high level you've got to be a jack of all
trades. And unlike the common understanding of that, you have
to be a master of all. And it's difficult to do that when
you're providing a range of advice on a wide array of topics or
practice areas.
But if this is in essence a job interview when you come
before this Committee, tell us about what areas of your
experience--which is substantial I believe--prepares you best
to be able to provide that kind of broad-based advice on a
range of legal issues and in difficult concepts for, I think,
any General Counsel.
Ms. Heinzelman. Thank you, Senator.
I think there are three things--three features--of the
experiences that I've had both in the public sector and the
private sector that helped prepare me for this job in
particular.
The first is that I've had a series of positions over quite
a considerable period of time in our Intelligence Community
around our broader national security community. And from that
I've taken away areas of specialization, particularly my work
at the WMD Commission, at ODNI, and at Justice, on the
domestic-focused authorities, law enforcement authorities, as
they pertain to our national security community, but also more
broadly as I've touched on other areas. So the first is the
focus on national security issues specifically.
The second is that I've been fortunate enough to be able to
spend time at a variety of government entities. I've been on a
commission that looked at intelligence failures. In a 20/20
hindsight kind of way, I've been able to think about what it
means that the Intelligence Community is so often asked to act
quickly in the moment, to respond to something, and then steps
back and has time to look at what were the lessons learned. I
think that's an important, very healthy but also difficult
feature of being in our national security community.
I've had the opportunity to be at a very large General
Counsel's Office operation at HHS. I've had the opportunity to
see these issues from a variety of perspectives, and across a
variety of Federal practice areas. And I think that has
enhanced my understanding of what it is to be the sort of jack-
of-all-trades type General Counsel that you were mentioning.
And the third feature of my experience that I think is
important here is that throughout most of my career, I have
spent time on technology and privacy issues, and often from a
national security vantage point but sometimes not.
My work at HHS was not national-security focused, but I had
privacy-related responsibilities there. I think that broad
understanding, both in the private sector and in the public
sector, of privacy issues and technology issues is something
that I would very much hope to bring to the Agency with me. And
to think critically about how we can further strengthen the
work that the Agency's lawyers are doing on those subjects.
Senator Casey. Great. Thanks very much. Thanks, Mr.
Chairman.
Chairman Warner. Senator Blunt?
Senator Blunt. Ms. Heinzelman, glad to have you here today.
And glad that new baby didn't prevent you from being here. But
hope the baby's here quickly and healthy.
On your questionnaire, there was one area I wondered about
that I think is particularly important that you said you hadn't
had time to think about. The Presidential Memorandum of
Notification really authorizes the scope of the CIA activity,
and it can change and does change, I assume with frequency as
new activities become available are more important than they
have been before.
If confirmed, do you commit to keep the Committee fully and
currently informed on developments regarding these
notifications and how they relate to CIA activities?
Ms. Heinzelman. Yes, Senator Blunt. Consistent with the
law, and I think the provisions of Section 503 which speak to,
as you're describing, keeping the committees informed as
programs evolve, is obviously of critical importance.
Senator Blunt. Now, I'm not sure exactly what provision you
cited there, but at what stage of the process do you think it
would be your responsibility to let the Committee know that
there was a new definition of scope of activity?
Ms. Heinzelman. Senator, I don't have the text in front of
me, but I believe that Section 503 speaks about notifying the
committees before an action is undertaken and the obligation to
keep the Committee fully and currently informed. That currently
part is an integral part of the obligation and one that I would
take seriously.
Senator Blunt. All right, good.
On another area that you have thought about, Section 702--I
think you've actually published an article on 702, which is the
Foreign Intelligence Surveillance Act, known as FISA. It
authorizes the government to collect intelligence on non-U.S.
persons located outside the United States, as this particular
definition of what--how that Act can be applied. The authority
expires at the end of 2023. In 2012, when it was about to
expire, Attorney General Holder and the Director of
Intelligence Clapper wrote a joint letter to Congress
supporting a clean reauthorization. In 2017, the DIA and
Attorney General Sessions did the same thing. Having looked at
this, do you support a clean reauthorization of the FISA
authorities?
Ms. Heinzelman. Senator, I understand Section 702 to be a
critical intelligence tool. And I would look forward to working
with this Committee on reauthorization of Title 7 of FISA, and
would also be happy to work with this Committee, as Director
Haines committed, to discuss any modifications that would
enhance privacy and civil liberties without diminishing our
national security. But I strongly support reauthorization.
Senator Blunt. What do you see as the CIA's role in using
the FISA authorities?
Ms. Heinzelman. Senator, as you know, the CIA has
minimization procedures that allow it to use FISA information
that's been collected as part of its operations, and it has a
robust and multi-layered oversight system for ensuring that the
Agency does so consistent with the law and with the FISC
approved minimization procedures and other internal agency
guidance. And I would look forward, if confirmed, to helping to
advise the Agency on that whole compliance framework.
Senator Blunt. All right. Thank you, Chairman.
Vice Chairman Rubio. Senator Cotton.
Senator Cotton. Ms. Heinzelman, on September 29th, the
National School Board Association sent the Biden administration
a letter asking it to target, using law enforcement resources,
parents who were protesting at school boards, not just for
violence or threats of violence, but for what it said or for
what the Attorney General, just five days later said, were
other forms of intimidation and harassment. That memo was sent
to the FBI, U.S. Attorneys' offices, the National Security
Division, the Criminal Division, and the Civil Rights Division.
Were you involved in creating the October 4th memorandum
from the Attorney General directing law enforcement to target
parents at school boards?
Ms. Heinzelman. Thank you, Senator Cotton.
The October 4th memorandum that your question refers to
was, as the Attorney General has said, about violence and
threats of violence against school workers----
Senator Cotton. Ms. Heinzelman, our time is limited here
and I asked a simple question. I know what the memorandum says.
It also talks about intimidation, harassment. Were you involved
in creating that memorandum?
Ms. Heinzelman. Senator, in my role as chief counsel to the
Attorney General, with regard to matters that came before the
Attorney General, I generally had visibility into most matters
that came before the Attorney General. This, as the Attorney
General has said, was a memo that he issued. This is his memo.
Senator Cotton. So, where are you personally involved in
that matter or not? You gave a general answer. I want a
specific answer about this memo.
Ms. Heinzelman. Senator, I want to be as forthcoming with
you as I can be. When matters come before the Attorney General,
my role----
Senator Cotton. I'm not talking about matters. I'm talking
about this matter, this specific memo. Were you involved in
creating this memo with your boss, Merrick Garland?
Ms. Heinzelman. Generally, my role in matters that came
before the Attorney General is to do any of our variety of
things. I might sit in on--.
Senator Cotton. So I take it you're not going to give me an
answer to that question then, since you've not answered it now
repeatedly.
Ms. Heinzelman. Senator, I would like to be as transparent
with you as possible. But I hope you'll understand----
Senator Cotton. But there's no reason that you can't--I
mean, I'm not asking you what advice you gave. I'm not--this is
not a legal case, is a policy decision. You were a counselor to
the Attorney General and you don't want to answer it.
Ms. Heinzelman. Senator, with regard to matters that came
before the Attorney General, most matters that came before the
Attorney General, I would have visibility on it. That could
range from setting up a meeting, attending a meeting, advising
him on associated statements or actions. And I hope you'll
understand the need for the Attorney General to receive
confidential advice. But with regard to most matters that the
AG was personally involved in and, and in this matter, he
certainly was. This was his memo. I would have some visibility
into it at a minimum.
Senator Cotton. What about the U.S. Marshals in Portland?
The courthouse in Portland the summer of 2020 was under attack
by left-wing street militias. Now left-wing activist groups
have been suing the marshals who bravely defended it. The
Department has hung out to dry four Deputy U.S. Marshals.
They're not paying to represent them in those lawsuits. Were
you involved in the decision not to represent those Marshals
and those lawsuits?
Ms. Heinzelman. Senator, I understand your concern about
this matter. The Department of Justice has as a core value that
it works through its Civil Division and the U.S. Attorneys'
offices to defend officers who are acting within the scope of
their duties. My understanding is that the Department is
defending many officers----
Senator Cotton. They're defending 70, but I didn't ask
about the 70, I asked about the four. I assume you're familiar
with the parable of the lost sheep. The shepherd left 99 to go
get the one because he wanted to save the one. I'm worried
about four. I'm not worried about 70.
Ms. Heinzelman. I understand Senator. My understanding is
that generally these decisions about representation, either
having the Justice Department represent or pay for
representation, they are made pursuant to Departmental
regulations and the division that primarily works on those
matters is the Civil Division or the U.S. Attorneys' offices
who are the subject matter experts on those matters.
Senator Cotton. Okay. So no answer on that one, either. I
assume we're not going to get an answer if you were involved in
the cancellation of the China Initiative.
Ms. Heinzelman. Senator, one of the areas that I've focused
on in particular for the Attorney General is national security
matters. I would advise him on national security matters. With
regard to the China Initiative, the Department's position on
that is public and Attorney General Olson has made his decision
on that matter clear. I'm happy to address it in more detail.
Senator Cotton. Okay. So that's the third case in which we
won't get an answer on that.
My time's up. I just want to observe, I disagree with what
Senator Burr and Senator King said: that you, in this role or
your office is going to be this mythical, heroic lawyer telling
rogue officers and directors that they cannot take action that
is illegal. I think it's much more likely that senior
leadership and the CIA or the National Security Council will
ask you to provide legal cover for actions they don't want to
take that are perfectly legal. So they probed it. Would you
stand up to someone and say, this is illegal? I want to know if
an action or policy is legal, but you've been told that the
Agency or the Administration doesn't want to take it, will you
give your best legal advice that it is illegal? You're making a
policy decision.
Ms. Heinzelman. Senator, as a lawyer, I view it as my
primary responsibility to give my best legal advice--my most
candid, forthright, legal advice--based on the facts and the
law on any matter. That is what I've done in my current job, in
my past jobs, and that is what I would do if confirmed to this
position.
Senator Cotton. Even if you know that superiors at the CIA
or the NSC do not want to pursue that course of action, will
you still give them the advice that that course of action is
legal if they choose to pursue it?
Ms. Heinzelman. Senator, I would always give my best legal
advice regardless of what a client--what outcome I believe the
client wants to get to, if I'm understanding the question
correctly. I view it as my duty to give them my straight view
on the law and on the facts of a given matter.
Senator Cotton. Well, I mean, my concern--I mean, there's
some people on the front lines in the Agency or for that matter
in other departments, like Department of Defense, think that
lawyers are always looking for a way to get to no, especially
if it's an aggressive operation or policy. I'm as concerned
that lawyers are being directed to get to no by policymakers
about them. But my time is up.
Chairman Warner. I think the witness said--I apologize
having to step out briefly for a meeting. I heard when asked
questions about seeing something illegal, will you point it
out? If you see something that's legal and you're being told
it's not, you won't reach another opinion. You've got to give
them your best answer. And I think that's why I believe you
were nominated in by the Administration. That's, I think,
reflected in your background.
Senator Cornyn.
Senator Cornyn. Ms. Heinzelman, giving legal advice is not
like a chemistry test, is it? There's no if you stick a piece
of litmus paper in a liquid substance that it turns blue or
pink. Giving legal advice isn't like that, is it?
Ms. Heinzelman. Senator, in the sense that giving legal
advice doesn't always end up with a straight yes-or-no-this-is-
clear answer, absolutely. I agree with that. There are lots of
gray areas.
Senator Cornyn. Right. Well, and in your experience when it
comes to intelligence matters, like you'll be advising on at
the CIA, there are different types of risks. You've talked
about legal risk, but there are also operational risks that the
Agency has to consider, correct?
Ms. Heinzelman. Correct.
Senator Cornyn. You and I talked about the book that
General Hayden, the former Director of the CIA, had written
called ``Playing to the Edge.'' And we talked about the fact
that I hope that in rendering your legal advice, you will play
to the edge. I don't want you going over the line, but I do
want you to going up to the line of the legal authorities given
to our Intelligence Community.
But we also discussed the hypocrisy associated with some of
that advice, in that when nothing bad happens, somebody usually
on this side of the dais will come back and ask questions and
say, ``Well why were you so aggressive? Why didn't you look at
this? Why didn't you look at that?'' And of course, long after
the threat or the danger has subsided or gone away, at least
from people's memory, that's been an experience of the Nation,
particularly in the war on terror and the aggressive role that
we've asked our IC to play to protect American lives.
So, I guess this is a little bit of a segue from Senator
Cotton's questions. Do you consider it your obligation to try
to tell your client, if you want to do this, this is how you
can do it legally? Is that how you approach the job? I share
some concern that it's too easy for lawyers to say, no, you
can't do it, because it does entail some risks. But everything,
all the advice that you're going to be rendering, will entail
some risk. Correct?
Ms. Heinzelman. Thank you, Senator Cornyn.
As you and I discussed the other day, I think that really
good lawyers do a number of things for their clients when
they're giving advice. They advise them not only on where the
outer limits are--that white line that you talked about--and
make sure that their clients stay within those lines to protect
their clients. They also advise their clients on what we were
just talking about as being all the gray. They help their
clients understand risks. They help their clients understand
better courses of action. And I think that's where the really
creative and challenging lawyering comes into play. Helping
your clients get to yes when there can be a yes. Right? And
helping your clients figure out all the tools they have
available to them so they can use them most effectively.
And so, I really see it not just as being about defining
the outer bounds of the law, but also about enabling
decisionmakers to make smarter choices. So I fully agree with
the sentiment that you expressed about that.
Senator Cornyn. Who is your client? As General Counsel of
the CIA, who is your client?
Ms. Heinzelman. I believe the client of the CIA's General
Counsel is the Director, the Agency, and ultimately the
American people.
Senator Cornyn. When it comes to disclosing classified
information, is the President the final word on who information
will be disclosed to?
Ms. Heinzelman. My understanding, Senator, is that a number
of government officials qualify as original classification
authorities and can determine to declassify information
consistent with the law. The President, I believe, has those
authorities and is one of those classification authorities.
Senator Cornyn. But the President himself as head of the
Executive Branch has the final word, does he not?
Ms. Heinzelman. Consistent with the law, the President, I
believe, has considerable classification authorities.
Senator Cornyn. Well, it seems to me like that sets up a
real tension between the obligation for the Intelligence
Community to share with oversight committees like this one, and
perhaps a decision made at the highest levels of the Executive
Branch, not to share certain information. I think I'm
remembering this correctly, that when Harry Truman became
President of the United States, he was not aware that the
Manhattan Project existed and we were working on an atomic
bomb. And in that case, obviously, President Roosevelt decided
not to tell even his Vice President. So that's what has
prompted my question.
But do you see any potential conflict or any potential
problem with doing what Senator King and others have talked
about in terms of sharing information with this Committee? And
the President's role and the Executive Branch's role in
deciding how widely to share classified information?
Ms. Heinzelman. Senator, I think it's the obligation of the
General Counsel's office at CIA to advise clients on some of
the legal issues associated with classification, including the
proper interpretation of Executive Order 13256 on
classification standards. I would carry out that role, faithful
to the law--the law that binds both the CIA and the White House
on issues of how to properly classify and declassify
information.
Senator Cornyn. Well, that's an important point because you
would be giving legal advice. You wouldn't be making the
ultimate decision on how widely the information would be
shared.
Ms. Heinzelman. That's correct, that I would be giving the
legal advice to decisionmakers as CIA General Counsel. However,
there's an independent obligation, which I'll just mention
because I think it's an important one, to share information
about the legal basis for CIA's actions, and that's an
independent obligation specifically placed on the General
Counsel. So, in that regard, I would have a very direct
obligation to this Committee, as well.
Senator Cornyn. Thank you.
Chairman Warner. I believe Senator King has a followup.
Senator King. Yes. You've talked about technology. Through
the miracle of technology, I've reviewed Section 502 and 503
and they couldn't be more explicit. One of the most explicit
statutes:
``To the extent consistent with due regard for the protection
from unauthorized disclosure of classified information,
relating to sensitive intelligence sources and methods or other
exceptionally sensitive matters, the Director of National
Intelligence and the heads of all departments, agencies, or
other entities of the U.S. Government involved in intelligence
activities shall keep the congressional intelligence committees
fully and currently informed of all intelligence activities,
other than a covert action.''
And there's Section 503 that covers covert action, and it
says almost essentially the same--that there's an obligation to
disclose to the congressional intelligence committees. And
that's the bedrock of this responsibility. The only issue is
not revealing sources and methods. And of course, that can be
done through processes that we have of only the ``Gang of
Eight,'' for example, or the full Committee. But I think this
is a case where the responsibility of the Intelligence
Community to keep us fully informed of activities, including
covert action, is absolutely explicit in the law. And I
appreciate your commitment to that principle, which you've
stated to us today. Is that correct?
Ms. Heinzelman. Thank you, Senator King.
Yes. I was trying to answer the question--what I took to be
a separate question--about compliance with determinations about
what is properly classified under the law and what is not. I
think it's a separate question whether----
Senator King. But you wouldn't interpret that statute to
say just because it's classified, you can't share it with us.
Ms. Heinzelman. Certainly not.
Senator King. Thank you, Mr. Chairman.
Chairman Warner. Senator Cotton, do you have a--? My
understanding is you want to make a request to go into closed
session? Could you--?
Senator Cotton. I think we should. We didn't get any
answers in a public setting to what I asked, even though
they're not classified. But I have classified questions. I know
we typically don't do that with nominees, but Ms. Heinzelman is
a current U.S. Government employee with a security clearance.
And she's worked in this field in the past. I think there are
issues that we should explore about her role in Obama
administration decisions.
Chairman Warner. Well, listen, I'm going to try to honor
the Senator's request and, obviously, I'd say we, we could see
if we could make her available at a different time. Although I
think we may be back into that close time and her change in
status. I'm not sure----
Senator Cotton. I mean, if no one else was prepared to have
one and we're not prepared to have one, we can look at it
another time.
Chairman Warner. Well, I'm just concerned that I think
she's about to go on maternity leave. I want to try to
accommodate you. I'm not sure whether her answers about what
she was doing as a legal--and I didn't hear all your line of
questions, so I apologize.
But if they're going to be questions about her when she was
acting as a legal counselor in the current Administration or in
a past Administration, like most lawyers, they may simply say,
I'm not going to weigh in on that. But if it would feel better
to ask those questions, ask her if there's going to be a
different response in a closed setting----
Senator Cotton. Well, that's half of it. But the other half
is--as Susan Collins talked about her experience working on the
Edward Snowden matter. She was at the White House, there was a
lot of other stuff going on then as well. There was the
Presidential Decision Directive 39: U.S. Policy on
Counterterrorism. There was the Presidential Policy Directive
28: Signals Intelligence Activities. There's Syria. There was
the Iran nuclear deal.
Again, I know that normally we don't get to explore these
questions with nominees because they're not active U.S.
Government employees with security clearances, but they are
here. Again, we don't have to go have a formal hearing right
now, but I would like a chance to explore them with her at some
point. So I'm fine not going to close setting right now.
Chairman Warner. I was asking the staff. Is there a way
that you could ask those questions for the record in a
classified manner, or do you want to have a back and forth with
her?
Senator Cotton. We can. Look, I think we could probably
start there. Let's start there.
Chairman Warner. I want to try to accommodate, but I also
recognize that I wasn't just sure that some of her answers may
be that much different, but I do want to make sure.
Senator Cotton. All of our peers are already gone off to an
early lunch.
Chairman Warner. Well Senator King and I are still here.
Senator Cotton. Senator King's only here cause like me, he
always waits till the end, but now, why don't we try to start
there we'll see if that works.
Chairman Warner. All right. Well, I also want to make sure
that you don't raise objections if tomorrow she delivers a baby
and say, one more of this Biden administration's--trying to
avoid my questions that way.
Senator Cotton. All right.
Chairman Warner. So we'll try.
Senator Cotton. I wish you the very best and especially big
brother and sister who are going to have to deal with another
one coming along. The very best as well.
Chairman Warner. Well, I appreciate Senator Cotton. But I
do want the witness to recognize that there will be additional
questions. And again, how you answered them is up to you. But I
want to, I do want to find, make sure you get to--.
Well, I appreciate your presence. I appreciate your family
all being here. I appreciate your willingness to serve. I look
forward to trying to move this nomination as quickly as
possible. I think it's really important that the Agency gets a
General Counsel. I think there's a critically important role.
Candidly, I think both Senator Cotton's right, and some of the
Members on this side, that this job is so important that not
only do you have to point out illegal activities, but I think
the points raised by Senator Cotton that if any Administration
says, hey, we don't want you to do this, but it's perfectly
legal, maybe they'll make a policy decision on that, but it
shouldn't be based on legal opinion.
I think, truthfully, you have the experience, the expertise
and the knowledge to make those kinds of judgments. It is a
critically important role. And again, I appreciate your
presence here and good luck in the coming hours, days, and
weeks.
Senator King. Mr. Chairman, I'd like to note the role of
Yale Law School in this hearing. The nominee is a graduate. I'm
sure she would say that Yale had a lot to do with her getting
where she is, as it did with me--when Yale Law School rejected
my application. I dedicated my life to making them regret the
decision and hence my position on this side of the dais. Thank
you.
Chairman Warner. I'm not sure I've shared this with the
Committee, but I also ended up at that law school in Cambridge
because the one in New Haven rejected me as well.
Senator King. [Off-Mic. Inaudible.]
Chairman Warner. I'm not sure I'm going to go there, but I
do want to make sure, at least for staff that any, if any
members of the Committee wish to submit questions for the
record after today's hearing, please do so by 5 p.m. on Friday,
April 8th.
And with that good luck going forward and best of luck to
your family. They all should be very, very proud of you.
Hearing adjourned.
Ms. Heinzelman. Thank you.
[Whereupon the hearing was adjourned at 11:28 a.m.]
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