Hearings
Hearing Type:
Open
Date & Time:
Wednesday, January 17, 2018 - 11:30am
Location:
Hart 216
Witnesses
Full Transcript
[Senate Hearing 115-248]
[From the U.S. Government Publishing Office]
S. Hrg. 115-248
OPEN HEARING ON THE NOMINATION
OF MICHAEL ATKINSON TO BE INSPECTOR
GENERAL OF THE INTELLIGENCE COMMUNITY
AND JASON KLITENIC TO BE GENERAL COUNSEL
OF THE OFFICE OF THE DIRECTOR
OF NATIONAL INTELLIGENCE
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
SECOND SESSION
__________
WEDNESDAY, JANUARY 17, 2018
__________
Printed for the use of the Select Committee on Intelligence
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
29-479 PDF WASHINGTON : 2018
SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
RICHARD BURR, North Carolina, Chairman
MARK R. WARNER, Virginia, Vice Chairman
JAMES E. RISCH, Idaho DIANNE FEINSTEIN, California
MARCO RUBIO, Florida RON WYDEN, Oregon
SUSAN COLLINS, Maine MARTIN HEINRICH, New Mexico
ROY BLUNT, Missouri ANGUS KING, Maine
JAMES LANKFORD, Oklahoma JOE MANCHIN III, West Virginia
TOM COTTON, Arkansas KAMALA HARRIS, California
JOHN CORNYN, Texas
MITCH McCONNELL, Kentucky, Ex Officio
CHUCK SCHUMER, New York, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
JACK REED, Rhode Island, Ex Officio
----------
Chris Joyner, Staff Director
Michael Casey, Minority Staff Director
Kelsey Stroud Bailey, Chief Clerk
CONTENTS
----------
JANUARY 17, 2018
OPENING STATEMENTS
Burr, Hon. Richard, Chairman, a U.S. Senator from North Carolina. 1
Warner, Hon. Mark R., Vice Chairman, a U.S. Senator from Virginia 3
WITNESSES
Klitenic, Jason, Nominated to be General Counsel of the Office of
the Director of National Intelligence.......................... 5
Prepared statement........................................... 8
Atkinson, Michael, Nominated to be Inspector General of the
Intelligence Community......................................... 18
Prepared statement........................................... 21
SUPPLEMENTAL MATERIAL
Nomination material for Jason Klitenic
Questionnaire for Completion by Presidential Nominees........ 42
Additional Prehearing Questions.............................. 62
Additional Prehearing Questions for the Record............... 87
Nomination material for Michael Atkinson
Questionnaire for Completion by Presidential Nominees........ 92
Additional Prehearing Questions.............................. 112
OPEN HEARING ON THE NOMINATION
OF MICHAEL ATKINSON TO BE INSPECTOR
GENERAL OF THE INTELLIGENCE
COMMUNITY AND JASON KLITENIC TO BE
GENERAL COUNSEL OF THE OFFICE OF THE
DIRECTOR OF NATIONAL INTELLIGENCE
----------
WEDNESDAY, JANUARY 17, 2018
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The Committee met, pursuant to notice, at 11:32 a.m. in
Room SH-216, Hart Senate Office Building, Hon. Richard Burr
(Chairman of the Committee) presiding.
Committee Members Present: Senators Burr, Warner, Risch,
Collins, Blunt, Lankford, Feinstein, Wyden, Heinrich, King,
Manchin, and Harris.
OPENING STATEMENT OF HON. RICHARD BURR, CHAIRMAN, A U.S.
SENATOR FROM NORTH CAROLINA
Chairman Burr. I'd like to call this hearing to order. I'd
like to welcome our witnesses today: Jason Klitenic, President
Trump's nominee to be the next General Counsel for the Office
of Director of National Intelligence; and Michael Atkinson,
President Trump's nominee to be the next Inspector General of
the Intelligence Community.
Gentlemen, congratulations to both of you on your
nominations. I'd like to start by recognizing the families that
you've brought with you today. Jason, I understand you have
your wife Kate--wave; good.
[Kate Klitenic waves.]
As well as your children Amelia, Hazel, and Clark; your
Mother, Joyce--Joyce, where are you?
[Joyce Klitenic waves.]
I know you're proud.
Michael, I believe you have your wife, Kate. Have you guys
got something going on here?
[Laughter.]
Your sons Ian and Chris; and your parents, Nelson and
Janice.
Welcome to all of the family members. This is a very
special day.
Kate, your parents are here, John and Ellen Cameron; and
your brother-in-law and sister-in-law Scott and Beth Atkinson.
Good.
Thank all of you for your support of Jason and Michael. I'm
confident that they would not be here today if it were not for
your years of love, encouragement, and, potentially more
important, your patience.
Our goal in conducting this hearing is to enable the
Committee to consider both nominees' qualifications and to
allow for thoughtful deliberation by our Members. The witnesses
each have already provided written responses to over 40
questions presented by the Committee and its Members. Today, of
course, Members will be able to ask additional questions and
hear directly from the nominees.
Mr. Klitenic graduated from Johns Hopkins University and
received his law degree from the University of Baltimore Law
School. Jason then served as Deputy Associate Attorney General
at the Department of Justice, where he oversaw antitrust, civil
rights, and environmental law. Thereafter, from 2003 to 2005 he
served as the Deputy General Counsel of the Department of
Homeland Security. Following his government service, Jason
worked in the private sector, most recently as a partner at the
law firm Holland & Knight.
Mr. Atkinson earned his undergraduate degree from Syracuse
University, his law degree from Cornell. After his time in the
private sector as a partner at Winston & Strawn, Michael served
as a trial attorney in the Fraud Section of the Department of
Justice Criminal Division from 2002 through 2006.
From 2006 to 2016, Michael served as Assistant U.S.
Attorney in the U.S. Attorney's Office for the District of
Columbia. During that time, he was Deputy Chief of the Fraud
and Public Corruption Section and Acting Chief of the Fraud and
Corruption Section. Michael currently serves as the Acting
Deputy Assistant Attorney General and Senior Counsel to the
Assistant Attorney General of the Department of Justice
National Security Division.
Jason, you've been asked to be the lead counsel for the
Office of the Director of National Intelligence at a time we're
facing threats from state and non-state actors and are engaged
in a robust debate at home on the scope and scale of
intelligence collection and what authorities are right and
appropriate and lawful. I trust that you will provide sound
legal counsel and judgment and will speak truth to power as the
Director of National Intelligence works through some incredibly
complex and divisive issues.
Michael, independent and empowered inspectors general are
critical to the integrity and the efficient management of the
intelligence community. I trust that you will lead the
Inspector General of the Intelligence Community's Office with
integrity and will ensure that your officers operate lawfully,
ethically, and morally.
The Committee will ask for your responsive, transparent,
and timely responses in our interactions, a necessary condition
for us to conduct effective oversight. As I have mentioned to
other nominees during their confirmation hearings, I can assure
you that this Committee will continue to faithfully follow its
charter and conduct vigorous and real-time oversight over the
intelligence community, its operations, and its activities. We
will ask difficult and probing questions of you, and your
staff, and we expect honest, complete responses.
I enjoyed meeting both of you and discussing your
qualifications and the reasons for pursuing continued public
service. I look forward to supporting your nominations and
ensuring their consideration without delay. I want to thank you
both again today for being here, for your years of service to
our country. I look forward to your testimony, and I now
recognize the Vice Chairman for any comments he might have.
OPENING STATEMENT OF HON. MARK R. WARNER, A U.S. SENATOR FROM
VIRGINIA
Vice Chairman Warner. Thank you, Mr. Chairman.
Welcome, Mr. Atkinson and Mr. Klitenic. Congratulations on
your nominations to serve as Intelligence Community Inspector
General and General Counsel for the Office of the DNI. Both of
these positions are critically important to ensuring the
intelligence community runs efficiently and effectively, that
it abides by the laws of this country, and that the IC protects
against waste, fraud, and abuse.
One of the most important attributes that both of you, if
you're confirmed, will have to bring to these roles is the
willingness to speak truth to power. For this reason, I'll be
asking each of you to uphold your principles, to always provide
unbiased, unvarnished, and timely advice to both the Director
of National Intelligence and to the Congress.
You're also aware that this Committee is leading the review
into the Russian interference in the 2016 U.S. presidential
election. During this hearing I want to hear assurances from
both of you that you will fully cooperate with this review and
provide this Committee with all the information requested in a
timely fashion.
Mr. Atkinson, as the Inspector General of the Intel
Community your job is especially critical because of the nature
of the material that they handle every day, whistleblowers
within the IC generally can't go public to expose misbehavior
and misuse of official resources. We the Congress and the
American people will depend upon you as an independent agent of
accountability for the Office of the DNI and, for that matter,
for the whole intel community.
While you don't have previous experience as an inspector
general, I look forward to hearing your plans for the righting
of the ship at the IC's IG when it comes to both whistleblower
protections and investigations. I'm very concerned by the
significant number of open cases that I believe have lingered
too long. If confirmed, I will ask you to make the
whistleblower program a priority. This is an area that cuts
across party lines and committee jurisdictions.
Senators Grassley, Wyden, Collins, and I together have
requested a GAO study to review IC-wide whistleblower policies
and procedures. This study, when completed, will help inform
your approaches and ours as we seek to address some of the
gaps.
Mr. Klitenic, your job will be to give Director Coats the
best possible legal counsel possible, even when doing so, as we
discussed, might be inconvenient or even uncomfortable. I value
your commitments that you have made to me and I hope you'll
reiterate some of those commitments publicly. One, that you
will ensure that all of the work of the ODNI and the IC is
consistent, is constitutional and consistent with the law;
that, again, that you'll speak truth to power regardless of
political considerations or the willingness of those in power
to hear that truth; that you will see your legal obligation to
keep the intelligence oversight committees--and this is
terribly important--fully and currently informed of all
significant intelligence activities, as just the bare minimum
of our engagement; that as chief lawyer for the intelligence
community, I believe you'll have to make sure, as we touched on
as well, that policies like issues that particularly Senator
Feinstein has been a champion of, of making sure that
interrogation practices--that we don't go back to the past.
To both of our nominees, again echoing the Chairman,
congratulations. It's an honor that you've been nominated to
serve our country. I want to thank you for accepting these
opportunities and these positions and look forward to the
opportunity to question you.
Thank you, Mr. Chairman.
Chairman Burr. Thank You, Vice Chairman.
Mr. Klitenic and Mr. Atkinson, would you please stand. I'm
going to ask you to raise your right hand.
Do you solemnly swear to give the Committee the truth, the
full truth, and nothing but the truth, so help you God?
Mr. Klitenic. Yes.
Mr. Atkinson. Yes.
Chairman Burr. Please be seated.
Jason and Michael, before we move to your statements I'll
ask you to answer five standard questions that the Committee
poses to each nominee who appears before us. They just require
a simple yes or no response.
Do you agree to appear before the Committee here or in any
other venue when invited?
Mr. Atkinson. Yes.
Mr. Klitenic. Yes.
Chairman Burr. If confirmed, do you agree to send officials
from your office to appear before the Committee and designated
staff when invited?
Mr. Atkinson. Yes.
Mr. Klitenic. Yes.
Chairman Burr. Do you agree to provide documents or any
other materials requested by the Committee in order for us to
carry out our oversight and legislative responsibilities?
Mr. Klitenic. Yes.
Mr. Atkinson. Yes.
Chairman Burr. Will you both ensure that your office and
your staffs provide such materials to the Committee when
requested?
Mr. Klitenic. Yes.
Mr. Atkinson. Yes.
Chairman Burr. Do you agree to inform and fully brief to
the fullest extent possible all Members of the Committee of the
intelligence activities and covert action, rather than only the
Chair and Vice Chairman, where appropriate?
Mr. Atkinson. Yes.
Mr. Klitenic. Yes.
Chairman Burr. Thank you very much.
We'll now proceed to your opening statements, after which
I'll recognize Members by seniority for up to five minutes of
questions. Jason, I'll ask you to begin, followed by Michael.
STATEMENT OF JASON KLITENIC, NOMINATED TO BE GENERAL COUNSEL,
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Mr. Klitenic. Chairman Burr, Vice Chairman Warner, Members
of the Committee: Thank you for providing me the opportunity to
appear before you today as you consider my nomination to be
General Counsel of the Office of the Director of National
Intelligence.
I also want to thank the President and Director Coats for
placing their confidence in me. If confirmed, I commit to
working every day to maintain this confidence and to
demonstrate to them and to each of you that I will uphold the
highest standards of the office.
With your indulgence, I would like to recognize my family,
without whose love and support I would not be here. Joining me
today are: my mother, Joyce Klitenic; my sister Jenny
Whittaker; my brother-in-law John Whittaker; my brother-in-law
Evan Howell; and my sister-in-law Helen Wray. I would also like
to recognize my sister, Sarah Wear, who is back home with her
husband awaiting the birth of their child, which I believe to
be imminent.
Also seated behind me are four more very important people
in my life: my wife of 24 years, Kate; and our three children,
Amelia, Clark, and Hazel. In a setting such as this, it is
difficult to explain how grateful I am to my family for their
never-ending support. And thank-you to my close friends and
colleagues who took time out of their busy days to join us here
today.
Additionally, I want to remember someone who is not with us
today. My father, Earl Klitenic, passed away three years ago. I
think about him each day as I strive to live up to the high
standards that he and my mother set for me.
By way of background, I grew up in the Washington, D.C.,
area, fortunately in a house with parents who loved me and who
from the beginning taught me the difference between right and
wrong, the importance of unyielding integrity, and the value of
hard work. My parents also taught me how lucky I am to be an
American and that I should never take the attendant freedom for
granted.
They taught me about patriotism, democracy, security, free
speech, and the rule of law, and that the role of our
government is to keep us safe from harm while protecting the
civil liberties that enable us to live in a free, open, and
diverse society. Millions of people throughout the world suffer
under regimes that provide neither security nor freedom. Here
we are blessed to have both.
My parents also taught me the importance of public service.
They were career government civil servants. My father served in
the Department of Defense, the Justice Department, and the
United States Information Agency. Before retiring, my mother
spent the bulk of her career at the Justice Department, where
she served in the Office of Intelligence Policy Review and,
after its creation, the National Security Division.
Following in my parents' footsteps, I have had the
privilege to serve both in the Justice Department and the
Department of Homeland Security. I've been among and around the
national security community throughout my life, both personally
and professionally.
I have the highest regard for the men and women who serve
in the intelligence community. Both in private practice and
while serving in government, I have had the opportunity to work
closely with the people who protect us from our adversaries and
in doing so preserve our values as a Nation. These people, who
work outside the limelight and beyond the scope of credit and
accolades, each day perform their jobs with discipline,
attention to detail, and unrelenting dedication to the mission.
If confirmed, it would be an honor for me to serve with them
again on behalf of our country.
My past experience has prepared me well for this position.
During my tenure at DHS and DOJ, I worked on complex legal
issues involving counterterrorism, cyber security, data
privacy, and government-wide information-sharing initiatives,
work that I believe helped keep this Nation safe while
preserving our civil liberties.
Through my past government service, I also gained
significant management experience and became adept at
navigating the inter-agency processes that are integral to the
effective functioning of our government. In all this work, I
stressed the importance of working together across the
government to do what was lawful and what was right.
Once public service is in your blood, you can never truly
step away from it. In private practice, I lead my firm's
homeland security team and continue to work closely and
collaboratively with the people who serve in our national
security agencies.
The General Counsel position for which I have been
nominated is, of course, a legal position, an important legal
position. If confirmed, my allegiance would be to the
constitution and my vow would be to uphold the rule of law.
Based on my prior government experience, I am keenly aware that
legal advice cannot be given in a vacuum. By that I mean, while
I may be opining on a legal issue within the safe and
comfortable confines of the headquarters office, the ultimate
end consumer of my advice might be a career analyst or operator
out in the field. When I render legal advice, I will be
thinking of people whom I may never meet, but who are relying
on my views in the course of performing difficult and dangerous
jobs on behalf of our country.
I never want to fail those people. It is important to me
that they be able to rely upon my legal advice with the full
confidence that it is timely, clear, actionable, and fully
supported by law. There is no corner-cutting in this line of
work.
I also believe strongly in my responsibility, if confirmed,
to keep Congress fully and currently informed and my
responsibility to support your oversight over the IC. The IC's
unique missions are often practiced in secrecy to protect
critical sources and methods in support of our national
security. That secrecy makes my relationship and engagement
with this Committee all the more important. I pledge to build
open relationships of trust with this Committee and your House
counterparts, as I recognize the critical role that you play in
representing the American people for these sensitive matters.
In closing, I want to stress that, if confirmed, I would
very much look forward to working with each of you and your
staffs. I am mindful of this Committee's important oversight
role and I would hope that you would find me to be a trusted
resource and dependable public servant.
I look forward to answering your questions.
[The prepared statement of Mr. Klitenic follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Burr. Jason, thank you very much.
Michael, the floor is yours.
STATEMENT OF MICHAEL ATKINSON, NOMINATED TO BE INSPECTOR
GENERAL OF THE INTELLIGENCE COMMUNITY
Mr. Atkinson. Chairman Burr, Vice Chairman Warner, Members
of the Committee: Thank you for scheduling this hearing to
consider my nomination to be the Inspector General for the
Intelligence Community. I am honored to have been nominated for
this position by President Trump, with the support of the
Director of National Intelligence, Dan Coats.
I first want to thank and recognize my family members and
friends who are here today and watching remotely. Here with me
today are: my wife Kate; and our two sons, Ian and Christopher;
my parents, Nels and Jan Atkinson; my wife's parents, John and
Eileen Cameron; and my youngest brother and his wife, Scott and
Beth Atkinson.
I also see friends and colleagues in the audience and I
thank them for their support. I also want to thank my family
and friends who are watching this hearing remotely.
The prehearing materials that I submitted to the Committee
summarize my background and experience. I want to take just a
few minutes to add some context to those materials and to
recognize additional people who have helped me to be here
today.
After graduating from law school at Cornell University, I
went to work as an associate at Winston & Strawn here in
Washington, D.C., where I stayed for 11 years and was elected
partner. Winston & Strawn provided me with good, excellent
legal training, superb mentors and colleagues, and challenging
legal experiences in complex civil litigation and white collar
criminal defense matters. I was fortunate to have such an
enjoyable start to my legal career.
But I also felt that some things in my professional life
were missing. I wanted more challenges, greater
responsibilities, and different rewards. After the September
11th attacks, I decided to seek public service work. In 2002, I
was delighted when the leaders in the Criminal Division in the
United States Department of Justice offered me a position as a
trial attorney in the Fraud Section.
The Fraud Section filled the professional gaps I had been
feeling in private practice. I was able to work exclusively on
complex white collar criminal fraud matters, with talented and
experienced prosecutors and law enforcement agents from around
the country. I was given greater responsibilities, including an
opportunity to try my first jury trial. Thankfully, I was
paired with a hard-working and much more experienced trial
partner, as we were up against some of the best defense
attorneys in the country. I am thankful that one of those
defense attorneys, Reid Weingarten, was gracious enough to
write a letter of recommendation for me in support of my
nomination.
While at the Department of Justice, I also had the
opportunity to experience the different professional rewards I
had been seeking. My sense of professional accomplishment was
never higher. For that I also have to thank my wife, who
remained in private practice and made her own personal and
professional sacrifices to help me realize my professional
goals.
I left the Fraud Section in 2006 to become an Assistant
United States Attorney in the United States Attorney's Office
for the District of Columbia. The U.S. Attorney's Office
provided me with all the challenges and rewards that I had come
to enjoy at the Fraud Section, but with some added benefits. I
was able to reduce the amount of time I was on the road and to
spend more time in the area as my wife and I raised our two
sons.
Becoming an AUSA also gave me an opportunity to become part
of a new family at the U.S. Attorney's Office and to experience
an extraordinary camaraderie with colleagues, special agents,
and investigators. I am grateful to them for their work ethic,
professionalism, and friendship, which allowed me to be part of
a highly effective team in helping to root out fraud and public
corruption here in our Nation's capital.
I left the U.S. Attorney's Office after ten years to take
on greater responsibilities within the Department of Justice in
an area of the law that I did not have much experience,
national security. I joined the Department's National Security
Division in 2016 and began to learn in detail about cyber
security, export controls, and sanctions, economic espionage,
unauthorized disclosures, and foreign direct investment.
I thank my colleagues at the National Security Division for
their patience and support in helping me to learn these complex
areas of the law, especially for helping someone like me, who
once had to pay a $75 fine as a teenager for illegally spearing
fish to understand that illegal spear phishing in today's world
typically has nothing to do with fish.
I believe that my prior experiences and substantive
knowledge suit me well for my next challenge, which, if
confirmed, would make me the Intelligence Community Inspector
General, or the IC IG.
As I have made my rounds through your offices during the
past several weeks, meeting with the Chairman, the Vice
Chairman, several other Committee Members, Senator Grassley,
and numerous professional staff members, I've been left with
two primary impressions about the Office of the IC IG. I want
to share those impressions, and I particularly want to share
them with any current employees of the IC IG who may hear or
read my statement.
First, I am left with the impression that this Committee
and other members of the Senate are unified in their desire to
see the IC IG succeed as an office. As was the case when
Congress created the IC IG in 2010, there are many contentious
issues within the intelligence community, but the need for an
IC IG is not one of them. My impression is that the Committee
remains unified in its support for an IC IG that can identify
problem areas and find the most efficient and effective
business practices required to ensure that critical
deficiencies are addressed before it is too late, before we
have an intelligence failure.
There also remains strong bipartisan support for an
Inspector General of the Intelligence Community who, as the
Chair of the IC IG Forum, works together with the intelligence
community IGs to build a strong coalition, identify issues of
common interest, and initiate cross-jurisdictional reviews.
Such unified support is a good thing for any organization and
is especially good for a relatively new governmental
organization in today's budget climate.
But this goodwill must not be taken for granted, because it
can be squandered. This brings me to my second impression. My
second impression about the Office of the IC IG is not nearly
as favorable. I do not believe I am revealing any confidences
when I share my impression that there is a broad view among the
Committee, its staff, and other Members that the Office of the
IC IG is not currently functioning as effectively as Congress
intended. It is not difficult to find some of the sources for
this view. One recent press article reported that the Office of
the IC IG is ``in danger of crumbling,'' ``barely
functioning,'' ``on fire,'' and ``gutted.''
Now, perhaps things inside the Office of the IC IG are not
as bad as the press and others portray them. I for one
certainly hope so. And as a prosecutor and former defense
attorney, I know there are at least two sides to nearly every
story. Nevertheless, real or not, this is an ultimately
unsustainable impression for the Committee to have of the IC
IG.
The impression is also that the current problems are
internal. This needs to change before the IC IG loses the
support of this Committee and the Congress as a whole. Simply
put, it appears that the IC IG needs to put its house in order,
and the sooner the better.
My experience has taught me that the effectiveness of any
team is dependent first and foremost on having the right people
on the team, with a shared set of goals and values. I see no
reason to believe that an Office of Inspector General is any
different. My first objective as Inspector General, if
confirmed, will be to make sure that the IC IG's house is in
order. This will involve making sure the right people are in
the IC IG. I am confident there are right people for the IC IG
already there, people with a commitment to integrity,
discipline, excellence, and independence, and I hope they stay.
If I'm confirmed, the IC IG will work together as a team to
achieve Congress' most ambitious intentions for the office. In
the near term, we will work together to encourage, operate, and
enforce a program for authorized disclosures by whistleblowers
within the intelligence community that validates moral courage
without compromising national security and without retaliation.
Over the long term, if confirmed, we will work together and
with the IC IG Forum members to look across the intelligence
landscape, as Congress and this Committee intended, to help
improve management, coordination, cooperation, and information-
sharing within the intelligence community. Throughout my
tenure, we will work together to be responsive to this
Committee so that you are able to fulfill your oversight
obligations and to ensure that U.S. intelligence activities
meet our Nation's security needs, respect our laws, and reflect
American values.
I thank you for your time in listening to me, and I
appreciate the opportunity to answer your questions.
[The prepared statement of Mr. Atkinson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Burr. Thank you to both of you for your testimony.
Members should know that I'll recognize Members based upon
seniority for up to five minutes after the Chair and the Vice
Chair. I recognize myself.
Jason, the Committee's access to legal analysis is
sometimes crucial to our ability to assess the intelligence
community's collection tools. If confirmed, can our Committee
be assured that you or your designee will keep us appropriately
informed of any and all legal opinions and interpretations that
your office performs as to intelligence tools?
Mr. Klitenic. Yes.
Chairman Burr. If asked by the Committee, will your office
provide briefings and assessments of the intelligence
community's views and findings on legal matters?
Mr. Klitenic. Yes.
Chairman Burr. Michael, to you: The Committee's timely
access to intelligence is crucial to our ability to conduct
vigorous oversight over the intelligence community and meet our
Congressional obligations. We view the IC Inspectors General as
partners in oversight. We rely on Inspectors General to
identify problems and to bring issues to this Committee's
attention. If confirmed, can our Committee be assured that you
or your designee will keep us appropriately informed of any
significant complaints received by your office?
Mr. Atkinson. Yes.
Chairman Burr. If asked by the Committee, will you provide
the interview subjects or methodologies behind your office's
finished reports and assessments?
Mr. Atkinson. Yes.
Chairman Burr. One last question on my behalf to you, Mr.
Atkinson. As you mentioned in your statement for the record,
the IC IG is an office with some reported challenges,
particularly regarding the whistleblower program that has been
frequently reported about in the media over the past few
months. Strong whistleblowers are essential. Further, ensuring
the IC workforce understands and believes in the whistleblower
program is paramount.
Tell the Committee what you plan to do to address these
issues we're hearing about and how you're going to work to
reassure the workforce that the IC IG has a well-functioning
program that they can trust?
Mr. Atkinson. Mr. Chairman, the intelligence community
understands the importance of cultivating and protecting
sources of information, and that includes whistleblowers.
Whistleblowers play an important role in safeguarding the
Federal Government against waste, fraud, abuse, and
mismanagement.
In terms of what the IC IG can do as an office, it can do
three things primarily: first, provide organizational support
and encouragement for whistleblower programs for lawful,
authorized disclosures; second, it can disseminate information
and make sure that there's appropriate training across the
intelligence community to make the workforce aware of the
authorized ways to make lawful disclosures and report unethical
or illegal conduct; and third, it can enforce a safe program
where whistleblowers do not have fear of retaliation and where
they're confident that the system will treat them fairly and
impartially, so that we can secure national security and allow
whistleblowers to make their complaints of unethical or illegal
behavior without risking unauthorized disclosures.
Chairman Burr. Great.
Vice Chairman.
Vice Chairman Warner. Thank you, Mr. Chairman.
I'll start with you, Mr. Klitenic. As you know, the SSCI is
continuing its work to investigate the Russian interference in
the 2016 presidential election. Can you commit to ensuring that
this Committee will be provided with all information requested
pursuant to our ongoing Russia investigation?
Mr. Klitenic. Yes.
Vice Chairman Warner. Thank you.
Let me also editorially comment that I very much appreciate
what you talked to me about and reiterated in your public
statement, that you're going to be asked to render legal
opinions from the relatively ivory tower of a certain office in
Northern Virginia, but that those, your legal opinions, will
have huge ramifications for people in the field and across the
country and across the world.
Do you want to add any more on that? That's obviously one
of the things you talked about in terms of your willingness to
make sure that we adhere to the law in thinking through how you
make those legal opinions.
Mr. Klitenic. Yes, thank you. As it relates to providing
legal advice, I take it both professionally and personally.
Some of the people who are running around all corners of the
globe so we can sleep safely at night, some of those people are
my friends. Some of them are former colleagues. Some of them
are other associates. Again, from my perspective, I think it's
always important to keep in mind the context of the legal
advice that you're providing and knowing that it's not simply
an academic exercise.
Vice Chairman Warner. One of the things you also mentioned
in your opening statement was you understood the statutory
obligation to keep this Committee fully and currently informed.
Do you want to drill down a little bit more on how you define
``currently''?
Mr. Klitenic. Yes, thank you. I view the duty to keep the
Committee currently and fully informed--there's obviously the
502 statutory requirement, but, quite frankly, as a working
matter I view this Committee--and I'm saying this respectfully
and in the context of understanding that you are United States
Senators and, if confirmed, I would simply be agency counsel.
But I view this Committee to be my friend. This Committee is
not my foe. My foe, our foes, are the people out there across
the globe who wish us ill.
So my view as an attorney, when I'm provided with
information that I believe this Committee should have, I will
be viewing it from the perspective of how can I get this
information to the Committee, as opposed to looking at it from
the perspective of, okay, how can I keep this from the
Committee?
In terms of the timeliness of it, from my perspective
notification has little to no value, more likely no value, if
it is not timely.
Vice Chairman Warner. Thank you.
Mr. Atkinson, my questions were similar to the Chairman's,
and I just want to reiterate--and I appreciate the fact that in
your opening comments you did allude to the fact that there
have not been as strong a working relationship between the
current IG's Office and this Committee. You made quite clear
your intent to improve that and you said you felt that there
were the appropriate people in the IG's Office that were
already there.
If there are people that need to be removed, I'd like to
hear whether you will take on that responsibility as well?
Mr. Atkinson. Yes, Senator. In terms of managing any
organization, the key is getting the right people into the
organization. That also involves getting any of the wrong
people out of the organization and then, once the right people
are in the organization, getting the right people in the right
positions.
So yes, to the extent there are wrong people in the IC IG,
we will work to either improve their performance or, if
necessary, remove them.
Vice Chairman Warner. Let me also reiterate so we make sure
that everybody gets their time. You don't have to respond to
this. But let me also echo the Chairman's comments in terms of
the importance of the whistleblower program. I think there
needs to be greater protections and, should you be confirmed, I
look forward to working with you to make sure that those
protections are increased and improved.
Thank you, Mr. Chairman.
Chairman Burr. Senator Risch.
Senator Risch. Mr. Chairman, first of all let me say I
think both of these nominees come with a strong, strong
background and obviously come with also very good
recommendations. I've had the opportunity in a different
setting to get my questions answered, which I appreciate. I
feel very good about these two and at the present time I'm a
strong supporter of them, so I'm going to pass on questions.
Thank you, Mr. Chairman.
Chairman Burr. Thank you.
Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Mr. Atkinson, the IC IG is not an easy position in my view.
You can't get sucked in. You have to be independent, and you
have to be able to call them as you see them and run an office
that's going to be effective to the overall goal. Are you
prepared to do this?
Mr. Atkinson. Yes, Senator. I think that my training as a
prosecutor helps in terms of having a commitment to
independence and integrity, as well as discipline, and
understanding that there is a need to speak truth to power. The
hardest part sometimes is finding the truth. The truth--as a
prosecutor in a criminal case, it's difficult. I expect it will
be even more difficult dealing with secret organizations.
So I certainly appreciate the challenge that is out there
for me. But in terms of the independence and integrity required
of the position, I think my training as a prosecutor will come
in very handy.
Senator Feinstein. I think that's probably true, and I
thank you very much for those comments.
Having an open, honest IG is really very important to the
functioning of what is a highly secret intelligence-gathering
organization. I know you can see that.
To both of you, I'm sorry, I didn't have a chance to meet
with you before. You tried and my schedule got overly
complicated. But I would hope that we would have a chance to
sit down, because there are a couple of things that I'd like to
mention to both of you.
One of them is the area in which I believe the IC did get
out of control, and that was during the 1990s, particularly on
the subject of interrogation and detention. This Committee over
six years did a report. There is a 500-page summary of that
report; and before you come to see me, I would ask that each of
you read that summary, which has been published. Will you do
so?
Mr. Klitenic. Yes.
Mr. Atkinson. Yes, Senator.
Senator Feinstein. Thank you very much.
I think that I'd like to ask the IC IG: What do you see as
the most essential and effective tool of an Inspector General
overseeing an intelligence agency?
Mr. Atkinson. I think it goes back to the people, Senator.
I think you have to have the right people with the right skill
set to try to handle the task that's before it. The
effectiveness of the intelligence community is in large part a
function of its secretiveness, and so in terms of trying to
find the truth or audit programs, investigate whistleblower
complaints, inspect other agencies, you need the right people.
There's plenty of tools available in terms of subpoena
power and the ability to come to this Committee and to this
Congress to provide reports. But ultimately, in terms of the
most powerful tools that the office will have, in my view it
has to be the people.
Senator Feinstein. Mr. Klitenic, because of the position
you're going to be in as General Counsel and your background,
you're clearly qualified and I have no questions of you. But I
would hope that you would feel free when there are issues to
bring them before this Committee as well.
I don't think anybody does a service to stifle truth or not
bring forward problems. I think you'll find that the Committee
is really a very good one. We pay attention. We put in a lot of
time, and we care very deeply about the appropriate functioning
of the agencies that you're going to be in charge of.
So thank you very much.
Thank you.
Mr. Klitenic. Thank you, Senator.
Chairman Burr. Senator Collins.
Senator Collins. Thank you, Mr. Chairman.
Mr. Klitenic, whom do you view as your client if you are
confirmed as the General Counsel?
Mr. Klitenic. Thank you, Senator. That frequently is the--
sometimes that can be a difficult question for lawyers. The
first question is: Who is the client? I think as it relates to
being the General Counsel to the ODNI, the agency is the
client, embodied by the leadership. So it would be the Director
of National Intelligence. I would not be representing anyone in
his or her personal capacity. Then ultimately my client--I
would view my client to be the people of the United States.
Senator Collins. That's the right answer.
One of the greatest challenges for the intelligence
community is that it's very difficult for the public to
separate out fact from fiction in certain press reports. If
confirmed, you will be in an important position to be fully
aware of what the IC is doing, while also being responsible for
ensuring that its activities are lawfully conducted.
There are two aspects of this problem. First, if you
uncover misinformation about the lawfulness of the intelligence
community's activities as reported in the press, what would you
do about that?
Mr. Klitenic. Thank you, Senator. Yes, there definitely
would be a tension. Obviously, one of the fundamental
principles of the intelligence community is to protect sources
and methods. So a challenge would be if there were an instance
where, if you're reading something in the paper that you know
to be untrue or, let's just say, a nation-state is putting out
information about things that are happening in our own country
that we know to be untrue, and if that information is
classified that would present a challenge.
So if that were to arise, that's something that, if
confirmed, I would take a serious look at, work with the people
that I would need to consult with, and make sure that in
correcting the information, if it needed to be corrected, it
would be done in a way that again preserved sources and methods
and other sensitive information.
Senator Collins. Let's take a situation where the opposite
is the case and you uncover activity in the intelligence
community that is not lawful. Obviously, you would report it to
the ODNI. What is your obligation to report beyond the Justice
Department and the ODNI with respect to the oversight
committees of Congress, in particular our Committee?
Mr. Klitenic. I would view that I--that we, the ODNI, if
confirmed, would have the obligation to report it to the
Committee. I believe that the Section 502 notification
requirements also talk about intelligence failures, so perhaps
there would be an argument that this would be a form of
failure. But again, it would be done in a way to protect
sources and methods. I would view this Committee to be an ally
of mine and I would just want to make sure that you have access
to the same information to which I have access.
Senator Collins. Thank you.
Mr. Atkinson, you have heard many of us talk about the
importance of whistleblowers, and I just want to follow up on a
question that the Ranking Member asked you since I joined in
the letter of the Vice Chairman and the Co-Chairs of the Senate
Whistleblower Protection Caucus requesting that the GAO conduct
an audit of whistleblower programs and activities conducted by
the offices of the inspector general within the IC.
It's important that you know that we sent this letter
because we began to perceive discrepancies in the way that each
IG approached whistleblower protection and we wanted an
independent look at what recommendations could be made to
ensure that whistleblowers are willing to come forward.
So, first I encourage you, if you're confirmed, as I
believe you will be, to use this GAO audit as an opportunity
for you to learn about the state of whistleblower complaints
within the IC.
But my question is this: Do you commit to ensuring that the
IC Inspector General remains a place where whistleblowers feel
confident that they can come forward, disclose allegations of
waste, fraud, abuse, mismanagement, illegal activity, and they
can be confident that their concerns will not fall on deaf
ears?
Mr. Atkinson. Yes, absolutely, Senator. I look forward to
reading the GAO report. I welcome GAO's assistance if
confirmed, given the subject matter expertise they bring to it
and the force multiplier that they can be, particularly in
auditing.
In terms of the whistleblower protection, I talked about a
commitment to integrity and that to me is what is essential so
that whistleblowers have trust in the process. That does two
things. One, it makes sure that the disclosures go to the right
people; and second, it really takes away an excuse that some
people have used that: I would have made an authorized
disclosure, but I didn't know how to do it, or I didn't have
faith in the process. So yes, absolutely, if confirmed, the
commitment to integrity will be to make the whistleblower
program effective and objective and impartial.
Senator Collins. Thank you.
Chairman Burr. Senator King.
Senator King. Thank you, Mr. Chairman.
Mr. Klitenic, I love your characterization of the Committee
as your friend. I hope a year from now you hold to that.
Mr. Klitenic. Yes, sir.
Senator King. That idea.
I consider your two positions two of the most important in
the United States Government, for the following reason. It's an
anomaly in a free society to have secret agencies that don't
operate in the ordinary open air of controversy and reporting
and interest groups and all of those kinds of things. Our
system--we're always talking about checks and balances of the
courts and the Congress, but there are lots of other checks and
balances. One of them is public disclosure and transparency,
and yet we understand the necessity for secrecy and for
defending our national security.
Therefore, one of the checks and balances that's invisible
is the rule of law. You gentlemen more than any others in these
agencies have the responsibility for upholding the rule of law.
Like my colleague from Maine, I was going to ask, who is your
client? Your client is the Constitution, it seems to me. Your
client is the people of the United States. It's not a
particular director, it's not a particular president, it's not
a particular agent. It is the--this is in the essence of the
checks and balances that otherwise just aren't there for these
agencies.
The natural tendency of an agency that operates outside of
the public view in some cases is to abuse its authority. I
would urge you--again, I'm echoing my colleague Senator
Feinstein--to read that summary of the torture report, because
what comes through is not people who were evil and who were
setting out to do harm. They were people who were genuinely
concerned about the future of the country, but they did things
that they should not have done; and the lawyers did things that
they should not have done. And that's where it becomes hard.
So I hope you will read that report. It's a stunning piece
of work and I think it will help guide your work, because it'll
make you realize how hard these decisions are.
Now, what actions would you take, Mr. Atkinson, if a senior
IC official said: Let's not go into this investigation, let's
not do this audit; there's a lot of heavy-duty national
security here and it could result in a serious compromise of
something that we're trying to accomplish on behalf of the
country?
Mr. Atkinson. Well, I'd do a couple things. First, I would
talk with that senior official to try to understand the
reasoning behind the request. If I thought that the
investigation or review was necessary or in the best interests
of the United States, I would pursue it. If other senior
officials within the intelligence community still were advising
me to stop, I would continue to talk to them and try to
convince them that in my view, in my independent view, this
review or assessment was necessary and in the best interests of
the United States.
I would take that--I would have that discussion all the way
up to the Director of National Intelligence if necessary. By
statute, he does have the authority to prevent an investigation
or an examination if he deems that that's necessary or vital to
United States national security.
I would also talk to this Committee if that situation arose
to that level, to keep you informed about those events.
Senator King. If you were prevented by the Director or by
some other official from pursuing an investigation that you
thought was important, significant, and represented a potential
abuse of the agency, would you consider resignation?
Mr. Atkinson. The answer is yes, but in context. The
Congress has given the Director of National Intelligence the
authority, the statutory authority, to prevent the Inspector
General from conducting a review if the Director determines
that that's in the vital interest of the United States. And
there's a process in place where he then has to inform the
Committee, the Congress, the oversight committees, of his
decision. And I as the Inspector General would also have an
opportunity to come to the Committee and talk to you about the
decision that was made and my own views.
So I would consider it, but I think the process is in place
that people who--can disagree without necessarily having to
resign. But if I felt strongly enough and it really went to a
core principle, yes, I would consider resigning. That would be
part of my thought process.
Senator King. I think the hard part here is that these are
not going to be easy black-and-white questions. They're not
going to be presented--it's always--and again I go back to the
torture report. It's always going to be people thought there's
going to be a second attack and we have to prevent it and we
have to move aside some of these rules and regulations in order
to do so. That's the context in which these decisions have to
be made and that's why they're so difficult.
Mr. Klitenic, your thoughts on this issue?
Mr. Klitenic. I guess what I would say, Senator, is as an
attorney it's not unusual to be facing a situation where you're
trying to advise someone on the law or the parameters of the
law, and then also not unusual to occasionally get pushback.
The way I am hard-wired, I probably am more of a fighter than a
quitter, but if I were ever--if I exhausted all my remedies and
there was nowhere else to go but to resign, then that is an
action I would seriously consider.
Senator King. Well, I appreciate both of your willingness
to undertake this important responsibility. I've been impressed
in our discussions and with your answers here today, and I look
forward to supporting your nominations when they come to the
floor. I just hope you will continually remember and realize
what a solemn and heavy responsibility this is in this
particular setting. Not that the IG of the Department of
Agriculture isn't important, but there are lots of other people
watching the Department of Agriculture. There are very few
other people watching the agencies that you are working with,
that are crucial to our national security.
Thank you.
Thank you, Mr. Chairman.
Mr. Atkinson. Thank you, Senator.
Mr. Klitenic. Thank you.
Chairman Burr. Senator Manchin.
Senator Manchin. Thank you, Mr. Chairman.
Thank both of you for attending and being here and willing
to serve, which I appreciate very much, and for your families
that are supporting you. I also appreciate our discussions we
had in the office when you both came in. It was very good and
very enlightening.
I would like to hear, with your previous experience at the
Department of Justice, can you tell the Members of this
Committee your views on the pending reauthorization of the 702
FISA, Section 702 of FISA? If you could, either one? Mr.
Atkinson, you can start if you will.
Mr. Atkinson. Well, as a member of the National Security
Division of the Department of Justice, I know that the
Department feels very strongly about reauthorizing Section 702.
Mr. Klitenic. It's my understanding it's an incredibly
important tool in the toolkit of the intelligence community and
the law enforcement community. It's also my understanding it
may be the most important tool. So obviously, from my
perspective, at this point I am an outsider, but I would
strongly support it.
Senator Manchin. Do you have concerns of the invasion of
privacy for the American citizens? Do any of you have that
concern? Have you looked into it that much or have you been
brought up to speed on it?
Mr. Klitenic. I guess what I would say is that, as it
relates to 702, that provision, that Act, that section of the
Act, has been--I would defer to the courts, and the courts have
reviewed it and my understanding is and my reading of it is
that each court that has reviewed the 702 program has found it
to be constitutional.
Now, as with everything, you always want to--again, in my
earlier comments they were sincere about providing for the
national defense and the national security, but also protecting
our civil rights and civil liberties. I don't think that's just
a throwaway line. But as it relates to the 702 program, I would
defer to the courts, and again they have upheld the
constitutionality of it.
Senator Manchin. Mr. Atkinson, you'll serve as the chair of
the Intelligence Community Inspector Generals Forum. How do you
plan to implement the necessary oversight that comes with your
office without becoming too intrusive to the other
organizations' inspector general activities?
Mr. Atkinson. That is a real challenge to this office,
Senator. It's actually one of the things, though, that was most
appealing to me about it, is there's no other inspector general
that serves in that sort of chair role and has the ability to
coordinate other inspector generals such as the IC IG does as
the chair of the IC IG Forum.
I think the challenge is balancing out the autonomy of
action that the individual IGs need to have to fulfil their
duties and responsibilities with the unity of effort that we
all need to have collectively so that we maximize our
efficiency and effectiveness. I think that part of that in
terms of ways to maximize the efficiency and effectiveness of
the group, it goes to relationships, meeting with the folks on
a regular basis, both at the IG level as well as at the
committee levels for the investigators, the auditors, and the
inspectors. I look forward to meeting with all of the IC IG
Forum members as soon as possible if I'm confirmed.
Senator Manchin. Mr. Klitenic, how do you view your break
from government, your departure there and then coming back? Do
you feel that it was a positive or a negative as you prepare to
assume your new duties?
Mr. Klitenic. I would view it as a positive. Being in the
private sector has given me a perspective that I wouldn't have
if I had spent the balance of these years in government
service. I do very much miss government service, but there is
something about working closely with industry and seeing it
from that perspective, and it relates to a whole variety of
issues, relating to, for example, the protection of our
Nation's critical infrastructure, 85 percent of which is in
private hands. So seeing some of the challenges that industry
experiences when working with the government, I would view that
to be helpful.
Another added benefit--I can't quantify this, but I am not
coming from any particular member of the IC and to that extent
I would view--I'm not beholden to any particular agency, and I
would just view my role to again to continue to play things
straight and provide counsel on issues that come before me.
Senator Manchin. This will be one for both of you. If asked
by the President, would you render your professional assessment
regardless if that assessment is counter to what the
Administration has been espousing or what the President may
feel?
Mr. Klitenic. Yes.
Mr. Atkinson. Yes, Senator.
Senator Manchin. I think what we're all talking about, no
matter who the President, he or she may be, truth to power is
something that we have to have professionals such as yourself
be willing to speak up and protect the citizens in this great
country of ours and the Constitution we all hold so near and
dear.
Thank you both. I look forward to supporting both of you.
Thank you.
Mr. Atkinson. Thank you, Senator.
Mr. Klitenic. Thank you.
Chairman Burr. Senator Lankford.
Senator Lankford. Thank you, Mr. Chairman.
Gentlemen, thank you again for going through this laborious
process. Very few Americans understand just how painful and
long and difficult this process and how many documents you had
to turn over, how many interviews you had to have to even get
to this desk. Then there is still the process to get through
the long filibusters on the floor of the Senate, as last year
the Senate faced literally a record number of nominees that
were delayed.
So there are still more delays to come to actually go
through the process. So I want to say to you: Thank you for
stepping up and going through this very long, difficult
process, because our Nation needs people to both be good
counsel for the intelligence community and to be good
inspectors general for that community. So thank you for
stepping up to be able to do that.
A lot of folks that are some pretty remarkable
professionals are going to count on your advice and they're
going to look towards your insight on that. So buckle up. We're
ready for you to be able to get into that spot.
Let me ask you several questions on this. Mr. Atkinson, let
me ask specifically for you: The IC role of the Inspector
General is exceptionally difficult in this setting, because
most everything that we handle is secret and classified and is
compartmentalized. But the Inspector General has a very unique
role to be able to step in and not only check for efficiency--
are we spending the right money in the right places; are there
recommendations to be able to do that; do we have the right
personnel in the right spot? That takes a lot of relationships
and a lot of tenacity to go after the information that's
needed.
But the American people need individuals on this dais to
provide oversight and they definitely need an Inspector General
to be able to do that as well. What's your plan to be able to
engage, to be able to make sure we have good recommendations,
but also you have the information you need to do it?
Mr. Atkinson. Well, as I said in my opening statement,
Senator, I think it begins with people, getting the right
people in the office to be able to perform the difficult tasks
that we have to perform, whether it's inspections, audits, or
investigations.
It also--as you talked about relationships, it also has to
deal with getting relationships with the other intelligence
community inspectors general, the individual elements, working
with them to maximize their efficiency and effectiveness, so
that together as a group we multiply our forces rather than
dividing them. So that's what I would look forward to doing if
confirmed, is working with the IC IG Forum to maximize all of
the resources that we have available to tackle these very
serious challenges that you've mentioned.
Senator Lankford. What will you need to be the eyes and
ears of the American people, to provide--on the multiple layers
of oversight on 702 specifically, what will you need that you
don't know if you have access to now, to be able to make sure
that's there? 702 already has oversight from DOJ. It has
oversight from the inspectors general. It has oversight within
the Department. It has oversight by this Committee. There is a
Civil Liberties Board that we have added to it to provide
another layer of oversight into it. So there's already multiple
layers of oversight on that.
Is there anything that you know of that you don't have
access to to provide the oversight that's needed for that in
your responsibility?
Mr. Atkinson. Senator, I don't know the answer to that. I'm
not an expert on 702. I'm familiar with the statute as a
prosecutor and being in the National Security Division of the
Department of Justice. But I don't know all the challenges
associated with it. I look forward, if confirmed, to learning
about them and working with this Committee and with the other
IC IG Forum members to understand if there are additional tools
that we need to help the Committee perform its functions.
Senator Lankford. This Committee would have an expectation
that if there are things you do not have access to, that you
need access to for oversight, that you would come back to us.
Mr. Atkinson. That's my expectation as well, Senator, that
I would come back.
Senator Lankford. Terrific.
Let me ask you about a hard question on this dealing with
leaks and classified information leaks or individuals that are
leaking that information. The FBI has told us it's one of the
most difficult areas to be able to prosecute. I want to know
from you, what do you need to do to be able to help us not have
leaks of information, both from a document or from someone
telling information that is classified, and how do we clamp
down on that?
Mr. Atkinson. I think there's a lot in that question. But
the whistleblower protection program is essential and, as
Senator King talked about, secrecy--the United States
intelligence community is largely effective because of its
secretiveness, but secrecy is a grant of trust, it's not a
grant of power. So the whistleblowers play an important role in
making sure that the trust given to the intelligence community
is not abused or mismanaged.
So you want to do what you can, everything possible, to
make sure that when hard-working government employees or
contractors identify waste, fraud, or abuse, that there are
avenues available to them and they have trust in those avenues,
that they will disclose that type of unethical or illegal
conduct. You want to make sure as part of that program that
they don't have a fear of reprisal. So they need to trust the
process and they need to be protected.
So as a prosecutor, I understand deterrence and I
understand that investigations have to be timely, they have to
be thorough, and they have to be effective. If you find a
whistleblower that's been retaliated against, there need to be
consequences.
Senator Lankford. Thank you. Thank you both.
Chairman Burr. Senator Wyden.
Senator Wyden. Mr. Chairman, I know I'm senior by
technicality. With your leave, Mr. Chairman--I think I see you
over there--could Senator Harris go first and then I follow
her?
Chairman Burr. Absolutely.
Senator Harris.
Senator Harris. Thank you, Senator Wyden.
Mr. Klitenic, I appreciate your comments about the nobility
of public service, and you so clearly care about the men and
women of the IC and I really do appreciate that. So thank you
for those comments and the spirit behind them.
During the 2016 presidential election, then-candidate
Donald Trump said, I quote: ``I would bring back waterboarding
and I'd bring it back a hell of a lot worse than
waterboarding.'' End quote. In your opinion, is waterboarding
illegal?
Mr. Klitenic. Thank you, Senator. The short answer is, as
it relates to today, the enhanced interrogation techniques, the
law is through the Defense Authorization Act, the techniques
that are authorized are found in the Army Field Manual. So as
an attorney, I would go to the Army Field Manual and see if
that was a technique that is approved.
Senator Harris. Have you consulted the Army Field Manual?
Mr. Klitenic. I have.
Senator Harris. And in your opinion, based on that review,
is waterboarding illegal?
Mr. Klitenic. Thank you. I have not seen anything in the
Army Field Manual that would persuade me that waterboarding is
permitted under the Army Field Manual.
Senator Harris. Can you guarantee this Committee that you
would so advise the members of the IC if you were confirmed in
this position?
Mr. Klitenic. Yes, that's definitely an issue I would--that
would get my attention.
Senator Harris. And that you would express----
Mr. Klitenic. Yes. Yes, Senator, yes.
Senator Harris. Thank you.
Do you believe it is appropriate for the FBI to search
information on Americans' communications without a warrant when
that information was collected through an authority such as
Section 702 of FISA and does not permit the targeting of U.S.
persons, which we know it does not?
Mr. Klitenic. My understanding again of the 702 program--
and I think we're now getting into queries--my understanding is
that's been reviewed by the courts. It has been reviewed by the
courts and was found to be----
[Room lights blink.]
Senator Harris. There's a light flashing.
Mr. Klitenic. Yes. I'm hopefully not accountable for a
power outage. Things do happen on my watch, but hopefully this
is not attributable to me, Senator.
But my understanding is that that aspect of the program has
been reviewed by the courts and has been found to be
constitutional.
Senator Harris. And the IC has consistently declined to
produce an estimate of the number of Americans who have been
impacted by Section 702 in terms of their privacy. Do you see
any legal barriers to generating that estimate?
Mr. Klitenic. That is an issue, Senator, I would have to
look at. I do not have a security clearance and so all I can
tell you is, if confirmed, that's an issue I would certainly
explore and spend time on.
Senator Harris. If confirmed to this position, can you
commit to the Committee that you will take a look at that and
return to us with your perspective on whether there is a legal
barrier to providing that estimate to this Committee?
Mr. Klitenic. Yes. Again, the answer is I do not have a
clearance and so if I commit something to the Committee I want
to make sure I can stand by it. But it is something I would
look at, and I would also look to see if there were any legal
impediments as well.
Senator Harris. And come back and report?
Mr. Klitenic. Yes. Yes, Senator.
Senator Harris. If the IC lacks the technical expertise or
resources to generate such an estimate and you do determine
that it is legally permissible for them to offer that estimate
to this Committee, as has been requested, do you see any legal
barriers to bringing in outside experts like academic
researchers to help generate such an estimate?
Mr. Klitenic. The honest and short answer is I don't know
the answer to that question. But that is something I would
certainly look at.
Senator Harris. And will you, again, report back to this
Committee, if confirmed, about your perspective on bringing in
outside experts to help generate the information that gives us
an estimate of how many Americans have been impacted by 702
queries?
Mr. Klitenic. I would look and see if there were--if it was
appropriate and lawful to have experts review the issue. Again,
I don't have a clearance, so I don't want to commit something
to you that for some reason I would be precluded from reporting
back on. But if it were legally permissible for me to report
back to you on it, I absolutely would.
Senator Harris. I appreciate it. And I should premise all
of these questions by stating that I agree completely with your
testimony that 702 provides a very important tool to our
intelligence community and it is something that should be
preserved, but of course with striking a balance with the
protections and privacy protections that Americans deserve to
receive in terms of their private information.
I'm especially concerned with the issue where the IC
appears to lack a uniform and written policy to ensure that
Americans receive appropriate notice of Section 702
surveillance. Can you commit to promulgating such a policy if
confirmed in this position?
Mr. Klitenic. Senator, that's something I would have to
look closer into. As I sit here today, I can't speak to the
notification requirements of 702. But again, I do promise, if
confirmed, I would look very closely at that and then report my
findings to the Committee.
Senator Harris. I want to emphasize that the concern
specifically is that there is not a uniform written policy
within the IC. So I'd appreciate you looking into that if
confirmed, and thank you.
Thank you.
Mr. Klitenic. Thank you.
Chairman Burr. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
Mr. Atkinson, I appreciated our discussion in the office. I
feel strongly that the current acting leadership of the IC
Inspector General's Office has seriously damaged its
whistleblower mission. We talked about your cleaning house.
Tell me how you're going to do it?
Mr. Atkinson. We did talk about cleaning house, and let me
say this about that. As I said in my opening statement, the
whistleblower protection program, like any other part of the
office, is dependent on having the right people in the office.
As we talked about in your office, my first priority is to get
the right people in the office, get any of the wrong people out
of the office, and then get the right person or people running
the whistleblower protection program within the IC IG.
Senator Wyden. So how are you going to protect
whistleblowers from reprisals? I think whistleblowers want to
know they're going to be encouraged. They want to know their
complaints are going to be followed up expeditiously, but
they're especially interested in having the leadership at the
top make it clear how they're going to be protected from
reprisals.
So this is really part of the new day, cleaning house. How
are you going to protect whistleblowers from reprisal?
Mr. Atkinson. Similar to the way we protect witnesses in
criminal cases. We're going to take their case, treat it very
seriously, treat it impartially, follow the facts, wherever
they lead, protect the witnesses to the extent permitted by
law, do what we can to----
Senator Wyden. What's your understanding of what the law
offers? Because they're going to say: Okay, you're saying I'm
going to be protected to the extent of the law; what does that
really mean? Give me an example of what you're talking about?
Mr. Atkinson. That they will not be reprised against, they
will not suffer demotion or any sort of pay cut or any negative
job factor because of their willingness to come forward and
make an authorized disclosure.
Senator Wyden. And you will make it clear you see that part
of your new day, that they're not going to face pay cuts,
they're not going to face demotions? That's the message you
want to send?
Mr. Atkinson. That is the message I want to send. As a
prosecutor, I see the unauthorized disclosures and I see the
harm that they do, and I understand how critically important it
is for people to have trust in the authorized disclosures.
Senator Wyden. Mr. Klitenic, let me ask you a question
about the law. If an intelligence operation is inconsistent
with the public's understanding of the law, that is a
prescription for trouble, and we have faced that in the past
with the Patriot Act, where people would go to a coffee shop
and they'd read the Patriot Act and they wouldn't hear about
how it has been contorted into something where you'd collect
millions of phone records on law-abiding people, which was the
reason that we passed a reform bill.
I talked to you about secret law. It's a doctrine that we
really developed here, that says: Look, if there's a secret
interpretation that's different than what people read in the
coffee shop, that's what we ought to be concerned about. So
tell me what you would do to declassify secret law? As you
know, I made the distinction between sources and methods, which
have to be classified, but the law, which always ought to be
public.
What are you going to do to declassify secret law?
Mr. Klitenic. Thank you, Senator. As we discussed, there
will be instances where there will be legal opinions or there
may be FISA Court opinions that within them necessarily contain
information that is classified, and that classified information
may be classified because it is to protect sources and methods.
Also when we met, we also talked about my belief in
transparency. I think transparency is important for any number
of different reasons. One of the fundamental reasons why I
think transparency is so important is because I think as the
American people learn more about what the intelligence
community is doing on their behalf they would have even greater
confidence in the community.
As it relates to declassifying certain portions of legal
opinions or FISA Court opinions, again that's something I
would, as I told you in our meeting, I would very much commit
to taking a hard look at. For me that is something----
Senator Wyden. Would you make that a priority? Because
secret law has been a problem for years and it remains one to
this day. I want to see somebody come in there and say: Look,
we've got a job to do; sources and methods are sacred; you
don't mess with them, because if you do people die. But the
public has a right to know what the law is.
I'd really like to see somebody in your position,
consistent with protecting this country's security, say this is
going to be a priority. Will you do that?
Mr. Klitenic. Senator, I'm very comfortable telling you
that, yes, I would make that a priority.
Senator Wyden. Thank you.
Thank you, Mr. Chairman.
Chairman Burr. Senator King.
Senator King. A brief follow-up on a different topic. Mr.
Atkinson, part of your role as IG, of course, isn't always
about high policy; it's about fiscal responsibility, prudent
expenditures, and those kinds of things. There is a huge force
multiplier out there that's available to you called the GAO.
Unfortunately, in the past the intelligence community has
resisted utilizing the resources of the GAO, even though they
have clearances and those kinds of things. In fact, two years
ago or three years ago Senator Coburn and I had to literally
get an Act of Congress to get the IC to use the GAO to analyze
utilization of facilities.
Do you view the GAO as an asset to your work and will you
commit that you will utilize them as a resource in the analysis
that you do of things like fiscal prudence, efficiency,
utilization of resources, staffing, and those kinds of things?
Mr. Atkinson. Yes, absolutely, Senator. I think that one of
the challenges for the IC IG as I understand it is on the
auditing side of the house and getting qualified, cleared
auditors within the IC IG to look at the intelligence
community's programs and activities. So it makes perfect sense
to make use of GAO, since they have subject matter experts, in
auditing.
So yes, I see them as a force multiplier and I would use
them as much as possible.
Senator King. Good. Thank you.
Thank you, Mr. Chairman.
Chairman Burr. Thank you, Senator King.
Seeing no other Members wishing to ask questions, let me
thank both of you on behalf of the Committee. Let me thank you
for your service in the past, for your willingness to serve in
the capacity you're here nominated by the President, and thank
you for your honest testimony and candid testimony today.
I'll end where I started: The Committee takes oversight
extremely serious. The two roles that you'll be in are
absolutely crucial to our ability to implement that oversight
properly and effectively.
We're grateful to you. We look forward to the process as
your nominations move out of Committee and to the floor. But as
of this time, enjoy the next little bit with your families, who
are here to support you.
This hearing is adjourned.
[Whereupon, at 12:48 p.m., the hearing was adjourned.]
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