John A. Rizzo Opening Statement
Senate Select Committee on Intelligence
Confirmation Hearing for CIA General Counsel
(as prepared for
June 19, 2007
Chairman and Mr. Vice Chairman:
At the outset, let me express my
appreciation to you and to the Committee for giving me the opportunity to
appear before you today. I am aware of
the Committee’s heavy workload this session, covering an array of significant
policy issues, and I am grateful that you have found the time to consider my
I also want to give special thanks to Senator Warner for his presence
and his generous introduction, especially given the fact that I am not a Virginia resident. Given the hours spent at Langley, I feel like an adopted resident.
With the Committee’s permission, I will now read a brief opening
statement and will submit a more detailed statement for the record.
I come here today halfway through my 32nd year of service as a
lawyer for the Central Intelligence Agency.
Put another way, I have spent more than half of my life as a CIA
attorney. Accordingly, while I was
honored and gratified when the President first nominated me a little over a
year ago, I do not consider myself to be a political appointee in the usual sense
of that term, and indeed I do not consider myself a political person. I am first and foremost a career public
servant and CIA officer.
My situation, as I appear before you here today, is unique. Over the past 35 years, every previous
General Counsel – whether Senate-confirmed or otherwise – was new to the
Agency. If confirmed, I would be the
first CIA General Counsel ever to come up through the ranks. I do not take this distinction lightly.
To put the span of my CIA career in brief chronological perspective,
in January 1976, armed with a grand total of three years legal experience, I
joined the Office of General Counsel. It
was a critical juncture for CIA as an institution –
The Church Committee and other investigative bodies
had just finished exposing controversial and often troubling CIA activities in
years gone by and were recommending massive legal and policy reforms at
The Congressional intelligence committees were about
to be born, subjecting the Agency to real legislative oversight for the first
time in its history.
George H. W. Bush was the CIA Director when I came on board, the first
of 10 CIA Directors under whom I have served.
There were 18 other lawyers at the Agency in 1976 – today we have well
over 100 lawyers, and we expect our staff to grow even larger for the foreseeable
future. Upon my arrival, and frankly,
despite still having no idea what I was getting myself into, I was immediately
immersed in the incredibly diverse nature of CIA’s legal practice.
While it is fair to say that I have spent the bulk of my career
providing guidance on CIA’s conduct of covert operations, I have also had to
address issues in areas ranging from administrative and contract law to
environmental and tax law - not to mention being in the middle of an always
active and burgeoning litigation case load.
CIA has had its equities and information at stake in virtually every
major terrorist prosecution in the last two decades, along with a large number
of other high profile criminal cases.
Overall, I cannot think of a more stimulating, challenging, important,
and rewarding place to work as a lawyer, and I have loved going to work every
day of my 30 plus years at CIA. So, by
any measure, I am not new to the world of national security law. I come with a track record of more than three
decades of experience with national security legal issues. I consider that to be a significant and
unprecedented plus for a nominee to this job, and I hope that by the end of
this process the Committee concludes that as well.
Mr. Chairman, I will be responsive and forthcoming in answering your
questions in this open session. I
suspect that the Committee will have questions – especially with respect to
legal issues I have been involved with in this post-9/11 era – which I can only
address in closed session. Again,
however, I pledge to be informative and candid in responding to those
Let me briefly address one substantive issue in my remarks, and that
is the crucial issue of Congressional oversight of intelligence
activities. Until now, the seminal event
in my CIA legal career took place two decades ago, when I was the Agency’s
focal point in dealing with the Joint Congressional Committee investigating the
Iran/Contra Affair. As the year-long
probe played out, I saw first-hand the tremendous damage my Agency
sustained - and all of it stemmed from
the fact that, as an institution, CIA had kept the Intelligence Committees in
the dark about a significant, high-risk covert action program. Worse yet, a few senior CIA officers – people
I had worked with and admired for years – wound up being prosecuted for
misleading Congress about their roles in the program. Their careers were ruined, the Agency’s
reputation was sullied, overall morale at CIA plunged, and it took years for
the Agency to rebuild its relationship with this Committee and its House
The lesson I learned from seeing up close all the
damage from Iran/Contra has been lasting and indelible to me: it is that CIA courts disaster whenever it
loses sight of the absolute necessity to inform the intelligence committees on
a timely basis what they need to know in order to perform effective,
constructive oversight. I say that not
just because that is what the law requires, and not just because it is wise
public policy, and not just because I think it is something the Committee wants
There is yet another compelling, if coldly pragmatic reason that
Iran/Contra brought that lesson home to me and it is this:
The more the Committees know what CIA is doing, the more you are invested
in the process, and the more, frankly, you will be willing and able to protect
and defend CIA from the uninformed and often false charges of wrongdoing that
seem to inevitably come our way from those on the outside.
It is in that spirit of openness and candor that I will endeavor to
address the Committee’s questions – not just today, but down the road as well,
if the Senate ultimately sees fit to confirm me as CIA General Counsel.
Mr. Chairman, I recognize that a major focus of the Committee’s attention
in considering my nomination will be my role in the Agency actions undertaken
in the counterterrorist arena in the years following the 9/11 attacks. This is as it should be. After all, I have served as CIA’s Acting
General Counsel approximately 4 out those 5 ½ eventful years. As I noted at the outset, much of this
discussion necessarily must be reserved for a closed session. For now, I can say that this period has been the
most rewarding (in terms of service to this country), but by far the most challenging
of my 3 plus decades of practicing law at the CIA.
While being a CIA lawyer has never been dull, the legal issues the
Agency has had to contend with over the past 5 years would have been
unprecedented and largely unimaginable to me on September 10, 2001. A couple of brief examples:
In the operational arena, CIA in my experience had never before been
authorized to detain and interrogate an individual believed to be holding vital
national security information.
In the foreign intelligence collection arena, CIA had never before
been authorized to collect more volumes of information from exponentially more
sources, and to analyze, and share that information faster with our
counterparts in the law enforcement community, state and local governments, and
our foreign partners. While only a very
small portion of that information dealt with individual Americans, we had to be
then and must continue to be now constantly mindful of the privacy rights of
our fellow citizens.
These were unchartered territories for me, for the Office of General
Counsel, and indeed for the US
government as a whole, and we have had to navigate on one of the most difficult
legal and policy terrains imaginable in close consultation with legal experts
throughout the US
it all, my mission has been to decide every issue coming my way in accordance
with one basic overriding principle that I have followed my entire CIA career:
To facilitate CIA’s discharge of its vital mission to
protect the national security and the American people in a manner that at all
times is faithful and in full compliance with the Constitution, US law, and US
obligations under international treaties.
Finally, Mr. Chairman, let me briefly address a
question several longtime colleagues posed to me shortly after my nomination
was announced, which is, “Why, as a career CIA lawyer for three
would you want to give up that status after all those years to become a
“political” appointee subjected to the rigors and uncertainties of that entire
process?” For me, it came down to two
First, it is simply a great job. The work is as important as it gets. The palpable sense of contributing something
to protect the nation’s security is there everyday and as hard as it sometimes
gets, I have always considered it to be the best job I could ever have.
Second, I respectfully suggest that the unprecedented fact of a
career CIA lawyer coming up the ranks and becoming General Counsel sends a
significant symbolic message to our constantly growing, ever younger
office. Namely, it says to a new lawyer
coming on board that, if he or she makes a commitment to a CIA career, works
conscientiously and hard even as Administrations come and go, and maybe catches
a few breaks along the way, then he or she could realistically aspire to be the
General Counsel of what I consider to be the most vital Agency in the US
government in protecting the citizens of the United States. For me, establishing that precedent would be
an immensely gratifying legacy.
Mr. Chairman, that concludes my statement at this time, I welcome the
SCOPE OF THE OFFICE OF GENERAL COUNSEL
ADMINISTRATIVE LAW DIVISION
The General Counsel is
responsible for the Agency’s ethics program.
The attorneys in the Administrative Law Division (ALD) provide guidance
to present and former Agency personnel regarding the requirements of
Government-wide and Agency-specific ethics statutes and regulations. Like other government organizations, we also
have an Ethics Compliance program to ensure financial disclosure forms are
timely completed and reviewed, and that we meet Office of Government Ethics
(OGE) annual training requirements. In
fact, OGE recognized our ethics program in March 2007 with a Program Award.
In addition to advising
on ethics issues, ALD attorneys also provide advice on the full range of
administrative law questions, such as the proper expenditure of appropriated
funds, the payment of travel expenses, the provision of training at Government
expense, and the lawful use of deadly force by Agency personnel. ALD also represents the Agency in
administrative equal employment opportunity (EEO) cases as well as provides EEO
awareness training to Agency employees.
Finally, ALD attorneys provide legal advice to Agency managers on Human
Resources matters ranging from recruitment to retirement to diversity hiring,
and in tragic cases, advise the Agency's casualty officer about the benefits
available to the survivors of Agency personnel who die in the line of duty.
CONTRACT LAW DIVISION
The Contract Law
Division advises the Agency's Office of the Procurement Executive and the
Office of Acquisitions in all aspects of the Agency mission on government
contract matters. The lawyers in this
division provide legal advice during the solicitation, evaluation, and
negotiation of contracts, including review of source selection documentation
and sole source justifications, and the final contract documents. Contract Law Division is responsible for
representing the Agency in contract award protests (generally adjudicated by
the Government Accountability Office) and contract performance disputes
(generally adjudicated by a Board of Contract Appeals). In addition to advising on all aspects of
contract formation, the Division attorneys advise on the administration of the
contracts and all contract-related issues, including contract-related fiscal
law, intellectual property, and organizational conflict of interest
issues. The division attorneys also
advise on all Agency real estate-related transactions, including construction
and the leasing of real property.
Contract Law Division also provides legal advice on
environmental, safety, and health compliance issues for the Office of Medical
Services' Environmental Safety Group (ESG), and advice on matters related to
hazardous materials shipments. There is
interaction with Department of Transportation to obtain regulatory permits
(waivers) for activities, as needed. Contract Law Division also advises the Agency on copyright law and other
intellectual property areas, and the settlement of Federal Tort Claims Act
(automobile) and Military Personnel and Civilian Employees' Claims Act
(personal property) claims.
INTELLIGENCE SUPPORT DIVISION
The Intelligence Support
Division (ISD) provides legal analysis on general legal issues relating to CIA
operational activities. It supports and
complements the Operations Division of OGC, which provides specific legal
oversight of specific operational activities.
ISD focuses on issues arising under the Fourth Amendment to the U.S.
Constitution, various statutes protecting the privacy interests of U.S. persons, Executive Order 12333 and various
CIA regulations intended to ensure that Agency operational activities remain in
accordance with U.S.
law and the Executive Order. ISD focuses
primarily on issues "of first impression," and one of ISD's primary
responsibilities is to review new types of intelligence collection
activities--particularly technical collection activities-- to ensure that such
activities comply with applicable law and regulations.
ISD also provides legal
expertise in specialized areas of the law--including guidance on tax, import
and export issues and certain issues of foreign or international law.
handles all of the litigation involving the Central Intelligence Agency or any
of its employees where those employees’ involvement is due to actions taken in
their official capacity. Litigation Division’s
work encompasses both civil and criminal litigation. On the civil side, Litigation Division
handles cases in which the CIA or its employees (in their official capacity)
have been sued. These cases consist primarily
of Freedom of Information Act and Privacy Act cases, Federal Tort Claims Act
cases, employment related cases (such as Equal Employment Opportunity Act,
Administrative Procedure Act, Bivens, and prepublication review cases), and
cases regarding contracts.
On the criminal side,
the Division is involved in unauthorized disclosure cases in which the
classified information that was compromised belongs to the CIA. The Division also represents the CIA’s
interests in criminal cases where the Agency has information that is
discoverable to a defendant. Terrorism
cases and narcotics cases comprise most of this category. In these cases, CIA uses the Classified
Information Procedure Act to protect the classified information at issue.
Lastly, the Division
handles criminal cases in which a defendant is making a claim that his criminal
conduct was authorized by the United States government generally and CIA in
particular, i.e. the public authority defense.
Division is the focal point for questions involving the legality and propriety
of activities carried
out by the National Clandestine Service (NCS).
The Division is charged with providing legal counsel and guidance to the
NCS on matters involving clandestine intelligence collection and covert action,
including matters arising under the Congressional notification provisions of
the National Security Act. To serve the
NCS more effectively, the attorneys in this Division are co-located with the
various divisions and centers within the NCS.
Division’s establishment of rotational positions began in the 1980’s with the placement of attorneys in newly
created CIA centers for counterterrorism and counter narcotics. Over time, OGC attorneys filled positions in
other CIA centers as well as all NCS geographical divisions. Attorneys in these components serve as
clearinghouses for a broad spectrum of legal inquiries, including matters
involving covert action, EO 12333, asset recruitment and termination, export
control, support to law enforcement, litigation, Congressional notification,
contracts, and administrative and personnel issues. OD also assists NCS components responsible
for maintaining the proprietary and cover arrangements required to support
OFFICE OF THE CHIEF FINANCIAL OFFICER
The CFO Legal unit
provides legal advice and counsel to the Office of the Chief Financial Officer
(including the Office of the Procurement Executive) and to other Agency
components, on a wide range of appropriations and fiscal law topics. These include, but are not limited to: federal and Agency budget formulation and
execution; Anti-Deficiency Act; use of expired (prior year) funds; covert
action resource issues; certain lease and construction issues; Economy Act;
reprogramming of funds; Federal Managers’ Financial Integrity Act; Agency’s
audited financial statements process; and, Congressional notification or
reporting requirements and directions concerning certain of the preceding
matters. The CFO Legal team also
provides guidance (in coordination with Administrative Law Division) to the
Office of the CFO on Federal employee ethics.
CFO Legal reviews and
authorizes proposed Agency regulations on financial administration and
acquisition, and reviews and coordinates on all other proposed regulations and
notices before they are published. On
behalf of the CFO, CFO Legal reviews and comments on a broad spectrum of draft
Intelligence Community policy documents, and on legislation or similar
legislative materials as requested by the Agency’s Office of Congressional
Affairs. CFO Legal also provides modules
of legal instruction as part of various budget and resource management courses
offered to CIA employees.
OFFICE OF THE CHIEF INFORMATION
The attorneys that
provide legal support to the Agency’s Chief Information Officer (CIO) do so for
the diverse components within the Office of the CIO, the CIA Privacy and Civil
Liberties Program, the global communications activities of the Directorate of
Support, the Center for the Study of Intelligence, and the DNI’s Open Source
Center. CIO Legal provides guidance on legal issues
relating to information technology, global communications, privacy and civil
liberties, the classification and declassification of national security
information, prepublication review, information sharing, records management,
and information review and release programs mandated by law.
OFFICE OF CONGRESSIONAL
Legislation Group is part of the Office of
Congressional Affairs (OCA). The group provides legislative drafting,
monitoring and advice to the Director of the Central Intelligence Agency
(D/CIA) and to the Central Intelligence Agency (CIA). The group's primary functions include: Preparing and coordinating the CIA’s
annual draft of the Intelligence Authorization Act; monitoring draft,
introduced, and pending legislation, and related reports, letters, or testimony
to determine the potential impact upon the CIA and its activities, and
coordinating Agency positions on legislation that would affect Agency equities;
overseeing and having primary responsibility for the provision of timely
coordinated D/CIA responses to Legislative Referral Memorandums from the Office
of Management and Budget that seek CIA concurrence and/or comments on various
legislative proposals, draft testimony, or Administration signing statements;
monitoring the Congressional Record and other sources daily for actions and
items of interest to the CIA, and keeping CIA leadership and other elements
informed, as appropriate, of major legislative developments; providing,
supervising or coordinating the legal advice provided to OCA; and, briefing CIA
training classes about Congress and Congressional oversight.