[Senate Hearing 112-306]
[From the U.S. Government Printing Office]


                                                        S. Hrg. 112-306
 
                   NOMINATION OF LISA O. MONACO TO BE 
ASSISTANT ATTORNEY GENERAL FOR NATIONAL SECURITY, DEPARTMENT OF JUSTICE 

=======================================================================

                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE

                                 OF THE

                          UNITED STATES SENATE

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 17, 2011

                               __________

      Printed for the use of the Select Committee on Intelligence


         Available via the World Wide Web: http://www.fdsys.gov


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                         U.S. GOVERNMENT PRINTING OFFICE 

72-746 PDF                       WASHINGTON : 2011 

For sale by the Superintendent of Documents, U.S. Government Printing 
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                    SELECT COMMITTEE ON INTELLIGENCE

           [Established by S. Res. 400, 94th Cong., 2d Sess.]

                 DIANNE FEINSTEIN, California, Chairman
                SAXBY CHAMBLISS, Georgia, Vice Chairman

JOHN D. ROCKEFELLER IV, West         OLYMPIA J. SNOWE, Maine
    Virginia                         RICHARD BURR, North Carolina
RON WYDEN, Oregon                    JAMES E. RISCH, Idaho
BARBARA A. MIKULSKI, Maryland        DANIEL COATS, Indiana
BILL NELSON, Florida                 ROY BLUNT, Missouri
KENT CONRAD, North Dakota            MARCO RUBIO, Florida
MARK UDALL, Colorado
MARK WARNER, Virginia
                     HARRY REID, Nevada, Ex Officio
                 MITCH McCONNELL, Kentucky, Ex Officio
                    CARL LEVIN, Michigan, Ex Officio
                    JOHN McCAIN, Arizona, Ex Officio
                              ----------                              
                     David Grannis, Staff Director
            Martha Scott Poindexter, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk





























                                CONTENTS

                              ----------                              

                              MAY 17, 2011

                           OPENING STATEMENTS

Feinstein, Hon. Dianne, Chairman, a U.S. Senator from California.     1

                                WITNESS

Monaco, Lisa O., Assistant Attorney General for National 
  Security-Designate.............................................     9
    Prepared statement...........................................    11

                         SUPPLEMENTAL MATERIAL

Letter dated April 12, 2011, from Kenneth L. Wainstein to Senator 
  Dianne Feinstein and Senator Saxby Chambliss...................     3
Letter from Philip Mudd..........................................     5
Letter dated April 8, 2011, from Willie T. Hulon to Senator 
  Dianne Feinstein and Senator Saxby Chambliss...................     6
Letter dated April 5, 2011, from Joseph Billy, Jr. to Senator 
  Dianne Feinstein and Senator Saxby Chambliss...................     7
Letter dated April 13, 2011, from Dale L. Watson to Senator 
  Dianne Feinstein and Senator Saxby Chambliss...................     8
Questionnaire for Completion by Presidential Nominees............    22
Prehearing Questions and Responses...............................    38
Additional Responses to Questions for the Record.................    76


                   NOMINATION OF LISA O. MONACO TO BE
                     ASSISTANT ATTORNEY GENERAL FOR
                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

??-??? PDF                       WASHINGTON : 2011 

For sale by the Superintendent of Documents, U.S. Government Printing 
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; 
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                NATIONAL SECURITY, DEPARTMENT OF JUSTICE

                              ----------                              


                         TUESDAY, MAY 17, 2011

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:37 p.m., at 
3:37 p.m. in Room SH-216, Hart Senate Office Building, the 
Honorable Dianne Feinstein (Chairman of the Committee) 
presiding.
    Committee Members Present: Senators Feinstein, Wyden, and 
Risch.

 OPENING STATEMENT OF HON. DIANNE FEINSTEIN, CHAIRMAN, A U.S. 
                    SENATOR FROM CALIFORNIA

    Chairman Feinstein. The Committee will come to order.
    We meet today in open session to consider the President's 
nomination of Lisa Monaco to be the Assistant Attorney General 
for National Security, replacing David Kris, who resigned in 
March of this year.
    Ms. Monaco was approved by the Senate Judiciary Committee, 
of which I am a member, by a unanimous vote on May 9th. And her 
nomination was referred under Senate rules to this Committee, 
the Intelligence Committee. Now, that's consistent with the 
joint jurisdiction that both of our committees have over 
national security of the Department of Justice.
    The Assistant Attorney General for National Security is a 
fairly new position, but it's a very important one. This 
position represents the government before the Foreign 
Intelligence Surveillance Act court and serves as a senior 
adviser to the Attorney General on matters relating to national 
security, such as intelligence collection, detention, and 
counterintelligence.
    I might just say--most people don't know--the FISA court, 
the Foreign Intelligence Surveillance Act Court, is capable of 
meeting 24/7, 365 days a year. I believe it has 11 judges, all 
appointed by the Chief Justice of the Supreme Court. So they 
are ones that review certain intelligence-related matters.
    This Assistant Attorney General serves as the primary 
liaison to the Director of National Intelligence for the 
Department of Justice.
    We are all mindful of the need to fill this position 
quickly, especially in light of the May strike against Osama 
bin Ladin. The strike provided for a collection of a large 
cache of al-Qa'ida documents, communications, and videos that 
will no doubt lead to new counterterrorism leads.
    A Senate-confirmed official at the Department of Justice 
has to sign off on applications to the FISA court and other 
investigative techniques. So having Ms. Monaco in place quickly 
will allow the government to move much more quickly.
    Of course, the strike against bin Ladin may also lead to 
reprisal attacks. So this is a time of an additional potential 
threat of terrorism to this country. And the Attorney General, 
the intelligence community, the FBI, and the entire 
administration need to have their teams in place.
    Ms. Monaco has already testified before the Judiciary 
Committee. She's responded to written questions for the 
Judiciary Committee and for this Committee. Her views and 
positions are already a matter of public record.
    Let me just quickly describe her background. She has served 
as the Principal Associate Deputy Attorney General or acted in 
that capacity and served as Associate Deputy Attorney General 
from January of 2009 through February of 2010. She has 
considerable experience with the FBI, having served as chief of 
staff to Director Bob Mueller for two years.
    She spent six years as an Assistant United States Attorney 
for the District of Columbia, where she received the Attorney 
General's award for exceptional service, the Department of 
Justice's highest award.
    She also received the Department of Justice awards for 
special achievement, not one year, but in 2002, 2003, and 2005. 
She skipped a year there, which we'll have to find out about.
    [Laughter.]
    She received her law degree from the University of Chicago 
Law School in 1997, her B.A. from Harvard in 1990. Her 
nomination has received support from a range of individuals, 
with letters submitted on her behalf from former Attorney 
General Michael B. Mukasey, former Assistant Attorney General 
for National Security Kenneth Wainstein, and former senior 
officials at the FBI and Department of Justice, which I now 
request be placed in the record.
    [The information referred to follows:]
    
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    So I want to welcome you, Ms. Monaco. And I think this will 
be a relatively brief hearing, particularly since you've 
already been through the Judiciary Committee. So if I may turn 
to a distinguished member of the Intelligence Committee who is 
now acting as vice chairman of that Committee, Senator Risch.
    Senator Risch. Thank you very much, Madam Chairman. I'm 
anxious to get on with the hearing, and I'll submit any 
comments for the record.
    Chairman Feinstein. Okay. Very good. Do you have a 
statement that you would like to make?

  STATEMENT OF LISA O. MONACO, ASSISTANT ATTORNEY GENERAL FOR 
                  NATIONAL SECURITY-DESIGNATE

    Ms. Monaco. I do, Madam Chairman. And if I might at this 
time also introduce the members of my family who are here with 
me today.
    Chairman Feinstein. Please do.
    Ms. Monaco. I'm very happy that my parents, Dr. Anthony 
Monaco and Mary Lou Monaco could be here from my hometown of 
Newton, Massachusetts. I'm very thankful for their support. My 
brother Mark and his wife Jennifer Monaco are here from New 
York, and I'm especially happy that they brought their 
children, my niece Sophia and my nephew Nicholas----
    Chairman Feinstein. Hi.
    Ms. Monaco [continuing]. To come and be part of this 
proceeding. I think they're particularly happy, however, that 
they got a day off from school.
    Chairman Feinstein. I think that's more important. No?
    They're saying, no, it isn't.
    [Laughter.]
    Ms. Monaco. I think we'll probably have a debate about that 
later.
    I'm also very thankful that I have a few friends in the 
audience and colleagues from the Department, including 
colleagues from the National Security Division. And I'm 
particularly honored that they're here today.
    Madam Chairman, if I could make a few brief remarks.
    Chairman Feinstein. Please do.
    Ms. Monaco. Thank you very much, Madam Chairman and Vice 
Chairman Risch. I want to thank the Committee for holding this 
hearing. I know you have extremely pressing business before 
you, and I appreciate the thoughtful consideration being given 
to this nomination.
    At the outset, I would like to thank the President for his 
confidence in nominating me and the Attorney General for his 
support. I am tremendously honored to be here today.
    In my statement before the Judiciary Committee a few weeks 
ago, I discussed the changes the Department has undergone since 
September 11th. I won't repeat those remarks here except to say 
that, over the course of my career, I have been privileged to 
participate in those changes. As a senior adviser, as the 
Chairman noted, and chief of staff at the FBI, I worked with 
Director Mueller to help advance the FBI's transformation from 
a law enforcement organization focused on investigating crime 
after the fact to a national security organization focused on 
preventing the next attack.
    I've also seen the evolution of the National Security 
Division into a highly effective organization, and I've had the 
opportunity to work with colleagues across the intelligence 
community.
    These changes reflect an intelligence-led approach to 
combating national security threats. And, if confirmed, I will 
be honored to continue that focus alongside the dedicated men 
and women of the National Security Division and their equally 
dedicated partners in the intelligence community.
    Thanks to this Committee and to the Congress, the Assistant 
Attorney General for National Security sits astride the law 
enforcement and intelligence responsibility of the Justice 
Department. And, if confirmed, I will serve as a bridge between 
the department and the intelligence community. This is a 
critical role and one which this Committee had the wise 
judgment to create.
    The mission of the National Security Division, quite 
simply, is to prevent terrorism and to protect the American 
people. As someone who has worked in both the Congress and in 
the executive branch, I know this Committee plays an important 
role in combating national security threats. I recognize that 
oversight helps promote accountability, and I understand the 
need to be responsive appropriately and quickly to 
congressional oversight. I am committed to forming strong and 
cooperative relationships in that regard.
    Every morning for the last several years, I have sat 
alongside talented analysts, agents and national security 
professionals and reviewed intelligence and assessed how the 
country is responding to the latest threat streams. This 
experience has taught me that our nation faces complex and 
evolving threats. To combat them, we must be aggressive and 
agile in our approach, and we must do so consistent with the 
rule of law. If confirmed, I pledge to give my all to that 
effort.
    Thank you very much, and I welcome the Committee's 
questions.
    [The prepared statement of Ms. Monaco follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    
    Chairman Feinstein. Thank you very much. And we will begin 
with five standard questions that just require a yes or no 
answer.
    Do you agree to appear before the Committee here or in 
other venues when invited?
    Ms. Monaco. Yes.
    Chairman Feinstein. Do you agree to send officials from the 
Department of Justice and designated staff when invited?
    Ms. Monaco. Yes.
    Chairman Feinstein. Do you agree to provide documents and 
any other materials requested by the Committee in order for it 
to carry out its oversight and legislative responsibilities?
    Ms. Monaco. Yes.
    Chairman Feinstein. Will you ensure that the Department of 
Justice and its officials provide such material to the 
Committee when requested?
    Ms. Monaco. Yes.
    Chairman Feinstein. Do you agree to inform and fully brief 
to the fullest extent possible all members of this Committee of 
intelligence activities and covert actions rather than only the 
Chairman and Vice Chairman?
    Ms. Monaco. Yes.
    Chairman Feinstein. Thank you very much.
    And now, I'd like to ask this question because this is very 
pertinent to something we're going to be doing before the end 
of this month.
    Three provisions of the Foreign Intelligence Surveillance 
Act, commonly referred to as FISA, are due to expire. They were 
part of PATRIOT Act provisions. As you know, we are working to 
extend the provisions, preferably to 2013. These three expiring 
provisions are: one, roving wiretaps to monitor foreign 
intelligence targets who attempt to thwart FISA surveillance 
such as by rapidly changing cellphones; two, what's called the 
lone-wolf provision to monitor a non-United States person who 
engages in international terrorism but it is unknown whether he 
is connected to a specific international terrorist group; and 
three, the business records provision to obtain records as part 
of a foreign intelligence investigation.
    I'd like you to elaborate on your answer to the Committee's 
prehearing questions on this topic. And please tell us how the 
expiration of these three provisions would affect DOJ's 
intelligence and law enforcement work at this very critical 
period.
    Ms. Monaco. Well, Chairman, as you noted in your opening 
remarks, we are at a critical juncture and facing a stepped-up 
threat, and we need to be able to respond to that with all the 
leads that we receive in any number of different areas.
    The provisions that you mention are absolutely critical to 
that effort. The roving wiretap provision, as you mentioned, 
enables investigators to essentially have the same tools that 
criminal investigators have had for years and years, an ability 
to keep up with those who would thwart the government's 
surveillance efforts.
    If these provisions were to expire, we would be, I think, 
quite diminished in our ability to keep up with both rapidly 
evolving threats like those who use sophisticated means to try 
and thwart our surveillance effort and it would diminish our 
ability to keep up with threat streams as they come in.
    The business records----
    Chairman Feinstein. Could you give us a couple of examples 
of lone-wolf attacks in this country?
    Ms. Monaco. Certainly, Senator. As this Committee is well 
aware and having received a number of briefings in other 
settings about the threat we face, I think I number of 
experts--the DNI and the FBI director have spoken about the 
particular threat we face from those who are self-radicalized, 
those who are not necessarily part of al-Qa'ida or directed by 
al-Qa'ida but rather inspired by al-Qa'ida's violent message.
    And individuals such as Nidal Hasan from the tragic events 
at Fort Hood, those type of individuals, who we may not be able 
to directly associate with al-Qa'ida but who are inspired, are 
the type of people that we need to have that tool, the lone-
wolf tool.
    I would note, of course, for the Committee that that tool 
can only be used against non-U.S. persons. It has not been used 
to date, but it is certainly a tool that we need in order to be 
able to keep up with the evolving threat that we face.
    Chairman Feinstein. And the business records provision and 
why that's important in the United States?
    Ms. Monaco. Certainly. The business records provision, as 
you noted, allows agents and investigators to obtain critical 
building- block pieces of evidence in order to use, frankly, 
more intrusive methods down the line. It's a critical way to 
get information to build a case. It enables investigators to 
get things like hotel records, FedEx records, the type of 
things that, quite frankly, are very important in plots like 
the package plot that we saw last year. In order to get 
information from a shipping company to determine the origin of 
a plot like that, we need the business records exceptions.
    Chairman Feinstein. Was the business records provision used 
in the Najibullah Zazi attempted attack with the goods from 
the----
    Ms. Monaco. The peroxide?
    Chairman Feinstein. The peroxide----
    Ms. Monaco. I think I know what you're referring to. Yes, 
Senator, that is exactly the type of plot that we need that 
provision for. You're alluding to, I think, the ability of the 
investigators to track down the purchase of the peroxide that 
formed the base for the explosive device that Najibullah Zazi 
was plotting to use in September of 2009.
    Chairman Feinstein. Thank you. Thank you very much.
    Senator Risch.
    Senator Risch. Madam Chairman, this candidate has been well 
vetted by the Judiciary Committee, and I think that she has 
received high marks from virtually everyone I've talked to, so 
I'm going to pass. I was particularly impressed with her 
analysis of the expiring FISA provisions. And obviously we're 
going to have a spirited debate on some of those, but her view 
on them is important, I believe. So thank you, Madam Chairman.
    Chairman Feinstein. Thank you very much.
    I may have one other question on this--but I may not, too.
    Senator Risch. That's Okay.
    Chairman Feinstein. Let me speak about one thing, and 
that's in the subject of increased leak prosecutions by DOJ.
    In responding to the Committee's prehearing questions, you 
provided short status reports on four major prosecutions where 
the Department of Justice charged individuals in connection 
with unlawful disclosure of classified information to the 
media. Could you put the number and complexity of these 
prosecutions in historical context?
    Ms. Monaco. Thank you, Madam Chairman.
    As you noted, just a few of the summaries that I provided 
in my response to the prehearing questions I think reflect a 
stepped-up effort and, indeed, a priority placed on the 
prosecution of leak matters in the Department. These, I think, 
in the last 18 months--I'm going to estimate here--I think it's 
twice as many as has been done historically in this area.
    These are very, very important prosecutions. This Committee 
has, I think appropriately, pressed the Department and the 
intelligence community to bring these matters, to focus on 
these matters, to ensure that unauthorized disclosures are 
prosecuted and pursued, either by criminal means or the use of 
administrative sanctions.
    Leaks do tremendous damage. I know from my time at the FBI 
what they can do to an investigation, to a prosecution, 
frankly, to the lives of sources that are very important to 
these investigations. And they do tremendous damage to our 
ability to use specific methods, if those methods are 
disclosed, and to use those methods for collecting 
intelligence.
    If I'm confirmed, it would be my priority to continue the 
aggressive pursuit of these cases, challenging as they may be, 
but those challenges should not slow us down in aggressively 
pursuing those matters.
    Chairman Feinstein. Thank you very much.
    Senator Wyden.
    Senator Wyden. Thank you very much, Madam Chairman. Let me 
just apologize for being late and also missing an earlier 
statement.
    Chairman Feinstein. I saw you on the floor.
    Senator Wyden. Today has been bedlam, even by Senate 
standards, and I apologize for that to you.
    Chairman Feinstein. No problem.
    Senator Wyden. Ms. Monaco, welcome. And I want to start by 
talking about the matter you and I talked about in the office, 
and that really is my philosophy with respect to national 
security law.
    I think it is absolutely essential to protect the 
operations and methods that are employed day in, day out by the 
courageous people who serve us in the intelligence community. I 
think protecting those sources and methods is just sacrosanct, 
and I feel it as strongly as anything that relates to my public 
duty.
    But I also believe that all intelligence activities have to 
be conducted within the boundaries of public law. And as you 
know, when we talked in the office, I make a major distinction 
between public law and the operations and methods that I feel 
so strongly about protecting. Members of the public won't 
always know the details, obviously, about what intelligence 
agencies are doing but they also ought to be able to look at 
the law and figure out what actions are permitted and what 
actions are prohibited.
    In other words, the government is allowed to conduct these 
secret operations to protect national security, but I don't 
think our government ought to be able to write secret law. Do 
you disagree with that judgment?
    Ms. Monaco. Well, first, thank you very much, Senator, for 
taking the time to meet with me last week, and I very much 
enjoyed our conversation. I appreciate your taking that time.
    I did review the correspondence that you mentioned and, as 
we discussed, in this setting, I think I will simply refer to 
it in a general way, since it is classified. But I reviewed the 
points that you asked me to in that correspondence, and I think 
that there are very valid points that you made in that 
correspondence.
    I think that we need to ensure that we balance the need to 
keep certain information secret, to protect, as you noted, the 
intelligence sources and methods. But on the other hand, there 
is a tremendous value in making clear to the public how we use 
these authorities. It engenders trust, I think, in the way the 
government uses those authorities, and we rely--those of us in 
positions of trust rely on the public's trust in how we 
exercise our duties.
    And I understand the Committee's interest and importance of 
your knowing how we're exercising those functions, because you 
stand in the shoes of the public in exercising your oversight 
responsibility. So in short, I think the points you made in the 
correspondence that we discussed are quite valid.
    Senator Wyden. I think that's helpful. And, of course, you 
know, we're talking only in this unique language that you have 
for an open intelligence hearing. You then agree with me--and 
this is the part I want to nail down--that the application of 
secret law is wrong, because that's what I'm raising in the 
letter.
    And this is right at the heart, you know, of my concern--
protect the operations and methods, but I want to see an end to 
all of this secret law. Because I think and we certainly see 
this on the PATRIOT Act, if the public thinks that the law is 
this, and the law ends up actually being that, that's a 
prescription for trouble.
    And so what I really need to get on the record--and 
obviously I haven't talked about any of the points raised in 
the letter or anything that relates to operations and methods--
is I want to get on the record whether you share my view that 
the way law is being applied secretly is wrong.
    Ms. Monaco. Well, Senator, I absolutely agree that we need 
to make as much of the types of documents that you're referring 
to public as possible. There is a process, as I think the 
Committee is aware, to try and make sure the FISA court 
opinions that can be made public and the portions of them that 
can be made public are--that that is done to the fullest extent 
possible. I share your view that we need to make sure that we 
protect the sources and methods, and I think that we can do 
that while at the same time making clear and making public how 
we're applying the law in the open for evaluation of the 
Congress and the public.
    Senator Wyden. Do you agree that the government's official 
interpretation of the law should be public? That is to me a 
yes-or-no answer.
    Ms. Monaco. Well, respectfully, Senator, the whole notion 
and the reason we have the FISA court is sometimes the manner 
in which we're applying the authorities and the facts 
surrounding them have to necessarily be kept secret from our 
adversaries so that those tools can't be used against us. I 
certainly agree that we need to make as much public as possible 
and to be as transparent as possible in how we're using the 
authorities that the Congress has given us.
    Senator Wyden. Are key interpretations of the PATRIOT Act 
classified?
    Ms. Monaco. I think that there are a number of applications 
and orders from the FISA court that are in the process of being 
reviewed pursuant to a process that the Committee has been 
notified of.
    Senator Wyden. Well, it seems pretty clear to me that key 
interpretations of the PATRIOT Act are classified. That's the 
problem and I don't think the Department's releasing a bunch of 
statistics are going to clear that, you know, up. I mean, the 
big problem in my view is that the American people are being 
kept in the dark about their government's interpretation of a 
major surveillance law. And I think most Members of Congress 
aren't aware of how it's being applied either, even though 
they're being asked to vote for it. And I don't think this 
situation is sustainable.
    And my own view is, is when members of the public find out 
how their government is secretly interpreting the PATRIOT Act, 
they're going to insist on significant reforms. And I will only 
tell you: I think you're very highly qualified, but I still 
don't get a sense of urgency or conviction that this issue of 
secret law is of any real concern, because when I've asked 
specifically about it, you've either said it's complicated and 
there are other kinds of issues or referred me to something 
else.
    So if you're confirmed, I can assure you, you're going to 
keep hearing from me about this, because I think secret law is 
an increasing, you know, problem in this country. The American 
people are fair-minded and they understand this is a very 
dangerous world with very significant threats. And they want 
our operations and methods, as I do, protected so our men and 
women who serve in the intelligence community can do their job 
and know that they can do it with the maximum amount of 
personal safety, but that's very different than secret 
applications of statutes like the PATRIOT Act.
    Madam Chair, what's your pleasure? I had a couple of other 
questions, but I am well over my time, and I can wait for 
another round.
    Chairman Feinstein. Well, why don't you go ahead and ask 
them, because I think we're ready to wrap it up.
    Senator Wyden. Well, I thank you.
    Let me ask you about the FISA court opinions, which 
involves, of course, both secrecy and the law.
    In 2008, Senator Rockefeller and I wrote a letter to the 
Attorney General, the Director of National Intelligence and the 
Chief Justice of the Foreign Intelligence Surveillance Court 
expressing our view that there ought to be a more regular 
process for reviewing, redacting, and then publishing the 
courts' major opinions.
    Now, I believe it makes sense to classify routine warrant 
applications that contain information about sensitive 
intelligence sources and methods, but a few of the court's 
decisions actually contain important rulings on the meaning of 
national surveillance law. And it's been my judgment that these 
decisions ought to be redacted and declassified so that the 
Congress and the public can better understand how national 
security statutes are being interpreted by the judicial branch.
    Now, in 2009, Senator Rockefeller and I followed up and we 
were told that the executive branch was working with the FISA 
court to set up this process. We've been updated a couple of 
times about what the new process would look like. But again, 
nothing has really changed. There haven't been any declassified 
court opinions as yet. And given this process has now been two 
years in the making, when can you tell the Committee that we 
might see some declassified opinions?
    Ms. Monaco. Well, Senator, as I understand it--and I know 
this was raised and I tried to respond to some extent in my 
prehearing questions, but as I understand it, there is a 
process under way by which the National Security Division 
reviews opinions and orders from the FISA court, and pursuant 
to the section, of course, of FISA that requires that the 
Committee be provided with significant interpretations and 
constructions in those opinions, that those documents are 
reviewed by the National Security Division and then, of course, 
shared with the intelligence community so that determinations 
can be made as to what can be declassified.
    These are, of course, judicial documents, as you noted. And 
I know there has been considerable discussion with a number of 
judges on the FISA court so that they too understand and agree 
that we should be providing as much of that material in an 
unclassified form as possible.
    So I know that there is a process under way for the 
substance of the opinions to be reviewed and for the 
intelligence community to determine what can be declassified. 
And if I am confirmed, I think one of my first priorities would 
be to check in and determine the status of that full review and 
to see when you can be provided a number of those opinions.
    Senator Wyden. Well, the process is two years in the 
making. I mean, what can you tell me is likely to change? When 
you tell me that you're going to review the process, that's 
what people have been doing for two years and nothing has 
changed. So what are you going to do differently?
    Ms. Monaco. Well, I think I'm going to have to make a 
determination. I don't have the facts in front of me. I think 
what would be the wise course, from my perspective, is to--if 
I'm confirmed--to get the facts on the ground, to do my own due 
diligence to determine what procedures have been set up. Are 
there efficiencies that can be realized? Are there things that 
could be done in a more expedited fashion--and make those 
assessments. I simply haven't been in a position in order to do 
that yet.
    Senator Wyden. I'm going to wrap up.
    I just want to convey in the strongest possible way that I 
think business as usual is unacceptable. And you have very 
fine, you know, qualifications, but I am still very troubled 
about your thinking with respect to secret law. I think that is 
going to be an increasing problem as the American people think 
the statute is really being applied over here. They're going to 
find out it's over there and it's going to undermine, you know, 
public confidence.
    And after two years of persistent efforts to try to get a 
fresh approach with respect to FISA opinions and making them 
publicly, you know, available when there aren't any national 
security risks to the public and say we're just going to study 
it some more--isn't acceptable to me.
    Madam Chair, you've given me an awful lot of time and I 
thank you for the usual Chair-Feinstein courtesy and grace.
    Chairman Feinstein. You're very welcome. Your views are 
well-known and somewhat appreciated.
    [Laughter.]
    I'd like to thank you very much for this hearing. I want to 
wish you well. We'd like to keep the record open for a couple 
of days so members can ask questions. And so I'd ask that those 
questions be submitted by Thursday.
    If you could respond very quickly, we could vote on your 
nomination next Tuesday and then hopefully move it very 
quickly. You have been through consecutive review of two 
Committees. So I think a number of Senators are very well aware 
of your views and your qualifications.
    So I thank you and your family, and particularly your niece 
and nephew for being here and being so polite and quiet, which 
is sometimes a problem for young people.
    [Laughter.]
    So thank you very much, and the hearing is adjourned.
    Ms. Monaco. Thank you very much, Madam Chairman.
    [Whereupon, at 4:09 p.m., the Committee adjourned.]
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