Nomination of David W. Ogden to be Deputy Attorney General
Hearing Before the Senate Judiciary Committee

February 5, 2009

(unofficial transcript)


SEN. RON WYDEN: I want to ask you a couple of questions with respect to the public's right to know. Certainly those of us who serve on the Intelligence Committee see what the balance is really all about. For example, I feel very strongly about protecting operations and methods. That's absolutely key to ensuring that we protect these courageous people who gather intelligence and we protect our country with the information they're getting.

At the same time, I think that there are flagrant abuses of the classification system. In fact, in a lot of instances I think it's more for political security than national security. And I think we've got to expand the public's right to know and that it's possible to do that while at the same time fighting terrorism ferociously.

So my first question here involves the special court, the Foreign Intelligence Surveillance Court, that provides judicial oversight over sensitive intelligence activities. Now, this court does most of its work in secret. Most of its decisions are classified. Again, in terms of trying to strike a sensible balance, it seems to me it makes some sense to classify routine warrant applications that could contain sensitive information about intelligence sources.

But there are a lot of important rulings that go to the meaning of surveillance law, and I think that a lot of those kinds of judgments really could be redacted and declassified so that the country could be brought in in a more informed, a more complete way to these national- security debates.

And Chairman Rockefeller and I have written to the attorney general. We've written (pdf) to the chief judge of the court. We've gotten a pretty encouraging response from -- certainly an interesting response from the chief judge (pdf). But we haven't gotten a response from the attorney general.

If you are confirmed, would you be willing to look at these kinds of declassification issues anew and try to come up with a fresh policy that ensured that, while documents are classified when it deals with operations and methods and sensitive matters, that more of the issues relating to legal judgments and matters involving national-security policy can meet the public demand?

MR. OGDEN: Senator, I absolutely will commit to take a fresh look at this issue if I'm confirmed. There are two great imperatives here. One is the imperative of protecting the national security. And as you say, Senator -- and you're a leader in -- been a leader in this area -- protecting the real secrets, the things we really need to protect, is critically important. At the same time, there's an imperative for open government and to let people know what's going on to the extent we can, consistent with the first. And I will certainly look at that and see if there's more that can be done.


SEN. SHELDON WHITEHOUSE: There are people who are willing to bet their lives and their careers to become whistle-blowers. There are people who are willing to give up the job that they love to get away from an administration that is tainting the department. There are others who will simply hunker down until the storm is through. And when they believe they have legitimate management again, they will come back out. And it will be, hey, boss, I've had this memo in my, you know, drawer for six months.

I hope that you will set up a process, so that people who are doing that know where to go with it, and that you as managers have a repository where those sorts of new disclosures will go, so that they can be properly analyzed and reviewed, added to the damage assessment if necessary, have appropriate action taken. I think if that's just left to the ordinary chain of command, it might get confused. And I hope you'll consider specifying, or that they attorney general will consider specifying, within the department, how such disclosures are to be treated.

MR. OGDEN: Well, I think, again that's a very important and interesting idea that you suggested to me in our private conversation.

I am a big believer in whistleblowers, and in the need to make sure that people feel comfortable coming forward to make complaints, and to bring problems to the attention of management. And I will say that I don't view that only as an exercise about people blowing the whistle on the past.

I think what we need is a process that encourages whistleblowing in this administration and any other administration going forward. The business of making sure that we're doing the right thing is an ongoing business.

And so my commitment will be that we will work with the attorney general. We'll talk with the career lawyers who have dealt with these kinds of issues. We'll try to fashion an appropriate process that encourages whistleblowers to raise issues that need to be addressed.


Hearing Webcast and Confirmation Materials from the Senate Judiciary Committee