Interview: Stephen W. Preston General Counsel, Central Intelligence Agency

By Alexander Porro, From Volume 2, Issue 1

Stephen W. Preston is General Counsel of the Central Intelligence Agency (CIA). Appointed by President Obama with the advice and consent of the Senate, he was sworn in on July 1, 2009. Mr. Preston was previously a partner at the law firm of Wilmer Culter Pickering Hale and Dorr LLP in Washington, DC, where he was Co-Chair of the Defense and National Security Practice Group, as well as a member of the Regulatory and Litiga- tion Departments. He joined the firm in 1986. Mr. Preston was Princi- pal Deputy General Counsel of the Department of Defense from 1993 to 1995, during which time he served for an extended period as Acting General Counsel. From 1995 to 1998, Mr. Preston served as the Deputy Assistant Attorney General at the Department of Justice responsible for civil litiga- tion in the courts of appeals on behalf of the United States before President Clinton appointed Mr. Preston as General Counsel of the Department of the Navy, a position he held until 2000. The numerous awards and dis- tinctions Mr. Preston received include the Central Intelligence Agency Direc- tor’s Award, the Department of Defense Medal for Distinguished Public Service (with bronze palm in lieu of second award), and the Department of the Navy Distinguished Public Service Award. Mr. Preston received a B.A. from Yale University (’79) and a J.D. from Harvard University (’83).

1. How does the law, in particular national security law, pertain specifically to what you do at the CIA?

The General Counsel of the CIA is, by statute, the chief legal officer of the Agency. As such, I am the senior legal advisor to the Director and a member of his leadership team. I also serve as head of the Office of General Counsel, which provides legal ser- vices to the various components of the Agency, in three principal areas: the usual federal agency management functions such as contracts, human resources, fiscal law, ethics, information management and security; litigation and investigations (of which we have had no shortage in recent years); and operations. All three areas are in- formed by national security law. Another role of the General Counsel is to represent the Agency with reference to law-related matters at other Executive branch agencies, at the White House, before congressional oversight committees, and with foreign governments. Here, again, national security law is key.

2. What is a general day in the life of Stephen Preston at the office?

My day begins with a daily intelligence briefing at the crack of dawn, followed by the Director’s morning meeting with his leadership team. The rest of the morning is usually consumed by internal meetings with my staff in the Office of General Counsel and with other Agency components and telephone calls. Lunch is an opportunity to catch up with colleagues elsewhere in the government, maintain contacts in the private sector, or entertain visiting counterparts at foreign liaison services – or is spent at the desk if the press of business requires it. A typical afternoon includes one or more meetings downtown, for example, repre- senting the Agency at meetings with the National Security Staff at the White House. Only as the regular workday winds down and evening sets in does it become quiet enough to provide the sustained reflection that some matters require, get caught up on the day’s e-mail traffic, and prepare for the following day. There simply are not enough hours in the day to do everything, so one must manage one’s time carefully – concentrating on the crisis of the day or other top-priority projects, to be sure, but without ignoring the lesser and longer-term matters that also require at- tention – and one must delegate effectively.

3. Why did you decide to go to law school and did you ever imagine that you would be working as the Gen- eral Counsel of the CIA?

I went to law school because I did not know what I wanted to do and I thought law would provide the widest range of career opportunities, whether in government or the private sector. I had come to college with a strong belief in the importance of
giving back to the commu- nity, which my years in New Haven only reinforced. By the time I graduated, I expected to devote a substantial portion of my professional life to public service, and I moved to Washington after law school in hopes of someday serving in the federal government. I never dreamed I would be General Counsel of the CIA, but, as luck would have it, my first opportunity to serve was at the Department of Defense during the Clinton Administration. That experience ultimately led me to the Agency after President Obama took office.

4. What is the biggest misconception about the CIA and how do you and your office work to dispel those ideas?

First, there may be a popular misconception that the Agency operates outside U.S. law. This is simply not so. All intelli- gence activities of the CIA must be properly authorized pursuant to U.S. law and must be conducted in accordance with U.S. law, period. Even with respect to any “covert action,” the National Security Act of 1947, as amended, plainly states that the President “may not authorize any action that would violate the Constitution or statutes of the United States.”    The stat- utes, executive orders, and Agency regulations under which the CIA operates are replete with limitations on intelligence activi- ties and procedures for ensuring compliance, and a great deal of the management and legal functions within the operating components, as well as at the leadership level – not to mention congressional oversight – are devoted to making sure that the Agency does indeed operate within these strictures of U.S. law.

5. Can you comment on the changes that you observed in the law after September 11, 2001 and the death of Osama bin Laden?

First, having served at the Pentagon and the Justice Department before 9/11, upon returning to government, I was immediately struck by the much greater levels of coordination and collaboration between and among defense, intelligence, and law enforce- ment. The difference is night and day. It should come as no surprise, as the need for better information-sharing was one of the principal lessons learned from 9/11, and much of the change has been driven by post-9/11 legislation such as the Intelligence Reform and Terrorism Prevention Act of 2004. It is not all sweetness and light among the various agencies, of course, but there is a strong sense of common cause and national imperative that has people pulling in the same direction like never before.
Second, in the immediate aftermath of Osama bin Laden’s death, some ill-informed critics speculated that the operation was somehow unlawful. To the contrary, both in terms of the authority to act and the manner in which it was carried out, the bin Laden operation was entirely lawful under both U.S. law and applicable principles of international law. The Depart- ment of State Legal Adviser, former Yale Law School Dean Harold Koh, put it this way:
“Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. In addition, bin Laden continued to pose an imminent threat to the United States that engaged our right to use force, a threat that materials seized during the raid have only further documented. Under these circumstanc- es, there is no question that he presented a lawful target for the use of lethal force. By enacting the AUMF [Authorization for the Use of Military Force], Congress expressly authorized the President to use military force “against…persons [such as bin Laden, whom the President] determines planned, authorized, committed, or aid- ed the terrorist attacks that occurred on September 11, 2001…in order to prevent any future acts of international terrorism against the United States by such…persons.” Moreover, the manner in which the U.S. operation was conducted – taking great pains both to distinguish between legitimate military objectives and civilians and to avoid excessive incidental injury to the latter – followed the [law of armed conflict] principles of distinction and proportion- ality…and was designed specifically to preserve those principles, even if it meant putting U.S. forces in harm’s way. Finally, consist- ent with the laws of armed conflict and U.S. military doctrine, the U.S. forces were prepared to capture bin Laden if he had surren- dered in a way that they could safely accept. The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here. In sum, the United States acted lawfully in carrying out its mission against Osama bin Laden.”

6. What are the qualities that you feel that the best law- yers in the field possess and can you point to anyone who has inspired you by exhibiting these qualities?

In my experience, the best lawyers in this or any field are con- summate problem-solvers, with the strength of intellect to under- stand the competing interests better than anyone else, the experi- ence and creativity to formulate the solution that has escaped everyone else, and the integrity and presence to present that solu- tion as credible, even advantageous, to all. Among my mentors in the law – each a consummate problem-solver – are the late Arthur Mathews, a top practitioner in the area of federal securi- ties law; the late Lloyd Cutler (Yale College ‘36, LAW ‘39), twice Counsel to the President; and Jamie Gorelick, former Deputy Attorney General and Department of Defense General Counsel.

7. Where do you see yourself in 5 or 10 years?

As a Presidentially appointed, Senate-confirmed official, I serve “at the pleasure of the President,” which means I can remain General Counsel of the CIA no later than January 20, 2017. Actually, someone in my position would typically be gone by the end of the first term. As for where I will go, I suppose in a sense I am where I was in 1979: I do not know exactly, and that does not bother me.

8. What advice or encouragement do you have for the Yale undergraduate who is aspiring to be the next General Counsel?

One thing I have learned about careers in the law and public service is that there is no one right way to do it, no single path to where you want to be. Circumstances, goals, and opportuni- ties differ. If you are considering law school, think hard about whether you have an aptitude for and genuine interest in the law. In any event, think about a career in national security, whether in the military, in the intelligence community, or elsewhere. And consider the CIA in particular: I tell people I have the most inter- esting legal job in town, and there are countless intelligence of- ficers all over the Agency equally excited about what they do.

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