17 May 2006
This is a 21-page excerpt of a 134-page Senate hearing report. The balance of the report is pre-nomination material prepared by Powell on his biography and finances. Full report: http://intelligence.senate.gov/0507hrg/050719/powell.pdf (4.7MB)
ODNI on Powell: http://www.dni.gov/aboutODNI/bios/powell_bio.htm
<DOC>[109 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:24990.wais] S. Hrg. 109-242 NOMINATION OF BENJAMIN A. POWELL TO BE GENERAL COUNSEL OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE ======================================================================= HEARING BEFORE THE SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION __________ JULY 19, 2005 __________ Printed for the use of the Select Committee on Intelligence Available via the World Wide Web: http://www.access.gpo.gov/congress/ senate _____ U.S. GOVERNMENT PRINTING OFFICE 24-990 WASHINGTON : 2006 _________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 _________________________________________________________________ SELECT COMMITTEE ON INTELLIGENCE [Established by S. Res. 400, 94th Cong., 2d Sess.] PAT ROBERTS, Kansas, Chairman JOHN D. ROCKEFELLER IV, West Virginia, Vice Chairman ORRIN G. HATCH, Utah CARL LEVIN, Michigan MIKE DeWINE, Ohio DIANNE FEINSTEIN, California CHRISTOPHER S. BOND, Missouri RON WYDEN, Oregon TRENT LOTT, Mississippi EVAN BAYH, Indiana OLYMPIA J. SNOWE, Maine BARBARA A. MIKULSKI, Maryland CHUCK HAGEL, Nebraska JON S. CORZINE, New Jersey SAXBY CHAMBLISS, Georgia BILL FRIST, Tennessee, Ex Officio HARRY REID, Nevada, Ex Officio ---------- Bill Duhnke, Staff Director Andrew W. Johnson, Minority Staff Director Kathleen P. McGhee, Chief Clerk C O N T E N T S ---------- JULY 19, 2005 Page Hearing held in Washington, DC: July 19, 2005................................................ 1 Statement of: Roberts, Hon. Pat, a U.S. Senator from the State of Kansas... 1 Martinez, Hon. Mel, a U.S. Senator from the State of Florida. 4 Powell, Benajamin A., General Counsel of the Office of the Director of National Intelligence-Designate................ 7 Prepared statement....................................... 6 Supplemental materials: [Not included here.] Senate Select Committee on Intelligence Questionnaire for Completion by Presidential Nominees........................ 20 Additional questions......................................... 113 Glynn, Marilyn L., General Counsel Office of Government Ethics, letter to Hon. Pat Roberts......................... 122 HEARING ON THE NOMINATION OF BENJAMIN A. POWELL TO BE GENERAL COUNSEL OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE ---------- TUESDAY, July 19, 2005 United States Senate, Senate Select Committee on Intelligence, Washington, DC. The Committee met, pursuant to notice, at 2:41 p.m., in room SDG-50, Dirksen Senate Office Building, the Hon. Pat Roberts (Chairman of the Committee) presiding. Committee Members Present: Senators Roberts and Levin. OPENING STATEMENT OF HON. PAT ROBERTS Chairman Roberts. The Committee will come to order. The Committee meets today to receive testimony on the President's nomination for the newly created position of General Counsel of the Office of the Director of National Intelligence. Our witness today is the President's nominee, Mr. Benjamin Powell. Mr. Powell, the Committee certainly welcomes you. I note also that members of your family are with you here today. Would you care to introduce them at this time? Mr. Powell. Yes, I would, Mr. Chairman. Sitting right behind me is my wife, Natalie Coburn. We have two young children--one 2\1/2\ and one 9 months--but they were not able to join us this afternoon. Next to her is my brother-in-law, Roy Tubergan. He's a retired FBI former assistant special agent in charge, my sister, Elizabeth Tubergan, who currently works for the FBI, and their two children, Jenny and Brian, and then my parents are up from Miami, Florida--Barbara Powell and Tom Powell. I have a brother who is in the Air Force, a surgeon in the Air Force, and unfortunately he was not able to join us today. He'll be deployed to Iraq in September to take command of the surgical hospital there. Chairman Roberts. Well, bless his heart. We thank him for his service. And, to your parents, welcome to Miami weather--or to Florida weather. The Committee also welcomes our distinguished colleague from the State of Florida who will introduce the nominee, Senator Mel Martinez. We thank him for being here today. Last fall, in the Intelligence Reform and Terrorism Prevention Act, Congress created the position of DNI General Counsel. Under the statute, the General Counsel is to serve as the chief legal officer in the Office of the Director of National Intelligence and perform such functions as the DNI may prescribe. I believe that Mr. Powell is well-qualified for the position. Since 2002, Mr. Powell has served as an Associate Counsel to the President. Prior to his current position, he was engaged in the private practice of law, both as corporate counsel and as an associate in private law firms. Mr. Powell also has served as a Law Clerk for Judge John M. Walker, Jr. on the United States Court of Appeals for the Second Circuit, and for Justices Byron White and John Paul Stevens on the United States Supreme Court. Prior to entering the practice of law, Mr. Powell was a computer scientist with the Federal Bureau of Investigation and served as an officer in the United States Air Force. If confirmed, I trust that this range of experience will serve Mr. Powell well as he assumes the challenge of being the first General Counsel of the Office of the DNI. I don't have to remind our nominee that our Nation is at war on a global scale, against a very vicious and determined enemy. The men and women of the Intelligence Community are on the front lines of that war. The recent attacks in London have reminded all of us that against the terrorists a strong offense is our best defense. The men and women of our Intelligence Community are critical to that strong offense, and we rely on them to help take the fight to the enemy and safeguard the homeland. While we normally associate operations officers and analysts with such activities, the lawyers of the intelligence community now play significant support roles in these missions and, as a result, can greatly effect the manner in which operations are conducted. As the DNI's chief legal officer, the General Counsel will play a critical role--not only ensuring that the operations of the intelligence community comply with our Constitution and our laws, but also ensuring that unnecessary or inaccurate interpretations do not deprive the men and women in the Intelligence Community of the tools they need to aggressively target national security threats. I think Americans need to know that the men and women who serve in our intelligence community are committed to protecting our Constitution, our laws, and our civil liberties. But we also need to realize that if we are overly cautious or we have restrictive rules--not required by our Constitution or laws-- sometimes that can be more dangerous to our national security than the rare violations of law, which should be promptly punished. In fact, as General Hayden stated in his testimony before this Committee during his confirmation as Principal Deputy Director of National Intelligence, the challenge today is not really keeping intelligence officers from stepping across the legal lines--no one wants that--but getting them to even come close to those lines. The attacks of September 11 highlighted the danger posed by allowing overly cautious and inaccurate interpretations of law to control the conduct of intelligence operations. Mr. Powell, if confirmed, this Committee will look to you and your office to ensure that policy is guided by sound legal interpretations, not any myths or pseudo-legal justifications resulting from poor or overly cautious legal work. In short, Mr. Powell, I expect the lawyers of the intelligence community, along with the operators and analysts, to step right up to those legal lines to which General Hayden referred. Don't go over them, but step up to them. Your office must be at the forefront of these legal debates and must resolve disputes that have been within the community for want of legal leadership. This is a very unique, unprecedented kind of situation. Additionally, your office must challenge old opinions that do not account for current operational realities and it must aggressively target legal constraints that unnecessarily inhibit the efforts of our collectors and analysts. I expect much from the DNI's General Counsel, but I am confident that you are up to the task. With that said, I welcome you to the Committee and look forward to your testimony. Normally I would now recognize the distinguished Vice Chairman, but he is unavoidably detained. I understand that Senator Levin will be reading Senator Rockefeller's statement, and I recognize the distinguished Senator at this time. Senator Levin. Thank you so much, Mr. Chairman. Let me read Senator Rockefeller's statement. He has requested that I read it if the opportunity presented itself. Here goes. ``I would like to begin by congratulating Mr. Powell on his nomination to be the first General Counsel of the Office of the Director of National Intelligence, and to welcome him and his family to this hearing. ``A word of history would be helpful in explaining the importance of today's hearing. At troubling moments in the past, when adherence of elements of the intelligence community to the rule of law was in doubt, key committees and congressional leaders have recognized the importance, in preventing future misconduct, of legal counsel who have the backing of Presidential appointment and Senate confirmation. ``In 1976, the Church Committee recommended that the CIA General Counsel be nominated by the President and confirmed by the Senate. Supporting that recommendation, Senator Howard Baker wrote in his additional views that a confirmed General Counsel `adds another check and balance which will result in an overall improvement of the system.' ``In 1987, the House and Senate select committees concluded that the Iran-Contra affair resulted from failures to observe the law. To protect against such events, the Iran-Contra Committees also recommended that the CIA General Counsel be Senate confirmed. ``These proposals finally came to fruition in 1996 when Congress and the President accepted the repeated urging of the Senate Intelligence Committee that, in the words of the Committee's report, 'the confirmation process enhances accountability and strengthens the oversight process.' ``As amended by the Intelligence Reform Act of 2004, the National Security Act mandates that 'The Director of National Intelligence shall ensure compliance with the Constitution and laws of the United States by the Central Intelligence Agency and shall ensure such compliance by other elements of the intelligence community through the host executive departments that manage the programs and activities that are part of the National Intelligence Program.' ``The General Counsel of the Office of the DNI must play a vital role in assisting the DNI in fulfilling this major responsibility. It is therefore not surprising that the Intelligence Reform Act requires that the DNI General Counsel be appointed by the President with Senate confirmation. ``At several points in his answers to pre-hearing questions, the nominee notes that he would from time to time consult with the Office of Legal Counsel at the Department of Justice. As we now know, the opinions of DOJ's Office of Legal Counsel are of great importance in establishing legal policy for the intelligence community. As we also know, secret legal opinions that are kept even from oversight by the Congress can lead to great error. ``To refer now only to the public record, a major opinion of the Department of Justice on interrogations, issued in August 2002 and often referred to as the torture memorandum, could not withstand the light of day when it was disclosed in June 2004. It was promptly rescinded. The opinion was replaced by a far more supportable, publicly issued opinion in December 2004. ``I believe that our Committee needs the full record of secret Administration legal opinions on detention, interrogation, and rendition matters. To perform our responsibility on behalf of the Senate and the American public, those opinions need to be examined by the Committee's full membership, which includes members of the Judiciary Committee, and by our counsel. One question that I have for the nominee is whether we will have his support and that of the Office of the Director of National Intelligence in obtaining for the Committee the full record of secret law on these important matters. ``I again wish to congratulate the nominee and I look forward to his statement and to the answers to our questions.'' That is Senator Rockefeller's opening statement, and again I thank you, Mr. Chairman, for permitting me to read that instead of making it part of the record. Chairman Roberts. We thank you, Senator Levin. I now recognize the distinguished Senator from Florida, Senator Martinez. Senator Levin. Senator Martinez, if you would yield for just a second, I must leave for about 10 minutes. I'm sorry to miss your introduction. I know how important it is not just to the nominee, but to this Committee. STATEMENT OF HON. MEL MARTINEZ Senator Martinez. Thank you, Senator. Mr. Chairman, it's a pleasure to be with you today and to appear before your Committee, and it is an honor for me to recognize an exceptional individual before your Committee, Mr. Ben Powell. As you know, Ben is the President's nominee to be the General Counsel of the Office of Director of National Intelligence. I truly believe Ben to be an ideal candidate for such an important and timely post. Mr. Chairman, before I highlight specifics about this position, I would like to briefly share some background about Ben, particularly his strong Florida roots. He is the son of an Air Force pilot. Ben was born at Homestead Air Force Base in Homestead, Florida. Later his father became an airline pilot and the family remained in the Miami area. His mother began a career as an educator, most recently teaching children with learning disabilities. Growing up in Miami, Ben attended public schools. Mr. Chairman, he was even valedictorian of his Miami South Ridge High School class. Ben received his two undergraduate degrees at the University of Pennsylvania, one in economics and the other in applied science, and graduated magna cum laude. Subsequently, Ben worked as a computer scientist at the Federal Bureau of Investigation, as well as served as an officer in the United States Air Force where he managed computer and networking programs for parts of the intelligence community. After leaving the service, Ben attended Columbia Law School where he was senior editor of the Columbia Law Review. Mr. Chairman, this distinguished legal and professional career led Ben to his current position as Associate Counsel to the President and Special Assistant to the President, a position which makes him uniquely qualified for the nomination at hand. In his current capacity, Ben is actively engaged in various initiatives related to reform and improvement of the intelligence community. The proposed new post with the DNI is a natural follow-on for him. I speak from a purely parochial point of view when I say that it would be good to have a Floridian in this post, as Ben knows Florida and its unique situation, a State that is heavily involved in trade and tourism, two livelihoods that bring a phenomenal amount of traffic to our ports and to our attractions. Florida is a State that receives 78 million visitors a year and, as such, is a place where vulnerability to terrorists is certainly present. Mr. Chairman, I would like to echo the other words of welcome that have been made to Ben's family here today. I particularly appreciate Mom and Dad coming from Florida to be up here with us today. As was noted, his brother is serving in the Air Force and their long history of Air Force service, as well as Ben's current service, is clearly a family filled with committed patriots, and I thank and commend them for their tireless public service. And, to Ben, I commend you for your willingness to take on these challenges and I stand ready to support you in any way that I can. Mr. Chairman, I would conclude by saying the President made a fantastic choice in nominating Ben, and I am optimistic that this Committee and the full Senate will quickly advance and approve this important nomination, and I thank you for the courtesy of letting me participate in this important hearing today. Chairman Roberts. Well, we thank you, Senator Martinez, for taking time out of your very valuable schedule to do something that you really wanted to do for your constituent, and we thank you for your service to Florida and to the Senate as well. Mr. Powell, you may begin. [The prepared statement of Mr. Powell follows:] [Prepared statement appears identical to opening remarkds; moved to end of document.] STATEMENT OF BENJAMIN A. POWELL, GENERAL COUNSEL OF THE OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE-DESIGNATE Mr. Powell. Mr. Chairman, I want to thank you and the distinguished Members of this Committee for giving me the opportunity to appear before you and for considering my nomination. I want to thank Senator Martinez for introducing me and taking time out of his busy schedule to appear at this hearing. I am honored that the President has nominated me to be the first General Counsel of the Office of Director of National Intelligence. As I mentioned earlier, I'm happy to be joined by my family today. My wife Natalie has been incredibly supportive of my public service, especially with the demands of raising two young children. If confirmed, I will have the privilege to support two of America's finest public servants, Ambassador John Negroponte and General Michael Hayden. The Committee is familiar with the challenges facing the Director of National Intelligence and his Principal Deputy. Part of making our intelligence better is improving the ways in which the intelligence community actually functions as a community. Many of the responsibilities and authorities provided to the DNI in the Intelligence Reform and Terrorism Prevention Act of 2004 are designed to encourage the intelligence community to act as a unified enterprise--from information access issues to personnel policies to the setting of budget priorities. As General Counsel, a key part of my position will be assisting the DNI in carrying out his mandate from the President to fully exercise the authorities granted to the DNI in the Intelligence Reform Act enacted by Congress. The Intelligence Reform Act states that the General Counsel shall be the chief legal officer of the ODNI and perform such other functions as the DNI may prescribe. Ambassador Negroponte stated to the Committee that the General Counsel will play a critical role in ensuring all employees or contractors assigned to the office comply with U.S. law and any applicable regulations and directives. Beyond ensuring compliance with applicable law, the General Counsel will need to work closely with the chief legal officials of the elements of the intelligence community and the chief legal officials of organizations containing elements of the community. The General Counsel will need to work with other legal officials to coordinate the development of supporting legal mechanisms to facilitate implementation of DNI policies and guidance. The intelligence community must change to confront the global threats of the 21st century. Legal officials must support the community in achieving the goal of providing the President, Congress, the armed services and other organizations accurate, timely and objective intelligence that protects lives while safeguarding every American's constitutional and statutory rights. Senator Martinez and you, Chairman Roberts, have outlined my background and qualifications for this position, which include substantial work in the intelligence community. The position of General Counsel will present many opportunities and challenges. If confirmed, my first priority will be finding highly talented individuals to work in the General Counsel's office to ensure the best possible legal support is provided to the DNI and his staff. I have met with the small current legal staff who are assisting the DNI and know that there are already very talented legal personnel working with the DNI. The DNI will need support from expert legal talent that effectively collaborates with and is able to obtain support from other legal staffs in the community who have the expertise to address the legal challenges ahead. Second, the legal office will need to focus on review of prior DCI guidance and issuance of new DNI guidance and directives to implement the new law as well as to help establish and maintain effective oversight mechanisms to help spot and address issues before they become problems. Finally, it will be important to ensure legal support, guidance and direction for three important areas in particular. First, in helping to ensure a proper balance between the national interest in the collection, dissemination and maintenance of intelligence and the national interest in protecting the legal rights of all U.S. persons. I will work with the intelligence community and others, as appropriate, to review and, as necessary, revise current procedures to ensure such a balance. Second, it will be important to ensure appropriate legal oversight of the implementation of intelligence activities in light of the continuing transformation of the FBI and CIA and to ensure appropriate safeguards are put in place during these transformations. Finally, effective implementation of reform will require continued sustained support from the Congress and this Committee. If confirmed, I will need to work with Congress as we implement reform, and the office will need to consult with the Committee to receive advice from the Committee in many areas. If confirmed, I look forward to a collaborative effort with the Committee to ensure our actions enhance the national security of the country. Mr. Chairman, I want to thank you and the Committee for this opportunity to appear before you, and I am prepared to answer any questions you may have. Chairman Roberts. Mr. Powell, you have already got a gold star for summarizing your statement. It's rare that we have that happen before this Committee, but it's certainly appreciated. We're going to now proceed to questions. No. 1, do you agree to appear before the Committee here or in other venues, when invited? Mr. Powell. Yes, Senator. Chairman Roberts. Do you agree to send intelligence community officials to appear before the Committee and designated staff, when invited? Mr. Powell. Yes, Senator. Chairman Roberts. Do you agree to provide documents or any material requested by the Committee in order for it to carry out its oversight and its legislative responsibilities? Mr. Powell. Yes, Mr. Chairman, consistent with applicable law and precedent. Chairman Roberts. Will you ensure that all intelligence community elements provide such material to the Committee, when requested? Mr. Powell. Yes, Mr. Chairman, consistent with applicable law and precedent. Chairman Roberts. As I alluded to in my opening statement, legal disputes have at times prevented the intelligence community from engaging in certain activities and prevented the sharing of critical information among the elements of the community. As a matter of fact, were Senator Rockefeller here, doubtless he would have had several paragraphs on behalf of information access, as opposed to information-sharing. What is your understanding of the role you will have in resolving such issues as they arise in the future? Mr. Powell. That's an important question, Mr. Chairman. As you know, the President recently determined that the program manager for information-sharing would be a part of the Office of the Director of National Intelligence and report to Ambassador Negroponte. If confirmed as the chief legal officer for the DNI, I will provide the necessary legal support to the program manager. That will involve working with the chief legal officials of the components of the intelligence community to identify legal impediments to information-sharing that would prevent the program manager from implementing the mandate that he's received from Congress to ensure effective information across the community to prevent any further terrorist attacks. Chairman Roberts. What steps are you going to take to ensure that the intelligence community avoids what we call the lowest common denominator and overly cautious solutions that were discussed at length in the WMD Commission report? Mr. Powell. Mr. Chairman, I am very familiar with that discussion that's contained in the WMD Commission report and the problems of essentially reaching lowest common denominator solutions. I think the creation of an office whose job it is to provide support to the DNI in the legal area and your authorities being derivative from the DNI's authority to oversee the community is an important first step in bringing legal officials together, identifying what the disputes actually are. In my experience, Senator, I often find just defining what the dispute actually is serves to strip away legal arguments that are used that don't have merit. Sometimes legal arguments are interposed to mask policy arguments, and we want to make sure that that does not happen, that if there is a policy dispute that that can be properly bubbled up, and if there are not legal arguments that have merit, it's important that the policy people then join and make a resolution of that dispute, and it can ultimately go to the DNI for his resolution on policy grounds. So I think it's important to identify the precise legal dispute and seek a correct answer to see whether or not in fact somebody is just being overly cautious or overly conservative. But often there is a correct answer to these issues, Senator, once they are examined. And I think it's important that there is an office that people can go to to examine it. One further issue that was discussed in the WMD Commission report is the idea of creating in the General Counsel's office some type of think tank or having people whose job it is to look at these kinds of disputes and provide legal advice for them and, to some extent, wall them off from the day-to-day types of tasks that take everyone's time. So, if confirmed, that's something I'd look very closely at to prevent the kind of behavior that is discussed in the report. Chairman Roberts. Well, we look forward to your progress in regard to that kind of endeavor. We wish you well. We want you to keep the Committee and our staff well informed in regard to that proposal. Many rules and regulations that govern the intelligence community have been in place for decades, and not very much attention given to reviewing the legal basis that basically underpins these rules and regulations. My question to you is how do you plan to ensure that controlling the rules and regulations are, first, legally well-founded--that's the foundation that we must not stray away from--but still keep pace with the operational realities? Mr. Powell. Senator, one example of that is the WMD Commission noted the inconsistent U.S. persons rules that apply in different agencies, and that it may create legal impediments to information-sharing. The President recently endorsed the recommendation that we undertake a review of those U.S. persons rules and has assigned to the Office of the Director of National Intelligence the responsibility to undertake that review to see whether items like the U.S. persons rules can be made more consistent, but still keep in place the appropriate safeguards to prevent abuses that may have occurred in the past. So that's an example of some place where the President said there will be a review of thee rules to make sure that they are keeping pace with current technology. Chairman Roberts. This Committee is extremely interested in improving information access, as I have stated, across the intelligence community. As a direct result of the Committee's efforts in this regard, the community formed something called the Information- Sharing Working Group. I'm trying to figure out what the acronym would be. I'll leave that to Senator Levin to figure out how we pronounce that acronym. The Information-Sharing Working Group recently completed a study of information access issues and published its report. It did conclude that there were a number of legal issues that should and could be addressed to improve information access. Are you familiar with the Information-Sharing Working Group's efforts? Mr. Powell. I am familiar with the group and its efforts. I have not reviewed that report yet, Mr. Chairman. Chairman Roberts. This is just a follow-up and you've already answered this. Do you plan to study and make recommendations concerning the implementation of the working group's recommendation in regard to legal issues? The obvious answer to that is yes. Mr. Powell. Yes, Mr. Chairman. Chairman Roberts. As a result of your current work on intelligence reform efforts, are you aware of any changes to existing law or executive order that should be made to enhance information access across the community? Mr. Powell. Senator, I do not have any specifics. One of the areas, of course, that is going to be looked at is to make sure that there are consistent U.S. persons rules, to the extent they can be made consistent and still comply with all the applicable laws. That's one area that is going to be looked at. As the DNI goes forward, one of the things that I would expect that the Office would do, if confirmed, would be to take a look at current executive orders that are in force to see if there are modifications that are necessary to enable the DNI to do his job more effectively. Chairman Roberts. I have several other questions, but I will yield at this particular time--I think I'm probably over the 5 minutes--to Senator Levin. Senator Levin. Thank you, Mr. Chairman. I believe you joined the White House counsel's office in July of 2002. Mr. Powell. Correct, Senator. I believe it was July 29 of 2002. Senator Levin. In August of 2002 the Department of Justice's Office of Legal Counsel issued a memo signed by J. Bybee to then-White House Counsel Judge Gonzalez providing the Office of Legal Counsel's opinion on what standards of conduct in interrogation were required under our anti-torture laws. The OLC memo stated that, ``We conclude that for an act to constitute torture, it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily functions or even death.'' Were you familiar with that memo when it was sent? Mr. Powell. Senator, I had no knowledge of that memo until there were media reports that such a memo existed. Senator Levin. When were they, approximately? Mr. Powell. Senator, I think Vice Chairman Rockefeller said in his statement that it became publicly available in June of 2004. That comports with my recollection, Senator. There was a time period I remember when the memo was put on the Internet and was discussed in media reports. That's when I became aware of it. Senator Levin. In January the New York Times reported that there was a second Office of Legal Counsel memo. This is the so- called second Bybee memo addressing the legality of specific interrogation techniques. On February 1, 2005, in a letter to the Chairman of the Senator Judiciary Committee, the Department of Justice stated that it gave ``specific advice concerning specific interrogation practices, concluding that they are lawful.'' The memo addressing the legality of those specific interrogation practices is, of course, still classified. Is that a memo you're familiar with? Mr. Powell. It is not, Senator, except for the media report that you referenced. Senator Levin. Do you know what role the White House Counsel's office played in the drafting of that opinion? Mr. Powell. No, Senator. I think there may have been questions directed to Judge Gonzalez at his confirmation hearing, and I can't recall what he discussed in terms of his role in that. Senator Levin. In your answers to prehearing questions, you state that, ``Congress must be furnished with the information to allow it to consider necessary legislation to improve the performance of the intelligence community.'' Would you agree that Congress ought to be provided access to all legal opinions governing the conduct of intelligence operations? Mr. Powell. Senator, I'm not thoroughly familiar with all of the practices of OLC. I know that they do publish and have historically published some set of memos addressing legal issues. Obviously, they don't publicly make available classified memos. I don't know what their practices have been in terms of making classified legal advice for the President available to the Committee. That would require a review of applicable separation of powers laws, whether there's any privileges that might apply in the legal arena, Senator. It is something I would have to take a very close look at. Senator Levin. I'm talking now about the way you're going to operate your office if you are confirmed, as to whether Congress ought to be provided with access to all legal opinions that govern the conduct of intelligence operations. Should this Committee receive all those legal opinions or not? Mr. Powell. Again, Senator, first it would not be the-- those memos that are completed by the Department of Justice would come under the Department of Justice's purview. Second, I do think it is very important that Congress is fully informed so it has the necessary information to legislate in all of these areas as appropriate. But whether particular legal opinions and legal advice that are designed, for instance, for the President should be furnished to Congress, there would be a number of issues of separation of powers and privilege that may or may not apply. I'd have to look at the specific facts, the specific issue, who requested the advice, what privileges might apply, Senator. Senator Levin. What privilege is there other than executive privilege that could apply to denying documents to this Committee, other than the President asserting executive privilege? Mr. Powell. Senator, I think executive privilege would be one backstop, Senator. I don't know whether there are other historical practices or traditions that might apply. Again, I'd have to look at separation of powers case law, look at the Supreme Court opinions on the subject to determine that. I think, Senator, we are standing up a new office here and I agree it is very important that we have a collaborative relationship with this Committee. The spirit of the Intelligence Reform Act is that, as I read it, Congress feels the DNI is very important, that it's a critical job and that Congress wants to be supportive of the DNI. At the same time, I think it's important that the office have a very collaborative relationship with this Committee and furnish the Committee with the necessary information. Senator Levin. Well, I've sought that second Bybee memo now for over a year. February 2005 was, I guess, the first time this year when I requested it. It was requested, I should say. April 2005, I talked to Director Negroponte about it during his confirmation hearing. I asked General Hayden about it in April. He said he'd look into it. April 28, at an Armed Services Committee hearing, I asked Under Secretary Cambone for a copy of that memo, the second Bybee memo, as well as another memo which is addressed to the Defense Department. I was told there are people who are diligently working on a reply. That was the answer back in April. I wrote DCI Porter Goss in May requesting the second Bybee memo. May 18, I got a letter from the CIA Director of Congressional Affairs saying that the Department of Justice would need to approve it. I wrote a letter to Attorney General Gonzalez on July 1, again requesting the second Bybee memo. Mr. Chairman, I think all of us have a stake in seeing documents such as this. Unless there's an executive privilege asserted by the President, I don't think we ought to, as a Congress, just simply be stonewalled by the executive branch, and I don't care who's in charge of the executive branch-- whether it's a democratic President or a republican President. So I'm going to, through the Chair, make this request again for this second Bybee memo and getting an answer to this request. I would like to--and I know you said you had nothing to do with the second Bybee memo, but I sure as heck would like to have that memo in front of me as I ask questions to you, so I could then, at least in a classified session, should I ask the Chair to go into classified session, be able to press you on the contents of a memo where you were at the White House at the time that memo was delivered. But I would make that request through the Chair for that second Bybee memo, which I have identified. Chairman Roberts. The Senator's request is noted. Senator Levin. I think maybe I'm out of time. I haven't kept my eye on that. Is it green, red or yellow? Chairman Roberts. I don't you have any problem with it, Senator. I don't see anybody pressing you. Senator Levin. Well, you were nice enough to end your first round at a certain time. Chairman Roberts. As Rudy Vallee said, your time is my time--or my time is your time. Senator Levin. Either way, I'm a old fan of Rudy Vallee. January of 2002, a draft memo came from White House counsel Judge Gonzalez to the President regarding the Geneva Convention's applicability, and Judge Gonzalez said in his judgment the war against terrorism ``renders obsolete Geneva's strict limitations on questioning of enemy prisoners.'' In your judgment, does it? Mr. Powell. Senator, that memo in January of 2002, I believe it was, of course was 7 months before I joined the office, and I did not participate in the review of the Geneva Conventions and writing up or doing any legal research in terms of the applicability of the Geneva Conventions. So I've not looked at the Geneva Conventions' applicability. I am aware of the general issues that have applied in certain conflicts, and particularly with al-Qa'ida, where you have a group who does not wear insignia, does not carry arms openly, purposely targets civilians, and I think there was substantial concern about how you would apply Geneva in a situation where you have an enemy who is not a contracting party to the Geneva Convention and is engaging in this type of activity. I do understand that there were parts of the Geneva Convention relating to the provision of pay, provision of musical instruments, provision of scientific instruments for research that did cause substantial concern, from what I understand, Senator. Senator Levin. In February of 2002, the President determined that ``as a matter of policy the United States armed forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessary, in a manner consistent with the principles of the Geneva Convention.'' By the terms of that memorandum, the Presidential determination applied only to the U.S. armed forces. What is the standard for treating detainees which applies to the intelligence community? Mr. Powell. Senator, again that memo was before I joined the office and I didn't participate, obviously, in the formation of that memo that you referred to. Senator Levin. But what standard now applies? Mr. Powell. Senator, my understanding is that the intelligence community complies with all applicable U.S. laws, both statutory and constitutional in its treatment of anyone, of any detainees. Senator Levin. Including detainees that are not traditional combatants? Mr. Powell. Senator, my understanding is that anybody who is detained, that the intelligence community complies with all U.S. laws that are applicable. Senator Levin. What laws aren't applicable? Is the anti- torture statute applicable to those detainees? Mr. Powell. Yes, Senator. As I understand it, the anti- torture statute contained in title 18, the intelligence community of course would be covered by that statute, as are other parts of the Government. Senator Levin. Is it your understanding that the President's determination about humane treatment applies to the intelligence community? The President made a determination on detainees, as he was referring to in his particular determination, applying to the members of the armed forces, but is it your understanding that his determination about treating detainees humanely applies also to the intelligence community, not only to members of the armed forces? Mr. Powell. Senator, I'm not sure that--I'm not the legal expert on all of the applicable international laws and standards that would apply. I know that the anti-torture statute, it's my understanding, would apply, and all the other laws that are on the books would apply to the activities of the intelligence community. When the term ``humanely'' and other terms are used, we have to take a look at whether those are the terms that are used in the statute, how those terms are interpreted, and how they would apply under statutes such as the anti-torture statute. Senator Levin. Well, this is a Presidential determination which uses the word ``treating detainees humanely.'' My question is, is it your understanding that that determination applies to members of the intelligence community and not just to members of our armed services? Mr. Powell. Senator, I would have to go back and take a look at this memo that existed before I even joined the office and talk to legal experts to determine that. If I am confirmed to this position, I will certainly make sure to look very closely at that and make sure that the intelligence community is complying with all applicable laws. Senator Levin. See if you can give us an answer to that question for the record, would you? Mr. Powell. Yes, Senator. Senator Levin. Also tell us for the record, unless you want to tell us now, whether or not it is your judgment that treatment of detainees which is described as abusive and degrading, and accurately described as abusive and degrading, can be humane treatment. And, if so, under what circumstances? Since you're not familiar with these terms, I won't press you today, but I will ask that you answer that for the record. OK? Mr. Powell. Yes, Senator, I will give you an answer for the record on that question. Senator Levin. You stated that our laws and the Constitution apply in the case of the war on terror. Is it your understanding that the President, by Executive order or finding, could authorize an action which is prohibited by our laws or Constitution under his commander-in-chief authority? Mr. Powell. Senator, the only place that I have seen this discussed--I'm sure it's decide in law review articles and other things I've not read--is when the August 2002 memo became available, and there was a discussion--as I recall, it was at the end of that memo--on the scope of the President's commander-in-chief power. Of course, in December 2004, that opinion was withdrawn and superseded, and that analysis was no longer in force. That is the only place where I have become familiar with it, Senator, and that has been withdrawn and is no longer in force. Senator Levin. OK. Thank you. You were asked, I believe, in your prehearing questions about the Patriot Act renewal legislation and the question of whether or not administrative subpoenas should be authorized to be issued by FBI officials. Your answer was the following: You ``support providing those on the front lines of the war on terrorism with the necessary authorities to prevent terrorism, subject to appropriate safeguards.'' You made reference to some criminal cases where administrative subpoenas were permitted. Existing criminal law contains numerous protections not included in the administrative subpoena provision in the bill which was reported by the Committee. For example, criminal law, where administrative subpoenas are allowed, requires initial court approval and periodic court review of non-disclosure requirements which are attached to administrative subpoenas. Those safeguards were not contained in the version which was reported by the Committee. So when you made reference to ``subject to appropriate safeguards,'' were you referring to those types of safeguards which are contained in the criminal law? Mr. Powell. Senator, what I was thinking when I answered that about appropriate safeguards are essentially the full universe of safeguards that can apply. Of course there's Attorney General guidelines that the Attorney General puts in to govern the use of various types of subpoenas. Some subpoenas require personal approval by the Attorney General before they can be issued. There's a U.S. Attorney's manual that applies to U.S. Attorneys that can govern the use of certain subpoenas. Those are the types of safeguards I was thinking about. There are also statutory safeguards, depending upon the type of subpoena or the type of action a law enforcement agent may want to take. Those were the safeguards, as a general matter, that I was talking about. Of course, the Director of the FBI and the Attorney General are more expert in that area, in their use, and the need for administrative subpoenas than I am. I know that the President has spoken about it and the importance of having that tool. That is used, as you mentioned in other cases. But what safeguards would be appropriate to apply to that particular use of the subpoena, I would really defer to those experts in the law enforcement community as to what is best to allow them to take timely action. Senator Levin. So you don't have an opinion as to whether those specific safeguards that I just identified should be attached to the nondisclosure requirements where administrative subpoenas are authorized? Mr. Powell. Senator, I think in that question I may have mentioned that I have not discussed this with experts in the law enforcement community, so I would have to take a look at it to see how that would impact their use of the tool. Would it prevent them from taking timely action? Would it discourage its use in appropriate situations where quick action needed to be taken, where those subpoenas would be used? Would it essentially eliminate the effectiveness of it? That's just something that I have not talked to the experts in that field about. Senator Levin. Thank you. Thank you, Mr. Chairman. Chairman Roberts. You'll be surprised to learn that we have no further questions for you, and we wish you well in your future endeavors. We will try to schedule your nomination as expeditiously as possible. We thank you. Mr. Powell. Thank you, Mr. Chairman, Thank you, Senator Levin. [Whereupon, at 3:28 p.m., the Committee adjourned.] _______ Prepared Statement of Benjamin A. Powell, General Counsel of the Office of the Director of National Intelligence-Designate Mr. Chairman, Vice Chairman Rockefeller, I want to thank you and the distinguished Members of this Committee for giving me the opportunity to appear before you and for considering my nomination. I want to thank Senator Martinez for introducing me and taking time out of his busy schedule to appear at this hearing. I am honored that the President has nominated me to be the first General Counsel of the Office of the Director of National Intelligence. I am happy to be joined by my family today. My wife Natalie has been incredibly supportive of my public service, parents Tom and Barbara Powell have a long record of public service, my sister Elizabeth works for the FBI, my brother-in-law Roy Tubergen, who retired from the FBI as an Assistant Special Agent in Charge, and their children, Brian and Jennie. I have a brother who is a surgeon in the Air Force and could not be with us today. He will be deploying to Iraq in September to take command of the surgical hospital. If confirmed, I will have the privilege to support two of America's finest public servants, Ambassador John Negroponte and General Michael Hayden. The Committee is familiar with the challenges facing the Director of National Intelligence and his Principal Deputy. Put simply, we must have better intelligence to protect American lives. Part of making our intelligence better is improving the ways in which the intelligence community actually functions as a ``community''. Many of the responsibilities and authorities provided to the DNI in the Intelligence Reform and Terrorism Prevention Act of 2004 are designed to encourage the intelligence community to act as a unified enterprise, from information access issues to personnel policies to the setting of budget priorities. As General Counsel, a key part of my position will be assisting the DNI in carrying out his mandate from the President to fully exercise the authorities granted to the DNI in the Intelligence Reform Act enacted by Congress. The Intelligence Reform Act states that the General Counsel shall be the ``chief legal officer'' of the ODNI and perform such other functions as the DNI may prescribe. Ambassador Negroponte stated to the Committee that the General Counsel will play ``a critical role in ensuring all employees or contractors assigned to the Office of the Director of National Intelligence comply with U.S. law and any applicable regulations and directives.'' He expects that ``the GC will be a key member of [his] senior advisory team, provide legal and ethical counsel to ODNI managers and staff members alike, and participate in all significant decisions taken in the Office.'' Beyond ensuring compliance with applicable law, the General Counsel will need to work closely with the chief legal officials of the elements of the intelligence community and the chief legal officials of organizations containing elements of the community. The DNI must establish policies and mechanisms in numerous areas across the Community in addition to being the principal intelligence adviser to the President. The General Counsel will need to work with other legal officials to coordinate the development of supporting legal mechanisms to facilitate implementation of DNI policies and guidance. If confirmed, I will look closely at how to structure this relationship to ensure all parts of the intelligence legal community are working together to improve our national security. The intelligence community must change to confront the global threats of the 21st century. The intelligence community must have legal support to implement the necessary changes. Legal officials must support the community in achieving the goal of providing the President, Congress, the armed services, and other organizations with accurate, timely, and objective intelligence that protects lives, while safeguarding every American's constitutional and statutory rights. My qualifications for this position include work with the intelligence community both in an operational capacity in the military and as a lawyer in a civilian capacity. I have worked as a lawyer in the Federal Government and in the private sector. I clerked for Judge John M. Walker, Jr. on the United States Court of Appeals for the Second Circuit, and Justice Byron White and Justice John Paul Stevens on the United States Supreme Court. I was an attorney in private practice at the firm Kellogg, Huber, Hansen, Todd & Evans before joining the high-technology sector in Silicon Valley in California as corporate counsel to Vitria Technology, Inc. At Vitria, I handled a wide variety of international legal affairs for the company. I have a substantial background in national security and technology. I first worked with a component of the intelligence community at the Federal Bureau of Investigation. I next worked with the intelligence community as an Air Force officer, where I managed programs designing, acquiring, installing, and supporting intelligence data handling systems for the intelligence community. This position brought broad exposure to technology issues confronting the intelligence community, including the difficult problems in the area of information access. As an Associate Counsel to the President, I have assisted the President and his senior staff in the implementation of historic reforms to the intelligence community. This has required significant interagency coordination across the intelligence community and significant, substantive discussions with the President and his national security team. The position of General Counsel will present many opportunities and challenges. If confirmed, my first priority will be finding highly talented individuals to work in the General Counsel's Office to ensure the best possible legal support is provided to the DNI and his staff. I have met with the small, current legal staff who are assisting the DNI and know that already there are very talented legal personnel working with the DNI. The DNI will need support from expert legal talent that effectively collaborates with and is able to obtain support from other legal staffs in the community who will have the expertise to address the legal challenges ahead. Second, the legal office will need to focus on review of prior DCI guidance and issuance of DNI guidance and directives to implement the new law, as well as to help establish and maintain effective oversight mechanisms to help spot and address issues before they become problems. This is not to impose burdensome rules and requirements on intelligence officers, but to provide reasonable standards and processes to help guide and support their activities. Finally, it will be important to ensure legal support, guidance, and direction for three important areas in particular: <bullet> First, helping to ensure a proper balance between the national interest in the collection, dissemination, and maintenance of intelligence and the national interest in protecting the legal rights of all U.S. persons. I will work with the intelligence community, privacy officers, and the new Privacy and Civil Liberties Oversight Board, and others as appropriate to review and as necessary revise current procedures to ensure such a balance. <bullet> Second, it will be important to ensure appropriate legal oversight of the implementation of intelligence activities in light of the continuing transformation of the FBI and CIA and ensure appropriate safeguards are put in place during these transformations. <bullet> Finally, effective implementation of reform will require continued, sustained support from the Congress and this Committee. If confirmed, I will need to work with Congress as we implement reform, and the office will need to consult with the Committee to receive advice from the Committee in many areas. If confirmed, I look forward to a collaborative effort with the Committee to ensure our actions enhance the national security of the country. Mr. Chairman, I want to thank you and the Committee for this opportunity to appear before you and I am prepared to answer any questions you may have.