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
Source: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=109_senate_hearings&docid=f:24990.wais
<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
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_________________________________________________________________
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.