U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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

24–990 PDF 2006

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

(II)

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

MIKE DeWINE, Ohio

CHRISTOPHER S. BOND, Missouri

TRENT LOTT, Mississippi

OLYMPIA J. SNOWE, Maine

CHUCK HAGEL, Nebraska

SAXBY CHAMBLISS, Georgia

CARL LEVIN, Michigan

DIANNE FEINSTEIN, California

RON WYDEN, Oregon

EVAN BAYH, Indiana

BARBARA A. MIKULSKI, Maryland

JON S. CORZINE, New Jersey

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

(III)

CONTENTS

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:

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

(1)

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 21⁄2 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 offiVerDate 03-FEB-2003 10:54 Feb 14, 2006 Jkt 024990 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 D:\DOCS\24990.TXT SSC1 PsN: SSC1
2

cer 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

3

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 proVerDate 03-FEB-2003 10:54 Feb 14, 2006 Jkt 024990 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 D:\DOCS\24990.TXT SSC1 PsN: SSC1
4

grams 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, particuVerDate 03-FEB-2003 10:54 Feb 14, 2006 Jkt 024990 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 D:\DOCS\24990.TXT SSC1 PsN: SSC1
5

larly 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:]

6

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, includVerDate 03-FEB-2003 10:54 Feb 14, 2006 Jkt 024990 PO 00000 Frm 00010 Fmt 6633 Sfmt 6621 D:\DOCS\24990.TXT SSC1 PsN: SSC1
7

ing 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:

• 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.

• 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.

• 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.

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

8

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.

9

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

10

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

11

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 thenWhite 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.

12

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 socalled 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

13

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.

14

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?

15

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

16

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

17

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.]

18

19

20

21

22

23

24

25

26

27

28

29

30

31

32

33

34

35

36

37

38

39

40

41

42

43

44

45

46

47

48

49

50

51

52

53

54

55

56

57

58

59

60

61

62

63

64

65

66

67

68

69

70

71

72

73

74

75

76

77

78

79

80

81

82

83

84

85

86

87

88

89

90

91

92

93

94

95

96

97

98

99

100

101

102

103

104

105

106

107

108

109

110

111

112

113

114

115

116

117

118

119

120

121

122

123

124

125

126

127

128

129

130

131

Æ