    [Senate Hearing 109-242]
    [From the U.S. Government Publishing Office]

                                                            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

                                    _____

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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:

        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 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:
         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 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.]

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