[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


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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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