[Congressional Record Volume 152, Number 119 (Thursday, September 21, 2006)]
[Senate]
[Pages S9997-S10003]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
EXECUTIVE CALENDAR
Mr. FRIST. Mr. President, I ask unanimous consent that the Senate
immediately proceed to executive session to consider the following
nominations on today's Executive Calendar: Calendar Nos. 737, 831, 905,
906, 909, 910, 911, 912, 913, 914, 915, 916, and all nominations on the
Secretary's desk. I further ask unanimous consent that the nominations
be confirmed en bloc, the motions to reconsider be laid upon the table,
the President be immediately notified of the Senate's action, and the
Senate then return to legislative session.
The PRESIDING OFFICER. Without objection, it is so ordered.
The nominations considered and confirmed en bloc are as follows:
department of justice
Kenneth L. Wainstein, of Virginia, to be an Assistant
Attorney General. (New Position)
Frank R. Jimenez, of Florida, to be General Counsel of the
Department of the Navy.
coast guard
The following named officers for appointment in the United
States Coast Guard to the grade indicated under title 14,
U.S.C., section 271:
To be rear admiral (lower half)
Capt. Thomas F. Atkin, 0000
Capt. Christopher C. Colvin, 0000
Capt. Cynthia A. Coogan, 0000
Capt. David T. Glenn, 0000
Capt. Mary E. Landry, 0000
Capt. Ronald J. Rabago, 0000
Capt. Paul F. Zukunft, 0000
corporation for national and community service
Stephen Goldsmith, of Indiana, to be a Member of the Board
of Directors of the Corporation for National and Community
Service for a term expiring October 6, 2010. (Reappointment)
institute of museum and library services
Sandra Pickett, of Texas to be a Member of the National
Museum and Library Services Board for a term expiring
December 6, 2010. (Reappointment)
harry s truman scholarship foundation
Roger L. Hunt, of Nevada, to be a Member of the Board of
Trustees of the Harry S Truman Scholarship Foundation for a
term expiring December 9, 2009.
John E. Kidde, of California, to be a Member of the Board
of Trustees of the Harry S. Truman Scholarship Foundation for
a term expiring December 10, 2011.
national institute for literacy
Eliza McFadden, of Florida, to be a Member of the National
Institute for Literacy Advisory Board for a term expiring
January 30, 2009, vice Douglas Carnine, term expired.
national foundation on the arts and the humanities
Jane M. Doggett, of Montana, to be a Member of the National
Council on the Humanities for a term expiring January 26,
2012.
department of labor
Randolph James Clerihue, of Virginia, to be an Assistant
Secretary of Labor.
national science foundation
Arthur K. Reilly, of New Jersey, to be a Member of the
National Science Board, National Science Foundation, for a
term expiring May 10, 2012.
department of education
Lauran M. Maddox, of Virginia, to be Assistant Secretary
for Communications and Outreach, Department of Education.
Nominations Placed on the Secretary's Desk
coast guard
PN1965 COAST GUARD nomination of Tina J. Urban, which was
received by the Senate and appeared in the Congressional
Record of September 7, 2006.
public health service
PN1851 PUBLIC HEALTH SERVICE nominations (256) beginning
Judith Louise Bader, and ending Raquel Antonia Peat, which
nominations were received by the Senate and appeared in the
Congressional Record of July 27, 2006.
Mr. LEAHY. Mr. President, today we consider a nominee for the new
position of Assistant Attorney General for the National Security
Division. All too often, in the Bush-Cheney administration, national
security has been cited as a justification for overriding the rule of
law and for imposing unprecedented secrecy. With the acquiescence of
the Republican-controlled Congress, this administration may be the most
unresponsive in history and the most unaccountable.
[[Page S9998]]
Ken Wainstein is President Bush's selection to be the first Assistant
Attorney General for National Security, a new position created by
Congress. I will not oppose this nomination in the hope that Mr.
Wainstein will work with us and be responsive to the Senate.
I have concerns about this administration's unilateral approach to
national security issues. Four years ago, the Office of Legal Counsel
at the Justice Department issued a secret legal opinion concluding that
the President of the United States had the power to override domestic
and international laws outlawing torture. The memo sought to redefine
torture and asserted that the President enjoys ``complete authority
over the conduct of war'' and asserted that application of the criminal
law passed by Congress prohibiting torture ``in a manner that
interferes with the president's direction of such core war matters as
the detention and interrogation of enemy combatants would be
unconstitutional.'' It seemed to assert that the President could
immunize people from prosecution for violations of U.S. criminal laws
that prohibit torture. This memo was withdrawn only after it became
public because it could not withstand public scrutiny.
We have learned through the media of warrantless wiretapping and
data-mining conducted by this administration. This, despite the Foreign
Surveillance Intelligence Act and its express provisions, as well as
the actions of the Senate in voting to curtail the data-mining programs
by Admiral Poindexter at the Defense Department. We have yet to be
provided with a convincing legal justification for these programs. We
have yet to be able to investigate or hold the administration
accountable. Instead, every effort at oversight and accountability has
been obstructed or curtailed by the administration. The administration
refuses to follow the law and submit matters to the FISA Court and
claims state secrets to force court challenges to be dismissed. The
administration tells the Senate when, what and how it may investigate.
The Department of Justice's own internal Office of Professional
Responsibility's probe of whether lawyers at the Department violated
ethical rules in justifying these activities was shut down by the
Attorney General and the White House.
I was disappointed 2 weeks ago when the Judiciary Committee reported
out a bill on party lines that would rubberstamp the administration's
warrantless wiretapping. We were told that the administration would
only follow the law if we passed the legislation endorsed by Vice
President Cheney. This is a bill that would expand governmental power
and reduce governmental accountability in an area in which we have been
unable to engage in effective oversight. As I have said many times and
as I continue to believe, we should not legislate in this area until we
know more about the NSA's domestic spying activities and more about why
the administration chose to flout the law and bypass both the FISA
Court and the Congress.
I support Senator Feinstein's bipartisan bill, which we also reported
out of committee, and I commend her for her hard work to get it done.
We should follow Senator Feinstein's thoughtful, cautious, and narrowly
tailored approach. Her bill addresses the one concrete problem with
FISA that the Attorney General identified, by making it easier for the
Government to initiate electronic surveillance in emergency situations.
It also clarifies that FISA does not require the Government to obtain a
warrant in order to intercept foreign-to-foreign communications,
regardless of where the interception occurs.
At the same time, we should continue to press the administration for
information. We should not take ``no'' for an answer. As this
administration continues to expand its power, the Department of Justice
should be advising the President to obey the law and respect the
Congress and the courts, not just helping to rationalize actions and
forestall oversight.
In theory, the new position to which Mr. Wainstein has been nominated
might help Department of Justice attorneys to act responsibly on
national security issues, rather than just to do the White House's
bidding. It should put national security issues into the hands of
experts, not political cronies. In fact, the WMD Commission recommended
in March of last year that the different components of the Department's
dealings with national security, terrorism, counterintelligence, and
foreign intelligence surveillance be combined to eliminate deficiencies
and inefficiencies in the Department's national security efforts.
Congress acted to create the post. This new Assistant Attorney General
position can only serve a useful role if the person who occupies it is
willing to think independently. This administration has consistently
prized loyalty over independence and expertise.
Mr. Wainstein has some experience as a prosecutor, but he has also
been a loyal official of this administration for some time now. I hope
that he will be able to look at the crucial national security issues to
be handled by this new office with a critical eye and a view toward
respecting law and the Congress. If he does, he will be a breath of
fresh air in the Bush-Cheney administration.
Recently, Judiciary Committee Chairman Specter and I received a
letter from the Fraternal Order of Police. The FOP ``endorsed'' Mr.
Wainstein ``in order to facilitate his departure from the U.S.
Attorney's Office.'' They criticized him for being ``unwilling to
perform'' the function of investigating and prosecuting an alleged
attack on a police officer. That is not what I would term high praise
for his judgment. I ask unanimous consent that a copy of the letter be
printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Fraternal Order of Police,
Washington, DC, June 9, 2006.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Member, Committee on the Judiciary, U.S. Senate,
Washington. DC.
Dear Mr. Chairman Specter and Senator Leahy: I am writing
on behalf of the members of the Fraternal Order of Police to
advise you of our position on the nomination of Kenneth L.
Wainstein, currently the U.S. Attorney for the District of
Columbia, to be the Assistant Attorney General for the
National Security Division at the U.S. Department of Justice.
The F.O.P. is very frustrated by the manner in which Mr.
Wainstein is handling the investigation into the attack on a
Federal law enforcement officer by U.S. Representative
Cynthia L. McKinney. The grand jury has held this case for
more than two months when the usual practice of a Federal
prosecutor is to immediately arrest and swiftly indict people
that attack police officers. It is clear to us that the
accused in this case is receiving special treatment from Mr.
Wainstein. This is unacceptable--had the officer's attacker
in this case been a visitor to the Capitol instead of a U.S.
Representative, it is likely that he or she would have
already stood trial. Instead, under the stewardship of Mr.
Wainstein, we have a seemingly endless grand jury proceeding
and rumored talks of a plea deal, despite the fact that there
has not even been an indictment.
Given that the basic function of a prosecutor is to
investigate and prosecute cases, and given that Mr. Wainstein
seems unwilling to perform this function in a simple assault
case, the F.O.P. was initially reluctant to support his
nomination to Assistant Attorney General. However, upon
further reflection, we have reconsidered. There is a genuine
need to have an effective and appropriately aggressive
Federal prosecutor in the District of Columbia and, because
the responsibilities of the position for which he has been
nominated are largely advisory in nature, we have decided to
advocate his swift and immediate confirmation in order to
facilitate his departure from the U.S. Attorney's office. In
so doing, we hope that his replacement will prove to be
better able to handle pending cases--particularly those
involving assaults on law enforcement officers.
Justice is something that must be vigorously pursued and
Mr. Wainstein is waffling. We feel that someone of his
temperament is better suited to a less operational position
and, for this reason, on behalf of the more than 324,000
members of the Fraternal Order of Police, we urge his
expeditious confirmation. I thank you both in advance for
your consideration of our views on this matter. If I can be
of any further help, please feel free to contact me or
Executive Director Jim Pasco at my Washington office.
Sincerely,
Chuck Canterbury,
National President.
Mr. LEVIN. Mr. President, Kenneth Wainstein is President Bush's
nominee to be Assistant Attorney General for National Security at the
Department of Justice. From July 2002 to March 2003, Mr. Wainstein was
the general counsel at the FBI and from March 2003 until May 2004 Mr.
Wainstein was the FBI Director's chief of staff.
FBI documents, released in response to a Freedom of Information Act
request, show that during Mr.
[[Page S9999]]
Wainstein's tenure at the Bureau, FBI agents at Guantanamo sent e-mails
to FBI headquarters objecting to DOD interrogation techniques being
used on detainees there. FBI agents described DOD's methods as
``torture'' techniques and expressed alarm over military interrogation
plans.
Over the past several months I have posed a number of questions to
Mr. Wainstein and Mr. Marion Bowman, who was his former deputy at the
FBI General Counsel's office, regarding their knowledge of those
concerns and their actions in response to hearing about them. I also
requested from the Department of Justice a number of documents relevant
to Mr. Wainstein's nomination.
Mr. Wainstein's June 19, 2006, answers confirm that he was aware and
``there was wide awareness within the FBI--that FBI personnel stationed
at Guantanamo disagreed with the aggressive techniques that were
authorized to be used there. . . .'' His July 14, 2006, letter to me
indicated that the FBI's Office of General Counsel conveyed those
concerns to the Department of Defense's General Counsel and said that
his office expected that DOD would address the FBI concerns. Mr.
Wainstein also told me in his July 14 letter that he discussed detainee
interrogations with FBI Director Mueller and that the Director
``maintained a bright line rule barring FBI personnel from involvement
in interviews that employed techniques inconsistent with FBI
guidelines.'' I will ask that copies of my letters to Mr. Wainstein and
his replies to me be printed in the Record.
In connection with Mr. Wainstein's nomination, I also posed a number
of questions to Mr. Bowman, Mr. Wainstein's deputy in the FBI General
Counsel's office. Over the August recess, I received a reply to my most
recent letter to Mr. Bowman. I will ask that copies of my letters to
Mr. Bowman and his responses to me be printed in the Record.
Mr. Bowman's answers to my earlier questions and his more recent
response shed additional light on the concerns about detainee treatment
at Guantanamo. Mr. Bowman wrote on June 27, 2006, that after he heard
from FBI personnel in Guantanamo in late 2002, he believes that he
``recommended--to Wainstein--that we notify DOD's general counsel that
there were concerns about the treatment of detainees at Guantanamo.''
Mr Bowman also said in that reply that he learned of ``legal concerns
among some DOD personnel about the DOD tactics.''
With regards to the directive issued by FBI Director Mueller that FBI
personnel ``stand clear'' of any interrogations that used techniques
other than those approved by the FBI, Mr. Bowman wrote me on August 7,
2006, that he does not recall when Director Mueller issued the policy.
However, Mr. Bowman recalled a discussion that reflected the concerns
that FBI leaders had about what they were hearing from Guantanamo. Mr.
Bowman told me:
As soon as I heard [about concerns about interrogation
tactics] from BAU [the Behavioral Analysis Unit] [in late
2002] I talked with (now retired Executive Assistant Director
Pat D'Amuro who immediately said we (the FBI) would not be a
party to actions of any kind that were contrary to FBI policy
and that individuals should distance themselves from any such
actions. . . . He made it abundantly clear that FBI would
adhere to its standards and, to the extent possible, would
not put itself in a position that would create even the
appearance that those standards had been compromised by
physical association with activities inconsistent with the
tenets of the Bureau.
The responses of Mr. Wainstein and Mr. Bowman contrast with those of
Alice Fisher, who the Senate confirmed earlier this week to be head of
the Criminal Division at the Department of Justice. Throughout her
nomination process, Ms. Fisher maintained that she heard nothing about
FBI concerns regarding DOD interrogation techniques other than vague
concerns about effectiveness. Mr. Wainstein has said that ``there was
wide awareness within the FBI--that FBI personnel stationed at
Guantanamo disagreed with the aggressive techniques that were
authorized to be used there. . . .'' While Ms. Fisher was in the
Criminal Division at DOJ and not the FBI, her claim of no awareness
strikes me as somewhat incredible given the raging dispute going on
between the FBI and DOD. As I urged in the debate on Ms. Fisher's
confirmation, I felt it essential that documents which might shed light
on whether she was aware of that dispute be made available to the
Senate.
In Mr. Wainstein's case, I have been able to question officials who
worked with Mr. Wainstein. Mr. Bowman answered my letters. In the case
of Ms. Fisher, the Justice Department continues to block people who
worked for her, namely David Nahmias and Bruce Swartz, from answering
my questions.
I continue to be troubled by the Department of Justice's stonewalling
of my requests for documents relevant to events at Guantanamo. The
Department's stonewalling is simply the latest example of the
Department's pattern of secrecy and obstruction.
For years, this administration has run roughshod over a compliant
Republican-controlled Congress. Congressional oversight is desperately
lacking. The Department's continuing denial to the Senate access to
information we need to carry out our responsibilities violates
fundamental constitutional principles. Every Senator should stand up
for the right of any individual Senator to review relevant documents.
That said, Mr. Wainstein and his deputy Mr. Bowman have been
forthcoming. They do not control the documents I seek. The Department
of Justice does. Either or both of those men might be willing to
provide them. Unfortunately, neither is in a position to do so. Mr.
Wainstein has answered to the best of his ability and I will support
his nomination.
Mr. President, I ask unanimous consent that the letters to which I
referred be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, June 9, 2006.
Mr. Kenneth Wainstein,
Washington, DC.
Dear Mr. Wainstein: I have reviewed your answers to my
Questions for the Record and would appreciate you clarifying
a number of your responses and providing some additional
information which is relevant to them and the consideration
of your nomination.
1. Please provide an unredacted version of each of the
documents contained in the packet I provided.
2. Question 1D (ii) in my questions asked whether you or
anyone in your office raised concerns about Department of
Defense (DoD) interrogation techniques with the DoD,
including the DoD General Counsel. Your answer stated ``I
also understand that the FBI's Office of the General Counsel
conveyed those concerns to the DoD office of the General
Counsel.''
(A) When did the FBI Office of General Counsel convey those
concerns?
(B) Were those concerns conveyed orally or in writing? If
orally, please summarize the substance of the concerns that
were communicated. If in writing, please provide copies. In
addition, please provide the name(s) of the person(s) in the
FBI's Office of the General Counsel who communicated those
concerns, if they were conveyed orally, or who drafted the
communication, if they were conveyed in writing.
3. Question 2B asked about Document #2 in the packet I
provided. Your response stated, ``I am not aware that any
attorney from the FBI office of the General Counsel examined
the legal analysis in the document . . .'' I am attempting to
reconcile that response with several other documents in the
packet I provided:
Document #2A, an email dated December 2, 2002, requests
that the ``Legal Issues Doc'' be forwarded to ``Spike
Bowman,'' presumably referring to Marion Bowman, a senior
attorney in the FBI Office of General Counsel.
Document #2B, an email sent by Marion Bowman and dated
December 3, 2002, is entitled ``Fwd Re Legal Issues Re
GTMO.''
Document #2C, an email dated December 9, 2002, refers to a
legal review being undertaken by Mr. Bowman and states that
documents attached may be of interest to that review,
including ``a review of interrogation methods by a DoD
lawyer'' who ``worked hard to write a legal justification for
the type of interviews they (the Army) want to conduct
here.''
Document #2E, an email dated December 17, 2002, is a
response from Marion Bowman and is entitled ``Fwd Legal
Issues re Guantanamo Bay.''
Those emails clearly demonstrate that a senior attorney in
your office was aware of legal issues being raised by FBI
employees with regard to DoD interrogation techniques at
Guantanamo. Indeed, they indicate that a review of those
techniques was undertaken by that same senior attorney.
(A) Were you aware of FBI personnel at Guantanamo, or their
supervisors, contacting Mr. Marion Bowman or other attorneys
in the FBI Office of the General Counsel regarding legal
issues relating to Defense Department interrogation
techniques at Guantanamo in 2002 or 2003? If so, did you
discuss this with anyone in the FBI or take any other action?
(B) Were you aware of Mr. Bowman or other attorneys in the
FBI Office of General
[[Page S10000]]
Counsel ``reviewing legal aspects of interviews'' conducted
at Guantanamo in 2002 or 2003? If so, did you discuss this
with them or take any other action?
(C) Were you aware of Mr. Bowman or other attorneys in the
FBI Office of General Counsel being provided documents ``of
interest'' to a review of legal aspects of interviews at
Guantanamo in 2002 or 2003, including a review of
interrogation methods by a DoD lawyer? If so, did you review
any of these documents, discuss this issue with anyone in the
FBI, or take any other action?
(D) Were you aware of any comment that Mr. Bowman or other
attorneys in your office may have made to FBI personnel in
Guantanamo in 2002 or 2003 regarding DoD interrogation
techniques? If so, what was the substance of such comment?
(E) If you were not aware of email exchanges or other
communications between FBI personnel and Mr. Marion Bowman or
other attorneys in the office of the FBI General Counsel
regarding legal aspects relating to interrogation techniques
at Guantanamo during the period you were FBI General Counsel,
to what do you ascribe your lack of awareness?
(F) Please provide the name of the person who drafted the
legal analysis in Document #2.
4. Your answer to Question 3 states that ``Subsequent to
the May 20 hearing, the FBI surveyed its personnel who had
been in Guantanamo to determine whether any witnessed
mistreatment of detainees.'' Please provide the results of
that survey.
5. Your answer to Question 4 states that ``in the months
following 9/11, the FBI received numerous NSA tips . . .''
Are you aware any instance following 9/11, where the FBI
raised a concern with the National Security Agency (NSA)
about the workload created by the number of leads being
provided to the FBI by the NSA?
6. Question 5 asked about concerns that Director Mueller
reportedly had regarding the legal rationale for warrantless
wiretaps. Your answer states that it would be ``inappropriate
for me to describe any discussions I may have witnessed or
had with Director Mueller on this topic.'' Please provide the
legal basis for your decision not to describe those
discussions.
I look forward to your prompt responses to my questions.
Thank you.
Sincerely,
Carl Levin.
____
U.S. Senate,
Washington, DC, June 9, 2006.
Mr. Marion Bowman,
Senior Counsel, Office of General Counsel,
FBI Headquarters,
Washington, DC.
Dear Mr. Bowman: I am writing in connection with the
nomination of Kenneth Wainstein for the position of Assistant
Attorney General for the National Security Division of the
Department of Justice. Mr. Wainstein has indicated that you
worked for and reported to him during his tenure as FBI
General Counsel.
I asked Mr. Wainstein a series of questions concerning a
packet of FBI documents (attached) which refer to concerns of
FBI personnel at Guantanamo about aggressive interrogation
techniques used by the Department of Defense (DoD). In his
answers to my questions, Mr. Wainstein repeatedly stated that
he could not recall specific information or documents
contained in the packet. He also said that it was
``possible'' that you were ``the source'' from which he
learned of FBI concerns with DoD interrogation techniques.
To assist me in filling in the gaps in Mr. Wainstein's
answers, please answer the following questions:
1. In the packet provided, Document #1C, dated May 30, 2003
and addressed to your attention, summarizes FBI agents'
objections in 2002 and 2003 to DoD's use of aggressive
interrogation techniques which were ``of questionable
effectiveness and subject to uncertain interpretation based
on law and regulation.''
A. Do you remember Document # 1 C?
B. Were you aware, from Document # 1 C or otherwise, of FBI
agents' concerns regarding military interrogators' use of
aggressive interrogation tactics at Guantanamo? If so, when
were you first aware of these concerns? Did you bring
these concerns to the attention of Mr. Wainstein? If not,
why not? If so, what was Mr. Wainstein's response to those
concerns?
C. Were you aware of FBI agents' concerns that these
techniques were not only ``of questionable effectiveness''
but also ``subject to uncertain interpretation based on law
and regulation''? Did you raise these concerns with Mr.
Wainstein? If not, why not? If so, are you aware of whether
he took any actions or directed you to take any actions as a
result?
2. In his answers to my questions, Mr. Wainstein stated
that the FBI's Office of General Counsel (FBI OGC) conveyed
FBI agents' concerns regarding DoD interrogation techniques
to the DoD Office of General Counsel (DoD OGC). Did you
participate in discussions with DoD officials, including from
the DoD OGC, about FBI agents' concerns regarding DoD
interrogation techniques? If so, did you inform Mr. Wainstein
about the outcome of these discussions? If not, why not?
3. Document #1C also states that on December 2, 2002, an
FBI employee sent several documents to the head of the
Behavioral Analysis Unit (BAU) in Quantico, who stated he
would forward these documents to you. According to Document
#1C, the forwarded documents included: (1) a letter to
Guantanamo Commanding General Major General Geoffrey Miller;
(2) an Army Legal Brief on Proposed Counter-Resistance
Strategies; and (3) a Legal Analysis of Interrogation
Techniques by an FBI agent whose name is redacted. In his
answers to my questions, Mr. Wainstein could not recall
seeing any of the documents specified in Document #1C, though
he said ``it is certainly possible'' that you raised the
documents with him.
A. Did you receive and examine documents related to
interrogation techniques at Guantanamo in late 2002,
including any of the three documents specified in Document
#1C? If so, when? Did you bring these documents to the
attention of Mr. Wainstein? If not, why not? If so, are you
aware of whether he took any actions or directed you to take
any actions as a result?
B. If you examined the document described in Document #1C
as an Army Legal Brief on Proposed Counter-Resistance
Strategies, did you discuss the legal analysis contained in
that document with Mr. Wainstein? If not, why not? If so, did
either Mr. Wainstein or you have any concerns about that
legal analysis?
4. Also contained in the packet I provided Mr. Wainstein
were a number of other documents in which you were also
named:
Document #2, entitled ``Legal Analysis of Interrogation
Techniques,'' indicates that it was forwarded to you on
November 27, 2002.
Document #2A, dated December 2,2002, entitled ``Legal
Issues,'' requests that a ``Legal Issues Doc'' be forwarded
to you or an appropriate person. Document #2B, dated December
3, 2002, is an email from you and is entitled ``Fwd Re Legal
Issues Re GTMO.''
Document #2C, dated December 9, 2002, states that it
includes a number of documents which may be ``of interest''
to you and states that you are ``reviewing legal aspects of
interviews'' at Guantanamo. That same email describes one of
the attachments as a ``review of interrogation methods by a
DoD lawyer.''
Document #2E, another email from you, dated December 17,
2002, is entitled ``Fwd Legal Issues re Guantanamo Bay.''
A. Do you know the name of the author of the ``Legal
Analysis'' document (Document #2)? If so, please provide the
name.
B. Did you at any time discuss the analysis contained in
the ``Legal Analysis'' document (Document #2) with Mr.
Wainstein? If not, why not? If so, are you aware of whether
he took any actions or directed you to take any actions as a
result?
C. The ``Legal Analysis'' document (Document #2) describes
one ``Category IV'' interrogation technique as ``Detainee
will be sent off [Guantanamo], either temporarily or
permanently, to Jordan, Egypt, or another third country to
allow those countries to employ interrogation techniques that
will enable them to obtain the requisite information.'' This
would appear to suggest the use of rendition as an
interrogation technique. Did you at any time discuss the
issue of rendition with Mr. Wainstein? If not, why not? If
so, are you aware of whether he took any actions or directed
you to take any actions as a result?
Did you or any attorney in the FBI OGC conduct a review the
legal aspects of interrogation techniques at Guantanamo? If
not, why not? Did you or any other person in your presence
discuss this review with Mr. Wainstein? If so, are you aware
of whether he took any actions or directed you to take any
actions as a result?
In addition, please provide unredacted copies of the
documents in the attached packet for which you were the
sender, a recipient, or in which you were specifically named.
Thank you for your prompt responses to these questions.
Sincerely,
Carl Levin.
____
U.S. Senate,
Committee on Armed Services,
Washington, DC, July 21, 2006.
Mr. Marion Bowman,
Senior Counsel, Office of General Counsel, FBI Headquarters,
Washington, DC.
Dear Mr. Bowman: Thank you for your response to my letter
of June 9, 2006. On June 29, 2006, I provided your response
to Mr. Kenneth Wainstein and asked him some additional
questions regarding FBI personnel's concerns over DoD
interrogation techniques at Guantanamo. Mr. Wainstein
responded to me on July 14, 2006. A number of issues,
however, require further clarification.
Please provide answers to the following:
1. In Mr. Wainstein's responses of July 14, 2006, he states
that he discussed concerns about detainee interrogations with
Director Mueller ``at some point in 2002 or 2003.'' Further
he states that ``The Director had made a policy decision to
prohibit FBI personnel from participating in interrogation
sessions in which non-FBI personnel were employing techniques
that did not comport with FBI guidelines.''
A. In your response to my questions, you describe a
telephone call you received from Behavioral Analysis Unit
(BAU) personnel in late 2002 regarding their concerns about
interrogation practices at Guantanamo. Did you discuss these
concerns with Director Mueller in late 2002? If so, what was
the nature of those discussions? Was Mr. Wainstein aware of
those discussions?
B. When did Director Mueller issue the policy prohibiting
the participation of FBI personnel from interrogations
involving techniques that did not comport with FBI
guidelines? Please provide any documents relating to the
issuance of that policy.
[[Page S10001]]
2. In your response to Question #1B, you state that you
recommended to Mr. Wainstein that your office notify the
Department of Defense Office of General Counsel (DoD/OGC)
that ``there were concerns about the treatment of detainees
in Guantanamo.'' You add that Mr. Wainstein concurred in this
suggestion. When did you first contact the DoD/OGC regarding
FBI personnel's concerns about the treatment of detainees in
Guantanamo? Was it in late 2002? To whom did you communicate
these concerns?
3. In your response to Question #3A, you state that you
received the ``Legal Issues Doc'' in late 2002 and that,
``Because at that time I was working under the assumption
that DoD General Counsel was taking appropriate action with
respect to this issue, I did not believe that any particular
action was necessary on the part of the FBI.''
A. Did you provide the ``Legal Issues Doc'' to the DoD/OGC?
If so, when?
B. Why did you assume at the time you received this
document that the DoD/OGC was taking appropriate action? Was
this based on your discussions with individuals in the DoD/
OGC? If so, what was the nature of those discussions?
4. In your response to Question #3B, you state that you
provided the attachments to Document #1C, including the Army
Legal Brief on Proposed Counter-Resistance Strategies, to the
Defense Humint Services Deputy General Counsel. Please
provide the name of the individual in that office to whom you
provided these documents. When did you do so?
5. In your response to Question #4A, you state that you
don't know who authored the document entitled ``Legal
Analysis of Interrogation Techniques,'' but that ``my
understanding is that the document was not drafted by an FBI
agent. Rather, an FBI agent copied it and forwarded it [to]
FBI Headquarters.''
A. What is the basis for your understanding that this
document was not authored by an FBI agent?
B. What is your understanding of the source from which the
agent copied the contents of the document?
In addition, I remind you that my June 9, 2006, letter
included a request for ``unredacted copies of the documents
in the attached packet for which you were the sender,
recipient, or in which you were specifically named.'' This
request is still outstanding.
Thank you for your prompt response.
Sincerely,
Carl Levin.
____
June 19, 2006.
Hon. Carl Levin,
U.S. Senate,
Washington, DC.
Dear Senator Levin: This is in response to your letter
dated June 9, 2006, requesting additional information
regarding my nomination to be the first Assistant Attorney
General for National Security. Below are the answers to your
specific questions.
Answer to Question 1: I do not have unredacted copies of
any of the documents you provided me at our meeting on May
15, 2006. I am aware that you have made similar inquiry to
Director Mueller, and I have alerted the Department of
Justice, Office of Legislative Affairs, of your request.
Answer to Question 2: I understand that Marion ``Spike''
Bowman conveyed concerns to the DoD General Counsel's Office
about DoD interrogation techniques at some point. I do not
know to whom Mr. Bowman spoke, how often, or the date of any
communications.
Answer to Questions 3 A), B), C), D) and E): As I have
previously indicated, I do not recall having seen the
document marked as #2, or the various emails marked #2A, #2B,
#2C, #2D or #2E; nor do I recall having specific
conversations about them with Mr. Bowman or any other FBI
Office of General Counsel (OGC) lawyer. I do not recall ever
hearing that Mr. Bowman or any other OGC lawyer was
undertaking any formal legal review or legal analysis of
interrogation techniques employed by another agency. I did
not produce any formal legal opinion or OGC legal memorandum
on this topic while I was General Counsel.
As I previously explained, I was aware--and there was wide
awareness within the FBI--that FBI personnel stationed at
Guantanamo disagreed with the aggressive techniques that were
authorized to be used there and believed they were not
effective at soliciting useful information that could be used
in subsequent prosecutions. As I saw In response to the first
set of questions (Question 1, subpart Fiii), it is certainly
possible that Mr. Bowman or other OGC attorneys were among
those from whom I heard about those concerns.
Answer to Question 3F): I do not know who authored the
document labeled #2.
Answer to Question 4: I do not have the results of the
survey conducted after the Director's May 20, 2004 hearing. I
left the FBI on May 29, 2004, to become the interim United
States Attorney for the District of Columbia. As I indicated
in my previous responses to your first set of post-hearing
questions, I do not know anything about the results of the
survey beyond the information publicly disclosed by Director
Mueller that I cited in my previous responses.
Answer to Question 5: I do not know whether the FBI raised
any such concern with the NSA.
Answer to Question 6: My view that it would be
inappropriate for me to comment about discussions with
Director Mueller is based upon the confidentiality interests
that are implicated by my role as his chief of staff and FBI
General Counsel. I have been advised that this is consistent
with long-standing executive branch concerns that disclosure
of such communications would chill the provision of candid,
frank advice to senior officials, such as Director Mueller,
which is important to their effective, fully-informed
decision-making.
I have made every effort, however, to respond to committee
requests for information relating to my fitness for the
position of Assistant Attorney General. I have met with
individual Senators and remain available for further meetings
with any Senator who would like to speak with me. I also have
responded to multiple rounds of pre- and post-hearing
questions, in addition to my appearances before the two
separate committees of the Senate relating to my nomination.
I have been happy to provide this information, and I remain
ready and willing to provide information relevant to the
Senate's consideration of my fitness and ability to fulfill
the responsibilities of the Assistant Attorney General for
National Security.
Thank you for the opportunity to provide this additional
information regarding my previous responses, and I look
forward to the Committee's consideration of my nomination.
Sincerely,
Kenneth L. Wainstein.
____
July 14, 2006.
Hon. Carl Levin,
U.S. Senate,
Washington, DC.
Dear Senator Levin: Thank you for the questions in your
June 29, 2006, letter, and for your questioning throughout
this confirmation process. I have carefully reviewed your
questions, and I have drafted my responses based on my review
of the written responses from Mr. Bowman and the Federal
Bureau of Investigation (FBI) e-mails and memos that you
provided me.
I. Concerns Regarding Interrogations at Guantanamo
The first of your two questions relates to concerns about
the interrogation techniques that Department of Defense (DOD)
personnel were using with detainees in Guantanamo. I
appreciate your concern about the treatment of detainees. As
a criminal prosecutor for most of the past seventeen years, I
have frequently been questioned about the treatment and
interrogation of suspects, defendants and prisoners in my
prosecutions. I have litigated suppression motions in
numerous homicide and other criminal cases where I had the
burden of demonstrating that a confession was procured under
conditions and circumstances that passed constitutional
muster. I have always considered this scrutiny to be a part
of my job, and I recognize the government's fundamental
obligations toward those it holds in custody.
As I explained in previous responses, it was fairly well
known during my tenure at the FBI that some FBI personnel
were concerned about the DOD's use of aggressive
interrogation techniques in Guantanamo. There was a sentiment
that DOD's techniques were not effective in eliciting useful
information and that DOD should instead use the rapport-
building approach that is routinely practiced by the FBI and
law enforcement in general. There also was a concern that
DOD's techniques could complicate the introduction of
subsequent admissions by detainees in any potential future
criminal prosecutions.
Your letter inquires about the concerns regarding DOD
interrogations that were communicated to former Deputy
General Counsel Marion Bowman in late 2002 an early 2003.
During this time period, I recall hearing about the concerns
described in the previous paragraph. However, as I have
previously explained, I do not recall hearing any reports of
torture or illegal conduct, and it was my understanding at
that time--and remains my understanding today--that the
techniques of concern to FBI personnel had been authorized by
the Department of Defense.
Although I heard concerns about the DOD interrogation
techniques during that time period, I do not recall hearing
them specifically from Mr. Bowman. As I indicated in previous
responses, it is entirely possible that he and I discussed
the issue, but there is nothing about any such
conversation(s) that sets it apart in my memory. Similarly,
while Mr. Bowman believes he would have spoken to me about
some of the concerns he was hearing, his written responses
indicate that he also cannot recall any specific
conversations. Moreover, he makes clear that any
conversations we might have had on this topic would have been
simply advisory in nature in that he believed the concerns
were being addressed by DOD and that they required no FBI
action beyond his contacting the DOD General Counsel's
Office.
Your letter asks whether I informed Department of Justice
officials or Director Mueller regarding any concerns I heard
about Guantanamo interrogations or directed others to so
inform them. While I do not recall discussing concerns about
detainee interrogations with an one in Main Justice--or
directing anyone else to do so--I do recall orally discussing
detainee interrogations with Director Mueller at some point
in 2002 or 2003. The Director had made a policy decision to
prohibit FBI personnel from participating in interrogation
sessions in which non-FBI personnel were employing techniques
that did not comport with FBI guidelines. The Director--
described his reasons for
[[Page S10002]]
this policy in his response to Questions for the Record after
his April 5, 2005, testimony before the Judiciary Committee
(which are summarized in my June 5, 2006, responses to your
questions for the record on pages 2-3). When this issue came
up from time to time during my service at the FBI, the
Director and I discussed FBI concerns about aggressive
interrogation techniques and he maintained a bright-line rule
barring FBI personnel from involvement in interviews that
employed techniques inconsistent with FBI guidelines.
II. Conversations about the Terrorist Surveillance Program I
Your second question asks whether I am asserting any
privilege in declining to describe any conversations I had
with Director Mueller regarding the legal rationale for the
Terrorist Surveillance Program. The short answer is that I am
not invoking a privilege; rather, my response comports with
the long-standing Executive Branch practice of protections
the dentiality of internal advice and other deliberatlons. It
is my understanding that this practice is based largely on
the importance of ensuring that policy makers receive the
complete, sometimes differing, views of subordinates as they
consider significant issues. If employees have to worry that
their deliberations will be disclosed outside of the agency;
then they will become reluctant to provide their candid input
and the decision making process will suffer.
III. Conclusion
I trust that this letter responds to your questions. It has
been my objective throughout this process to be as candid and
forthcoming as possible, and to assure you that I am worthy
of your confidence to handle the important national security
responsibilities of the position for which I have been
nominated. With the establishment of the National Security
Division awaiting my confirmation, I am anxious for you to
allow my nomination to proceed to a vote before the United
States Senate. There is much work to be done to stand up the
new Division.
Please let me know if you have any further questions, as I
would be happy to meet with you at your convenience to
respond to them. Thank you once again for your consideration
throughout this process.
Sincerely,
Kenneth L. Wainstein.
____
U.S. Senate,
Washington, DC, June 29, 2006.
Mr. Kenneth Wainstein.
Washington, DC.
Dear Mr. Wainstein: I have reviewed your June 19th reply
and Mr. Marion Bowman's June 27th reply to my June 9th
letters and would appreciate your responses to he following
questions.
Mr. Bowman's response, a copy of which is enclosed, states
that he is confident that he spoke with you about a call he
received from FBI Behavioral Analysis Unit (BAU) personnel in
fall 2002 expressing concern with certain Department of
Defense (DoD) interrogation tactics in use at Guantanamo. In
addition, Mr. Bowman's response states that, approximately
one month after BAU personnel contacted him with their
concerns, he was informed about ``legal concerns'' that DoD
personnel had with the tactics. Mr. Bowman states that he
believes that he would have discussed these legal concerns
with you. Mr. Bowman also states that he believes that he
showed you or discussced with you the ``Legal Analysis of
Interrogation Techniques'' document referenced in document #1
C. That document refers to examples of coercive interrogation
tchniques which may violate 18 U.S.C. s. 2340 (Torture
Statute).''
Please advise whether, at any time, you informed or
directed others to inform Director Mueller and/or any
Department of Justice (DOJ) official, including but not
limietd to officials in the Attorney General's office, DOJ's
Office of Legal Counsel, or DOJ Criminal Division of concerns
about DoD interrogation tactics that had been brought to your
office, regardless of the source of those concerns. If so,
please provide the name of the official(s) you contacted or
who were contacted at your direction. If concerns were
communicated in writing, please provide a copy; if orally,
please describe the substance of the conversation. If you did
not contact any such official(s) or direct others to do so,
please advise me as to why you did not.
You also state in your letter that ``the confidentiality
interests that are implicated by my role as his chief of
staff and FBI General Counsel'' preclude you from answering
my questions regarding your conversations with Director
Mueller on the legal rationale for warrantless wiretaps.
Please advise as to whether you are asserting any privilege
in declining to describe those discussions and provide the
legal basis for that privilege and your assertion of it.
Finally, following my staffs discussion with the Department
of Justice, I will provide the Department with a list of
documents from the previously provided packet that I request
be provided in unredacted form.
I look forward to your reply.
Sincerely,
Carl Levin.
____
August 7, 2006.
Hon. Carl Levin,
U.S. Senate, Committee on Armed Services, Washington, DC.
Senator Levin: You sent me a second set of questions with
respect to Mr. Kenneth Wainstein, which I received on Friday,
August 4, 2006. Your focus, once again, is ``detainee''
issues. Let me preface my reply by informing you that I no
longer work for the Department of Justice. In consequence, I
have no access to any of the documents that you reference
and, because of a computer change in recent years, did not
have personal access to them when I last replied.
Additionally, because I no longer work for the Department of
Justice, my answers to your questions should not imply
concurrence by the Department of Justice or the Federal
Bureau of Investigation in any of my responses.
You asked:
1. In Mr. Wainstein's responses of July 14, 2006, he states
that he discussed concerns about detainee interrogations with
Director Mueller ``at some point in 2002 or 2003.'' Further
he states that ``The Director had made a policy decision to
prohibit FBI personnel from participating in interrogation
sessions in which non-FBI personnel were employing techniques
that did not comport with FBI guidelines.''
A. In your response to my questions, you describe a
telephone call you received from Behavioral Analysis Unit
(BAU) personnel in late 2002 regarding their concerns about
interrogation practices at Guantanamo. Did you discuss these
concerns with Director Mueller in late 2002? If so, what was
the nature of those discussions? Was Mr. Wainstein aware of
those discussions?
Answer: To the best of my recollection, I never discussed
detainee issues with Director Mueller.
B. When did Director Mueller issue the policy prohibiting
the participation of FBI personnel from interrogations
involving techniques that did not comport with FBI
guidelines? Please provide any documents relating to the
issuance of that policy.
Answer: I do not recall when Director Mueller issued that
policy. However, I can tell you that the operational
prohibition came earlier. As soon as I heard from BAU I
talked with (now retired) Executive Assistant Director Pat
D'Amuro who immediately said we (the FBI) would not be a
party to actions of any kind that were contrary to FBI policy
and that individuals should distance themselves from any such
actions. That conversation was longer than indicated so I
want to be sure the ``sound bite'' is not misinterpreted. EAD
D'Amuro was not saying that FBI would ignore anything
unlawful. He made it abundantly clear that FBI would adhere
to its standards and, to the extent possible, would not put
itself in a position that would create even the appearance
that those standards had been compromised by physical
association with activities inconsistent with the tenets of
the Bureau.
Answer: You will have to seek any documents from the
Department of Justice as I no longer have access to any of
them.
2. In your response to Question #1B, you state that you
recommended to Mr. Wainstein that your office notify the
Department of Defense Office of General Counsel (DoD/OGC)
that ``there were concerns about the treatment of detainees
in Guantanamo.'' You add that Mr. Wainstein concurred in this
suggestion. When did you first contact the DoD/OGC regarding
FBI personnel's concerns about the treatment of detainees in
Guantanamo? Was it in late 2002? To whom did you communicate
these concerns?
Answer: I cannot be precise. My best guess, which is
probably pretty accurate, is that it was mid- to late
November of 2002. I first called the acting Deputy General
Counsel for Intelligence. Subsequently I talked with the
Principal Deputy General Counsel and the General Counsel. My
best recollection is that I talked briefly with the Principal
Deputy shortly thereafter and with both Principal Deputy
General Counsel and the General Counsel several months later.
I'm sorry; I can't be more precise than that.
3. In your response to question #3A, you state that you
received the ``Legal Issues Doc'' in late 2002 and that,
``Because at that time I was working under the assumption
that DoD General Counsel was taking appropriate action with
respect to this issue, I did not believe that any particular
action was necessary on the part of the FBI.''
A. Did you provide the ``Legal Issues Doc'' to the DoD/OGC?
If so when?
Answer: I offered the documents to the General Counsel's
office and described generally the contents of the documents
included in the bundle that was forwarded to me by BAU, but
was told that they believed they already had all the
documents I possessed.
C. Why did you assume at the time you received this
document that the DoD/OGC was taking appropriate action? Was
this based on your discussions with individuals in the DoD/
OGC? If so, what was the nature of those discussions?
Answer: This could be a very lengthy response, but the
short version is that, based on my experiences as a 27-year
veteran of military service, a substantial portion of which
dealt both with issues of the Law of Armed Conflict and, for
a variety of reasons, directly with the DoD General Counsel's
office (through multiple General Counsels), I believed
bringing the issue to the attention of appropriate authority
would result in any remedial action deemed necessary or
appropriate. When I talked with the acting Deputy General
Counsel for Intelligence, a person whom I knew well, I was
told that the matter was not in his purview, but that it was
being handled by the Principal Deputy. That made perfect
sense to me, as the acting Deputy General Counsel for
Intelligence had no military experience, while the Principal
Deputy was retired military.
[[Page S10003]]
4. In your response to Question #3B, you state that you
provided the attachments to Document #1C, including the Army
Legal Brief on Proposed Counter-Resistance Strategies, to the
Defense Humint Service's Deputy General Counsel. Please
provide the name of the individual in that office to whom you
provided these documents. When did you do so?
Answer: The Deputy General Counsel for Defense Humint
Services is retired Colonel James Schmidli. My best guess on
timing was in the mid-December 2002 to mid-January 2003 time
frame. I did not give copies to Mr. Schmidli, but he did read
them in my office.
5. In your response to Question #4A, you state that you
don't know who authored the document entitled ``Legal
Analysis of Interrogation Techniques'' but that ``my
understanding is that the document was not drafted by an FBI
agent. Rather, an FBI agent copied it and forwarded it [to]
FBI Headquarters.
A. What is the basis for your understanding that this
document was not authored by an FBI agent?
Answer: To the best of my recollection, this is what I was
told when the documents were forwarded to me.
B. What is your understanding of the source from which the
agent copied the contents of the document?
Answer: I have no present recollection of that.
In closing, I will remind you that any documents you desire
will have to be requested from the Department of Justice. I
hope this is helpful to your understanding that this period
was one in which facts were still uncertain but reasonably
believed to be in the hands of the Department of Defense for
any actions necessary. In that respect, it is my firm belief
that Mr. Wainstein acted with complete propriety throughout.
Respectfully,
M.E. Bowman,
CAPT, JAGC, USN (ret.).
____________________