[Congressional Record (Bound Edition), Volume 152 (2006), Part 5]
[Senate]
[Pages 5737-5740]
[From the U.S. Government Publishing Office, www.gpo.gov]




 NOMINATION OF PETER CYRIL WYCHE FLORY TO BE AN ASSISTANT SECRETARY OF 
                                DEFENSE

  Mr. WARNER. We now turn to Peter C.W. Flory who became the principal 
Deputy Assistant Secretary of Defense for International Security 
Affairs in 2001. In this capacity he serves as the principal assistant 
to the Assistant Secretary of International Security Affairs who is the 
principal adviser to the Secretary of Defense on the formulation and 
coordination of international security strategy and policy for East 
Asia, South Asia, the Middle East, the Persian Gulf, Africa, and Latin 
America. I wish to put further facts regarding this distinguished 
gentleman into the Record, but I am very anxious to keep the momentum. 
I think the concern of my colleague can be best expressed by himself 
momentarily, perhaps not to Mr. Flory himself but to the matter of 
process, and that process is an issue that in some respects I share 
with my distinguished colleague.
  I yield the floor.
  Mr. LEVIN. Mr. President, how many minutes remain?
  The PRESIDING OFFICER. There is 14 minutes remaining.
  Mr. LEVIN. Mr. President, I want to explain to my colleagues why the 
Senate should not proceed to the nomination of Peter Flory to be the 
Assistant Secretary of Defense for International Security Policy.
  At its core, this is an issue of the executive branch refusing to 
provide the Senate with documents that are relevant to the confirmation 
proceeding.
  This issue dates back to the summer of 2003 when I directed the 
minority staff of the Committee on Armed Services to conduct an inquiry 
into the flawed intelligence prior to the war in Iraq. As part of that 
inquiry, I wrote a request to the Department of Defense in November of 
2003 seeking documents relating to the activities of the Office of 
Under Secretary of Defense for Policy Douglas Feith concerning Iraq. 
Mr. Flory was a part of that office. It took 18 months of struggle to 
get as many documents as I could. I did not receive all the documents 
that were relevant to the inquiry and which are now relevant to the 
Flory nomination.
  The Department of Defense has refused to produce key documents 
regarding the efforts of that office to develop and disseminate an 
alternative intelligence assessment which exaggerated the relationship 
between Iraq and al-Qaida. That assessment went directly to senior 
administration policymakers, bypassing the ordinary intelligence 
community procedure. These documents are critical to understanding 
exaggerated statements which were made by senior administration 
officials that al-Qaida and Iraq were allies, despite the conclusion of 
the intelligence community that there was no such link between the two.
  Here is the critical connection between the Feith office and Mr. 
Flory: Mr. Flory worked in the office of Under Secretary Feith at the 
time the alternative assessment was developed and disseminated. Some of 
the internal e-mails we have been able to obtain indicate Mr. Flory 
requested and received briefings on the collection of intelligence from 
the Iraqi National Congress in December 2002. The INC material should 
have been evaluated by the intelligence community and filtered through 
their screen. Instead, it went to the Feith policy shop, which included 
Mr. Flory.
  Mr. Flory was also a member of Mr. Feith's briefing team which came 
to the Senate in June of 2003 to explain to the Senate Committee on 
Armed Services staff the origins and work of the Office of Special 
Plans and the Policy Counterterrorism Evaluation group. Those were the 
two entities within Secretary Feith's office that were very much 
involved in characterizing the prewar intelligence.
  In addition to the denial of relevant documents, the inspector 
general of the Department of Defense is currently conducting a review 
to determine whether Mr. Feith's office conducted unauthorized, 
unlawful, or inappropriate intelligence activities. We do not know 
what, if anything, that review may reveal about the role Mr. Flory may 
have played in such activities. What we do know is that his name 
appears in a number of relevant documents we have been able to obtain 
so far.
  Before the Senate proceeds to his nomination, the Defense Department 
should provide the documents they have previously denied, or resolve 
the matter in a satisfactory manner, and the inspector general's office 
should be allowed to complete its investigation of the activities of 
Under Secretary Feith's office. That investigation may shed additional 
light on Mr. Flory's activities. It may show absolutely nothing about 
Mr. Flory's activities, but we will have to await its conclusion to 
know.
  This is not a case of blocking Mr. Flory from occupying the office to 
which he has been nominated. I want to emphasize this for our 
colleagues: Mr. Flory has received a recess appointment. He occupies 
the office. He is currently serving in the position to which he was 
nominated. So there should be no argument that we need to give up a 
vital institutional right to obtain documents relevant to our carrying 
out of our confirmation function. Again, Mr. Flory occupies the office 
to which he has been nominated. The issue here is whether we are going 
to have access to documents that are relevant or may be relevant to 
this nomination.
  I want to provide a little bit of additional background and context 
for this issue to indicate the seriousness of these matters to this 
institution's obligations and responsibilities. In the period before 
the war, the intelligence community did not find a substantial link 
between Iraq and al-Qaida. The intelligence community stated that the 
relationship ``appears to more closely resemble that of two independent 
actors trying to exploit each other,'' and

[[Page 5738]]

that ``al-Qaida, including bin Laden personally, and Saddam were leery 
of close cooperation.'' Nonetheless, senior administration officials 
alleged at times that Iraq and al-Qaida were ``allies'' and that there 
was a close connection and cooperative context between Iraqi officials 
and members of al-Qaida.
  How could that happen? How could there be such a disconnect between 
what the intelligence community believed and what some of the senior 
administration officials were saying? For one thing, there is evidence 
that there was an alternative intelligence assessment, an alternative 
assessment that did not go through the intelligence community or the 
CIA; an alternative assessment that was prepared by Under Secretary 
Feith and his office, and that this was an important source for those 
administration statements. For example, the Vice President specifically 
stated that an article based on a leaked version of the Feith shop 
analysis was the ``best source of information'' on this issue. The 
Feith assessment was presented directly to senior administration 
officials by Secretary Feith, including White House officials, a very 
different assessment from that of the CIA.
  This issue of the alleged Iraq-al-Qaida connection was central to the 
administration's efforts to make its case for war against Iraq. And 
according to public opinion polling, more than 60 percent of Americans 
believed there was a connection between Saddam and the horrific attacks 
of 9/11, although there has never been any evidence of such a 
connection. The Feith operation product, which bypassed the 
intelligence community, went directly to top leaders and, it quite 
clearly appears, had a major impact on the lives of Americans and on 
the course of events in Iraq.
  The process of seeking the relevant documents on this matter from the 
Department of Defense has been painfully slow and laborious. I have 
written many letters and raised the issue of the Department's 
insufficient response and slow response on numerous occasions. I have 
also raised the issue at hearings of the Committee on Armed Services 
with senior Defense Department officials. I raised it with Mr. Flory at 
his nomination hearing in July 2004, but the Department was still slow 
to respond. Sometimes the Department of Defense indicated there were no 
additional documents responsive to my request, only to be followed by 
acknowledgments that there were more documents. Documents were dribbled 
out. It was always a struggle. This chart behind me indicates the list 
of some of the efforts that were made to get documents relating to the 
Feith operation of which Mr. Flory was a part, and some of the 
documents that we have been able to receive in which Mr. Flory is 
named.
  I finally met with Acting Deputy Secretary of Defense Gordon England 
in June of 2005 to discuss the documents I was seeking. Secretary 
England was able to provide a large number of additional documents in 
July. He also stated at that time they were the last documents the 
Department would release, and that there were 58 additional documents 
the Department would not release. So that is what it came down to: 58 
documents that they have, responsive to my continuing requests, which 
may--may--like some of the documents we did receive, relate to Mr. 
Flory. We don't know until we get the documents. We have a right to the 
documents. The Senate, to the last person, should insist upon relevant 
documents. This should be an institutional issue where we all defend 
each other's rights to get documents that are relevant to a 
confirmation.
  In late July 2005, I offered to lift my objection to proceeding with 
the Flory nomination if the administration would simply provide a list 
of the 58 documents they are not going to provide. Just give us the 
list, together with an indication that the President's senior advisors 
would recommend that he invoke executive privilege with regard to these 
documents, because that is what we were told orally. All we wanted was 
the accounting, the inventory. We didn't need the substance. Just tell 
us: What are the 58 documents? Who wrote whom on what date? Don't give 
us the substance, we will get along without that, providing you tell us 
that senior administration officials are going to recommend to the 
President that executive privilege be asserted.
  Defense Department officials, by the way, indicated their willingness 
to do this, but it was the administration that declined to agree.
  Then Mr. Flory received a recess appointment. So once again, he is in 
office. By the way, I want to thank my friend from Virginia. He has 
tried on a number of occasions to help me obtain these documents.
  The administration has had the opportunity to resolve this matter in 
a very simple way. It has chosen not to. I offered the compromise which 
I have just outlined that the administration finally rejected.
  Mr. Flory was a Principal Deputy Assistant Secretary in the Feith 
office. That office produced an alternative intelligence assessment. 
That is No. 1. That is his connection to the Feith office.
  Second, he is mentioned in a number of the documents which have been 
made available, and he participated in briefing the Senate Armed 
Services Committee on behalf of that office, relative to the subject 
matter we are talking about here today.
  I have said that I believe the Senate as an institution should insist 
on access to documents which may be relevant to a confirmation process. 
This should not be a partisan issue. We have supported each other's 
rights to documents consistently. As long as I have been here, we have 
defended each other's rights to access to documents.
  Senator McCain last year or the year before held up promotions and 
transfers of senior officers in the Air Force because the Department of 
Defense refused to provide information he sought which was relevant to 
a proposed Air Force lease of tanker aircraft. We supported him. He was 
right; he is entitled to that information.
  We all supported the nominations, or most of us did. But it was the 
way in which he chose to obtain relevant information, and we--I think 
probably every member of the Armed Services Committee--stood up for his 
right to get documents. That is what this issue is about. Are we as an 
institution going to stand up for the right of Senators to get 
documents that are relevant to a confirmation process or which may be 
relevant to a confirmation process? That is the issue here.
  The issue here is this body and what we have a right to, or whether 
the executive branch--and I don't care who is in the executive branch, 
Democrat or Republican--can stiff us, can stonewall us in terms of 
producing documents that may be relevant to a confirmation process.
  There is example after example where Senators have taken the position 
that we should not vote on the confirmation of nominees until documents 
have been provided. In 1986, Senators said they didn't want to vote on 
the confirmation of William Rehnquist to be a Supreme Court Justice 
until after documents were provided. The administration finally 
provided the information.
  Senator Helms in 1991 blocked the nomination of an ambassador until 
he received State Department cables in which one of Senator Helms' 
aides was accused of leaking U.S. intelligence to the Pinochet 
government.
  Mr. President, how much time does Senator Harkin have?
  The PRESIDING OFFICER. Senator Harkin has 10 minutes remaining.
  Mr. LEVIN. He has indicated his willingness to me, and I ask 
unanimous consent, that I have 3 of those minutes at this time.
  The PRESIDING OFFICER. Is there objection?
  Mr. WARNER. I will not object, but I wish to advise my colleague a 
number of my colleagues are on the tightest of schedules. I am 
proposing, on the conclusion of the debate on Flory, we immediately go 
to an up-or-down vote on Smith followed by a cloture vote on Flory. Is 
that understood?
  Mr. LEVIN. That is the existing unanimous-consent agreement.
  Mr. WARNER. If cloture is obtained, will the Senator be willing to 
have a voice vote on Flory?

[[Page 5739]]


  Mr. LEVIN. If cloture is obtained, I would be willing. I have to make 
sure that is acceptable to others.
  Mr. WARNER. We will reserve that for the leadership, but as manager 
that would be my position. I must impress upon colleagues--they are all 
here, those able to remain for the votes--in order to accommodate a 
great many, let us hold rigidly to the time schedules allocated for the 
votes.
  Mr. LEVIN. I was perfectly content to have these votes occur 
immediately after the recess. I am the last one who wants to hold up 
our colleagues from leaving, and I will abide by the suggestion of the 
good Senator from Virginia.
  The PRESIDING OFFICER. Without objection, the Senator is recognized 
for 3 additional minutes.
  Mr. LEVIN. Senators Helms, Kennedy, Jeffords, all of us--not all of 
us, many of us at times--have said we should not vote on a nomination 
until relevant documents have been obtained by the interested Senator, 
relevant to that confirmation process. We have supported those Senators 
in getting those documents. It has been an institutional position that 
Senators should be able to get documents that relate to a confirmation 
of a particular nominee.
  These are documents which relate to this nomination or may relate to 
this confirmation process. We don't know until we see the documents, 
but we do know two things, that Mr. Flory was a Principal Deputy 
Assistant Secretary in the Feith office and he was actively involved in 
the discussions and the matters to which these documents pertain and 
that he is named in a number of the documents we have been able to 
obtain as being involved in this subject matter. That much we know. 
That is more than enough, it seems to me, for this body to insist that 
these documents be made available before we vote on his confirmation.
  Finally, he is in office now. We are not blocking him from going into 
that office. He got a recess appointment.
  To reiterate, there is nothing novel or unique about holding up a 
nomination in order to obtain information that is being withheld by 
executive branch officials. This defense of Senate prerogatives goes 
back a long way, probably to our beginning.
  In 1972, Senator Sam Ervin insisted that the Senate would not vote on 
the nomination of Richard Kleindienst to be Attorney General until the 
administration provided information on a deal to drop an antitrust case 
against ITT in return for a $400,000 campaign contribution. The 
administration eventually provided the information and the nomination 
was confirmed,
  In 1991, Senator Helms blocked the nomination of George Fleming Jones 
to be U.S. Ambassador to Guyana until he received State Department 
cables in which one of Helms' aides was accused of leaking U.S. 
intelligence to the Pinochet government. The administration eventually 
provided the information and the nomination was confirmed.
  In 2004, Senator Jeffords placed a hold on nominations for four top 
jobs at the Environmental Protection Agency because of 12 unmet 
requests for documents over the previous three years. The documents in 
question related to the Bush administration's changes to air pollution 
rules.
  In short, the Senate has a longstanding practice of holding up 
nominations in order to obtain documents relevant to confirmation and 
oversight responsibilities. This has been done by Senators of both 
parties, in Senates controlled by both parties, and with 
administrations controlled by both parties.
  It is in the interest of the Senate as a whole to uphold our right to 
documents. It is at times essential to our obtaining the information we 
need to do our jobs. All colleagues should protect the right of any 
colleague to documents relevant to a nominee in a confirmation process.
  This information that we seek is directly relevant to the nomination 
of Mr. Flory. The entire Senate should, as an institutional matter, 
insist on access to the relevant information before we act on his 
nomination. We should speak with one Senatorial voice against executive 
branch stonewalling on access to relevant information.
  Mr. Flory has received a recess appointment to the position to which 
he has been nominated. By refusing to act on his nomination until we 
receive this information, we are not preventing this individual from 
carrying out his executive duties. On the contrary, it is the Executive 
Branch which is obstructing the Senate's ability to carry out our 
confirmation responsibilities when they deny us relevant documents.
  I hope every member of the Senate will stand together to defend the 
right of the Senate to have access to the relevant documents that bear 
on this nomination.
  Mr. WARNER. Mr. President, by way of wrapup, Mr. Flory is nominated 
to be Assistant Secretary of Defense for International Security Policy.
  Peter C.W. Flory, by recess appointment on August 2, 2005, became 
Assistant Secretary of Defense for International Security Policy. He 
previously served from 2001 to the present as the principal assistant 
to the Assistant Secretary for International Security Affairs, who is 
the principal advisor to the Secretary of Defense on the formulation 
and coordination of international security strategy and policy for East 
Asia, South Asia, the Middle East and Persian Gulf, Africa, and Latin 
America.
  From April 1997 to July 2001, Mr. Flory was Chief Investigative 
Counsel and Special Counsel to the Senate Select Committee on 
Intelligence, SSCI. Mr. Flory had responsibility for the People's 
Republic of China and other regional issues, as well as 
counterintelligence, covert action, denial and deception, and other 
intelligence oversight matters.
  An Honors Graduate of McGill University, Mr. Flory received his law 
degree from Georgetown University Law Center. After working as a 
journalist, he served as a national security advisor to Members of the 
House Foreign Affairs Committee and Senate Defense Appropriations 
Subcommittee. From 1989 to 1992, Mr. Flory served as the Special 
Assistant to Under Secretary of Defense for Policy Paul D. Wolfowitz. 
From 1992 to 1993, he was an Associate Coordinator for Counter-
Terrorism in the Department of State with the rank of Deputy Assistant 
Secretary. From 1993 until he joined the SSCI staff in 1997, Mr. Flory 
practiced law with the firm of Hughes, Hubbard & Reed LLP.
  Mr. Flory speaks German and French. He and his wife Kathleen have six 
children, and reside in Nokesville, Virginia.
  I would simply conclude, this is somewhat of a dilemma for those not 
following it. This man is eminently qualified to discharge the 
responsibilities to which the President has nominated him. There is no 
doubt in my mind.
  I have worked with my colleague. I will continue to work with my 
colleague. It is no different than other chairmen and ranking members, 
irrespective of party. We are always in a push-pull contest with the 
executive branch regarding the documents we need to perform oversight. 
I do not in any way disparage or criticize my colleague's observations. 
I think he is meticulously correct in what he has set forward to the 
Chamber. But the problem is, I am not sure this gentleman was party to 
in any way the obstruction of those documents coming forward. Those 
decisions primarily were made by his superiors. I think it would 
penalize him for actions of superiors, which superiors were acting as 
they believed in the best interests of the United States, and within 
the parameters of the time-honored traditions between the executive and 
legislative branches about the privacy of certain documents.
  I hope now we could move on. I see my friend, the Senator from Rhode 
Island. Does he have a few concluding words?
  Mr. LEVIN. If the Senator will yield, and I apologize for being 
distracted and not able to hear the Senator, but apparently it was 
announced already that this would be the last vote today. I think we 
have to leave it at that.
  Mr. WARNER. Wait a minute. I must get from my side a clarification on

[[Page 5740]]

that. My understanding is there were two votes.
  Mr. LEVIN. The last two votes today.
  Mr. WARNER. You said the last vote. Let's be clear.
  Mr. LEVIN. I apologize. I think the Senator is correct. It has been 
announced these will be the last two votes, depending on the outcome of 
the second vote.
  Mr. WARNER. We could consequently have a voice vote. I doubt if it 
will be necessary.
  Mr. LEVIN. Let me see if we can accomplish that. Mr. WARNER. I see 
the Senator from Rhode Island.
  Mr. REED. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. Five minutes.
  Mr. REED. I do not intend to take all that time, but I yield myself 5 
minutes.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. REED. Mr. President, there are two issues with respect to Mr. 
Flory. The first is access to documents which are necessary for the 
Senate to do its job. We can't formulate policy, we can't draft 
legislation, we can't properly review the activities of the Department 
of Defense if we are denied critical information. This Defense 
Department persistently, constantly denies information of that sort. 
This is something about which Senator Levin has made the point very 
well, made the point about his attempts to get information with respect 
to issues that touch on the activities of Mr. Flory and the activities 
of others. Senator Levin has been denied. Without any justification, 
without any legal precedent, they simply said we are not giving it to 
you--and that is outrageous.
  Frankly, because we have acquiesced in this policy over many years, 
we have not done our job in the Senate. We allowed this Defense 
Department to take military forces to war without a plan for occupation 
because we didn't ask--demand that they give us the information in that 
plan. We have done this repeatedly. It has to stop because it has real 
consequences in the activities of our military and the effect on these 
young men and women across the globe. We have to do our job. Our job 
begins with getting this type of information.
  It is outrageous that we continue to sit here and literally beg the 
Defense Department to give us information that is rightfully ours 
because of our responsibilities under the Constitution to supervise the 
activities of the Department of Defense. That is point No. 1.
  Point No. 2 is Mr. Flory, by his own job description, was involved 
with the formulation and coordination of international security 
strategy and policy for several areas including the Middle East in 
2001. As Senator Levin pointed out, he was part of this team that 
developed this alternate intelligence view--alternate in the sense that 
it was inaccurate, grossly inaccurate.
  Now we propose to promote him. There are millions of Americans who 
are wondering who planned this operation in Iraq so poorly. And if they 
find out, it is not to give these individuals a promotion. There is 
real responsibility here and that is the other point I find very 
difficult to accept. No one seems to be accountable for palpable 
mistakes that have been made by the Department of Defense in the 
conduct of these operations--not the Secretary of Defense, not the new 
Secretary of State, who was the National Security Advisor--and now we 
are promoting someone who is deeply involved in the Feith operation 
that created the alternate intelligence view that was at dramatic odds 
with the intelligence community, with the suggestion that there were 
serious links between Saddam Hussein, al-Qaida, and other terrorist 
groups.
  I think on both these points we should not proceed to this 
nomination. We have to have the information necessary to do our jobs. 
If we do not, we are not doing our jobs. We are not doing our duty. 
Today I hope is an opportunity to focus attention on, No. 1, the fact 
we need the information from the Department of Defense, and also I 
think it is about time someone is held in some degree responsible for 
errors that have been made by the Department of Defense.
  I yield my time.
  The PRESIDING OFFICER. The Senator yields.


                  Vote on Nomination of Dorrance Smith

  Mr. WARNER. Mr. President, I ask for the yeas and nays on the 
nomination of Dorrance Smith.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Dorrance Smith, of Virginia, to be an Assistant Secretary of 
Defense?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. McCONNELL. The following Senators were necessarily absent: the 
Senator from Kansas (Mr. Brownback), the Senator from Kansas (Mr. 
Roberts), and the Senator from Alaska (Mr. Stevens).
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from California (Mrs. Boxer), the Senator from Washington 
(Mrs. Murray), and the Senator from West Virginia (Mr. Rockefeller) are 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 59, nays 34, as follows:

                       [Rollcall Vote No. 91 Ex.]

                                YEAS--59

     Alexander
     Allard
     Allen
     Bennett
     Bond
     Bunning
     Burns
     Burr
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Feingold
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kohl
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--34

     Akaka
     Baucus
     Bayh
     Bingaman
     Byrd
     Cantwell
     Carper
     Clinton
     Conrad
     Dayton
     Dodd
     Dorgan
     Durbin
     Feinstein
     Harkin
     Inouye
     Jeffords
     Johnson
     Kennedy
     Kerry
     Lautenberg
     Leahy
     Levin
     Menendez
     Mikulski
     Nelson (FL)
     Obama
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Stabenow
     Wyden

                             NOT VOTING--7

     Biden
     Boxer
     Brownback
     Murray
     Roberts
     Rockefeller
     Stevens
  The nomination was agreed to.
  The PRESIDING OFFICER. Under the previous order, the President will 
be immediately notified of the Senate's action.

                          ____________________