Bush's new intel pick stalled in Senate

By SHAUN WATERMAN, UPI Homeland and National Security Editor  |  Dec. 4, 2005 at 9:11 PM
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WASHINGTON, Dec. 4 (UPI) -- The nation's new intelligence chief has told congressional leaders that he is "deeply troubled" by the delay in winning Senate confirmation for a key aide.

Delays in staffing up his office, Director of National Intelligence John Negroponte wrote to the leaders of the Senate, "are hampering my ability to carry out my critical responsibilities."

Negroponte, who began work in April setting up his newly created office as head of the nation's fractious gaggle of intelligence agencies, singled out the stalled nomination of his general counsel, Benjamin Powell, as "especially serious."

"I am deeply troubled that the (Office of the Director of National Intelligence) is forced to function without the general counsel position ... I am being denied my chief legal officer during a critical standup phase of a new office," Negroponte wrote to Senate Majority Leader Bill Frist, R-Tenn, and Minority Leader Harry Reid, D-Nev.

Negroponte's letter appears to bear out some recent concerns about the progress he has been able to make in pushing forward reform of the nation's intelligence agencies.

Not having Powell confirmed, he writes, "directly undermines my ability to carry out the mandate of" last year's intelligence reform law that created his post and a slew of other reforms designed to address the failings in U.S. intelligence revealed by the Sept. 11, 2001 attacks and the Iraq weapons debacle.

Powell's nomination was voted out unanimously by the Senate Select Committee on Intelligence in July, but has yet to receive a vote on the chamber floor.

Congressional staff from both parties told United Press International that Sen. Carl Levin, D-Mich., a senior member of several national security-related committees had put a hold on Powell -- an arcane parliamentary procedure through which a single senator can stall any nomination indefinitely.

Neither of Levin's press staff responded to telephone or e-mail requests for comment Sunday afternoon, but other Democratic Senate staffers have told UPI that Levin held up several nominations over the summer because he believes the Senate is being denied information it needs for oversight of the war on terrorism.

According to Senate staff, Powell's nomination has stalled over Levin's demand to see a document prepared in 2002 by the Office of Legal Counsel in the Justice Department, known as the second Bybee memorandum.

Written by then-Assistant Attorney General Jay Bybee, the memo reportedly contains a detailed consideration of the legality of a series of interrogation techniques -- including "water-boarding," where detainees are strapped to a plank and then made to believe they will drown.

Levin's supporters say the document, which formed the basis of administration policy on detainee interrogation for more than two years, is essential for the oversight work of the Senate, where several committees are probing allegations about detainee treatment.

Critics of the Bush administration's detainee policy see the memo as a "smoking gun" -- revealing that interrogation techniques widely regarded as illegal under international law and tantamount to torture were secretly authorized by senior officials in the Justice Department and White House.

Powell was working in the White House counsel's office at the time the memo was prepared and told Levin at his confirmation hearing in July that he had no knowledge of it.

Negroponte wrote Senate leaders that he and his deputy Gen. Michael Hayden, "have spoken multiple times" to Levin about the delay.

"We understand there is a long-running dispute," he writes, adding, "but it is unrelated to the nominee."

Powell's is the latest in a string of nominations that Levin has put holds on to try and leverage the production of documents he believes the Senate needs to do its oversight on the administration's conduct of the war on terror.

Over the summer, three nominees -- Alice Fisher, now head of the Justice Department's Criminal Division; Eric Edelman, a career diplomat and Undersecretary of Defense for Policy; and Assistant Secretary of Defense for International Security Policy Peter Flory -- all had to be given recess appointments after Levin blocked their confirmations in similar disputes, in Flory's case for more than a year.

Congressional Republicans say Levin is also blocking the nomination of Julie Myers to be head of Immigration and Customs Enforcement at the Department of Homeland Security -- again over document requests related to a government department where the nominee previously worked.

Administration officials insist they will continue to seek confirmation for Myers and Powell, but some privately concede that if Levin chooses to sustain his hold, there will be no alternative to two more recess appointments.

In the meantime, Negroponte's letter is likely to heighten concerns about the amount of progress he has been able to make pushing the reform process forward.

For the reformers behind last year's intelligence overhaul, the creation of the director's office was a means not an end. The law was supposed to empower the director to fix a series of systemic flaws -- too little information sharing; incompatible security clearance procedures; the absence of agreed standards for professional training and performance -- in the sprawling collection of oft-squabbling agencies referred to with more irony than accuracy as the nation's Intelligence Community.

But recently, a number of former intelligence officials and other commentators have begun to voice doubts about the effectiveness with which Negroponte has been able to move ahead with concrete steps on that broader agenda.

And some have suggested that the legislative language outlining the powers of the new director's office -- the creation of which was the law's headline reform -- is too convoluted or in other places too vague to allow him the kind of clout he needs.

"Authority is spread so thinly that no one can say yes and too many people can say no," wrote the commission's John Lehman of the new office in the Washington Post last month.

Negroponte's letter about Powell suggests that the new director might share some of these concerns. Powell, he writes, is "the very officer who is responsible for interpreting and ensuring legal compliance with the statute," and the Senate's failure to confirm him "is hindering necessary transformation of the Intelligence Community."

Negroponte also cites congressional testimony from Zoe Baird, "President of the bipartisan Markle Foundation," to the effect that the general counsel's post is "a particularly important position given the legal barriers and confusion cited by many as preventing implementation of" information sharing reforms.

Negroponte goes on to quote her has saying that the Intelligence Community is "almost paralyzed" by disputes about law and statute -- exactly the kind that it would be Powell's job to adjudicate, according to intelligence officials.

He also cites a recommendation of the "9/11" Commission that Congress did not act on, namely that there should be a Senate confirmation vote for national security appointments within 30 days of their nomination.

This, he notes, is "a timeframe that we are now far beyond in the case of Mr. Powell."

The full text of the letter, the existence of which was first reported by columnist Robert Novak, was placed on the Web site of the conservative National Review magazine by its White House correspondent, Byron York. UPI independently verified its accuracy.

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