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November 22, 2005,
5:20 p.m.
Is a Key Intel Nominee a Hostage in the War over the War?
A Bush appointment is tied up in the Senate.
As leading Senate Democrats continue to accuse the Bush White House of misleading the country into war in Iraq, the administration is becoming increasingly frustrated by the decision of some Democrats in the Senate to block what the White House believes are key moves in the war on terror. Specifically, John Negroponte, the director of National Intelligence — the post created by Congress in the rush to implement the recommendations of the September 11 Commission — appears to be losing patience with the Democrats, led by Michigan Sen. Carl Levin, who are blocking the nomination of Benjamin Powell to be the DNI's general counsel. There is no substantive objection to Powell, nor does anyone believe the director of National Intelligence should not have a chief lawyer. Rather, the Powell nomination appears to be the victim of Democratic anger at the administration over the treatment of suspected terrorist detainees.
National Review Online has obtained a copy of a letter sent by Negroponte to Senate Majority Leader Bill Frist and Minority Leader Harry Reid on November 8 in which Negroponte said the delay is "hampering my ability to carry out my critical responsibilities" and "directly undermines my ability to carry out the mandate of the Intelligence Reform and Terrorism Prevention Act." What follows is the text of the letter, in its entirety.
Director of National Intelligence
Washington, DC 20511
November 8, 2005
Senator William H. "Bill" Frist
Majority Leader
United States Senate
Senator Harry Reid
Minority Leader
United States Senate
Dear Senators:
You and the Senate Select Committee on Intelligence have been great supporters of the Office of the Director of National Intelligence (ODNI). You, along with Senators Roberts, Collins, Rockefeller, and Lieberman, were leaders for bipartisan reform of the Intelligence Community (IC) and were instrumental in ensuring that the Intelligence Reform and Terrorism Prevention Act (IRTPA) that was sent to the President contained the necessary authorities and responsibilities to ensure a strong Director of National Intelligence (DNI). Regrettably, delays in staffing the ODNI are hampering my ability to carry out my critical responsibilities. In particular, I strongly urge the Senate to confirm promptly Benjamin A. Powell to be the General Counsel of the ODNI. I, along with General Hayden, have spoken multiple times with the relevant Senator about the objection to proceeding forward to confirm someone to this position. We understand there is a long-running dispute, but it is unrelated to the nominee. In the meantime, the ODNI is without a General Counsel during the Office's crucial formative months.
I am deeply troubled that the ODNI is forced to function without the General Counsel position created by the IRTPA. This is especially serious given that I am creating a new organization with coordination and oversight responsibilities across the organizations within the IC. Unlike the case with many long-standing agencies where a staffed legal infrastructure is in place, I am being denied my chief legal officer during a critical standup phase of a new office. The nominee for the General Counsel position was reported unanimously out of committee some four months ago and has yet to receive a vote in the full Senate. The IRTPA assigns the DNI important responsibilities and authorities to ensure the effective and prompt implementation of the Act, and the General Counsel position is critical to pursuing this mission. As a result, the delay in Senate action is hindering necessary transformation of the IC.
Numerous outside experts and commissions have detailed the importance of the ODNI General Counsel and the difficulties caused by confirmation delays. Zoe Baird, President of the bipartisan Markle Foundation, recently testified before the House Permanent Select Committee on Intelligence that "Congress should move quickly to act on key positions that are pending confirmation, specifically noting that the ODNI General Counsel is "a particularly important position given the legal barriers and confusion cited by many as preventing implementation of the [Information Sharing Environment]." She further explained that the Intelligence Community is "almost paralyzed by the people who say the new laws are inconsistent with the old statutes or the old security regimes that it's their responsibility to enforce." The 9/11 Commission also discussed the dangers caused by vacancies in national security positions and argued that such problems must be minimized "[s]ince a catastrophic attack could occur with little or no notice." The Commission recommended that Senate confirmation votes for national security nominees occur within 30 days of their submission — a timeframe that we are now far beyond in the case of Mr. Powell.
The WMD Commission further emphasized the importance of the General Counsel position in implementing the new intelligence reform laws. That bipartisan Commission noted that: "Throughout our work we came across Intelligence Community leaders, operators, and analysts who claimed that they couldn't do their jobs because of a "legal issue." On a hopeful note, the Commission then noted that, "The recent creation of a DNI General Counsel's Office will increase the probability that Community legal issues are addressed more seriously." Regrettably, the delay in confirming Mr. Powell is directly frustrating this envisioned solution.
Vice Chairman Rockefeller's statement at the Senate Select Committee on Intelligence nomination hearing for Mr. Powell also noted the importance of having a confirmed General Counsel. Senator Rockefeller stated unequivocally "The General Counsel of the Office of the DNI must play a vital role in assisting the DNI in fulfilling [the] major responsibility [of ensuring IC compliance with law]. I wholeheartedly agree with the Vice-Chairman that this is a "vital" position that calls for Senate action as soon as possible.
The nominee to this position is uniquely qualified. He has a background well suited to the needs of the position, having served in a non-legal capacity in elements of the IC prior to law school — including service in the FBI, in the Air Force supporting joint intelligence centers — and playing an important role in the ongoing transformation of the IC. He complements this intelligence experience with a stellar legal resume that includes clerkships with Associate Justices John Paul Stevens and Byron White of the Supreme Court of the United States, in addition to his distinguished private and public legal service.
This delay is more than an unfortunate impasse. This is a delay that directly undermines my ability to carry out the mandate of the IRTPA by preventing the confirmation of the very officer who is responsible for interpreting and ensuring legal compliance with the statute. As the President has stated concerning the importance of dealing with intelligence reform, "[w]e face a new and different kind of enemy. The threats today are unprecedented. The lives of our citizens are at stake. To protect them, we need the best intelligence possible, and we must stay ahead of constantly changing intelligence challenges." I urge the Senate to act immediately on this position and provide the continued bipartisan support for the implementation of the IRTPA and the DNI that is critical to improving our country's national security.
Sincerely,
John D. Negroponte
cc: Senator Pat Roberts
Senator John D. Rockefeller IV
— Byron York, NR's White House correspondent, is the author of the new book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President — and Why They'll Try Even Harder Next Time.
