Remarks by Benjamin Powell
ODNI General Counsel

Standing Committee on Law and National Security
Thursday, June 22, 2006

STEWART BAKER: Good morning. I am Stewart Baker. I’m the chair of the Standing Committee on Law and National Security, and I’m delighted to see you all here, and I’m delighted to introduce our next guest, who has reminded me from time to time that I got him into much of this, and he’s certain – and including today’s discussion.

It’s a real pleasure to introduce Ben, in fact, who has had the ideal background for his current job, which is general counsel of the Office of the Director of National Intelligence. You’d want somebody for this job who had worked at the FBI and also done intelligence for the Air Force; who had background as a computer scientist, who had worked in the private sector doing – working for a start-up company doing data integration. You’d want somebody who had gone to law school and excelled, maybe clerked for a Supreme Court justice, such as Justice Stevens. And in Ben we have somebody who has done all of that well before the age of 40. He has also been the – an associate counsel to the president for several years, and brought all of that background to the effort to establish the Office of the Director of National Intelligence, and to establish a legal office that would oversee and provide legal advice across the board for intelligence issues.

We’ve asked him to talk a little bit about the challenges that have – he has encountered as he has tried to do that over the last several months, and this is his first opportunity in public to discuss some of those issues. So please give a warm welcome to Ben Powell.


BEN POWELL: Thank you, Stewart, for that kind introduction, and you did get me into much of this.

Good morning. I should note that Stewart, as part of his work with the WMD Commission – the Weapons of Mass Destruction Commission – took an in-depth look at many of the issues that were confronting the Director of National Intelligence in transforming the intelligence community, and the issues confronting a world threatened by terrorism and the proliferation of weapons of mass destruction. And as far as I could tell, Stewart apparently said, wow, that is hard, and I think I’ll go work in an easier area without controversy. (Laughter.) So now he deals with issues like securing our borders, reforming the immigration system, and dealing with how the government responds to natural disasters. So I don’t know what that says about the person who took the job as general counsel of the DNI.

But this morning I’m here to talk about the intelligence community. I do want to thank you for inviting me this morning to speak about the Director of National Intelligence and this new intelligence structure; and more specifically, the role of law and the general counsel’s office of the Office of the Director of National Intelligence.

And I’m going to try to stay this morning relatively acronym-free, which is always difficult when you’re talking about the intelligence community, so I’m going to try to stay away from acronyms like NIP, JMIP, TIARA, HSPD, EO, CARC, NCIX, NIC, TSP, or – my favorite – the PDDNI. (Laughter.) So – but I will use probably three acronyms this morning: DNI – Director of National Intelligence; IC, for intelligence community; and WMD for weapons of mass destruction. So if you catch me slip up, please let me know afterwards, and I’ll define any of the acronyms I may slip into. But it is always hard for those in the community to stay away from the acronyms.

First, a moment to talk about – to give you some context and talk about the global threat because it is important that we understand what is facing the intelligence community. The Director of National Intelligence, John Negroponte, has said that the most dramatic challenge of the last 25 years has been the exponential increase in the number of targets and topics that the intelligence community must identify, develop, track and analyze.

I think that statement is important to recall upfront to put our work in context. The law, and particularly national security law, does not operate in a vacuum. Rather, the laws that shape and govern the intelligence community are informed by the changing threat environment that we face. For the Director of National Intelligence, it was these modern threats that spurred our creation and animate all that we do.

A moment to talk about threat – the preeminent threat that we face today is terrorism, and although it is sometimes lost in the din of controversy, let’s be clear. U.S.-led counterterrorism efforts have seriously damaged the leadership of al Qaeda and disrupted its operations. These successes did not just happen; they have largely depended on intelligence of an almost exquisite quality.

While terrorism is the preeminent threat to our national security, the second major threat, proliferation of weapons of mass destruction, could easily become the primary threat if weapons of mass destruction fell into the hands of terrorists or other bad actors.

Here, too, only committed diligence has avoided what would be an unthinkable tragedy. Another threat to U.S. security is that of failed states. Too many states lack a monopoly on the legitimate use of force within their own borders. Too many foreign fighters or terrorists have free reign where laws cannot reach them. These situations harm not only the failed state itself, but threaten to destabilize whole regions. And let’s be clear: this increases the difficulty of determining what legal paradigm can apply in such a situation.

Just as recent history has seen a dramatic change in the nature of the threats that we face, so too are we adapting our government structures to meet and defeat those threats. There has been significant change since the attacks of 9/11, but in terms of the Director of National Intelligence, we start with the Intelligence Reform Act that was passed by Congress in 2004. Although many in this room know that the idea of a separate Director of National Intelligence had been debated literally for decades, the Act is the first, most far-reaching intelligence reform since the passage of the National Security Act of 1947.

The Intelligence Reform Act not only separated the positions of Director of Central Intelligence and Director of the Central Intelligence Agency, but it created a Director of National Intelligence as head of the U.S. intelligence effort, and gave him new legal authorities to create a functional, unified, true intelligence community.

And what are those legal authorities? I want to hit just a few highlights because I think it’s important to understand the basic mandates of a law that was passed by the House on a vote of 336 to 75, and by the Senate on a vote of 89 to 2, and then signed by the president. I do detect in a number of discussions that I participate in some divergence between what people think may have passed the Congress and what in fact did pass the Congress, so I wanted to hit on a few highlights there.

Per the Intelligence Reform Act, the Director of National Intelligence is empowered with full budget authority over the national intelligence program, and this is cradle-to-grave authority; that is, from developing a budget to monitoring the appropriations, to monitoring execution, to audit of the way the funds were spent. This is the full budget authority: procurement authority over major intelligence community systems; insuring compliance with the laws of the United States by the Central Intelligence Agency and other elements of the intelligence community; authority over collection requirements and tasking authority; authority over analysis, including the National Intelligence Council, which includes the senior officers of the analytical community who deliver the authoritative judgments of the intelligence community; creation of the FBI’s National Security Branch; responsibility for the National Counterterrorism Center, and many other authorities covering virtually every facet of the intelligence community, including personnel standards, training, security and clearances.

And in addition, the program manager for information sharing is now located within the Office of the Director of National Intelligence; again, far from an all-inclusive list, but just a few of the major items contained in this sweeping law.

So let’s pause for a moment to review the basics. We have an intelligence community that consists of 16 organizations, and I think it’s important that we name them all: the Central Intelligence Agency, the National Security Agency, Defense Intelligence Agency, National Reconnaissance Office, National Geospatial Intelligence Agency, and the intelligence elements within the Departments of State, Energy, Treasury, FBI, DEA, and Homeland Security; and then the intelligence elements of the uniformed services – Army, Navy, Air Force, Marines and Coast Guard.

We have an intelligence community of about 100,000 people. We have an intelligence community budget that of course is classified, but I think we can safely say it involves a significant expenditure of taxpayer money.

And now we have a Director of National Intelligence mandated by law to exercise full budget authority over this intelligence community, to set up a National Counterterrorism Center as the primary place for sharing terrorism information, to set personnel policies, to oversee the creation of the FBI National Security Branch in order to reorient a critical domestic capability, and stand up an office to support all of these goals at the same time he has to be accomplishing all of these goals.

So where does the general counsel fit into all of this? First and foremost, we work in support of the Director of National Intelligence as he leads the transformation of the intelligence community. That means every day we are interpreting the Intelligence Reform Act and giving guidance in areas ranging from intelligence collection, to analysis, to human resources, to information sharing.

Now that’s not very specific, so let me give a few examples. I think one of the major successes everyone would agree on has been the stand-up of the National Counterterrorism Center. NCTC, I think, is a transformative organization, and it will continue to further prove our counterterrorism capabilities and build on what was an incredibly innovative model as a successor to the Terrorism Threat Integration Center that was located prior to the NCTC being stood up at the CIA.

So let me give you a couple of statistics about what NCTC is doing. First, the National Counterterrorism Center assembles intelligence, information and analysis from 28 different government networks, and they distribute this information online to over 5,000 analysts around the world. Now all this information just didn’t happen because a law was passed or a directive was signed. We wish it was that easy. Behind this stood a tremendous amount of hard work. That means working through issues with agencies to ensure we could put in place these systems, working to get the personnel in place, the information technology systems going, policies written and coordinated, and all the other tasks that involve standing up a center. And this involved a tremendous amount of hard work by the general counsel’s office and by virtually all the other parts of the Office of the Director of National Intelligence. So we’re part of bringing all those pieces together, and much of that work is slogging through regulations and laws, and meetings, and making sure that we’re fully complying with all of those laws and regulations while at the same time keeping in mind our ultimate goal of improving our national security.

Let me highlight a few of the other accomplishments. First, we have new directives on civilian joint duty, on the intelligence community budget and major acquisition policy, and on the science and technology program, to name a few. We have the stand-up of the National Counterproliferation Center, which was also a part of the Intelligence Reform Act.

We have centralized many of the collection requirements involved in the national intelligence program across the community. We’ve done a – made improvements in both analytical standards and content, and we’ve had major accomplishments in the information technology and information sharing areas. As this crowd – as this audience would appreciate, I wish I could go into great specifics on each one of those, but it’s always difficult speaking in a public forum to explain exactly what the major wins have been in the information sharing and information technology areas.

But that leads to my second point in that – and all of these efforts were challenged because we’re trying to balance the day-to-day issues that face any general counsel’s office with strategic issues of the intelligence community. We don’t – it’s easy in the day-to-day crisis and the issue of the day that has to be faced to lose sight of some of the strategic issues that you need to keep focused on. I know the Weapons of Mass Destruction Commission talked at some length about this issue, so I think all of us in the office are cognizant of the need both to meet the day-to-day needs and requirements of our clients and customers, but at the same time, think strategically how is what we are doing – and what do we need to be looking at to bring further improvement to the community.

So we are trying to determine what are the legal impediments on the strategic level to improving the intelligence community, are there issues that we should focus on that can provide orders of magnitude improvements in the functioning of the community. And those are the types of questions that I’ve asked my staff to ask themselves and really animate all the tasks that we are doing.

The intelligence community; in particular, the legal community has faced some criticism in the past, and is known, I guess – has a bit of a reputation for being somewhat fond of memorandums of agreements, and memorandums of understanding, and various other interagency mechanisms, and those have their place. But I think they really do need to be (inaudible) for really the most significant events, and let’s not let every issue bog down in negotiations over complicated documents between 16 agencies that require, you know, 20 lawyers to understand and negotiate.

Third, we are setting the foundation to ensure that the intelligence community has standards, guidelines, budgets and procedures that lead to the best intelligence possible. Now this work is not operational, and in some cases – and in many cases it is not particularly glamorous. But I would argue it is critically important. This is where information sharing happens. This is where we make things happen and where the rubber really does meet the road.

Think of joint duty in the military, what that has led to in terms of joint operations and seamless integration of forces. That also did not just happen. There are hundreds of years of history of inner-service rivalry that you don’t hear much about anymore since Goldwater-Nichols and the idea of joint duty came up. That took both a law and a lengthy implementation of personnel policies and reorganization.

And aside from the process model that the joint duty example serves as, it’s also a staffing model for my office. Our attorneys come from across the intelligence community, including the Central Intelligence Agency, the Federal Bureau of Investigation, the Defense Intelligence Agency, the National Security Agency, the military and the Department of State.

These attorneys handle some of the most critical national intelligence issues across the community, and I think working on these issues will be an experience that I think will serve them well when they return to their home agencies. I am confident that in our office we are developing future leaders in the intelligence community. I know they are getting exposed to a broad range of community issues that will serve them and the country well in the future as they continue the important work of ensuring our government has the intelligence it needs to protect all of us. And all the while, they are ensuring that all of our actions are in full compliance with the Constitution and the laws of the United States.

I do want to close out my remarks by acknowledging the fact that we have men and women, both in and out of uniform, around the globe taking on dangerous assignments every day. These are brave Americans who are away from their families for long periods of time, engaging in dangerous but critical work. For many of them, especially those working in the intelligence community, the full story of their efforts and heroism may never fully be told. So while it is right and proper to keep discussing the transformation of the intelligence community and keep debating the merits and directions thereof, we must always remember that there are brave personnel taking tremendous risks around the world to protect our country, and I marvel at their deep courage and patriotism. Thank you.


MR. BAKER: Ben has agreed to take a few questions. We’ll have to end promptly by 9:00, but I think we’ve got time for several questions. Do we have questions from the audience?

Q: (Off mike.) I was wondering – I know there have been press reports about undertaking an effort to revise the rules on collection of information by the ICE in order to make them more uniform across agencies. And from the civil liberties perspective, you know, we are rightly concerned that the differentiations in the FBI – for example, in the CIA – (off mike) – and my question is whether or not that effort is either underway or under consideration, and if so, is there going to be some kind of opportunity for public and congressional input before the provisions would be announced?

MR. POWELL: Let me step back one moment and take that question as a whole. Actually, the commission that Stewart worked on, the Weapons of Mass Destruction Commission, one of their recommendations was that we take a look at what are called – what are colloquially known – and many in this audience will know them as the U.S. persons rules. These are guidelines governing the collection of information across the community. If you look back at some of the reports and inquiries before the Weapons of Mass Destruction Commission, if you look at the – one of the conclusions of course, a big conclusion of the 9/11 Commission was that you had foreign intelligence looking at foreign threats, you had domestic organizations looking at domestic threats but you didn’t have domestic organizations looking for the foreign threat abroad.

When you look at the joint inquiry of the Senate and House talking about collection problems and a lack of understanding, perhaps, of the rules, and also the 9/11 Commission and the stories that it told about the lack of understanding and confusion in the community about the nature of the wall between law enforcement and intelligence. And then of course Congress has passed some laws serving to lower that wall.

One of the recommendations of the WMD Commission was that we look at the U.S. persons rules and examine them and see if there was a problem with confusion in the community and whether we can make them more uniform. The president endorsed that recommendation, and we do have a group who is looking and reviewing those rules across the community to see what’s going to happen. So that is in the process right now. I think at my confirmation hearing I talked extensively about this and about the problem. And we’re in the middle right now of seeing what the problem is because I think defining the problem, it’s easy to say, well, let’s just change the law, or let’s do this, but part of this is making sure that the guidelines are clear and understandable, that you don’t need a law degree, if you’re an analyst, to understand them, or an information technology person. Is there additional training that is needed? Can we write them in a more clear manner?

So that is something that is underway, to see, is this something where we can provide improvement to the community? And I think I would pause to state that it is very clear, and the commission actually talked about this at some length, that what we want to do is make sure that everyone has an understanding of what the rules are so you don’t have a situation where people feel the rules are so complicated that they really can’t figure out what they’re supposed to be doing and what they’re supposed to be complying with. So we want to make sure that people understand, here is the law and here is how you comply with it, so people do not make a mistake in good faith but really have an understanding of it.

Of course, we have a civil liberties and protection officer – that was mandated by law – who is in the Office of the Director of National Intelligence who does outreach, both within the community and to public organizations. I know that we have met with people and discussed these issues with them. So I think we’re getting a lot of input from a lot of sources on this, and certainly we’re in very close touch with our congressional oversight organizations.

In the first 12 months of – just getting off the question now, but in the first 12 months of the Director of National Intelligence, I think the most recent statistic is we’ve done 660 congressional briefings and meetings. We’ve appeared at 43 hearings before 13 committees of Congress. So we do get a fair bit of congressional input on these issues.

So I hope that fully answers your question.

MR. BAKER: That would be a record if it weren’t for DHS. (Laughter.)

Suzanne (sp).

Q: I have a follow up on the tail end of Kate’s question because it relates to a broader point and question that I want to ask, and that is, we’ve seen the secrecy that is so essential to protecting operational details for the intelligence community expand to cover now novel legal theories and legal decisions that take us in new directions. And I’m wondering if – again, on Kate’s question – when you do finish this examination and analysis, will we know – will the public get to know if you’ve in fact taken a different direction, adopted new guidelines and policies on U.S. persons?

And then, more broadly, your thoughts on sort of how we manage intelligence law in a democracy and maintain the level of transparency that’s important. For example, do you see real problems with marking up the public law part of the Intelligence Authorization Act in public?

MR. POWELL: The first part of your question, Executive Order 12333, of course signed in the early ‘80s, serves as the basis for a lot of the guidelines for intelligence collection efforts. I think we’ve talked extensively in public about U.S. persons and the guidelines. I’ve certainly seen General Hayden – I’m familiar with much of his testimony on those subjects.

So I think there has been a lot of open discussion of it. Of course, Executive Order 12333 is a public executive order, and any amendments to that would be – I would expect to be public. You’re always going to have to balance it, though, because to the extent you have guidelines that are specific to operations or those types of things, you have issues, but uniformity is important, so you don’t want to create lots of special ones because then you get into the training issues and the confusion issues.

So I would not say right now that it’s determined that there needs to be a wholesale revision of any rules as opposed to additional training and perhaps more clarity in the rules. When you look at it – I think about people who reviewed this, and there has been a tremendous amount discussed on public about these. When you read all of there reports, this is not something that is very secretive or behind closed doors in terms of what those guidelines are and discussion of them are. I think you’ll see in the Senate and House Joint Inquiry Report and the 9/11 Commission Report and the WMD Commission Report a lot of concern about how things built up over time that perhaps were not mandated by law, or frankly, are people just confused about it and there needs to be additional training?

So, obviously if there are amendments or things that are needed through executive orders, those are done in the public forum.

As far as transparency, you know, I have not been in the community as long as some of the people in this room, but I’ve been in the community for over a decade on and off, and frankly I’ve never seen the level of discussion of the intelligence community that we have today in public, in public hearings, and I don’t think that’s necessarily a bad thing, but we do have to strike a proper balance, and to the extent we’re discussing operational details and putting really critical national security assets at risk, I don’t think that’s a good thing.

So it may be the nature of 9/11 and the fact that intelligence is so critical to the war on terror that it has caused such a public debate and it’s a function of the times and the history that we’re living in now, but I think, in my experiences since 9/11, there has really been an extraordinary amount of public discussion and inquiry and debate about a level of detail of the intelligence community – I think if you look back to the 1980s and 1990s, you simply will not find – I remember with the Weapons of Mass Destruction Commission Report, a lot of press questions about, well, is that going to be declassified, or is it going to be released publicly, or is there going to be just a two-page summary.

I think people were very surprised to see, you know, a 550-page report discussing virtually every facet of the intelligence community made public, and it has a tremendous amount of detail in it. I was kind of trying to strike that balance of operational details.

Q: Thank you. Elisa Massimino with Human Rights First. One of the things about which there has been a lot of public discussion is the interrogation standards. I know that – (off mike) – what the intelligence community does, but there was – part of that debate was some opposition – some strong opposition from the National Intelligence Agency to the McCain Amendment, part of the Detainee Treatment Act. And we’ve now seen a lot of discussion in the Defense Department about how to influence that – what does that mean with – (off mike) – operations? But we haven’t heard much about how that’s been operationalized in the intelligence – (off mike) – and I wonder if you can talk about your role in particular as the general counsel in ensuring the implementation of those standards. What does that mean? How have things changed and how has the legal guidance changed to recognize that standard?


MR. POWELL: First of all, you’re referring to the Detainee Treatment Act of 2005. Two pieces to that of course – well, there’s much more than two pieces to it, but I think two that are relevant to what you’re asking about – the first part talks about the Department of Defense and talks about the Army Field Manual. And I would say that, you know, the Department of Defense has great expertise in its manuals to guide its soldiers, and I don’t think that we could ever match that kind of expertise when you’re talking about field manuals that apply to the entirety of the Department of Defense. So we really looked to that, and they are the ones that have the real expertise about how to give guidance to their soldiers and how to write the field manual.

We do have – by law it mandates – the law is a bit interestingly worded, actually. It says, “Ensure compliance with the law by the Central Intelligence Agency and the elements of the intelligence community through the heads of departments containing those elements of the intelligence community.” So in our case I think we really do rely on the expertise of the Defense Department, and they’ve been the ones developing the Army Field Manual and any revision that may be released for that.

The second piece of the Detainee Treatment Act of 2005 of course puts into law what had prior been a part of the policy, which is no cruel, inhuman, or degrading treatment, and it goes further to define that phrase as conduct that would be prohibited by the Fifth, Eighth or 14th Amendments of the Constitution.

So you correctly noted, as I noted in my speech, we’re no operational. We are not there to be the oversight on particular operations or give directives about operations. There is a chain of command that is involved there, and frankly, we function more at the level of planned budgets, policies and procedures, but we do have the duty to make sure the intelligence community is complying with the law and is fully compliant with the Detainee Treatment Act of 2005.

So it is something that we monitor and make sure that the intelligence community overall is complying with all the laws, including the Detainee Treatment Act of 2005.

MR. BAKER: Last question? In the back.

Q: Good morning. Mary Louise Kelly with National Public Radio. My question concerns the several dozen high-level detainees – (off mike) – and others like him, who are being held outside the realm of law, and I wonder, from where you sit, do you believe that situation is tenable indefinitely, and if not, are you looking at ways to bring these people inside – (off mike)?

MR. POWELL: I think this audience of all audiences will appreciate that I can’t confirm and I can’t deny anything involving specific operational details or any allegations that you may have read about in the press. What I would say – a couple of things. I think the secretary of State spoke to this in her remarks upon departure for Europe. And when I say “this” I mean the overall issue of interrogation, unlawful combatants, and Guantanamo in December of 2005 and not necessarily the specific allegations of your question.

I would take a bit of an issue with implying that the intelligence community is acting outside the realm of law. The intelligence community does not operate outside the realm of law, and I think one of our most solemn obligations and duties it to make sure that the intelligence community is fully complying with the Constitution and the laws of the United States.

So, I’m sorry I can’t get into the specifics of your question, but I would take issue with any suggestion that the intelligence community is somehow operating outside the realm of law.

MR. BAKER: Thank you again for a very informative presentation.