- The Washington Times - Sunday, July 24, 2005

A senator has urged the nominee for chief legal officer for the new director of national intelligence to “step right up to” the edge of legality on matters concerning domestic and international spying, saying the war against terrorism justifies stretching the law to its limits.

Benjamin Powell, nominated as general counsel for the office of the director of national intelligence, appeared last week before the Senate Select Committee on Intelligence and promised a thorough review of the policies and procedures of the nation’s intelligence agencies, including those designed to protect the rights and privacy of Americans.

Sen. Pat Roberts, Kansas Republican and panel chairman, reminded him that “the lawyers of the intelligence community now play a significant support role” in counterterrorist missions.

Mr. Roberts repeatedly urged Mr. Powell to guard against “overly cautious and inaccurate interpretations” of the legal and constitutional restrictions on the work of U.S. intelligence.

Such rules “not required by our Constitution or our laws sometimes can be more dangerous to our national security than the rare violations of law [by intelligence officials] that should be punished,” Mr. Roberts said.

“The challenge today is not so much keeping intelligence officers from stepping across the legal line — no one wants that — but [rather] getting them to even come close to those lines,” the senator said.

“I expect the lawyers of the intelligence community — along with its analysts and operators — to step right up to those lines,” Mr. Roberts concluded. “Don’t go over them, but step up to them.”

Mr. Powell responded that the new director’s office — as part of the administration’s response to the report by the presidential Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction — was reviewing the rules and procedures, which govern the activities of U.S. intelligence agencies.

One focus of the review, Mr. Powell said, would be the rules that limit agencies’ authority to collect and share intelligence about “U.S. persons” — meaning American citizens and legal permanent residents.

He said the review would focus on striking a “proper balance between the national interest in the collection, dissemination and maintenance of intelligence, and the national interest in protecting the legal rights of all U.S. persons.”

If he were confirmed, Mr. Powell told the committee, he would work with U.S. intelligence agencies “to review and, as necessary, revise current procedures to ensure such a balance.”

The procedures he was referring to, another official from the director’s office said after the hearing, were those that implement the general principles governing U.S. intelligence laid down by President Reagan in 1981 in Executive Order 12333.

Each agency, the official said, has rules, operating procedures and guidelines approved by the attorney general that implement those principles.

“In many agencies,” the official said, “those procedures date back to 1981.”

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