Congressional Record: April 7, 2006 (Senate)
Page S3363-S3366
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 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
[[Page S3364]]
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?
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.
[[Page S3365]]
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
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
[[Page S3366]]
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.
____________________
