Secrecy Dispute Snarls Nomination

Wainstein in Limbo Over FBI Memos

Six months after President Bush chose him to lead a new anti-terrorism arm of the Justice Department, Kenneth L. Wainstein is still U.S. attorney for the District -- his nomination stalled by squabbling in the Senate.

Wainstein, a longtime prosecutor and former FBI official, had seemed on track to become the assistant attorney general for national security. Two Senate committees -- Judiciary and Intelligence -- endorsed his nomination. But for more than two months, he has awaited a vote by the full Senate.

Sen. Carl M. Levin (D-Mich.) has blocked a vote because the Justice Department has not turned over to him several FBI documents that are connected to the abuse of detainees at the Guantanamo Bay prison in Cuba -- papers that would have passed through Wainstein's office when he was at the FBI.

The delay creates uncertainty not only at the Justice Department but also at the U.S. attorney's office, which Wainstein has led since May 2004. The office, which handles federal and local cases, is the largest U.S. attorney's office in the nation.

The national security division, created this year as part of the revision of the Patriot Act, will consolidate into one operation three branches of the Justice Department: counterterrorism, counterespionage and the office that oversees applications to the secret Foreign Intelligence Surveillance Act Court.

Wainstein was a top aide to FBI Director Robert S. Mueller III from 2002 to 2004, serving first as general counsel and then as the agency's chief of staff. In each job, he played a key role in the bureau's restructuring to focus more heavily on terrorism cases.

Now Wainstein's work at the FBI is the subject of scrutiny by Levin, a member of the Senate Select Committee on Intelligence who has focused considerable attention on the detention practices at Guantanamo.

The senator's stance has drawn criticism from the Bush administration.

"As we mark the fifth anniversary of September 11th, it is beyond belief that Senator Levin would single-handedly obstruct the Department of Justice's efforts to stand up a new national security division," Justice Department spokesman Brian Roehrkasse said.

Levin's position has frustrated even some allies, who have urged the Senate to move forward with a vote. Thomas H. Kean and Lee H. Hamilton, the chairman and vice chairman of the 9/11 commission, have written in support of Wainstein. Charles S. Robb, a Democrat and former senator from Virginia whose commission on weapons of mass destruction recommended the restructuring of national security operations, wrote as well in support of Wainstein.

At issue are several documents that were sent to or from Wainstein or his deputy after FBI agents at Guantanamo reported witnessing sometimes abusive interrogations of detainees. The documents came to light after the American Civil Liberties Union filed a request under the Freedom of Information Act, but only in redacted form to the ACLU. Levin wants to see the original documents without redactions. Only one has been turned over, and that led to the stalemate.

Roehrkasse said the documents that Levin is seeking have nothing to do with Wainstein's qualifications for the assistant attorney general job.

Wainstein, 44, was easily confirmed by the Senate to take the U.S. attorney's job. But this nomination has been complicated.

"He's an innocent hostage in what is a pretty typical congressional response," said Norman J. Ornstein of the American Enterprise Institute.

Such tactics are not new, Ornstein said, but the secrecy of the Bush administration has made them more likely to be used. The White House has advocated a more expansive doctrine of executive authority, and critics have complained that Congress has failed to exercise meaningful oversight over the administration's military and intelligence actions.

Levin, a lawyer, has been pressing hard for answers about Guantanamo, and Wainstein's nomination offered the senator perhaps his best opportunity to pressure the administration. Because it is a newly created position, the national security job cannot be filled by a recess appointment, as the president has done in other instances in which a nominee has been blocked.

If the Senate does not act on Wainstein's nomination before it adjourns at the end of the year, Wainstein would have to be nominated once again.

Wainstein declined to comment on his fate. A leading candidate to replace him as U.S. attorney, Jeff Taylor, is also in a holding pattern. Taylor is a legal adviser to Attorney General Alberto R. Gonzales and a former assistant U.S. attorney in San Diego.