Strangle holds: does the Senate realize we are at war?

'THIS post is too important to leave vacant any longer, especially during a war," President Bush declared, announcing his recess appointment of John Bolton to the U.N. ambassadorship. Bolton, who was stalled for months by a high-profile Senate filibuster, is finally at his post in Turtle Bay, but crucial nominees to the Defense and Justice Departments remain in a low-profile limbo, at the mercy of senators who are blocking their nominations because of assorted beefs with the Bush administration. The executive branch might have a war mentality, but it's September 10, 2001, in the Senate--where partisanship, politics, parochialism, and--in Sen. Trent Lott's case--Pascagoula remain paramount.

"For the Senate to conduct business as usual with the nation at war, especially at Justice and Defense, is so outrageous," says a frustrated administration official, regarding the stalled nominations. "They do not see the nation at war; that's a real difference between this president and Congress."

The Senate recessed for August without confirming nominees for either the number-two spot at the Defense Department, or its undersecretary for policy. The assistant secretary for international security policy, whose nomination has been pending for over a year, also wasn't approved. John Negroponte, the director of national intelligence, remains without a general counsel; the nominee to the post is waiting in the ether. The Justice Department's criminal division has been without a chief for three months, despite personal pleas from attorney general Alberto Gonzales to confirm the nominee during a crucial period in international terror investigations. The disputes that have blocked these confirmations have nothing to do with the nominees' qualifications or suitability.

While there is no Senate rule that permits a single senator to stall indefinitely the approval of a nominee, senators are able to delay a confirmation vote by placing a "hold" on pending nominations. A hold indicates that a senator wants notification that a nominee is going to be considered on the floor and serves as a threat to filibuster final action by the Senate. A senator's bluff is rarely called; typically, he is persuaded to lift his hold after negotiations over the dispute that prompted it.

A Senate veteran explains that while a hold on an administration's nominee can be a useful tool to "bring cabinet members down to earth and make them more responsive to the legitimate concerns of Congress," they are clearly subject to abuse.

Sen. Carl Levin of Michigan, for example, placed holds on Peter Flory, nominated over a year ago to be head of the DoD office responsible for nuclear policy, nonproliferation, and arms control (a position that had itself been vacant for a year), and Eric Edelman, a career diplomat who is slated to replace Douglas Feith as DoD's undersecretary for policy. Levin doesn't object to the nominees he's single-handedly stalled: He's held them hostage to pressure the Pentagon into releasing more documents related to prewar intelligence. "It's a pity this is the way the Senate has to deal with this administration," he told the Washington Post. But the Senate as a whole doesn't share his view; both nominees enjoy broad bipartisan support.

The Pentagon explains that Senator Levin has been given "significant volumes of documents" and points out that the Senate Select Committee on Intelligence has thoroughly reviewed the Defense Department's role in analyzing prewar intelligence. An angry GOP Senate aide sees only partisanship in Levin's obstruction: "He's saying 'bring me more truckloads of documents' while others fight the war." An administration source points out that "senators have no responsibility for running the war; they only get to kibitz [about] it."

When the Senate recessed in August without confirming Peter Flory, the president used a recess appointment. Sources expect Bush to do the same with Eric Edelman.

Navy secretary Gordon England's nomination to replace Paul Wolfowitz as deputy secretary of defense was stalled for months over concerns about his private-sector pension, owing to the Senate Armed Services Committee's idiosyncratic conflict-of-interest policy. After frustrating months of delay, committee chairman John Warner finally put the pension concerns aside, noting that "the secretary of defense deserves a full deputy in wartime, although the issues have not been resolved." But England's confirmation was again blocked as it was heading out of the committee. Senate tradition permits anonymous holds, and Sen. Olympia Snowe admitted that she was responsible--which leaves Don Rumsfeld without a permanent right-hand man. The Maine senator is holding Gordon England hostage to protest the Pentagon's proposal to close the Portsmouth Naval Shipyard.

In his perennial protest over anything that threatens a single federal dime to Pascagoula's shipyards, Mississippi Sen. Trent Lott placed a hold last March on the designated chairman of the Pentagon's congressionally approved Base Realignment and Closure Commission (BRAC). President Bush quickly used recess appointments to install the chairman and eight commission members, who have only a few months for hearings and consultations before submitting a final list of recommended closures and consolidations. Even during a war, Lott tells audiences back home that he doesn't feel beholden to anyone in Washington after being deposed as majority leader. "I feel perfectly at liberty now to shoot at anyone," he reportedly told local Rotary Club luncheon guests recently.

The legal front in the War on Terror has also sustained casualties at the hands of individual senators. The top job in the Justice Department's criminal division has been vacant for three months. Alice Fisher, who served as deputy to Michael Chertoff when he headed the office, was nominated to the post in early April. Fisher easily cleared the Judiciary Committee, but a hold was placed on her nomination by none other than Carl Levin. "Void at Justice," a Newsweek headline blared. Justice Department officials talked about the "serious vacuum at the upper levels of the department" during probes of the London and Egypt bombings.

In Fisher's case, Levin refuses to be satisfied that she knew nothing about FBI criticisms of alleged interrogation methods at Guantanamo Bay. Yet Fisher had in fact left the Justice Department almost a year before an agent raised concerns in a May 2004 e-mail. (Levin is demanding an interview with the e-mail's author.) In a show of bipartisanship, Sen. Charles Grassley, an Iowa Republican, also had a hold on the Fisher nomination while he tormented the FBI over issues completely unconnected to her.

Levin has yet another hold--on Benjamin Powell, who was nominated to be John Negroponte's general counsel in June. This hold is particularly vexing: The legal impediments to intelligence-sharing are among the thorniest problems facing the reorganized intelligence community.

A final example: With James B. Comey's departure this month from the post of deputy attorney general, the White House has nominated Timothy Flanigan, who was deputy White House counsel under Alberto Gonzales, to replace him. Flanigan was general counsel for Tyco International after leaving the White House in 2002, and during his confirmation hearing in July, Sen. Dick Durbin raised questions about a lobbying connection Tyco had with Jack Abramoff, the controversial lobbyist currently under investigation for unrelated dealings. The temptation to score political points by attempting to link Flanigan, a former Supreme Court law clerk, with the beleaguered lobbyist might prove irresistible to Democrats--and thus result in a further hobbling of the Justice Department with still another hold.

In war, an enemy will sometimes take hostages to secure an advantage. But in the Senate it's worse: Even purported allies will do it.