WASHINGTON – Facing no opposition to his nomination, veteran federal prosecutor Kenneth Wainstein is waiting only for the Senate to confirm him as head of the Justice Department's new anti-terrorism division.
Wainstein's confirmation is being held up by a senatorial tradition that allows any one of the 100 members to keep the full Senate from voting on whether to confirm a nominee.
Sen. Carl Levin, a Michigan Democrat, has refused to budge on Wainstein's nomination, not because of any complaint about the nominee but to try to force the Justice Department's hand on another matter.
Levin has been pressing the Bush administration to supply more information from FBI agents who reported witnessing aggressive, at times abusive, interrogations of detainees at Guantanamo Bay, Cuba, a Defense Department facility.
It wasn't the Justice Department doing the interrogating, one department official said when asked about it, requesting anonymity because of continuing efforts to persuade Levin to allow a Senate vote.
Levin spokeswoman Tara Andringa would say only that Levin has been waiting more than a month for seven documents relevant to the Senate's consideration of Wainstein's nomination.
The president's intelligence commission last year called for the creation of a national security division within the Justice Department to combine counterterrorism and intelligence operations.
The unit was included in the Patriot Act renewal that President Bush signed in March. He chose Wainstein, the U.S. attorney in Washington and the former top lawyer at the FBI, to run it a week later.
But under the terms of the legislation, the new division can't spring to life until an assistant attorney general is confirmed to run it.
Democrats as well as Republicans have called on senators to confirm Wainstein quickly. The chairmen of the Sept. 11 commission, Republican Thomas Kean and Democrat Lee Hamilton, said the new position "will serve a critically important role in our national security apparatus."
Former Deputy Attorney General Eric Holder, who served in the Clinton administration, wrote Levin recently on behalf of Wainstein. "I can assure you that he is not an ideologue but only an attorney who cares a great deal about the rule of law," Holder said.
Wainstein is one of two high-level Justice nominees whom Levin is blocking over the Guantanamo interrogations. The other, Alice Fisher, was given a recess appointment by the president last year to run the department's criminal division.
Under the Constitution, the president may avoid the Senate confirmation process and make appointments while the chamber is in recess. Such appointments usually are short-term, expiring at the end of next congressional session.
Senators are about to embark on a monthlong break at the end of the week, but a recess appointment is not an option for Wainstein, Justice officials said. The legislation creating the new division requires its leader to be confirmed before it can start operating, they said.