Senators don’t just want Justice Department legal opinions on drone strikes or documents about last year’s attack on the U.S. consulate in Benghazi, Libya, as they consider whether to confirm John O. Brennan as CIA director.
They also want to know whether he will cooperate with the Senate Intelligence Committee on its information requests overall — and opinions are divided on whether he is likely to do so, based on his nomination hearing last week and his track record.
Brennan is scheduled to meet with the committee behind closed doors Tuesday, with a possible vote on his nomination Feb. 14.
It’s a sensitive issue for a committee where Brennan said at his Feb. 7 hearing that he heard loud and clear that a “trust gap” had opened up between the panel and the agency. Barbara A. Mikulski, D-Md., noted that she had been on the committee for 10 years and, with the exception of Leon E. Panetta, “I feel I’ve been jerked around by every CIA director,” she said. “I’ve either been misled, misrepresented, had to pull information out, often at the most minimal kind of way” by the others, Mikulski said.
“His lack of cooperation is a big problem,” one GOP aide said of Brennan. “And he definitely just outright refused to answer many of the questions. We have serious concerns about this willingness to provide us information in the future. If he won’t even give a straight answer when he wants to be confirmed, the answer after he’s confirmed is likely to be no.”
“I don’t think I’ve ever heard anyone more forthright or more honest or more direct,” she said at the close of the hearing. “You really didn’t hedge. You said what you thought. And I want you to know that, that’s very much appreciated.”
At least one veteran observer of the intelligence community saw a more evasive Brennan at the hearing.
“At several points he seemed to promise candor in a very evasive way,” said Steven Aftergood, the director of the Federation of American Scientists’ Project on Government Secrecy. “He would offer general commitments of cooperation while declining to make specific promises. The committee will have to decide if that’s the commitment they were looking for.”
Some of that, Aftergood said, had to do with the circumstances: As CIA director, he wouldn’t have the same responsibilities over what he could disclose as he does in his current role as the top White House counterterrorism and homeland security adviser. And, sometimes, there are legitimate reasons not to turn documents over to Congress.
For instance, in written answers to pre-hearing questions and during his hearing, Brennan defended the citation of “executive privilege,” and even anti-secrecy advocates acknowledge that executive privilege is a sometimes-important reason not to disclose information. For a committee inquiry related to counterterrorism implementation plans, Brennan wrote that he had talked to National Counterterrorism Center Director Matthew G. Olsen about not turning over documents that were “deliberative in nature” — with “deliberative process privilege” being one form of executive privilege.
“Senator, I think there’s a longstanding tradition understanding of respecting the executive privilege that exists in the office of the presidency and in terms of what information is provided to the president or advice, counsel, to him,” Brennan told Saxby Chambliss, R-Ga., when asked about documents Sen. Lindsey Graham, R-S.C., had sought related to Benghazi. Graham’s request had been denied after “national security staff” declared that there was “no response required.”
Although Chambliss pointed out that “national security staff” was Brennan’s “shop,” Brennan said the request about Benghazi was not made to him.
Other times, Brennan couched his answers in the specific parameters of what information Congress is entitled to under the National Security Act of 1947 — a law that has sparked many disputes between the committee and the executive branch over when the panel must be provided information and when the executive branch does not have to brief every member. For instance, Feinstein asked if Brennan would advocate for the committee to receive eight Office of Legal Counsel opinions it has sought.
“The National Security Act, as amended, requires that the heads of intelligence agencies provide the committee with the appropriate legal documentation to support covert actions,” Brennan answered. “I would certainly be an advocate of making sure that this committee has the documentation it needs in order to perform its oversight functions. I have been an advocate of that position. I will continue to be.”
Feinstein said she would take that as a “yes.”
Asked by Ron Wyden, D-Ore., whether he would tell him every country where drone strikes have been conducted, Brennan said “it would be my intention to do everything possible to meet this committee’s legitimate interests and requests.”
Other CIA nominees have also made similar kinds of conditional promises, Aftergood said, but the effect was amplified by some of the senators’ more pointed and specific questions about documents. “When you ask, ‘Will you agree to produce document X, Y, Z, that’s a more challenging question,” he said. “It’s not altogether surprising that he could not give a firm answer.”
Overall, Brennan said that the “trust gap” members of the committee told him about “would be wholly unacceptable to me” if he were confirmed as CIA director. If that meant sometimes telling the committee something it didn’t want to hear, so be it, Brennan said.
“I like to think that my candor and bluntness will reassure you that you will get straight answers from me, maybe not always the ones you like, but you will get answers and they will reflect my honest views,” he said. “That’s the commitment I made to you.”
Aftergood said that if it turns out Brennan as CIA director is not very candid, the committee does have tools at its disposal. For instance, if it doesn’t get Office of Legal Counsel opinions interpreting the law, the committee can change the law itself to specify what they want the executive branch to do, he said.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.