Brennan CIA nomination clears panel. What did White House have to divulge?

The nomination of John Brennan to head the CIA had languished in the Senate Intelligence Committee. Panel members were keen to know about the legal defense of the secret US drone program.

J. Scott Applewhite/AP/File
CIA Director nominee John Brennan testifies on Capitol Hill in Washington during his confirmation hearing before the Senate Intelligence Committee, in February.

The Senate Intelligence Committee voted 12 to 3 Tuesday in a closed-door meeting to approve John Brennan’s nomination as director of the CIA. The Brennan nomination now moves to the Senate floor, where Democrats believe they have enough votes to win his confirmation.

The Brennan pick had been stuck in the panel for days. So here’s our question: What happened? Specifically, how much information on the secret US drone program was the White House forced to disclose to committee members to get the nomination moving?

The short answer here is that it appears the administration produced some, but far from all, of the documents it has been withholding from lawmakers on this issue. Human rights organizations on Tuesday continued to charge that the White House had not released nearly enough information about the basis for its belief that it is legal for the US to target terror suspects with armed unmanned aircraft.

President Obama must do more to prove that his administration is serious about human rights,” Zeke Johnson, director of Amnesty International USA’s Security with Human Rights Campaign, said in a statement issued just prior to the Brennan vote.

Let’s step back and explain the situation more fully. In recent days the key barrier to Brennan’s impending promotion has been the desire by many Intelligence Committee members for expanded access to the opinions drafted by the Office of Legal Counsel (OLC) at the Justice Department that justify targeted killings of terror suspects in far corners of the world.

Early on Tuesday the chairwoman of the Senate Intelligence Committee, Sen. Dianne Feinstein (D) of California, announced that she and the White House had struck a deal.

“I have reached an agreement with the White House to provide the committee access to all OLC opinions related to the targeted killing of Americans in a way that allows members to fulfill their oversight responsibilities,” Senator Feinstein said in a statement. “I am pleased the administration has made this information available. It is important for the committee to do its work and will pave the way for the confirmation of John Brennan to be CIA director.”

The key phrase there is “opinions related to the targeted killing of Americans.” On its face that appears to mean the White House will make available OLC documents related to the targeted killing of the radical cleric Anwar al-Awlaki. Born in New Mexico, al-Awlaki was killed in a US drone strike in Yemen in September 2011. Committee members indeed have been interested to see the Justice Department’s legal reasoning for the use of such targeted lethal force against an American citizen.

The White House also conceded that committee members needed to bring some staff members in to provide legal analysis of these documents. That’s the likely import of the phrase about providing information “in a way that allows members to fulfill their oversight responsibilities.” Lawmakers depend heavily on expert staff to brief them on issue details.

But there is nothing in Feinstein’s statement about the White House providing lawmakers a glimpse of the OLC opinions on targeted killings that involve non-Americans – which are the vast majority of such actions, after all.

Asked about whether the White House was continuing its close hold on important OLC documents, White House spokesman Jay Carney on Tuesday avoided answering.

“I can simply say that we have worked with the committee to provide information about ... legal advice on issues of concern to committee members and have done that, recognizing that this is a unique and exceptional situation,” Carney said.

It’s possible that the administration has a deal with lawmakers to show them a wider array of material than Feinstein disclosed. That’s not the most likely scenario, however. Attorney General Eric Holder is scheduled to appear before the Senate Judiciary Committee on Wednesday, and it’s possible he’ll get asked about the details of this agreement.

“Attorney General Holder should be pressed to say when members of Congress and their staff will have access to the full spectrum of OLC memos related to targeted killing and when those memos, with as few redactions as possible, will be made public,” said Daphne Eviatar of Human Rights First on Tuesday.

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