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Saxby C.
Former Republican GA
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    Executive Session

    by Former Senator Saxby Chambliss

    Posted on 2013-03-07

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    CHAMBLISS. Madam President, I rise to explain why I am opposing the nomination of John Brennan to be the next director of the Central Intelligence Agency.

    First, I wish to say I thank the chairman for her kind comments. Let me state, as they had reiterated, we had 2 great years where we accomplished a great deal. She is one tough gentle lady, particularly when it comes to the national security of the United States.

    It has been a pleasure to work with her. It is rare we ever disagree, because we both have the same end result in mind, which is to make sure America and Americans are safe, secure, and the intelligence community is doing its part to ensure that happens.

    Her leadership has just been amazing. We have produced authorization bills over each of the last 2 years--we have actually done four in 2 years, which indicates there was a backlog of those authorization bills.

    We have also reauthorized FISA and some other measures which equip our intelligence community as well as our law enforcement community with the tools they need to combat terrorism. It is because of her leadership we have been able to do that.

    [[Page S1252]] When we do disagree, it is kind of an unusual situation. We may have disagreements in a bipartisan way within our committee. This is good. It is healthy.

    Sometimes Democrats will side with me or Republicans will side with the chairman on an issue. This shows us people are voting with their hearts and what they think is in the best interests of America, not from a partisan standpoint.

    I attribute that to the leadership of Chairman Feinstein because of her openness and for allowing bipartisan participation in a fine way.

    I expect Mr. Brennan is going to be confirmed by the Senate. I would have liked to have supported his nomination.

    Unfortunately, I have significant concerns about several matters I simply cannot put aside. If confirmed, Mr. Brennan will interact extensively with the Senate Intelligence Committee and in particular with Chairman Feinstein and with myself as the vice chairman. He will have many opportunities over the next several years to alleviate my concerns, and I hope he does so. At this time, I cannot support placing him in a position so vital to our national security mission.

    During the confirmation process, including during the open hearing, I, along with other members, asked Mr. Brennan questions about the leaks of classified information, issues involving congressional oversight, interrogation, and detention matters. His responses to many of these questions were very troubling and raised new concerns about Mr. Brennan's judgment, his reluctance to commit to transparency with Congress, and ultimately his candor. Let me describe these concerns more fully.

    First, I am deeply disturbed by Mr. Brennan's responses to the committee regarding leaks of classified information, especially the disclosure relating to the AQAP underwear bomb plot thwarted in May of 2012. Mr. Brennan acknowledged to the committee he had told four media commentators we had ``inside control'' of this bomb plot but disputed assertions that this disclosure resulted in the outing of a source. It is undeniable that the day after his disclosure, there were dozens of stories in the media stating the plot was foiled by a ``double agent'' or ``undercover agent'' who posed as a willing suicide bomber.

    Mr. Brennan is poised to serve as the head of the Nation's leading spy agency where he will be privy to some of the most sensitive, if not all of the most sensitive, and highly classified operations being conducted by the intelligence community. That he apparently thinks he did nothing wrong in this disclosure is very troubling, to say the least.

    We all know there is a big problem with leaks of classified information. We constantly deal with it in the committee and seek to eliminate it. We cannot effectively hold accountable those responsible for such leaks if a senior government official appears to shrug off his own damaging disclosure. I hope Mr. Brennan will reconsider his position on this case and convey to those he expects to lead, not just in words but by his own example, the importance and necessity of maintaining the secrecy he will be sworn to uphold.

    Second, Mr. Brennan appears to be one of the architects of the administration's current detention policy--or better stated, lack thereof. Since the President signed the Executive orders in 2009 disbanding the CIA's detention and interrogation program and ordering the closure of the Guantanamo Bay detention facility, many of us have been asking the administration to tell us what their new detention policy is. Unfortunately, in the years since, we have seen a most unsatisfactory response play out in ways that I believe are detrimental to our collection of timely intelligence and, ultimately, to our national security.

    We have seen a disturbing trend of returning to the pre-9/11 days when bringing criminal charges against terrorists was a preferred course rather than long-term detention, which allows for greater intelligence collection. Because of this preference, the 2009 Christmas Day bomber, Umar Farouk Abdulmutallab, was read his Miranda rights 50 short minutes after being pulled off the airplane that he had just tried to bomb. It took 5 weeks before he would again cooperate and no one knows what intelligence might have been lost during that delay.

    Somali terror suspect Ahmed Abdulkadir Warsame was held on a naval ship and interrogated for 60 days before being brought to a Federal Court, all because the administration refused to send any more detainees to Guantanamo Bay.

    Even in the months before the Osama bin Laden raid, other than saying Guantanamo Bay was off the table, administration officials could not tell Congress where bin Laden would be held if he were captured.

    Most recently, Ani al-Harzi, the only person held in connection with the September 11, 2013, attacks in Benghazi that claimed the lives of four Americans, was released by the Tunisians and is now roaming about free because this administration would not take custody of him unless criminal charges could be filed here in the United States.

    Mr. Brennan is not merely a staunch and unapologetic advocate of this misguided policy, he is the driving force behind it.

    By criminalizing the war on terrorism, this administration has tied the hands of our intelligence interrogators and appears to be avoiding opportunities to capture terrorists in favor of just killing them or relying on our foreign partners to do our intelligence collection for us. Mr. Brennan disputes this assertion and testified that he was not aware of any instance in which we had the opportunity to capture a terrorist but took a lethal strike instead. But his testimony on this point appears to be particularly incredible. While reasonable minds may differ as to whether bin Laden should have been taken alive, to argue that he could not have been taken alive and captured is not believable when his wives and children were left behind during the raid. The truth is the administration simply had no plan to capture him.

    Now, while in this case of UBL, killing him probably was the best option, I believe that all options have to be on the table and utilized when appropriate; otherwise, we are potentially losing valuable intelligence. Yet Mr. Brennan's testimony before the Intelligence Committee made clear that he is fully satisfied with how detainees are currently being handled and he is insistent the CIA remain out of the detention business, even if it means we do not get direct or timely access to detainees.

    Thirdly, Mr. Brennan continues to insist that he conveyed to colleagues at the CIA his personal objections to the CIA's interrogation program. Yet not a single person has come forward to validate that claim. And Mr. Brennan still refuses to identify those colleagues, in spite of several direct requests by the Intelligence Committee. During the time in question, Mr. Brennan served as the CIA's Deputy Executive Director. We know he was privy to information about the program, as we have seen numerous documents he received during and after the interrogation of Abu Zubaydah.

    It is not just reasonable, it is expected our intelligence professionals, especially those in leadership positions, will speak up when they see actions they believe are harmful to the agency or to others. Yet by Mr. Brennan's own account, he stood by and let the CIA proceed down a path that he says he believed to be morally wrong and likely to harm the long-term reputation of the CIA. This is not the moral courage we expect, especially from those who are in a position to influence policy and operations. Unfortunately, Mr. Brennan continues to insist that his official silence was entirely appropriate, and I could not disagree more.

    I am also troubled by Mr. Brennan's apparent willingness to scuttle years of belief in the value of the information obtained from the CIA's interrogation program simply because the recent interrogation study conducted by the committee's majority staff found otherwise. In my view, the study is significantly flawed, not the least of which being that not a single intelligence community witness was interviewed. I am worried about the impact Mr. Brennan's reversal will have on the morale of those current CIA employees who were involved in the program and whose own judgment and reputations are called into question by this study.

    [[Page S1253]] I expect when the CIA returns its comments to the Intelligence Committee about the accuracy of the report that Mr. Brennan will not let his personal views of the program interfere with the professional assessment and analysis of CIA employees.

    Finally, underlying all of these issues are the principles of candor and transparency with Congress. Our Nation was founded with three coequal branches of government, each one providing checks and balances over the other in a manner specified in the Constitution. Federal law also imposes explicit obligations on the intelligence community, such as keeping Congress fully and currently informed of significant intelligence activities. Ordinarily, during confirmation hearings, nominees unequivocally pledge their cooperation to Congress. Yet during his confirmation process, Mr. Brennan refused to give affirmative answers when asked to commit to such cooperation.

    For example, he pledged to only give ``full consideration'' to any request that the committee be provided with raw intelligence, even though the committee has been given such intelligence in the past. When asked about the inexcusable problems the committee has faced in trying to obtain documents about the Benghazi attacks, Mr. Brennan promised only to try to reach an accommodation with the committee if a similar situation should ever arise again. This is hardly encouraging. Some may say that Mr. Brennan was simply being honest and not overpromising. I might agree but for the fact this pattern of obstruction and lack of cooperation is becoming all too familiar to the committee, and Mr. Brennan has been involved in many of the decisions to withhold information from Congress.

    For example, when the National Counterterrorism Center was created, Congress gave it specific responsibility to serve as the primary organization for strategic operational planning for counterterrorism. For too long the committee has been refused full access to the resulting counterterrorism strategies, a decision for which Mr. Brennan is directly responsible. Rather than give us the strategies, the administration has proposed an ``accommodation'' to simply brief the committee, but as of today we still have not been briefed, even though we are asked to fund the strategies as well as their implementation.

    There are other examples, including the absurd restrictions that were recently placed by the White House on the review of the OLC opinions regarding lethal strikes on U.S. citizens. It is incomprehensible that Congress is being denied unfettered insight into matters concerning the intentional killing of U.S. citizens.

    During the confirmation process, Mr. Brennan called on the Intelligence Committee to be the protector and defender of the CIA. That is not an accurate description of the committee's role. Given the classified nature of intelligence activities, the committee serves as the eyes and ears of the American people, and our responsibility lies first and foremost to them. That is not to say we will not defend the CIA or the rest of the intelligence community against unjust attacks. We will. But the committee's primary role is to conduct oversight, and we cannot do that effectively without full cooperation from the intelligence community as well as the administration. I hope and expect Mr. Brennan will now give us that cooperation rather than just what he views as an accommodation.

    The Director of the CIA has extensive and direct interactions with Members of Congress, especially those of us on the Intelligence Committee. During sensitive operations or times of crisis, the Director is often one of the first to communicate with Members. There have been too many instances in the past--under administrations of both parties-- in which facts were withheld from Members or information was painted in a particular light to suit messaging needs, as we saw with the Benghazi talking points. That is simply unacceptable.

    If confirmed as the CIA Director, Mr. Brennan's credibility must be unquestionable. We expect our spy agencies to be very good at hiding the truth--but not with Congress. Here too Mr. Brennan will be an example that all CIA employees look to, and his own standards of honesty and credibility in dealing with Congress must be above and beyond all reproach.

    In conclusion, let me say that I have great confidence in the men and women at the CIA. Each and every day they give this Nation their best, and for that we are most grateful. They are the most professional, best educated, and best operational intelligence agency in the world. They are unbelievable men and women. My vote today is not a message to them nor is it an indication of the faith I have in the CIA. My vote is not personal toward Mr. Brennan; rather, it simply reflects my belief that the unauthorized disclosure of classified information is wrong regardless of whether you are on the front lines or you are an adviser to the President.

    My vote also reflects my belief, especially at this time in our history, that the Director of the CIA should not support detention and interrogation policies that are returning us to the pre- 9/11 days of elevating criminal charges over intelligence collection. In my view, Mr. Brennan is on the wrong side of both of these issues.

    I also believe Congress must be an equal branch of the government, and this growing trend of refusing to cooperate with Congress must end. The future and security of our country depends on all of us working together. To do that well, there must be transparency and honesty. If confirmed as the CIA Director, Mr. Brennan has a tough job ahead of him. If he abides by these principles, he will find his job will be much easier, as he will have earned the support and the trust of Congress, and the country will be better off for it. Assuming confirmation of Mr. Brennan, he will have my full cooperation and support, I expect nothing less from him, and I hope that all of my concerns will be put to rest.

    With that, Madam President, I yield the floor.

    Mr. UDALL. Madam President, I am voting today for the confirmation of John Brennan to head the Central Intelligence Agency, CIA. He is a qualified nominee, and this position is too important to our national security to remain vacant. Mr. Brennan is a 25-year veteran of the Central Intelligence Agency. He has been an able adviser to President Obama and part of some of the most important national security decisions made during the last 4 years, including the raid that killed Osama bin Laden.

    John Brennan should be confirmed as CIA Director. While I am supporting his nomination, I want to make one thing clear: I am not satisfied by the administration's limited disclosure of documents outlining the legal justification for an extraordinary authority--to target and kill American citizens in the course of counterterrorism operations. I first called on the administration to provide Congress with its legal justification in September 2011. This was after a remotely piloted aircraft strike in Yemen killed Anwar al-Awlaki, an American-born citizen. It was clear that al-Awlaki was a senior al- Qaeda leader who posed a threat to American lives and deserved his fate. Nevertheless, we are a nation of laws. Congress has a vital oversight role and shared national security responsibility. We are entitled access to full legal justifications for the President's authority to target and kill an American citizen, and an explanation of what limits there are to that authority. These legal precedents are constitutional issues of the highest order.

    Last month, eleven United States Senators from both parties-- including myself--sent a letter to the President requesting the release of all legal opinions justifying his authority to authorize the killing of American citizens as part of counterterrorism operations. There has been some progress. The Justice Department recently provided many of these documents to members of the Senate Select Committee on Intelligence. However, I believe all of us in the Senate should be able to review these documents and fulfill our constitutional duty to conduct rigorous congressional oversight. While I will support John Brennan's confirmation today, I will continue to seek access to these legal opinions so that the Senate can fulfill its responsibility.

    Since the attacks on September 11, 2001, both Presidents Bush and Obama have claimed expansive wartime executive authorities that have been supported in Justice Department legal [[Page S1254]] opinions. We saw this in the previous administration with the issues of detainee interrogation methods and extraordinary renditions. While we recognize the administration's authority to target and kill enemy combatants, the targeting of American citizens in counterterrorism operations raises important constitutional questions. Congress shares constitutional authority for national security matters, and we must be allowed to conduct oversight, which, in this case, includes reviewing the legal justifications of the executive branch. When there is no oversight, abuses can occur. And I believe that every administration must be held accountable, regardless of which party controls the White House.

    Mr. LEVIN. Madam President, I continue to have some concerns about John Brennan, the President's nominee to serve as the next Director of Central Intelligence.

    First, I am troubled by Mr. Brennan's unwillingness to state unambiguously that waterboarding is torture. At his hearing before the Intelligence Committee, I asked Mr. Brennan this question three times without getting a direct answer: SENATOR LEVIN: You've said publicly that you believe waterboarding is inconsistent with American values. It's something that should be prohibited, goes beyond the bounds of what a civilized society should employ.

    My question is this, in your opinion does waterboarding constitute torture? MR. BRENNAN: The attorney general has referred to waterboarding as torture. Many people have referred to it as torture. The attorney general, premiere law enforcement officer and lawyer of this country.

    And as you well know and as we've had the discussion, Senator, the term ``torture'' has a lot of legal and political implications.

    It is something that should have been banned long ago. It never should have taken place in my view. And, therefore, it is--if I were to go to CIA, it would never, in fact, be brought back.

    SENATOR LEVIN: Do you have--do you have a personal opinion as to whether waterboarding is torture? MR. BRENNAN: I have a personal opinion that waterboarding is reprehensible and it's something that should not be done. And, again, I am not a lawyer, Senator, and I can't address that question.

    SENATOR LEVIN: Well, you've read opinions as to whether or not waterboarding is torture. And I'm just--I mean, do you accept those opinions of the attorney general? That's my question.

    MR. BRENNAN: Senator, you know, I've read a lot of legal opinions. I've read an Office of Legal Counsel opinion in the previous administration that said in fact waterboarding could be used.

    So from the standpoint of--of that, you know, I cannot point to a single legal document on this issue.

    But as far as I'm concerned, waterboarding is something that never should have been employed and--and--and as far as I'm concerned, never will be, if I have anything to do with it.

    SENATOR LEVIN: Is waterboarding banned by the Geneva Conventions? MR. BRENNAN: I believe the attorney general also has said that it's contrary, in contravention of the Geneva Convention.

    Again, I am not a lawyer or a legal scholar to make a determination about what is in violation of an international convention.

    After the hearing, I wrote to Mr. Brennan, pointing out that the President and senior administration officials, including both lawyers and non-lawyers, had concluded that waterboarding is torture. I asked the question again, and again I got no direct answer. Mr. Brennan replied: You have asked for my position on whether waterboarding constitutes `torture.' I understand and appreciate your concern about the use of waterboarding by the prior Administration. As I have made clear, I considered it reprehensible then and now, and I have been an unwavering supporter of the President's decision to ban its use. I have also in the past stated that I believe waterboarding subjects a person to severe pain and suffering, which is a common way of defining `torture.' In addition, I have indicated in our prior conversations and in my appearance before the Senate Select Committee on Intelligence on February 7, the term `torture' is a legal term, and I defer to the Attorney General on matters of legal interpretation.

    Mr. President, I ask unanimous consent that my letter to Mr. Brennan, and Mr. Brennan's response, be printed in the Record immediately after my statement.

    Second, I am troubled that, during the time that Mr. Brennan served on the staff of the National Security Council--NSC, senior administration officials consistently declined to provide Congress with access to key legal memoranda relative to the use of targeted strikes against terrorist targets. Indeed, we were able to obtain access to these memoranda only after it became clear that Mr. Brennan might have trouble being confirmed if they were not made available.

    Third, I am troubled that, during the time that Mr. Brennan served on the NSC staff, senior officials in the intelligence community and the NSC staff apparently did not protest when U.N. Ambassador Susan Rice was rejected for the position of Secretary of State on the basis of her public comments on the Benghazi attacks, even though those comments were based on talking points produced by, reviewed by, and edited by those same officials.

    My concerns about Mr. Brennan's unresponsiveness in these three areas are not sufficient to overcome the fact that he is qualified to be Director of Central Intelligence. But it is my hope that he will learn from this confirmation process and be more responsive to congressional requests for information in the future.

    There being no objection, the material was ordered to be printed in the Record, as follows: U.S. Senate, Committee on Armed Services, Washington, DC, February 20, 2013.

    John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism, The White House, Washington, DC.

    Dear Mr. Brennan: I am troubled that, during your confirmation hearing on February 7th, you chose not to express your personal opinion as to whether waterboarding constitutes torture. As the Senate Select Committee on Intelligence continues to consider your nomination to be Director of the Central Intelligence Agency (CIA), I would appreciate your answers to the following questions for the record.

    In a November 2007 interview with CBS News, you stated, ``I think it [waterboarding] is certainly subjecting an individual to severe pain and suffering, which is the classic definition of torture.'' Do you still hold that view today? During his January 2009 confirmation hearing, Attorney General Holder stated ``waterboarding is torture'' and pointed out ``If you look at the history of the use of that technique used by the Khmer Rouge, used in the inquisition, used by the Japanese and prosecuted by us as war crimes. We prosecuted our own soldiers for using it in Vietnam.'' During a press conference in April 2009, President Obama said ``waterboarding violates our ideals and our values. I do believe that it is torture. I don't think that's just my opinion; that's the opinion of many who've examined the topic.'' In another press conference in November 2011, President Obama said ``Waterboarding is torture. It's contrary to America's traditions. It's contrary to our ideals. That's not who we are.'' He continued, ``If we want to lead around the world, part of our leadership is setting a good example. And anybody who has actually read about and understands the practice of waterboarding would say that that is torture.'' Finally, during his February 2009 confirmation hearing to be Director of the CIA, Leon Panetta said ``I believe that waterboarding is torture and that it's wrong.'' Do you agree with President Obama, Attorney General Holder, and Secretary Panetta that waterboarding constitutes torture? I would appreciate your prompt response to these questions.

    Sincerely, Carl Levin, Chairman.

    ____ The White House, Washington, DC, February 25, 2013.

    Hon. Carl Levin, Chairman, Committee on Armed Services, U.S. Senate, Washington, DC.

    Dear Mr. Chairman: Thank you Mr. Chairman, for your letter of February 20, 2013.

    You have asked for my position on whether waterboarding constitutes ``torture.'' I understand and appreciate your concern about the use of waterboarding by the prior Administration. As I have made clear, I considered it reprehensible then and now, and I have been an unwavering supporter of the President's decision to ban its use. I have also in the past stated that I believe waterboarding subjects a person to severe pain and suffering, which is a common way of defining ``torture.'' In addition, I have indicated in our prior conversations and in my appearance before the Senate Select Committee on Intelligence on February 7, the term ``torture'' is a legal term, and I defer to the Attorney General on matters of legal interpretation.

    In closing, let me assure you that I fully appreciate that the humane treatment of detainees is both a national security and a humanitarian imperative. If I am confirmed to serve as Director of the Central Intelligence Agency, I will never approve the deployment of waterboarding under any circumstance, and will do everything in my power to prevent its use.

    Sincerely, John O. Brennan, Assistant to the President for Homeland Security and Counterterrorism.

    The PRESIDING OFFICER. The Senator from Wyoming.

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