The Nominee the Senate Won't Obstruct

By Scott Lemieux, TAPPED - February 8, 2013

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Unpacking John Brennan's confirmation hearing

President Obama's decision to nominate John Brennan to head the CIA was certainly not encouraging to anyone concerned about the administration's record on war powers and civil liberties. Nominating Brennan, who played a significant role in the CIA during the Bush administration, symbolizes the extent to which the abuses of the Bush administration have become mainstream in American government. Brennan's confirmation hearing before the Senate on Thursday reflects this as well. While Brennan did receive slightly more critical questioning than the typical CIA nominee, neither Congress's questions nor Brennan's answers will satisfy skeptics. Here are three key takeaways:

Days before Brennan's hearings before the Senate, Michael Isikoff uncovered a secret white paper in which the Obama attempted to justify its targeted killings program. Not only should the justifications offered by the paper have been subject to scrutiny from the Senate, the fact that the memo had been kept secret from Congress until the media uncovered it should have been seen as a slap in the face to the Senate's prerogatives. How can Congress exercise its constitutional responsibility to check the president's military power if it doesn't know what it's doing and why? And, yet, the Senators "asked nothing" about the memo.

Will there be more transparency? Probably not. At times during the hearings, senators did express some frustration at the extent to which the executive branch has kept them in the dark (although, interestingly, arguably the most critical voice was Maine's newly elected Angus King, suggesting that the longer one serves in the Senate the more comfortable they become with delegating authority over war powers.) Brennan's answers to the toughest questions, however, showed a talent for using many words to say nothing equal to that of contemporary Supreme Court nominees. For example, consider his response to Ron Wyden's question about the general lack of transparency, with the most evasive section highlighted:

I have been a strong proponent of trying to be as open as possible with these programs as far as our explaining what we're doing.

What we need to do is optimize transparency on these issues, but at the same time, optimize secrecy and the protection of our national security.

I don't think that it's one or the other. It's trying to optimize both of them.

And, so. what we need to do is make sure we explain to the American people what are the thresholds for action, what are the procedures, the practices, the processes, the approvals, the reviews?

The Office of Legal Counsel Advice establishes the legal boundaries within which we can operate. It doesn't mean that we operate at those out of boundaries. And, in fact, I think the American people would be quite pleased to know that we've been very disciplined, very judicious and we only use these authorities and these capabilities as a last resort.

In other words, we need to have both secrecy and transparency, and ultimately we should trust that the president is doing the right thing. This sounds like a recipe for a lot more secrecy than transparency to me.

While the Obama administration has (to its great credit) not continued the torture policies of the Bush administration, it has also refused to hold people who performed or sanctioned torture accountable, even through public hearings. Brennan's refusal to clearly answer whether waterboarding constitutes torture is a classic example of this pattern. As Mother Jones's Adam Serwer notes, Brennan's assertion that he couldn't determine whether certain practices constitute torture because "he isn't a lawyer" is reminiscent of Marco Rubio's claim that he lacked the expertise to determine whether the Earth is more than 6,000 years old. And Brennan's answer is self-refuting in a more important sense as well. If Brennan lacks the expertise to determine whether waterboarding is consistent with statutory bans of torture, how can the CIA be trusted to enforce restrictions on targeted killings without any judicial oversight?

What should be a controversial nomination to head the CIA creates a conflict between two tends in American government. On the one hand, the Senate has become ludicrously obstructionist with respect to presidential nominations, often holding up even uncontroversial executive and judicial branch nominations for extended periods. On the other hand, Congress has been happy to write the executive branch a blank check when it comes to military powers. After the hearings, it is clear to most observers that the Senate's deference to the president on military affairs will prevail over its usual pointless obstructionism, with Brennan headed for a relatively painless confirmation. If the president tries to nominate someone to an agency designed to protect the American consumer, he can expect a minority in the Senate to simply try to nullify the agency altogether by refusing to confirm anyone. When it comes to a nominee who exemplifies an increase in arbitrary executive power and a disgraceful unwillingness to hold tortures unaccountable, however, the Senate immediately becomes pliable again. Nearly unconstrained executive power to conduct military affairs, alas, seems to reflect the state of affairs most members of Congress prefer.

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Scott Lemieux is an assistant professor of political science at the College of Saint Rose. He contributes to the blogs Lawyers, Guns, and Money and Vox Pop. Follow @lemieuxlgm

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