"Prerogatives" Cited as WH Keeps Documents From Senate

"Prerogatives" Cited as WH Keeps Documents From Senate
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To protect “executive branch confidentiality,” President Obama is withholding from the Senate Select Committee on Intelligence 9,400 CIA-related documents created during the Bush administration, the White House and Senate sources confirmed Thursday.

As first reported by McClatchy on Wednesday, Obama’s White House legal team has maintained control over requested documents for five years without invoking executive privilege. White House Press Secretary Jay Carney said Obama believes the Bush-era documents -- described as a “very small” percentage of more than 6 million pages turned over -- are not needed to complete a Senate probe of the CIA’s harsh interrogation program during the Bush years.

“We do not believe that these documents … should delay the completion of the select committee's report,” Carney said. “The setting aside of those documents for further review has to do with executive branch confidentiality issues that pertain in a variety of areas.”

Obama “wants that report concluded,” his spokesman emphasized, and the president wants the findings to undergo a declassification process and then be released publicly.

The White House did not respond to questions from RCP about whether the White House consulted representatives of the previous administration before deciding to withhold the documents.

Carney said he was “not able to describe the documents” in question, and a spokesman for the Senate Intelligence Committee declined to comment.

“This is about precedent and the need institutionally to protect some of the prerogatives of the executive branch and the office of the presidency,” Carney said. “All of these documents pertain to and come from a previous administration. They have nothing to do with this administration.”

While Obama has severed his policies from Bush-era interrogations, he has retained in his administration personnel who served as intelligence advisers under the previous president. One of them is CIA Director John Brennan. He advised Obama during his transition, became his homeland security and counterterrorism adviser in the White House, and was confirmed by the Senate last year to lead the CIA.

Carney said Obama’s aim was to protect the privileges of his office -- during his tenure and his predecessors’ -- from legislative branch demands to probe private advice. It is unclear whether confidential policy advice offered to President Bush during the post-9/11 “war on terror” is in the documents being withheld, or whether all the documents in question originated with the CIA.

Executive privilege was judicially established four decades ago as a result of disputes over President Nixon’s Oval Office tapes. All White House counsels, regardless of political party, have sought to safeguard the powers of the presidency from judicial or legislative erosion. But once invoked, executive privilege blooms into a headline-grabbing feud that is almost always politically challenging to sustain; presidents are perceived to be hiding something damning rather than safeguarding a privilege of their office.

Litigation tied to the scope of executive privilege and congressional oversight and investigations has been rare in America’s history, and, in fact, the Supreme Court has never addressed executive privilege in the face of a congressional demand for information, according to congressional legal experts.

Obama formally asserted executive privilege once, in the House Oversight and Government Reform Committee’s 2012 probe of the Justice Department’s Operation “Fast and Furious.” Those findings, joined by the Senate Judiciary Committee’s ranking members, appear in a three-part report.

“This is an issue not of the substance of the documents,” Obama’s press secretary explained. “It is an issue of the nature of the documents and the need for past administrations and future administrations of both parties to retain executive branch confidentiality.”

The White House stressed that the Obama administration, which ended the CIA’s use of waterboarding and techniques widely described as torture, has been responsive to the Senate committee during its probe.

Carney said the White House did not need to assert executive privilege to block the documents in question, because the president’s aides continued to negotiate with the committee in an attempt to reach an accord.

But the administration’s assertions of cooperation were challenged Tuesday when Sen. Diane Feinstein, the Intelligence Committee’s chair and top Democrat, delivered from the Senate floor a blistering account of CIA interference with her panel’s work.

CIA Director Brennan -- who spent 25 years in the spy agency, including as deputy executive director under Bush -- denied Feinstein’s assertions this week that his agency had done anything wrong.

The charges from Feinstein of intrigue and constitutional breaches, and the counter-charges of law-breaking from the CIA now rest with the Justice Department and the CIA’s inspector general.

Alexis Simendinger covers the White House for RealClearPolitics. She can be reached at asimendinger@realclearpolitics.com.  Follow her on Twitter @ASimendinger.

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