Eric Holder and John Brennan have used similar arguments to defend their agencies' actions. 'Furious' echoes in CIA-Senate spat

The court battle over the House’s investigation of Operation Fast and Furious and the new showdown between the CIA and its Senate overseers have something in common: aggressive executive branch claims for secrecy.

At the core of both fights are bold assertions from President Barack Obama’s administration that agencies like the CIA and the Justice Department have the legal right to put some of their internal communications beyond the reach of Congress — even though it funds those agencies, writes the laws they’re supposed to obey and has a responsibility to monitor how they operate.


While the Obama lawyers’ claims are not wildly different than some made by the George W. Bush and Bill Clinton administrations, many legal experts say Obama’s secretive stance is sharply at odds with vows he made on the campaign trail — a reminder of how difficult it is to rein in the power of the presidency, even when a candidate promises to do it.

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“What strikes me as ironic is that this administration is picking up the cudgels of all these tired old shibboleths about executive privilege,” former House Counsel Stan Brand said. “It pains me to say this, but it’s Nixonian in its reach.”

High-profile fights over executive privilege in recent memory have usually broken out over White House records, especially those involving advice to top presidential aides or the president himself. But the disagreement that triggered the new conflict between the CIA and the Senate Intelligence Committee was not about White House records — it centered on internal CIA analyses of records of its Bush-era interrogation efforts.

In a letter to the Senate written last month and made public Tuesday, CIA Director John Brennan said those summaries should have been off-limits to congressional investigators.

“These documents were not created as part of the program that is the subject of the Committee’s oversight, but rather were written in connection with the CIA’s response to the oversight inquiry. They include a banner making clear that they are privileged, deliberative, pre-decisional CIA documents, to include attorney-client and attorney work product,” Brennan wrote. “The Executive branch has long had substantial separation of powers concerns about congressional access to this kind of material.”

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Brennan’s argument is virtually identical to one the Justice Department and ultimately, Obama himself leveled in response to a House committee’s demand for records relating to Fast and Furious, a Bureau of Alcohol, Tobacco, Firearms and Explosives operation that may have allowed as many as 2,000 weapons to flow to Mexican drug cartels.

The Obama administration turned over thousands of pages related to the operation, but drew the line at certain records showing how it responded to congressional and media inquiries. That refusal led to a pair of House votes holding Attorney General Eric Holder in contempt of Congress. A federal judge is now mulling a House-filed lawsuit seeking to force Holder to turn over the records.

Oversight Committee Chairman Darrell Issa said Wednesday that the administration’s contention in the CIA fight “appears to be the same unprecedented claim” he’s been hearing from the Justice Department for nearly two years in the Fast and Furious faceoff.

( Also on POLITICO: Barack Obama weighs in on Senate-CIA flap)

“The Obama administration’s argument is that even when the Executive Branch gives Congress false information or otherwise acts inappropriately, as long as it occurred in the course of responding to Congress, it shouldn’t have to reveal the full truth,” said Issa. “Their argument is a dangerous attempt to expand the reach of Executive Privilege to cover abuses within agencies – even if they are well below the level of the President himself.”

In an interview last May, Issa said he generally believes the executive branch should be entitled to private communications, but not when some misconduct appears to have taken place.

“I’m one of those people that very strongly supports that the deliberative process in the ordinary course is not something that we should be asking for,” he told NBC’s “Meet The Press.” “But…when people make a decision to give us something that’s false and it’s shown to be false, and then particularly if there’s false statements to Congress, of course we have an obligation to look at it.”

George Mason University Professor Mark Rozell, who has written extensively on executive privilege, also sees the same position on display from the Obama administration in both the gun-walking and CIA-related fights. The administration’s stance evokes a posture many liberals reviled and denounced during the Bush years: the so-called “unitary executive” theory asserting that the president had strict authority to control all actions taken in any portion of the executive branch as if they were merely extensions of the White House itself.

Obama “is effectively walling off another part of the executive branch from legislative oversight and review using the same reasons the administration has used in other contexts, including the Fast and Furious investigation,” the professor said. “It’s clear that presidents possess the right to candid advice, to preserve frank and candid deliberations among White House aides without public disclosure of every utterance that takes place in the White House.”

But “this seems of an entirely different nature….It’s almost breathtaking in its scope,” Rozell added.

During the 2008 campaign, Obama said the Bush administration had invoked executive privilege too often. He signaled that he believed executive privilege should be limited to White House communications — but he left himself some wiggle room.

“My view is that executive privilege generally depends on the involvement of the President and the White House,” he said in a 2007 Boston Globe questionnaire.

White House Press Secretary Jay Carney stressed Thursday that Obama has rarely invoked the privilege.

“We’ve been here for five-plus years, and there’s often a sort of frisson in the air when Republicans start saying, ‘Oh, they’re asserting executive privilege…’ Do you know how many times this administration has actually asserted executive privilege? Once — once,” Carney said.

He said in other cases where such issues had arisen with Congress, the administration had reached agreements “to move forward without the need to assert that privilege.”

Lawyers who served in Republican administrations offered more charitable assessments of the Obama administration’s stance in the two disputes.

David Rivkin, who worked in the Reagan and George H.W. Bush administrations, said the Obama administration’s claims of secrecy for agency documents are not without merit — if not quite as strong as the arguments for secrecy for presidential advice.

“These are weaker grounds, but they’re not unprecedented grounds, and I think the matter can certainly be litigated,” Rivkin said. He said court decisions in civil cases and criminal investigation have protected the deliberative process in government agencies, but he acknowledged there’s little precedent addressing whether such a privilege can be wielded against Congress.

A top lawyer in the George W. Bush administration also backed the Obama team’s claims in both the CIA and Fast and Furious standoffs.

“That is consistent with the past position of the executive branch,” said the attorney, who asked not to be named. “The executive branch has claimed what’s called deliberative process privilege over internal memos analyzing congressional requests and deliberating over how to respond…. You don’t want a subordinate giving advice to a superior [to be thinking] Congress is going to be looking over their shoulder at everything they do.”

However, House aides said that in the pending court case over the Fast and Furious records, the Obama administration is claiming it can withhold “congressional response work product” even if it doesn’t reflect internal deliberations.

Rivkin said he’d never heard of such an argument.

“This is bizarre. This is totally bizarre,” he said. “I don’t recall ever using this formulation.”

While the Obama administration has been aggressive about defending executive branch prerogatives, it has sometimes backed down when faced with significant resistance.

For years, administration officials refused to give congressional committees copies of Justice Department legal opinions relating to drone targeting and to lethal operations against U.S. citizens. However, when it became clear early last year that Brennan would not be confirmed as CIA director, Obama caved and agreed to let lawmakers inspect the memos.

Carney painted the decision as both a one-time exception and as part of Obama’s oft-stated preference for transparency.

“This is a unique and exceptional situation,” Carney said. “It is in keeping with the president’s commitment, which he reiterated in his State of the Union address, to work with Congress to be as transparent as possible about these actions.”

Brennan was confirmed two days later.