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CIA nominee snubs Senate on legal memos

President Barack Obama's nominee to be general counsel of the Central Intelligence Agency indicated at her confirmation hearing Tuesday that she opposes giving members of Congress access to Justice Department legal memoranda that govern CIA activities such as interrogation and drone strikes.

The nominee who rebuffed Senate Intelligence Committee Chairwoman Dianne Feinstein, Caroline Krass, has served as a top lawyer in the Justice Department Office of Legal Counsel and at times as the acting director of that office.

Feinstein opened her questioning of Krass by asking her if she would commit to sharing OLC opinions with the Senate panel.

"This isn't just idle curiousity. It is really to understand the direction and rules under which certain programs operate," Feinstein said. "We have found that these opinions are actually indispensable to effective oversight." She said that an inspector general report found the CIA waterboarded 9/11 suspect Khalid Sheikh Mohammed in a manner inconsistent with the OLC opinion on waterboarding.

Krass responded initially by saying she was committed to making sure senators on the panel understood the legal framework CIA is working in, but she stopped short of committing to share the written opinions.

"I do believe the committee needs to fully udnerstand the legal basis for any activities, intelligence acitvities, in which the CIA is engaged, including covert action," Krass said.

Feinstein was unsatisfied and pressed Krass for a "yes or no" answer on access to the opinions. What the senator got sounded pretty much like a "no."

"The OLC opinions represent predecisional, confidential legal advice that’s been provided. Protecting confidentiality of that legal advice preserves space for their to be a full and frank discussion among clients, policymakers and their lawyers within the executive branch and really furthers the rule of law and allows for effective functioning of the executive branch," Krass said, repeating her offer to help the committee understand the administration's legal thinking and saying she has "an almost unique ability to do that."

"I think we do understand it," Feinstein replied. "I think it has been explained to us but every OLC opinion has been a fight to obtain and we have obtained very few of them, only those that relate to U.S. citizens."

Feinstein didn't immediate explain what she meant, but she may have been referring to a battle the committee had earlier this year to get opinions on targeting terrorism suspects for deadly force in drone attacks. The confirmation of CIA Director John Brennan was held up for a time until President Barack Obama agreed to share legal memos on the subject with Congressional committees.

Joining Feinstein, Sen. Susan Collins (R-Maine) said she was "troubled" by Krass's answer. Collins noted that the Office of Legal Counsel often releases unclassified opinions.

"They go through an extensive review process....We try to publish opinions when we can to promote transparency," Krass said, before saying there would be some merit to considering that for classified legal opinions. "I do think it's worth exploring whether there could be some kind of similar process with respect to classified OLC opinions."

Pressed by Sen. Carl Levin (D-Mich.), Krass said she does not believe Congress has a right to Office of Legal Counsel opinions.

"I do not think so, as a general matter," she said.

Last month, the Justice Department pressed a federal appeals court to preserve the Office of Legal Counsel's ability to keep legal opinions from the public.

Collins also raised a 2011 episode in which Obama rejected a legal interpretation advanced by Krass and the Pentagon's top lawyer at the time, Jeh Johnson, which would have curtailed U.S. operations in Libya. Obama sided with his White House counsel and State Department lawyers in deciding to continue the operation.

In an indirect way, Collins suggested Krass might have quit if she thought what the president proposed doing was illegal.

"What I don't like seeing is the administration shopping around until it gets a legal opinion with which it agrees and that seems to have happened in the case of Libya," Collins said.

UPDATE (Tuesday, 4:05 P.M.): This post has been updated with the exchange with Levin.