House Oversight Chairman Darrell Issa (R-CA) is done asking nicely, and on Friday, issued a subpoena for retired Amb. Thomas Pickering, co-chair of the Accountability Review Board (ARB) on Benghazi, to appear for a deposition on last year's attack.
"While I am very much committed to having you testify publicly and appreciate your newfound willingness to do so, I was disappointed that you are attempting to limit the Committee's understanding of the Accountability Review Board by refusing to participate in a voluntary transcribed interview prior to testifying publicly," Issa wrote in a letter to Pickering. "In light of your continuing refusal to appear voluntarily for a transcribed interview, however, I have found it necessary to issue a subpoena to compel your appearance at a deposition."
All week, Issa's office had been publishing open letters to Pickering requesting his participation in a private, transcribed interview, and all week Pickering declined, saying he was willing to testify publicly about his review of the State Department's response to the attack, but insisting that a private deposition was inappropriate.
"Depositions are usually reserved for fact witnesses and people under investigation," he told The Cable. "We are not fact witnesses to Benghazi and we are not under investigation."
Shortly after Issa's announcement, Rep. Elijah Cummings (D-MA), ranking member of the Oversight Committee, issued a press release condemning the subpoena as emblematic of "extreme Republican overreach."
"Today's subpoena is a stark example of extreme Republican overreach and the shameful politicization of this tragedy," Cummings said. "Both Admiral Mullen and Ambassador Pickering have made clear that they stand ready and willing to testify at a public hearing to respond directly to these reckless accusations, but Chairman Issa is now imposing new conditions to keep them behind closed doors. The Chairman should reverse his decision, conduct a responsible and bipartisan investigation, and allow the American people to hear directly from these officials."
Issa insists a private deposition is a necessary precursor to a public hearing.
"A fully informed hearing, in which the Committee begins with a factual understanding of how the Board reached its conclusions, is critical to engaging in a public discussion with you about criticisms career State Department officials levied at the ARB's efforts and recommendations," Issa wrote.
As The Cable noted last week, the dispute can best be described as a battle over the American public's perception of what happened in Benghazi. Issa knows that a transcribed interview with Pickering will better allow him to control the narrative of the next Benghazi hearing, and certainly, it helps for running a hearing more efficiently. Pickering thinks Issa is running a "political circus," and as he told The Cable on Wednesday, "now that the circus has been launched, we want to make our case in front of the public," not in a private setting.
Interestingly, Admiral Mullen, the other co-chair of the ARB, has been given a pass. When The Cable asked Issa's office if he too had been served a subpoena, Issa spokeswoman Becca Watkins said "he was not."
The subpoena requires Pickering to show up for a deposition on Thursday, May 23, at 10 a.m. Pickering did not immediately respond to a request for comment.
With President Barack Obama's appointment of Danny Russel to assistant secretary of state for East Asia, the president has returned one of his key national security advisors to the State Department to tackle some of his administration's thorniest issues in a region boiling over with nationalist rhetoric and military posturing.
If confirmed, Russel, a career member of the Foreign Service and currently the senior director for Asian affairs in the White House National Security Staff, will fill the big shoes of Kurt Campbell, architect of a slew of first-term administration policy initiatives including efforts to open up Myanmar. The position, which is the top diplomatic post in East Asia, has been vacant since February when Campbell stepped down.
"It's almost June. It's time to get the team in place and start cracking," Tommy Vietor, former National Security Council spokesman, told The Cable. "I think the signal here is that Asia continues to be a top priority for the president and he wants one of his top emissaries out in the field implementing his policy."
After four years away at the White House, Russel's return to Foggy Bottom is the subject of a flurry of chatter at the department. An insider tells Chris Nelson, who runs an exclusive newsletter focused on Asian affairs, that Russel will have to regain the trust of colleagues in the building given his long absence. "He's run into the age-old problem of any career person being on ‘detatched' duty, and in this case over 4 years at the White House, before returning to the Mother Ship," the source told Nelson. "So he's really got to work to reach out to former colleagues and re-build personal connections."
Vietor, however, says that White House experience is exactly what will make Russel such an effective diplomat. "Foreign leaders will know Danny's spent as much time with Obama as anyone and that's really important," he said. "He's also worked directly with Tom Donilon, Tony Blinken, Denis McDonough, Joe Biden -- all the top people in the White House."
Some critics have suggested that in Russel, the administration has selected a Japan guy at a time when Obama's "pivot to Asia" necessitates a deeper knowledge of China. (Before joining the White House, Russel was director of the Office of Japanese Affairs at State.) But Vietor dismissed the criticism as nonsense. "Danny knows every issue the White House has dealt with for the last four years," he said. "He's been involved in every important debate about China and North Korea and can really answer authoritatively about any question he's asked."
Obama sent Russel's nomination to the Senate on Thursday.
Attorney General Eric Holder baffled lawmakers on Wednesday when he told the House Judiciary Committee he had no idea when he had recused himself from the Justice Department's investigation into classified leaks to the Associated Press.
Didn't he put that decision in writing? Isn't there a memo somewhere with a date and his signature memorializing the transference of power to the deputy attorney general?
The answer to both questions was "no," a response that sent political observers racing to find out if such an oversight violated the law. Turns out, it doesn't -- but it's no way to run the Justice Department, according to former DOJ officials speaking with The Cable.
"There does not appear to be any statutory requirement that the recusal be in writing," Andrew McBride, a partner at Wiley Rein who served 10 years at DOJ, including seven as assistant U.S. attorney in the Eastern District of Virginia. "However, it is highly unusual for a recusal not to be in writing, to set out the subject matter of the recusal and therefore the scope of the authority of the DAG to act in the capacity of acting attorney general."
"I worked for two attorneys general, Dick Thornburg and William P. Barr," McBride continued, "and I can attest that this was the standard practice of both those attorneys general."
Dan Metcalfe, the founding director of the DOJ's Office of Information and Privacy, now a professor at American University, agreed that written recusals are standard operating procedure. "Holder, as a matter of practice, should make a recusal in writing," he said.
The issue of legality was raised by bloggers who pointed to a statute requiring the attorney general to put a recusal in "writing," when appointing an independent counsel. But both lawyers speaking with The Cable said the AP leak investigation does not qualify as independent counsel and therefore the statute is irrelevant.
But the practical reasons that attorneys general should put recusals in writing are manifold. For one, as the AP case indicates, when an attorney general recuses him or herself, the deputy attorney general inherits vast powers, such as the authority to approve the secret seizure of numerous phone records from the one of the largest news organizations in the world. That kind of power transfer ought to be documented. For another, the absence of a paper trail could tempt attorneys general to claim prior recusal "whenever a case gets too hot," noted McBride. In that scenario, the attorney general says he recused himself when he never actually did, thus avoiding whatever scandal is headed his way. It's an unlikely circumstance since it requires a fall guy in the form of the deputy attorney general who would under most circumstances refute the attorney general's claim -- but stranger things have happened in government.
In any event, although Holder said he had no idea when the recusal happened and had no documentation, Metcalfe said a date is probably available on the deputy attorney general's document authorizing the subpoena. "If you're deputy attorney general, and providing the authorization, you're going to recite the fact that the attorney general has recused himself. The authorization, in effect, becomes a memorialization of the recusal."
Insiders with ties to the Obama administration tell The Cable that U.S. ambassador to the United Nations Susan Rice has become the heir apparent to National Security Advisor Tom Donilon -- a post at the epicenter of foreign-policy decision making and arguably more influential than secretary of state, a job for which she withdrew her candidacy last fall amid severe political pressure.
"It's definitely happening," a source who recently spoke with Rice told The Cable. "She is sure she is coming and so too her husband and closest friends."
"Susan is a very likely candidate to replace him whenever he would choose to leave," agreed Dennis Ross, a former special assistant to President Obama and counselor at the Washington Institute. "She is close to the president, has the credentials, and has a breadth of experience."
Both sources said the timing of succession was uncertain. "I don't believe Tom Donilon is about to leave but would be surprised if he were to remain for the whole second term," Ross said. "But in answer to your question, [Rice's appointment] is very logical."
Rice's candidacy for secretary of state imploded in November after she recited talking points about the Sept. 11 attack in Benghazi on five Sunday talk shows that turned out to be erroneous.
The question now is whether Benghazi's return to the spotlight will affect her potential appointment at a time when the White House is reeling from revelations about the IRS's scrutiny of conservative groups and the Justice Department's subpoena of the calling records of AP journalists.
For now, prominent Republicans don't seem inclined to make a fuss.
In November, Arizona Sen. John McCain pledged to "do everything in my power to block her from becoming secretary of state"; South Carolina Sen. Lindsey Graham said, "I don't think she deserves to be promoted"; and Tennessee Sen. Bob Corker said she'd make a better DNC chair: "I think most of us want someone who is more independent minded."
But now -- even as Benghazi fever reaches a crescendo following last week's dramatic "whistleblower" hearing and Wednesday's release of 100 pages of Benghazi emails -- the GOP's desire to check her rise has seemingly evaporated, and Republicans have few tools to prevent her appointment, which would not require Senate confirmation.
When asked if he was concerned about a future National Security Adviser Susan Rice, Corker, the ranking member of the Senate Foreign Relations Committee, told The Cable he was sitting this one out.
"In the case of national security advisor," he said, "whomever serves in that position serves at the pleasure of the president. So it's totally his prerogative." When The Cable asked Graham and McCain the same question, their spokesmen declined to comment.
In some ways, the deflated interest in Rice is only natural. Though the testimony of State Department witnesses last week served to highlight the inaccuracy of Rice's talk-show appearances, new details of the editing process of her talking points show her nowhere near the drafting process -- just as the administration has long maintained.
Meanwhile, a more tantalizing GOP target has emerged in the form of Hillary Clinton, the overwhelming favorite to assume the Democratic presidential nomination in 2016. Democrats, Republicans and witnesses fixated on Clinton 32 times during discussions in last week's hearing.
Rice spokeswoman Erin Pelton declined to comment for this article. White House National Security Council Spokeswoman Caitlin Hayden said, "We don't have any personnel announcements to make at this time, and Mr. Donilon has no plans to depart at this point." She added that Donilon is "fully engaged in managing our national security agenda, from his recent trip to Moscow and major address on global energy, to planning for a trip to China in late May and more upcoming speaking events."
The administration hasn't shied away from heaping praise on Rice. Last week, at a gala for the Joint Center for Political and Economic Studies, Vice President Joe Biden told the audience that the U.N. ambassador has "the absolute, total, complete confidence of the president," and that when she speaks on issues of foreign policy, nobody doubts she's speaking for Obama.
Back in March, when colleague Colum Lynch first reported whispers of Rice's comeback, Ben Rhodes, deputy national security adviser for strategic communications, spoke glowingly of Rice's relationship with the president. "Susan always maintains close relations with the president and his national security team, and that continues to be the case," he said. "If anything, the way she handled the Benghazi situation -- and then the withdrawal -- only enhanced her relations here, because she did so with grace and good humor."
The president himself has gone out of his way to wink at an expanded role for Rice within his administration. "I have every confidence that Susan has limitless capability to serve our country now and in the years to come, and know that I will continue to rely on her as an advisor and friend," Obama said in a December statement.
In the battle to shape the American public's perception of what happened in Benghazi, logistics is everything. On Wednesday, the two emerging rivals in this struggle, House Oversight Committee Chairman Darrell Issa (R-CA) and retired Amb. Thomas Pickering, co-chair of the Accountability Review Board (ARB) for the incident, clashed over the appropriate venue to discuss the U.S. government's response to last September's terrorist attack.
On Sunday, Issa announced his invitation to hear Pickering's sworn testimony in a private "deposition" to be followed by a public hearing. On Tuesday, Pickering sent a letter to Issa that essentially said thanks but no thanks -- I'd prefer a public hearing only.
In an interview with The Cable Wednesday morning, Pickering said he opposed a private deposition for two reasons not mentioned in his Tuesday letter. First, he made no bones about his view that Issa is turning the Benghazi tragedy into a "political circus." And, "now that the circus has been launched, we want to make our case in front of the public," Pickering said, referring to himself and retired Admiral Mike Mullen, the other ARB co-chair.
Second, Pickering found the entire idea of a deposition to be inappropriate given his role in reviewing the investigation. "Depositions are usually reserved for fact witnesses and people under investigation," he said. "We are not fact witnesses to Benghazi and we are not under investigation, at least not yet," he said, laughing, in a nod to Issa's aggressive appetite for Oversight Committee probes. Additionally, depositions are held "in a dark room with investigative personnel and no opportunity to have your voice heard," he said, "while everyone else already got their voice heard."
But Issa spokesman Frederick Hill tells The Cable the ambassador has nothing to worry about. "The committee's request to Ambassador Pickering and Admiral Mullen is for them to voluntarily appear for transcribed interviews prior to a public hearing just as former Deputy Chief of Mission Gregory Hicks did," Hill said. "The committee has requested an answer by 5 p.m. today." Because Pickering never expressly refused a deposition in his Tuesday letter, Issa sent another letter this morning repeating his request for a private, transcribed interview.
"I appreciate your willingness to testify publicly," writes Issa. "However, your response failed to indicate your willingness to appear for a transcribed interview."
Why is Issa so intent on a private meeting? "Your transcribed testimony will allow Members of the Committee to ask informed questions during a subsequent hearing," Issa writes. A transcribed interview would also help Issa arrange the subsequent public hearing as he sees fit, and take away some of the spontaneity involved in the back-and-forth questioning.
The battle over the hearing's format comes as Pickering and Mullen's ARB report takes increasing fire from Republicans for failing to focus on higher-ranking State Department personnel, including the secretary of state at the time, Hillary Clinton. During last Wednesday's hearing, Hicks, the No. 2 diplomat in Libya during the assault, said the ARB had "let people off the hook," and another witness said it failed to interview "people who I personally know were involved in key decisions."
On Meet the Press Sunday, David Gregory picked up this line of argument, asking Pickering, "Did you not pay sufficient attention to -- and time with the secretary of state?"
"I believe we did," responded Pickering. "We had a session with the secretary. It took place very near the end of the report. It took place when we had preliminary judgments about who made the decisions, where they were made, and by whom they were reviewed. We felt that that was more than sufficient for the preponderance of evidence that we had collected to make our decisions and you know that our decisions was two of those people should be separated from their jobs. Two others failed in their performance."
Sens. Robert Menendez (D-NJ) and Bob Corker (R-TN) introduced a bill Wednesday to arm the Syrian rebels, the latest piece of legislation aimed at pressuring the Obama administration to intervene more aggressively in the protracted civil war. The bill provides lethal weapons to vetted members of the Syrian opposition and beefs up sanctions on weapons sales and petroleum sales to President Bashar al-Assad's regime.
In short, it has all the hallmarks of the bill Menendez introduced last week, but with a bipartisan sheen. As Andrew Tabler, a senior fellow at the Washington Institute for Near East Policy, described the Menendez bill last week, "If you want to pressure the president into acting, it's a pretty good bill ...The last time the Hill moved on Syria was sanctions on Syrian oil in the summer of 2011. That pressured the president to move, and this could too." Its new bipartisan gloss could give it that much more power.
The legislation is set to be taken up by the Senate Foreign Relations Committee with a markup session scheduled for Tuesday, May 21. Here's the release:
Menendez, Corker Introduce Syria Transition Support Act
WASHINGTON, DC - U.S. Senate Foreign Relations Committee Chairman Robert Menendez (D-NJ) and Ranking Member Bob Corker (R-TN) today introduced the Syria Transition Support Act, bipartisan legislation that plans for a post-Assad Syria by offering humanitarian assistance to the Syrian people, limited lethal and non-lethal weapons, and training to vetted Syrian groups.
"To change the tipping point in Syria against the Assad regime, we must support the opposition by providing lethal arms and help build a free Syria," Menendez said. "Vital national interests are at stake and we cannot watch from the sidelines as the Iranian presence in Syria grows, a growing refugee crisis threatens to destabilize the region, chemical weapons are used against the Syrian people, and Al-Qaeda-affiliated groups take root there."
"The future for Syria is uncertain, but the U.S. has a vested interest in trying to prevent an extremist takeover, which poses a very real risk for us and the region. Without authorizing the use of force or additional spending, this legislation will begin to implement a more coherent U.S. strategy, both now and for the day after Assad, that is focused on trying to shift the momentum on the ground toward moderate opposition groups while also helping them build support within and outside Syria for a new government," said Corker. "This effort coupled with Russia's willingness to participate in talks for political transition will give us the best opportunity for a better outcome."
The Menendez-Corker legislation includes six key elements.
- Authority to provide arms, military training and non-lethal supplies to the Syrian armed opposition: Groups that have gone through a thorough vetting process which meet certain criteria on human-rights, terrorism, and non-proliferation would be eligible. A presidential waiver is included allowing for the distribution of anti-aircraft defensive systems with strict limitations.
- Creation of a $250 million transition fund each year through FY2015 drawn from funds otherwise appropriated for regional transition support: To assist the civilian opposition in early transition institution building and maintenance of existing institutions, such as preserving security institutions, preventing regional spillover, promoting government formation, supporting transition justice, and reconciliation efforts.
- Sanctions on arms and oil sales to Assad: Targeting any person that the President of the United States determines has knowingly participated in or facilitated a transaction related to the sale or transfer of military equipment, arms, petroleum, or petroleum products to the Assad regime.
- Broad authority for humanitarian assistance: To ensure the administration is not hampered in its efforts to provide humanitarian aid to the Syrian people. This section does not authorize any new or additional funding.
- Administration strategy: Requiring the administration to work with Congress and keep it fully apprised of strategy towards Syria, including working through the international community and Russia to find a political settlement.
- Amendment to the Syria Accountability Act: To allow for sanctions removal once a transitional government is in place and certain terrorism and WMD criteria have been met.
One of the curiosities of the Justice Department's extensive probe of the Associated Press's phone records is the role that CIA Director John Brennan played in the original leak incident.
On Monday, the AP announced that the Justice Department secretly obtained two months of phone records on more than 20 lines assigned to its journalists -- a transgression its typically staid CEO called a "massive and unprecedented intrusion."
But setting aside the Justice Department's tactics, the rationale behind the original probe is a fascinating tale of espionage, network TV, and media relations, that remains contentious.
According to the news agency's best guess, the AP was targeted by the Justice Department in a leak investigation over a May 7, 2012 story it ran about a foiled terror plot in Yemen. The phone numbers of every reporter and editor on that story were obtained by the Justice Department.
The story was sensitive because it involved the successful penetration of al Qaeda in the Arabian Peninsula by Western spies. (The spy in question inflitrated AQAP, retrieved its latest non-metalic underwear bomb and delivered it to U.S. authorities). But even more importanly, the sensitive operation was reportedly unfinished by the time AP reporters caught wind of it, and had to be cut short before completion.
As a result, the administration was furious about the leak and pinned the blame squarely on the AP. "The egregious leak here was to the Associated Press," read an official White House statement last May. "The White House fought to prevent this information from being reported and ultimately worked to delay its publication for operational security reasons. No one is more upset than us about this disclosure, and we support efforts to prevent leaks like this which harm our national security."
But here's the thing: The original AP story never mentioned anything about an undercover CIA agent or Western "control" over the operation. It merely stated that "it's not immediately clear what happened to the alleged bomber," leading others to suggest that someone else was responsible for detailing the most sensitive aspect of the story -- that the CIA had someone on the inside. Enter Reuters investigative reporter Mark Hosenball. Last summer, he tracked the evolution of the story minute-by-minute and implicated then-White House counterterrorism adviser John Brennan -- a story that played a not-insignificant role in his confirmation hearing to lead the CIA. Here's Hosenball's masterful tick tock:
At about 5:45 p.m. EDT on Monday, May 7, just before the evening newscasts, John Brennan ... held a small, private teleconference to brief former counter-terrorism advisers who have become frequent commentators on TV news shows. According to five people familiar with the call, Brennan stressed that the plot was never a threat to the U.S. public or air safety because Washington had "inside control" over it.
Brennan's comment appears unintentionally to have helped lead to disclosure of the secret at the heart of a joint U.S.-British-Saudi undercover counter-terrorism operation. A few minutes after Brennan's teleconference, on ABC's World News Tonight, Richard Clarke, former chief of counter-terrorism in the Clinton White House and a participant on the Brennan call, said the underwear bomb plot "never came close because they had insider information, insider control."
A few hours later, Clarke, who is a regular consultant to the network, concluded on ABC's Nightline that there was a Western spy or double-agent in on the plot: "The U.S. government is saying it never came close because they had insider information, insider control, which implies that they had somebody on the inside who wasn't going to let it happen." The next day's headlines were filled with news of a U.S. spy planted inside Yemen-based Al Qaeda in the Arabian Peninsula (AQAP), who had acquired the latest, non-metallic model of the underwear bomb and handed it over to U.S. authorities.
Importantly, the White House denies Brennan had anything to do with the leak, a point it maintained throughout Brennan's confirmation hearing in January. "Everyone who works with John Brennan knows he is a straight shooter who would never harm national security," then-National Security Council spokesman Tommy Vietor said. "At the White House, John has worked to prevent the publication of information that would harm our national security."
Which gets us to the crux of the issue: No one is saying that Brennan leaked the story to the AP. (The FBI questioned him about that ahead of his confirmation and he vigorously denied any role in the story.) The allegation is that his "inside control" comment gave enough information for reporters to advance the AP story and reveal the most sensitive aspect of it -- that the CIA had a man on the inside. Little did anyone know that the leak incident would ultimately prompt one of the most far-reaching Justice Department probes on a news organization in history.
With scrutiny building over the Justice Department's sweeping seizure of two months of phone records by Associated Press journalists, Attorney General Eric Holder is set to face a grilling from House lawmakers on Wednesday, a committee source tells The Cable.
The House Judiciary Committee had already scheduled an oversight hearing on Capitol Hill for 1 p.m., and according to the committee source "Attorney General Eric Holder will testify and the AP email issue will come up." If this morning's remarks by the committee's chairman, Bob Goodlatte (R-VA), are any indication, it should be a contentious hearing.
"Any abridgement of the First Amendment right to the freedom of the press is concerning," he said Tuesday in wake of the probe. "The House Judiciary Committee will thoroughly investigate this issue and will also ask Attorney General Eric Holder pointed questions about it at Wednesday's oversight hearing."
Thus far, the White House has denied involvement in the probe, and has referred reporters to the Justice Department, putting all eyes on Holder. Last night, White House Press Secretary Jay Carney said "we have no knowledge of any attempt by the Justice Department to seek phone records of the AP.... Any questions about an ongoing criminal investigation should be directed to the Department of Justice." Lawmakers are likely to take Carney up on that suggestion.
In sum, the Justice Department secretly seized the records for more than 20 separate phone lines of the AP and its journalists, in a move the news agency's CEO called "massive and unprecedented." The Cable spoke with Mark Zaid, a national security lawyer who's worked on a number of high profile leak cases, who put the probe in similar terms. "This is one of the boldest moves ever taken by an administration in its war against leakers," said Zaid, noting that the length of time and number of reporters and editors ensnared rivaled any case in recent memory.
The probe is believed to be in response to a May 7, 2012 AP story in which a government employee allegedly leaked details of a foiled terrorist plot in Yemen involving a CIA double-agent to an AP journalist.
John Hudson reports on national security and foreign policy from the Pentagon to Foggy Bottom, the White House to Embassy Row, for The Cable.