“If Dr. Kahl’s past tweets did, in fact, disclose sensitive or confidential national security information, this could be disqualifying for the position and another example of his questionable judgment,” said Inhofe, who opposes Kahl’s confirmation for the Pentagon’s top policy job. “My colleagues’ concerns should be investigated, and the Senate should be able to review the results of this investigation before we vote on this critical nomination.”
Kahl, who all Republicans on the Armed Services panel opposed in a vote last month, maintains he hasn’t improperly disclosed classified information, noting in a March letter to the committee chair and ranking member that the information in his tweets was widely available in the public domain.
“I have never publicly shared information I knew to be classified and take my obligations to protect classified information seriously,” Kahl wrote in the letter, obtained by POLITICO.
A group of 18 Senate Republicans, led by Sens. Bill Hagerty of Tennessee and Tom Cotton of Arkansas, sent a letter to FBI Director Chris Wray on Tuesday requesting the agency investigate whether the nominee “publicly disclosed classified information and controlled unclassified information,” discussed it with government officials or solicited it.
The Republicans also urged Majority Leader Chuck Schumer not to advance Kahl’s nomination until an investigation has been completed.
It’s unclear how soon Kahl’s nomination will advance in the full Senate. A spokesperson for Schumer did not respond to a request for comment on whether the leader would act on the request.
The FBI did not immediately comment. The Hill newspaper first reported that the lawmakers had sent the letter calling for the FBI investigation.
The senators claim that Kahl revealed classified information when he tweeted details on March 1, 2017, about a National Security Council deputies meeting regarding a counterterrorism raid in Yemen. Kahl tweeted that he heard the Yemen portion of the meeting lasted less than 30 minutes and ended with Deputy National Security Adviser K.T. McFarland saying “saddle up.”
But Kahl disputed that claim in the March 23 letter to Inhofe and Armed Services Chair Jack Reed (D-R.I.), saying that the length of time allegedly spent discussing Yemen during the meeting was publicly acknowledged by a senior administration official in the article his tweet referenced.
An earlier letter from Hagerty in March to Reed and Inhofe noted that Kahl in early 2017 tweeted about the processes by which former President Donald Trump received his classified President’s Daily Briefing, alleging that the information was “not readily available from any open source and therefore likely to have been solicited from his still-serving U.S. Government associates.”
Kahl also disputes that he revealed classified information in this instance, noting that Trump himself publicly gave details about his daily briefing and citing reporting dating from early in his presidency.
“My tweets regarding the PDB were in that context of that publicly reported information. The other tweets referenced also do not contain any information I knew to be classified,” Kahl wrote.
The Republican senators in their Tuesday letter called Kahl’s response from late March “evasive.”
Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists, told POLITICO that the Senate GOP letter “fails to meet several of the criteria that the Department of Justice uses to initiate a leak investigation.”
“Specifically, the senators do not address whether the information in question was in fact classified; whether, if so, it was properly classified; whether it was already in the public domain; or whether its disclosure actually had any adverse effect on the national defense,” Aftergood said. “So this letter by itself does not form an adequate basis for investigation. The fact that it was signed exclusively by Republicans, many of whom are critical of Kahl for other reasons, speaks for itself.
“Also, the suggestion that it is somehow inappropriate to contact government officials and to ask them about matters that may be classified is silly and wrong,” he added. “This is a normal, everyday practice. It is up to the serving officials to set the boundaries on disclosure.”
David Laufman, a former federal prosecutor who ran the Counterintelligence and Export Control Section at the Department of Justice until 2018, said that an investigation into leaks of classified information is traditionally generated by a request from the agency with purview over the information.
“The U.S. government agency that is the ostensible victim of the disclosure sends a crimes report, reporting there has been an unauthorized disclosure and identifying it in some fashion,” he said in an interview. “That comes in through an established mechanism and a threshold assessment is made.”
The threshold for initiating a leak probe, he said, is based on what is referred to as ”the 11 questions” regarding unauthorized disclosure that were developed by the director of national intelligence.
“My antennae are up that this is the subject of a letter signed only by Republican members, which raises questions about the motivations of this,” Laufman added. “That doesn’t speak to the merits of whether there was a violation of law. It’s great that these members of Congress are concerned about it. The real question is whether the agency that owns the information at issue is concerned about it. Have they filed a crimes report?”
The push for the FBI to probe Kahl’s tweets is the latest jab from Republicans. GOP senators are opposing him over differences on Israel and Iran policy, namely his advocacy for the 2015 Iran nuclear deal.
Republicans have also highlighted tweets from Kahl’s time out of government in which he criticized Trump’s national security policies and GOP lawmakers. The tweets featured prominently in Kahl’s contentious March confirmation hearing.
Kahl apologized to the panel for his rhetoric and argued he would approach the top policy job on a nonpartisan basis and his dealings with Capitol Hill on a bipartisan basis.
Democrats and numerous former defense and foreign policy officials have backed Kahl, arguing he’s the target of a “smear campaign” and that opponents are using his nomination to relitigate the Iran agreement.
The Armed Services Committee deadlocked in a 13-13 tie vote last month on his nomination. All Republicans voted against him.
He can still be confirmed if Democrats remain united, but the process on the Senate floor will be arduous, requiring Schumer to make a rare motion to discharge his nomination to the full Senate, and could require Vice President Kamala Harris to cast several tie-breaking votes.