Senator Feinstein Versus the Central Intelligence Agency: What's Really At Issue

The Implications of Senator Feinstein Versus the CIA Senator Diane Feinstein delivered a 40 minute harangue against the CIA Tuesday on the Senate Floor. Senator Feinstein is Chair of the Senate Intelligence Committee and a long time public supporter of the CIA and the NSA. The Senator’s speech came without warning and preempted a scheduled presentation later that day by CIA Director John Brennan before the Council on Foreign Relations. Senator Feinstein exclaimed “I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the United States Constitution, including the Speech and Debate Clause.” She added the CIA may have violated the 4th Amendment, the Computer Fraud and Abuse Act, and Executive Order12333. She asked for an apology and recognition by the CIA that the search of Committee files was inappropriate. She, that is the Senate, has not yet received an apology, but instead a blistering denial by the Director of the CIA. If these statements are coming from a staunch supporter of the CIA, then imagine what its opponents, especially in Congress, are thinking. Whatever good will for the CIA came from last year’s movies, ARGO and Zero Dark Thirty, are gone. The underlying facts are somewhat confusing. The Senate Intelligence Committee has been exercising its oversight responsibilities for years trying to get to the bottom of the CIA’s counter-terrorism activities after 9/11. The Bush Administration disclosed in 2005 the generalities of the program. The CIA responded to inquiries about waterboarding by destroying several interrogation tapes. The CIA program included aggressive interrogation techniques, secret renditions, and extensive confinements. The CIA provided the Senate Committee access to a facility in Northern Virginia, and apparently provided the computers. It dumped about 6.2 million documents without an index or summary on the Committee. The CIA did provide though a search engine to access the documents. Somehow the Committee obtained a 6,300 page internal draft report to then CIA Director Leon Panetta. The report may, or may not, conclude the CIA’s techniques were unsuccessful. The Committee claims it obtained the report, not intended for disclosure, through the search engine. Whether it was available through the negligence of a CIA employee or from a whistle blower is uncertain. The CIA believes the Senate Committee illegally obtained it. We have at this point a disputed question of fact, which could have been privately resolved, by the President if necessary. However, the Acting General Counsel of the CIA, Robert Eatinger, referred the matter to the Justice Department for a criminal investigation. In addition, Committee staffers found documents missing from their downloads: 870 by February 2010 and an additional 50 by mid-May 2010. CIA Director Brennan said in January that the Agency had searched the Committee’s files looking for unauthorized information. He has since denied the CIA hacked into the Senate Committee’s files: “As far as the allegations of CIA hacking into Senate computers – nothing could be farther from the truth. We wouldn’t do that. I mean that’s, that’s, that’s just beyond the scope of reason.” No it’s not. He added that he was “deeply dismayed” that some members of the Senate “made spurious allegations about CIA actions that are wholly unsupported by the facts.” The technicality is that the CIA probably did not believe it is hacking to search one’s own computers, even if loaned to another branch of the government. One of the conditions in the original agreement between the Senate Committee and CIA was that no documents would leave the facility. The Committee has now made some hardcopies, perhaps parts of the 6,300 word report, and stored then in a secure location. Our vacillating President has refused to take sides in the dispute – a dispute that goes to the heart of our democracy. The President is stuck on the horns of a dilemma, between Scylla and Charybdis. Who does he follow? The Senate or the CIA, led by his appointee John Brennan. Congress, no matter how deep the political divide, will stand as one when the institution is betrayed. A few Republicans are sticking with the CIA and a few wish the dispute was kept private, but most understand the need for Congressional solidarity. The CIA allegations are not a political dispute, but one of legitimacy. Our Constitution is premised on civilian control of the military, which today will include the intelligence agencies. The military, CIA and NSA answering to the civilians, which includes Congress, is essential to the survival of our democracy. President Obama is not overly concerned by the mandates of the Constitution, but we should be. Disputes between the Executive and Legislative branches over the disclosure of documents are common, such as the current House lawsuit to obtain the Fast and Furious documents. The disputes are usually resolved with the President often bending somewhat on Executive Privilege. This dispute is of a different magnitude. Senator Feinstein is alleging the CIA hacked into the files of the Senate. The CIA is spying on its civilian overseers. If true, the CIA’s actions are a direct attack upon the United States Senate and our democracy. They may be worse than the NSA’s spying on Americans, which also have been unproductive. To the best of our knowledge the CIA did not eavesdrop on members of Congress or opposition political leaders. They are as suspect as the IRS’s continuing attacks on political opponents of the current Administration. The irony with the CIA and NSA is that they are charged with protecting our safety, our rights. They are breaching our fundamental rights in the name of securing them. President Lincoln told us "We are a government of the people, by the people, for the people." We are not a government of the government, by the government, for the government.