What Congress' war with the CIA is really about

March 13, 2014, at 8:05 PM

Sen. Dianne Feinstein knew exactly what she was doing when she took to the well of the Senate and lobbed firebombs up the Potomac River, to the campus of the Central Intelligence Agency. Feinstein knows that Americans are worried about domestic surveillance, and that the intelligence community has been under constant siege by all four branches of government (the press included) for the better part of a year. She knows, moreover, that the reporters who cover national security tend to see her as an adult who doesn't go off, half-cocked, on the CIA, an agency she generally supports and defends.

Her allegations became instant BREAKING NEWS and page 1 headlines. On closer inspection, there is no free speech issue at stake, and this ain't a domestic spying scandal. It's functionally about the constitutional status of a shared, segregated computer system owned and operated by the CIA. The CIA obviously didn't secretly spy on the staffers, since the internal review's existence was acknowledged as soon as the Senate Select Committee on Intelligence (SSCI) staffers discovered it. But post-facto entering the "secure" quasi-executive-branch/quasi-congressional-branch computer system to remove documents is politically stupid. It violates the spirit of the CIA's agreement with Congress, although, I am almost certain, not the law. And it was bound to enrage Feinstein.

I don't think Feinstein wants to debate the Constitution. Here's what is really at stake.

1. For the better part of 15 years, the executive branch and Congress have regularly clashed over the executive branch's claim that the president and only the president has the capacity, ability, and express powers to define what constitutes national security information and, the important corollary, only the executive branch can decide and determine how to protect that information. At the core of claims about the state secrets privilege, about whistleblower prosecutions, about leak investigations of journalists, about even the quality of briefings given to Congress, you'll find this debate churning and churning. The basic posture of the executive branch today is that, because President Obama is committed to the principle of oversight, the executive branch chooses to share the information it deems relevant to allow Congress to conduct its oversight. It fights tooth and nail to prevent the judicial branch from forcing this posture to bend. In the end, of course, the executive branch can and does redact anything it wants from every classified document that isn't released by Edward Snowden.

Feinstein believes differently. Though she defers to the executive branch in matters of policy execution and conception, she thinks that her committee is entitled to everything it requires to facilitate its oversight regime. She concedes the existence of certain privileges, like a president's need to keep internal deliberative processes secret from Congress, to legitimate the existence of a separate and coequal set of privileges that Congress reserves when it comes to oversight.

In the instance of the SSCI's report on rendition, interrogation, and detention, or torture, the agreement between the CIA and Congress did not set any limits on the scope of documents, aside from their subject matter being relevant to the program. The CIA's objection, that there are date boundaries and that summaries of the available documents intended for the director of the Central Intelligence Agency are out of bounds, simply will not compute for Feinstein here.

2. The credibility of congressional oversight of the intelligence community is at stake. Indeed, to a growing body of elites, oversight even after the Church Committee reforms has been abysmal. So long as Congress gets to hear the secrets, they don't really seem to want to do anything about how they were procured. (See evil? Oversee no evil.) Basic question: What the hell is congressional oversight, anyway? Technically, it's an information gathering exercise to allow Congress to punish, reward, and facilitate through its delegated powers, such as the drawing of a budget and confirmation or rejection of nominees, and through its implied powers, like its propensity to formally refer criminal conduct to the Justice Department. It is vitally important to Feinstein that Congress not be complicit in facilitating the CIA's torture program, which constitutes, to me at least, the single most egregious and objectionable practice the intelligence community has willfully engaged in for decades. Her report concludes that the CIA regularly and repeatedly lied to Congress about the intelligence value it derived from the program and about the techniques used by interrogators. For Feinstein, the torture program is an aberration, reflecting an instance where the CIA lied to Congress, or deliberately incompletely informed Congress. If it isn't an aberration, of course, then the entire concept of congressional oversight is hollow.

3. Feinstein thinks the CIA tried to intimidate and bully her staff. Moreover, she has a personal objection to the acting general counsel of the CIA, Robert Eatinger, a man who participated in the program, and finds it to be a breach of basic ethics for him to refer to the FBI a criminal allegation about the misuse of classified information in a review of a program he participated in.






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