It's time for Obama to take a side in the battle between the CIA and the Senate

Since Sen. Dianne Feinstein of California gave an explosive speech this week charging the CIA with spying on and intimidating members of the Senate Intelligence Committee, the U.S. government has been embroiled in nothing less than a full-blown constitutional crisis.

Detailing how the agency had searched her staff's computers over a long-in-the-works report on Bush-era interrogation tactics, she publicly accused the CIA of violating "the Fourth Amendment, the Computer Fraud and Abuse Act, as well as executive order 12333, which prohibits the CIA from conducting domestic searches or surveillance."

She said that criminal accusations by the CIA acting general counsel against her staff are completely bogus and "a potential effort to intimidate this staff." The general counsel, Robert Eatinger, reportedly referred the matter to the Justice Department earlier this year, under supposed suspicion that Feinstein's staff had improperly obtained documents related to the CIA's secret prisons and interrogation methods.

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Coming as this does from a senator who has long protected the agency, such an accusation is staggering. It lays bare just how big a threat the surveillance state has grown to our democratic foundations. As David Corn at Mother Jones notes, without effective monitoring over spy agencies, "secret government cannot be justified in a democracy." Marcy Wheeler goes further, saying that we had already reached a constitutional crisis point — Feinstein is just late to the party.

In any case, if Feinstein is now turning on the CIA in language that would turn Glenn Greenwald's head, we have reached a true watershed moment. If Feinstein cannot rein in the CIA, then no one can.

It's time for President Obama to come down on one side or the other. Is he with the CIA or the Senate?

Here are the stakes, regarding the Intelligence Committee's report. At this point, we know the following for a fact:

(1) During the Bush years, the CIA committed war crimes, in the form of systematic torture, occasionally to death.

(2) An employee of the CIA, Jose Rodriguez, destroyed evidence of those crimes, in the form of videotapes of the torture sessions.

(3) The CIA lawyer who signed off on the destruction of the tapes was one Robert Eatinger — now acting general counsel for the CIA as a whole.

At this point, we can hypothesize the following with a pretty high degree of confidence:

(1) The CIA is deliberately sandbagging the investigation and attempting to prevent the release of the torture report to protect its reputation and shield its officers from prosecution. The self-interested motivation here is obvious.

(2) The criminal threat against the Senate staffers is a last-ditch effort in this vein. It's highly unlikely that Feinstein's staffers would be reckless or dumb enough — let alone have the technical expertise necessary — to hack the CIA's network. And again, CIA self-interest.

(3) The Senate report will show not just that the torture program was illegal (that much is obvious), but that it was completely ineffective. That fits with other accounts of the CIA program and historical studies of torture as well.

However, to cite Marcy Wheeler again, the CIA's legal and tactical positions are looking quite good. There is little that the Intelligence Committee can do to attack the CIA directly, and the Department of Justice is notorious for running interference for other executive branch agencies. Moreover, the Senate moves very slowly, and Republicans might well take back the chamber in the upcoming midterm elections. That would put CIA lapdog (and torture jokester) Richard Burr into the committee chair, who has already attacked Feinstein for airing this dispute.

But on the other hand, the CIA's political position is not great, even in the corroded political climate we have today. Feinstein is a Very Serious Person in good standing, and an accusation from her carries a hundred times more weight in official Washington than one from, say, Bernie Sanders. And this controversy cuts right through the comfortable hypocrisies that typically muffle discussions of executive branch abuse, since this time a portion of Washington itself is the victim.

Quite frankly I suspect that President Obama will try to sweep this under the rug, or pretend that his hands are tied, out of fear of alienating the CIA. But realistically there are a lot of levers available to a committed president who wants to influence executive branch agencies.

Second-term presidents are supposed to be concerned with their legacy. Does Obama want to go down as the president who threw the Senate over the side in favor of a bunch of lawless, torturing war criminals — those who perpetrated the kind of abuses he condemned when he first ran for office? If he wants to avoid that, he can start by demanding the torture report be declassified. Now.