I (sort of) understand about Angela Merkel and Americans who are just “two hops” (connections) from suspected terrorists. I understand mining all of our data to look for word patterns that could point to plans to make airplanes fall from the sky. Indeed, as half of the world continues to search for one lost aircraft, I really do understand that piece.
No. That is not OK. It’s not a question of privacy. It’s the Constitution that says no.
For years, Sen. Dianne Feinstein, the San Francisco Democrat (a label made famous by President Ronald Reagan in 1984 to connote all things liberal), has been a strong defender of the American intelligence community. In the wake of the Edward Snowden disclosures, it was Feinstein who stood up and insisted that the secret program had saved lives. And because it was Feinstein, many of us, knowing her to be principled and, OK, “liberal,” trusted her judgment. And she knew it. Some of her supporters, particularly in the tech community, attacked her for defending the surveillance programs, but she stood firm.
So it could not have been easy to take to the Senate floor last week to reveal that during the intelligence committee’s review of CIA detention and interrogation (a.k.a. torture) practices during the Bush administration, the CIA — without notice — reviewed the computer files of Senate staffers who were conducting oversight research in a secure facility set up by the CIA so the committee could conduct its review without risk of public exposure. Instead, it was CIA personnel who secretly accessed Senate computers to see whether the staffers had managed to secure an internal classified report that was highly critical of the CIA. Saying she was speaking “reluctantly,” Feinstein accused the CIA of violating the agreement governing the investigation.
This is no mere difference of opinion as to who had access to what information. The Senate Intelligence Committee was exercising its oversight function. It may not count as “hacking” because the computers had been set up for the Senate by the CIA (for “security” reasons), but that was to protect against outside hackers, not to give the CIA control over its overseers.
“I have grave concerns that the CIA’s search may well have violated the separation of powers principles embodied in the U.S. Constitution,” Feinstein said in her remarks. “I have asked for an apology and recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither. Besides the constitutional implications, the CIA’s search may also have violated 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.”
If the Senate cannot investigate the CIA without being investigated itself, who can? At the time that this review was being done, who else was there — other than the Senate Intelligence Committee — with any power to ensure that the CIA was not (and the way I read the Constitution, it was) exceeding its lawful bounds by using abusive techniques?
The CIA, understandably, is eager to put the “torture” chapter behind it. The internal report by former Director Leon Panetta, which the CIA was looking for on the Senate computers, like a classified report adopted by the Senate Intelligence Committee in 2012, reportedly concluded that resorting to abuse is ineffective in securing reliable information. While CIA Director John Brennan took issue with that conclusion in a classified response, he acknowledges that the agency has “made mistakes. More than a few. And we have tried mightily to learn from them.” The Obama administration, for its part, has said it wants the reports declassified, which may close the chapter on torture, but not on separation of powers.
This is no mere political spat. It goes to the fundamental checks and balances of our divided government, checks and balances that are the only real protection when the subject matter is itself clothed in secrecy. Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee, put it this way: “This is not just about getting to the truth of the CIA’s shameful use of torture. This is also about the core founding principle of the separation of powers, and the future of this institution and its oversight role.”
He’s right. If they’d do it to Dianne ...
— Susan Estrich is a best-selling author, the Robert Kingsley Professor of Law and Political Science at the USC Law Center and was campaign manager for 1988 Democratic presidential nominee Michael Dukakis. Click here to contact her or click here to read previous columns. The opinions expressed are her own.