In her angry broadside at the CIA on the Senate floor last week, Senator Dianne Feinstein (D-Calif.), the Senate Intelligence Committee chairwoman, said, “I have grave concerns that the CIA’s search … may have undermined the constitutional framework essential to effective oversight of intelligence activities or any other government function.”
She is right.
Congress has the constitutional authority to do robust oversight of executive branch activities.
Lost in the noise about who spied on whom in this continuing fight between the Senate Intelligence Committee and the CIA over release of a massive report on interrogations, is the history behind the skirmish.
The intelligence committees were created to address revelations of the Nixon administration’s documented spying on Americans, including illegal wiretapping and surveillance of civilian anti-Vietnam War protesters. The new House and Senate Intelligence Committees were granted “all necessary authority to exercise effective oversight over the intelligence agencies” and the executive branch was directed to keep the new committee fully and currently informed about its activities. The Foreign Intelligence Surveillance Act (FISA) passed by large bipartisan margins in 1978.
This structure worked well until 9/11, when the Bush/Cheney White House decided to invoke the president’s emergency “commander in chief” authority under Article II of the Constitution.
This meant developing policy outside of FISA and keeping most of Congress in the dark.
I was then the ranking member of the House Intelligence Committee. But the first time I learned that the Bush administration had not been following the law was when a leak disclosed the existence of the Terrorist Surveillance Program (a precursor to the phone metadata program revealed by the former National Security Agency contractor Edward Snowden). Only at that point did President George W. Bush partially declassify the existence of this wide-ranging surveillance program.
Congress pushed back — hard. The FISA regulations were updated and intelligence oversight activities were dramatically increased, largely on a bipartisan basis.
This is the backdrop to the nasty public spat involving Feinstein, Senator Mark Udall (D-Colo.), Senator Saxby Chambliss (R-Ga.), the ranking intelligence committee member and CIA Director John Brennan.
As an outsider looking in, this fight could have been avoided. The Senate Intelligence Committee’s authority most certainly includes the right to publish reports. Surely the CIA could have done with this 6,000 page report what it routinely does when former employees write books about their experiences: insist on deleting, or redacting, any information about sources and methods which could compromise ongoing operations and put lives at risk.
When the president discontinued the torture program, he said those involved will not be prosecuted, so this issue is not about those who worked hard to carry out what they believed to be valid orders.
Both sides, however, are dug in. And now intrigue has surfaced about the actions of Senate Democratic staff and whether Udall (in a tough re-election fight) overstepped. Equities on both sides are in dispute.
Meanwhile, the regular and important work of the Senate Intelligence Committee and much of the CIA is sidelined at a time when there needs to be keen analysis of Russia’s motivations and future intentions in Ukraine, Syria and Iran.
Louisiana Governor Bobby Jindal has urged the Republican Party not to be the “stupid” party. That applies here. This fight is stupid – a huge distraction over the valid exercise of Congress’s oversight role.
Negotiations need to start now over the release of a redacted report. Members of the Senate Intelligence Committee who oppose its release should vote against it and file dissenting views. But if a majority votes to release a redacted report, the public should have access to it.
I was walking toward the Capitol on 9/11, when the Pentagon was hit. The Capitol dome, where the Intelligence Committees were then housed, was widely believed to be the target of the fourth plane that crashed in a field in Shanksville, Pennsylvania. Of course I remember the universal resolve to protect America at all costs. And we have.
But, in hindsight, using executive power that is unfettered by congressional and court review also had serious costs.