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Feinstein Deserves An Apology, Not An Investigation

Any Justice Dept. probe of the Senate’s investigation of the CIA appears punitive and could trigger a Constitutional crisis.

March 20, 2014

One mid-summer week in the nineties, I found myself in the northernmost part of Idaho coaxing white supremacists down from their mountain hideaways. I was the line Democratic counsel on the Senate Judiciary Committee’s special investigation of the incidents at Ruby Ridge, Idaho, a tragic confluence of events that left one US Marshal and a mother and child shot dead on an arid western mountaintop.

So as the Canadian geese began their southern migration, I went out to Idaho with the Committee’s special counsel to interview witnesses and inspect evidence.

Oddly, when our plane to Idaho landed, we found an FBI agent had been on the flight with us. He bird-dogged us through the trip. He was a nice guy, so we didn’t mind too much when he tagged along on some of our field trips. And he certainly didn’t deter us, whatever his intentions.

My thoughts turned to that experience when last week the Senate floor erupted with an extraordinary speech by Senator Dianne Feinstein, chairman of the Senate Select Committee on Intelligence. She detailed what she called a “potential effort” by the CIA “to intimidate [the committee] staff” as it works on a report about the CIA’s “enhanced interrogation” program.

The CIA’s efforts, according to the Senator, have involved unauthorized searches of Committee computers, and, to put a cherry on top, a Department of Justice referral seeking a further FBI-led investigation of the Senate staff.

With her speech, Senator Feinstein uncorked what may well become a critical constitutional dispute. For if she is right, then an executive branch agency has trampled on the constitutional rights of a group of people who take their rights very seriously—Senators. (The Brennan Center’s Rachel Levinson-Waldman has a different take on this story).

For the last five years, the Intelligence Committee has been reviewing the CIA’s Detention and Interrogation Program, the program that in the aftermath of the September 11 bombings used “enhanced interrogation” techniques. Those techniques were barred by President Obama when he took office.

The Intelligence Committee’s work has not proceeded smoothly. It has waded through more than six million pages of Agency documents and produced a 6,300-page classified report. In the process, Senate investigators found draft copies of an internal CIA report produced for then-CIA Director Leon Panetta that seriously questioned the value of the program. The Committee had been officially denied the internal “Panetta Report” but startlingly appears to have found it by in effect Googling it via an Agency-provided search tool, according to Feinstein. That’s some crack IT work there by our top spy agency.

Enraged, it seems, by the Committee’s report and access to the Panetta Report, the CIA struck back. According to Feinstein, late last year, the CIA broke into Committee computers trying to discover how the Senate investigators got the Panetta Report. It was not the first time, she said, that the Agency interfered with Committee staff.

Feinstein’s speech confronting the CIA was met by a unique blend of condescension and beaureaucratese. The Director of the CIA, John Brennan, murmured reassuringly, “Nothing could be further from the truth…That’s just beyond the scope of reason.” A White House spokesman dismissed the brouhaha as “involving protocols.”

The most surprising thing about both reactions to Feinstein’s explosive floor speech is the failure to utter one well-worn but palliative phrase: “we take these allegations seriously.”

It’s pretty clear from the reactions that they do not. Because privately, the CIA has done something completely different. In addition to spying on Senate investigators, it shopped an FBI criminal investigation.

So now Senate investigators are not only coming to grips with the fact that the CIA rummaged through their computers, but they are facing the prospect of a full-blown FBI investigation into their effort to get to the bottom of a discredited and repellant executive branch program. If that’s not a chill on legitimate legislative branch activity, I don’t know what is.

The CIA’s actions have not only ignored our constitutional principles of separation of powers but have directly challenged Congress’s Speech and Debate Clause immunity which also extends to staffers. Article One, Section Six of the Constitution establishes the right of Congress to freedom from prosecution or investigation for activities conducted in the execution of the legislative role.

It’s hard to love the Speech and Debate Clause unequivocally. For in fairness, scoundrels usually invoke it. In recent years, a significant portion of clause jurisprudence has involved public corruption cases. Not surprisingly prosecutors are frustrated by the immunity provision and have gone on the attack, complaining that it has derailed, delayed or complicated four particular investigations.

In 2007, the D.C. Circuit took an expansive viewpoint on the clause’s scope in United States v. Rayburn House Office Building, Room 2113 497 F.3d 654 (D.C. Cir. 2007). Despite the charming suggestion that the appellant was a room, in fact, the case involved the 2006 execution of an FBI search warrant on the congressional office of William Jefferson, then a congressman from Louisiana. Jefferson, you may recall, was subsequently found guilty of 11 counts of corruption by a jury likely swayed by both video of him being given $100,000 in a leather briefcase and by him stashing $90,000 of it in his freezer.

But when it came to searching Jefferson’s office, the D.C. Circuit drew the line: “a key purpose of the privilege is to prevent intrusions in the legislative process and that the legislative process is disrupted by the disclosure of legislative material, regardless of the use to which the disclosed materials are put.…The bar on compelled disclosure is absolute….” Nevertheless, the prosecution proceeded (and succeeded) using other evidence.

Four years later, the Ninth Circuit faced a different challenge. In United States v. Renzi, 651 F.3d 1012 (9th Cir. 2011), the court took on the case of then-Arizona congressman Richard Renzi who was accused of a somewhat complex money for support scheme. Renzi argued that the “negotiations” between him and the companies to whom he was, let’s say, “offering his services” were legislative acts protected by the clause. The court brushed him aside. Members of Congress cannot violate a valid criminal law in the course of pursuing their legitimate legislative roles.

A number of factors should make Intelligence Committee staffers nervous. While it looks like their offices cannot be searched, the scope of the clause’s immunity grant does not necessarily extend to how the staffers got the document in question. (See Gravel v. United States, 408 U.S. 606 (1972)). And Justice Department officials are clearly no fans of the provision—witness their carping about it via leaks to a Washington Post reporter in 2011. Finally, the Administration is known for its aggressive efforts to plug leaks.

If the Justice Department really does proceed with a full-blown investigation of this mess, however, it will cross a line. It will smell distinctly of trying to punish a critic, and this particular critic is a co-equal branch of government. That’s the sort of thing that creates what’s known as a constitutional crisis, a real one.

Let’s hope, instead, that someone in the Administration has the wisdom to offer Feinstein the apology and explanation that she asked for.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

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