Crossposted on Balkinization
This week, Sen. Dianne Feinstein gave a speech on the Senate floor that Sen. Patrick Leahy, a 40-year veteran of the Senate, described as one of the most important he had ever witnessed. For over half an hour, Sen. Feinstein, the powerful chair of the Senate Intelligence Committee, described the committee’s exhaustive investigation of the CIA’s post-9/11 interrogation program, which produced a still secret and apparently damning 6,000-page report.
In her speech, she leveled charges against the CIA including that they had falsely accused the committee’s staff of accessing classified documents that had in fact been made available to the committee by the agency; had obstructed the committee’s investigation by removing relevant documents; had violated fundamental constitutional principles by monitoring Senate staff’s work product; and had potentially violated federal law. She declared the CIA’s actions “may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.”
Sen. Feinstein was also notably exercised about what she characterized as an attempt by the CIA to intimidate the committee’s staff. After years reviewing the “horrible details” of the CIA’s torture program, staff has been rewarded with a criminal referral to the Department of Justice based on allegations of illegally accessing secret documents. As she pointedly observed, the DOJ referral was made by the acting general counsel of the CIA, who is named more than 1600 times in her committee’s report for his previous role as chief lawyer to the CIA’s interrogation unit.
But for civil liberties advocates, Sen. Feinstein’s outrage lends itself to charges of hypocrisy.
As chair of the Intelligence Committee, she has staunchly defended the NSA’s collection of information about millions of Americans’ phone calls a under highly dubious legal authority. She has also denied that its maintenance of a sweeping database of this phone metadata even constitutes surveillance, and proposed “reform” legislation that would do little more than codify the existing spying apparatus.
As one popular narrative goes, Sen. Feinstein didn’t care about intrusive government searches until she or her staff were the target. This account, however, while superficially appealing and rhetorically satisfying, is misleading. For Sen. Feinstein, this fight isn’t about Americans’ privacy. It’s about institutional prerogative and agency authority.
Although Sen. Feinstein invoked the Fourth Amendment and the presidential order barring domestic surveillance by the CIA, the word “privacy” doesn’t appear anywhere in her speech. Instead, as she repeatedly explained, her beef (and it’s an important one) is with the CIA’s overstepping its bounds and attempting to control its congressional overseer. She was even willing to forgive and forget the first time it happened, when the CIA attempted to gaslight the committee by removing from CIA computers documents that staff had already reviewed, evidently hoping the documents would disappear from the staff’s memories as well. When it happened again, though, and when the removed document was an internal CIA review that backed up the committee’s conclusions and directly contradicted the CIA’s public statements, the committee had had enough. It was this action that set in motion the collision between the branches that has erupted into full view.
When viewed through this lens, Sen. Feinstein’s stance on the NSA spying revelations and on the CIA’s ham-handed attempt to push back at its Senate overseers becomes more coherent on one level. She is a fierce defender of the committee’s work, to the point of muzzling other senior members who disagree with her. In her view, the Senate Intelligence Committee has effectively supervised the many tentacles of the intelligence community, and suggestions to the contrary – whether from a public outraged about a secret spying program or from a coordinate branch attempting to undermine that oversight – are equally offensive.
The committee’s history tells a different story, however. Fellow senators and advocates have complained that the committee has been co-opted by the executive agencies it is meant to oversee. It has been described as treating the intelligence officials who appear before it not as witnesses but as matinee idols. And at least one of the spying programs approved by the intelligence committee has been criticized by the author of the law that ostensibly authorized it and declared unconstitutional by a federal judge. In the meantime, Sen. Feinstein has doubled down in her defense of the programs, even where some of the underlying justifications have been conclusively disproven.
Sen. Feinstein’s speech defending her committee’s prerogative was candid, provocative, and important. It brought to light what truly may be a constitutional crisis. The committee’s laudable inquiry into CIA torture has not, however, been matched by equal rigor when it comes to domestic spying. She should apply robust oversight to the executive’s spying program – if not because she values privacy, then because her committee’s institutional integrity depends on it.