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CIA gone wild: Spies on Senate Investigative Committee

Written By | Aug 7, 2014

WASHINGTON, August 7, 2014 — An internal investigation by the CIA has found that its officials hacked a computer network used by the Senate Intelligence Committee in preparing its harshly critical report on the CIA’s detention and interrogation program.

The report by the agency’s inspector general also found that CIA officers read the e-mails of the Senate investigators and sent a criminal referral to the Justice Department based on false information. It was also discovered that the officers created a false online identity to gain access on more than one occasion to computers used by the committee staff.

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John O. Brennan, the agency’s director, has apologized to Sen. Diane Feinstein (D-CA), the committee chairwoman, and Sen. Saxby Chambliss (R-GA), the ranking Republican. He said he would set up an internal accountability board to review the issue, to be led by a former Democratic senator, Evan Bayh of Indiana. This, he indicated, could recommend “potential disciplinary measures” and “steps to address systemic issues.”

Members of both parties have expressed outrage, called for the CIA officers to be held accountable, and said they had lost confidence in Brennan’s leadership. “This is a serious situation and there are serious violations,” said Chambliss, generally a strong ally of the intelligence community. He called for the CIA employees to be “dealt with very harshly.”

Sen. Mark Udall (D-CO), another member of the Intelligence Committee, demanded Brennan’s resignation. He declared: “The CIA unconstitutionally spied on Congress by hacking into the Senate Intelligence Committee computers. This grave misconduct not only is illegal but it violates the U.S. Constitution’s requirement of separation of powers.”

When the CIA’s monitoring of the committee became public in March, Sen Feinstein delivered a blistering speech on the Senate floor accusing the agency of infringing on the committee’s role as overseer. Calling it a “defining moment” in the committee’s history, Feinstein said that how the matter was resolved “will show whether the Intelligence Committee can be effective in monitoring and investigating our nation’s intelligence activities, or whether our work can be thwarted by those we oversee.”

The CIA evidently hacked the Senate computers because it suspected that the committee staff had gained access to an internal CIA review of the government’s detention and interrogation program, which it intended to keep secret and never planned to share with Congress.

How can the Senate Intelligence Committee, whose members were elected by the people, maintain its oversight function of those bureaucrats who were elected by no one, if potentially damaging material is kept secret and not shared with them? If that is what our system of government has become, it appears to be out of control and certainly not the system of checks and balances and divided government established by the Constitution.

Late in July, the White House publicly defended Brennan. Asked whether the results of the investigation presented a credibility issue for Brennan, Josh Earnest, the White House press secretary, said, “Not at all.” Others remain skeptical.  Sen. Angus King (I-Maine) said that the CIA’s actions violated both the spirit and the letter of the constitutional separation of powers.  He asked:  “How do we do our oversight if we can’t believe what is being represented to us in our committee?”

While President Obama may be supporting John Brennan, it is interesting to remember that after Sen. Feinstein offered evidence in March about the hacking of Senate computers, Brennan was emphatic in his denials. He told the Council on Foreign Relations, “The allegations of CIA hacking into Senate computers..Nothing could be further from the truth. We wouldn’t do that. That’s just beyond the scope of reason…When the facts come out on this, I think a lot of people who are claiming that there has been this sort of tremendous spying and monitoring and hacking will be proved wrong.”

In fact, Mr. Brennan was proved wrong, and was shown to be lying about it as well. This is reminiscent of the earlier lies, under oath, by James Clapper, Director of National Intelligence, who lied about government surveillance programs, denying they existed. Mr. Clapper was never prosecuted for perjury. President Obama seems comfortable keeping him at his post.

The separation of powers seems not to be high on anyone’s agenda in Washington at the present time, least of all the Obama administration. Congress is supposed to oversee the intelligence community and rein in its excesses. It cannot  perform this function if it is lied to, and is spied upon by the very agencies whose legitimate function is to be directing its efforts against threats to national security, not the offices of our elected representatives.

Our government is out of our control if non-elected officials are not compelled to obey the law. The CIA is trying to keep from the American people the truth about “enhanced interrogations” conducted in their name. Antonio M. Taguba, a retired major general in the U.S. Army notes that, “Agency officials, past and current, surely believe that by seeking to undermine the credibility of the (Senate) report, they are acting in the best interests of the agency.  But when the chairman of the Senate Intelligence Committee, Dianne Feinstein, has accused you of spying, you may want to reconsider your P.R. strategy.  Yet we learn that the former CIA director George J. Tenet, who presided over the ‘enhanced interrogation’ program and later claimed that ‘We don’t torture people,’ is working with the current director, John O. Brennan, to shape the agency’s response to the report.”

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Conservative commentator Andrew Napolitano, a former judge of the Superior Court of New Jersey, states: “Under federal law, the CIA gets to do what the president permits and authorizes only when it reports its deeds and misdeeds truthfully to two congressional committees…However…on a sleepy summer afternoon, Mr. Obama admitted that the CIA had tortured people, and shortly thereafter Mr. Brennan admitted that the CIA had spied on the Senate.  Then the president said he still has confidence in Mr. Brennan.  This is approaching a serious constitutional confrontation between the president and Congress.  Can the president”s agents lawfully spy on Congress?  Of course not.  Can the CIA lie to Congress with impunity?  Only if Congress and the Department of Justice let it do so.”

President Obama once promised that his administration would be the most “transparent” in history.  In fact, it may turn out to be the least. Sen, Feinstein now says that heavy censorship by the administration of her committee’s report on the CIA’s detention program eliminates or obscures “key facts” buttressing the document’s conclusions.  She pledged to fight for more of it to be declassified. According to New York Times, “…the president…pointed out that one of his first acts as president was shuttering of the spy agency’s detention program. But further delays in releasing the report, and a perception that the White House is protecting the CIA could be a blow to an image the president has cultivated as someone who opposed a program of torture.”

Sen, Feinstein declares that, “The bottom line is that the U.S. must never again make the mistakes documented in this report. I believe the best way to accomplish that is to make public our thorough documented history of the CIA’s program.”

Concern about the role played by non-elected officials in our system of government is hardly new. In his classic study, “Bureaucracy and Democracy,” political scientist Charles Hyneman issued a warning about the strength and power of the bureaucracy more than fifty years ago:  “It is in the power of these men and women to do us great injury, as it is in their power to advance our well being. It is essential that they do what we want done, the way we want it done.  Our concept of democratic government requires that they be subject to direction and control that compel them to conform to the wishes of the people as a whole whether they wish to do so or not.”

To the growing trend of bureaucratic autonomy he observed, Hyneman, who worked in government and was a professor at Northwestern University, argued that, “The American people have authorized nobody except their elected officials to speak for them. The administrator may have good judgment as to what most of the American people want but he does not know what most of the people want…The elected officials, President and Congress do not know what most of the people want either, but they speak authoritatively on that subject because they have been authorized to speak on that subject. If they say the wrong things in their instructions to the administrative branch they can be got at and repudiated through the procedure set up for popular control of the government, the political campaign and the election. That procedure is not available for the direct recall of the administrator who makes decisions which incur widespread displeasure.”

Today, when unelected bureaucrats spy on elected representatives and lie under oath before congressional committees, and the president tells us he has “confidence” in them, rather than removing them from their positions, we certainly appear to have a government radically different than that outlined in the Constitution, and hardly the kind of “transparent” government  President Obama promised to provide.

Allan C. Brownfeld

Received B.A. from the College of William and Mary, J.D. from the Marshall-Wythe School of Law of the College of William and Mary, and M.A. from the University of Maryland. Served as a member of the faculties of St. Stephen's Episcopal School, Alexandria, Virginia and the University College of the University of Maryland. The recipient of a Wall Street Journal Foundation Award, he has written for such newspapers as The Houston Press, The Washington Evening Star, The Richmond Times Dispatch, and The Cincinnati Enquirer. His column appeared for many years in Roll Call, the newspaper of Capitol Hill. His articles have appeared in The Yale Review, The Texas Quarterly, Orbis, Modern Age, The Michigan Quarterly, The Commonweal and The Christian Century. His essays have been reprinted in a number of text books for university courses in Government and Politics. For many years, his column appeared several times a week in papers such as The Washington Times, The Phoenix Gazette and the Orange County Register. He served as a member of the staff of the U.S. Senate Internal Security Subcommittee, as Assistant to the research director of the House Republican Conference and as a consultant to members of the U.S. Congress and to the Vice President. He is the author of five books and currently serves as Contributing Editor of The St. Croix Review, Associate Editor of The Lincoln Review and editor of Issues.