Finally, administration secrecy on torture provokes a Constitutional crisis
This morning, on C-SPAN, the foundation of the national security state exploded.
Sen. Dianne Feinstein (D-Calif.), the chair of the Senate intelligence committee, took to the Senate floor and accused the CIA of spying on committee investigators tasked with probing the agency's past use of harsh interrogation techniques (a.k.a. torture) [surely that "a.k.a" is the other way round!] and detention. ....
Feinstein said that the CIA appeared to have violated the Fourth Amendment barring unreasonable searches and seizures—and perhaps other federal laws and a presidential executive order prohibiting the CIA from domestic searches and surveillance. She confirmed that the Justice Department was on the case. She said she has demanded an apology from the CIA and an admission that the agency's search of the intelligence committee’s computers was wrong. "I have received neither," she declared. ....
This unprecedented speech by Feinstein has ramifications beyond the immediate controversy over the CIA search. It undermines the basis for secret government. ...
What was essential to decent governance on this front was the delicate* relationship between congressional overseers and the intelligence agencies. ....
[E]lected representatives have to be able to come to the public and say, "We're keeping a close eye on all this secret stuff, and we are satisfied that we know what is happening and that these activities are being conducted in an appropriate manner." If such credible assurances cannot be delivered, the system doesn't work—and the justification for allowing secret government within an open democracy is in tatters.
Which is where we are today. Feinstein, no firebrand, is in open war with the CIA. ....
Here is how she summed up the current state of play:
If the Senate can declassify this report, we will be able to ensure that an un-American, brutal program of detention and interrogation will never again be considered or permitted. But, Mr. President, the recent actions that I have just laid out make this a defining moment for the oversight of our intelligence committee. How Congress and how this will be 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.
What Feinstein didn't say—but it's surely implied—is that without effective monitoring, secret government cannot be justified in a democracy. This is indeed a defining moment. It's a big deal for President Barack Obama, who, as is often noted in these situations, once upon a time taught constitutional law. Feinstein has ripped open a scab to reveal a deep wound that has been festering for decades. The president needs to respond in a way that demonstrates he is serious about making the system work and restoring faith in the oversight of the intelligence establishment. This is more than a spies-versus-pols DC turf battle. It is a constitutional crisis.
Ah yes. "[O]nce upon a time taught constitutional law." Good luck with that.** The Times concurs:
It was outrageous enough when two successive presidents papered over the Central Intelligence Agency’s history of illegal detention, rendition, torture and fruitless harsh interrogation of terrorism suspects. Now the leader of the Senate intelligence committee, Dianne Feinstein, has provided stark and convincing evidence that the C.I.A. may have committed crimes to prevent the exposure of interrogations that she said were “far different and far more harsh” than anything the agency had described to Congress.
Ms. Feinstein delivered an extraordinary speech on the Senate floor on Tuesday in which she said the C.I.A. improperly searched the computers used by committee staff members who were investigating the interrogation program as recently as January.
Beyond the power of her office and long experience, Ms. Feinstein’s accusations carry an additional weight and credibility because she has been a reliable supporter of the intelligence agencies and their expanded powers since the attacks of Sept. 11, 2001 (sometimes too reliable).
So, if the CIA has committed crimes, what is Obama going to do about that? Nothing, I would bet:
If evidence of improper action is found, the White House "would support getting to the bottom of it," he said. "The president has great confidence in John Brennan and confidence in our intelligence community and in our professionals at the CIA."
Strange if the fate of the Republic should turn out to rest with DiFi, but then stranger things have happened. Sam Ervin was no paragon.
NOTE * "Delicate" is one of those insider words you want to watch for.
NOTE ** I've got an idea! Let's give the CIA retroactive immunity!