It seems like even the biggest defenders of NSA spying on American citizens object when they are personally spied on. Senator Dianne Feinstein (D-CA), famous defender of the NSA, is a case in point. When the tables were turned and her own staff were allegedly spied upon by the CIA, she didn't like it.
While Fourth Amendment advocates will enjoy the irony of Feinstein's total reversal, there's a more important point at stake. Feinstein was right to condemn the CIA. Americans should be able to know what the CIA is doing in their name, and in this instance the CIA should release the documents they are seeking to censor; and if the CIA fails to do so then Congress must release a redacted version.
In Case You Missed It, Here's a Recap of Feinstein vs. the CIA:
When it was disclosed that the NSA was monitoring the phone calls of millions of American citizens, Feinstein defended their actions by claiming that "it's called protecting America." She added, "I feel I have an obligation to do everything I can to keep this country safe...So put that in your pipe and smoke it."
Just two months ago, Feinstein argued that the overwhelming majority of records are never looked at and are regularly destroyed. She further claimed that the intelligence community would never abuse its powers, because their professionals' activities are "strictly vetted."
But when it was disclosed that the Central Intelligence Agency (CIA) had allegedly spied on Feinstein and her Senate Intelligence Committee staffers while investigating the CIA, Senate Intelligence Chairman Feinstein went to the Senate floor and delivered a truly incredible speech condemning unwarranted spying. Feinstein blasted "the horrible details of a CIA program that never, never, never should have existed." Senator Patrick Leahy called her speech the most important to be given on the floor in 40 years.
Feinstein condemned the CIA's search for violating "the Fourth Amendment, the Computer Fraud and Abuse Act, as well as Executive Order 12333, which prohibits the CIA from conducting domestic searches or surveillance."
The American Civil Liberties Union, which has been a regular critic of Feinstein's defense of the NSA, called her anti-CIA speech a "forceful, necessary and historic defense of the constitutional principle of separation of powers."
"After so many years of Congress being unable or unwilling to assert its authority over the CIA, Sen. Feinstein today began to reclaim the authority of Congress as a check on the executive branch," said Christopher Alders, senior legislative counsel for the ACLU.
This whole situation is so ironic, it's straight out of a Tom Clancy novel (a real Tom Clancy novel, not one of those that he "co-wrote.").
Why Feinstein's Senate Intelligence Committee Investigated the CIA:
The Bush Administration had implemented enhanced interrogation measures after 9/11. When President Obama was sworn in in 2008, once of his first acts in office was to officially shut down the remaining vestiges of this program. Senator Dianne Feinstein, Chairman of the Senate Intelligence Committee, launched an investigation in 2009 into what happened under this program. She deserves substantial credit for choosing the institutionally difficult choice of delving into the past to determine what happened, and implement steps to ensure it won't happen going forward.
What Feinstein Found Out About the CIA: The Panetta Review
The CIA provided a large volume of documents to the Senate Intelligence Committee, apparently over 6.2 million pages. Originally, this information was provided to the Committee in a format where it was not tabbed and was not searchable.
Lawyers may recognize what appears to be an instance of a document dump, where a law firm, typically a large law firm, provides an incredibly large amount of information during discovery with the intention of making it difficult for the other side to find the relevant "needle in the haystack" within the document dump. It's a form of technically complying with a court order, but drowning the other side in work. In practice it doesn't often work in really thwarting an investigation, but it can be pretty effective in draining the resources of the other side - providing 6.2 million pages for a committee to investigate that only employs a few dozen staffers (and have numerous other responsibilities) seems like a clear attempt to hide the relevant information.
So when staffers stumbled upon a series of files that have been collectively referred to as the Panetta Review, previous CIA-Director Leon Panetta's review (or as the CIA Director calls it, "summary") of the relevant files and the conclusions that the CIA drew from the relevant files, they probably thought they had hit a gold-mine to both cut through the clutter of 6.2 million pages, but also to be able to cite the CIA's own internal conclusions.
What the CIA Did Next: Document Deletion
Around this time, Senate staffers start to notice that relevant documents were starting to disappear. Apparently, after the CIA had provided all these documents for review, it then realized that it had provided too much and tried to pull them back. Since the Senate staffers noticed when some of these files went missing within the 6.2 million-page haystack, one could hypothesize that they were files of potential relevance to the ongoing investigation. If staff noticed them being gone then they were likely relevant. It's at this point when the staffers realized what was happening that things went from a normal story of Congressional oversight to a plot from a Tom Clancy novel.
If the CIA is able to thwart an active investigation by the Senate Intelligence Committee, then there is no oversight of the intelligence branches, and then we truly have a lawless entity within the government, and one that operates almost entirely in the shadows.
How Feinstein's Staff Pushed Back: Spy v. Spy
When the Senate staffers realized that the CIA was actively thwarting their investigation and deleting documents, and with the background knowledge that in the recent past the CIA deliberately destroyed tapes of the enhanced interrogation, the staffers decided to take action in their own hands and print out copies of vital documents before they were deleted - then they sneaked the documents out of the CIA's secure area.
Imagine Senate staffers taking documents so classified that the CIA would go to the extent of deleting them from an oversight branch's computer, being printed out in black and white, put into a briefcase, taken in a taxi-cab across Washington, and brought into the Senate building where it was put into a locker in the Senate Intelligence Community's secure location (SCIF). This is, apparently, exactly what happened. It should be noted that the Senate Intelligence Committee's SCIF is an extremely secure location, not merely a random Senate office, access is highly controlled for only those with clearances. There are armed guards protecting access and security cameras. Not just any Congressional staffer can access these rooms. If this SCIF facility was secure enough to likely be the location where the existence of the raid on Bin Laden was disclosed to the Gang of Eight, then it is secure enough to hold an internal CIA review into past behavior. There are a large number of highly classified documents in these locations.
The printing out of highly classified documents, removing them from a secure facility and concealing their existence is a truly incredible move by a Congressional staffer who may have committed multiple felonies to protect the integrity of the constitutional process. (It seems like a textbook example of what should be pardonable by the President if these actions were a potential "crime").
Preliminary Report on the CIA's Enhanced Interrogation Program
What happened then? Panetta's review was sitting in the safe and the Senate Intelligence Committee issued a preliminary version of their report on the Enhanced Interrogation program, likely relying upon the Panetta Report.
The CIA responded with a 120-page rebuttal, which allegedly was directly contradicted by the Panetta Report. In other words, the CIA's rebuttal was not consistent with the former CIA Director's own analysis. At some point the CIA realized that the Senate Committee had the Panetta report, or at least were aware of its existence. On January 29, 2014, Sen. Mark Udall (D-CO) asked CIA Director John Brennan about the report in an open hearing.
It appears, based on Feinstein's allegations, that at that point, the CIA gained access to the Senate staffers computers to see if they had a copy of the Panetta Report - which they did. (It should be noted that the CIA still disputes this version of events but it's unclear what their version is). According to Feinstein, "The CIA just went and searched the committee's computers."
When this was discovered, the counsel of the Central Intelligence Agency referred the Senate staffers to the Attorney General for potential prosecution. As Feinstein would mention on the floor, this was the same counsel that had authorized much of the enhanced interrogation programs and has potential skin in the game for what the report would look like.
Thus this would lead to a standoff where the CIA was directly going after Senate Intelligence Committee staffers, allegedly obtaining access to their computer system without their permission, and the Senate Intelligence Committee refused to give up documents that they had "stolen" from the CIA. At this point, Feinstein took to the floor, and took the CIA apart for their actions, which the current CIA Director, John Brennan, now denies.
How Congress Could Rein in CIA Spying: The Nuclear Option
Recently Senator Rand Paul and others have gotten involved. "There's an incredible arrogance to me that the CIA thinks they can spy on a committee that is providing oversight for the CIA, and I think it's a real, very serious constitutional breach," Paul said. "This cannot happen in a free country."
At this point, the public has a right to read what the CIA concluded in its internal review and summary of the enhanced interrogation program. If the report was damming enough that the CIA would seek to delete it and impede an active investigation, then it is likely that the report has information of public significance. Most of the waterboarding and other most ghastly aspects of enhanced interrogation took place in the years directly after 9/11. Information from nine years ago should be made known to the public. Previous reports have been released to the public with substantial portions blacked out to protect national security, such as the 9/11 Commission Report. There is no reason why this report can't be released with information redacted to protect sources and methods. While the CIA could choose to declassify it tomorrow, it is unlikely to do so. The White House can't declassify it until the Senate Intelligence Committee report comes out.
But there is another option, a nuclear option, that Dianne Feinstein should utilize to break through this log-jam.
Congress has chosen to enable the rise of the national security state by allowing for the executive branch to decide that certain activities are entirely classified and off-limits from public discourse. Classification is an executive regulatory agency process; it's a form of regulation. Congress doesn't have to accept this: it could declassify essentially whatever it wants. Surely not everything should be declassified, but if the CIA is keeping something classified that is in the public interest to know, then Congress could fix that tomorrow, either through formal legislation or through a nuclear option.
The Speech or Debate Clause of the US Constitution (Article I, Section 6, Clause 1) states that "members of both Houses of Congress ...shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place." In other words, Members can say whatever they want on the floor.
On June 29, 1971, US Senator Gravel entered 4,100 pages of the Pentagon Papers to the Congressional Record (through his Subcommittee on Public Buildings and Grounds). The Pentagon Papers were an internal review by the Pentagon into their engagement in Vietnam, that the Pentagon wanted to keep classified and which the US government was prosecuting Daniel Ellsburg for releasing. The United States Supreme Court in Gravel v. US (1972) upheld Senator Gravel's right to do so free from prosecution, and extended this right to his legislative aides.
Today, the CIA is trying to withhold the Panetta Report from Congress and the public. This report is apparently the CIA's own "summary" (according to Director Brennan) of the 6.2 million pages it already provided to the Committee, providing further credence to the argument that a redacted version of its release could not have an impact upon US national security. According to Leon Panetta himself, it was just looking at the material that was being provided to the Hill. There wasn't any kind of formal study. They call it "the Panetta review,' but it wasn't a formal study."
If Senator Feinstein is unable to get the report released by the CIA, then she should have her aides go through the report line by line to redact it, and offer the CIA the opportunity to ask for its own redactions, and then enter a redacted version of the report into the Congressional Record.
It is time for the American people to know what happened in our name, whether it was effective or not, and how to ensure that this never happens again.
Derek Khanna was listed in the Forbes 30 Under 30 for Law and Policy for 2014. He is a Yale Law Fellow, columnist and policy expert. He wrote the House Republican Study Committee Memo on reforming copyright law and spearheaded the campaign on cellphone unlocking. Follow him on Twitter.