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DiFi and the Snoops

Feinstein the Hypocrite

by CHRISTOPHER BRAUCHLI

It seems to me what the nine hundred ninety four dupes needed was a new deal.

A Connecticut Yankee in King Arthur’s Court, Mark Twain

Gracious.  That’s all one can say.  It is simply a question of whose ox is getting gored or, in the real world, who’s spying on whom.  Dianne Feinstein (D.Calif) called him a traitor and even said that if he had simply come to the House or Senate Intelligence Committees and presented all his information to the Committee, the Committee could have evaluated it.  She said his failure to do that was an enormous disservice to the country.   She said he was not simply a whistle blower.  “He took an oath-that oath is important. He violated the oath, he violated the law.  It’s an act of treason in my view.”  She was joined in her condemnation of Edward Snowden by John Boehner who said of Snowden:  “He’s a traitor. . . .  The disclosure of this information . . . . [is] a giant violation of the law. . . . The president outlined last week that there were important national security programs to help keep Americans safe, and give us tools to fight the terrorist threat that we face.   The president also outlined that there are appropriate safeguards in place to make sure that there’s no snooping, if you will, on Americans here at home. . . .”  That was, of course, said, before Mr. Boehner and Ms. Feinstein learned that the Senate Intelligence Committee was being snooped on by the CIA and the CIA said it was being snooped on the staff members of the Senate Intelligence Committee.

Senator Feinstein had harsh words for what the CIA was doing: the same kind of words used by citizens to describe the activities of the NSA when they learned of its spying on citizens and the likes of Germany’s Angela Merkel and Brazil’s Dilma Rousseff. Senator Feinstein said the CIA may have violated the Constitution and U.S. laws by spying on committee computers being used by staff members to review CIA documents about the programs used by the CIA to interrogate terror suspects.  The CIA was  also searching internal messages and staffers’ work on other computers. Commenting on the CIA activities Senator Feinstein said:  “I have grave concerns that the CIA’s search may well have violated the separation –of-powers-principles embodied in the U.S. Constitution.” As she explained, the CIA has violated federal law and undermined the constitutional principle of congressional oversight.

Senator Feinstein referred an internal agency investigation of the CIA’s activities to the Justice Department so that it can consider criminal prosecution of the CIA for its activities.  She not only wants the activities by the CIA stopped, she wants the CIA to apologize and acknowledge that what it did was wrong. The CIA has neither apologized nor acknowledged its misbehavior and appears to have no intention of doing so.  Instead, it told the Council on Foreign Relations that the CIA had done nothing wrong.  And that’s not all the CIA did.  Not wanting to be outdone by Senator Feinstein, it made a criminal referral to the Justice Department.  It wants the Justice Department to determine if committee staff members broke the law by gaining unauthorized access (spying) to CIA computers and taking CIA documents from a secure facility.

Although he was not called on to address the pillow fight between the CIA and the Committee, Judge Richard J. Leon’s  words in a December 2013 decision about the NSA spying might well apply to the activities of all the parties involved in this scuffle.  He described the NSA spying practices as “almost Orwellian,” saying that the NSA phone snooping violates American’s privacy rights.  He said that James Madison would be “aghast” at the NSA’s activities.  After the judge announced his decision Senator Bernard Sanders (I.Vt.) chimed in saying:  “The NSA is out of control and operating in an unconstitutional manner.” They would probably have said the same things about the CIA and the Senate Intelligence committee had they known of their activities.

Not all Senators thought Senator Feinstein’s criticism of the CIA appropriate.  Senator Saxby Chambliss (R.Ga.)  said he and Senator Feinstein “have some disagreements as to what the actual facts [about the CIA activities] are.”  Senator Richard Burr (R.NC)  was critical of Senator Feinstein for discussing the dispute publicly.  Like those who thought Mr. Snowden should have kept quiet about what he knew about misbehavior by the NSA, he said:  “I personally don’t believe that anything that goes on in the intelligence committee should ever be discussed publicly.”  He is apparently of the school that believes that what goes on in government is not the people’s business, especially if  the activities being concealed affect the constitutional rights of the citizens.

Christopher Brauchli is a lawyer in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu