By Susan Estrich
I (sort of) understand about Angela Merkel and Americans who are just "two hops" (connections) from suspected terrorists. I understand mining all of our data to look for word patterns that could point to plans to make airplanes fall from the sky. Indeed, as half of the world continues to search for one lost aircraft, I really do understand that piece.
But CIA agents searching the computers of the Senate Intelligence Committee members who oversee them?
No. That is not OK. It's not a question of privacy. It's the Constitution that says no.
For years, Sen. Dianne Feinstein, the San Francisco Democrat (a label made famous by Ronald Reagan in 1984 to connote all things liberal), has been a strong defender of the American intelligence community. In the wake of the Edward Snowden disclosures, it was Feinstein who stood up and insisted that the secret program had saved lives. And because it was Feinstein, many of us, knowing her to be principled and, OK, "liberal," trusted her judgment. And she knew it. Some of her supporters, particularly in the tech community, attacked her for defending the surveillance programs, but she stood firm.
So it could not have been easy to take to the Senate floor last Tuesday to reveal that during the Intelligence Committee's review of CIA detention and interrogation (a.k.a. torture) practices during the Bush administration, the CIA — without notice — reviewed the computer files of Senate staffers who were conducting oversight research in a secure facility set up by the CIA so the committee could conduct its review without risk of public exposure. Instead, it was CIA personnel who secretly accessed Senate computers to see whether the staffers had managed to secure an internal classified report that was highly critical of the CIA. Saying she was speaking "reluctantly," Feinstein accused the CIA of violating the agreement governing the investigation.
This is no mere difference of opinion as to who had access to what information. The Senate Intelligence Committee was exercising its oversight function. It may not count as "hacking" because the computers had been set up for the Senate by the CIA (for "security" reasons), but that was to protect against outside hackers, not to give the CIA control over its overseers.
"I have grave concerns that the CIA's search may well have violated the separation of powers principles embodied in the U.S. Constitution," Feinstein said in her remarks. "I have asked for an apology and recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither. Besides the constitutional implications, the CIA's search may also have violated 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."
