Senator Dianne Feinstein’s blistering attack on the CIA’s conduct in searching the computers used by the Senate Select Committee on Intelligence was deemed a remarkable salvo.
The search was engendered by the Committee’s official request for a final version of the named “Internal Panetta Review.” The Review had been created for internal use by the CIA as a record of assessing what documents should be turned over to the Committee in connection with its investigation of the torture program. Once the CIA got wind that their precious internal documentation was finding its way into the hands of the committee, the hackers got itchy.
Senator Feinstein herself charged the CIA with violating the Fourth Amendment, the Computer Fraud and Abuse Act, and Executive Order 12333. This raises the first problem. The CFAA is a legislative creation that exempts authorised law enforcement and intelligence activities. Legal commentary from former Chief Counsel for the House Permanent Select Committee for Intelligence, Chris Donesa at Lawfare puts the question as whether “the CIA’s investigation and search was in fact ‘lawfully authorised’ or merely a pretext for deliberate efforts to obstruct or interfere with the SSCI investigation.”
The point is valid – after all, the CIA may well have been doing what it is empowered to do – snoop, hack and conduct “counter” intelligence activities, even against a Congressional committee. A gray area exists in the CFAA as to the rights of access set by the owner and operator of the necessary computers. The Washington political establishment have only themselves to blame if that was the case. The demon is merely consuming its creators.
One thing Donesa is willing to concede is that the agreement and understanding between the CIA and the SSCI was significant in its violation. In so doing, it has raised questions touching on the separation of powers “and, more importantly, the budget and authorities of any Agency that dares to breach it.” He is concerned, in fact, that the SSCI was also rather cheeky, scurrying off with documents at points befitting the CIA’s own conduct. A subpoena might have been sought, but was conspicuously lacking. Feinstein herself alluded to such behaviour, largely because the CIA had shown form in destroying evidence, notably videotapes.
There have been occasional remarks that the CIA would have been justified in chasing down the source of leaks in the event that a confidential document had found its way into “unauthorised” channels. Sometime in 2010, Feinstein claims that SSCI staff accessed documents connected with the Panetta Review. Feverish speculation is making its way around the intelligence traps as to whether that access was warranted, the result of intentional disclosure by the CIA, or an illicit revelation of a whistleblower.
Given the CIA’s well established reputation for gold medal incompetence, it might very well be that the agency enabled, quite unwittingly, the Committee access to the Review documents. The jury may well be out on that one for some time to come. In either case, be it the whistleblower thesis, or that of unwitting disclosure, the episode has brushed up, if not scraped, a good deal of constitutional gunk. James Madison would not so much be turning as standing up in his grave.
Not all have warmed to Feinstein’s agitated response. A split has developed in Senate ranks. Republicans are concerned, but many would prefer to await the findings of a full investigation into the matter. Senator Lindsey Graham (R-SC) was particularly concerned. “If what they’re saying is true about the CIA this is Richard Nixon stuff. This is dangerous to democracy. Heads should roll. People should go to jail, if it’s true.” Senator Saxby Chambliss (R-Ga.) was less certain. “Right now we don’t know what the facts are.”
Neither Feinstein, nor the CIA, can claim much of a high ground in this debate. The SSCI was the subject of a hacking enterprise, a snooping venture that would have been appropriate for the Senator in other cases. In fact, the rationale employed by the CIA was the very one that she has been defending with almost manic determination. If classified documents find their way into certain hands (that is, the likes of Edward Snowden), revealing the extent of state abuse, the messenger is the one at fault.
Given Feinstein’s legislative efforts to shore up the surveillance state, and her inflexible stance in limiting reform to the intelligence community, this would have come as a rude, yet richly deserved rebuke. In Snowden’s own words on the episode, this involved “an elected official [who] does not care at all that the rights of millions of ordinary citizens are violated by our spies” only to be scandalized “when a politician finds out the same thing happens to them.”