Since last year, U.S. Sen. Dianne Feinstein, chairwoman of the Senate Intelligence Committee, has rankled some people with her forceful defense of the nation’s spy agencies.
So the reaction was swift last week after the California Democrat accused the Central Intelligence Agency of withholding information, intimidating committee staff and potentially running afoul of the Fourth Amendment that protects against unreasonable searches and seizures.
It was an uncharacteristic public pushback for Feinstein. She raised new questions about whether the CIA had come clean about the severity of interrogations and conditions at its detention sites. She also broached the possibility that the CIA had violated the separation of powers between the executive and legislative branches of government.
Edward Snowden, the former National Security Agency contractor who released classified details about the government surveillance Feinstein supports, dismissed her anger as hypocritical.
Norman Solomon, writer and liberal activist from Marin County, coined the Feinstein Syndrome: “The Fourth Amendment for me, but not for thee.”
And Jon Stewart, host of Comedy Central’s “The Daily Show,” said what was most incredible about the accusations was their source.
“They’re not coming from Sen. Ron ‘Privacy is Important’ Wyden, or Sen. Rand ‘Don’t Kill Me with a Flying Robot’ Paul,” Stewart said to laughter on his show Wednesday. “They are coming from Dianne ‘So the NSA Is Looking at Your Data’ Feinstein.”
Feinstein’s remarks were pilloried, but also praised, on social media networks such as Facebook and Twitter. Zaki Manian , a Palo Alto software engineer who advocates against mass government surveillance, noted the steady stream of what he called “ ‘spying only counts when they are spying on you’ comments.”
“But there is a larger story here,” he said. “And that is: The law matters.”
Manian’s organization, Shame on Feinstein, opposes what its members view as Feinstein’s defense of unconstitutional surveillance. But after her fiery floor speech Tuesday, he issued a news release applauding her for denouncing the CIA’s surveillance of the Senate committee’s investigation of torture in the agency’s rendition, detention and interrogation program. That effort began after 9/11 under President George W. Bush and ended five years ago.
Feinstein, 80 and in her fifth term, must find an elegant way to evaluate her past positions and determine what her legacy is going to be, he said.
“Are you going to be the person who is remembered as the defender of illegal action?” Manian asked. “Or the person who is another (former U.S. Sen.) Frank Church, who came in and reformed these agencies and brought them into compliance with the law?”
Feinstein has said the NSA program – which she notes collects phone numbers and the duration and times of calls, but not the content of conversations, names or locations – is necessary to prevent terrorist attacks. In her speech last week, she said the CIA’s search of her committee’s computers “may have undermined the constitutional framework essential to effective congressional oversight of intelligence activities or any other government function.”
Feinstein’s supporters dismiss any notion that her comments were hypocritical.
Bill Carrick, her longtime political consultant, said it’s clear the senator was chiefly concerned that the CIA was obstructing the work of her Intelligence Committee.
“One of the fabulous qualities about our Constitution is the separation of powers so there isn’t a concentration of power in one branch of government and the other branches of government are in check,” Carrick said. “That’s what she addressed. If some people like it, that’s nice. And if some people don’t, there’s nothing you can do about that.
“Edward Snowden,” he said, “is not exactly somebody she’s worried about what he thinks.”
It has been five years since the Intelligence Committee voted to to initiate a comprehensive review of the CIA’s detention and interrogation practices. For her part, Feinstein has long opposed the use of torture and was vocal on the topic during the confirmation hearings for Alberto Gonzales to become attorney general, noted Christopher Anders, senior legislative counsel with the American Civil Liberties Union.
“This is an area where Senator Feinstein and her committee were doing real, meaningful oversight over the CIA and the CIA pushed back,” Anders said. “The reason why we have called her speech on Tuesday historic – and it certainly made for riveting television – was that the senator was asserting the role that Congress has in the constitutional system of checks and balances.”
The result of the committee probe was a 6,300-page study on the agency’s use of detention and interrogation. Though approved in December 2012, with the CIA providing a response in June 2013, the report and its executive summary are secret. Feinstein said Tuesday she plans to have all updates to the committee report completed this month and approved for declassification. President Barack Obama said he supports releasing the report to the public.
“Americans have known in general that our country was engaged in the use of torture, but we have never had the kind of exhaustive review that this issue deserves,” Anders said. “And the committee has done that with this report.”
Feinstein said CIA personnel electronically removed access to more than 900 CIA documents after initially providing them to the committee.
“This was done without the knowledge or approval of committee members or staff, and in violation of our written agreements,” she said. “Further, this type of behavior would not have been possible had the CIA allowed the committee to conduct the review of documents here in the Senate. In short, this was the exact sort of CIA interference in our investigation that we sought to avoid at the outset.”
Banging her fist on the lectern, she said committee staff involved in the matter have the appropriate clearances, handled the sensitive material according to established procedures and practices to protect classified information, and were provided access to the Leon Panetta review by the CIA itself.
“As a result, there is no legitimate reason to allege to the Justice Department that Senate staff may have committed a crime. I view the acting general counsel’s referral as a potential effort to intimidate this staff – and I am not taking it lightly.”
In addition to the constitutional implications, Feinstein said the CIA’s actions may have violated the Fourth Amendment, the Computer Fraud and Abuse Act, and an executive order barring the CIA from conducting domestic searches or surveillance.
Lee Tien, a senior staff attorney with the Electronic Frontier Foundation in San Francisco, said he believes Feinstein’s anger was genuine.
“But it’s hard to know exactly where she is going to end up because she has such a long history of being supportive of pretty much whatever the intelligence community does,” said Tien, who specializes in free speech and privacy law.
Last fall, Feinstein called for a top-to-bottom review of intelligence collection programs and issued a critique of the NSA after it was revealed the agency spied on foreign officials. Tien said that and the most recent situation are a “very different sort of animal” than the bulk surveillance being done here and overseas.
“It’s an interesting dichotomy and I think it shows that she believes in the value of oversight. I think it shows she’s very concerned about the institutional role of Congress, particularly intelligence committees,” he said. “But I am not sure that it shows that she has actually changed in any interesting way with respect to the kinds of issues that the Snowden leaks have showed.”
Jack Pitney, a professor of politics at Claremont McKenna College, said the issue is unlikely to make a huge impression on the public. Feinstein was protecting the institution of the Senate, which has always meant a great deal to her, he said.
“Critics see it as a privacy issue and she sees it as a separation of powers issue,” Pitney said. “They are looking at different parts of the Constitution.”
Call Christopher Cadelago, Bee Capitol Bureau, (916) 326-5538. Follow him on Twitter @ccadelago