As I often say to my students, the CIA has more than one master. Yes, it answers to the president, who is —as the Constitution says — endowed with the “executive power” and is “commander in chief.” But the CIA has another boss — Congress. Again, by way of the Constitution, it is Congress that chiefly has the lawmaking power. Congress writes the laws detailing what agencies may do or not do, and Congress writes laws that appropriate money for specified purposes. Long ago, also during George Washington’s presidency, a very substantial logic emerged from those constitutional provisions — if Congress hands over money to agencies to carry out their duties, then Congress has a clear right and duty to monitor the performance of those government bureaucracies. Congressional oversight was born.
If the CIA spying on a congressional committee which is, itself, charged with monitoring the agency isn’t a breach of constitutional norms, then it’s hard to imagine what it. The constitutional issues raised by this controversy are serious.
And then there are the sheer pragmatic political aspects of the CIA-Senate clash. Feinstein has had a long career in government and politics and is widely respected in the Senate and in both California and Washington, D.C. She has, more often than not, been a defender, explainer and supporter of intelligence agencies in her years of chairing the Intelligence Committee. One can find few public speeches in which she has criticized the agency. As a liberal Democrat, it cannot have been easy for her seem to be, at least in the eyes of critics within her own party, a too-predictable supporter of CIA, not to mention the National Security Agency in its recent controversies. But she has called things as she has seen them.
Brennan, like some of his predecessors who headed CIA but unlike many others, is a longtime veteran of the agency but not someone with a background in either electoral politics or Capitol Hill experience. This lack of political experience is now painfully evident. When the recent struggles and accusations arose between Feinstein’s committee and the CIA over alleged spying and related improprieties, a politically shrewd CIA director should have moved heaven and earth to see that matters were resolved to the satisfaction of the Senate Intelligence Committee chair. He should have taken the sensitive question of committee staffers allegedly obtaining CIA material improperly to Feinstein, herself, instead of authorizing any level of CIA tampering with intelligence committee computers. If all else failed, he should have suggested and that he and the senator resolve their dispute in the presence of the president, himself. The president is, after all, not only Brennan’s boss, but also head of the party of which Feinstein in a loyal member. Instead, the CIA asked the Justice Department to investigate the Senate Intelligence Committee for allegedly using improper means to obtain secret documents.
It’s hard to see how this can possibly end well for Brennan. The Senate Intelligence chairwoman, who had been perhaps the agency’s most influential supporter on Capitol Hill, is enraged and clearly estranged from the director. “This,” she said, “is a defining moment.”
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.