The Inverse of Oversight: CIA Spies on Congress

By Dan Froomkin, The Intercept

06 March 14

n the wake of an explosive new allegation that the CIA spied on Senate intelligence committee staffers, one senator felt this morning that he needed to make something clear.

"The Senate Intelligence Committee oversees the CIA, not the other way around," Sen. Martin Heinrich (D-N.M) said in a press release.

In normal circumstances, that would have been a statement of the obvious. Today, it was more a cry for help.

McClatchy News Service on Tuesday reported that the CIA's inspector general has asked for a criminal investigation into CIA monitoring of computers used by Senate aides who were investigating the agency's prominent role in the Bush-era torture of detainees.

Specifically, McClatchy reported: "The committee determined earlier this year that the CIA monitored computers - in possible violation of an agreement against doing so - that the agency had provided to intelligence committee staff in a secure room at CIA headquarters that the agency insisted they use to review millions of pages of top-secret reports, cables and other documents, according to people with knowledge."

In a letter to President Obama on Tuesday, Sen. Mark Udall (D-Colo.) referred to what he called "unprecedented action against the Committee in relation to the internal CIA review," and described it as "incredibly troubling for the Committee's oversight responsibilities and for our democracy."

The allegation comes on the heels of a fruitless quest by members of the House and Senate to get NSA officials to confirm or deny whether information on phone calls by members of Congress has been swept up in the agency's metadata dragnet. (Since it's so indiscriminate, presumably they have, but the NSA won't say so.)

The Senate report at the heart of this confrontation took four years to complete, runs 6,000 pages, and was adopted by the committee in December 2012. It is said to be highly critical of both the CIA's role in the torture regime and its public protestations of innocence. But the White House, under ferocious lobbying by the CIA, has refused to declassify it.

Most recently, controversy has arisen over an internal CIA report that was reportedly critical of the agency's practices, but was withheld from Senate investigators.

Heinrich, in his statement, complained: "Since I joined the Committee, the CIA has refused to engage in good faith on the Committee's study of the CIA's detention and interrogation program. Instead, the CIA has consistently tried to cast doubt on the accuracy and quality of this report by publicly making false representations about what is and is not in it."

The resistance to oversight about torture mirrors similar problems legislators have experienced when it comes to trying to monitor surveillance programs and other secret activities, with one huge exception: The torture report was championed and endorsed by Senate intelligence committee Chairman Dianne Feinstein (D-Calif.) and other senior members of that committee. By contrast, Feinstein and House Intelligence Committee Chairman Mike Rogers (R-Mich.) have emerged as the strongest defenders of surveillance activity, leaving the so-far-losing battle for disclosure to be fought by more rebellious legislators.

The consistent theme is that members of Congress are finding themselves at an ever-increasing disadvantage when it comes to even finding out what intelligence agencies are doing - not to mention reining them in.

More often, the only way members of Congress can pierce the veil of secrecy is through classified briefings. But those briefings are often problematic, some members of Congress say. First, it's too easy for briefers to give them the runaround - and then they feel circumscribed in what they can say publicly.

For those reasons, some members, like Rep. James Sensenbrenner (R-Wisc.) generally avoid secret briefings. A Sensenbrenner spokesman recently told MSNBC the congressman "does not want to be limited by the restraints of confidentiality."

Sen. Sheldon Whitehouse (D-R.I.) said on Tuesday that he felt limited in what he could say in response to documents leaked by former NSA contractor Edward Snowden.

"We were stuck, because if you're a member of Congress you are not a declassifier and even if something is out there, unless it has been formally declassified, you can be arrested for commenting on or echoing things, even if they're out in the public domain, because now you're confirming it to be true," he said.

The unlikelihood of such a spectacle aside, any member can always go to the floor and say whatever they want. The U.S. Constitution Article 1, Section 6, specifically protects senators and representatives from such repercussions, stating that "for any speech or debate in either House, they shall not be questioned in any other place."

Sen. Barbara Mikulski (D-Md.) famously responded to Attorney General Eric Holder's contention that senators had been "fully briefed" on surveillance programs at a June 2013 Senate Judiciary subcommittee hearing by saying: "'Fully briefed' doesn't mean that we know what's going on."

Here is video of Rep. Justin Amash (R-Mich.) describing the futility of getting information in intelligence briefings for members of Congress at the Cato Institute in October 2013: "You'll find that it's just a game of 20 questions," he said. But "you don't know what questions to ask…. You don't have any idea what kind of things are going on."

You have to start just spitting out random questions. Does the government have a moon base? Does the government have a talking bear? Does the government have a cyborg army? If you don't know what kind of things the government might have, you just have to guess and it becomes a totally ridiculous game of twenty questions. If you ask something in slightly the wrong way, they will tell you no. They'll say No , we don't do that. Or NO, that agency doesn't do that. Maybe some other agency does it, but they're not going to tell you that…. Or no, we can't do that under this program, but we can do it under this program.. they don't tell you that information… but you don't know what the other programs are.