Constitution Daily

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The Constitution Outside the Courts: Senator Dianne Feinstein

March 13, 2014 by Lyle Denniston


Many Americans, not just the courts, help shape the meaning of the Constitution in the nation’s life.  This series explains the actual or potential contributions of these other individuals, groups or institutions.  Today’s Constitution-maker is Senator Dianne Feinstein, a California Democrat and the chairman of the Senate Intelligence Committee.  In a historic speech in the Senate on Tuesday, Feinstein said that the Central Intelligence Agency “may well have violated the separation of powers principle embodied in the United States Constitution, including the speech and debate clause.”  In “reluctantly” bringing into the open a committee feud with the CIA over secret files, Feinstein clearly aimed to reassert the independence of Congress as a stern overseer of the operations of government, including the operations of one of the nation’s most secret agencies.

Dianne_FeinsteinOne of the marks of genius in the drafting of the Constitution was the creation of distinct – and largely separate – centers of power in the national government.   It was a strong guarantee of the people’s liberty, James Madison believed, to prevent the concentration of power in any one branch of the federal structure.  While there can be much interaction between the branches, there is a core understanding that each is the master in its own realm.

For Congress, its power to legislate has, over time, led it to claim sweeping powers to investigate along with all of the associated powers used in the legislative process: the power to summon witnesses to appear, the power to demand documents, and the power to second-guess what other parts of the government may be doing with the powers given to them by legislation or by the Constitution.

This “power of inquiry” has been buttressed by a string of Supreme Court decisions going back as far as 1881, with the only limitation that an inquiry cannot violate an individual’s personal rights and that any investigation must somehow be related to the power to draft and enact bills.

Senator Feinstein heads a Senate committee that apparently has been engaged, for four full years, in a mostly behind-the-scenes investigation of the Central Intelligence Agency, and in particular the program that the CIA calls the “RDI program” – for “rendition, detention and interrogation.”  Begun in the George W. Bush Administration, in the aftermath of the 2001 terrorist attacks on the U.S., the program involved the capture of suspected terrorists (often, in other countries), their movement to so-called “black sites” operated by the CIA overseas, and questioning there of those suspects by what sometimes were (in Senator Feinstein’s word) “brutal” methods.

Feinstein’s committee has written a 6,300-page report about the RDI program, and it is said to have drawn some damning conclusions; the committee has said it hopes to make that report public sometime in coming weeks, once it has undergone declassification review to remove highly sensitive intelligence information.

What apparently prompted Senator Feinstein to go to the Senate floor to make startling claims about CIA interference with the committee’s study was the fact that an internal CIA review of the RDI program that reached the committee’s hands apparently agrees with some of the committee’s more troubling findings and, in fact, contradicts some of the CIA’s public defense of the program.

The senator made it clear on Tuesday that her committee believes that this internal report is of profound importance to the investigation, but in her speech, she disclosed what she said were CIA efforts to retrieve that study from the committee’s computer files, and to do so without permission or without notice to the committee or its staff.

That is why she spoke darkly about possible constitutional violations by the CIA – first, of the doctrine of separation of powers, because she said the CIA intrusion into committee files was an attempt to impede its inquiry, and second, of the “speech or debate clause” and the shield it provides lawmakers to outside threats.

Both the principle of separation of powers and the “speech or debate clause” have always been understood to be critical elements of Congress’s power of inquiry in aid of legislation.  In pursuing its investigations, a committee on Capitol Hill is said to be exercising an exclusively legislative function, and that the Executive Branch may not interfere.  The “speech or debate clause” is a shield that protects the lawmakers from being questioned in any other place about what they do in the pursuit of their legislative activity.

Senator Feinstein argued that, not only had the CIA’s electronic reach into committee computers been done explicitly to pull back from committee use the internal CIA document, but that the CIA had sought to “intimidate” the committee’s staff by asking the Justice Department to check to see if any crimes were committed by staff members in getting access to that internal document – even though, Feinstein said, the document had turned up in material the CIA had handed over to the committee amid a pile of 6.2 million pages.

In initial reactions to the Feinstein speech, CIA officials have said that the agency has done nothing wrong.

No doubt, in time, the public may someday gain a fuller understanding of just what happened between the committee and the CIA as the Senate panel’s study moved toward conclusion.  But, constitutionally speaking, Senator Feinstein – who has long been known as a stout defender of the CIA – has clearly moved at least temporarily into the role of a strong CIA critic.  And, as a Constitution-maker, she has shored up Congress’s power of inquiry, burnished the integrity of its investigative process, and declared the independence of Congress from an Executive Branch agency that has gained enormous and still-growing powers in a perilous and unstable world.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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