The Worst Flaw of Them All

On the floor of the Senate this Tuesday, Senate Intelligence Committee Chair Dianne Feinstein leveled some serious accusations at the CIA. Feinstein accused the agency of spying on a “walled-off network” that had been set up for a congressional investigation into CIA activities during the war on terror. The spying charge was only one among others, namely that the agency had been secretly removing documents, had been trying to intimidate the congressional investigators, and had been searching the computers that those investigators had been using in an effort to see what they had learned.

CIA director John Brennan, a 25-year veteran of the agency, disputes these claims, calling the accusations “overstated” and saying in a speech that same day that “when the facts come out on this, I think a lot of people who are claiming that there has been this tremendous sort of spying and monitoring and hacking will be proved wrong.” Other senators criticized Feinstein as well, with Senator Rubio, who sits on the committee, saying that the matter is “more complicated than what’s being put out there by Senator Feinstein or others” and that “it’s important for the full truth to come out.”

But Feinstein drew support from others, including Senate Majority Leader Harry Reid, and Republican Senator Lindsey Graham. Reid said that he “unequivocally” supported the chairperson and was “disappointed” in the CIA, while Graham said that “people should go to jail” if the allegations were true, and then “the legislative branch should declare war on the CIA.”

The essence of what the problem is, according to Feinstein, is that the CIA behavior is in violation of the Constitution. She claimed violations of separation-of-powers, as well as the Fourth Amendment (which prohibits unreasonable searches and seizures) and the Computer Fraud and Abuse Act and Executive Order 12333, which bars the CIA from conducting domestic surveillance.

One thing is clear. There obviously needs to be an independent investigation into what exactly has transpired. These allegations are serious — if true. If the Congress cannot carry out oversight of the CIA without fearing retribution, the supervision it is tasked with is essentially worthless.

It would, however, carry more weight if it were coming from different sources.

The three issues cited by Senator Feinstein in making her argument that the CIA was undermining the framework of the Constitution haven’t always bothered her. They also haven’t always been a matter of concern for many of the members of Congress who have come to support her in this clash with the Agency.

When the White House makes rule changes or recess appointments, and unilaterally delays parts of Obamacare from being implemented, politicians who are up in arms about this violation of separation of powers are silent. Put simply, if the executive branch engages in what some lawmakers see as overreach, it doesn’t bother these politicians — because it satisfies them politically.

But in this case it does not, and so, they see the act of circumventing the Congress as outrageous.

The Fourth Amendment and the Computer Fraud and Abuse Act and Executive Order 12333 have also not been equally applied by these members of Congress.

When the NSA was found out to be engaging in a large-scale data collection which essentially amounted to surveillance, some members of  Congress voiced their concerns. They wanted to investigate whether these actions were legal, and whether there was constitutional authority for the NSA to do what it had been doing.

Those outraged then did not include Senators Feinstein, Reid, or Graham.

Senator Feinstein, at the time, dismissed concerns that the program might violate the Constitution, saying that it was okay because “good intelligence” is the only thing that could deter terrorists. Senator Reid similarly defended PRISM at the time, saying that everyone should “just calm down.” And Senator Graham found no problem with the NSA spying on American citizens, saying that there is no cause for unease in being spied on for anyone who was not working with terrorists.

Make no mistake. This is not an indictment of the NSA program, or a case being made to allow the CIA to monitor politicians. It is an argument against the attitude of a group of politicians.

There are all sorts of failings that are excusable when it comes to politicians. There can be disagreement on policy, and we can even abide momentary lapses in judgment. But the point of a representative republic is not so that there should be a standard for representatives which affords them more rights than the average citizen. How are representatives who see themselves as better than the people they represent supposed to ably stand in the place of the people who sent them to Congress?

If politicians insist on this double standard, it is an example of the worst flaw of them all — the flaw of hypocrisy.

And that is a failing that is hard to overcome.

This article appeared in print on page 10 of the March 13th, 2014 edition of Hamodia.