Hamilton Legal: Intelligence Disputes

The Central Intelligence Agency (CIA) and Senate Intelligence Committee have exploded in a bitter legal dispute surrounding a Senate report of the former’s post-9/11 interrogation techniques. Their accusations, if proven true, highlight the reality that secrecy and espionage occur within our own government.

-What exactly do these accusations include? According to a leak of the classified Senate report’s major findings, the CIA avoided congressional oversight of its interrogation program. The leak itself and the report’s other findings on the CIA’s alleged illegal activities are the subjects of other legal debates.

Another pressing aspect of the CIA – Senate Intelligence Committee dispute is the crossfire of hacking accusations. Senate Intelligence Committee Chairwoman Dianne Feinstein accused the CIA of monitoring the computers her staff members used to assemble the report as well as removing and blocking access to documents. On the other end, the CIA accused the staffers of removing classified documents from the top-secret facility where they reviewed over six million documents related to the interrogation program.

Potential Justice Department investigations into the obstruction of congressional oversight and the claims of hacking may resolve the legal ambiguities present here. However, as the accusations stand right now, we simply do not have enough information to determine guilt.

The Senate report alleges the CIA impeded congressional oversight of its interrogation program.

However, the Director of National Intelligence prepared a report entitled “Member Briefings on Enhanced Interrogation Techniques” that insists intelligence officials briefed Nancy Pelosi, then-ranking Democrat on the House Intelligence Committee in 2002. Her spokesman counters that the report shows briefers “described these techniques, said they were legal, but said waterboarding had not been used.”

Although intelligence officials informed Pelosi that the techniques were legal, they perhaps ought not to have made that claim. According to the Senate report, the Justice Department’s Office of Legal Counsel’s conclusion on the legality of the interrogation program depended on imperfect information that the CIA gave. If the Senate proves that the CIA misled the Justice Department, then the CIA also may have misled Pelosi when it informed her the techniques were legal, a further violation of congressional oversight.

Unfortunately, the lack of insight on what information the CIA reported to Congress and the Justice Department hampers efforts to determine whether the CIA committed an illegal act. The same dilemma occurs when analyzing Congress and the CIA’s hacking accusations.

In response to Feinstein’s allegations against the CIA, Director of the Central Intelligence Agency John Brennan asserted that it did not hack into Senate computers, but he did admit the Justice Department is investigating the matter. If the Justice Department determines the CIA did hack Senate computers, the CIA would be guilty of violating its own charter, which limits its scope to foreign, not domestic, intelligence.

In response to the CIA’s charges against the Senate

Intelligence Committee staffers, Feinstein remarked, “No law prevents the relocation of a document in the committee’s possession from a CIA facility to secure committee office on Capitol Hill.” The Justice Department will need to assess the actual agreement regarding the conditions under which the CIA provided and the Senate Intelligence Committee analyzed documents relating to the post-9/11 interrogation techniques. Once it does so, it can determine whether the staffers committed a crime.

At its core, the conflict between the Senate and CIA reveals a lack of cohesion between our separate branches of government. In order to operate at optimum efficiency, we must correct this instability, especially when assumed threats come from outside our borders, not within.

Contact Sara Sirota at [email protected].