Torture Cover-up: The CIA and Separation of Powers

The Central Intelligence Agency is an agency of the executive branch and is subject to congressional oversight as per the Constitution’s

The allegations of CIA snooping on congressional investigators isn’t just a scandal-the whole premise of secret government is in question.

The CIA’s infiltration of the Senate’s torture probe was a possible constitutional violation and perhaps a criminal one, too. The agency’s inspector general and the Justice Department have begun inquiries. And as the story recently broke, CIA sources-no names, please-told reporters that the real issue was whether the Senate investigators had hacked the CIA to obtain the internal review. Readers of the few newspaper stories on all this did not have to peer too far between the lines to discern a classic Washington battle was under way between Langley and Capitol Hill. [..]

The United States is a republic, and elected officials in all three branches are supposed to be held accountable by those famous checks and balances that school kids learn about in civics classes. When it comes to the clandestine activities of the US government-the operations of the CIA, the other intelligence outfits, and the covert arms of the military-the theory is straightforward: These activities are permitted only because there is congressional oversight. The citizenry is not told about such actions because doing so would endanger national security and render these activities moot. But such secret doings of the executive branch are permissible because elected representatives of the people in the legislative branch monitor these activities and are in a position to impose accountability.

That’s how it’s supposed to work. But since the founding of the national security state in the years after World War II, there have been numerous occasions when the spies, snoops, and secret warriors of the US government have not informed the busybodies on Capitol Hill about all of their actions. In the 1970s, after revelations of CIA assassination programs and other outrageous intelligence agency misdeeds, Congress created what was supposed to be a tighter system of congressional oversight. But following that, the CIA and other undercover government agencies still mounted operations without telling Congress. (See the Iran-Contra scandal.) Often the spies went to imaginative lengths to keep Congress in the dark. More recently, members of the intelligence community have said they were not fully in the know about the NSA’s extensive surveillance programs. Of course, there was a countervailing complaint from the spies. Often when a secret program becomes public knowledge, members of Congress proclaim their shock, even though they had been told about it.

Overall, the system of congressional oversight has hardly (as far as the public can tell) been stellar. And it has raised doubts about the ability of a democratic government to mount secret ops and wage secret wars in a manner consistent with the values of accountability and transparency. What was essential to decent governance on this front was the delicate relationship between congressional overseers and the intelligence agencies.

Beyond Torture

But we are past the question of torture. What is happening here is a Constitutional crisis. If Feinstein does not have CIA Director Brennan up before her Senate committee immediately, and if she does not call for his resignation and if the president remains silent (“We need to allow Justice to complete its investigation”) then we have witnessed the essential elements of a coup; at the very least, the collapse of the third of the government charged with oversight of the executive.

That oversight- those Constitutional checks and balances- are the difference between a democracy and a monarchy. They are what contains executive power and makes it responsible to the People. But like Jenga, pull out the important one and the whole thing falls.

A Last Question

The only question remaining then is whether the president is part of the coup, or another victim of it. Is he in charge, or are the intelligence agencies? We may have an answer soon. CIA Director Brennan said:

   If I did something wrong, I will go to the president and I will explain to him what I did and what the findings were. And he is the one who can ask me to stay or to go.

So far, the White House response has been to ignore the challenge:

   President Obama has “great confidence” in Brennan, Carney said during his daily briefing. He added that if there has been any “inappropriate activity,” the president “would want to get to the bottom of it.”

Brennan has challenged the president to act. What the president does will tell us much about the future of our democracy. As radio host Guillermo Jimenez has said, “On this Grand Chessboard, it is We the People who are now in check. It’s our move.”

In the words of Benjamin Franklin. “A Republic, if you can keep it.”