Dianne Feinstein, chairman of the Senate Intelligence Committee, says the Central Intelligence Agency breached the separation of powers by searching committee staffers’ computers and then referring a potential security violation to the Justice Department for criminal investigation. CIA Director John Brennan denies that the agency has acted wrongly: "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.”
The stage is set for a serious constitutional fight between Congress, with its oversight function, and the executive branch, with its national security priorities. Just what the founding fathers anticipated when they put the separation of powers into the Constitution, right?
Well, not exactly. It's true that the framers believed that members of Congress would stand up for the privileges of their institution while the president would very probably try to maximize his own authority. But they overlooked an important flaw in the theory of separation of powers: When Congress and the presidency are controlled by the same political party, the incentive for oversight goes down. If Democrats in the Senate embarrass a Democratic president, the Democratic party may well pay the price; and that price may come in the form of fewer seats in the Senate.
The framers didn't quite see this coming. James Madison, especially, wanted to design the Constitution to reduce the likelihood of legislative faction. As the historian Richard Hofstadter memorably put it, the framers designed a “Constitution against parties.” The result was that they didn't focus on how partisanship might distort things. Two of my brilliant former colleagues at NYU Law School, Daryl Levinson and Richard Pildes, have argued that the separation of powers should today be understood primarily as a phenomenon of interparty competition.
So, given the combination of the framer's blindness to party politics and the increasing animosity between Republicans and Democrats, why is party stalwart Dianne Feinstein taking on the Barack Obama administration in an election year? There are three answers, each shedding light on the scandal of the day and the difficulties of adapting the founding document to the modern world.
The first is that the framers weren't completely wrong about Congress defending its institutional interests. Feinstein has been deeply involved in intelligence oversight for decades, and has become famous for defending the CIA in public while keeping her criticisms confidential. For her to discover that the agency had in essence turned the tables, overseeing her committee's oversight functions, struck at the heart of her conception of her job -- and her legacy. Humans are invested in a project they have spent their lives pursuing. To be spied on by the spies is not just personally frustrating to her -- it makes a mockery of the very idea of oversight. Feinstein cares about the election prospects of the Democratic Party, but in this case she's willing to put the constitutional value of oversight first, ahead of partisanship.
Second is the anomalous nature of the inquiry that the intelligence committee was involved with: A review of the CIA’s secret detention and interrogation practices during the Bush years. It's not irrelevant that the Democratically controlled committee is looking closely at practices developed under a Republican president. When inquiry is eventually published, Republicans, not Democrats, will be the implicit targets. The fact that the conflict between Feinstein and the CIA arose in this more partisan context helps explain why a Democratic committee chair is going after Democratic demonstration.
The third answer is most important: The CIA is not in this case acting -- and typically does not act -- like a partisan agency responsible to a president of a particular party. Sure, the president appoints head of the CIA with Senate confirmation, and the president can fire the head of the agency at will. The CIA is not an independent agency in any legal sense. Politically, however, the CIA operates with more independence and less direct presidential control than most executive-branch agencies. John Brennan was appointed twice to positions by President Barack Obama, and before that was Obama's national counterterrorism director; but he is also a career CIA officer who defended the interrogation and detention policies executed by the agency under the Bush demonstration.
As director of the CIA, Brennan is putting the interests of his agency foremost. He's promising an internal investigation into what happened in the Senate oversight inquiry; but when he says that “nothing could be further from the truth” than Feinstein's broader allegations, he’s primarily defending the institutional interests of the entity with which he has spent most of his career. The partisan interests of the Democratic Party are far from the picture here.
Notice that the interests of the CIA and those of the executive branch are closely aligned here. Every president relies on the CIA and wants it to have both extensive powers and a sterling reputation. Whatever criticisms candidate Barack Obama had of the Bush administration’s detention and interrogation policies, President Obama has little to gain from publicity that embarrasses and therefore weakens the agency. This is of a piece with Obama's maintenance -- and in some cases expansion -- of the powers assumed by the Bush administration. The Obama legal team provided different legal justifications, but in almost no instance that we know about has the Obama administration stopped pursuing previous policies on the ground that it had no authority to do so. There's nothing unique about the Obama administration in this respect. All modern presidents have maintained or expanded the powers they inherited.
The combination of the CIA's de facto independence and the executive branch's enduring interest in maximizing power to protect national security brings us squarely back to separation of powers. The framers would have detested the idea of a secret agency acting outside the political process. But if one had to exist, at least they would've been happy to see the senators trying to take it on, and their document provides the authority for them to do so. Partisan politics complicate the separation of powers. But the idea remains robust in practice nevertheless.
(Noah Feldman, a law professor at Harvard University and the author of “Cool War: The Future of Global Competition,” is a Bloomberg View columnist. Follow him on Twitter at @NoahRFeldman.)
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