Democracy vs. the CIA

The acrimony that erupted last week between Dianne Feinstein, chair of the Senate Intelligence Committee (SSCI) and CIA Director John Brennan has been called a "constitutional crisis" over the oversight responsibilities of Congress versus the prerogatives of the executive branch.

The acrimony that erupted last week between Dianne Feinstein, chair of the Senate Intelligence Committee (SSCI) and CIA Director John Brennan has been called a "constitutional crisis" over the oversight responsibilities of Congress versus the prerogatives of the executive branch. Commentators suggest it is a struggle over "checks and balances" and "separation of powers." But there is much more at stake.

In December 2012 the SSCI adopted its investigative report of CIA torture and extraordinary rendition during the Bush-Cheney years. Yet, the report remains locked up due to objections by the CIA.

The current controversy centers on an internal CIA review that reportedly contradicts the CIA's key justification of the torture program. Feinstein claims that the CIA monitored the SSCI staff's computers and removed that document and over 100 others from the data set originally made available to the committee staff. The CIA claims that this document was improperly downloaded and physically removed to staff files.

Both sides assert that the others' actions were illegal and there are now two referrals to the Justice Department for criminal investigation. An enraged Feinstein gave a speech on the Senate floor alleging CIA intimidation in an effort to subvert its work.

Recall that in the 1970s evidence was uncovered of shocking and illegal practices by the intelligence agencies. The Senate investigated. The Church Committee recommended several measures to rein in the arbitrary and unaccountable actions of the CIA, FBI and NSA. One reform was the creation of intelligence oversight committees.

The effectiveness of the Congressional monitoring has been a matter of debate. Critics point to a political settlement that has limited the capacity of the oversight committees and to a lack of political will to constrain "dark side" security agency operations. Yet, the prevailing view is that oversight works and Americans can be confident that the secret agencies can be held in check.

The current crisis puts this view to the test. This is more than the familiar jousting between branches of government. The presumption of democratic control is thrown into doubt. The CIA, in waging a life-and-death struggle to bury the historical record of its illegal and presidentially authorized torture program, first destroyed the evidence. Then it threatened that a criminal investigation would have catastrophic consequences for national security. Next it launched an ideological campaign proclaiming the successes of its "enhanced interrogation" program. Now it attacks the Senate committee that dares to investigate the Agency.

The life-blood of democracy is limited government, rule of law, and transparency. If lawless government security agencies cannot be held accountable, democracy rots from the inside. The same can be said about presidents who use the CIA--or the NSA-- for unlawful purposes. "When the president does it, that means that it is not illegal," Nixon notoriously proclaimed. If presidential "findings" (authorizations) for vast secret programs of questionable legality continue to be kept secret, accountability becomes a fiction.

Let's not neglect what this conflict is about: torture. A government that tortures and then gets away with it is exercising power beyond all moral and legal constraint. Torture is a system crime, condemned by all civilized governments including our own. Torture is Exhibit A in the perverse logic of "by any means necessary," a repudiation of law as such.

Along with habeas corpus, the right not to be tortured inspired the long struggle to limit prerogative powers of the monarch. That right became a constitutional right and then a universal human right. Torture is the mark of unrestrained power. If government torture is not banished, rights mean nothing. If torture is not wrong, nothing is wrong.

The CIA wants to suppress the Senate report because it will be the closest thing to accountability the Agency will face, especially given Obama's decision not to pursue a criminal investigation or even an independent commission of inquiry--"we need to look forward as opposed to looking backward," the President urged. The report will likely disclose the extent of CIA torture far beyond the horrific practices already revealed. It will document the harm to the country and the stain on national character. Not least, it will challenge the perpetrators and their supporters' assertion that torture "works."

The long-delayed SSCI report should be released immediately and in its entirety with minimal redactions. The American people and people throughout the world have a right to know.

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