Commentary

A Constitutional Scandal Worse Than Iran-Contra or Watergate


     
 Print 

The stark admission by the CIA’s inspector general that the agency had broken into a classified computer network used by its overseers at the Senate Intelligence Committee violates the core principle of separation of powers of governmental branches enshrined in the U.S. Constitution. Along with the CIA’s illegal rendition, detention, and torture of suspected terrorists and the NSA’s secret monitoring of Americans’ phone traffic, it shows that U.S. spy agencies are in danger of going rogue and need to be severely disciplined. Such intelligence organizations are supposed to defend the republic and not undermine it.

The situation could not be better summed up than by Senator Mark Udall (D-CO), a member of Senate Intelligence Committee and proponent of stronger congressional oversight of the intelligence agencies, when he called for CIA Director John Brennan’s resignation over the matter: “The CIA unconstitutionally spied on Congress by hacking into the Senate Intelligence Committee computers. This grave misconduct not only is illegal but it violates the U.S. Constitution’s requirement of separation of powers.” The checks and balances system of the U.S. Constitution, uniquely American and one of the main breaks against government run amok, is severely undermined when congressional oversight of the executive branch is impeded, as it was in this case.

At this point, it is not known whether CIA Director John Brennan knew about the break in or not—a parallel investigation by the Senate’s sergeant-at-arms is continuing—but it doesn’t matter, because he should be fired for letting his agency get out of control. It is also unknown if the White House knew about the break in, although it is probably unlikely. When its computers got hacked by the CIA, the Senate committee was laudably investigating George W. Bush’s illegal rendition, detention, and torture program, which the Obama should have investigated when taking office but did not, because it didn’t want such an investigation to overshadow its own proposed policy agenda. Thus, the committee has undertaken a courageous and needed act. Having been a congressional investigator assigned to oversee the intelligence community, I can personally attest that congressional oversight of the intelligence agencies is usually pathetically weak; members of Congress normally prefer to look the other way rather than confront unacceptable behavior by spying organizations.

And sometimes other government entities in the checks and balances process not only look the other way, but actively facilitate the unconstitutional shenanigans. Both the chairman (a Democrat) and the vice chairman (a Republican) of the Senate Intelligence Committee, who were outraged at the CIA’s hacking of their committee’s computer system, earlier defended NSA’s flagrant violation of the Constitution’s Fourth Amendment prohibiting general and warrantless searches—which has no exemption for national security—by monitoring of Americans’ phone traffic. They cited the approval of all three branches—the executive, Congress, and the courts--of the post-9/11 phone snooping program. Just because all three branches said it was OK, however, didn’t make a blatant violation of the text of the 4th Amendment any more constitutional.

Taken together, the post-9/11 illegalities by the intelligence community during the George W. Bush and Barack Obama administrations probably constitute the worst constitutional scandal in American history—even worse than the number two scandal, Iran-Contra, and the number three scandal, Watergate. When taken together, the post-9/11 illegal break in, phone monitoring, rendition, detention, and torture by intelligence agencies is probably more detrimental to the American people and the republic’s constitution than the Reagan White House’s financing and running of a secret, unauthorized war in usurpation of Congress’s key constitutional responsibility to approve and fund federal activities (in Iran-Contra) and the Nixon White House’s failed attempt to use U.S. security agencies to obstruct a law enforcement investigation into its third rate burglary during an election campaign (Watergate).

The latest break in actually may be more serious if the Obama White House didn’t know about it, which is probably the likely scenario. Although Obama declined to investigate the CIA and hold it responsible for its illegal rendition, detention, and torture program during the Bush administration, the Senate Committee report—which has concluded that the CIA’s harsh detention and interrogation techniques yielded little information that couldn’t have been gained by means of legal interrogation methods and that the CIA consistently misled the White House and Congress about the effectiveness of those methods—is more damning to the Bush administration than itself. The Obama administration would probably have little incentive to authorize obstruction and a risky break in of a committee controlled by Democrats to protect material that would mainly be embarrassing to a former Republican administration. In contrast, the CIA would have an institutional incentive to protect the secret history of its illegal and unconstitutional actions. Unlike the CIA’s harsh rendition, detention, and torture programs and the NSA’s phone monitoring program, which had authorization by the White House and/or Congress, an unauthorized CIA break in may mean the CIA is bold enough to go rogue in order to protect itself.

Yet during the post-9/11 hysteria the authorization of unconstitutional and illegal actions by the Bush and Obama White Houses, Congress, and the courts have led to the current perilous climate that could foster further rogue behavior by intelligence agencies. Thus, the intelligence community needs a walk to the woodshed. John Brennan needs to be fired, the perpetrators of all illegal acts at the CIA finally should be investigated and prosecuted, and the intelligence budget needs to be slashed as a penalty. Bureaucratic organizations really get the message when their budgets are cut. So as to minimize harm to legitimate U.S. intelligence gathering, most of the cuts can come from the CIA’s covert action arm, which needlessly and dangerously tries to destabilize foreign countries. Only if the CIA is severely punished for its latest transgression will U.S. intelligence agencies be deterred from violating the Constitution and laws at home and encouraged to redirect their activities overseas to help safeguard the republic—instead of undermining it.


Ivan Eland is Senior Fellow and Director of the Center on Peace & Liberty at the Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office.


  New from Ivan Eland!
RECARVING RUSHMORE (UPDATED EDITION): Ranking the Presidents on Peace, Prosperity, and Liberty
Taking a distinctly new approach, Ivan Eland profiles each U.S. president from Washington to Obama on the merits of his policies and whether those strategies contributed to peace, prosperity, and liberty. This ranking system is based on how effective each president was in fulfilling his oath to uphold the Constitution.