In her angry broadside at the CIA on the Senate floor last week, Senator Dianne Feinstein (D-Calif.), the Senate Intelligence Committee chairwoman, said, “I have grave concerns that the CIA’s search … may have undermined the constitutional framework essential to effective oversight of intelligence activities or any other government function.”
She is right.
Congress has the constitutional authority to do robust oversight of executive branch activities.
Lost in the noise about who spied on whom in this continuing fight between the Senate Intelligence Committee and the CIA over release of a massive report on interrogations, is the history behind the skirmish.
The intelligence committees were created to address revelations of the Nixon administration’s documented spying on Americans, including illegal wiretapping and surveillance of civilian anti-Vietnam War protesters. The new House and Senate Intelligence Committees were granted “all necessary authority to exercise effective oversight over the intelligence agencies” and the executive branch was directed to keep the new committee fully and currently informed about its activities. The Foreign Intelligence Surveillance Act (FISA) passed by large bipartisan margins in 1978.
This structure worked well until 9/11, when the Bush/Cheney White House decided to invoke the president’s emergency “commander in chief” authority under Article II of the Constitution.