A Rivalry of Government Hackers

Senators say CIA agents hacked their computers, while the CIA says it's the senators who are guilty of hacking. Either way, it's a violation of the Fourth Amendment.

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The U.S government is caught up in another scandal in which federal agents have been accused of hacking into one another's computers.

niallkennedy/Flickr

When the CIA was established in 1947, Congress and President Harry Truman were concerned that it might not confine itself to spying. Its sole statutory purpose was to steal secrets from foreign governments so that the U.S. would know what they were planning and could prepare for any behavior adverse to American government interests. By its nature, it was operating in secret, and because it lacked transparency, it lacked accountability. One of the statutory mechanisms to achieve accountability was to require the CIA to report to two committees of Congress, but in secret.

Over the years, as sometimes happens between regulators (the congressional committees) and the entity to be regulated (the CIA), they developed a chummy relationship. In this case, the relationship has been so chummy that, at the behest of Presidents George Bush and Barack Obama, the CIA has gone to the Senate and House Intelligence committees, instead of going to the full Congress, for permission to torture prisoners, kill Americans with drones, and fight small-scale wars—all well beyond the statutory mission of stealing secrets.

The members of these committees are senators and representatives who apparently approve of the CIA's expanded role. Because the committees meet in secret, we don't know what the CIA requested, whether any members objected to any requests, whether the committees denied any requests, or even precisely what was approved. The members of Congress who are on these committees have sworn oaths of secrecy.

These are the same committees that have given permission to the National Security Agency (NSA) to spy on all Americans all the time, so we are probably justified in concluding that the committees and the intelligence agencies they supposedly regulate are more attuned to governmental power than to personal liberty.

The power of these committees has effectively established them as mini-Congresses that are unrecognized by the Constitution and are well outside its confines. The Constitution provides that "all legislative powers" are granted to Congress—not to a select few in Congress, but to Congress as a whole. This is a serious constitutional issue because Congress is mostly transparent and its members are directly answerable to the voters, yet the secrecy of these committees prevents their members from discussing what they know with other members of Congress, unless done openly on the floor of the House or Senate, which they rarely do. The mania for secrecy and the natural inclination of unaccountable governmental entities to grow rather than stabilize or shrink have resulted in the present state of affairs.

The present state of affairs has 95 percent of Congress in the dark about what the CIA is doing and the CIA getting its authority to exceed its statutory limitations from the other 5 percent. But a dispute has arisen between the CIA and the Senate Intelligence Committee over the nature and extent of CIA detentions and use of torture during the Bush years. In February 2009, the Senate Intelligence Committee decided to investigate the CIA.

After CIA stonewalling and after learning that a senior CIA official destroyed much of the evidence of torture, the Senate Intelligence Committee insisted on examining the CIA's secret files to learn what it did to those prisoners in its custody and what evidence was destroyed. Torturing prisoners and destroying government records are federal crimes. In order to facilitate the Senate investigation, the CIA was instructed to make its records digitally available to investigators, which it did at an unmarked subterranean facility in Virginia.

There, investigators have spent many months looking at CIA computer records of its Bush-era interrogation procedures. In the course of doing so, they learned that their computers in the CIA's secure facility—the ones they were using to examine CIA files in the subterranean room—were hacked. It appears to the Senate investigators that the hackers were CIA agents wanting to learn what the investigators found out about them. The CIA counters that the investigators actually hacked into CIA computers when they examined far more materials than the CIA had agreed to make available.

This is more than a schoolyard brawl. This is the unbridled and likely unlawful use of government computers and classified materials by CIA employees trying to dampen the enthusiasm of their regulators, or by Senate investigators accessing classified materials to which they may not be entitled. Either way, this is a violation of the Fourth Amendment's prohibition of warrantless searches and seizures. Any other persons who did this would be indicted for hacking. Because all of this is so secret, we don't know whether the Department of Justice is looking into who broke what laws.

But we do know that, like its cousin the NSA, the CIA often acts above the law. It does so knowing that indictments for torturing, destroying evidence, or computer hacking are unlikely, as any trial would expose the depths of this skullduggery, the unconstitutional system of mini-Congresses, and the secrets these employees are trying to keep from their employers—the American people.

In a democracy, the government must be accountable to the people it serves. Secrecy and accountability are enemies. The natural right to know what the government is doing means that secrecy must be minimized. A Congress that rubber-stamps what secret agents want it to do by a secret procedure is a dangerous mix that will impair personal liberty in a free society.

In our post 9/11 world, the government has gotten away with hiding its worst behavior behind a veil of secrecy, publicly justified by the fears of a loss of safety that it has instilled in the public. That is not condoned by the Constitution. Under the Constitution, a free people are always entitled to know what the government is doing, and we are entitled to a government that obeys the laws it enforces against the rest of us so we can replace the government when it fails to protect our freedoms.

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  1. Judge, Judge, Judge… Don’t worry your Just For Men-ified head about this. I’m sure some secret agreement will be reached wherein the CIA will pinky-swear that it will never do what some less computer-savvy Senators think it did, and the senators will pinky-swear never to investigate them for political reasons.

  2. The present state of affairs has 95 percent of Congress in the dark about what the CIA is doing…

    And 95 percent of those 95 percent are unlikely to have a problem with the CIA’s machinations. They are ignorant of the Constitution, the limits it places on government and the role it requires of each branch to check the others.

  3. Is it me, or did Mr. Napolitano (he’s not still a sitting judge, is he?) write an entire article without using a single question mark?

    1. They’re on backorder.

    2. Could this dearth of question marks be a blatant rhetorical gimmick?

  4. How were anyone’s Fourth Amendment rights violated here, as both the article and the above-the-fold summary claim? Whether the CIA or Senate staffers accessed documents against the wills of the other, this dispute involves government employees accessing goverment-maintained, government-held documents. The purported disapproval of these accesses were also within the scope of government employ. The Fourth Amendment protects the right of the people, not the government, to be secure against unreasonable search and seizure!

    1. and govt, elected and appointed posts alike, is made of up people. You do not give up Constitutional rights by going to work in the public sector or by running for elected office.

      The problem remains the blatant hypocrisy. DiFi was among those excusing and justifying the NSA’s abuses but she’s in full pearl-clutching mode at being spied on herself.

      1. I suppose it would depend on whether the devices being monitored were government property.

      2. Yes, CIA employees and the Senate staff all have 4A rights in their private affairs. However, because someone would have to break basic rules about handling classified information to have personally owned computers involved in this, this dispute is presumably about government employees using government computers to access government files as part of their government job duties. It does not implicate those employees’ private 4A rights. It does not even implicate the 4A rights of anyone who is mentioned in the files, because the government already had all of these documents.

        There is good reason to be upset if the Senate staffers violated access controls to get more documents or if the CIA improperly snooped on what the Senate staffers were reading (or, worse, if they deleted Senate staffers’ files), but that has nothing to do with the Fourth Amendment.

        The Fourth Amendment is pertinent when members of Congress get upset about this dispute but not about executive branch surveillance of private citizens, but sometimes an issue needs to hit close to home before people take it seriously.

    2. This is actually a good point. I’m not entirely sure how exactly it’s a 4th Amendment issue if one government agency is spying on another government agency (lest we forget, supposedly part of the same government).

      It might be an oversight constitutional issue, perchance? But then I’m not entirely sure under what theory the Senate could enforce its rights against the CIA in court… which means the only recourse would be to abolish the CIA via legislation (ha!), impeach the executive officers involved (double ha!), or just bitch and moan about it while doing nothing substantive (most likely).

  5. House Oversight Committee Chairman Darrell Issa said he is incensed about allegations the CIA spied on the Senate Intelligence Committee, calling it “treason.”

    Feinstein is seeking out the FBI to investigate the matter further.

    The FBI, huh? But Eric Holder *simply doesn’t know*!

    Feinstein and Brennan should be given fifteen minutes each to make their respective cases in public. Then fire both. Then Feinstein’s deputy and Brennan’s deputy should be given fifteen minutes each to make their respective cases in public. Then fire both. Repeat until someone coughs up the truth or all these clowns are gone.

    1. I’d prefer a trial by combat.
      There can only be one.

      1. But Feinstein packs heat!

        1. Even though she would deny you that right, grrr.

    2. If, as they claim, the people are the government, then having our subordinates (the three-letter agencies) spying on the american people is treason, while watching congress is not.

    3. Gonna take a long, long time to get to the bottom of that sespit.

    4. This is all done in secret. How would we know who is telling lies or not ?

      Besides, would you choose jail over being fired ?

  6. Feinstein’s rank hypocrisy is just too much. She was out front defending the NSA when it was ‘just’ spying on us citizens, but now is appalled when her ilk get some of the same treatment.

    I am actually going to take a break from reporting the daily intrusions on liberty and lunacy of SoCons to build my position I took the other day that Diane Feinstein is the worst, most despicable Congressperson ‘serving’ today. She is the epitome of everything I do not like in our politicians.

    1. Plus … those *eyes*!

    2. “the worst, most despicable Congressperson”

      Are you sure, there are many many worthy candidates for this title.

      1. If not the worst, she is at least in the top 5.

  7. I think if my alternatives are allowing Congressional investigators access to classified information beyond their clearances and an intelligence agency spying on Congress to prevent or mitigate oversight I’d probably have to go with the former. Neither option is great, but I personally feel better about some of our deepests and darkests going public than an intelligence agency (particularly the CIA) going rogue.

  8. A little OT: Am I the only one who heard about DiFi discovering the sanctity of the 4th Amendment and immediately thought of Ebeneezer Scrooge at the end of A Christmas Carol? Like the ghosts of civil liberties past, present, and future visited her one night and she decided to redeem herself. Next week she’s going to propose a federal “shall issue” statute and send an adorably scruffy urchin to buy an AR for everyone in her district.

  9. an unmarked subterranean facility in Virginia

    They actually have those? And here I just assumed Hollywood was just being dramatic.

  10. This is the unbridled and likely unlawful use of government computers and classified materials by CIA employees trying to dampen the enthusiasm of their regulators, or by Senate investigators accessing classified materials to which they may not be entitled.

    Which of these is worse? It has to be the possibility of the CIA interfering in the investigation. Investigators accessing classified materials may be illegal, but at least it would have been done in pursuit of the truth. And who honestly believes all those materials were classified because exposure would represent a real threat to U.S. security, rather than a real threat to the power of the CIA?

    1. I expect that if one were to examine the sum total of classified materials in the entire US government, the majority of it would be information that was classified to cover up incompetence and criminal activity.

      -jcr

  11. All the recent government over reach is making our Judge young again. Heck, the color and shine has even returned to his hair.

    Unfortunately, it’s doing the exact opposite to me.

  12. “In a democracy, the government must be accountable to the people it serves”

    ugh, good thing for them we live in a republic then.

  13. So who does the CIA actually report to? I thought they were an executive agency. That in theory says that a president could if they wanted limit the agency to activities well below the threshold of what the 5 percenters would allow.

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