The Senate and the CIA: The Argument for Constitutional Checks and Balances

The American people learned recently of a dispute between the Senate Intelligence Committee and the Central Intelligence Agency. Senator Dianne Feinstein, the chair of the Intelligence Committee, accused the CIA of removing documents from computers used by Committee staffers working, at the behest of the Intelligence Committee, to investigate the CIA’s detention program. The dispute highlights the modern relationship between agents of the executive branch responsible for national security and the members of Congress constitutionally assigned to oversee the executive branch’s efforts to keep the nation safe.

In response to this contretemps, Senator Patrick Leahy urged his colleagues to “stand up in defense of [the Senate], the Constitution and the values upon which this nation was founded.”

The Constitution of course does not explicitly address situations like this. But that does not mean we have nothing to learn from our constitutional history about how the constitutional design accounts for the tension that might develop between the need of the President to guard the executive’s intelligence-gathering functions, on the one hand, and the need of Congress to ensure that the President does not overreach, on the other.

In his recent book, Blood of Tyrants: George Washington and the Forging of the Presidency, the Olin Scholar Logan Beirne persuasively suggests that the framers had George Washington in mind when assigning to the President the primary responsibility for protecting national security, primarily through his commander-in-chief authority. In his recounting of Washington’s prosecution of the Revolutionary War, Beirne notes that, despite the general’s frustration with Congress’s efforts to dictate strategy and tactics, he never failed to consult with his civilian leaders. Indeed, Washington’s correspondence confirms his compliance with the instruction that he “appoint a proper person at headquarters to write to the president [of the Congress] twice a day, or oftener if necessary, advising the position and movements of the armies.”

Perhaps with this precedent in mind, the framers assigned Congress the principal role of policing the executive’s national security policymaking by commanding the President to keep Congress informed. Article II, Section 3 requires the President to “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient.” This requirement has been transformed in our time into the anodyne State of the Union address, but the actual text does not so limit the President’s obligation to Congress.

Further, Article I, Section 5, states that Congress need not publish any part of its proceedings “as may in their Judgment require Secrecy.” This provision thus allows Congress to keep confidential its deliberations and debates — of particular importance where our national security agenda is concerned.

In other words, constitutional text suggests that the framers contemplated that our representatives in Congress would be dutifully informed of various Presidential actions, including those involving sensitive matters, and would have the discretion to keep the details of such matters from the electorate when necessary.

Today, the CIA reasonably seeks to perform its assigned national security functions unhindered by Congressional micro-management. But that does not mean the agency, because of the subject matter within its purview, necessarily stands apart from our constitutional scheme of checks and balances. If in fact the CIA sought to undermine the ability of the Senate Intelligence Committee to serve as an institutional check on its operations, then Senator Leahy was correct that the CIA’s actions were contrary to “the Constitution and the values upon which this nation was founded.”

 

 

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More by | Lawrence Friedman Lawrence Friedman , Law.com Contributor
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