NAPOLITANO: A rivalry of governmental computer hackers

American spies trample the Constitution as they eye each other

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

When the CIA was established in 1947, Congress and President 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 United States 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 Bush and 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 effectively has 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 current state of affairs.

Currently, 95 percent of Congress is in the dark about what the CIA is doing and the manner in which the CIA getting its authority to exceed its statutory limitations from the other 5 percent.

However, a dispute has arisen between the CIA and the Senate Intelligence Committee over the nature and extent of the 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 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.

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