Spy Game: Why Congress Is Limited in Its CIA Oversight

Lawmakers aim to get tougher on the agency, but it could be too late.

Sen. Dianne Feinstein, D-Calif., returns to her office Tuesday, March 11, 2014, in Washington, D.C., after accusing the CIA of spying on the Senate Intelligence Committee.

Sen. Dianne Feinstein, D-Calif., has accused the CIA of spying on the Senate Intelligence Committee.

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In the years since the Sept. 11 terrorist attacks, the intelligence community has maintained a cozy relationship with the Senate Intelligence Committee tasked with overseeing its activities. From the CIA’s targeted drone program to revelations that the NSA was spying on American citizens using cellphone metadata, committee Chairwoman Dianne Feinstein, D-Calif., has fiercely defended the agencies she monitors.

“Congress and the courts have been asleep at the switch,” says Chris Anders, an intelligence expert at the left-leaning American Civil Liberties Union. “Part of the reason why the CIA and the NSA have been such a mess and committed so many violations of civil liberties is because our system of checks and balances have been broken.”

[READ: Feinstein Slams CIA, Accuses Agency of Spying on Staff]

But now on Capitol Hill, the tables are beginning to turn, and the CIA is beginning to feel the heat.  

In the past, Congress and the executive branch have been able to privately accommodate one another in order to keep conflicts from publicly coming to a head. On Tuesday, that smooth veneer began cracking – the first sign major changes could be on their way.

In a stirring floor speech, Feinstein lambasted the CIA with pointed specificity. During her remarks, she dropped a bombshell, accusing the CIA of interfering with her oversight investigation into the the agency’s use of torture and interrogation techniques between 2002 and 2009. Feinstein alleged the agency had spied on her staff members, who were compiling an investigative report.

The CIA repeatedly has denied Feinstein’s allegations; instead, the agency alleges that committee staffers improperly gained access to documents, a claim Feinstein dismissed as bullying. She stopped short of accusing Robert Eatinger, the CIA’s acting general counsel, of intimidating the oversight committee in an effort to save his own reputation. But she said Eatinger’s name is mentioned more than 1,600 times in her report in the span of roughly 6,000 pages.

“This is a defining moment for the oversight role of our intelligence committee ... and whether we can be thwarted by those we oversee,” Feinstein said on the Senate floor.

Observers say that when it comes to protecting American civil liberties, Feinstein’s outrage comes better late than never. But many caution that lawmakers will find reining in the intelligence community a much tougher task now, since they say Congress has slacked on its duties.

“In the bigger picture of things, Congress has to step up to the plate and assume the responsibilities the Constitution has given them,” Anders says.

[ALSO: Did the CIA Spy on the Senate?]

Activists, including whistleblower Edward Snowden, condemned Feinstein for publicly making a stand against the intelligence committee only after her own staffers allegedly were the target of spying. Protesters from activist group Code Pink gathered in front of Feinstein’s office Wednesday and delivered an oversized pair of "stop spying" glasses.

But a host of Senate allies applauded Feinstein’s unprecedented outrage. Senate Judiciary Chairman Patrick Leahy, D-Vt., called the speech “one of the most important” he had ever seen delivered on the Senate floor. And if the CIA did break through a committee firewall and spy on the work of the Senate Intelligence Committee, many on Capitol Hill suggest it would be a major violation of the separation of powers, the constitutional principle that gives Congress oversight of the administration.

“What is important is that the Congress of the United States be able to do effective oversight over the modern intelligence apparatus of this country,” Sen Ron Wyden, D-Ore., told reporters after Feinstein’s speech.

Sen. Lindsey Graham, R-S.C., said that if the CIA spied on the committee’s work, the action would require Congress to “declare war on the CIA.” But what would that look like? Intelligence experts warn that the number of steps Congress can take to put pressure on the CIA is limited. Congress maintains the power of the purse, which gives lawmakers the ability to defund specific programs the federal agency holds dear, but the CIA maintains the documents and information Congress needs to see to effectively conduct oversight in the first place.

“With the trump cards in mind, both parties try to avoid mutually assured destruction,” says Liza Goitein, co-director of the Liberty & National Security Program at the New York University School of Law’s Brennan Center for Justice.

Goitein argues such self-preservation has been a major reason Congress has been so ineffective at oversight in the first place.

[OPINION: A New Day, But the Same Old CIA]

“What has been happening is that Congress has made more accommodations than the executive branch since Sept. 11. We are just now seeing the beginning of a shift,” Goitein says.

Congress also can slow the nomination process to fill top posts at the CIA in an effort to hold the agency accountable. Sen. Mark Udall, D-Colo., already has placed a hold on the Obama administration's top pick for CIA general counsel, a move designed to halt the nomination process. Adding to the discord is that the nominee, Caroline Krass, reportedly told the Senate Intelligence Committee she does not believe Congress should even have access to legal memos related to the agency’s interrogation techniques.

A shortfall of the slow-roll approach, experts argue, is that the CIA only depends on the Senate to confirm three posts: director, general counsel and inspector general.

Even as Congress begins exerting its power, the head of the executive branch – the White House – is trying to distance itself from the squabble. During a press conference with reporters on Wednesday, Press Secretary Jay Carney reiterated that the White House looks forward to Feinstein finishing her report.

“It’s time to see the findings of this report,” Carney said.