December 6, 2016

Whitehouse Explores Protections for Congressional Oversight Staff

Senator raises questions about safeguards against retaliation in Judiciary subcommittee hearing on federal separation of powers

Washington, DC – In a hearing of the Senate Judiciary Subcommittee on Crime and Terrorism today, Ranking Member Sheldon Whitehouse (D-RI) explored whether congressional staff engaged in oversight activity are sufficiently insulated from retaliatory criminal referrals initiated by the Executive Branch.  Senator Whitehouse confronted this issue during his time on the Senate Intelligence Committee and in the years after, when Committee staff engaged in oversight of the Central Intelligence Agency’s (CIA) Detention and Interrogation program were the target of a CIA-initiated criminal referral to the Department of Justice that was widely viewed as an attempt at intimidation.

Witnesses at the hearing, entitled “Ensuring Independence: Are Additional Firewalls Needed to Protect Congressional Oversight Staff from Retaliatory Criminal Referrals?”, included:

  • Professor Scott Horton, Adjunct Professor, Columbia Law School, Author, Lords of Secrecy: The National Security Elite and America’s Stealth Warfare
  • Mr. Jeff Smith, Partner, Arnold & Porter LLP
  • Mr. Bill Pittard, Partner, Kaiser Dillon PLLC

Whitehouse’s as-prepared opening remarks are included below

Mr. Chairman, thank you for holding today’s hearing, and thank you for your continued partnership on such a wide range of issues.

One of the legends of the Senate, Robert Byrd of West Virginia, was a staunch defender of congressional independence, and a vocal critic when actions by the executive branch violated the separation of powers principles undergirding our democracy. 

Senator Byrd did not hesitate to call out colleagues who countenanced invasions of congressional authority, saying on one occasion:

“It was the separation of powers upon which the framers placed their hopes for the preservation of the people’s liberties. Despite this heritage, the congress has been in too many cases more than willing to walk away from its constitutional powers.”

One of the fundamental powers vested in Congress by the Constitution is our authority and obligation to conduct oversight of the executive branch.  In the words of Woodrow Wilson:

“Quite as important as legislation is vigilant oversight of administration. It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. The informing function of Congress should be preferred even to its legislative function.”

Today’s hearing will explore the important separation of powers concerns that arise when congressional staff engaged in oversight of the executive branch are threatened with criminal prosecution by that branch.

This issue presented itself front and center during my time on the Senate Select Committee on Intelligence and in the years that followed.  Starting in 2009, Committee staff undertook a comprehensive review of the CIA’s Detention and Interrogation program, referred to colloquially as the torture program.

The facts of that congressional review necessary to understand the issue of this hearing are these. 

During the course of the Committee investigation, conducted within the agency’s premises and using a network search tool provided by the CIA, Committee staff located documents that the CIA apparently had not intended to make available for review.

These documents contained an internal CIA assessment of the interrogation program known as the “Panetta Review,” an assessment which called into question many of the CIA’s statements to Congress about the scope and brutality of the program, and whose inadvertent release to committee investigators caused considerable alarm within the CIA.

In response to learning Senate investigators had access to the Panetta Review, CIA personnel and CIA contractors accessed, without Senate authorization, the Senate computer network that was set-up exclusively for the Committee’s use.  They searched the network and reviewed the email of Senate staff.

The CIA’s Inspector General then conducted an investigation of the CIA’s conduct and made a referral to the Department of Justice—based on their judgment that the CIA’s search of the Senate’s computer network was a potential crime. 

Next, in February of 2014, the Acting General Counsel of the CIA –whose name appeared more than 1,600 times in the Senate Report – submitted to the Justice Department his own criminal referral alleging that Committee staff violated the federal hacking statute by accessing the Panetta Review documents.

The merits of this referral were not reviewed by the Director of National Intelligence, the White House, or anyone else outside of the CIA.

On the floor of the Senate in March of 2014, Intelligence Committee Chairman Feinstein called the CIA referral unfounded and described it as “a potential effort to intimidate [Committee] staff.”

It took the Department of Justice more than five months to clear the Committee staff and announce that no investigation would be opened.

Mr. Chairman, at this point I would ask for  unanimous consent to enter into the record a complete timeline of events surrounding the CIA’s 2014 criminal referral of Committee staff that has been shared with your office and prepared based on publicly available information.

This sequence of events raises several separation of powers questions.   First, the CIA’s criminal referral had a significant effect on the committee staff and their ability to perform legislative duties, even though it was ultimately determined to be without merit.   We will hear from one witness about what legislative employees go through when they are faced with such circumstances, and how it affects the performance of their duties.

Second, the prior referral that had been made against CIA personnel by the CIA Inspector General raises the question of retaliation by the CIA in making its subsequent referral against committee staffers, even just to create an “offsetting penalties” situation, raising the question: what safeguards protect against such retaliation?

Third, the involvement as a prominent subject of the Senate Report of the CIA official, who launched the criminal referral against the staff who were drafting the report in which he was implicated, raises an obvious conflict of interest, and again the question what safeguards protect against such conflicts of interest.

The purpose of this hearing is not to relitigate either of those referrals.  They simply set the stage for the constitutional question of this hearing:  what safeguards should there be to protect ongoing congressional investigations against executive interference by abuse of the criminal referral process?  One could imagine a scenario in which an executive official, who is the subject of a tough committee investigation, launches a criminal referral against committee staff, and a friendly Attorney General then sits on it, or slow-walks it, to protect his colleague and the administration from embarrassing disclosures. That appears to be a scenario against which we have no adequate present safeguards. 

I look forward to hearing from the panel today.  We have assembled a distinguished group of witnesses that will present a range of views on how to protect the independence of congressional staff engaged in oversight activity.  I think this discussion is vital and timely, and I thank you again Mr. Chairman for holding this hearing.

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