In the world of intelligence oversight, Sen. Feinstein gets bouquets and brickbats

McClatchy Washington BureauMarch 7, 2014 

— California Democratic Sen. Dianne Feinstein convened a rare public session of the Senate Intelligence Committee last month, showcasing Capitol Hill’s sometimes touchy oversight of the nation’s spy apparatus.

It was a confirmation hearing for two top national security officials. Feinstein invited the nominees “to run through and explain, so the public understands, the various levels of oversight” of a controversial electronic surveillance program. It was a slow pitch across the fat part of the plate and the witnesses hit it out of the park.

But when his time came to question the witnesses, Democratic Sen. Ron Wyden of Oregon threw some heat, denouncing what he called the Obama administration’s “reliance on secret law (and) misleading statements.”

“To be blunt, you’re going to have a lot of cleaning up to do,” Wyden sternly told the nominee to head the Justice Department’s National Security Division. “What are you going to do to end this culture of misinformation?”

The contrast between senators who share a party label showed one facet of an often-secretive committee that now faces fresh scrutiny and rising tensions. It also presents high personal stakes for Feinstein, its longtime chair.

Her committee has been involved in a highly secret battle _ revealed this week by McClatchy _over a long overdue report on the CIA’s use of severe interrogation tactics on suspected terrorists.

The Justice Department has been asked to investigate whether the CIA improperly monitored Senate Select Committee on Intelligence staff. At the same time, McClatchy has reported that the FBI is also investigating whether committee staff improperly removed agency documents from a secure site.

Together, the investigations will certainly complicate relations between congressional overseers and the 17 federal agencies that comprise the intelligence community. This comes at a particularly delicate time, too, just as lawmakers wrestle over mass surveillance and other intelligence policies.

Indeed, Feinstein already had drawn fire from some congressional colleagues and others starting last year for her strong defense of National Security Agency surveillance programs that were revealed by former NSA contractor Edward Snowden. Some of her fellow Democrats were among the biggest skeptics.

“I take my responsibility to conduct thorough oversight of the intelligence community very seriously, and I believe the committee performs that function well,” Feinstein said in a statement Friday. “It is the nature of intelligence oversight that, if done well, much of it is never known publicly.”

Now in her 21st year in the Senate, Feinstein is smack in the middle of it all. How she handles what comes next will help shape her long-term reputation and short-term political standing, which has shown some softening following years of sky-high California popularity.

In December, a Field Poll found that her approval rating had slipped to 43 percent, down from 50 percent a year before.

Mark DiCamillo, director of the Field Poll, said Friday that he saw “circumstantial evidence” the decline was due in part to Feinstein’s support for the Obama administration’s controversial surveillance programs.

“There’s been this kind of push-back from voters,” he said, “and yet she continues to support it.”

As chair of the Senate Select Committee on Intelligence since 2009, and a member since 2001, Feinstein already has stood out in several ways. She’s the first woman to chair the 15-member panel and the first Californian. At age 80, she’s now the oldest to spearhead the committee since it was established in 1976.

Her long tenure has given her considerable stature, as she meets with foreign spy chiefs and negotiates with the White House. Sometimes she’ll drop in on CIA headquarters, or perhaps an intelligence community facility, for what she calls roundtable discussions.

Her perch gives her say over a sprawling, but largely undercover, intelligence budget that totals more than $52.2 billion. It gets her on national television regularly and provides her Capitol Hill leverage.

“I have tremendous regard and respect for her,” said Rep. Adam Schiff, a California Democrat who serves on the House intelligence panel and who disagrees with Feinstein on some key policies. “She does a remarkable job; she does her homework.”

One thing she does is keep the trains running. Since Feinstein took over the committee, an annual intelligence authorization bill has been passed and signed into law. That hadn’t happened between 2006 and 2009. Almost every week, as well, her panel convenes for secret sessions.

The oversight position makes Feinstein highly visible to defense and intelligence contractor firms. Between 2003 and 2008, when she was still a rank-and-file member of the panel, two major defense or intelligence contractors ranked among her top 15 campaign contributors.

Since 2009, when she took over the gavel, four of her top 15 have been defense firms or intelligence contractors, according to federal campaign data compiled by the nonpartisan Center for Responsive Politics, a campaign finance watchdog group.

Feinstein’s critics says she has been too lax an overseer and too quick to defend the intelligence community. Her policy differences with liberals, such as the blow-back she’s gotten over her support of the NSA during the phone records controversy, don’t necessarily bother her.

Political pros still recall how Feinstein invited boos at a 1990 state Democratic convention by proclaiming her support for the death penalty as a sign of her law-and-order credentials.

By any account, intelligence community oversight is a particularly tricky business.

“The intelligence committees have a daunting task, particularly given the complexity of the programs they are expected to oversee,” Geoffrey R. Stone, a University of Chicago Law School professor and a former member of a White House surveillance review panel, said Friday. “It would be easier for them to fulfill their responsibilities if they had full-time staff who themselves had had extensive and high-level experience inside the agencies.”

Spy agencies don’t always play it straight. At a hearing last year, the nominee to serve as CIA general counsel acknowledged that the agency had not provided accurate information about coercive interrogations to the Justice Department.

Intelligence agencies, moreover, are in the business of recruiting allies and hiding secrets. They can offer the allure of being in the know.

“The biggest challenge is, there’s a tremendous mismatch of resources,” Schiff said. “The committees are limited, and the agencies are behemoths.”

Timothy H. Edgar, a visiting fellow at Brown University’s Watson Institute for International Studies and a former intelligence panel witness, agreed that there’s a resource disparity. But in an interview Friday, he said the oversight was “pretty substantial and keeps the intelligence community on its toes.”

Still, assessing the quality of Feinstein’s oversight is made harder by the committee’s closed doors. It has held more than 70 hearings since January 2014, records show. Only six have been open to the public.

At the public sessions, Feinstein sometimes presses hard.

At a December 2013 confirmation hearing, for instance, Feinstein pinned down Caroline Krass, the CIA general counsel nominee, who tried to wiggle around a question about providing secret Office of Legal Counsel opinions regarding CIA activities.

Krass provided a lawyerly, oblique response. Feinstein cut to the chase.

“So your answer is no,” Feinstein said. “Is that what you’re saying?”

Krass then acknowledged the secret legal opinions would not be provided to Congress. It was a clarifying moment, though lawmakers didn’t get what they wanted.

At other times, Feinstein is far less demanding.

At a September 2013 hearing on the Foreign Intelligence Surveillance Act, her sole question for three top administration officials was an invitation to describe the metadata collection of phone numbers, which she stressed was different from mass surveillance.

“I’ve sat through a number of these hearings. I don’t think I’ve ever heard anyone more forthright or more honest,” Feinstein assured John Brennan at his February 2013 confirmation hearing to be CIA director, adding that she “will do everything I possibly can to see that our committee works with you closely and honestly.”

By contrast, at a Jan. 29 hearing this year, another committee member, Sen. Martin Heinrich, D-N.M., was telling Brennan of his “continued disappointment of how the CIA under your leadership has chosen to engage and interact with this committee,” further citing “inaccurate public statements . . . meant to intimidate, deflect and thwart legitimate oversight.”

Feinstein, however, offered no such public criticism of Brennan during the hearing and steered some committee members’ most pointed questions to a closed session.

The report at issue in the current dispute between Feinstein’s committee and the CIA is a 6,300-page study on the agency’s interrogation and detention practices. It was completed at an estimated cost of $40 million and approved in December 2012. But it remains secret, as does its several-hundred-page executive summary.

Even Schiff, a member of the House Permanent Select Committee on Intelligence, says his requests to see the report have been denied.

It’s not clear when the report that has caused the recent friction, or more likely, its summary, will be released, nor is there a clear roadmap for how the committee will find its way in the future.

“I prioritize bipartisanship and inclusion on the committee,” Feinstein said in a statement Friday, “so we are able to function effectively and not get mired in partisan divides.”

Jonathan S. Landay of the Washington Bureau contributed.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10.

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