Senate Intelligence Committee chair Dianne Feinstein (D, Calif.) made waves Tuesday when she publicly accused the Central Intelligence Agency of spying on Senate computers in an alleged attempt to thwart her committee's investigation into Bush era interrogation and detention practices. The senator even suggested that the agency had violated the Constitution and federal law.
But while Feinstein is up in arms about the intelligence agency's search of her staff's computer system and network, she has been an avid defender of National Security Agency surveillance programs. "It’s called protecting America," she said shortly after the news broke that the NSA was collecting domestic phone records in bulk. In a Wall Street Journal opinion piece, Feinstein further suggested that the 9/11 terrorist attack likely would have been prevented if the phone metadata program was in place. And when it came to reform, many privacy advocates and journalists have suggested that her proposal for changes to the spy agency's programs amounted to codifying certain powers and expanding others.
Given her very public stance in the surveillance debate over the past nine months, many were quick to notice the apparent disconnect. On Twitter, Cato research fellow Julian Sanchez quipped about alleged CIA actions merely being a form of metadata search. Former NSA contractor Edward Snowden, the source of the leaks about the phone records collection and other government spying programs, even weighed in.
"It's clear the CIA was trying to play 'keep away' with documents relevant to an investigation by their overseers in Congress, and that's a serious constitutional concern,” said Snowden in a statement to NBC News. “But it's equally if not more concerning that we're seeing another 'Merkel Effect,' where an elected official does not care at all that the rights of millions of ordinary citizens are violated by our spies, but suddenly it's a scandal when a politician finds out the same thing happens to them."
Snowden's remarks refer to the reaction of German Chancellor Angela Merkel to the fact that she was personally spied on, in contrast to her reaction to the news of bulk surveillance program. Interestingly, one of the few divides between Feinstein and the NSA was over their surveillance of friendly foreign leaders. In October, she said a "total review" of those programs was necessary. However, she made it clear it didn't change her opinion of bulk surveillance programs.
“Unlike NSA’s collection of phone records under a court order, it is clear to me that certain surveillance activities have been in effect for more than a decade and that the Senate Intelligence Committee was not satisfactorily informed. Therefore our oversight needs to be strengthened and increased," Feinstein said. “With respect to NSA collection of intelligence on leaders of U.S. allies — including France, Spain, Mexico and Germany — let me state unequivocally: I am totally opposed."
But despite the easy comparison between her stance on NSA bulk collection programs and the collection of data from her committee's computer system, Feinstein's perspective is not wholly inconsistent. Even though she invoked the Fourth Amendment when decrying CIA activities in her speech Tuesday, her primary gripe was that she believed the intelligence agency had potentially violated the separation of powers enshrined in the Constitution by interfering with the committee's oversight mission.
However, there have been similar concerns raised about the NSA's domestic spying activities. Sen. Bernie Sanders (I- Vt.) sent a letter to NSA Director General Keith B. Alexander in January asking, “has the NSA spied, or is the NSA currently spying, on members of Congress or other American elected officials?” Sanders's definition of spying included "gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business.”
The NSA responded quickly, but it didn't give a straight yes or no answer -- instead it sidestepped the question while making assurances that "Members of Congress have the same privacy protections as all U.S. persons." Given that the domestic phone program doesn't seem to specifically protect any U.S. person from having his or her metadata collected as part of the phone records program, the agency's statement may have even implied that the agency is spying on Members of Congress by Saunder's definition.