Dianne Feinstein is angry and she wants CIA director John Brennan to know why: the CIA is spying on the United States Senate. “The CIA did not ask the committee or its staff if the committee had access to the internal review or [how] we obtained it. Instead the CIA just went and searched the committee’s computers. The CIA has still not asked the committee any questions about how the committee acquired the Panetta review.”
The “Panetta review” is an internal CIA report on how the agency conducted its business between 2002 and 2009. Specifically the review spills the beans on “the CIA’s detention and interrogation [and torture] program.” Recall that this program operated for almost 6 years before anyone, Feinstein included, even knew of its existence. In a long speech to the full Senate Feinstein said “I have asked for an apology and a recognition that this CIA search of computers used by its oversight committee was inappropriate. I have received neither.”
If we change the names and titles a bit, let’s see if Feinstein’s complaint looks familiar. Citizen Steinfein complained that the NSA’s PRISM program just went and searched his computer. PRISM, “didn’t ask any questions about how the video message and metadata from my dog groomer was obtained. I have asked for an apology and a recognition that this NSA search of my iMac computer was inappropriate. I have received neither.” My, these complaints look almost identical and guess what? The former happened but twice while the latter occurs millions of times every day and by all accounts is still happening. Welcome to our world, Senator Feinstein.
When the Constitution was being ratified in Virginia’s convention of June 1788, Patrick Henry brought up the “secrecy clause” of Article I, Section V, Clause 3, “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.”
Henry demanded to know why the new government would need “secrecy” and what guarantees were there they would not abuse the privilege? Henry is worth quoting in full here because he accurately foresaw what this power would devolve to in the hands of “knaves”:
“We are told that the yeas and nays shall be taken, and entered on the journals. This, sir, will avail nothing: it may be locked up in their chests, and concealed forever from the people; for they are not to publish what parts they think require secrecy: they may think, and will think, the whole requires it. Another beautiful feature of this Constitution is, the publication from time to time of the receipts and expenditures of the public money. This expression, from time to time, is very indefinite and indeterminate: it may extend to a century. Grant that any of them are wicked; they may squander the public money so as to ruin you, and yet this expression will give you no redress. I say they may ruin you; for where, sir, is the responsibility? The yeas and nays will show you nothing, unless they be fools as well as knaves; for, after having wickedly trampled on the rights of the people, they would act like fools indeed, were they to publish and divulge their iniquity, when they have it equally in their power to suppress and conceal it. This, sir, is my great objection to the Constitution, that there is no true responsibility — and that the preservation of our liberty depends on the single chance of men being virtuous enough to make laws to punish themselves.”
Last June, Senator Feinstein acted as one of those knaves. When controversy erupted over the NSA’s PRISM program and other unconstitutional obscenities, the senator told the hoi polloi who dared question the NSA’s practices, “Let me put it from my point of view … the reason why we keep NSA doing what it’s doing… It’s to ferret [terrorism] out before it happens. It’s called protecting America.”
It’s nice to know the Senator can be counted on to keep the Department of Pre-Crime up and running, outside of the Phillip K. Dick story that gave it life, but isn’t that what the CIA did to her? It acted before there was damage done. CIA couldn’t have known exactly what the Senate might do with the full “Panetta Review” just as NSA cannot possibly know when and what it will do with the “metadata” it stole from your device. It might even use the Feinsteinian defense of “it’s called protecting America.”
It appears we have sauce enough for goose and gander. But Feinstein’s duplicity goes beyond a double standard of official privilege. Recall that she defended NSA’s Clapper after he had perjured himself before congress about domestic surveillance saying “you can misunderstand the question,” Senator Wyden asked. That’s rich, considering the question was, does NSA collect “any type of data at all on millions or hundreds of millions of Americans?” [emphasis mine]
All this amounts to Feinstein being hoisted by her own petard, a situation the earnest citizen should be mortified by. It means that short of a specific executive order being carried out that acts directly on a specified individual by a specified bureaucrat, no one knows who is in control of what. Put another way, how can any of James Madison’s “checks and balances” be relied upon? The fourth branch of government, the administrative state, or Mordor-on-the-Potomac, is unaccountable.
The mis-labeled “Anti-Federalists,” Patrick Henry among them, warned us about conferring power on a central authority over a large land mass and population. Speaking two days later in the same Virginia Convention, Henry tied the “secrecy clause” to the soon to become, out-of-scale size of the Constitution’s government. “My worthy friend [George Mason] said that a republican form of government would not suit a very extensive country; but that, if a government were judiciously organized, and limits prescribed to it, an attention to these principles might render it possible for it to exist in an extensive territory. Whoever will be bold to say that a continent can be governed by that system, contradicts all the experience of the world. It is a work too great for human wisdom.” [emphasis mine] This view would not be limited to ratification times. Judge Abel Upsher would pick up on it during the decades before the War of Secession.
“But in a country so extensive as the United States, with great differences of character, interests and pursuits, … a fair opportunity is afforded for the exercise of an oppressive tyranny, by the majority over the minority … Under such a system as this, it is a cruel mockery to talk of the rights of the minority. If they possess rights, they have no means to vindicate them. The majority alone possess the government; they alone measure its powers, and wield them without control or responsibility. This is despotism of the worst sort, in a system like ours.”
These passages are not rescued from the ash heap of history to make my point, they are presented as the dire predictions of statesmen, jealous of the future liberty of their country, motivated by love and driven by that passion to risk their public celebrity. I might be encouraged to continue “reforming” this “system” (as Henry called it) if the likes of Senator Feinstein would be so candid as to admit that this modern monster she helped create has now attacked its creator, the predictable dangers that come with that admission. But to do that would be to risk taking that responsibility Patrick Henry told us was not to be found in the Constitution.
The responsibility therefore now lies with us to break away from this evil and do as Jefferson instructed us and “institute new government … organizing its powers in such form … to effect [Our] Safety and Happiness.” Safety and happiness, combined with genuine liberty? That sounds like what we used to call “America,” sign me up.
Mike Church is a radio host appearing daily on the SiriusXM Patriot Channel. He is an author and editor of “Patrick Henry-American Statesman” and is the writer and director of 7 Docudramas on American history including “The Spirit of ‘76” and the upcoming “Times That try Men’s Souls-Washington’s Crossing.”