Over the weekend, Senator Dianne Feinstein judged that former CENTCOM head and CIA Director David Petraeus "had suffered enough" in connection with leaking classified information to his mistress, Paula Broadwell, and so shouldn't be indicted and prosecuted like normal people who get caught doing the same thing. "How much do we want to punish someone?"
It seems Feinstein doesn't like when punishment she -- and Petraeus himself -- enthusiastically endorse gets applied to her close associates.
This week, it became clear something similar had struck even closer to home.
The CIA's own Agency Accountability Board concluded that the CIA had done nothing wrong when, on three occasions early in 2014, it checked what Senate Intelligence Committee staffers -- Feinstein's own staffers -- were doing on the network the CIA required them to use to complete the Committee's Torture Report. Among other reasons the AAB found the CIA had done nothing wrong was that when SSCI staffers logged into the network, they "clicked the OK button for the login warning banner that read ... Your use of this system may be monitored and you have no expectation of privacy."
Effectively, committee staffers would be treated just as anyone else logging into a CIA computer might be -- because in 2009 Feinstein had acceded to CIA Director Leon Panetta's demand that SSCI depart from previous practice of storing documents on committee property and instead access required documents from a network owned by the CIA.
That conclusion was predictable (indeed, it was predicted). After all, when James Clapper wrote Chuck Grassley and Ron Wyden last July to allay their concerns that the Intelligence Community's User Activity Monitoring system might suck up legislative network activities, he noted that ordinarily, legislators and their staffers would not be affected because their classified networks weren't required to be monitored. "With respect to your second question about monitoring of Members of Congress and Legislative Branch employees, in general those individuals will not be subject to [User Activity Monitoring] because their classified networks are not included in the definition of national security systems (NSS) for which monitoring is required," Clapper explained.
"To be clear," Clapper continued, "when Legislative Branch personnel access a national security system used or operated by the Executive Branch, they are of course subject to UAM on that particular system."
It became fairly clear at that point, the Intelligence Community would feel free -- had felt free -- to spy on legislators if they used Intelligence Community networks owned by the Executive Branch, just as the Senate Intelligence staffers had been required to do.
That doesn't mean it was right. It's bad enough the Intelligence Community spies on all its own staffers all the time. But to spy on another branch of government is really problematic, constitutionally. This is precisely what separation of powers is supposed to prevent. So Senator Feinstein has more reason than just the intrusion on her staffers' work to worry about; she has to defend the diminishing ability of congressional oversight committees to be able to do any kind of oversight at all.
All that said, it would be nice if these two experiences give the Senator pause about the spying she herself endorses.
Perhaps Petraeus shouldn't lose his job and go to prison for leaking classified information so his mistress can write a fawning biography, telling the story Petraeus would like to be told. But neither should the whistleblowers -- like Jeffrey Sterling, who is on trial for allegedly leaking classified information about a dubious CIA plot this week -- lose their job and face prison time if they try to expose government stupidity. Feinstein apparently thinks only the latter group should be subject to the laws written by Congress and interpreted broadly by the Executive branch.
The government's spying and secrecy is consuming the government itself, going far beyond any necessity to keep secrets and making institutions -- and the separation of powers enshrined by the Constitution -- dysfunctional.