On December 6, the Crime and Terrorism Subcommittee of the Senate Judiciary Committee held a hearing titled Ensuring Independence: Are Additional Firewalls Needed to Protect Congressional Oversight Staff from Retaliatory Criminal Referrals? TCP Senior Counsel Katherine Hawkins and Constitution Project Fellow Morton Rosenberg submitted a statement for the record explaining why the Speech and Debate Clause is crucial for protecting congressional staff from surveillance or retaliation by the agencies they oversee, and urging Members to ensure that the executive branch fully complies with it.
The hearing arose out of a 2014 CIA search of Senate intelligence committee computers—without notice to the committee or authorization from any court—in the context of the committee’s investigation into the CIA’s detention and interrogation program. The agency wanted to know how committee staff had accessed an internal document called the “Panetta Review,” which apparently acknowledges flaws in the interrogation program that the CIA would later attempt to conceal.
The CIA filed a crime report against committee staff with the Department of Justice, falsely alleging that staffers had “exploited” a vulnerability in an agency computer system to gain unauthorized access to classified documents. In fact, staffers had simply used a CIA-provided search tool to search and read CIA documents relevant to a congressional investigation—in other words, they conducted oversight.
The Justice Department declined to initiate a full investigation against Senate staff, and a CIA Office of the Inspector General (OIG) report found that the CIA’s search and retaliatory criminal referral were improper. The OIG report’s conclusions, however, were later overturned by a CIA “accountability board,” and the CIA director continues to defend the agency’s actions.
The hearing was chaired by Lindsey Graham (R-SC) and Sheldon Whitehouse (D-RI). Both Senators expressed deep concern that the executive branch could thwart effective oversight by threatening or retaliating against congressional staff, and both signaled their intention to strengthen staff protections. To that end, Hawkins and Rosenberg called on Congress to “act affirmatively to protect its communications from search and its staff from retaliation.” Members should “insist on assurances from agencies that they understand that the [relevant case law concerning the Speech and Debate Clause] prevents them from searching Senators, Representatives, and staffs’ legislative documents and communications,” they wrote.
Their statement is adapted from the forthcoming revised edition of When Congress Comes Calling: A Primer on the Principles, Practices, and Pragmatics of Legislative Inquiry, authored by Mr. Rosenberg.