Yes, the irony of the CIA intruding on the computers of the Senate Select Committee on Intelligence—whose chairwoman has defended the right of the NSA to intrude on the computers of millions of Americans—is delicious. Yes, there is probably hypocrisy involved in the indignation. Yes, it hurts to say this: Senator Dianne Feinstein (D-CA), who is outraged, is still right.
This is not—as much of the commentary surrounding the news of the intrusion suggests—about Senator Feinstein somehow getting indignant because she has experienced, in her personal capacity, the same kind of governmental invasiveness from which she failed to protect her constituents. She ought to have protected them from that invasiveness. If this intrusion illuminates the issue for her, all the better.
But constitutionalists must separate the personal from the political in this case. The intrusion on the Intelligence Committee was in no sense personal, or at least that is not the sense in which it offends, nor is the exemption from surveillance that Feinstein demands for her panel a claim of individual entitlement. This has nothing to do with persons being inconsistent by carving out self-serving exemptions and everything to do with the constitutional offices those persons temporarily occupy.
Certain unique features do attach to those offices. Call them privileges if that helps. The Constitution does. Article One, Section Six: Members of Congress are “privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.”
These are entitlements unavailable to the rest of us, which is a good thing, and reserved to members of Congress, which is good, too—not because they are Very Important People, but because, in the first place, we do not want zealous executives arresting members of Congress for political convenience, and in the second, because full and free legislative debate is a public good.
Which brings us to the case of the CIA spying on Congress in the performance of the latter’s official duties. There simply can be neither separation of powers nor any serious check on the executive if this is allowed to stand. No separation of powers means a single person has arbitrary power. Whether he or she gets it by formally concentrating authority, or by tapping legislators’ phones, rifling their inboxes, or cowing them with allegations that their staffers broke the law is not the point.
That separation of powers is endangered is, one assumes, more or less evident to anyone who takes the constitutional system seriously. What is getting confused in the outrage over the Intelligence Committee’s outrage is the difference between persons and offices, something to which constitutionalists in particular ought to attend. Persons do not have special privileges. But if the separation of powers is to be preserved, there is no way around the fact that offices do.
To be sure, there are multiple reasons it is difficult to muster outrage on behalf of Congress. First among them is the one lighting up Twitter, which is the chasm separating the indignation that erupts when members of Congress are spied upon versus the apologetics that result when the spying is directed at their constituents. A learning experience for those members of Congress who have engaged in the latter—not all have, to be sure, and there have been some heroes even on the Senate Intelligence Committee itself—would not be the worst outcome of this episode.
But the second reason, and perhaps this is just not Twitter material, is that Congress itself has been an accessory to the erosion of the very separation of powers of which it now finds itself in need. The overweening pride of the executive would not be possible without the depressing docility of the legislature.
Still, difficult as it might be to summon indignation, summon it the constitutionalist must. Just as offices and persons must be separated, so must one’s defense of the constitutional order be separated from one’s disappointment with those in temporary custody of it. It is not too strong to call the CIA’s alleged rummaging of a Senate committee’s computers a drastic attack on the separation of powers. Feinstein may be an unsympathetic spokeswoman for the constitutional order just now. That order is still worth defending.