Justice Dept. won't make a federal case out of a Senate-CIA spat

The Justice Department won't investigate the CIA or Senate staffers

The Justice Department has announced that it won’t pursue a criminal investigation of a dispute between the Senate Intelligence Committee and the CIA over whether agency staffers poached on the committee’s turf and vice versa.

The announcement smoothes over a spat that may have complicated the long-delayed release of at least part of the committee’s report on the Bush administration’s interrogation of suspected terrorists after 9/11 — a.k.a. the “torture report.”

All’s well that ends well politically, but is Justice’s decision to let the matter lie defensible as a matter of criminal law? It looks that way.

Fingers were pointing in both directions during this controversy. The CIA’s former acting general counsel had filed a criminal referral to the Justice Department after staffers on the Intelligence Committee allegedly gained access to an internal agency report about the detention and interrogation program. That infuriated committee the chairwoman, Sen. Dianne Feinstein (D-Calif.).

For her part, Feinstein accused the agency of searching Senate computers containing not only agency documents but also the committee’s notes. “I have grave concerns that the CIA search may well have violated the separation-of-powers principles,” she said.

In deciding whether to pursue a criminal investigation of either the staffers or the agency, the Justice Department’s concern shouldn’t have been political peace but a determination of whether criminal law had been violated. But even by that standard, the circumstances of the interaction of the committee staff and the CIA in cyberspace seem sufficiently murky to caution against criminalizing the matter.

So now that the committee and the CIA are friends again, fruitful discussions can presumably take place about the release of at least some portion of the committee’s report, which by all accounts is a scalding indictment of the efficacy of waterboarding and other “enhanced interrogation” methods.

Considering that the report was approved by the committee in December 2012, it’s about time.

Follow Michael McGough on Twitter @MichaelMcGough3

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