Judge Andrew Napolitano

Initially, I was gratified to learn that Sen. Dianne Feinstein, D-Calif., the chair of the Senate Intelligence Committee, was unafraid to take on the Central Intelligence Agency (CIA) over the issue of domestic spying.

The CIA is limited by its charter to stealing secrets from foreigners outside the U.S. However, in a recent dust-up, Feinstein took to the Senate floor to accuse the CIA of spying on staff members of her committee while they were examining CIA documents in Virginia. This may be the first acknowledgment by any senior government official who walks the halls of the intelligence community that the CIA engages in domestic spying.

For five years, the Senate Intelligence Committee has been examining classified CIA materials involving CIA use of torture during the Bush administration. It is doing so because a now retired CIA official admitted destroying evidence of torture. We may never know what torture the CIA was authorized to engage in, but we can conclude that along with its counterpart in the House, the Senate Intelligence Committee has either looked the other way or expressly approved CIA behavior that well transcends its charter. This unlawful behavior includes not only torture, but also killing Americans via the use of drones, and small-scale unpublicized warfare.

So, you can imagine the glee this defender of personal freedom and the rule of law initially felt when I learned that the CIA's erstwhile champion had had what appeared to be a change of heart. Feinstein surely is the most effective defender of the intelligence community on Capitol Hill. Until last week, she publicly supported and shielded but never criticized the massive spying on Americans by the National Security Agency (NSA), the CIA's cousin. She must have supported the CIA's torture, killings and warfare -- but something about the torture caused her to induce her committee to engage in a full-scale investigation of the Bush-era torture her committee must have approved.

I say "must have" because, in this weird post-9/11 world, Congress does not review the CIA's behavior or expand its powers; these two congressional committees do. Because Congress chartered the CIA, and because the CIA charter does not contemplate behavior beyond stealing foreign secrets, and because only Congress can change federal laws, any expansion of the CIA's duties not authorized by Congress is unconstitutional -- and yet aside from the point I address here.


Judge Andrew Napolitano

Judge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. He sat on the bench from 1987 to 1995, during which time he presided over 150 jury trials and thousands of motions, sentencings and hearings. He taught constitutional law at Seton Hall Law School for 11 years, and he returned to private practice in 1995. Judge Napolitano began television work in the same year.