By this point, it should be clear that when Senators Ron Wyden and Mark Udall ask questions to senior intelligence community officials in open hearings, it's not because they don't know the answers, but because they do, and they have information that they think should be public. Remember, of course, that, years ago, Wyden and Udall were clearly hinting
at what Ed Snowden eventually revealed. So, during yesterday's hearing during which leaders from the intelligence community tried to pull their usual "be scared American people!" schtick, Wyden's and Udall's questions point to some potential mischief by the CIA
. Both asked questions of CIA boss John Brennan concerning the legality of certain actions. It is unlikely that they did this because they were just curious. Wyden kicked it off by asking if the Computer Fraud and Abuse Act (CFAA) applied to the CIA:
Wyden: Does the federal Computer Fraud and Abuse Act apply to the CIA?
Brennan: I would have to look into what that act actually calls for and its applicability to CIA’s authorities. I’ll be happy to get back to you, Senator, on that.
Wyden: How long would that take?
Brennan: I’ll be happy to get back to you as soon as possible but certainly no longer than–
Wyden: A week?
Brennan: I think that I could get that back to you, yes.
Of course, we've written about the CFAA
many times, and how the broadly (terribly) written law has been abused by law enforcement to go after all sorts of ordinary or reasonable computer activity. But Wyden is flipping this around in a slightly interesting way -- asking if the CFAA applies to the CIA. The answer, actually, is probably no, the CFAA doesn't apply to the CIA
. If you look at 18 USC 1030(f)
(which is part of the CFAA), it says:
This section does not prohibit any lawfully authorized investigative, protective, or intelligence activity of a law enforcement agency of the United States, a State, or a political subdivision of a State, or of an intelligence agency of the United States.
It seems likely that the eventual answer from Brennan to Wyden will basically point to this particular language. But that's not particularly important, as the intent of the question likely had little to do with actually looking at the scope of the CFAA, but rather hinting very strongly
that the CIA is hacking into computers in a manner that would violate the CFAA if it wasn't being done by law enforcement.
This was then followed up soon after with a question from Udall, again to Brennan, asking a slightly different question about the CIA's legal authority, which Brennan doesn't actually answer, instead answering a different question that wasn't asked:
Udall: I want to be able to reassure the American people that the CIA and the Director understand the limits of its authorities. We are all aware of Executive Order 12333. That order prohibits the CIA from engaging in domestic spying and searches of US citizens within our borders. Can you assure the Committee that the CIA does not conduct such domestic spying and searches?
Brennan: I can assure the Committee that the CIA follows the letter and spirit of the law in terms of what CIA’s authorities are, in terms of its responsibilities to collect intelligence that will keep this country safe. Yes Senator, I do.
Got that? He was asked "do you spy on Americans?" and the answer was "we follow the law." Considering that Wyden and Udall have been among the leading folks pointing out that the intelligence community has regularly reinterpreted
the laws in secret in order to broaden their claimed authority, that answer is hardly assuring. Instead, it sure sounds like the CIA admitting that, hell yes, they spy on Americans under their twisted interpretation of the law. Combine that with Wyden's question -- which may or may not be about the same issue, but the two have often coordinated on these issues -- and it certainly hints at the idea that the CIA is hacking into Americans' computers.
Over the last few months, much of the focus has been on the NSA, but it's important to remember that the CIA actually is bigger
in terms of its budget, and remains incredibly powerful and secretive. Also, over the last decade or so there appears to be significant evidence of incredible abuse by the CIA. As we've noted a few times, the Senate Intelligence Committee has been sitting on
a supposedly explosive report that cost $40 million to put together, detailing some horrific CIA abuses, which the CIA has been doing everything possible to stop from being released.
Given all this, how long will it be until we discover "explosive" revelations about the CIA that confirm what Wyden and Udall have been hinting at?