In my three decades as a CIA lawyer, I was a frequent participant in dozens of investigations launched by Congress in the aftermath of any real or perceived CIA misadventure, misdeed or failure. Indeed, during my last seven years at Langley, when I was the agency’s chief legal advisor, I was consumed by one roiling controversy after another, most notably the CIA terrorist detention and interrogation program, when words like “black sites” and “waterboarding” became part of the national lexicon. As one of the program’s chief legal architects, I became—after a quarter century in the shadows—a public figure who became a focus, and ultimately a target, of congressional scrutiny and opprobrium.

Retired from the CIA for five years now, I have had the luxury to sit back and watch with a combined sense of relief and bemusement the most recent CIA imbroglio with Congress: namely, whether or not the agency has “spied” on the Senate Intelligence Committee and obstructed its lengthy investigation of the long-since-defunct terrorist interrogation program. That’s the remarkable claim Sen. Dianne Feinstein (D-Calif.), intelligence committee chair, made on the Senate floor on March 10. It’s a charge that CIA Director John Brennan promptly denied with a blunt vehemence that was equally remarkable. It also emerged that the agency had for some time suspected—and had reported to the committee’s leaders, Feinstein and Sen. Saxby Chambliss, her Republican counterpart—that committee investigators had secretly accessed and purloined CIA documents that they knew to be off-limits to the committee. Each side hinted that the other had committed “possible crimes.” In the days since, portentous terms like “constitutional crisis” and “separation of powers violations” have been freely bandied about in the halls of Congress and by pundits.

Watching and reading the breathless news coverage from the safety of my couch, I have to wonder how things turned so ugly and rancorous. Based on what’s been made public (which is all I have to evaluate), and my own long experience with flaps between the CIA and Congress, I’m convinced the dispute didn’t need to devolve into what it has become.

First of all, neither side should have injected the notion of “possible crimes” into this imbroglio. As best I can tell, nobody has committed any crimes here. What this is, at bottom, is a classic case of a fairly common phenomenon in the intelligence business: a struggle between the CIA and a congressional committee over the scope of the latter’s access to internal agency documents during a committee investigation.

A typical investigation is governed by a couple of basic understandings forged between the agency and the Congress, which have evolved over the years: First, the intelligence committees—which oversee the entire intelligence community, not just the CIA—get far more access to sensitive agency materials than do, say, the judiciary or foreign relations committees. Second, the manner by which the intelligence committees (or special committees created to investigate specific incidents like, say, Iran-Contra or 9/11) get to access these sensitive documents is negotiated in advance between the two sides. These agreements take various forms: sometimes documents are simply turned over to the committee; sometimes they are provided on a “read and return” basis; sometimes the documents stay at Langley and congressional staffers read them there, take notes and ask for copies of the ones they think are most relevant to their inquiry (in which case the documents are either redacted of particularly sensitive “sources and methods” information and turned over, or the agency respectfully declines to do so). The final option is the most draconian: The CIA refuses to provide any access to certain categories of documents.

The last permutation is at the heart of the current contretemps. The CIA did not allow the committee access to a particular 2010 document dubbed by the committee (in what sounds like a rather inflated description) as “the Panetta Report,” after the then-CIA director, Leon Panetta. The report is, evidently, a draft CIA summary and an informal assessment of the same trove—some 6 million documents—being provided concurrently to the committee. This one document has generated most of the vitriol, with Senator Feinstein charging that the CIA first kept the committee in the dark about its existence and then tried surreptitiously to get it back from the committee. For its part, the agency charges that the committee staff, pursuant to an agreement, had no right to see the draft and nonetheless, in effect, stole it.

I find all of this nuts. Such sturm und drang over a never-finalized (and perhaps half-baked) summary of documents the committee was already getting? I especially don’t understand why the agency kept it hidden in the first place, and then apparently went ballistic when the committee obtained it. It wasn’t, after all, an operational cable naming secret agents or still-secret covert operations—there is very little about the interrogation program that hasn’t long been declassified—which is the kind of thing the CIA in my day would go to the barricades over.

By making such a big deal about it, the CIA played right into the hands of Feinstein and her Hill allies; time and again I saw in my career that members of Congress love it when they can righteously—if disingenuously—accuse the CIA of lying or covering up something. In short, my former colleagues would have been far wiser and more tactically astute to just add these few pieces of paper to the stack of 6 million they were handing over and be done with it. And then maybe privately protest to the committee that the document had been discovered in a sneaky way, if in fact accessing it violated agreed-upon protocols. That’s how we used to handle things when we caught a congressional committee playing dirty pool, so to speak.

An even more fundamental question seems to me to be whether the committee was entitled to the “Panetta Report” in the first place. The answer, clearly, is yes. Sure, the thing was only an incomplete draft, and perhaps it technically fell outside the CIA/Senate agreement over what documents were fair game because of the date it was created, but so what? I suppose the CIA has a defensible legal position (I know one when I see one), but the document was clearly relevant to the committee’s investigative mandate. And, as I say, hardly worth making a big deal about.

Once it was clear to the CIA that the committee had the report, it looks to me like the agency suspected the congressional staffers were spiriting materials out of Langley they weren’t supposed to have. The CIA got understandably upset and alarmed at what they thought was a security breach, and took limited—if heavy-handed and politically unhelpful—technical investigative steps to determine possible additional breaches by the committee. The committee’s assertion that the CIA then “spied” on the congressional investigators, seems to me based on the available record, to be hyperbole at best. It was an ill-advised, shoot-in-the-foot thing for the agency to have pursued this investigation, but I can understand the motivation behind it. And, still knowing all of the senior managers there who would have been involved, I am absolutely convinced there wasn’t a scintilla of nefariousness.

Finally, it has been reported that the CIA’s Office of General Counsel (OGC)—my longtime former shop—dispatched a “crimes report” to the Justice Department about the way the committee staff acquired the “Panetta Report.” I can say from experience that the threshold for the CIA reporting to Justice “possible crimes” by its employees as well as third parties is extremely low. It doesn’t take much more than a shard of potentially credible wrongdoing by somebody, including members and staffers in Congress. The threshold is so low that the agency sends numerous such reports on any given week—my guess is that we dispatched hundreds of them when I headed the office. Justice does absolutely nothing with the vast majority of them.

I can see why the OGC concluded it had to issue a “crimes report.” Senator Feinstein’s subsequent speech on the Senate floor, during which she took personal aim at the acting head of OGC, Robert Eatinger—an honorable career public servant—was gratuitous and unfair.

That said, given the political realities, the agency should have handled things differently from the start. They should have protested to the committee leadership about what it thought the committee staff had done. The CIA could have even warned that accessing the “Panetta Report,

if substantiated, might lead to a follow-up investigation. Then, and only then, the CIA’s lawyers could have briefed—not alerted to a “possible crime”—the Justice Department about its discussion with the committee leadership. Thus, the duty to alert Justice would have been met, and I guarantee that Justice would have stayed a million miles away from touching the thing. (Does anyone really think the Obama Justice Department would ever criminally investigate a Democratic Senate staff that was conducting an investigation on a Bush-era program that the president and the attorney general had long denounced as “torture”?)

I was hardly surprised—and neither should the agency be—that the Congress predictably and dramatically expressed its outrage about the CIA reporting it for “possible crimes.” At the end of the day, the reality has always been that Congress can investigate the CIA about almost anything, but the agency can never be perceived—rightly or wrongly—as investigating Congress. That’s just how our system works.