NSA Spying on Congress

[jimmy olsen]

The rabbit hole just keeps going deeper

http://www.theatlantic.com/politics/archive/2014/01/the-danger-of-nsa-spying-on-members-of-congress/282827/

The Danger of NSA Spying on Members of Congress

An executive-branch agency has been empowered to store revealing information about the communications of everyone in the legislature.
Conor Friedersdorf Jan 6 2014, 12:00 PM ET


U.S. Senator Bernie Sanders sent a letter to the NSA on Friday asking, "Has the NSA spied, or is the NSA currently spying, on members of Congress or other American elected officials?" The only acceptable answer ought to be, "No, of course not."

The honest answer: "Yes."

The NSA has spied on members of Congress, but acknowledging that would unnerve millions of Americans. That's why their official response to the letter was so evasive that CNN summed it up, "NSA won't say whether it spies on Congress."

The NSA noted "procedures that protect the privacy of U.S. persons," and said that "members of Congress have the same privacy protections as all U.S. persons." Put differently, a program that collects data about virtually every phone call in America cannot help but include the phone numbers that members of Congress dial, as well as the numbers of those who telephone members of Congress.

That's what happens when you hoover up information about everyone.

Access to that telephone metadata would be extremely useful for manipulating the legislature. So is it wise to collect it and make it accessible to a secretive executive-branch agency? Even if the NSA has never abused the temptation, will they resist it forever? Operating on that assumption seems both reckless and needless, given the scant evidence that the Section 215 program is necessary and the significant public interest in maintaining the integrity and legitimacy of the legislature.

* * *

Should anyone doubt how much mischief could come from spying on even one member of Congress, let's look back at the story of former Democratic Representative Jane Harman and what happened when the NSA intercepted and transcribed one of her telephone calls. That's right: There's a known instance in which a legislator's private communications were captured by the NSA, though it's a complicated story, and there isn't any conclusive evidence that the NSA did anything wrong. In fact, the NSA's apparent blamelessness is what makes this story particularly instructive: It shows that intercepting congressional communications has a high cost even when it's done innocently, inadvertently, and defensibly.

The story begins with the NSA surveilling two Israeli nationals suspected of being spies. Unbeknownst to them, their phone calls were being recorded by the NSA–and one day, a conversation with Harman got swept up in the ongoing wiretap. No one on the call knew it was being recorded.

"One of the leading House Democrats on intelligence matters was overheard on telephone calls intercepted by the National Security Agency agreeing to seek lenient treatment from the Bush administration for two pro-Israel lobbyists who were under investigation for espionage," the New York Times reported on April 20, 2009, following up on a story broken by Congressional Quarterly's Jeff Stein.

Let's assume the NSA wiretap was totally legitimate. As Marcy Wheeler noted at the time, it seems to have been approved by a court as part of a long-running investigation, and "the investigation–and the wiretaps–were the classic, proper use of FISA: for an intelligence investigation targeting suspected agents of a foreign power operating in the US ... We all better hope the NSA listens closely to conversations between powerful members of Congress and suspected spies, and that when they make quid pro quo deals, that conversation gets looked at much more closely."

But the story doesn't end there. Congressional Quarterly reported that a criminal case against Harman was dropped because she was a useful ally to the Bush Administration:

    Justice Department attorneys in the intelligence and public corruption units who read the transcripts decided that Harman had committed a "completed crime," a legal term meaning that there was evidence that she had attempted to complete it, three former officials said. And they were prepared to open a case on her, which would include electronic surveillance approved by the so-called FISA Court ...

    First, however, they needed the certification of top intelligence officials that Harman's wiretapped conversations justified a national security investigation ... But that's when, according to knowledgeable officials, Attorney General Gonzales intervened. According to two officials privy to the events, Gonzales said he "needed Jane" to help support the administration's warrantless wiretapping program, which was about to be exposed by the New York Times.

    Harman, he told Goss, had helped persuade the newspaper to hold the wiretap story before, on the eve of the 2004 elections. And although it was too late to stop the Times from publishing now, she could be counted on again to help defend the program.

    He was right.

    On Dec. 21, 2005, in the midst of a firestorm of criticism about the wiretaps, Harman issued a statement defending the operation and slamming the Times, saying, "I believe it essential to U.S. national security, and that its disclosure has damaged critical intelligence capabilities."

There are two ways of looking at those allegations. Was Alberto Gonzalez trying to protect someone who'd be an ally in an upcoming fight by suppressing evidence of her wrongdoing on a separate matter? Or was he using information gathered in a legitimate NSA wiretap as extra leverage over a sitting member of Congress, perhaps assuring extra cooperation, or even that she wouldn't switch sides? Whatever his intent, Harman surely felt compromised and unable to change her position on the subject if she was actually guilty of criminal wrongdoing.

But was she?

Another possibility was raised by Laura Rozen in Foreign Policy: that while Harman was always friendly to the Bush Administration's position on warrantless wiretapping, she made enemies by protesting its program of illegally torturing prisoners, and those enemies were trying to discredit her by way of the wiretap story. Perhaps Harman didn't say anything untoward in the conversation, as she insisted while demanding that the transcripts be released. It could be the case that a political enemy took advantage of the fact that she unexpectedly appeared in the transcript of a wiretapped conversation and used that to unfairly discredit her. If so, torture apologists succeeded in preventing a leading torture opponent from chairing one of the intelligence subcommittees, a scandal in itself.

What really happened? I can't tell you. I don't know.

But it's worth reflecting on the fact that, regardless of the scenario that one credits as truth, even an apparently incidental NSA wiretap of a legislator's conversation caused members of the executive branch to have untoward leverage over a member of Congress and to exploit their position in an ethically questionable manner. There is also the fact that Harman's career and reputation suffered from these allegations. If she was in fact innocent of wrongdoing, the secrecy surrounding the NSA virtually ensured that she'd be unable to clear her name; and if she was guilty of wrongdoing, secrecy prevents the public from knowing the facts.

Despite her staunch support for the Bush Administration's program of warrantless wiretapping, Harman would make the following remarks on MSNBC after being surveilled:

    I'm just very disappointed that my country—I'm an American citizen just like you are—could have permitted what I think is a gross abuse of power in recent years. I'm one member of Congress who may be caught up in it, but I have a bully pulpit, and I can fight back. I'm thinking about others who have no bully pulpit, and may not be aware—as I was not—that right now, somewhere, someone's listening in on their conversations, and they're innocent Americans.

Perhaps the public will never know what really happened in the Jane Harman wiretap controversy. But it powerfully illustrates how surveillance that implicates a member of Congress, even incidentally, can corrupt the political system. Incidental collection of legislator communications ought to be avoided whenever possible.

Instead, the NSA's approach of grabbing up every bit of information that it can guarantees that the metadata and sometimes even the content of legislator communications are swept up, and will continue to be available to a secretive class of executive branch employees for years to come. There is obvious potential that this will be exploited with abusive intent–it isn't like we've never had a president try to spy on his political opponents before! But even absent any nefarious motives, incidentally collected data could damage the integrity of our political system.

Ask Jane Harman–or her critics.

[Caliga]

shit just got REAL 

[Neil]

Makes sense, don't you think?  After all, which institution in all the world is more damaging to America's interests than Congress?

It's also good to know that the Israelis have corrupted Congress to the point where legislators think that the appropriate response to the capture of Israeli spies is to do nothing.  An Iranian nuke can't level Tel Aviv soon enough.

[Ed Anger]

Good.

[Iormlund]

Well duh. Even if the NSA had a filter to avoid taps on Congress ... how could they tell who's going to run in the future for the legislature or any other overseer they have?

[Tamas]

Well duh. Even if the NSA had a filter to avoid taps on Congress ... how could they tell who's going to run in the future for the legislature or any other overseer they have?

I was assured by most of the Americans on this forum that no such information would ever be used for anything non-legal, since it would be, you know, not legal. And how could a secret service storing never before seen amounts of data on its own citizens ever resort to doing something not explicitly allowed to it`s employees by the law?!

[Grey Fox]

NSA is spying on everyone.

They knew 9/11 was coming but couldn't do anything about it because they couldn't find any information on any of their suspects. They are not going to let that happen again.

[Admiral Yi]

This is the stupidest Timmy thread title ever.

[katmai]

This is the stupidest Timmy thread title ever.

With all the competition he has given us?

[jimmy olsen]

This is the stupidest Timmy thread title ever.

How would you have titled this thread?

[The Minsky Moment]

The story adds nothing to the store of knowledge and understanding about the NSA program. 

[Admiral Yi]

If the Atlantic is not careful their crappy blogs are going to dilute their brand.

[jimmy olsen]

And now the CIA joins the party!

http://www.nbcnews.com/storyline/cia-senate-snooping/behind-fight-why-senate-cia-are-feuding-n50086

Behind The Fight: Why The Senate and CIA Are Feuding
By Tom Curry

A political firestorm erupted in Washington on Tuesday when a key lawmaker took to the Senate floor to accuse the nation's top spy agency of possibly breaking the law and violating the U.S. Constitution.

On one side, the Democratic chairwoman of the Senate Intelligence Committee, who alleges that the CIA has been spying on her panel. On the other, CIA Director John Brennan, who insists that the agency didn't snoop or attempt to intimidate the committee.

There's been a lot of back-and-forth over her accusations. Here's a look at what's behind this brouhaha and what happens next.

What's at the root of this battle?

Starting in 2009, the Intelligence Committee began a three-year investigation of the Bush-era CIA program (2002 to 2006) which used harsh or "enhanced" techniques, or, as some have charged, torture, for interrogating al-Qaida terrorist suspects.

As part of that investigation, the CIA provided 6.2 million pages of documents, stored on a CIA computer network, to the committee. Those documents were stored in a stand-alone computer system at what Feinstein called "a secure location in northern Virginia."

What does Feinstein accuse the CIA of doing?

She said in a Senate speech Tuesday that CIA employees interfered with her committee's investigation by removing from the computer system certain documents that previously had been available to the committee. She said this violated the agreement that she and the top Republican on the Intelligence Committee had made with then-CIA Director Leon Panetta in 2009.

Feinstein also charged that the CIA had carried out an improper "search" of the computer system that Senate staffers were using. She added that that the CIA had falsely accused committee staffers of getting a key document by illegal means, perhaps hacking into the CIA's own network.

The California Democrat said that CIA search may have undermined the constitutional principle of Separation of Powers. She demanded an apology from Brennan and said she hasn't received one.

What's the key CIA document at stake here?

Feinstein said that Intelligence Committee staffers also came across drafts of a document called the "Internal Panetta Review" on the CIA-provided computer network. She said that document confirms "significant CIA wrongdoing" during the 2002-2006 interrogations. Feinstein said the committee staff printed copies of the Internal Panetta Review and stored them in a safe in a secure room of the Hart Senate Office Building.

Unlike the official CIA response to the committee investigation of the interrogation techniques, Feinstein said, "these Panetta Review documents were in agreement with the committee's findings. That's what makes them so significant and important to protect." She seemed to imply that the CIA might destroy this document just as it destroyed videotapes of some of the interrogations.

Where's the report Feinstein's committee has written on the interrogation program?

The report is finished but the committee has not yet released it. Brennan said Tuesday that the committee has not yet submitted its report to the CIA for declassification review.

"It's not as though we're holding it back ... It's up to them to decide whether or not they want to put it out publically or not," he said.

He added that there are conclusions in the report that he disagrees with and "I think they missed a lot of important points. But it's their prerogative. I'm not going to stand in the way."

But Brennan said he will insist on preventing disclosure of CIA sources and methods.

Why was Brennan's Senate confirmation early last year so contentious and what was Feinstein's role then?

Some senators (led by Kentucky Republican Rand Paul) challenged the CIA's use of drones to kill an al Qaida suspect who was an American citizen in Yemen. Brennan told Paul the CIA "does not conduct lethal operations inside the United States -- nor does it have any authority to do so."

Other senators opposed him because they thought he'd leaked to the news media details of the raid that killed Osama bin Laden.

And other senators questioned whether Brennan himself had a role in the use of harsh interrogation techniques.

"I did not take steps to stop the CIA's use of those techniques. I was not in chain of command of that program," Brennan told Sen. Saxby Chambliss, R- Ga. "I was aware of the program -- I was CC'd on some of those documents -- but I had no oversight," he added. At the time of the controversial interrogation program which is the focus of the Senate investigation, Brennan was the Deputy Executive Director of the CIA.

He also said, "I had expressed my personal objections and views to some agency colleagues" about methods such as waterboarding.

But Feinstein called Brennan "a fine and strong leader" and said that his 25 years as a CIA analyst, head of counter-terrorism efforts and White House homeland security advisor make him the best person for the job. "No one is better prepared to be CIA director than Mr. Brennan," she said.

How is the Justice Department involved this controversy?

Two top lawyers at the CIA have referred the computer snooping matter to the Justice Department for possible criminal investigation.

On one side the CIA inspector general referred the CIA's search of the computer used by Intelligence Committee staff to Justice Department for investigation of possible criminal violations. But on the other hand, the CIA's acting general counsel filed a report with the Justice Department about potential wrongdoing by Intelligence Committee staffers.

[Sheilbh]

U.S. Senator Bernie Sanders sent a letter to the NSA on Friday asking, "Has the NSA spied, or is the NSA currently spying, on members of Congress or other American elected officials?" The only acceptable answer ought to be, "No, of course not."

Really?

[jimmy olsen]

U.S. Senator Bernie Sanders sent a letter to the NSA on Friday asking, "Has the NSA spied, or is the NSA currently spying, on members of Congress or other American elected officials?" The only acceptable answer ought to be, "No, of course not."

Really?

Violates seperation of powers.