With the NSA, getting to the truth takes time. At first, there are mere hints that the agency is spying in some way that would be controversial. Gradually, the public gets circumstantial evidence. The truth becomes obvious to the small percentage of Americans who are paying close attention, but there's no way to prove it.
Finally, the proof arrives! But even though the mere prospect used to be alarming, confirmation is now treated as no big deal: "Oh, everybody knew that already."
We're having one of those moments.
The NSA collects and stores information on phone calls made by members of Congress! Doing so gives the executive branch control of information that could be used to discredit multiple legislators on the theory that it will never be abused. This is imprudent. If I could have reported it as fact five years ago, it would've been a huge story. Now, the revelation is treated as no big deal.
"Because c'mon, haven't we known for awhile?"
Last month, when Senator Bernie Sanders asked the NSA if it spies on Congress, he couldn't get a direct answer. I noted then that the NSA does spy on congressional phone calls—that's what inevitably happens when you spy on virtually every phone call—but that acknowledging as much would unnerve Americans.
On Tuesday, during a House Judiciary Committee hearing, we got a lot closer to proof, thanks to Deputy Attorney General James Cole. As reported in National Journal:
Rep. Zoe Lofgren, a California Democrat, began by asking Peter Swire, a member of the president's handpicked surveillance review board, whether lawmakers' numbers are included in the agency's phone-records sweeps. Swire protested that he was not a government official and couldn't best answer the question, but said he was unaware of any mechanism that "scrubbed out" member phone numbers from the agency's data haul.
Lofgren's time expired and Rep. Darrell Issa, a California Republican, then put the question to Cole. "Mr. Cole, do you collect 202, 225, and four digits afterwards?" Issa asked, referring to the prefixes used to call congressional offices. "We probably do, Mr. Congressman," Cole responded. "But we're not allowed to look at any of those, however, unless we have reasonable, articulable suspicion that those numbers are related to a known terrorist threat."
These are alarming answers for several reasons.
1) Most importantly, this is an obvious threat to our democracy and the separation of powers upon which it relies. It gives the executive branch, under this president and all future presidents, a powerful, illegitimate means to undermine legislative opponents. In fact, legislators could be targeted in a way that would be both devastating and easy to pull off without even the victim knowing what happened. There's no need to blackmail. Just dig up some dirt on a legislator, or his spouse, or her business partner, using metadata; figure out how an opposition researcher might happen upon the same information; and leak it to the press as if you are one. The executive branch is already becoming expert at parallel construction. It's perhaps easier than breaking into the Watergate.
NSA defenders insist that the professionals at that agency would never stand for such abuses, that they are just there to protect the safety of Americans. If that retort is offered in earnest, it only proves that those using it don't understand the precautions that must be taken in order to insure against abuses by fallible humans. The U.S. soldiers who perpetrated the horrors at Abu Ghraib mostly enlisted to protect their country. The FBI agents who tried to blackmail Martin Luther King mostly signed up for their jobs to protect their country. The folks who carried out the Watergate break-in mostly joined the Nixon Administration with at least some altruistic motives. But power often corrupts judgment and character.
That aspect of human nature will never change. Abuse attempts will happen in the future, including at the NSA. The damage done will depend in part on how much power is concentrated there. The dragnet concentrates lots of power over legislators and other Americans in a secretive agency with a history of repeated legal abuses; an agency staffed with employees who carried out illegal, warrantless wiretapping under the last president; an agency that could easily poke around in the metadata without its overseers knowing if it wanted to abuse its power again.
2) If we take Peter Swire and James Cole at their words, both of them believe that Congress is included in the dragnet, but neither of them are 100 percent sure.
They could be misrepresenting what they know to Congress, which would be troubling. The alternative is troubling too. One of these guys was a member of a presidential task force charged with studying NSA surveillance. The other is the deputy AG. And neither knows for sure if the NSA is spying on Congress? Really? That hugely fraught detail isn't one they felt a need to be 100 percent clear on? It's just a question that came up in a hearing and now they can make a guess?
3) Cole says the NSA can't look at calls to and from congressional offices "unless we have reasonable, articulable suspicion that those numbers are related to a known terrorist threat." But as I understand it, the protection that he's invoking is effectively meaningless, especially for official congressional phone lines.
Here's what I mean: The NSA permits itself to query a selector only when there is a reasonable, articulable suspicion that it's related to a terrorist threat ... but then the NSA can pull in metadata for numbers within three hops of that selector ... and then it can store all of that in what's dubbed "the corporate store." Considering how many people call congressional offices, and how many people congressional offices call, it stands to reason that if the NSA wanted congressional metadata in the corporate store, it could have it there. Perhaps it "minimizes" most congressional communications. After all, at this instant, there's no reason to believe anything nefarious is going on, and it would make practical sense to strip those contacts out of search results to better focus on normal networks of communications.
But even in that best-case scenario, the dragnet, the tool of potential abuse, remains in place, and minimization procedures could always be quietly changed. As well, I wonder whether the copies of the phone dragnet are made pre-minimization?
Congress ought to jealously guard its power, as the Framers intended, by ending the dragnet that gives a co-equal branch information about their phone communications. And their constituents ought to demand this of them. For more on this subject, and to learn about the fraught political implications of the time the NSA spied on a phone call involving former Rep. Jane Harman, see here.