The NSA 'Probably' Collects Data on Congress's Phone Calls

The phone dragnet gives the executive branch all the information it needs to blackmail or discredit multiple legislators. It's a temptation to abuse.

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.

-----News flash----- 

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. 

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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