Did the Obama Administration ever spy on Mitt Romney during the recent presidential contest? Alex Tabarrok, who raised the question at the popular economics blog Marginal Revolution, acknowledges that it is provocative. Until recently, he would've regarded it as a "loony" question, he writes, and he doesn't think that President Obama ordered the NSA to spy on Romney for political gain.
Let's be clear: I don't think so either. In every way, I regard Obama as our legitimate head of state, full stop. But I agree with Tabarrok that today, "the only loonies are those who think the question unreasonable." * Most Americans have a strong intuition that spying and electoral manipulation of that kind could never happen here. I share that intuition, but I know it's nonsense: the Nixon Administration did spy on its opponents for political gain. Why do I worry that an unreformed surveillance state could put us in even greater jeopardy of such shenanigans?
Actually, I have a particular scenario in mind, and it seems frighteningly plausible. I'll sketch it out at the end of this article. But first, let's get back to Tabarrok:
Do I think Obama ordered the NSA to spy on Romney for political gain? No. Some people claim that President Obama didn’t even know about the full extent of NSA spying. Indeed, I imagine that President Obama was almost as surprised as the rest of us when he first discovered that we live in a mass surveillance state in which billions of emails, phone calls, Facebook metadata and other data are being collected.
The answer is yes, however, if we mean did the NSA spy on political candidates like Mitt Romney. Did Mitt Romney ever speak with Angela Merkel, whose phone the NSA bugged, or any one of the dozens of her advisers that the NSA was also bugging? Did Romney exchange emails with Mexican President Felipe Calderon? Were any of Romney’s emails, photos, texts or other metadata hovered up by the NSA’s break-in to the Google and Yahoo communications links?
Almost certainly the answer is yes.
Of course, that doesn't mean that Romney's information was improperly exploited during the election. "Did the NSA use the information they gathered on Mitt Romney and other political candidates for political purposes? Probably not," Tabarrok writes. "Will the next president or the one after that be so virtuous so as to not use this kind of power? I have grave doubts. Men are not angels."
I'll tell you why I agree on both counts.
Why do I doubt Romney was treated unfairly? Because I doubt Obama would have dared order it, and because the prospect of a Romney victory didn't threaten either the NSA nor a contractor like Booz Allen Hamilton nor the national-security state generally. There was reason to believe he'd have been friendlier to them than Obama!
The scenario I worry about most isn't actually another Richard Nixon type in the Oval Office, though that could certainly happen. What I worry about actually more closely resembles Mark Felt, the retired FBI agent exposed 32 years after Watergate as Deep Throat **—that is, I worry more about people high up inside the national-security state using their insider knowledge to help take down a politician. Is part of the deference they enjoy due to politicians worrying about that too?
Imagine a very plausible 2016 presidential contest in which an anti-NSA candidate is threatening to win the nomination of one party or the other—say that Ron Wyden is challenging Hillary Clinton, or that Rand Paul might beat Chris Christie. Does anyone doubt where Keith Alexander or his successor as NSA director would stand in that race? Or in a general election where an anti-NSA candidate might win?
What would an Alexander type do if he thought the victory of one candidate would significantly rein in the NSA with catastrophic effects on national security? Would he really do nothing to prevent their victory?
I don't know. But surely there is some plausible head of the NSA who'd be tempted to use his position to sink the political prospects of candidates antagonistic to the agency's interests. And we needn't imagine something so risky and unthinkable as direct blackmail.
Surveillance-state defenders will want to jump in here and insist that there are already internal safeguards and congressional oversight to prevent the abuses I am imagining. But I don't buy it. It isn't just that I can't help but think Alexander could find a way to dig up dirt on politicians if he wanted to without it ever getting out to overseers or the public.
Forget about Alexander. Let's think about someone much lower in the surveillance state hierarchy: Edward Snowden. As we know, Snowden broke protocol and violated his promise to keep classified information secret because his conscience demanded it: He believed that he was acting for the greater good; his critics have called him a narcissist for taking it upon himself to violate rules and laws he'd agreed to obey.
It isn't hard to imagine an alternative world in which the man in Snowden's position was bent not on reforming the NSA, but on thwarting its reformers—that he was willing to break the law in service of the surveillance state, fully believing that he was acting in the best interests of the American people.
A conscience could lead a man that way too.
This Bizarro Edward Snowden wouldn't have to abscond to a foreign country with thousands of highly sensitive documents. He wouldn't have to risk his freedom. Affecting a U.S. presidential election would be as easy as quietly querying Rand Paul, or Ron Wyden, or one of their close associates, finding some piece of damaging information, figuring out how someone outside the surveillance state could plausibly happen upon that information, and then passing it off anonymously or with a pseudonym to Politico, or The New York Times, or Molly Ball. Raise your hand if you think that Snowden could've pulled that off.
And if you were running for president, or senator, even today, might you think twice about mentioning even an opinion as establishment friendly as, "Hey, I'm all for NSA surveillance, but I don't trust a private contractor like Booz Allen Hamilton to do it"? Maybe safeguards put in place since the first Snowden leak would prevent a Bizarro Edward Snowden with strong Booz loyalties from targeting you.
Maybe. Why risk it?
In yet another scenario, the NSA wouldn't go so far as to use information obtained through surveillance to affect an election. But they'd use it to their advantage to thwart the reform agenda of the candidate they didn't like if he or she won.
And maybe the NSA would be as horrified by this sort of thing as I am. But maybe one of their contractors is on the payroll of a foreign government, and that person wants to affect a presidential election by exploiting the unprecedented amounts of data that the surveillance state has collected and stored on almost everyone.
American democracy could be subverted in all sorts of hypothetical ways. Why worry about this one in particular? Here's the general standard I'd submit as the one that should govern our thinking: If a powerful institutional actor within government has a strong incentive to do something bad, the means to do it, and a high likelihood of being able to do it without getting caught, it will be done eventually.
The NSA has the incentive. At least as recently as the Snowden leaks, an unknown number of its employees or contractors had the means. And many informed observers believe abuse undetected by overseers could be easily accomplished.
If this particular abuse happened, it would be ruinous to self-government.
Let's fix this before it causes a scandal even bigger than Watergate—or permits behavior more scandalous than Watergate that is never uncovered, rectified or punished.
*And yes, it's just as legitimate to ask, did the Bush Administration spy on John Kerry?
**How sure are we that we know why he leaked?
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