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.