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NSA Spying On Congress

Posted By Washingtons Blog On January 9, 2014 @ 1:30 am In Legal,War/Defense | Comments Disabled

What It Really Means

The NSA pretty much admitted [1] to spying on Congress this week.

It’s not the first time.  David Sirota notes [2]:

When I asked U.S. Rep. Alan Grayson (D-Fla.) if the NSA was keeping files on his colleagues, he recounted a meeting between NSA officials and lawmakers in the lead-up to a closely contested House vote [3] to better regulate the agency:

“One of my colleagues asked the NSA point blank will you give me a copy of my own record and the NSA said no, we won’t. They didn’t say no we don’t have one. They said no we won’t. So that’s possible.”

Grayson is right: presumably, if the NSA wasn’t tracking lawmakers, it would have flatly denied it. Instead, those officials merely denied lawmakers access to whatever files the agency might have. That suggests one of two realities: 1) the NSA is keeping files on lawmakers 2) the NSA isn’t keeping files on lawmakers, but answered vaguely in order to stoke fear among legislators that it is.

Sirota notes the danger of even the threat of spying on the legislature:

Regardless of which of these realities happens to be the case, the mere existence of legitimate fears of congressional surveillance by an executive-branch agency is a serious legal and separation-of-powers problem. Why? Because whether or not the surveillance is actually happening, the very real possibility that it even could be happening or has happened can unduly intimidate the legislative branch into abrogating its constitutional oversight responsibilities. In this particular case, it can scare congressional lawmakers away from voting to better regulate the NSA.

And the Atlantic points out [4]:

Access to that telephone metadata would be extremely useful for manipulating 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….

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 [5] 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 [6] on April 20, 2009, following up on a story broken by Congressional Quarterly’s Jeff Stein.

***

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.”

We noted last month [7] that the NSA has previously spied on congress members for improper purposes:

During the Vietnam war, the NSA spied on [8] two prominent politicians – Senators Frank Church and Howard Baker – as well as critics of government policy Muhammad Ali, Martin Luther King, and a Washington Post humorist.

A recently declassified history written by the NSA itself called the effort “disreputable if not outright illegal [9].”

The main whistleblower who revealed the Vietnam-era spying was Christopher H. Pyle [10]. Pyle told [11] Rob Kall of OpEdNews:

They targeted Sen. Frank Church and Sen. Howard Baker. It could mean they were trying to get information or dirt on senators involved in the Church committee and Watergate committee investigations respectively — either to learn something about their investigations or to discredit them.

***

We still need more information about what happened then. But more critically, we need more information about what’s happening now. These revelations raise the obvious question: If the NSA was targeting people like Sen. Frank Church, who were in a position to oversee the NSA — is that happening now? That is, are people like intelligence committee chairs Sen. Dianne Feinstein (D-Calif.), Rep. Mike Rogers (R-Mich.) and other congressional leaders — who are supposed to be providing oversight themselves — compromised in some way by the NSA? If so, as seems quite certain from the recent Edward Snowden revelations, then how can they conduct genuine oversight of the NSA with their committees?”

***

If I were a member of congress, I would be terrified that NSA would do to them what J. Edgar Hoover did to members back during his time.

Sound paranoid?

Maybe. But remember [12]:

  • The NSA has been tracking people’s porn [12] in order to discredit them. The New York Times reports [13] that this type of behavior has been going on for a long time: “J. Edgar Hoover compiled secret dossiers on the sexual peccadillos and private misbehavior of those he labeled as enemies — really dangerous people like … President John F. Kennedy, for example”.
  • Another very high-level NSA whistleblower – the head of the NSA’s global intelligence gathering operation – says that the NSA targeted CIA chief Petraeus [14]

Indeed, because the NSA’s raw information is shared with Israel, it is possible that the Israeli government is blackmailing our congress members. The Guardian reported [16] in September:

The National Security Agency routinely shares raw intelligence data with Israel without first sifting it to remove information about US citizens, a top-secret document provided to the Guardian by whistleblower Edward Snowden reveals.

***

According to the agreement, the intelligence being shared would not be filtered in advance by NSA analysts to remove US communications. “NSA routinely sends ISNU [the Israeli Sigint National Unit] minimized and unminimized raw collection”, it says.

***

A much stricter rule was set for US government communications found in the raw intelligence. The Israelis were required to “destroy upon recognition” any communication “that is either to or from an official of the US government“. Such communications included those of “officials of the executive branch (including the White House, cabinet departments, and independent agencies), the US House of Representatives and Senate (member and staff) and the US federal court system (including, but not limited to, the supreme court)”.

And it’s not just the NSA.

Last year, Eric Holder refused to say [17] whether the Department of Justice was spying on Congress.

When one branch of government spies on another, “America has no functioning democracy [18]”.


Article printed from The Big Picture: http://www.ritholtz.com/blog

URL to article: http://www.ritholtz.com/blog/2014/01/nsa-spying-on-congress/

URLs in this post:

[1] pretty much admitted: http://www.washingtonsblog.com/2014/01/nsa-pretty-much-admits-spying-congress.html

[2] notes: http://pando.com/2014/01/03/is-the-nsa-spying-on-congress/

[3] closely contested House vote: http://thehill.com/blogs/hillicon-valley/technology/313853-nsa-foes-emboldened-by-house-vote-

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

[5] National Security Agency: http://topics.nytimes.com/top/reference/timestopics/organizations/n/national_security_agency/index.html?inline=nyt-org

[6] reported: http://www.nytimes.com/2009/04/21/us/politics/21harman.html

[7] noted last month: http://www.washingtonsblog.com/2013/12/nsa-blackmailing-overseers-washington.html

[8] NSA spied on: http://www.foreignpolicy.com/articles/2013/09/25/it_happened_here_NSA_spied_on_senators_1970s#sthash.hQkqSpyu.dpbs

[9] disreputable if not outright illegal: http://www.foreignpolicy.com/articles/2013/09/25/it_happened_here_NSA_spied_on_senators_1970s#sthash.SkVjqEkm.dpbs

[10] Christopher H. Pyle: http://en.wikipedia.org/wiki/Christopher_Pyle#Investigations

[11] told: http://www.opednews.com/Podcast/Christopher-Pyle-Church-Co-by-Rob-Kall-Church-Commission_Congress_Whistleblowers_Whistleblowers-ing-131209-498.html

[12] remember: http://www.washingtonsblog.com/2013/11/nsa-tracks-porn-discredit-activists.html

[13] reports: http://takingnote.blogs.nytimes.com/2013/11/27/the-modern-honey-trap/?_r=2&#more-15437

[14] targeted CIA chief Petraeus: http://www.washingtonsblog.com/2012/12/top-nsa-spying-chief-if-you-ever-get-on-their-enemies-list-like-petraeus-did-then-you-can-be-drawn-into-that-surveillance.html

[15] may be common: http://www.washingtonsblog.com/2009/04/were-other-congress-people-besides-harman-also-blackmailed-by-the-bush-administration.html

[16] reported: http://www.theguardian.com/world/2013/sep/11/nsa-americans-personal-data-israel-documents

[17] refused to say: http://www.mediaite.com/tv/asked-if-justice-department-is-spying-on-congress-holder-refuses-to-answer/

[18] America has no functioning democracy: http://www.washingtonsblog.com/2013/11/former-american-president-and-vice-president-nsa-spying-destroying-constitution.html

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