Major shock: Eavesdropping powers abused without oversight

Two NSA linguists disclose that hundreds of innocent Americans had their private, intimate telephone calls recorded and transcribed by Bush's illegal spying program.

Published October 9, 2008 1:36PM (EDT)

(updated below - Update II - Update III)

In the most unsurprising revelation imaginable, two former Army Reserve Arab linguists for the National Security Agency have said that they routinely eavesdropped on -- "and recorded and transcribed" -- the private telephone calls of American citizens who had absolutely nothing to do with terrorism.  The two former NSA employees, who came forward as part of journalist James Bamford's forthcoming book on the NSA, intercepted calls as part of the so-called "Terrorist  Surveillance Program," whereby George Bush ordered the NSA in 2001 to eavesdrop on Americans' calls in secret, without first obtaining judicial approval as required by the law (FISA).  That illegal eavesdropping continued for at least six years -- through 2007.

The two NSA whistleblowers, Adrienne Kinne and David Murfee Faulk, were interviewed by ABC News' Brian Ross.  Kinne said that "US military officers, American journalists and American aid workers were routinely intercepted and 'collected on' as they called their offices or homes in the United States."  He also said his co-workers "were ordered to transcribe these calls."   Faulk told Ross:  "when one of my co-workers went to a supervisor and said:  'but sir, there are personal calls,' the supervisor said: 'my orders were to transcribe everything'."   He said that the intercepted calls included highly personal and intimate conversations and even phone sex.

When Ross showed Kinne a video excerpt of George Bush insisting to the nation that only those with links to Al Qaeda were eavesdropped on as part of his illegal spying program, the following exchange occurred:

ROSS:  Kinne says she listened to hundreds of Americans simply calling their families . . .

KINNE:  Personal, private things with Americans who are not in any way, shape or form associated with anything having anything to do with terrorism. It was just personal conversations that nobody else should have been listening to.

ROSS:  President Bush has reassured Americans again and again:

GEORGE BUSH:  It's phone calls of known Al Qaeda suspects making a phone call into the United States.

KINNE:  I would say that that is completely a lie  --  I would call it a lie -- because we were definitely listening to Americans who had nothing to do with terrorism. . .

ROSS:  Kinne says she intercepted, recorded, and transcribed conversations with the military, journalists, and Red Cross and aid workers.

There are, for now, several points worth noting here:

(1) There is one reason and one reason only these abuses occurred:   because George Bush broke the law -- committed felonies -- by ordering the NSA to eavesdrop on Americans without warrants.

(2) While the extent of the abuses disclosed here is substantial -- "hundreds of Americans"; journalists, Red Cross and aid workers; military officers speaking to their friends and families -- these disclosures are from only two relatively low-level individual NSA linguists at one NSA facility in Georgia.  If just these two individuals are aware of this level of abuse, just imagine what the true extent of the abuses is -- both quantitatively (how many innocent Americans had their conversations eavesdropped on?) and qualitatively (who, beyond journalists and aid workers, were listened to?).

(3) Most disturbing here is that these calls were not merely surveilled, but were recorded and transcribed.  In whose custody are these recordings and transcripts and what was done with them?

(4) This was not the work of rogue employees or bad apples.  Note that Faulk specifically said that the abuses were brought to the attention of NSA supervisors -- the ones whom the Bush administration has repeatedly claimed were adequate substitutes for FISA judges in deciding who should be surveilled -- and those supervisors said that they were ordered to transcribe the calls in question.

(5) These abuses aren't merely grotesque invasions of privacy and civil liberties, though they obviously are that.  Independently, surveillance abuses undermine genuine counter-terrorism efforts and national security interests in the extreme.  If NSA agents are listening in on the calls of innocent Americans, including journalists and aid workers -- including their intimate calls and even their "phone sex," as Faulk said -- then that means they're not listening in on actual terrorist suspects.  

That's why, as Rep. Rush Holt among many others have long argued, allowing oversight-less eavesdropping not only guarantees civil liberties abuses but also destroys genuine counter-terrorism efforts.  From Ross' story:

Kinne says the success stories underscored for her the waste of time spent listening to innocent Americans, instead of looking for the terrorist needle in the haystack.

"By casting the net so wide and continuing to collect on Americans and aid organizations, it's almost like they're making the haystack bigger and it's harder to find that piece of information that might actually be useful to somebody," she said. "You're actually hurting our ability to effectively protect our national security."

(6) Let's not forget who the ultimate culprit is here:  the U.S. Congress, and specifically the Senate Intelligence Committee led for years by GOP Sen. Pat Roberts and now by Democratic Sen.  Jay Rockefeller.  That Committee was created in the wake of the discovery in the mid-1970s that the U.S. Government was abusing its surveillance powers for decades because no judicial oversight was required, and the reason that Committee was created -- the reason it exists -- is " to provide vigilant legislative oversight over the intelligence activities of the United States to assure that such activities are in conformity with the Constitution and laws of the United States."

But people like Pat Roberts and Jay Rockefeller (along with Nancy Pelosi and ranking House Intelligence Committee Member Jane Harman) knew that the Bush administration was spying on Americans without warrants -- because the administration told them they were -- and they did nothing.  Even once The New York Times finally told the country that the Bush administration was breaking the law -- only after the Times concealed the story for a full year -- the Senate Intelligence Committee never bothered to investigate what the Bush administration was doing with its secret, unlawful spying powers, whether those powers were abused, which Americans were spied upon, and how they were selected.   To this day, they have never bothered to investigate those questions.

Congressional leaders in both parties -- including those whose statutory duty was to compel compliance by the intelligence agencies with the law -- were absolutely complicit in allowing all of this to happen.  They knew for years that the Bush administration was breaking the law in spying on Americans without warrants and remained quiet and supportive.  Then, this year, Congress -- led by Jay Rockefeller and Jane Harman (and both major party presidential candidates) -- acted to immunize the private telephone companies that broke the law by enabling this spying and to expand the President's authority to eavesdrop on Americans without meaningful oversight.

(7) None of these revelations of abuse is even remotely surprising, and anyone who feigns surprise -- in the administration, in Congress, in the media -- is simply lying to conceal their own culpability.  Since the Church Committee, we have known that the U.S. Government, no matter which party is in control, will inevitably abuse eavesdropping powers if those powers can be exercised in secret and without oversight.  The temptation to abuse eavesdropping powers is too great to be resisted.  That was why FISA was enacted -- because judicial oversight is the only way to prevent that abuse.   Abuse of this sort is inevitable when a Government is allowed to spy on its own citizens without checks and oversight.

(8) Even without any reports of abuse, what the Bush administration did in spying on Americans without warrants was a felony, punishable with a $10,000 fine and up to 5 years in prison for each offense.  We've heard for the last many years -- from the David Broders and friends -- that it would be terribly divisive, awfully unfair, upsetting and disruptive, for government officials to be held accountable for their violations of the criminal law.  Will these revelations -- that innocent Americans were spied upon in large numbers as part of this criminal spying program -- change that view?

(9)  Those who have been vigorously protesting expanded executive power and oversight-less surveillance authority for years -- and who have been arguing that violations of the criminal law by high government officials cannot be tolerated -- have continuously been subjected to accusations that we are shrill, paranoid extremists for believing that government officials should not and cannot be trusted to exercise power in the dark.   Here was what Gen. Michael Hayden -- now the CIA Director and the then-Director of the NSA -- said in a January, 2006 Press Briefing, in the wake of the NYT disclosure, when asked by an independent journalist about the likelihood of abuse when the NSA eavesdrops without judicial oversight:

I'm disappointed I guess that perhaps the default response for some is to assume the worst. I'm trying to communicate to you that the people who are doing this, okay, go shopping in Glen Burnie and their kids play soccer in Laurel, and they know the law. They know American privacy better than the average American, and they're dedicated to it. So I guess the message I'd ask you to take back to your communities is the same one I take back to mine. This is focused. It's targeted. It's very carefully done. You shouldn't worry.

That was the attitude of the political and media establishment for years -- our Government Leaders are Good and want only what is Good for us, and need not have their powers questioned, checked, or limited.   Today's disclosures are just the revelations of two low-level independent whistle-blowers.  Just contemplate what we will learn -- years or decades from now -- the Bush administration was really doing as we collectively decided that they could seize and exercise powers, even illegally, and exercise it without limits.

UPDATE:  Just as a reminder of where we are as a surveillance state, Privacy International assesses countries around the world using objective metrics, and ranks each of them for the level of privacy they afford their citizens, using this color-based scheme:

Here's what they found for 2007:



The Land of the Free -- The Greatest Country Ever to Exist on the Planet for All of Human History -- is the least privacy-respecting, most invasive surveillance state of those surveyed (having been downgraded from its 2006 ranking as an "Extensive Surveillance State" to its 2007 designation:  "Endemic Surveillance Society"), tied only with Russia, Thailand, Taiwan, Singapore, the U.K., China and Malaysia.

UPDATE II:  ABC News and Brian Ross are touting this story as an "exclusive," but it's nothing of the sort.  Back in May, Adrienne Kinne appeared on Democracy Now with Amy Goodman, and disclosed these details already, and many more, including the fact that the Bush administration had purpoesly targeted the Palestine Hotel in Baghdad for eavesdropping, where most American journalists were staying (h/t Rumpelstilskin):

KINNE:  And over the course of my time, as we slowly began to identify phone numbers and who belonged to what, one thing that gave me grave concern was that as we identified phone numbers, we started to find more and more and more numbers that belonged not to any organizations affiliated with terrorism or with military—with militaries of Iraq or Afghanistan or elsewhere, but with humanitarian aid organizations, non-governmental organizations, who include the International Red Cross, Red Crescent, Doctors Without Borders, a whole host of humanitarian aid organizations. And it also included journalists. . . .

One of the instances was the fact that we were listening to journalists who were staying in the Palestine Hotel. And I remember that, specifically because during the buildup to Shock and Awe, which people in my unit were really disturbingly excited about, we were given a list of potential targets in Baghdad, and the Palestine Hotel was listed as a potential target. And I remember this specifically, because, putting one and one together, that there were journalists staying at the Palestine Hotel and this hotel was listed as a potential target, I went to my officer in charge, and I told him that there are journalists staying at this hotel who think they’re safe, and yet we have this hotel listed as a potential target, and somehow the dots are not being connected here, and shouldn’t we make an effort to make sure that the right people know the situation?

And unfortunately, my officer in charge, similarly to any time I raised concerns about things that we were collecting or intelligence that we were reporting, basically told me that it was not my job to analyze. It was my job to collect and pass on information and that someone somewhere higher up the chain knew what they were doing. . . .

But the only reason now that I really remember that specific email is because I knew, having listened to journalists staying at the Palestine Hotel, talking with their families and loved ones and talking about whether or not they were safe and trying to reassure their family and co-workers and loved ones that they were safe, when I saw that hotel listed, I thought there was something that was going terribly wrong.

The whole interview with Goodman from four months ago is very worth reading, including Kinne's discussion of why she took so long to come forward ("I took my clearance incredibly seriously. I had a very high clearance, military intelligence") and why she came forward now.  And ABC News and Ross should remove their "exclusive" designation from this story.  A real journalist, Goodman, reported most of these facts months ago.

UPDATE III:  This is one of the biggest jokes I've ever read, from the now-updated ABC article:

The chairman of the Senate Intelligence Committee, Jay Rockefeller (D-WV), called the allegations "extremely disturbing" and said the committee has begun its own examination.

"We have requested all relevant information from the Bush Administration," Rockefeller said Thursday. "The Committee will take whatever action is necessary."

Jay Rockefeller has known since at least 2003 that the Bush administration was eavesdropping on Americans without warrants and did nothing as the leading Democrat on the Senate Intelligence Committee, and then joined with Dick Cheney to crusade for the FISA/telecom amnesty bill passed this year.  After George Bush, Jay Rockefeller is probably the person most responsible in America for these intelligence abuses, and for him to feign surprise and anger -- "Wow!  I'm so surprised and upset that warrantless surveillance powers were abused!  I never would have imagined that eavesdropping would be abused if done without oversight!" -- is really too much bear.  The only "necessary action" he's likely to take in response to all of this is to retroactively immunize those responsible.

As sysprog notes in comments, Rockefeller's statement ("shocked!") is the exact equivalent of this:

Sen. Claude Raines (D-W.Va.).

By Glenn Greenwald

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