The Illegal Spying Game, played over and over

Each new revelation of surveillance crimes prompts the same deceitful reaction from the political class.

By Glenn Greenwald

Published June 18, 2009 8:19AM (EDT)

(updated below)

Ever since The New York Times revealed in December, 2005 that the Bush administration had spent the last four years illegally spying on Americans' communications without warrants, there have been numerous additional revelations of various types of massive illegal government spying.  Yesterday's New York Times article by James Risen and Eric Lichtblau -- reporting that "recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged" -- is but the latest such revelation.  Congress never does anything about these revelations other than enact new laws that increase the government's spying powers still further and gut the few remaining oversight mechanisms that exist (while immunizing the lawbreakers).  All of that compels the conclusion that Congress -- regardless of which party controls it -- is either indifferent to or in favor of this unchecked illegal government spying.  What other conclusion could a rational person possibly reach?

Every time new revelations of illegal government spying arise, the same exact pattern repeats itself(1) euphemisms are invented to obscure its illegality ("overcollection"; "circumvented legal guidelines"; "overstepped its authority"; "improperly obtained"); (2) assurances are issued that it was all strictly unintentional and caused by innocent procedural errors that are now being fixed; (3) the very same members of Congress who abdicate their oversight responsibilities and endlessly endorse expanded surveillance powers in the face of warnings of inevitable abuses (Jay Rockefeller, Dianne Feinstein, "Kit" Bond, Jane Harman) righteously announce how "troubled" they are and vow to hold hearings and take steps to end the abuses, none of which ever materialize; (4) nobody is ever held accountable in any way and no new oversight mechanisms are implemented; (5) Congress endorses new, expanded domestic surveillance powers; and then: (6) new revelations of illegal government spying emerge and the process repeats itself, beginning with step (1).

A similar pattern occurs each time Congress enacts new laws to increase even further the Government's surveillance powers -- the  Patriot Act of 2001, its full-scale renewal in 2006, the Protect America Act of 2007, the FISA Amendments Act of 2008.  Each time, warnings are issued that the new law will not only permit, but will ensure, massive abuses and unchecked domestic spying.  Those issuing those warnings are dismissed as fringe civil libertarian extremists and hysterics.  The Serious mainstream of both political parties and the establishment media class unite to insist on the need for greater spying powers.  Shortly after passage, new spying abuses are revealed, and proponents of the increased spying powers strut around expressing how shocked and troubled they are by these revelations.  As Kagro succinctly put it yesterday:  "We've had 2 presidential & 3 Congressional elections since the NYT found out we were being illegally spied on. And they're still finding it."

When Lichtblau and Rosen reported similar eavesdropping abuses in April of this year, I compiled the statements issued by opponents of the FISA Amendment Act of 2008 warning that exactly those abuses would ensue, and also compiled the smug, dismissive assurances by proponents of that bill that there were more than adequate safeguards in place to "protect the civil liberties of Americans."  The abuses revealed in April stemmed directly from that 2008 expansion of government eavesdropping powers under the Democratic Congress, and were 100% predictable -- and predicted.  Today, the New York Times Editorial Page made the same point about these latest revelations of illegal surveillance:

But lawmakers should be clear about how this happened: last year, 293 members of the House and 69 senators voted for a dangerous and mostly unnecessary expansion of the 1978 Foreign Intelligence Surveillance Act, which protected Americans from unwarranted government spying for 30 years.

President George W. Bush started violating that law shortly after 9/11 when he authorized the N.S.A. to conduct domestic wiretapping without first getting the required warrant. When that program was exposed by The Times in late 2004 [sic:  actually, the NYT learned of it in late 2004 (before Bush's re-election) but concealed it for a year and did not expose it until late 2005], the Bush team began pressuring Congress to give retroactive legal cover to the eavesdropping operation and to the telecommunications companies that participated in it.

That finally happened in the heat of the 2008 campaign. Congress expanded FISA and gave the companies blanket immunity less than a day after the bill was introduced. We doubt if many lawmakers read the legislation. President Obama, who was still a senator at the time, voted for it, even though he had been passionately denouncing illegal wiretapping for months.

Many critics of the legislation, including this page, said that the powers given to the government to eavesdrop were too broad, that the limits placed on them were too vague and that the remedies for error or deliberate violations were too weak.

The very same people who voted for that massive expansion of unchecked eavesdropping power and dismissed those warnings will -- as always -- pronounce themselves shocked and troubled by the latest revelations of what their actions caused.  When he announced his support for that FISA-gutting bill in mid-2008, Obama pledged to work as President to fix the problems with the bill:

Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise. I do so with the firm intention -- once I’m sworn in as President -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

Has anyone seen any of those efforts yet?  Yesterday, when asked about ways to increase accountability for eavesdropping crimes via judicial action, Obama's Attorney General pronounced the FISA Amendments Act of 2008 to be "settled law" and said that the President -- his "boss" -- has shown no interest in re-visiting it in order to subject past abuses to judicial review.  Amazingly, revelations of surveillance abuse lead Congress to do only one thing:  eliminate oversight and increase surveillance powers further.

* * * * *

Just look at the magnitude of the illegal spying -- abuses that were revealed subsequent to, and independent of, the 2005 NYT story -- and watch how this same ludicrous sham ritual repeats itself over and over.  All of this is just from what we know as a result of leaks; there is almost certainly at least as much of this that we do not yet know:

May 11, 2006 - USA Today:

The National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth, people with direct knowledge of the arrangement told USA TODAY.

The NSA program reaches into homes and businesses across the nation by amassing information about the calls of ordinary Americans — most of whom aren't suspected of any crime. . . . The agency's goal is "to create a database of every call ever made" within the nation's borders, this person added. . . .

The domestic and international call-tracking programs have things in common, according to the sources. Both are being conducted without warrants and without the approval of the FISA court. . . Unable to get comfortable with what NSA was proposing, Qwest's lawyers asked NSA to take its proposal to the FISA court. According to the sources, the agency refused.

The NSA's explanation did little to satisfy Qwest's lawyers. "They told (Qwest) they didn't want to do that because FISA might not agree with them," one person recalled. For similar reasons, this person said, NSA rejected Qwest's suggestion of getting a letter of authorization from the U.S. attorney general's office.

March 9, 2007 - Washington Post:

A Justice Department investigation has found pervasive errors in the FBI's use of its power to secretly demand telephone, e-mail and financial records in national security cases, officials with access to the report said yesterday . . . .

Officials said they could not be sure of the scope of the violations but suggested they could be more widespread, though not deliberate. . . . Officials said they believe that the 48 known problems may be the tip of the iceberg in an internal oversight system that one of them described as "shoddy."

March 18, 2007 - Washington Post:

FBI counterterrorism officials continued to use flawed procedures to obtain thousands of U.S. telephone records during a two-year period when bureau lawyers and managers were expressing escalating concerns about the practice, according to senior FBI and Justice Department officials and documents. . . .

A March 9 report by Fine bluntly stated that the FBI's use of the exigency letters "circumvented" the law that governs the FBI's access to personal information about U.S. residents. . . . Other FBI officials acknowledged widespread problems but said they involved procedural and documentation failures, not intentional misgathering of Americans' phone records. [FBI Director Robert] Mueller ordered a nationwide audit, which began Friday, to determine if the inappropriate use of exigency letters went beyond one headquarters unit.

March 6, 2008 - Washington Post:

FBI Director Robert S. Mueller III told senators yesterday that agents improperly used a type of administrative subpoena to obtain personal data about Americans until internal reforms were enacted last year. . . .

A year ago, lawmakers of both parties called for limits on the FBI's use of the security letters, which demand consumer information from banks, credit card companies and other institutions without a warrant as part of investigations into suspected terrorism and espionage. Congress has not followed through with legislation, however, and Mueller sought to assure lawmakers that internal changes will solve the problems.

March 10, 2008 - Wall St. Journal:

Five years ago, Congress killed an experimental Pentagon antiterrorism program meant to vacuum up electronic data about people in the U.S. to search for suspicious patterns. Opponents called it too broad an intrusion on Americans' privacy, even after the Sept. 11 terrorist attacks.

But the data-sifting effort didn't disappear. The National Security Agency, once confined to foreign surveillance, has been building essentially the same system.

The central role the NSA has come to occupy in domestic intelligence gathering has never been publicly disclosed. But an inquiry reveals that its efforts have evolved to reach more broadly into data about people's communications, travel and finances in the U.S. than the domestic surveillance programs brought to light since the 2001 terrorist attacks. . .

According to current and former intelligence officials, the spy agency now monitors huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records. The NSA receives this so-called "transactional" data from other agencies or private companies, and its sophisticated software programs analyze the various transactions for suspicious patterns.

The effort also ties into data from an ad-hoc collection of so-called "black programs" whose existence is undisclosed, the current and former officials say. . .

A number of NSA employees have expressed concerns that the agency may be overstepping its authority by veering into domestic surveillance. And the constitutional question of whether the government can examine such a large array of information without violating an individual's reasonable expectation of privacy "has never really been resolved," said Suzanne Spaulding, a national-security lawyer who has worked for both parties on Capitol Hill.

NSA officials say the agency's own investigations remain focused only on foreign threats, but it's increasingly difficult to distinguish between domestic and international communications in a digital era, so they need to sweep up more information. . .

On Friday, the House Energy and Commerce Committee released a letter warning colleagues to look more deeply into how telecommunications data are being accessed.

October 9, 2008 - ABC News:

Despite pledges by President George W. Bush and American intelligence officials to the contrary, hundreds of US citizens overseas have been eavesdropped on as they called friends and family back home, according to two former military intercept operators who worked at the giant National Security Agency (NSA) center in Fort Gordon, Georgia.

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.

April 15, 2009 - New York Times:

The National Security Agency intercepted private e-mail messages and phone calls of Americans in recent months on a scale that went beyond the broad legal limits established by Congress last year, government officials said in recent interviews. . . .

Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional. . . .

While the N.S.A.’s operations in recent months have come under examination, new details are also emerging about earlier domestic-surveillance activities, including the agency’s attempt to wiretap a member of Congress, without court approval, on an overseas trip, current and former intelligence officials said.

April 16, 2009 -The Washington Independent:

Just released from Sen. Dianne Feinstein (D-Calif.), chairwoman of the Senate Select Committee on Intelligence, reacting to the National Security Agency’s surveillance "overcollection":

"These are serious allegations, and we will make sure we get the facts,” said Senator Dianne Feinstein (D-Calif.), chairman of the Senate Intelligence Committee. “The Committee is looking into this, and we will hold a hearing on this subject within one month."

 June 16, 2009 - New York Times:

The National Security Agency is facing renewed scrutiny over the extent of its domestic surveillance program, with critics in Congress saying its recent intercepts of the private telephone calls and e-mail messages of Americans are broader than previously acknowledged, current and former officials said. . .

Supporting that conclusion is the account of a former N.S.A. analyst who, in a series of interviews, described being trained in 2005 for a program in which the agency routinely examined large volumes of Americans’ e-mail messages without court warrants. Two intelligence officials confirmed that the program was still in operation. . .

Representative Rush Holt, Democrat of New Jersey and chairman of the House Select Intelligence Oversight Panel, has been investigating the incidents and said he had become increasingly troubled by the agency’s handling of domestic communications.

In an interview, Mr. Holt disputed assertions by Justice Department and national security officials that the overcollection was inadvertent.

“Some actions are so flagrant that they can’t be accidental,” Mr. Holt said. . . .

The former analyst added that his instructors had warned against committing any abuses, telling his class that another analyst had been investigated because he had improperly accessed the personal e-mail of former President Bill Clinton. . . .

The N.S.A. declined to comment for this article. Wendy Morigi, a spokeswoman for Dennis C. Blair, the national intelligence director [and former spokeswoman for Jay Rockefeller], said that because of the complex nature of surveillance and the need to adhere to the rules of the Foreign Intelligence Surveillance Court, the secret panel that oversees surveillance operation, and “other relevant laws and procedures, technical or inadvertent errors can occur."

"When such errors are identified," Ms. Morigi said, they are reported to the appropriate officials, and corrective measures are taken."

June 17, 2009 - The Atlantic's Marc Ambinder:

Sen. Feinstein says that NYT story on wiretapping is "way" overblown; says Congress is aware of problems and NSA is reforming.

If that isn't the picture of a rampant, lawless Surveillance State, what is?  How, at this point, are they even able to read from this same absurd script with a straight face?  And what else could the key members of Congress -- other than a Russ Feingold here and a Rush Holt there -- possibly do to make clear that they not only acquiesce to all of this, but actively support it?


UPDATE:  Perfectly encapsulating this little game of lawlessness they play, just watch this unbelievably revealing exchange between Russ Feingold and Eric Holder from yesterday, during which Holder not only refuses to say that Bush's NSA spying program was "illegal," but does the opposite:  invoking standard, still-not-withdrawn Bush DOJ executive power theories, Holder suggests that -- though the spying program was "in contravention" of FISA -- it was not "illegal."  As Marcy Wheeler put it (h/t Kitt):  "It's bad enough that Holder's trying to weasel out of statements he made a year ago. But I just saw the Attorney General all but suggest that contravening a law does not constitute breaking it":

In the update to Marcy's post is Feingold's statement condemning Holder's answers.  Of course, it would be rather odd for Holder to acknowledge that Bush's NSA spying program was "illegal" given that his DOJ is telling courts that this very program is a "state secret" and courts are therefore barred from ruling on its legality.

Glenn Greenwald

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