Andrew Sullivan is soliciting right-of-center comments on a report by Eric Lichtblau and James Risen that has mostly attracted left-of-center commenters thus far. Here’s the lede:
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.
As with most of the news on this story over the years, it’s difficult to comment because it’s rather mysterious what precisely has been going on. It’s apparently something more intrusive than electronic data mining and less intrusive than ordinary wiretapping. Here’s how the present story describes it:
After a contentious three-year debate that was set off by the disclosure in 2005 of the program of wiretapping without warrants that President George W. Bush approved after the Sept. 11 attacks, Congress gave the N.S.A. broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways. The targets of the eavesdropping had to be “reasonably believed” to be outside the United States. Under the new legislation, however, the N.S.A. still needed court approval to monitor the purely domestic communications of Americans who came under suspicion.
Unlike torture or detention without trial, I’m not reflexively outraged at the prospect of intelligence agencies sifting through the communications with overseas parties for clues on terrorist activity. I’m troubled by skirting existing law to do it, to be sure, but am willing to grant a lot of license on national security matters when no obvious harm results.
Again, though, this may simply be because I don’t understand what is being done here. Given that there are 300 million-odd Americans and maybe 100,000 agents available for investigating terrorism, they’re not sitting around listening to everyone’s phone calls and reading all our emails. I’m given to believe that they’re doing something more than electronic sifting of data looking for keyword patterns (data mining).
In the case of this particular report, what precisely has been “overcollected”? And how is it possible to overcollect unintentionally?
Now this is troubling:
As part of that investigation, a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of “significant misconduct” in the surveillance program, people with knowledge of the investigation said. Those accusations are said to involve whether the N.S.A. made Americans targets in eavesdropping operations based on insufficient evidence tying them to terrorism.
And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said. The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.
The problem with targeting specific individuals is that this obviously triggers 4th Amendment rights. Now, granted, if the motive for investigating is gathering counterterrorism intelligence rather than putting together a legal case, most of the harm is mitigated. After all, the remedy for violated 4th Amendment rights is the Exclusionary Rule — disallowing information so obtained and any information thereby tainted (the Fruit of the Poisonous Tree Doctrine) from use in court against the aggrieved person. But it’s still a violation of civil rights. And the targeting of a Member of Congress by the executive branch without judicial oversight is a fundamental breach of separation of powers.
All that said, I do agree with Steven Taylor — who has been much more exorcised about this issue over the years than I have — that this demonstrates why we need oversight on government power. That is, even if perfectly well intentioned, things go wrong. And this: “If people want something to worry about in terms of the expansion of governmental power, the issue isn’t bank bailouts or loans to GM, as those will pass, it is stuff like this which has the tendency to grow.” Not that the former precedents don’t create bad tendencies, too, mind you.
Photo by Flickr user Scruffy Dan and Breanne, used under Creative Commons license.
