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Illegal NSA Wiretaps:

The NYT reports that "in recent months" the National Security Agency has engaged in surveillance beyond what is allowed under federal law. A few excerpts from the story:

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.

The legal and operational problems surrounding the N.S.A.'s surveillance activities have come under scrutiny from the Obama administration, Congressional intelligence committees and a secret national security court, said the intelligence officials, who spoke only on the condition of anonymity because N.S.A. activities are classified. Classified government briefings have been held in recent weeks in response to a brewing controversy that some officials worry could damage the credibility of legitimate intelligence-gathering efforts.

The Justice Department, in response to inquiries from The New York Times, acknowledged Wednesday night that there had been problems with the N.S.A. surveillance operation, but said they had been resolved.

This little bit also caught my eye.

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. . . .

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 official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

Swamp Fox:
Just saying:

"in 2006, Obama traveled to the Middle East, where he met Israel's foreign minister, spent two days in Iraq talking to officials and military commanders, and stopped in the Palestinian territory, Jordan and Kuwait."
4.16.2009 12:04pm
Oren:
So, supposing that the NSA believes that a terrorist in Afghanistan is conversing with 555-444-3333 in the US. They are entitled to intercept that call (as I understand the state of Federal law). If for technical reasons, they have to make a complete audio recording of all calls that are 555-444-XXXX and then filter them later, is that sort of overcollection legal?
4.16.2009 12:06pm
cboldt (mail):
Why would a Congressman get preferential treatment as to surveillance? If Congressmen deserve the protection of court oversight as it accompanies surveillance, shouldn't any other citizen have the same protection? Here is a person in contact with with an extremist who had possible terrorist ties and was already under surveillance. Is that not enough contact to justify warrantless surveillance of people who are not in Congress? In fact, Congresspeople are privy to information that makes them more likely to "leak" sensitive information, and I would think Congressmen should be under MORE suspicion.
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The following prompts a recollection of a recent Orin Kerr post on the subject of what constitutes a "seizure" under the Fourth Amendment.

It is not clear to what extent the agency may have actively listened in on conversations or read e-mail messages of Americans without proper court authority, rather than simply obtained access to them.
4.16.2009 12:09pm
ruuffles (mail) (www):

Why would a Congressman get preferential treatment as to surveillance? If Congressmen deserve the protection of court oversight as it accompanies surveillance, shouldn't any other citizen have the same protection?

There's that pesky Speech and Debate clause in the Constitution.
4.16.2009 12:12pm
Sarcastro (www):
Because if there's one group that needs more scrutiny of their lives, it's politicians!

Between their natural instinct for privacy, the total lack of federal disclosure requirements and that darned media, they always seem so mysterious!
4.16.2009 12:13pm
Allan Walstad (mail):
One might have hoped that Obama would put an end to all this over-reaching by federal spy agencies. Unfortunately, one whiff of presidential power seems to have intoxicated him as much as his predecessor.

The main rationale for more spy powers is 9/11, but we know quite well that the feds simply dropped the ball and didn't pick up on the info that they had. It's not that they didn't have enough power. This is one of the dominant recurring themes in the history of why we get government run amuck and bloated beyond all reason: when government screws up, it's rewarded with additional power and money. In the absence of a more discerning and vigilant citizenry, we can expect more of the same.
4.16.2009 12:14pm
Jon Roland (mail) (www):
Nonsense. The NSA and its predecessors have been in the business since WWII of monitoring all the communications they can, which today is most of them. For some time they have been using keyword detectors to flag communications of special interest. That could involve anyone. Many of their methods don't even have the capability of selecting only certain parties.

It is disingenuous to depict the NSA or cooperating agencies of allied powers to refrain from doing whatever they can do. There is no one in a position to stop them.
4.16.2009 12:15pm
Christopher M (mail):
Oh please. We all know that you can't believe anything you read in the New York Times, because some people didn't like their report on Justice Thomas's recent speaking engagement. They probably just made this story up out of whole cloth. And anyway, we're probably better off not knowing any of this boring spy stuff anyway.
4.16.2009 12:21pm
Brett Bellmore:

There's that pesky Speech and Debate clause in the Constitution.



shall in all Cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their attendance at the Session of their Respective Houses, and in going to and from the same, and for any Speech or Debate in either House, they shall not be questioned in any other Place.



Which doesn't so much as imply that Congressmen are entitled to not have their speech overheard if they're talking to a suspect under survailance.

Hm, I would have guessed Bonior; I hear that during the Reagan administration, he was so reliably on the phone to our enemies after getting secret briefings that they sometimes used him as a conduit for misinformation.
4.16.2009 12:21pm
Houston Lawyer:
I don't see how the speech and debate clause covers a congressman, while out of the country, talking with an enemy of the United States, unless you believe the purpose of intercepting the conversation was to prevent the congressman from voting on the house floor.
4.16.2009 12:25pm
PC:
The NSA had no problem monitoring Gov. Richardson's conversations, why should they have a problem with a member of congress?
4.16.2009 12:38pm
rosetta's stones:
Bonior left the Congress before 2005-06, was redistricted out after the 2000 census and reapportionment. He was a useful idiot for the Sovs, as mentioned. A principled guy and a streetfighter, but I never much cared for his principles.
4.16.2009 12:41pm
Anderson (mail):
talking with an enemy of the United States

Reading Is Fundamental.

an extremist who had possible terrorist ties and was already under surveillance

That could describe any of hundreds of, for ex, Palestinian politicians opposed to Israel ("extremists") who have friends or relatives ("possible terrorist ties").

I mean, hell, how many people in the Middle East would that *not* cover?
4.16.2009 12:44pm
OrinKerr:
I'm working on a post on this, FWIW.
4.16.2009 12:48pm
PC:
This is going to be especially interesting when juxtaposed with the recent (Bush commissioned) DHS report on right-wing extremism in the US. Reap, sow, etc.
4.16.2009 12:51pm
Melancton Smith:
Sarcastro wrote:

Because if there's one group that needs more scrutiny of their lives, it's politicians!


You forgot the braces to indicate you are being serious.

At least, I hope you are. If anyone needs to be watched, it is precisely those jokers in Congress.
4.16.2009 1:26pm
erp:
"in recent months"- does this mean since January 20th?
4.16.2009 1:42pm
PC:
does this mean since January 20th?

Yes. SATSQ.
4.16.2009 1:50pm
Sarcastro (www):
[my point was the scrutiny of current Congrescritters is such that actual treason would be pretty tricky to pull off.

Corruption, graft and bribery, well, that's another story.

But that's not the NSA's bag.]
4.16.2009 2:00pm
Andy Rozell (mail):
"The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress."


I'm not sure I understand the problem.

It looks like the Congressperson's communications weren't intercepted, unless I'm missing something.

So is the problem that somebody said "this isn't a good idea?"
4.16.2009 2:16pm
cboldt (mail):
-- It looks like the Congressperson's communications weren't intercepted, unless I'm missing something. So is the problem that somebody said "this isn't a good idea?" --
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The way I read the article is that the communications were intercepted, but not reviewed. There was one group in NSA who felt an urge to review the conversations, with the justification being that the Congressman had with an extremist who had possible terrorist ties and was already under surveillance. The countervailing argument was "YIKES! This is a Congressman. Therefore we need a court warrant."
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The comment I have as to being a Congressman is "so what?" IOW, the fourth amendment analysis and conclusion should be the same for non-Congressmen as for Congressmen. Yet-IOW, the fact that the subject of interest is a Congressman should be irrelevant to answer the question "warrant or not?"
4.16.2009 2:33pm
Anderson (mail):
Obviously, the guy's being in Congress is relevant to whether Congress suddenly takes a newfound interest in this subject, not as to the legal merits.
4.16.2009 2:52pm
einhverfr (mail) (www):

There's that pesky Speech and Debate clause in the Constitution.


Parliamentary privilege strikes again!
4.16.2009 2:55pm
NickM (mail) (www):
Sarcastro - read about Congresswoman Barbara Lee and her former boss (and predecessor in that seat), Congressman Ron Dellums. Then decide if they might have already pulled off treason.

Nick
4.16.2009 2:58pm
John Yesford (mail):
The information provided makes it hard to judge if this is a big deal or not. Of cource the Gray Lady goes out of her way to hint that this is all a problem caused by the past Administration and was caught by Obama's folks, but they don't actually give a time frame, nor do they actually tell you what really went on. It basically looks like the NSA was going along collecting data in what it thought was compliance with the latest law, and then during a regular review session, it decided that it wasn't entirely in compliance, it then notified the required people and altered it procedures to correct the problem. Inuendo asside, that is ALL the actual "fact" support, if one believes the NYT confidential sources.
4.16.2009 3:04pm
PubliusFL:
ruuffles: There's that pesky Speech and Debate clause in the Constitution.

That may be relevant if the member of Congress puts the extremist in question on speakerphone while making a speech on the floor of the House or Senate, but in that case the NSA wouldn't need a wiretap.
4.16.2009 3:15pm
Suzy (mail):

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.

It's hard to know whether this is a precise, accurate account. However, I read it to say that the Congressman went on a trip, during which he had "contact" of some sort--perhaps at a jointly attended function, perhaps in a phone call, or something else--with a person who was under surveillance.

After this, it appears to say that the agency sought to eavesdrop on all the Congressman's conversations, in general--i.e. not simply with this one extremist.

However, did the agency want to talk to everyone in the whole delegation who could have had contact with such a person? Is it very seldom that a member of Congress visits overseas and meets with foreign officials who might be considered "extreme" and of interest to the NSA? Do they then want to wiretap all of a Congress member's communications after that point?

If the answer to any of these questions is no--i.e. if the NSA wasn't pursuing a consistent policy in this case--then it sounds like a major concern was that the agency was targeting a Congressman for political reasons. Otherwise one would think they'd be wiretapping half of Congress. And maybe they are! ;)
4.16.2009 3:54pm
Assistant Village Idiot (mail) (www):
John Yesford brings out an important caution. One's preconceptions and the choice of words by the reporting source admit an enormous variation in what is meant by meeting an extremist already under surveillance. We can all imagine situations at either extreme (from "political gladhanding" through "Benedict Arnold") that could be stuffed under those words.

Let me bring up another complication. Most private citizens, if entering into business or academic contact with people from somewhat hostile nations, might wish to be observed more closely to protect their reputation, and protect them from unintended disclosure. I might even wish to be recorded. If I were in a trade delegation to Romania in 1985, I would hope that the CIA was monitoring my calls, because the Securitate certainly would be.

To be acting in other than expressly authorized roles for the US, it takes a fair bit or arrogance to think that you can fly solo, because you're a big important penis who knows his way around the international game. I don't doubt we have many members of congress who have precisely this attitude of overconfidence. I fear the consequences of a Bush (or Obama, or Clinton) surveillance infringement less than the consequences of Congressman Bigmouth travelling overseas and meeting with IRA/ETA/Islamic/NoKo operatives.

Remember Henry Wallace.
4.16.2009 4:51pm
JoeSixpack (mail):
"Since Obama took charge he has not shown us that anything will change."
4.16.2009 4:56pm
RPT (mail):
The congressman at issue may be Darell Issa (R), who is quite a character.
4.16.2009 5:55pm
Dreadnaught (www):
A member of Congress. This does not look good.
4.16.2009 9:32pm
Roger Schlafly (www):
Why would it be bad to wiretap a Congressman? I would think that the higher up the govt official, the more important it is to find out whether he is making any deals with terrorist organizations. Also he was probably over their on a govt-funded trip for which he would have no special right to privacy.
4.16.2009 10:10pm
Just an Observer:
I confess that after reading the NYT story I don't think I yet have a clear idea of what has happened. Reading between the lines, some legal transgressions seem to be at the level of technical violations, apparently involving the new authorities granted by the 2008 FISA amendments.

That does not make them less illegal, if laws were violated. But from what I understand so far, the issues are deep in the weeds of the complex new statutory rules, which in turn have layers of technical detail. That is a different set of issues than the controversies of FISA violations between 2001 and 2007, which turned on statutory or constitutional interpretation.

It also will be interesting to know whether "recent months" encompasses the watch of Obama, Bush or both.

I look forward to reading Orin's take on the story.
4.16.2009 10:18pm
Richard Aubrey (mail):
Assistant.
The one we know about, a dem congresscritter during WW II, got a hush-hush briefing about Japanese anti-sub tactics and our responses. He blabbed. After the war, an admiral testified that he cost us ten subs and about 800 sailors. Not many Japanese destroyers could claim that record.
4.16.2009 10:43pm
einhverfr (mail) (www):
Department of Homeland Security:

Protecting Good Red-blooded Americans from the likes of Cat Stevens and Ted Kennedy since 2002.
4.16.2009 11:59pm
Oren:


The one we know about, a dem congresscritter during WW II, got a hush-hush briefing about Japanese anti-sub tactics and our responses. He blabbed. After the war, an admiral testified that he cost us ten subs and about 800 sailors. Not many Japanese destroyers could claim that record.


(1) Cite please, that's a damn good story (if corroborated).

(2) It's Congress' job, not the DOD, to polce Congresscritters. If the admiral testified and the House did nothing to censure him or remove him from sensitive committees, I take that as explicit approval of what he did. They are the The People's representatives and are entitled to judge for themselves what is in the national best interest.
4.17.2009 2:49pm
cboldt (mail):
-- Cite please --
.
15 seconds with Google ("japanese" "anti-submarine" "congressman" "wwii") ...
.

Congressman Andrew May is credited with sinking ten U.S. submarines
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Similar to Orin Hatch's big mouth; and "Leaky Leahy."
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I see those indiscretions as completely separate from conducting covert surveillance against a US citizen, be they a Congressman or not. Whatever the rules are for covert surveillance, they would, in a society of equals, apply equally across the board.
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But we are ruled by our betters. One set of rules for me, and a different set for thee.
4.17.2009 4:57pm

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