The Illegal Spying Game, Played Over and Over

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 ,
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.