We’ve Known for Some Time that the NSA Is Spying On Congress

The NSA pretty much admitted to spying on Congress this week.

It’s not the first time.  David Sirota notes:

When I asked U.S. Rep. Alan Grayson (D-Fla.) if the NSA was keeping files on his colleagues, he recounted a meeting between NSA officials and lawmakers in the lead-up to a closely contested House vote to better regulate the agency:

“One of my colleagues asked the NSA point blank will you give me a copy of my own record and the NSA said no, we won’t. They didn’t say no we don’t have one. They said no we won’t. So that’s possible.”

Grayson is right: presumably, if the NSA wasn’t tracking lawmakers, it would have flatly denied it. Instead, those officials merely denied lawmakers access to whatever files the agency might have. That suggests one of two realities: 1) the NSA is keeping files on lawmakers 2) the NSA isn’t keeping files on lawmakers, but answered vaguely in order to stoke fear among legislators that it is.

Sirota notes the danger of even the threat of spying on the legislature:

Regardless of which of these realities happens to be the case, the mere existence of legitimate fears of congressional surveillance by an executive-branch agency is a serious legal and separation-of-powers problem. Why? Because whether or not the surveillance is actually happening, the very real possibility that it even could be happening orhas happened can unduly intimidate the legislative branch into abrogating its constitutional oversight responsibilities. In this particular case, it can scare congressional lawmakers away from voting to better regulate the NSA.

And the Atlantic points out:

Access to that telephone metadata would be extremely useful for manipulating the legislature.

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Should anyone doubt how much mischief could come from spying on even one member of Congress, let’s look back at the story of former Democratic Representative Jane Harman and what happened when the NSA intercepted and transcribed one of her telephone calls. That’s right: There’s a known instance in which a legislator’s private communications were captured by the NSA, though it’s a complicated story….

The story begins with the NSA surveilling two Israeli nationals suspected of being spies. Unbeknownst to them, their phone calls were being recorded by the NSA–and one day, a conversation with Harman got swept up in the ongoing wiretap. No one on the call knew it was being recorded.

“One of the leading House Democrats on intelligence matters was overheard on telephone calls intercepted by the National Security Agency agreeing to seek lenient treatment from the Bush administration for two pro-Israel lobbyists who were under investigation for espionage,” the New York Times reported on April 20, 2009, following up on a story broken by Congressional Quarterly’s Jeff Stein.

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Congressional Quarterly reported that a criminal case against Harman was dropped because she was a useful ally to the Bush Administration:

Justice Department attorneys in the intelligence and public corruption units who read the transcripts decided that Harman had committed a “completed crime,” a legal term meaning that there was evidence that she had attempted to complete it, three former officials said. And they were prepared to open a case on her, which would include electronic surveillance approved by the so-called FISA Court …

First, however, they needed the certification of top intelligence officials that Harman’s wiretapped conversations justified a national security investigation … But that’s when, according to knowledgeable officials, Attorney General Gonzales intervened. According to two officials privy to the events, Gonzales said he “needed Jane” to help support the administration’s warrantless wiretapping program, which was about to be exposed by the New York Times.

Harman, he told Goss, had helped persuade the newspaper to hold the wiretap story before, on the eve of the 2004 elections. And although it was too late to stop the Times from publishing now, she could be counted on again to help defend the program.

He was right.

On Dec. 21, 2005, in the midst of a firestorm of criticism about the wiretaps, Harman issued a statement defending the operation and slamming the Times, saying, “I believe it essential to U.S. national security, and that its disclosure has damaged critical intelligence capabilities.”[Read more]