The Illegal Spying Game, Played Over and Over

by Glenn Greenwald

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.

A June article in the New York Times 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?

It’s a Pattern

Every time new revelations of illegal government spying arise, the same exact pattern repeats itself:

1. Euphemisms are invented to obscure its illegality, such as “over-collection,” “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.

Surveillance Powers Expanded Again Last Year

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.

A Glance at the Magnitude of the Illegal Spying

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.

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 “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 counter-terrorism 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.

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.

March 10, 2008 – Wall St. Journal: Five years ago, Congress killed an experimental Pentagon anti-terrorism 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. 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 U.S. 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.

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.

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 “over-collection” “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.

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 the above 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? 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?Φ

Glenn Greenwalk is a New York Times author and host of Salon.com where this article was posted June 18, 2009. His most recent book is Great American Hypocrites released in April 2008.

Photo courtesy of David dos Santos; http://en.wikipedia.org/wiki/Glenn_Greenwald