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NSA: Telling Congress whether we spied on them would violate their rights

Spying is fine. Telling you about spying, now that’s a problem.


Joe Kloc


The National Security Agency has informed Sen. Bernie Sanders (I-Vt.) that it can’t tell him whether or not it spied on members of Congress because doing so would violate their rights, the Huffington Post reported Tuesday.

To unpack that a bit: In early 2014, Sanders asked the NSA whether or not it had targeted members of Congress with any sort of spy program. There’s precedent for this question. Back in the 1970s, the U.S. intelligence community targeted Senator Frank Church (D-Idaho). He was the head of the influential Church Committee that investigated U.S. spying programs and eventually evolved into the Senate Intelligence Committee. which now oversees the NSA. (The committee’s reforms served to reign in the intelligence community until September 11, 2001, when the agency began more loosely interpreting legal safeguards.)

Sanders had (and still has) good reason to believe at least some members of Congress had been targeted by the agency. While many of the NSA spy programs disclosed by former intelligence contractor Edward Snowden were largely limited to targets outside the U.S., the agency’s telephone metadata program is aimed at millions of Americans. And as the NSA readily admits, “NSA’s authorities to collect signals intelligence data include procedures that protect the privacy of U.S. persons. Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all U.S. persons.”

Another way to read that: Members of Congress are no more protected than anyone else.

One program in particular, that of telephone metadata collection, is a good candidate for congressional spying. The metadata program, justified under Section 215 of the Patriot Act, sweeps up the call logs (the who, when, and where of phone conversations) of millions of Americans. Though its existence has been to some extent known about for years, it was fully disclosed by Snowden in June 2013. Since then, it has been on of the most controversial and hotly debated NSA operations, both inside and out of Washington. If the NSA did capture data on Congress, it was most likely metadata.

As the Huffington Post reported, the NSA has (cordially) refused to respond the Sanders’s inquiry: “Thank you for your letter,” NSA head Keith Alexander wrote. “NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups,” Alexander wrote. “For that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without the predicate.”

So in sum, the agency can’t tell Sanders whether they collected his data because finding out would violate his right to privacy.

Of course, in some ways, Alexander’s response makes sense. The NSA shouldn’t be allowed to look at the private information of Americans who’ve done nothing wrong. But that this right could somehow be used to justify keeping secret whether the agency has spied on Americans who’ve done nothing wrong betrays a larger problem, mainly that the NSA is collecting information it’s not allowed to look at.

As Sanders put it in his response, “The NSA is collecting enormous amounts of information. They know about the phone calls made by every person in this country, where they’re calling, who they’re calling and how long they’re on the phone. Let us not forget that a mere 40 years ago, we had a president of the United States who completely disregarded the law in an effort to destroy his political opponents. In my view, the information collected by the NSA has the potential to give an unscrupulous administration enormous power over elected officials.”

Photo by terren in Virgina/Flickr

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