The NSA Even Spies on Congress

If we fail to stop this soon, the next generation of Americans will not even know what privacy is.

Happy New Year. Just when you thought the NSA spying scandal couldn't get any worse, it has.

Last week, Sen. Bernie Sanders, I-Vt., wrote to Gen. Keith Alexander, director of the National Security Administration (NSA), and asked plainly whether the NSA has been or is now spying on members of Congress or other public officials. The senator's letter was no doubt prompted by the revelations of Edward Snowden to the effect that the federal government's lust for personal private data about all Americans and many foreigners knows no bounds, and its respect for the constitutionally protected and statutorily enforced right to privacy is nonexistent.

The senator's benign and neutral letter came on the heels of a suggestion by his colleague Sen. Rand Paul, R-Ky., to the effect that Alexander's boss, Gen. James Clapper, director of national intelligence, perjured himself before a Senate subcommittee when he testified that the NSA is not gathering massive amounts of data from tens or hundreds of millions of Americans. Alexander himself is also on the hook for having testified in a highly misleading manner to a House committee when he was asked whether the NSA has the ability to read emails and listen to phone calls and he stated: "No, we don't have that authority."

Thus far, Paul is the only member of Congress possessed of the personal courage to call out Clapper by arguing that working for the government is no defense to lying under oath. The gravity of Paul's charges was enhanced by revelations subsequent to the Clapper testimony to the effect that Clapper was told in advance of his testimony what questions would be put to him and then declined an offer afterward to correct any misstatements. In a new low for members of Congress, the NSA's own advocate in the House, Long Island's Rep. Peter King, R-N.Y., attacked Paul for attacking Clapper for lying under oath. The King argument is: Anything goes when it comes to national security—even lying under oath, even violating everyone's constitutional rights, even destroying the freedom you have sworn to protect.

All of this is background to the timing of Sanders' letter. That Clapper perjured himself before, and Alexander misled, Congress is nothing new. And the punishments for lying to Congress and for misleading Congress are identical: five years per lie or per misleading statement. Hence, the silence from the NSA to Sanders.

Well, it wasn't exactly silence, but rather a refusal to answer a simple question. The NSA did reply to Sanders by stating—in an absurd oxymoron—that members of Congress receive the same constitutional protections as other Americans: that is to say, none from the NSA.

The NSA's refusal to answer Sanders' question directly is a tacit admission, because we are all well aware that the NSA collects identifying data on and the content of virtually every email, text message and phone call sent or received in the U.S. In fact, just last week, the secret FISA court renewed the order authorizing massive records collection for the 36th time. If members of Congress are treated no differently than the American public, then the NSA is keeping tabs on every email, text and phone call members of Congress send and receive, too.

That raises a host of constitutional questions. Under the Constitution, Congress and the executive branch are equals. The president—for whom the NSA works—can no more legally spy on members of Congress without a search warrant about the members to be spied upon than Congress can legally spy on the president. Surely the president, a former lecturer in constitutional law at the University of Chicago Law School, knows this.

There was a time when the NSA's failure to answer such a straightforward question as Sanders has asked would have led to hearings and bipartisan investigations. However, Democrats are largely silent, choosing party and personality over principle, and Republicans know all of this started under President George W. Bush and are afraid to open a can of worms—except for King, who apparently likes to be spied upon.

Under laws that have been held to be both unconstitutional and constitutional by two different courts, the NSA can obtain surveillance orders with no articulated suspicion about those to be spied upon, even though the Fourth Amendment requires probable cause, a high level of individualized suspicion.

Basically, the NSA can tell a FISA judge that two thugs in area code 212 are chatting with five jerks in area code 312, and they are all texting six malcontents in area code 310. It knows who they are and where they are, but instead of going to New York and Chicago and Los Angeles and following them and investigating them, instead of asking for a search warrant to spy on just them, the NSA wants a warrant to spy on everyone in those area codes. It is a lot easier for our spies to throw a few switches at a telecom office than to burn shoe leather. If authorities in New Jersey had asked this of me when I was on the bench there, I'd have thrown them out of my courtroom because the Constitution expressly forbids this.

Just as disturbing as the revelation that the NSA is spying on members of Congress is the fear of what the NSA does with the information it collects. In September, The Guardian newspaper reported that the NSA shares raw, unfiltered information it has gathered with some foreign nations, including England and Israel. It also reported that the NSA shares this raw data with its boss: President Obama. Hence, Sanders' letter.

The lawlessness continues. The president's NSA spies remain out of control. They are spying on Congress and the courts; the military and the press; the CIA and other spies; friends, foes and the Pope. If we fail to stop this soon, the next generation of Americans will not even know what privacy is.

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  • Fist of Etiquette||

    Alexander himself is also on the hook for having testified in a highly misleading manner to a House committee...

    Not much of a hook. In fact, Congress deserves to get spied on for rolling over on their backs like a broad on this.

  • JCDavis||

    "If we fail to stop this soon, the next generation of Americans will not even know what privacy is."

    They won't even know what democracy is. They'll assume that all the candidates will be blackmailed by the operators of the surveillance apparatus, so why even bother to vote?

  • ||

    Given the state of the Presidency since about Kennedy, I'm not sure *we* know what Democracy is.

  • Jerryskids||

    The problem is that this 'illegal' and 'un-Constitutional' 'spying' isn't illegal or un-Constitutional or even spying. At least according to the interpretation of some lawyer in the Executive branch. The law doesn't mean shit if you can argue with a straight face that the answer to a simple question depends on what the meaning of the word 'is' is. Congress is failing in its' simple duty to clarify the law in such a way that bullshit interpretations are forbidden. And the NSA bullshit interpretation is nothing compared to the bullshit interpretation of the law that says you can kill people at will as long as you first put their name on a secret list of people you want to kill.

  • pan fried wylie||

    Weasel words sink their
    tiny teeth into the joint
    congressional ass.

  • Tonio||

    Not just a failure on Congress' part to clarify the law, but also failure to subpoena bureaucrats, cite them for contempt, slash budgets, etc.

  • CatoTheElder||

    ^^^ THIS

  • Don'tTreadOnMe||

    Exactly. What a bunch of spineless busybodies! "But, hey, I tweeted that I thought it was wrong so that should count for something…."

  • ||

    I recall warning when Snowdens leaks first came out that govt officials, including members of congress, would be spied on. I was not the only one. I am sure they are on the top of the list of most desirable targets.

    Let a political class develop and this is what you get.

  • JCDavis||

    According to Russ Tice, the members of the intelligence oversight committees were among the first to be tapped, beginning in 2002.

  • Tonio||

    Of course they were.

  • Austrian Anarchy||

    How did this Senator vote on the bill that shielded Congress from all the spying they authorized for everybody else?

  • sarcasmic||

    Alexander himself is also on the hook for having testified in a highly misleading manner to a House committee when he was asked whether the NSA has the ability to read emails and listen to phone calls and he stated: "No, we don't have that authority."


    "But we do it anyway."

  • Dave Krueger||

    The president—for whom the NSA works—can no more legally spy on members of Congress without a search warrant about the members to be spied upon than Congress can legally spy on the president.

    Ordinary citizens are, of course, fair game.

    While many government officials voiced some degree of concern over revelations of mass NSA surveillance on "little people", what really got their panties in a wad was finding out that the NSA has had the audacity to spy on the ruling class (both domestically and among U.S. allies). In other words, their concern for civil liberties is superficial until it's their civil liberties under attack.

  • Rapier Half-Witt||

    Funny, that.

  • SugarFree||

    We've always spied on Congress. How is this news? This is what the NSA is supposed to do. Fake scandal! FAUX NEWS!

    /did I miss anything?

  • ||

    I clearly haven't had enough coffee this morning. I thought you'd gone 'round the bend for a second there.

  • Dave Krueger||

    Under laws that have been held to be both unconstitutional and constitutional by two different courts, the NSA can obtain surveillance orders with no articulated suspicion...

    The disagreement is because the 4th Amendment is so, you know, fuzzy on what constitutes a a lawful search. While the wording seems plain and simple to the ignorant masses, government lawyers and judges see all kinds of exceptions, caveats, and intricacies that demand their exceptional expertise to sort out. We're lucky to have such geniuses on the job to help us understand stuff like this. All hail Caesar!

  • GregMax||

    A trained dog can decide to search your home.
    Really? People don't think we live in a police state?

  • Death Rock and Skull||

    I have heard but have no proof that Long Island's Rep. Peter King, R-N.Y. got kicked off of his youth sports team for too much slap-a-ass.

  • Rich||

    Meh. It's just separation of powers in action.

  • Ron||

    despite what one judge says I think congress should require, by new laws, that NSA cease all spying on Americans without individual warrants for each person and if found not to comply which it won't then funding will be terminated and make it illegal for any other governmental agency from transfering money to the NSA. of course none of that will happen because it truly is about power over the people for 99% of our representatives.

  • GregMax||

    Many in THIS generation don't know what liberty and privacy are already. This isn't going anywhere good . . .

  • GregMax||

    If every American called for a Constitutional amendment to allow for citizens to propose and establish laws . . . you'd see how fast both parties in Congress would circle wagons and start telling us how the People can't make law well, that we need to leave it to the experts, and that the sky would fall.
    This is the only thing that will save us from a growing statist-elite tyranny that makes itself rich and powerful at the expense of the American economy and the Constitution.
    But, hey, that Christie bridge thing is a real scandal.

  • bassjoe||

    In defense of the critics of "people lawmaking", look at CA. The proposition system has made it constitutionally impossible to raise taxes while at the same time passing all sorts of constitutionally-mandated spending programs.

  • GregMax||

    Proposition 13.

  • GregMax||

    It wouldn't be perfect. The state legislatures have imposed far more spending programs than the people have. It would just enhance a dying system.

  • Tonio||

    Permanent secret government. Srsly.

  • AdamJ||

    Can we start a public shaming campaign for the enlightened New Yorkers who elect Peter King? I mean, these asswipes always make fun of the flyover states, yet they have this guy in office? Maybe they think it's the SI writer?

  • ||

    No one should vote for the SI writer either.

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  • bassjoe||

    The problem with privacy laws is that they do jack-sh*t to protect the vast majority of people. The laws have multiple loopholes to stop the narcoterrorist just waiting to be released from within all of us.

    Privacy/secrecy laws are VERY good at protecting information of the powerful, however. FOIA is an expensive mire to navigate and the government is in the business these days of over-classifying to stymy FOIA. Good luck figuring out where your mortgage money goes when you pay or who actually owns the right to your mortgage (hint: not the person you're paying). And God knows what the "protector" of our currency and economy, the Federal Reserve, is up to.

    What do we do about this? I have no idea.

  • Don'tTreadOnMe||

    Get enough people to move to a state that nobody gives a shit about then start repealing laws and building walls….

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  • Rapier Half-Witt||

    Of course the NSA spies on us. How else would the duly elected monarchy know who among the tax slaves is spreading dissent?

    Hail Caesar!

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  • Number 2||

    Oh stop it Napolitano. The government spying on us isn't news. The NSA refusing to answer Sanders' question is not even worth mentioning.

    Everyone knows that the REAL scandal is a three-day traffic jam in Ft. Lee, NJ. Shutting down access lanes to the George Washington Bridge poses far more of a threat to American democracy and individual liberty than the government spying on us all and then lying about it.

    Keep your priorities straight, will you?

  • Johnimo||

    Thank gawd you bitch slapped us back to reality, Number 2. Thank you, thank you, thank you. If I'm not mistaken, the Super Bowl lies over that bridge, and we've got to get this scandal behind us before the circus begins.

  • cheap soccer jerseys||

    The disagreement is because the 4th Amendment is so, you know, fuzzy on what constitutes a a lawful search,what really got their panties in a wad was finding out that the NSA has had the audacity to spy on the ruling class

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