NSA Admits to Wrongdoing—What Now?

The Director of National Intelligence lied to a congressional committee about the most massive Fourth Amendment violation in history. Will he be prosecuted?

Pete Souza/White HousePete Souza/White HouseLast week, Director of National Intelligence James R. Clapper sent a brief letter to Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee, in which he admitted that agents of the National Security Agency (NSA) have been reading innocent Americans' emails and text messages and listening to digital recordings of their telephone conversations that have been stored in NSA computers, without warrants obtained pursuant to the Constitution. That the NSA is doing this is not newsworthy—Edward Snowden has told the world of this during the past 10 months. What is newsworthy is that the NSA has admitted this, and those admissions have far-reaching consequences.

Since the Snowden revelations first came to light last June, the NSA has steadfastly denied them. Clapper has denied them. The recently retired head of the NSA, Gen. Keith Alexander, has denied them. Even President Obama has stated repeatedly words to the effect that "no one is reading your emails or listening to your phone calls."

The official NSA line on this has been that the Foreign Intelligence Surveillance Act (FISA) court has issued general warrants for huge amounts of metadata only, but not content. Metadata consists of identifying markers on emails, text messages, and telephone calls. These markers usually identify the computer from which an email or text was sent or received, and the time and date of the transmission, as well as the location of each computer. Telephone metadata is similar. It consists of the telephone numbers used by the callers, the time, date, and duration of the call, and the location of each telephone used in the call.

American telecommunications and Internet service providers have given this information to the NSA pursuant to warrants issued by secret FISA court judges. These warrants are profoundly unconstitutional, as they constitute general warrants. General warrants are not obtained by presenting probable cause of crime to judges and identifying the person from whom data is to be seized, as the Constitution requires. Rather, general warrants authorize a government agent to obtain whatever he wants from whomever he wants it.

These general warrants came about through a circuitous route of presidential, congressional, and judicial infidelity to the Constitution during the past 35 years. The standard that the government must meet to obtain a warrant from a FISA court judge repeatedly has been lessened from the constitutional requirement of probable cause of crime, to probable cause of being a foreign agent, to probable cause of being a foreign person, to probable cause of talking to a foreign person. From this last category, it was a short jump for NSA lawyers to persuade FISA court judges that they should sign general warrants for all communications of everyone in America because the NSA was not accessing the content of these communications; it was merely storing metadata and then using algorithms to determine who was talking to whom.

This was all done in secret—so secret that the president would lie about it; so secret that Congress, which supposedly authorized it, was unaware of it; and so secret that the FISA court judges themselves do not have access to their own court records (only the NSA does).

It was to further this public facade that Clapper lied to the Senate Intelligence Committee last year when he replied to a question from Sen. Wyden about whether the NSA was collecting massive amounts of data on hundreds of millions of Americans by saying, "No" and then adding, "Not wittingly." The stated caveat in the NSA facade was a claim that if its agents wanted to review the content of any data the NSA was storing, they identified that data and sought a warrant for it.

This second round of warrants is as unconstitutional as the first round because these warrants, too, are based on NSA whims, not probable cause of crime. Yet, it is this second round of warrants that Clapper's letter revealed did not always exist.

Snowden, in an act of great personal sacrifice and historic moral courage, directly refuted Clapper by telling reporters that the NSA possessed not just metadata but also content—meaning the actual emails, text messages, and recordings of telephone calls. He later revealed that the NSA also has the content of the telephone bills, bank statements, utility bills, and credit card bills of everyone in America.

In his letter to Wyden last week, Clapper not only implicitly acknowledged that Snowden was correct all along, but also that he, Clapper, lied to and materially misled the Senate Intelligence Committee, and that the NSA is in fact reading emails and listening to phone calls without obtaining the second warrant it has been claiming it obtains.

One wonders whether Obama was duped by Clapper when he denied all this, or whether he just lied to the American people as he has done in the past.

One also wonders how the government could do all this with a straight face. This is the same government that unsuccessfully prosecuted former New York Yankees pitcher Roger Clemens twice for lying to a congressional committee about the contents of his urine. Shouldn't we expect that Clapper be prosecuted for lying to a congressional committee about the most massive government plot in U.S. history to violate the Fourth Amendment? Don't hold your breath; the president will protect his man.

Yet, Congress could address this independent of a president who declines to prosecute his fellow liars. Congress could impeach Clapper, and the president would be powerless to prevent that. If Congress does that, it would be a great step forward for the rule of law and fidelity to the Constitution. If Congress does nothing, we can safely conclude that it is complicit in these constitutional violations.

If Congress will not impeach an officer of the government when it itself is the victim of his crimes because it fears the political consequences, does it still believe in the Constitution?

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  • UnCivilServant||

    What now? Public executions and revealing every document that passed near a FISA Court. Then public reveal of the activities inside the NSA and the destruction of their accumulated data.

  • Fist of Etiquette||

    Uh, I think you mean cloistering away by federal authorities any who would leak FISA court rulings or NSA activities. Advancement-hungry federal prosecutors wouldn't even get a chance at would-be whistleblowers. They would disappear into a pit somewhere.

  • UnCivilServant||

    Leave me to my fantasy that we're going to get a bloody purge of these traitors.

  • Zombie Jimbo||

    FISA court participants and NSA workers disappearing into a pit? I could possibly get behind this. How unpleasant is the pit?

  • ||

    How unpleasant is the pit?

    Very. Picture lots of tentacles covered in suckers and sharp hooks, with a large beak in the center.

  • dinkster||

    "with a large beak in the center"

    Damn your revisionist star wars history. Damn it.

  • wareagle||

    I'd say that this happened last week and no one got around to mentioning it till now pretty tells you that this falls under the penumbra of FYTW.

  • LynchPin1477||

    Come on now, there was a lot of important stuff in the news last week. I hear they spotted some waves somewhere in the ocean, for example.

  • RishJoMo||

    Tehre is a dude that knows what time it is.

    www.GotzAnon.tk

  • Fist of Etiquette||

    ...in which he admitted that agents of the National Security Agency (NSA) have been reading innocent Americans' emails and text messages and listening to digital recordings of their telephone conversations...

    The one thing the Judge seems to have conveniently left out is that the NSA doesn't know an American is innocent until it reads their emails and texts and listens to their phone calls.

  • WTF||

    If you've done nothing wrong, you have nothing to worry about.

  • UnCivilServant||

    In which case, the NSA should be fine letting us rifle through their stuff.

  • WTF||

    No, that which applies to the little people does not apply to the overlords.

  • UnCivilServant||

    Since the people are the government the NSA are the little people. Or are you saying Bummer lied?

  • WTF||

    Lied? Heavens, no. He merely engaged in a kinetic verbal contingency operation.

  • OneOut||

    They could be guilty of not voting correctly and need to be reeducated.

  • WTF||

    Shouldn't we expect that Clapper be prosecuted for lying to a congressional committee about the most massive government plot in U.S. history to violate the Fourth Amendment?

    Silly judge, laws are for the little people!

  • dbobway||

    Every drug deemed dangerous to the public and thus made illegal, was when the little people got their hands on it. Little people bad, They must be controlled.

  • x4rqcks3f||

    Shouldn't we expect that Clapper be prosecuted for lying to a congressional committee about the most massive government plot in U.S. history to violate the Fourth Amendment?

    Congress has no right to the truth. And violation of the Constitution isn't wrong per se (thought it's a fireable offense). If the NSA simply asked Google, Verizon, etc for info and it was handed over, then no real rights were violated. Of course we all know what would happen if someone said no, and that's where the violation of real rights comes in.

  • prolefeed||

    Congress has no right to the truth. And violation of the Constitution isn't wrong per se

    The fuck are you babbling on about?

  • LiveFreeOrDiet||

    I'm giving the benefit of the doubt: failed sarcasm.

  • x4rqcks3f||

    The fourth amendment doesn't provide a real right. You're free to go ask Google for all of my emails. I'll be upset, and I'll stop using Google if they agree, but my rights won't have been violated.

    Nor will they have been violated if the NSA does the same. The fourth amendment is simply a practical restriction on government given government's size and propensity for abuse. We should expect government employees who ignore it to be fired, even if they haven't violated any actual rights.

    The real difference comes when Google turns a request down. You'd just go home. The NSA would point a gun at their head. And for that, Clapper should be in a cage.

  • Matrix||

    It really depends on what the user agreement is with Google. If you agreed that Google owns the content of your e-mails and may dissimenate them in any way they see fit, you would be correct.

  • UnCivilServant||

    And if you read the Terms of Service, you did agree to that.

  • Matrix||

    what if I didn't read them but agreed to them anyway?

    Yeah, I know. It's silly. Who DOESN'T read the Terms of Service or User Agreement in its entirety every time before clicking "Agree"?

  • Loki||

  • LynchPin1477||

    The NSA would point a gun at their head.

    That is basically what they did, in a roundabout way, when they got the warrants.

  • BillEverman||

    This is less true of the telephone companies, though. The Telecommunications Act of 1996 deems phone "metadata" (basically, billing records without the Orwell speak) to be private information, and gives the telecom providers a responsibility to protect its confidentiality. So they really can't simply hand it over to the government on a whim...well, actually, it can't just hand it over to anyone on a whim. But I guess the government is special because...um...terrorists?

  • ||

    "Shouldn't we expect that Clapper be prosecuted for lying to a congressional committee about the most massive government plot in U.S. history to violate the Fourth Amendment? "

    I am pretty sure Eric Holder gave us an answer yesterday.

  • Rich||

    IIRC, something like "They hate James Clapper because he's Black."

  • Rich||

  • Almanian!||

    Again I raise the question - is Clapper really terry O'Quinn from LOST (John Locke)?

    I think he is, and I think we know where they're storing all this data.

    Get into the cave and turn that wheel!

  • LiveFreeOrDiet||

    Oh, I was going to guess it was stored in the hard case full of knockoff knives.
    Did you notice Locke's knives got junkier as the series went on? I always wondered if that was on purpose or if the prop guys got bored.

  • LemonMender||

    [D]oes [Congress] still believe in the Constitution?

    Ha ha ha ha ha! You're assuming that they ever did.

  • LiveFreeOrDiet||

    I've decided people in government operate under a sort of deistic constitutionalism. The Constitution set the country up and set it all in motion but no longer interferes in it.

  • mr simple||

    This is the same government that unsuccessfully prosecuted former New York Yankees pitcher Roger Clemens twice for lying to a congressional committee about the contents of his urine.

    Well, sure, but Clapper only lied about violating a document that's like, 100 years old or something. Clemens besmirched the name of the Great American Pastime. Obviously Congress, being the truest of True Americans®, knows which is more important to the American people.

  • Mock-star||

    Maybe Im getting old, but does anyone else remember a time when metadata was known simply as data?

  • Jordan||

    Well, there is a difference. For example, the content-type header of an http response vs the data enclosed in the response. One tells you how to read the data, the other is the data.

  • Jordan||

    But I don't think metadata is deserving of any less protection from government snooping than the data itself.

  • Christophe||

    No one here will dispute that. The distinction does predate the NSA's bullshit attempts at justification though.

  • LynchPin1477||

    Where is Captain America and Black Widow when you need them?

  • Sevo||

    Fake scandal!

  • Sevo||

    x4rqcks3f|4.10.14 @ 8:14AM|#
    "The fourth amendment doesn't provide a real right."

    Neither the government nor the constitution 'provides' rights; the government attempts to violate them constantly and the constitution is there to keep the government from doing so.
    Yes, the government violated the rights stipulated in A4 regardless of where they took the data.

  • DenverJay||

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized, unless the person sent the information in a letter, or shared that information with any other entity, at any time, past present or future, in which case it's all fair game, and the government can do whatever the hell they want, pursuant to the FYTW clause.

  • WilliamsMaragret||

    my roomate's mom makes $79 /hour on the laptop . She has been out of work for five months but last month her paycheck was $19158 just working on the laptop for a few hours. have a peek at this website.........
    http://www.workbarr.com

  • Matthew Cline||

    and so secret that the FISA court judges themselves do not have access to their own court records (only the NSA does).

    Wait, so is that why when FISA ordered the DOJ to unseal some court documents and the DOJ responded "screw you", FISA couldn't unseal the records themselves?

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