The Wall Street Journal, not having the benefit of a near-pathological obsession with all things surveillance-related, has done some goldfish reporting on how shocked, shocked they are that the NSA may have “inadvertently” and “incidentally” gathered up some communications of US elected representatives, during the course of closely scrutinizing the communications of Binyamin Netanyahu.
It’s goldfish reporting because it exhibits no long-term memory of the history of political surveillance; and more particularly, of recent domestic political surveillance stories.
In 2009, liberal Congresswoman Jane Harman was caught in an almost identical scandal, having likewise been a vehement defender of the NSA, and reacted in the same way, denouncing mass surveillance only when it was turned her way.
From 2009 to 2012, the CIA spied on staffers for Senator Dianne Feinstein and other Democratic Intelligence Committee senators, in order to monitor, and to attempt to discredit, their efforts to hold the CIA accountable for horrific and repeated acts of torture; leading Senator Rand Paul to describe the CIA as “drunk with power” and to talk about the “real fear in Senators’ eyes”.
After the Snowden revelations, speculation ran rampant that Supreme Court Justice John Roberts’s last-minute and unexpected change of his key vote on the constitutionality of Obamacare, had been influenced by the NSA’s possession of information on him derived from its mass surveillance systems.
In April 2015, Congressman Jason Chaffetz had personal information from his past leaked by the Secret Service in order to discredit his efforts to investigate the Secret Service for a series of scandals involving drunk driving, hiring sex workers, and failing to protect the White House from trespassers.
The testimony of NSA whistleblower Russell Tice suggests that these are not just isolated cases that happen to have come to light. Instead, they are likely to be the visible portions of an active practice of surveillance of elected officials and jurists with decision-making authority over the budgets and activities of the surveillance state. It’s not an accident that Congress keeps voting in favor of substantive NSA reforms in public, that then mysteriously get stripped in committee. Surveillance power is blackmail power; it’s been used before in the US, is being used now, and will be used in the future, until we stop it.
Saying this is not paranoia; it’s only to be expected. Set up a mass surveillance system, and it will inevitably be turned against its own overseers. That’s a major reason to adhere to the Fourth Amendment and refuse to set one up.
Of course the NSA will spy on their alleged political overseers. Who the hell would stop them? The FISC? Congress itself, which just gleefully expanded surveillance because somebody said “ISIS, ISIS, ISIS, Boo!”? The President?
I think not.
Over at the surveillance apologist blog Lawfare, they’re delving into this story, and observing quite accurately that in spying on (or “incidentally capturing”) US elected officials’ communications, the NSA was probably not violating any of its internal policies or directives, or violating the law either. They’re right. Our laws currently allow the NSA to capture communications in this way. But Lawfare fails to observe that these things are lawful because the NSA has made sure that they are lawful through their capture of the political system.
Whether these activities should be lawful, and whether our political system is actually now capable of meaningfully restraining the NSA even if elected officials wanted to, are questions Lawfare addresses only by contemptuous references to conservatives who are “sounding suspiciously like Glenn Greenwald and Edward Snowden” and “getting in touch with [their] inner ACLU lawyer.” They can’t see that this is a real threat to the republic, existing beyond the cut and thrust of partisan Beltway politics.
We need to confront reality for a moment. We’re in a country where you don’t get to high office without the deep state letting you know how little of our foreign policy or our surveillance activities they’re going to allow you, as a lowly elected official, to change.
As an elected official, you can choose to fight it. We’re still free enough for that. But if you do, the deep state will drain every iota of political capital you have. You’d better kiss goodbye to that nice program for the old people back in your home state. You’d better be careful with all of your communications, in case they’re held against you later. You’d better get used to being called a terrorist, implicitly or, increasingly, explicitly, on national TV by the surveillance state’s paid propagandists. You’ll be a shame and a horror to every well-paid cocktail-party lickspittle between Fredericksburg and Baltimore.
You’ll be right. And you’ll do good. But you’d better be the kind of person for whom virtue really is its own reward. The overlap between that kind of person and the kind of people who run for office is extremely small, but ordinary people can make the media climate more hospitable for elected officials who do exercise courage, while they still have the technical power to do so.