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The New York Times is reporting the NSA has been systematically spying on Americans without a warrant.
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…
Several intelligence officials, as well as lawyers briefed about the matter, said the N.S.A. had been engaged in “overcollection” of domestic communications of Americans. They described the practice as significant and systemic, although one official said it was believed to have been unintentional.
According to the NSA, the “overcollection” has been happening because the agency is unable “at times to distinguish between communications inside the United States and those overseas”. “One official said that led the agency to inadvertently ‘target’ groups of Americans and collect their domestic communications without proper court authority.”
In a change from the previous administration, the Justice Department informed Congress of the wrongdoing and insisted the NSA put new safeguards in place. The Obama administration has been actively scrutinizing the NSA’s spying for legal and operational problems.
The overcollection problems appear to have been uncovered as part of a twice-annual certification that the Justice Department and the director of national intelligence are required to give to the Foreign Intelligence Surveillance Court on the protocols that the N.S.A. is using in wiretapping.
In separate inquiries at the Justice Department, “a senior F.B.I. agent recently came forward with what the inspector general’s office described as accusations of ‘significant misconduct’ by the NSA.
In addition to regular Americans, a new disclosure states the NSA attempted to spy on “a member of Congress without a warrant” who was “part of a Congressional delegation to the Middle East in 2005 or 2006”. NSA under the Bush administration “believed that the congressman… was in contact… with an extremist who had possible terrorist ties”. The plan was allegedly blocked.
These are not the first time in the past decade that the NSA has broken the law and spied on Americans. The NSA had been engaged in domestic spying at the behest of George W. Bush months before the terrorist attacks on September 11, 2001. When this illegal wiretapping was made public in 2005, it sparked a three-year debate.
Ultimately, the Bush administration asked Congress to revise the Foreign Intelligence Surveillance Act to grant the NSA “broad new authority to collect, without court-approved warrants, vast streams of international phone and e-mail traffic as it passed through American telecommunications gateways”.
In the summer of 2008, Congress approved a broad expansion of FISA including, at the insistence of the Bush administration, granting telcom immunity to companies that helped break the law. The vote in the House was 293-129 and the vote in the Senate was 69 to 28.
At the time, the NY Times reported Congressional backers dismissed all concerns about civil liberties and the lack of safeguards:
There is nothing to fear in the bill, said Senator Christopher S. Bond, the Missouri Republican who was a lead negotiator, “unless you have Al Qaeda on your speed dial.”
But some Democratic opponents saw the deal as “capitulation” to White House pressure by fellow Democrats.
“I urge my colleagues to stand up for the rule of law and defeat this bill,” Senator Russ Feingold, Democrat of Wisconsin, said…
Our president, then-Illinois Senator Barack Obama voted for the bill despite saying he opposed telcom immunity. Obama, at the time, described it as “an improved but imperfect bill”.
According to the Washington Post last summer, Obama reversed his position to to support the bill. He explained:
“Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program,” Obama said…
Obviously the safeguards that were in place were inadequate. According to the Times, Attorney General Eric Holder “went to the national security court to seek a renewal of the surveillance program only after new safeguards were put in place.”
But even with these new protections, what does the president propose to change to prevent this “overcollection” from ever happening again?
The next administration may aspire to be like the Bush administration and have no qualms about breaking the law. Maybe now, with the news of one of their own almost-targeted for illegal spying, will more members of Congress see the danger posed by their FISA overhaul last year? While Obama’s hair may be completely gray by the time Congress revisits FISA again, I do think the law needs to be fixed.
Cross-posted at Daily Kos.