Did you see this?
Media disclosures about U.S. spying on foreigners — including some heads of state — has Sen. Bernard Sanders wondering if the National Security Agency has turned those same espionage programs on lawmakers.
Sanders wrote in a letter … to NSA Director Gen. Keith B. Alexander that he wants to know whether the NSA is currently spying — or has ever spied — on members of Congress or other U.S. elected officials. [Congressional Quarterly, Jan. 3, 2014]
The sad part of this is that all the good senator needed to do was to attend one of the many briefings NSA gives to Congress, or even request a "one on one" briefing to know the answer to his question, especially if he was concerned that the nature of his question might indicate that he knew very little about national security and law enforcement in general. However, and unfortunately, his letter to the NSA Director confirms this for all to see.
Furthermore, the senator's political motives are transparent: He wanted it to be clear that when he said "spying," he meant to include the "metadata" program disclosed by Edward Snowden, which, by the way, was authorized and is oversighted by Congress, the president and the Foreign Intelligence Surveillance Act court.
Accordingly, and in his response to the senator, the NSA director said:
The NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups. ... 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 that predicate.
Nevertheless, perhaps the following discussion may "help" the senator understand when and how a member of Congress might actually be the subject of surveillance in America:
Hypothetical 1: Let's assume that a member of Congress was implicated, by reliable information – and corroborated to the level of "probable cause" – in a criminal matter of some kind, such as taking bribes and putting the money in a refrigerator. Could the congressman be the subject of a criminal wiretap ordered by a state or federal criminal judicial authority? Yes.
Hypothetical 2: Slightly more complex, assume a congressman's name comes up in information obtained under another judicially authorized criminal wiretap or search. That information – depending on what it revealed – could also be used by law enforcement authorities to determine whether or not to open a criminal investigation into the congressman, depending on whether the information revealed criminal behavior.
Hypothetical 3: Assume that in national security surveillance coverage authorized by the Foreign Intelligence Surveillance Act of an "agent of a foreign power," the NSA learns that the targeted agent is having regular contact with a congressman. In that situation, the NSA would advise the senior leadership in the Department of Justice and the FBI, and they, after discussion, could decide whether to open a "foreign counterintelligence" investigation of the congressman.
The same result could occur if this kind of information were obtained in the course of operations by any other U.S. intelligence activity – and the disposition of the matter would probably be pursuant to written internal procedures approved by the attorney general. In such a situation, it would be important whether the Congressman actually knew or should have known whether he was dealing with an agent of a foreign power – if it was clear that he didn't realize this, he would be advised accordingly.
Hypothetical 4: If it were shown that a congressman was also an "agent of a foreign power" or actually engaged in espionage, could the congressman be subject to FISA approved surveillance? Yes, however unlikely this might be. There is no immunity for members of congress who might also be passing sensitive national security information to a foreign government without the approval of the president.
Contrary to the faulty premise of Sanders' letter, the "metadata" collection authorized by Congress is not "surveillance" of Americans, or "spying" on them – whether they are members of Congress or not. It is an attempt to find a needle in the haystack and match telecommunications traffic with known foreign contacts having a nexus to terrorism – ultimately to help us prevent another terrorist attack.
Has the metadata program worked? Does it continue to make sense from the risk/cost/benefit point of view? Should it be subject to more aggressive approval and oversight? These are the responsible questions that should be coming from the Congress, rather than mischaracterizing the program as spying on Americans.
Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.