Mass, warrantless surveillance is inherently abusive and unjustified, and one shouldn’t need a report that this was done to the Benjamin Netanyahus and Pete Hoekstras of the world to realize that.
The Wall Street Journal reported yesterday that the NSA under President Obama targeted Israeli Prime Minister Benjamin Netanyahu and his top aides for surveillance. In the process, the agency ended up eavesdropping on “the contents of some of their private conversations with U.S. lawmakers and American-Jewish groups” about how to sabotage the Iran Deal. All sorts of people who spent many years cheering for and defending the NSA and its programs of mass surveillance are suddenly indignant now that they know the eavesdropping included them and their American and Israeli friends rather than just ordinary people.
The long-time GOP chairman of the House Intelligence Committee and unyielding NSA defender Pete Hoekstra last night was truly indignant to learn of this surveillance:
WSJ report that NSA spied on Congress and Israel communications very disturbing. Actually outrageous. Maybe unprecedented abuse of power.— Pete Hoekstra (@petehoekstra) December 30, 2015
NSA and Obama officials need to be investigated and prosecuted if any truth to WSJ reports. NSA loses all credibility. Scary.— Pete Hoekstra (@petehoekstra) December 30, 2015
In January 2014, I debated Rep. Hoekstra about NSA spying and he could not have been more mocking and dismissive of the privacy concerns I was invoking. “Spying is a matter of fact,” he scoffed. As Andrew Krietz, the journalist who covered that debate, reported, Hoekstra “laughs at foreign governments who are shocked they’ve been spied on because they, too, gather information” — referring to anger from German and Brazilian leaders. As TechDirt noted, “Hoekstra attacked a bill called the RESTORE Act, that would have granted a tiny bit more oversight over situations where (you guessed it) the NSA was collecting information on Americans.”
But all that, of course, was before Hoekstra knew that he and his Israeli friends were swept up in the spying of which he was so fond. Now that he knows that it is his privacy and those of his comrades that has been invaded, he is no longer cavalier about it. In fact, he’s so furious that this long-time NSA cheerleader is actually calling for the criminal prosecution of the NSA and Obama officials for the crime of spying on him and his friends.
This pattern — whereby political officials who are vehement supporters of the Surveillance State transform overnight into crusading privacy advocates once they learn that they themselves have been spied on — is one that has repeated itself over and over. It has been seen many times as part of the Snowden revelations, but also well before that.
In 2005, the New York Times revealed that the Bush administration ordered the NSA to spy on the telephone calls of Americans without the warrants required by law, and the paper ultimately won the Pulitzer Prize for doing so. The politician who did more than anyone to suffocate that scandal and ensure there were no consequences was then-Congresswoman Jane Harman, the ranking Democratic member on the House Intelligence Committee.
But in 2009 — a mere four years later — Jane Harman did a 180-degree reversal. That’s because it was revealed that her own private conversations had been eavesdropped on by the NSA. Specifically, CQ’s Jeff Stein reported that an NSA wiretap caught Harman “telling a suspected Israeli agent that she would lobby the Justice Department to reduce espionage charges against two officials of American Israeli Public Affairs Committee (AIPAC) in exchange for the agent’s agreement to lobby Nancy Pelosi to name Harman chair of the House Intelligence Committee.” Harman vehemently denied that she sought this quid pro quo, but she was so furious that she herself(rather than just ordinary citizens) had been eavesdropped on by the NSA that — just like Pete Hoekstra did yesterday — she transformed overnight into an aggressive and eloquent defender of privacy rights, and demanded investigations of the spying agency that for so long she had defended:
I call it an abuse of power in the letter I wrote [Attorney General Eric Holder] this morning. … I’m just very disappointed that my country — I’m an American citizen just like you are — could have permitted what I think is a gross abuse of power in recent years. I’m one member of Congress who may be caught up in it, and I have a bully pulpit and I can fight back. I’m thinking about others who have no bully pulpit, who may not be aware, as I was not, that someone is listening in on their conversations, and they’re innocent Americans.
The stalwart defender of NSA spying learned that her own conversations had been monitored and she instantly began sounding like an ACLU lawyer, or Edward Snowden. Isn’t that amazing?
The same thing happened when Dianne Feinstein — one of the few members of Congress who could compete with Hoekstra and Harman for the title of Most Subservient Defender of the Intelligence Community (“I can honestly say I don’t know a bigger booster of the CIA than Senator Feinstein,” said her colleague Sen. Martin Heinrich) — learned in 2014 that she and her torture-investigating Senate Committee had been spied on by the CIA. Feinstein — who, until then, had never met an NSA mass surveillance program she didn’t adore — was utterly filled with rage over this discovery, arguing that “the CIA’s search of the staff’s computers might well have violated … the Fourth Amendment.” The Fourth Amendment! She further pronounced that she had “grave concerns” that the CIA snooping may also have “violated the separation of powers principles embodied in the United States Constitution.”
During the Snowden reporting, it was common to see foreign governments react with indifference — until they learned that they themselves, rather than just their unnotable subjects, were subject to spying. The first reports we did in both Germany and Brazil were about mass surveillance aimed at hundreds of millions of innocent people in those countries’ populations, and both the Merkel and Rousseff governments reacted with the most cursory, vacant objections: It was obvious they really couldn’t have cared less. But when both leaders discovered that they had been personally targeted, that was when real outrage poured forth, and serious damage to diplomatic relations with the U.S. was inflicted.
So now, with yesterday’s WSJ report, we witness the tawdry spectacle of large numbers of people who for years were fine with, responsible for, and even giddy about NSA mass surveillance suddenly objecting. Now they’ve learned that they themselves, or the officials of the foreign country they most love, have been caught up in this surveillance dragnet, and they can hardly contain their indignation. Overnight, privacy is of the highest value because now it’s their privacy, rather than just yours, that is invaded.
What happened to all the dismissive lectures about how if you’ve done nothing wrong, then you have nothing to hide? Is that still applicable? Or is it that these members of the U.S. Congress who conspired with Netanyahu and AIPAC over how to sabotage the U.S. government’s Iran Deal feel they did do something wrong and are angry about having been monitored for that reason?
I’ve always argued that on the spectrum of spying stories, revelations about targeting foreign leaders is the least important, since that is the most justifiable type of espionage. Whether the U.S. should be surveilling the private conversations of officials of allied democracies is certainly worth debating, but, as I argued in my 2014 book, those “revelations … are less significant than the agency’s warrantless mass surveillance of whole populations” since “countries have spied on heads of state for centuries, including allies.”
But here, the NSA did not merely listen to the conversations of Netanyahu and his top aides, but also members of the U.S. Congress as they spoke with him. And not for the first time: “In one previously undisclosed episode, the NSA tried to wiretap a member of Congress without a warrant,” the New York Times reported in 2009.
The NSA justifies such warrantless eavesdropping on Americans as “incidental collection.” That is the term used when it spies on the conversations of American citizens without warrants, but claims those Americans weren’t “targeted,” but rather just so happened to be speaking to one of the agency’s foreign targets (warrants are needed only to target U.S. persons, not foreign nationals outside of the U.S.).
This claim of “incidental collection” has always been deceitful, designed to mask the fact that the NSA does indeed frequently spy on the conversations of American citizens without warrants of any kind. Indeed, as I detailed here, the 2008 FISA law enacted by Congress had as one of its principal, explicit purposes allowing the NSA to eavesdrop on Americans’ conversations without warrants of any kind. “The principal purpose of the 2008 law was to make it possible for the government to collect Americans’ international communications — and to collect those communications without reference to whether any party to those communications was doing anything illegal,” the ACLU’s Jameel Jaffer said. “And a lot of the government’s advocacy is meant to obscure this fact, but it’s a crucial one: The government doesn’t need to ‘target’ Americans in order to collect huge volumes of their communications.”
Whatever one’s views on that might be — i.e., even if you’re someone who is convinced that there’s nothing wrong with the NSA eavesdropping on the private communications even of American citizens, even members of Congress, without warrants — this sudden, self-interested embrace of the value of privacy should be revolting indeed. Warrantless eavesdropping on people who have done nothing wrong — the largest system of suspicionless mass surveillance ever created — is inherently abusive and unjustified, and one shouldn’t need a report that this was done to the Benjamin Netanyahus and Pete Hoekstras of the world to realize that.