Is the NSA spying on Congress?

By David Sirota , written on January 3, 2014

From The News Desk

“Has the NSA spied, or is the NSA currently spying, on members of Congress or other American elected officials?”

This is the huge question U.S. Senator Bernie Sanders (I-Vt.) is asking the National Security Administration in a new letter to the agency’s chief, Gen. Keith Alexander. If at first glance this seems like a legislator’s blind fishing expedition prompted by fact-free conspiracy theory, think again. As I noted in a NSFWCORP report back in August, there’s very good reason for every elected official in Washington to suspect - and fear - that the NSA is surveilling them.

We already know the NSA has swept up a “large number” of calls from the Washington, D.C. area code. We know that the NSA has the capacity to rake in up to 75 percent of all Internet traffic. We know that Alexander’s surveillance ethos is to “collect it all” - with “all” presumably including information from elected officials. And we know that in his aggressive lobbying of Congress, Alexander would almost certainly have a coercive use for any incriminating information on lawmakers that his minions might be able to vacuum up.

But maybe most damning of all, we know that the NSA has not denied surveilling Members of Congress. Indeed, when I asked U.S. Rep. Alan Grayson (D-Fla.) if the NSA was keeping files on his colleagues, he recounted a meeting between NSA officials and lawmakers in the lead-up to a closely contested House vote to better regulate the agency:

“One of my colleagues asked the NSA point blank will you give me a copy of my own record and the NSA said no, we won't. They didn't say no we don't have one. They said no we won't. So that's possible.”
Grayson is right: presumably, if the NSA wasn’t tracking lawmakers, it would have flatly denied it. Instead, those officials merely denied lawmakers access to whatever files the agency might have. That suggests one of two realities: 1) the NSA is keeping files on lawmakers 2) the NSA isn’t keeping files on lawmakers, but answered vaguely in order to stoke fear among legislators that it is.

Regardless of which of these realities happens to be the case, the mere existence of legitimate fears of congressional surveillance by an executive-branch agency is a serious legal and separation-of-powers problem. Why? Because whether or not the surveillance is actually happening, the very real possibility that it even could be happening or has happened can unduly intimidate the legislative branch into abrogating its constitutional oversight responsibilities. In this particular case, it can scare congressional lawmakers away from voting to better regulate the NSA.

Thus, Sanders very simple question - “Has the NSA spied on members of Congress?" - is entirely appropriate and warranted. In fact, in one sense, it is amazing it has taken this long for a legislator to publicly demand an answer to the question. But, then, in another sense, maybe that proves the NSA’s scare tactics have worked. Not only have congressional lawmakers done nothing to rein in the agency’s illegal surveillance programs, they haven’t until now even dared to ask whether they are a target of said surveillance.

That’s what makes Sanders letter so important - it breaks the larger omerta surrounding the NSA and, in the process, effectively dares the NSA to try to mete out retribution.

Now sure, the NSA’s record of lying to Congress suggests the Vermont senator may not get a straight answer to his specific question. However, in so boldly putting the question out there, Sanders may end up emboldening other lawmakers to take other actions against the agency - and do so without regard to whether the NSA will deploy its surveillance apparatus against its congressional critics.

Illustration by Brad Jonas