Breaking! NSA Over-reaches, Life Goes On

What can we gather from today’s revelations, from James Risen and Eric Lichtblau of the New York Times, that the National Security Agency engaged in the improbable crime of “overcollection”— “significant and systemic” domestic eavesdropping that exceeded even the extravagant authority provided to the agency by the FISA Amendment Act of 2008?  For starters, it’s time to finally acknowledge that overstretch and excess by intelligence agencies like the NSA are not the exception but the rule; as a general matter, the professional imperatives for an intelligence collector all align in favor of overcollection.  And as a technical matter, the mammoth, high-tech communications vacuums operated by the NSA mean that access to a given telecom network will always take precedence over “safeguards,” “minimization procedures,” and other ex post facto measures to protect the phone calls, emails, and personal data of innocent individuals. 

The lily-gilding rhetoric of Congressional democrats who supported the 2008 law notwithstanding, privacy protections are almost always an afterthought, a post-script to the non-negotiable fact of technical collection. The peculiar tragedy of the Protect America Act, the FISA Amendment Act, and the whole sordid narrative of the “warrantless wiretapping controversy” is that the very institution which might be expected to serve as a check on the almost innate zeal of the intelligence establishment—the Congress—was so willing to write any relevant safeguards out of the picture.

In that light, it’s not at all surprising to learn that the NSA has been pushing the envelope. It’s just surprising to think, after such a dramatic augmentation of surveillance authority coupled with so thorough an evisceration of meaningful safeguards, that there was any envelope left to push. It might be tempting to conclude that the sole semi-specific detail in Risen and Lichtblau’s scoop—that several years ago the NSA contemplated warrantless surveillance of a congressman—will resonate with the narcissism, paranoia, and sense of indignation on Capitol Hill and actually generate a meaningful investigation.

But really, does anyone believe that? In October a former NSA linguist revealed to ABC News that the agency had eavesdropped on hundreds of American citizens living overseas. In November another former eavesdropper told ABC that the NSA monitored the “private life” of Tony Blair. In January a third former NSA employee told MSNBC that the agency has been wiretapping journalists. None of these stories prompted any congressional investigation or inquiry into the effectiveness of the few legal and technical safeguards that are left, and it seems decidedly unlikely that congress will take any meaningful action now.

In fact, the greatest irony of the Times piece is that the overcollection was discovered not by Congress, the judiciary, or the press—but by the Justice Department. How faithfully Barack Obama and his attorney general, Eric Holder, will adhere to the rule of law remains very much an open question.  But after eight long years of the “unitary executive” and a surveillance law that was just a few provisions shy of an out-and-out carte blanche, intelligence excesses appear to be so bad that with no one else willing to police it, the executive branch is forced to police itself.