Yes, we're well down the path to a police state, but let us stop and smell the roses along the way. Thus shall we make the process of enslavement at least mildly entertaining.
Senators Ron Wyden and Mark Udall, members of the Select Committee on Intelligence, for years have been expressing concerns about abuses of power by the executive branch but say they can't tell us what they're worried about because it's classified. That has led to almost-comical statements like this one (by Udall): "When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry"—but for now, sadly, he must leave us in suspense. I guess we'll find out in an HBO miniseries in a couple of decades, which we will then be jailed for watching.
Apparently, though, Wyden has been bugging the intelligence community (get it? bugging! the word has a double meaning in this context, you see) to declassify some words about what it has been doing so that he, a United States Senator, could say the words in public. In a letter released on Friday, the Office of the Director of National Intelligence agreed to let him say some of them. Specifically, he can say that while the secret FISA court has "repeatedly held" that the government has complied with the Fourth Amendment,
- It is also true that on at least one occasion the [FISA court] held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.
(Emphasis added.) He is also permitted to say:
- I believe that the government's implementation of Section 702 of FISA has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.
"Please be advised," the letter continues, "that this declassification decision applies only to the precise three statements that you submitted for review and the other information in this letter." That is, the details of this illegal conduct, presumably the ones Wyden and Udall already know but are afraid to tell us, remain classified.
The only real news here is that the intelligence community (or as the letter puts it, the "Intelligence Community") has now admitted it broke the law. Back in 2009, Congress was already investigating reports that the NSA engaged in what was being called "overcollection." You know, when you put it that way, it really doesn't sound like a big deal. You're out there collecting stuff, and sometimes you just overcollect. Is that a problem, really?
Kind of: "Say you get an [FISA court] order to monitor a block of 1,000 e-mail addresses at a big corporation," a senior intelligence official was quoted as saying, "and instead of just monitoring those, the NSA also monitors another block of 1,000 e-mail addresses at that corporation. That is the kind of problem they had." Oh, that kind of problem. Sure, you could call that "violating a court order," or you could be a team player and call it an "overcollection problem." Whose side are you on, anyway?
According to the 2009 report, at that time the administration "said it had taken comprehensive steps to bring the security agency into compliance with the law" after the "overcollection problem" turned up. And, again, that might sound like an admission that the NSA had not previously been in compliance with the law, or, put less patriotically, had been breaking it. But however you put it, this was back in 2009 and comprehensive steps were taken to prevent any continuance of noncompliance. So, can we assume the admitted violations all happened before that?
You'll have to take their word for it, because the most open and transparent administration in history is not giving you any details, such as just how many U.S. persons its Intelligence Community has been eavesdropping on. Of course, as we saw just last month, the NSA claims it doesn't know and can't find out how many people's privacy it's violated because an investigation would violate people's privacy. (Like I said then, at least they have a sense of humor about the whole thing.)
Less comical is the fact that a United States Senator is being told by the Intelligence Community what he can and cannot say. To be clear, the price he'd pay for giving us the details would be limited to the loss of his security clearance; under the Constitution, "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." Art. I, § 6. For example, a senator once read parts of the then-still-classified Pentagon Papers into the record, and the Supreme Court held it was "incontrovertible" that doing so was privileged. (This, written when Bush was the culprit, discusses the issue in more detail.)
Hopefully the current group would feel the same way. I'm a little concerned, though, that somebody's eyes might wander upward and see the exception for "treason," remember the relative lack of complaint about the treatment of Bradley Manning for leaking classified material, and get to thinking. We're not that far down the path yet, but the smell is getting more and more unpleasant.
(A version of this was first published at Forbes.com last week.)
