Bush’s recess appointment of John Bolton may put an end to controversy concerning a frightening revelation to emerge from his confirmation hearings—the extent of warrantless eavesdropping on US citizens by the government. Patrick Radden Keefe, author of Chatter: Dispatches from the Secret World of Global Eavesdropping, warns in an Aug. 10 New York Times op-ed that the real scandal—that the National Security Administration routinely shares intercepted data with the State Department—is likely to be forgotten now that Bolton’s appointment is a done deal. But even Keefe doesn’t address certain key questions. Like, why is it legitimate for the NSA to be listening in on us in the first place? Why shouldn’t foreigners have the same right to privacy that US citizens don’t have either but are at least supposed to?
President George W. Bush’s use of a recess appointment to install John Bolton as America’s representative at the United Nations may have ended an ugly confirmation battle, but it unfortunately left unresolved a significant mystery that had fueled Democratic questions about Bolton throughout the summer.
In April, Bolton told Congress that when he was an undersecretary at the State Department, he repeatedly circumvented the privacy protections that govern federal eavesdropping on American citizens without a warrant. In Bolton’s defense, it emerged that his actions were in keeping with a widespread – though unacknowledged – practice.
But even as enshrined in the Foreign Intelligence Surveillance Act of 1978, the prohibition on domestic spying without a warrant has always been something of a legal fiction: The standard practice is to go ahead and eavesdrop on the conversations of foreigners, even if the party on the other end of the line is an American citizen.
Summaries of these conversations are then distributed throughout government agencies. The privacy of the American citizens involved is putatively preserved by replacing their names with the phrase “U.S. person” in the summary.
During the Bolton hearings, however, it emerged that when he was at the State Department, Bolton on several occasions received summaries of intercepts between foreigners and “U.S. persons” and requested that the spy agency tell him who those Americans were. The agency complied.
Following this revelation, Newsweek discovered that from January 2004 to May 2005, the National Security Agency had supplied names of 10,000 American citizens in this informal fashion to policy makers, intelligence services and law enforcement agencies.
Democrats took advantage of Bolton’s transgression in the nomination battle, playing up his reputation as a sharp-elbowed brute and implying that he might have used the intercepts to intimidate Washington adversaries. Bolton, for his part, told Congress that he asked the spy agency for the names in order “to better understand” summaries of intercepted conversations: “It’s important to find out who is saying what to whom.”
If the National Security Agency provides officials with the identities of Americans on its tapes, what is the use of making secret those names in the first place? More troubling still is the apparent lack of guidelines or controls on this process. Worse, the Senate has shown little concern over the agency’s practices beyond the specifics involving Bolton.
Obviously, the system is badly broken. Unfortunately, because the issue arose as part of a story about the alleged sins of John Bolton, the controversy will likely fall by the wayside now that the confirmation battle has subsided.
This would be lamentable: The revelations amount to a reversal of what intelligence officials have been claiming for 30 years. Heads of the NSA are famous for saying very little about what the agency does, but the one thing that its various directors, under both Republican and Democratic administrations, have said repeatedly is that they do not eavesdrop on American citizens.
We now know that this hasn’t been the case – the agency has been listening to Americans’ phone calls, just not reporting any names. And Bolton’s experience makes clear that keeping those names confidential was a formality that high-ranking officials could overcome by picking up the phone.
The big lesson of the Bolton hearings is that there are very few legal protections or policies separating the kind of snooping the United States does on its citizens today from what it did in the bad old pre-Church Committee days. The significance of this revelation will outlive its partisan utility.
Rather than drop the matter, Congress should look more deeply into how the intelligence services deal with information they glean about American citizens, and it should ensure that General Keith B. Alexander, who took over as director of the National Security Agency last week, makes it a priority to clarify for the public precisely who can snoop on whom, and when.