"We could tell you, but then we'd have to"

The U.S. National Security Agency (NSA) implied in a letter this week that it can not answer to Congress fully due to national security.

I. Dissolving the Senate

Some members of Congress are beginning to contemplate if they made a mistake in passing the U.S.A. PATRIOT Act Additional Reauthorizing Amendments Act of 2006, even as others argue the NSA needs less accountability and more freedom to spy on Americans to secure the nation.

The NSA put its Congressional supporters in awkward spot this week, when it basically claim Congress gave it powers of secrecy that trumped Congress's own powers to govern.

Bernie Sanders
The NSA basically refused to answer to Congress regarding whether it spies on them.  Senator Bernie Sanders is demanding the agency come clean about its activities.

Specifically, the NSA refused to (for now, at least) answer a direct question from U.S. Senator Bernard "Bernie" Sanders (D-Verm.) regarding whether the NSA "spies" on Congress.

Sen. Sanders wrote in a leter addressed to retiring/resigning NSA chief General Keith Brian Alexander:

Has the NSA spied, or is the NSA currently spying, on members of Congress or other American elected officials?  “Spying” would include gathering metadata on calls made from official or personal phones, content from websites visited or emails sent, or collecting any other data from a third party not made available to the general public in the regular course of business?

The NSA implies it has turned on Congress, spying on the nation's elected officials.
[Image Source: NYPost]

In a preliminary reply, given to CNN, the NSA more or less shot down the Senator's request.  It refused to directly answer his question, instead stating:

NSA's authorities to collect signals intelligence data include procedures that protect the privacy of U.S. persons. Such protections are built into and cut across the entire process. Members of Congress have the same privacy protections as all U.S. persons.

The NSA has already claimed it does not "spy" on Americans or "collect" their data in the language of the NSA, but it does "touch" their data.  In plain English this means it does spy on Americans and collect their data.  The NSA has also stated that any intercepted data from Americans is held only "temporarily".  Recent leaks reveal "temporarily" in plain English means it is housed in an NSA deep storage facility for 15 years.

II. "Innocent" Lies?

Gen. Alexander -- an official who once fashioned himself a "throne" of sorts to command his "information dominance" strategy -- and his cohorts may be wary of being ruled in contempt of Congress, should they deliver false information.

Gen. Alexander
NSA chief, Gen. Keith Alexander fought his whole career to seize the world's data, including the data of all Americans.  He is at last close to suceeding in this quest for power. [Image Source: Fox News]

NSA administrators, Gen. Alexander, and the Director of National Intelligence (DNI), Gen. James Robert Clapper, Jr., have already given false testimony to Congress several times.

For example Gen. Alexander claimed that NSA spying on Americans had stopped 54 attacks, then later drastically cut that figure, asserting that he "believed" it actually "might" have stopped one or two attacks.  DNI Clapper told Sen. Ronald Lee "Ron" Wyden (D-Oreg.) in Mar. 2013 that the NSA did not collect information on "millions" of Americans -- or at least not willingly.  He later "corrected" that statement, which his office called an innocent error.

James Clapper
Director Clapper's office blames Congress for Director Clapper's false information he shared with Congress.  They argue the former General shouldn't have been forced to answer such tough questions.
[Image Source: AP]

The DNI's general counsel Robert Litt in a letter to the editor of The New York Times this week seemed to say that the falsehoods were Congress' fault for putting intelligence administration officials under pressure and forcing them to prioritizes the need to obey national security laws versus their duty to the Constitution.  He writes:

As a witness to the relevant events and a participant in them, I know [the allegation that DNI Clapper lied under oath] is not true because the program involved was classified.

This incident shows the difficulty of discussing classified information in an unclassified setting and the danger of inferring a person's state of mind from extemporaneous answers given under pressure.

The NSA's refusal to answer Sen. Sanders' question indicates it is highly likely that the NSA is indeed "spying" -- in the traditional sense of the word -- on members of Congress.

III. Senator Wouldn't Let NSA Play Word Games

The NSA collects such information via digital interception and attack scripts, which use automated cybercriminal tactics (such as malware) to attack Americans.  Recent reports also indicate that the NSA is intercepting Americans' electronics, as well, and implanting bugs in them, or "implants" as the NSA calls them.

Assuming that the NSA is spying on Congress, as the NSA's comment would seemingly suggest, Sen. Sanders' letter would put Gen. Alexander in an awkward spot as it was clever enough to cut through the NSA's jargon game, which it has used to dodge past questioning.

Congress Buillding wide
Congress is afforded the same level of liberty as average Americans when it comes to spying, the NSA says. [Image Source: U.S. Congress]

Specifically the NSA and other executive branch intelligence agencies have written their own dictionary of sorts, dubbed United States Signals Intelligence Directive 18, a document classified above top secret.  The document creatively redefines many terms related to spying to obfuscate the federal intelligence community's intent and actions.  In many cases -- including how the NSA collects Americans' data -- the agency definition appears to be remarkably different from the common sense definition.

As President William Jefferson "Bill" Clinton (D) famously remarked about his testimony to Congress during questioning about his affair with Monica Lewinsky, "It depends on what the meaning of the word 'is' is."

But Sen. Sanders was wise to the NSA's game and specifically defined the word "spying" hismelf in the traditional it means to most of his staffers, most of his constituents, and most Americans, for that matter.  In doing so he may have provoked a new strategy from the NSA -- silence.

IV. Ultimate Power?

If it indeed chooses to claim the need for secrecy has trumped the need to give Congress information, the NSA spying program will have entered a new era where in effect it argues that the laws passed by Congress have basically nullified the Constitution, by granting part of the Executive branch (spy agencies) unlimited secrecy from public courts (most of the justice branch), the legislative branch, and the people at large.

The NSA claims that absolute power under the provisions of the PATRIOT Act's 2006 renewal.  The same language in the bill has also been justified for making the FISA Court (FISC) created by the bill a "secret" court, in a sense.  Under the bill, it's a crime to reveal decisions of the FISC.  The FISC has used this threat to drape its general warrants program in a cloak of secrecy.  However, leaks from Edward Snowden revealed that the NSA's general warrants cover all Americans.

Secret courts
 At least the British gave the colonies the courtesy of passing general warrants in a public court.
[Image Source: Before Its News]

Such mass warrants were common in the colonial U.S. as British authorities tried to crack down on American colonies' political and economic freedoms.  A common misconception is that imperial England in the 1700s had no courts; much like America today it did in fact have courts and a legislature, and even offered limited versions of both to the U.S. government.

The general warrants issued by English courts (a plot hatched in the mid-1700s by Charles Pratt, 1st Earl Camden a prominent UK justice at the time) were remarkably similar to the FISA warrants of today, sharing the same two crucial problems -- the assumption that everyone might be a criminal without evidence and a lack of accountability/oversight.  And the king, for all his powers, was arguably no more powerful that President Obama is today, in many regards.
Founding Fathers
The Founding Fathers rebellion from England a decade after the colonial nationalist power stepped up its mass warrants. [Image Source:]

The NSA has admitted to violating the law "accidentally" thousands of times a year. Agents have spied on former lovers.  And documents show the last two Presidents have spied on political rivals (including Quakers and Occupy Wall Street activists).  And yet despite that, it refuses to give Congress full information on its classified spying program.

In fact, it appears the NSA is likely spying on Congress.  The question now becomes whether the NSA's assertion -- that it is the supreme law of the land, above the officials elected by the people and above the Constitution, is correct and whether such a complete surrender of liberty in the name of security is a trade that benefits America. 

Should Americans -- including members of Congress -- pledge blind fealty to the NSA and continue to spend billions in taxes to support its campaign of complete data conquest? 

We The People
There's warring feelings on the relevance of the Constiution in the digital age within both parties.
[Image Source: Jason Mick/DailyTech LLC]

Or should Americans -- including the members of Congress -- fight back to uphold the Constitution?

Sources: Sen. "Bernie" Sanders [press release], The New York Times, CNN

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