The Obama administration's illegal spying may
have been worse than Watergate.
By Glenn Harlan Reynolds
In 1972, some employees of
President Nixon’s re-election committee were caught when they broke
into the Democratic National Committee headquarters to plant a bug. This
led to Nixon’s resignation and probably would have led to his felony
prosecution had he not been pardoned by his successor, Gerald Ford.
But if a single bugging of the
political opposition is enough to bring down a presidency — and maybe lead
to an unprecedented criminal prosecution of a former president — then what
are we to make of the recently unveiled Obama administration program of
massively spying on political opponents in violation of clearly established
law?
Because that’s what was
unveiled last week.
When the FBI wants to wiretap
a domestic suspect, it goes to court for a warrant. But
when listening
in on foreigners, the National Security Agency hoovers up a vast amount of
stuff in bulk: Conversations between foreigners, conversations between
Americans and foreigners, conversations between Americans who mention
foreigners, and sometimes just plain old conversations between Americans.
There are supposed to be strict
safeguards on who can access the information, on how it can be used and on
protecting American
citizens’ privacy — because the NSA is forbidden
by law from engaging in domestic spying. These safeguards were ignored
wholesale under the Obama administration, and to many Republicans, it is no
coincidence that intelligence leaks damaged Democrats' political opponents in
the 2016 election.
A report from journalists John
Solomon and Sara Carter last week, based on recently
declassified documents, exposed what went on. As Solomon and Carter write:
More than 5%, or one out of
every 20, searches seeking upstream Internet data on Americans inside
the NSA’s so-called Section 702 database violated the safeguards President
Obama and his intelligence chiefs vowed to follow in 2011, according to one
classified internal report reviewed by Circa. ...
The normally supportive court censured
administration officials, saying that the failure to disclose the extent of the
violations earlier amounted to an “institutional
lack of candor,” and that the improper searches constituted a “very serious
Fourth Amendment issue,” according to a recently unsealed court document dated
April 26.
The admitted violations
undercut one of the primary defenses that the intelligence community and Obama
officials have used in recent weeks to justify their snooping into incidental
NSA intercepts about Americans. ... The American Civil Liberties Union said
the newly disclosed violations are some of the most serious to ever be
documented and strongly call into question the U.S. intelligence community’s
ability to police itself and safeguard Americans' privacy as guaranteed by the
Constitution’s Fourth Amendment protections against unlawful search and
seizure.
As former anti-terrorism
prosecutor and national security expert Andrew McCarthy writes
in National Review, this is a very serious abuse. And potentially a
crime. If such material were leaked to the press for political advantage,
that's another crime.
McCarthy observes: “Enabling of
domestic spying, contemptuous disregard of court-ordered minimization
procedures (procedures the Obama administration itself proposed, then
violated), and unlawful disclosure of classified intelligence to feed a media
campaign against political adversaries. Quite the Obama legacy.”
Will the Justice Department
investigate and prosecute former Obama officials? It seems hard to
imagine. But then, so did Nixon’s resignation, when the Watergate burglary
was first discovered.
This debacle also raises
serious questions about the viability of our existing “intelligence community.”
In the post-World War II era, we gave massive power to the national security
apparatus. In part, that power was granted in the belief that
professionalism and patriotism would lead people in those agencies to refuse to
let their work be used for partisan political purposes.
It now seems apparent that we
overestimated the patriotism and professionalism of the people in these
agencies, who allowed them to be politically weaponized by the Obama
administration. That being true, if we value democracy, can we permit them to
exist in their current form?
That’s a decision that
President Trump and Congress will have to face. Ironically, they may be
afraid to — for fear that intelligence agencies will engage in further
targeted political leaks.
Glenn Harlan Reynolds, a University of
Tennessee law professor and the author of The New School: How the Information Age Will Save American
Education from Itself, is a member of USA TODAY's Board
of Contributors.
