Commentary by JAMES BOVARD, CONTRIBUTOR | July 17, 2021
Fox News host Tucker Carlson’s charge that the National Security Agency illegally spied on him and leaked his emails is enraging prominent liberals. Carlson sought “to sow distrust [of the NSA], which is so anti-American,” declared MSNBC analyst Andrew Weissman, formerly the chief prosecutor for Special Counsel Robert Mueller. CNN senior correspondent Oliver Darcy ridiculed Carlson for effectively claiming that “I’m not a crazy person overstating a case!”
When did the NSA become as pure as Snow White? Do pundits presume that there is a 24-hour statute of limitation for recalling any previously-disclosed NSA crimes and abuses?
The Carlson controversy cannot be understood outside the context of perennial NSA abuses. The NSA possesses a “repository capable of taking in 20 billion ‘record events’ daily and making them available to NSA analysts within 60 minutes,” the New York Times reported. The NSA is able to snare and stockpile many orders of magnitude times more information than did East Germany’s Stasi secret police, one of the most odious agencies of the post-war era.
The FBI, for its part, is permitted to rummage through the seized data under strict restrictions. In 2018, the Foreign Intelligence Surveillance (FISA) court slammed the FBI for abusing that database with warrantless searches that violated Americans’ rights. After the FBI promised to repent, the FISA court to permitted FBI agents to continue rummaging in NSA troves. In April, the FISA court revealed that the FBI surveillance crime wave continues.
The FBI conducted warrantless searches of the data trove for “domestic terrorism,” “public corruption and bribery,” “health care fraud,” and other targets — including people who notified the FBI of crimes and even repairmen entering FBI offices. If you sought to report a crime to the FBI, an FBI agent may have illegally surveilled your email. Even if you merely volunteered for the FBI “Citizens Academy” program, the FBI may have illegally tracked all your online activity.
In 2019, the FBI unjustifiably searched the database for information on 16,000 people “even though only seven of them had connections to an investigation,” the New York Times reported. FISA court Chief Judge James Boasberg lamented “apparent widespread violations” of the legal restrictions for FBI searches but shrugged them off and permitted the scouring of Americans’ personal data to continue.
On June 30, Americans learned that one of NSA’s most intrusive surveillance engines is still being widely abused. In 2013, Edward Snowden revealed that the XKeyscore program was being used to commandeer the email and Internet data of any American who was caught “searching the web for suspicious stuff.” XKeyscore enables NSA analysts to wiretap anyone simply by entering the target’s email address into the database. Six months after Snowden’s disclosures began, federal judge Richard Leon issued a ruling denouncing the NSA surveillance regime as almost Orwellian: “I cannot imagine a more indiscriminate and arbitrary invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval.”
Travis LeBlanc, a member of the Privacy and Civil Liberties Oversight Board, released his declassified dissent to that civil liberties watchdog board recent report on XKeyscore. Hundreds of illegal or prohibited searches were apparently committed using XKeyscore in 2019. LeBlanc complained that the oversight board failed to ask “how many U.S. persons have been impacted by XKeyscore, how much data the program collects and analyzes, how widely information analyzed through XKeyscore is shared.”
However, the oversight board did not even “request specific information” about violations of U.S. law by NSA.
Americans have probably not seen even the tip of the iceberg of NSA abuses. NSA apparently never even bothered doing a formal analysis of the legality or constitutionality of XKeyscore until 2016, after the oversight board specifically requested such information. LeBlanc told the Washington Post: “What concerns me most is that we have a very powerful surveillance program that eight years or so after exposure, still has no judicial oversight, and what I consider to be inadequate legal analysis and serious compliance infractions.”
Oregon Democratic Senator Ron Wyden, the most dogged congressional watchdog of federal spying, declared that “Americans still know far too little about the government’s surveillance activities… and how it threatens their privacy.” Wyden, a member of the Senate Intelligence Committee, is muzzled from disclosing the NSA’s confidential dirt.
NSA is like an accused murderer who continually proclaims his innocence up until the moment a video surfaces of him pulling the trigger. After Carlson stated that his emails were being intercepted, the NSA issued a statement declaring that “Tucker Carlson has never been an intelligence target of the Agency… With limited exceptions (e.g. an emergency), NSA may not target a US citizen without a court order that explicitly authorizes the targeting.”
However, 90% of the people whose emails and other data were dragged into NSA surveillance dragnets were not NSA’s actual targets, according to a 2014 Washington Post analysis based on data that Snowden provided. Shortly before Snowden’s disclosures began, National Intelligence Director James Clapper lied to Congress when he denied that the NSA collects “any type of data at all on millions, or hundreds of millions of Americans.” He was never charged for that crime, thereby encouraging falsehoods by every subsequent top federal intelligence official.
On July 7, Axios reported that “Carlson was talking to U.S.-based Kremlin intermediaries about setting up an interview with Vladimir Putin shortly” before he accused the NSA of spying on him. U.S. government officials became aware of Carlson’s effort to interview Putin. Axios noted the possibility that “one of the people Carlson was talking to as an intermediary to help him get the Putin interview was under [NSA] surveillance as a foreign agent.”
But NSA would still be prohibited from disclosing emails from an American citizen after “unmasking” his identity. As journalist Glenn Greenwald noted, “It is one of the gravest crimes in the U.S. code for the NSA to leak the contents of communications that it intercepts between a foreign official and an American citizen.”
In an interview scheduled for release on Monday (previewed by the Daily Mail), Carlson explained that he went public with his NSA charge “defensively… I don’t have subpoena power. I can’t arrest anybody. I can’t make them answer questions.” An investigative producer for Carlson’s show did file a Freedom of Information Act (FOIA) request with the NSA, seeking “any call records, texts, or emails the NSA has obtained from journalist Tucker Carlson’s cell phone or email,” among other information.
Unfortunately, FOIA has long since become a sham. The Obama White House drove nails into the FOIA coffin by inventing the doctrine of “White House equities,” permitting political appointees to delay embarrassing disclosures for years (instead of the 20 business days the law requires). Obama’s Justice Department formally proposed to permit federal agencies to falsely claim that FOIA-requested documents did not exist. Such travesties did not deter the media from repeating Obama’s boast of having “the most transparent administration in history.”
NSA’s power and prerogatives have been buttressed by the vast increase in federal secrecy in recent decades. Since the 1990s, the number of documents classified annually by the feds increased more than tenfold. Federal agencies are now creating trillions of pages of new secrets each year, and each page is backed by a federal fist waiting to crush anyone who makes an unauthorized disclosure. Congress and the media have been complicit in tolerating the Iron Curtain that shrouds far too many federal abuses.
But Carlson has nothing to fear because the NSA is constrained by checks and balances elsewhere in the government, right? Fat chance. Any pretense that Deep State surveillance agencies were on a legal leash should have been destroyed by RussiaGate.
In December 2019, the Justice Department Inspector General reported that the FBI made “fundamental errors” and persistently deceived the FISA court to authorize surveilling a 2016 Donald Trump presidential campaign official, Carter Page. Former FBI assistant general counsel Kevin Clinesmith admitted to falsifying key evidence to secure the FISA warrant to spy on the Trump campaign.
As a Wall Street Journal editorial noted, Clinesmith “changed an email confirming Page had been a CIA source to one that said the exact opposite, explicitly adding the words ‘not a source’ before he forwarded it.” A federal prosecutor declared that the “resulting harm is immeasurable” from Clinesmith’s action. But at the sentencing hearing, Judge Boasberg gushed with sympathy: “Mr. Clinesmith has lost his job in government service—what has given his life much of its meaning.” Scorning the federal prosecutor’s recommendation for jail time, Boasberg gave Clinesmith a wrist slap—400 hours of community service and 12 months of probation.
The FISA court has gone from pretending that federal surveillance violations don’t occur to pretending that such crimes don’t matter. Practically the only remaining task is for the FISA court to cease pretending Americans have any constitutional right to privacy.
Tucker Carlson may or may not be in NSA cross-hairs at the moment, but there are plenty of other Americans who should be sweating. Capitol Police acting Chief Yogananda Pittman told Congress that the Jan. 6 riots were “a terrorist attack by tens of thousands of insurrectionists.” Does federal law enforcement believe that any Trump supporter within a mile radius of the U.S. Capitol that day was a terrorist?
President Joe Biden’s nominee to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives David Chipman favors banning more than ten million AR-15 rifles owned by American citizens. The Biden administration is claiming a right to know whether every American has been vaccinated for Covid and will be sending its agents door-to-door to harangue people who are unjabbed. Considering the Biden administration’s histrionic rhetoric on “domestic terrorism,” guns, and COVID-19, it would take only a few tweaks in NSA searches to pull up vast troves of new offenders who could be targeted.
Glenn Greenwald recently observed that “the Democratic Party and journalism, in general, has aligned with the CIA, the NSA and the FBI, and has aligned and merged with the security state.” But there was a time when Democrats were eloquent defenders against federal intrusions.
Democrat House Majority Leader Hale Boggs of Louisiana explained in 1971 that “Freedom of speech, freedom of thought, freedom of action for men in public life can be compromised quite as effectively by the fear of surveillance as by the fact of surveillance.”
Democratic Sen. Sam Ervin of North Carolina observed that same year, “When people fear surveillance, whether it exists or not, when they grow afraid to speak their minds and hearts freely to their Government or to anyone else, then we shall cease to be a free society.” A few decades earlier, Justice Robert Jackson, who had been Attorney General for FDR and the chief U.S. prosecutor at the Nuremberg war crime trials, declared, “Search and seizure rights… belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart.”
Americans cannot acquiesce to illegal government surveillance without forfeiting their right to the tattered remnants of their privacy. The feds need to come clean on any surveillance and leaks that may have targeted Tucker Carlson or otherwise violated his rights. The Carlson case is a wake-up call to Congress and concerned citizens to stop any new war on dissent.
ABOUT THE COMMENTATOR:
James Bovard is the author of “Attention Deficit Democracy,” “The Bush Betrayal,” “Terrorism and Tyranny,” and other books. Bovard is on the USA Today Board of Contributors. He is on Twitter at @jimbovard. His website is at www.jimbovard.com