NAPOLITANO: Is the NSA spying on Congress?

Privacy of all Americans being violated by Obama administration

Happy New Year. Just when you thought the National Security Agency spying scandal couldn’t get any worse, it has.

Last week, Sen. Bernard Sanders, Vermont independent, wrote to Gen. Keith Alexander, the NSA’s director, and asked plainly whether the agency has been or is now spying on members of Congress or other public officials.

The senator’s letter was no doubt prompted by the revelations of Edward Snowden to the effect that the federal government’s lust for personal, private data about all Americans and many foreigners knows no bounds, and its respect for the constitutionally protected and statutorily enforced right to privacy is nonexistent.

The senator’s benign and neutral letter came on the heels of a suggestion by Sen. Rand Paul, Kentucky Republican, to the effect that Gen. Alexander’s boss, James R. Clapper, director of national intelligence, perjured himself before a Senate subcommittee when he testified that the NSA is not gathering massive amounts of data from tens or hundreds of millions of Americans.

Gen. Alexander himself is also on the hook for having testified in a highly misleading manner to a House committee when he was asked whether the NSA has the ability to read emails and listen to phone calls and he stated: “No, we don’t have that authority.”

Thus far, Mr. Paul is the only member of Congress possessed of the personal courage to call out Mr. Clapper by arguing that working for the government is no defense to lying under oath.

The gravity of Mr. Paul’s charges was enhanced by revelations subsequent to the Clapper testimony to the effect that Mr. Clapper was told in advance of his testimony what questions would be put to him and then declined an offer afterward to correct any misstatements.

In a new low for members of Congress, the NSA’s own advocate in the House, Rep. Peter T. King, New York Republican, attacked Mr. Paul for attacking Mr. Clapper for lying under oath.

The King argument is: Anything goes when it comes to national security — even lying under oath, even violating everyone’s constitutional rights, even destroying the freedom you have sworn to protect.

All of this is background to the timing of Mr. Sanders‘ letter. That Mr. Clapper perjured himself before and Gen. Alexander misled Congress is nothing new. The punishments for lying to Congress and for misleading Congress are identical: five years per lie or per misleading statement. Hence, the silence from the NSA to Mr. Sanders.

Well, it wasn’t exactly silence, but rather a refusal to answer a simple question. The NSA did reply to Mr. Sanders by stating — in an absurd oxymoron — that members of Congress receive the same constitutional protections as other Americans; that is to say, none from the NSA.

The NSA’s refusal to answer Mr. Sanders‘ question directly is a tacit admission, because we are all well aware that the NSA collects identifying data on and the content of virtually every email, text message and phone call sent or received in the United States.

In fact, just last week, the secret Foreign Intelligence Surveillance Act court renewed the order authorizing massive records collection for the 36th time. If members of Congress are treated no differently than the American public, then the NSA is keeping tabs on every email, text and phone call members of Congress send and receive, too.

This raises a host of constitutional questions. Under the Constitution, Congress and the executive branch are equals. The president — for whom the NSA works — can no more legally spy on members of Congress without a search warrant specifying the members to be spied upon than Congress can legally spy on the president.

Surely the president, a former lecturer in constitutional law at the University of Chicago Law School, knows this.

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