- - Tuesday, January 26, 2016

Every few years it’s revealed that members of Congress may have gotten caught up in intelligence surveillance or an operation of some kind — usually owing to their contacts with foreign leaders or their representatives. It’s reported now that the House Permanent Select Committee on Intelligence is going to look into the matter.

What will they find? Most probably that it’s rather straightforward — and they will likely wish they hadn’t opened this subject. Why? They usually discover that an individual congressman’s name “came up” in the context of a separate investigation or inquiry being run in accordance with the appropriate rules and procedures for that particular type of surveillance.

Translated, this means: It’s probably not a good idea to be communicating with a foreign national security target of interest — unless the congressman understands that the person or entity they are communicating with is a likely subject of some kind of surveillance. And, if he isn’t sure, the prudent thing to do is to ask — it would not be the first time. Stated in terms a New York City politician would understand: Don’t talk to the Mafia unless you assume that someone will be listening.

Next, there is the situation of an active criminal investigation into the activities of a member of Congress or a person he is somehow associated with: Visions of piles of cash in the freezer of a former congressman come to mind. In this case, the lawmaker could simply be committing a crime — like accepting a bribe — and has no immunity from properly approved wiretap surveillance.

These same general principles apply to high-profile elected or appointed government officials who engage in improper or exploitable conduct over the telephone or the Internet.



Perhaps the most notorious example comes from the Starr Report concerning Bill Clinton’s sexual relationship with Monica Lewinsky: “According to Ms. Lewinsky, she and the President had a lengthy conversation [March 29, 1997]. He told her that he suspected that a foreign embassy (he did not specify which one) was tapping his telephones, and he proposed cover stories. If ever questioned, she should say that the two of them were just friends. If anyone ever asked about their phone sex, she should say that they knew their calls were being monitored all along, and the phone sex was just a put-on.”

In a more recent sex scandal involving former army general and CIA Director David Petraeus, the exploitable national security aspects of the behavior are also clear: “For the director of the CIA, being engaged in an extramarital affair is considered a serious breach of security and a counterintelligence threat. If a foreign government had learned of the affair, the reasoning goes, Petraeus or [Paula] Broadwell could have been blackmailed or otherwise compromised.”

Why are these examples of the government getting involved in surveillances of congressmen and high-ranking officials described as “the Viagra effect”? The situations described were of a sexual nature for sure, but more than that, they were, like Viagra, discovered inadvertently as part of an unrelated investigation (Viagra was discovered during research on a potential heart disease treatment).

Specifically, according to Ms. Lewinsky, President Clinton was concerned that their phone sex had been discovered by a foreign power “tapping his telephones.” If that were true, and if our intelligence agencies had been doing their job — as we expect they were — they could have also learned about the phone sex by doing their mission, but a mission directed against the foreign powers referred to by Mr. Clinton. In fact, one would hope that Mr. Clinton was told of this situation and thereafter terminated his phone sex with Ms. Lewinsky for that reason.

Likewise, Mrs. Broadwell allegedly sent a threatening email to an associate of Gen. Petraeus, causing the FBI to investigate, discovering the sexual relationship between the two and the compromise of highly classified information — to which Gen. Petraeus pleaded guilty.

So, do our intelligence services and law enforcement agencies do surveillances of members of Congress and high-ranking government officials?

Not as part of their routine duties and operations, but yes, if the lawmaker or official is himself the subject of criminal investigation, like the congressman with cash in his freezer. And yes, if their names come up in an authorized investigation or surveillance directed against a foreign power or agent, and if that context involves criminal or otherwise exploitable behavior.

However, neither of these exceptions represent a threat to civil liberties — and both are necessary for public accountability and our national security.

Daniel Gallington served in senior national security policy positions in the Office of the Secretary of Defense and the Department of Justice, and as general counsel for the U.S. Senate Select Committee on Intelligence.

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