The Case of the Denied NSA Wiretap: The System Worked?

| Thu Apr. 16, 2009 10:15 AM EDT

Maybe the system worked.

On Thursday, The New York Times broke the news that the National Security Agency went too far in spying on the emails and phone calls of Americans in recent months. The piece did not make clear what this entailed, and it quoted one official claiming the "overcollection" was an accident. (Blame the computers!) But the piece contained an interesting nugget that caught the eye of Kevin Drum:

And in one previously undisclosed episode, the N.S.A. tried to wiretap a member of Congress without a warrant, an intelligence official with direct knowledge of the matter said.
The agency believed that the congressman, whose identity could not be determined, was in contact — as part of a Congressional delegation to the Middle East in 2005 or 2006 — with an extremist who had possible terrorist ties and was already under surveillance, the official said. The agency then sought to eavesdrop on the congressman’s conversations, the official said.
The official said the plan was ultimately blocked because of concerns from some intelligence officials about using the N.S.A., without court oversight, to spy on a member of Congress.

Kevin notes that this is a big deal and should have set off "alarm bells at every possible level at NSA." But perhaps there is another way of looking at the episode. It could well have been that some overeager NSA snoops were keen to eavesdrop on a member of Congress because they believed that could produce intelligence on an extremist target. They made the case for doing so without getting a warrant. They failed to win permission to do so. Superiors told them, no warrant, no wiretap--at least when it comes to a member of Congress. No harm, no foul?

Call me jaundiced, but this does not strike me as a cause for much worry. The intelligence agencies contain operatives who do at times do look to push the envelope, to skirt restrictions or, in some cases, dodge the law. In this instance, hot-to-eavesdrop NSA employees made a case for using a warrantless wiretap to listen in on a lawmaker. Maybe they had good reason to be interested in his/her conversations, maybe not. But they didn't go ahead and intercept on their own. They sought the authority to spy on the legislator and were ultimately turned down. Perhaps alarm bells did sound. But whether or not there was any ringing, the appropriate decision appears to have been made. This is a far cry from most intelligence scandals--when the abuse actually occurs. It could be seen as an indication that all the protests about the NSA's warantless wiretapping--the blogging, the op-eds, the lawsuits--has increased sensitivity within the intelligence community. Yes, it might be a sign of progress.