On whom was John Bolton eavesdropping?

Those telephone intercept transcripts could be Watergate-strength dynamite. And the “protecting sources and methods” excuse for not handing them over doesn’t pass the giggle test. Barbara Boxer is performing a great public service by keeping the Bolton nomination on “hold” until the question is resolved.

Most of the issues raised about the Bolton nomination are (or, on the alternative view, are not) reasons to think that John Bolton wouldn’t make a good UN Ambassador: he’s a bully, he’s a toady, he’s a fanatic, he supplies both his superiors and the public with false information to serve his pre-selected policy goals.

But the telephone-intercept issue is something else again. It’s potentially a scandal of Nixonian proportions.

It’s confirmed, and not denied, that Bolton asked for and got transcripts of NSA telephone intercepts. On its face, there’s nothing improper about such a request.

But it’s charged that Bolton did so, not for any legitimate purpose, but to spy on bureaucratic rivals. That’s a no-no. If he did so merely by getting the transcripts of conversations between foreigners about what various Americans said to them, that would be slightly sleazy but not actually illegal. But if he used the NSA to listen in on his rivals directly, that would be a huge scandal, especially if (for example) the Vice-President’s office or the Office of the Secretary of Defense was involved in getting Bolton access to those transcripts (which NSA doesn’t hand out casually).

The Senate Select Committee on Intelligence has now seen redacted versions of the transcripts. It’s unknown whether the redaction was so profound as to conceal the identities of the participants. What is known is that Sen. Roberts, who as a loyal GOP footsoldier might have been expected to quickly say “Move along, folks. Nothing to see here,” instead said the transcripts raise questions to which he wants answers.

Barbara Boxer is perfectly right to have placed a “hold” on the Bolton nomination until those transcripts have been shared with the Foreign Relations Committee. Bolton is an unattractive character to start with, and the Democrats won’t lose any political skin by opposing him in any case. But the intercept issue is much bigger than Bolton.

Footnote The Administration line is that giving the transcripts to the Foreign Relations Committee would “compromise intelligence sources and methods.” And Richard Lugar is solemnly repeating that line. But the only reasonable comment on this claim is: Huh?

We already know the source of the information: it’s a transcript of a telephone conversation. And we already know the method by which it was obtained: intercepting that telephone conversation, as the NSA does routinely. So what’s left to compromise?

The only rational explanation I can invent is that the NSA’s habit of catching everything that flies, while an open secret, is still officially a secret. And the practice, however legitimate, is almost certainly technically illegal.

The wiretapping laws treat a conversation as having been “intercepted” (and, if it’s a conversation between U.S. persons and no Title III warrant has issued, illegally intercepted) when the conversation is recorded, not when the record is transcribed. So if, as widely reported, the NSA records everything but only transcribes the international traffic it’s legally entitled to listen in on, it’s probably violating the letter of the law every day. I’m told that there is, as a technical matter, no way to intercept only conversations that cross national boundaries. Maybe Title III needs to be amended.

Still and all, covering up the fact that the NSA routinely breaks the letter of the law is really not the same thing as protecting intelligence sources and methods. And since the transcripts would be just as secret, legally, after being shown to the Foreign Relations Committee as they are now, it’s hard to see the “sources and methods” claim as anything but an insult to the intelligence of the press and the public.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com