The Wall Street Journal has a story that the NSA spied on Israeli Prime Minister Benjamin Netanyahu and other Israeli government officials, and incidentally collected conversations between US citizens—including lawmakers—and those officials.
US lawmakers who are usually completely fine with NSA surveillance are aghast at this behavior, as both Glenn Greenwald and Trevor Timm explain. Greenwald:
So now, with yesterday’s WSJ report, we witness the tawdry spectacle of large numbers of people who for years were fine with, responsible for, and even giddy about NSA mass surveillance suddenly objecting. Now they’ve learned that they themselves, or the officials of the foreign country they most love, have been caught up in this surveillance dragnet, and they can hardly contain their indignation. Overnight, privacy is of the highest value because now it’s their privacy, rather than just yours, that is invaded.
This reminds me of the 2013 story that the NSA eavesdropped on the cell phone of the German Chancellor Angela Merkel. Back then, I wrote:
Spying on foreign governments is what the NSA is supposed to do. Much more problematic, and dangerous, is that the NSA is spying on entire populations.
Greenwald said the same thing:
I’ve always argued that on the spectrum of spying stories, revelations about targeting foreign leaders is the least important, since that is the most justifiable type of espionage. Whether the U.S. should be surveilling the private conversations of officials of allied democracies is certainly worth debating, but, as I argued in my 2014 book, those “revelations … are less significant than the agency’s warrantless mass surveillance of whole populations” since “countries have spied on heads of state for centuries, including allies.”
And that’s the key point. I am less concerned about Angela Merkel than the other 82 million Germans that are being spied on, and I am less concerned about Benjamin Netanyahu than I am about the other 8 million people living in that country.
Over on Lawfare, Ben Wittes agrees:
There is absolutely nothing surprising about NSA’s activities here—or about the administration’s activities. There is no reason to expect illegality or impropriety. In fact, the remarkable aspect of this story is how constrained both the administration’s and the agency’s behavior appears to have been by rules and norms in exactly the fashion one would hope to see.
So let’s boil this down to brass tacks: NSA spied on a foreign leader at a time when his country had a major public foreign policy showdown with the President of the United States over a sharp differences between the two countries over Iran’s nuclearization—indeed, at a time when the US believed that leader was contemplating military action without advance notice to the United States. In the course of this surveillance, NSA incidentally collected communications involving members of Congress, who were being heavily lobbied by the Israeli government and Netanyahu personally. There is no indication that the members of Congress were targeted for collection. Moreover, there’s no indication that the rules that govern incidental collection involving members of Congress were not followed. The White House, for its part, appears to have taken a hands-off approach, directing NSA to follow its own policies about what to report, even on a sensitive matter involving delicate negotiations in a tense period with an ally.
The words that really matter are “incidental collection.” I have no doubt that the NSA followed its own rules in that regard. The discussion we need to have is about whether those rules are the correct ones. Section 702 incidental collection is a huge loophole that allows the NSA to collect information on millions of innocent Americans.
This claim of “incidental collection” has always been deceitful, designed to mask the fact that the NSA does indeed frequently spy on the conversations of American citizens without warrants of any kind. Indeed, as I detailed here, the 2008 FISA law enacted by Congress had as one of its principal, explicit purposes allowing the NSA to eavesdrop on Americans’ conversations without warrants of any kind. “The principal purpose of the 2008 law was to make it possible for the government to collect Americans’ international communications—and to collect those communications without reference to whether any party to those communications was doing anything illegal,” the ACLU’s Jameel Jaffer said. “And a lot of the government’s advocacy is meant to obscure this fact, but it’s a crucial one: The government doesn’t need to ‘target’ Americans in order to collect huge volumes of their communications.”
If you’re a member of Congress, there are special rules that the NSA has to follow if you’re incidentally spied on:
Special safeguards for lawmakers, dubbed the “Gates Rule,” were put in place starting in the 1990s. Robert Gates, who headed the Central Intelligence Agency from 1991 to 1993, and later went on to be President Barack Obama’s Defense Secretary, required intelligence agencies to notify the leaders of the congressional intelligence committees whenever a lawmaker’s identity was revealed to an executive branch official.
If you’re a regular American citizen, don’t expect any such notification. Your information can be collected, searched, and then saved for later searching, without a warrant. And if you’re a common German, Israeli, or any other countries’ citizen, you have even fewer rights.
In 2014, I argued that we need to separate the NSA’s espionage mission against target agents for a foreign power from any broad surveillance of Americans. I still believe that. But more urgently, we need to reform Section 702 when it comes up for reauthorization in 2017.
EDITED TO ADD: A good article on the topic. And Marcy Wheeler’s interesting take.
Posted on January 5, 2016 at 6:36 AM •