Foreign Relations & International Law

Why Do Conservatives Suddenly Sound Like the Intercept Over NSA?

Benjamin Wittes
Wednesday, December 30, 2015, 1:00 AM

The first amusing thing about the Wall Street Journal’s new NSA story is that it has conservatives and pro-Israel types sounding suspiciously like Glenn Greenwald and Edward Snowden. Here's former House Intelligence Committee Chairman Pete Hoekstra, getting in touch with his inner ACLU lawyer:

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The first amusing thing about the Wall Street Journal’s new NSA story is that it has conservatives and pro-Israel types sounding suspiciously like Glenn Greenwald and Edward Snowden. Here's former House Intelligence Committee Chairman Pete Hoekstra, getting in touch with his inner ACLU lawyer:

The Israelis, for their part, are hopping mad—or they're pretending to be, anyway. "Israel does not spy in the US and we expect the same from our great friend. If the reports turn out to be true, Israel must submit and official protest to the US and demand to cease such activity," says Intelligence Minister Yisrael Katz in a remarkably brazen untruth coming from a country that both ran Jonathan Pollard as an agent against the United States and has spent literally decades campaigning for his release. The Wall Street Journal story, by the way, also mentions some more recent technical operations the Israelis have run against their "great friend." I have no problem with these operations. Great friends spy on one another, after all. But please, let's stop the lamentations!

For presidential candidate Ted Cruz, meanwhile, it's all about spying on political enemies: “this administration views Congress, Republicans and sometimes even Democratic members of Congress as their enemy. . . . At times, it seems like they view the American people as their enemy."

The Hill is now reporting that current House Intelligence Chair, Devon Nunes, has announced that he will be looking into the matter. He just issued the following statement: "The House Intelligence Committee is looking into allegations in the Wall Street Journalregarding possible Intelligence Community (IC) collection of communications between Israeli government officials and Members of Congress. The Committee has requested additional information from the IC to determine which, if any, of these allegations are true, and whether the IC followed all applicable laws, rules, and procedures."

The second amusing thing about the Wall Street Journal’s new NSA story is that the complaints have exactly as little merit as do the Left’s hysterical perturbations at every other revelation about the agency.

So let me say about this story exactly what I would normally say in response to tweets from Greenwald and statements from the ACLU: 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.

Let’s summarize the actual relevant facts in the Wall Street Journal’s story. I’m not including the various machinations between the Israelis and the administration over Iran policy in this summary, because those don’t implicate NSA’s authorities. Suffice it to say that the following all takes place against a backdrop of US-Israel disagreement over the Iran negotions and deal and Israeli efforts to persuade Congress not to support the final product.

Here's what the Journal reported:

While deciding to stop eavesdropping on certain friendly heads of state a couple of years ago, “the White House decided to keep certain allies under close watch. . . . Topping the list was Israeli Prime Minister Benjamin Netanyahu.” During the negotiation of the Iran deal, the NSA “captured communications between Mr. Netanyahu and his aides that inflamed mistrust between the two countries and planted a political minefield at home when Mr. Netanyahu later took his campaign against the deal to Capitol Hill.” NSA’s “targeting of Israeli leaders and officials also swept up the contents of some of their private conversations with U.S. lawmakers and American-Jewish groups.” So far, in other words, the story is that NSA spied on a foreign leader at a time when that leader was actively opposing US policy, and indeed, was contemplating unilateral military action against Iran, and captured some intelligence and also some communications with US lawmakers and US persons.

“White House officials believed the intercepted information could be valuable to counter Mr. Netanyahu’s campaign. They also recognized that asking for it was politically risky. So, wary of a paper trail stemming from a request, the White House let the NSA decide what to share and what to withhold, officials said.”

So this is interesting. It shows that though the material was potentially politically valuable, the White House deferred to NSA about what was proper to disseminate and what was not.

How sensitive was the material? The NSA snooping “revealed to the White House how Mr. Netanyahu and his advisers had leaked details of the U.S.-Iran negotiations—learned through Israeli spying operations—to undermine the talks; coordinated talking points with Jewish-American groups against the deal; and asked undecided lawmakers what it would take to win their votes, according to current and former officials familiar with the intercepts.” Oh. You might say it was legitimate foreign intelligence about how a foreign country was engaging the U.S. political system so as to frustrated administration policy objectives.

Was Israel the only allied country exempted from the don’t-spy-on-allied-leaders rule? Apparently not. “Other allies were excluded from the protected list, including Recep Tayyip Erdogan, president of NATO ally Turkey, which allowed the NSA to spy on their communications at the discretion of top officials.”

Was the activity properly disclosed to the intelligence committees? Actually, NSA’s behavior with respect to Israel appears to have been briefed to Congress, as one would hope. “Convinced Mr. Netanyahu would attack Iran without warning the White House, U.S. spy agencies ramped up their surveillance, with the assent of Democratic and Republican lawmakers serving on congressional intelligence committees” (emphasis added).

Ok, but the administration spied on Congress, right? Well, no. By targeting Israeli leaders, it captured incidentally communications with Congress. “Israel’s lobbying campaign against the deal went into full swing on Capitol Hill, and it didn’t take long for administration and intelligence officials to realize the NSA was sweeping up the content of conversations with lawmakers. The message to the NSA from the White House amounted to: ‘You decide’ what to deliver, a former intelligence official said.”

In fact, there are rules covering such interceptions. “The rules were tightened in the early 1990s to require that intelligence agencies inform congressional committees when a lawmaker’s name was revealed to the executive branch in summaries of intercepted communications.” The Journal describes these rules in a separate piece:

According to a 2011 NSA directive which applies to certain types of communications, and which the NSA declassified in November 2013, NSA analysts are required to destroy intercepted communications between foreign targets and officers or employees of the U.S. government, including lawmakers, unless the NSA director issues a waiver. A waiver could be issued if the NSA believes the communications contain “significant foreign intelligence.”

Congressional officials said the NSA has the broad leeway to decide on a case by case basis what constitutes “significant foreign intelligence.”

Former U.S. intelligence officials said in the Obama administration it was not uncommon to keep intercepts that contained conversations with lawmakers. But it was always a struggle, the officials said, to determine if the conversations met the “significant foreign intelligence” bar.

Current and former officials said the NSA has the broad authority to collect and disseminate communications involving non-Americans recounting their contacts with members of Congress, such as readouts of meetings and phone calls which ambassadors regularly send to their foreign ministries.

In this particular case, nothing in the story suggests the rules were not followed. Indeed, “in the months before the deal cleared Congress in September, the NSA removed the names of lawmakers from intelligence reports and weeded out personal information. The agency kept out ‘trash talk,’ officials said, such as personal attacks on the executive branch.” What’s more, “administration and intelligence officials said the White House didn’t ask the NSA to identify any lawmakers during this period.”

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.

It looks to me like everyone did right here.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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