Whatever the National Security Agency was doing with Angela Merkel’s cellphone number for the past 10 years may have been poorly conceived — even reckless — but it didn’t violate U.S. law.
No violation of U.S. law is associated with the collection by the NSA’s Signals Intelligence Directorate (SID) — as disclosed by the Guardian newspaper last month — of phone numbers of foreign government officials and politicians. Nor is it illegal for the NSA to receive from French and Spanish security agencies for storage and possible analysis millions of numbers of their citizens.
Recent public disclosures made possible by former NSA contractor Edward Snowden’s downloading of thousands of documents have focused on the NSA’s gathering records of foreign leaders or their nations’ citizens. Several disclosures have been timed to coincide with Secretary of State John F. Kerry’s visits to certain countries.
As Congress considers reforms in the NSA’s collection of electronic intelligence, the focus should be on legislation protecting the privacy of U.S. citizens, not foreigners overseas, no matter who the foreigners are or what positions they hold.
“Reform,” according to Webster’s New World Dictionary, is “to make better by removing faults and defects” or “to make better by putting a stop to abuses or malpractices or by introducing better procedures.”
Lawmakers should realize that they are dealing with intelligence gathering and, in many cases, with spying and other clandestine operations that are illegal in the countries in which they take place. Members should also remember this phrase: “Nations have no permanent friends and no permanent enemies — only permanent interests.”
Under the U.S. Constitution, the president, as both commander in chief of the armed forces and maker of foreign policy, runs the nation’s intelligence operations. Congress has an oversight function and, through legislation, can seek to limit what the intelligence community does, especially when U.S. citizens are involved or the actions are occurring on U.S. territory.
NSA officials routinely refer to Presidential Executive Order 12333 as the “foundational” authority for their collection, retention, analysis and dissemination of foreign signal intelligence information. That order serves as a basis for collecting communications by foreign persons that occur outside the United States.
The United States isn’t the only country with an intelligence agency carrying out electronic intercepts on a vast scale, though the United States may be the only country that has multiple forms of internal oversight — executive, congressional and judicial — supervising such operations. The United States may also be one of the few countries that limits, through law, the interception of its citizens’ phone calls or electronic messages unless authorized by a court.
When U.S. citizens’ communications are intercepted by operations aimed at foreign intelligence targets, there are ways to minimize — or remove — their identities.
In a recent statement, published this week in Der Spiegel magazine, Snowden said, “We cannot forget that mass surveillance is a global problem and needs a global solution.” Of course, he wrote that only after describing the NSA and the GCHQ, the United Kingdom’s version of the NSA, as appearing “to be the worst offenders.”
It will be interesting to see which other countries, including those that initially appeared upset about NSA activity, will have their legislatures begin probes of their security services’ electronic-intercept systems.
In Der Spiegel, Snowden made a point he’s made before. “The world has learned a lot in a short amount of time,” he said, “about irresponsibly operated security agencies and, at times, criminal surveillance programs.”
Snowden’s materials did force a disclosure by the NSA in mid-September of what has been described as “a couple” of willful violations of surveillance intercepts over the past decade. In a Sept. 11, 2013, letter to Sen. Charles E. Grassley (R-Iowa), NSA Inspector General George Ellard wrote about “12 substantiated instances of intentional misuse of signals intelligence (SIGINT) authority” in cases that went back to 2003. Ellard also said he had two open investigations and one allegation that might lead to an investigation.
Note that none of those cases involved two programs central to early public concerns and congressional interest: the massive collection of U.S. telephone metadata, the so-called 215 program; and the collection of foreign-origin phone, e-mail or Web data, the 702 program. Instead, they all were foreign intelligence collections under E.O. 12333.
It turns out seven cases involved civilian employees, most serving overseas, trying to gather information about spouses, girlfriends or boyfriends. They were discovered through polygraphs, interviews or audits, and in each case the individual resigned before disciplinary action was taken.
One civilian abroad researched numbers she had obtained at social occasions to make sure that she was not dealing with “shady characters.” She also resigned. Another civilian abroad was found, through polygraph testing, to have accessed information on two foreign nationals. He was denied promotion and suspended for 10 days without pay.
In describing these cases at an Oct. 29 hearing of the House Permanent Select Committee on Intelligence, the NSA director, Army Gen. Keith B. Alexander, said: “We hold ourselves to that same standard no matter if we operate here or abroad. If we do something that does not fall within an intelligence requirement, it is wrong. We report it. We hold our people accountable.”
As would-becongressional reformers of the NSA do their work, it would be worth their while to pay attention to another adage, “First, do no harm.”