Raw intelligence data that likely includes phone calls and emails of American citizens is being provided by the NSA to Israeli intelligence, according to a top secret document provided to The Guardian by former NSA contractor and whistleblower Edward Snowden.
Glenn Greenwald, Laura Poitras and Ewen MacAskill report:
Details of the intelligence-sharing agreement are laid out in a memorandum of understanding between the NSA and its Israeli counterpart that shows the US government handed over intercepted communications likely to contain phone calls and emails of American citizens. The agreement places no legally binding limits on the use of the data by the Israelis.
A memorandum of understanding (MOU) or agreement between the NSA and the Israeli-Sigint National Unit (ISNU) “pertaining to the protection of US persons” supposedly was drafted to ensure that the provision of intelligence data, including “raw” intelligence data “not reviewed for foreign intelligence purposes or minimized” was “consistent with the requirements placed upon the NSA by US law and Executive Order to establish safeguards protecting the rights of US persons under the Fourth Amendment to the United States Constitution.” But, if raw and unreviewed data is being handed over, how could the NSA know whether it is abiding by any requirements?
The agreement indicates that the “NSA has agreements with Australia, Canada, New Zealand and the United Kingdom that require it to protect information associated with UK persons, Australian persons, Canadian person and New Zealand persons using procedures and safeguards similar to those applied for US persons.” This suggests the possibility that raw and unreviewed data on the citizens of Australia, Canada, New Zealand and the United Kingdom may have wound up in the possession of Israeli intelligence as well.
As The Guardian report highlights, the agreement explicitly states it is “not intended to create any legally enforceable rights and shall not be construed to be either an international agreement or a legally binding instrument according to international law.” The agreement was both intended to protect the rights of people, but it is not legally binding so any violations would not result in any need for agents responsible for violations to be held accountable.
This secret deal was agreed upon in principle in March 2009 (though the memorandum is not dated).
There is a section that lists off the responsibilities that ISNU has to not use information on US persons, however, that does not make this arrangement acceptable. This section of the agreement is particularly concerning:
Destroy upon recognition any communication contained in raw SIGINT provided by NSA that is either to or from an official of the US Government. “US Government officials” include officials of the Executive Branch (including the White House, Cabinet Departments and independent agencies); the US House of Representatives and Senate (members and staff); and the US Federal Court system (including, but not limited to, the Supreme Court). “Officials” include civilian and military members and employees performing the official business of these branches of government, and is independent of seniority or position.
It also outlines:
Process only for purposes unrelated to intelligence against the US any communications contained in raw SIGINT provided by NSA that include references to activities, policies and views of officials.
This is alarming because it appears this makes it possible for Israel to share what a US citizen might be saying about a US government policy or activity or the views of a US official. Such an understanding would clearly enable the targeting of political activists while giving the NSA the cover to claim it did not think it was intercepting such communications because it never reviewed those communications because they were provided to Israel.
The section on US government officials also is alarming. It suggests the NSA intercepts data on US government officials. There is no information on whether the data is collected or stored, but, certainly, if the NSA is establishing parameters of use for such information if found in raw intelligence, that means interception of US government officials’ communication is taking place.
In 2009, it became known that the NSA had obtained FISA court authorization to wiretap Representative Jane Harman. She was caught allegedly exchanging favors with a suspected Israeli agent, but, instead of allowing the FBI to open up an investigation, Attorney General Alberto Gonzales used the opportunity to maintain Harman’s support for the warrantless wiretapping program.
Additionally, there’s this part of The Guardian report that is critical context for the above:
In another top-secret document seen by the Guardian, dated 2008, a senior NSA official points out that Israel aggressively spies on the US. “On the one hand, the Israelis are extraordinarily good Sigint partners for us, but on the other, they target us to learn our positions on Middle East problems,” the official says. “A NIE [National Intelligence Estimate] ranked them as the third most aggressive intelligence service against the US.”
Later in the document, the official is quoted as saying: “One of NSA’s biggest threats is actually from friendly intelligence services, like Israel. There are parameters on what NSA shares with them, but the exchange is so robust, we sometimes share more than we intended.”
In some way, shape or form, the information being provided to Israel is probably being abused, as Israel uses the intelligence to twist the arms of US government officials to maintain policies toward Israel and the Middle East that it desires.
American Civil Liberties Union deputy legal director Jameel Jaffer reacted, “On what authority is NSA monitoring the phone calls of US judges, legislators?” Also, “On what authority is the NSA sharing Americans’ information with Israel?” And, “Did the [FISA Court] sign off on this, and, if so, where’s that opinion?”
Other questions that should be answered: Has this secret deal helped Israel collect information to target and suppress Palestinian solidarity activists and boycott, divestment and sanctions (BDS) activists, and, if so, to what extent? Has this helped Israel collect intelligence on Americans, who engage in activism against apartheid in Israel? If so, has the information been used to track their movements or to ban them from entering the country?