The Cable

Exclusive: 21 Nations Line Up Behind U.N. Effort to Restrain NSA

An effort in the United Nations by Brazil and Germany to hold back government surveillance is quickly picking up steam, as the uproar over American eavesdropping grows.

The German and Brazilian delegations to the U.N. have opened talks with diplomats from 19 more countries to draft a General Resolution promoting the right of privacy on the Internet. Close American allies like France and Mexico -- as well as rivals like Cuba and Venezuela -- are all part of the effort.

The push marks the first major international effort to curb the National Security Agency's vast surveillance network. Its momentum is building. And it comes as concerns are growing within the U.S. intelligence community that the NSA may be, in effect, freelancing foreign policy by eavesdropping on leaders like Germany's Angela Merkel.

The draft, a copy of which was obtained by The Cable, calls on states "to respect and ensure the respect for the rights" to privacy, as enshrined in the 1976 International Covenant on Civil and Political Rights. It also calls on states "to take measures to put an end to violations of these rights" and to "review their procedures, practices and legislation regarding the extraterritorial surveillance of private communications and interception of personal data of citizens in foreign jurisdictions with a view towards upholding the right to privacy."

The draft does not refer to a flurry of American spying revelations that have caused a political uproar around the world. But it was clear that the revelations provided the political momentum to trigger the move to the U.N.

On Friday, the State Department responded to questions concerning The Cable's initial report about the U.N. effort published Thursday.

"We'll of course review that when the text is available," State Department spokeswoman Jen Psaki said, speaking of Germany and Brazil's draft. "

"It's not something you're opposed to in principle?" a reporter asked.

"No," said Psaki. "Our U.N. mission in New York will review the text as usual."

The NSA has reportedly monitored communications of up to three dozen world leaders and accessed the emails of the president of Mexico.

The draft appears designed to provide oversight of those types of incursions -- as well as surveillance incursions of average citizens worldwide. It requests that the U.N. High Commissioner for Human Rights report to the U.N. General Assembly twice in the next two years on "human rights and indiscriminate surveillance" with "views and recommendations" aimed at "identifying and clarifying principles, standards and best practices on the implications for human rights of indiscriminate surveillance."

The State Department said Friday that the U.S. initiated a review of its surveillance practices  in order to "balance security needs with privacy concerns." However, it's already clear that even individuals in the intelligence community are concerned that NSA activities have gone beyond the pale.

Former intelligence officials tell The Cable they are concerned that NSA officials have been deciding on their own which foreign leaders to "target," or collect information about.  "We're targeting these leaders. Who's making these political decisions? Gen. Alexander or one of his subordinates?" said a former senior intelligence official. "If so, he is getting to make decisions that have wider impact on international relations."

Vanee Vines, and NSA spokesperson, said that the agency takes its cues from higher up the official chain of command. "NSA is not a free agent," she told The Cable. "The agency's activities stem from the National Intelligence Priorities Framework, which guides prioritization for the operation, planning, and programming of U.S. intelligence analysis and collection."

The framework is a list of priority issues that senior policymakers want the intelligence agencies to work on. It could include long-term matters such as the threat of global terrorism, or more specific and pressing questions, such as how long until Iran is able to build a nuclear weapon.

The list is reviewed twice a year by the most senior officials in government, including the secretaries of Defense, State, and Treasury, as well as the president's chief of staff and national security adviser. And it's ultimately approved by the president. But the individual intelligence agencies are generally left to decide how to best address those priorities, which includes choosing what types of intelligence to collect.

Another former senior intelligence official said that, in practice, the NSA is told to collect certain kinds of information, but it also preemptively does that job in anticipation of what its "customers" -- those senior government decision-makers -- will want and need.

"It works both ways," the former official said. "There are two things the NSA wants to do: Answer their customer's request, and anticipate their customer's needs. There's not a doubt in my mind they're doing both."

Administration officials have avoided answering questions about what kind of surveillance was ordered against foreign leaders. In response to allegations that Merkel's phone was tapped, the White House issued a statement that the United States " is not monitoring and will not monitor" her communications. But it didn't say whether the United States had done so in the past.

There's nothing in the intelligence framework that would require the NSA to get permission to intercept Merkel's calls. And it remains unclear what specific direction, if any, the agency received from the White House or senior administration officials about which foreign leaders to target.

According to the framework, the director of national intelligence and his senior staff play a key role in recommending to policymakers what items should be included on the priorities list. And they gather opinions from the component intelligence agencies, of which the NSA is one.

When it comes down to ensuring that the agencies are collecting the right intelligence to meet their customers needs, the director of national intelligence and the individual agencies are authorized to make those decisions, according to the framework.

The heads of executive departments and agencies also have authority to manage elements within their organization. The NSA, for instance, is part of the Defense Department, and can be directed to perform certain intelligence functions by the Secretary of Defense. 

On at least one occasion, the NSA appears to have taken upon its own initiative gathering up of phone numbers, email and residential addresses of foreign officials. In 2006, according to an internal NSA memo published by the Guardian, the agency asked U.S. officials to supply contact information of foreign leaders from their personal "Rolodexes." One unnamed official gave the agency 200 phone numbers, which led to the monitoring of 35 world leaders. The memo makes clear that the NSA unit decided on its own to start asking U.S. officials to supply them with such leads.

The report raised questions as to whether State Department officials handed over contact information of foreign leaders to the NSA -- an action Foggy Bottom would neither confirm nor deny.

"I was just wondering if you would answer if any State Department employees offered contact information ... of foreign leaders to the NSA?" The Cable asked Psaki.

"I've seen those reports. I don't have anything for you on it," she said.

"So you don't know if there were any State Department employees..."

"I don't have anything for you on it," repeated Psaki.

The former intelligence official who questioned whether Alexander was making decisions on which leaders to target predicted there will be far-reaching repercussions to revelations about spying on foreign leaders. Stories about NSA's global surveillance already had sparked public protests in Germany, and in Brazil, the government is considering whether to require companies that store citizens' personal information on databases inside the country, where they'd be harder for the NSA to access.

"The extent to which international political opinion and law are going to condition intelligence collection for the future, that's a new world," the former official said, adding that the NSA is not prepared to deal with that political blowback.

You can read the U.N. draft in full below. Other countries participating in the talks are Argentina, Austria, Bolivia, Ecuador, Guyana, Hungary, India, Indonesia, Liechtenstein, Norway, Paraguay, South Africa, Sweden, Switzerland, and Uruguay.

UN Draft on Privacy

The Cable

Exclusive: Germany, Brazil Turn to U.N. to Restrain American Spies

Brazil and Germany today joined forces to press for the adoption of a U.N. General Resolution that promotes the right of privacy on the internet, marking the first major international effort to restrain the National Security Agency's intrusions into the online communications of foreigners, according to diplomatic sources familiar with the push.

The effort follows a German claim that the American spy agency may have tapped the private telephone of German Chancellor Angela Merkel and dozens of other world leaders. It also comes about one month after Brazilian leader Dilma Rousseff denounced NSA espionage against her country as "a breach of international law" in a General Assembly speech and proposed that the U.N. establish legal guidelines to prevent "cyberspace from being used as a weapon of war."

Brazilian and German diplomats met in New York today with a small group of Latin American and European governments to consider a draft resolution that calls for expanding privacy rights contained in the International Covenant Civil and Political Rights to the online world. The draft does not refer to a flurry of American spying revelations that have caused a political uproar around the world, particularly in Brazil and Germany. But it was clear that the revelation provided the political momentum to trigger today's move to the United Nations. The blowback from the NSA leaks continues to agonize U.S. diplomats and military officials concerned about America's image abroad.

"This is an example of the very worst aspects of the Snowden disclosures," a former defense official with deep experience in NATO, told The Cable, referring to former NSA contractor Edward Snowden. "It will be very difficult for the US to dig out of this, although we will over time. The short term costs in credibility and trust are enormous."

Although the U.N.'s ability to fundamentally constrain the NSA is nil, the mounting international uproar over U.S. surveillance has security experts fearful for the ramifications.

"The worst case scenario I think would be having our European allies saying they will no longer share signals intelligence because of a concern that our SigInt is being derived from mechanisms that violate their privacy rules," said Ray Kimball, an army strategist with policy experience on European issues. He stressed that he was not speaking for the military.

Although the Germans have not indicated such a move is in the works, they do have a game plan for making their surveillance complaints heard. The International Covenant on Political and Civil Rights was written in 1966 and came into force in 1976, decades before the internet transformed the way people communicate around the world. A provision in the international covenant, Article 17, says "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation." It also states that "everyone has the right to the protection of the law against such interference or attacks."

"The covenant was formulated at a time when the internet didn't exist," said a diplomat familiar with the negotiations. "Everyone has the right to privacy and the goal is to this resolution is to apply those protections to online communications."

Brazil and Germany are hoping to put the resolution to a vote in the U.N. General Assembly human rights committee later this year. The draft resolution, which has not been made public and which is still subject to negotiation among U.N. states, will seek to apply the those protections to online communications. "This is not just about spying," said the diplomat. This is about ensuring that "privacy of citizens in their home states under their own home legislation."

"It calls on countries to put an end to violations of that right," the official said. "People have to be protected offline and online."

Anyone who thinks this issue will only resonate in Brazil, Mexico, France, Italy, and Germany -- where the Snowden leaks recently revealed NSA datamining -- isn't paying attention.

According to the latest internal NSA memo leaked to The Guardian, the list of targeted nations is even longer, which could give this U.N. effort additional momentum.  The NSA monitored the communications of 35 unnamed "world leaders," whose phone numbers were given to the intelligence agency by a U.S. government official, according to the report. The agency has been collecting phone numbers, email addresses, and residential addresses of foreign officials from the people in the U.S. government who are in touch with them. The U.S. official, who is not named, personally handed over 200 phone numbers about the people he or she was in touch with.

It's hardly a secret, or a surprise, that the NSA spies on foreign governments, including those friendly to the United States. Two former intelligence officials told The Cable that contact information like this is a regular source of intelligence for the NSA. And the memo acknowledges that the agency looks for officials' contact information in open sources, such as the Internet.

But the revelation that U.S. officials are facilitating spying on the people they do business with to this extent has created the impetus for U.N. action, a first-of-its kind development.

"There's a mixture of hypocrisy and feigned outrage along with real objections here," said a former senior intelligence official. "I don't know where the line is. The idea that political leaders are out of bounds for foreign intelligence is amusing. But on the other hand this business about trusting allies is a big thing. My guess is there's a real annoyance here" on the part of foreign allies.

Merkel was so outraged by the news that her phone had been monitored that she called President Obama to discuss it. The White House issued a carefully worded statement, assuring that the German leader's phone would not be tapped now or in the future, but not saying whether it had been.

It's not clear whether the NSA is still collecting information from the address books of U.S. officials. The memo was written in 2006. But at least at the time, such collection was a regular occurrence.

"From time to time, SID [the agency's signals intelligence directorate] is offered access to the personal contact databases of U.S. officials," the memo states. It doesn't specify who those officials are, or where in the government they work. But, the memo goes on to say, the information provided by the one U.S. official was sufficiently helpful that the agency decided to go around asking for more such contacts from the NSA's "supported customers," which include the Departments of Defense and State, as well as the White House. (None of them are listed by name in the memo.)

"These numbers have provided lead information to other numbers," the memo states. In the case of the one U.S. officials, the 200 numbers included 43 that previously weren't on the NSA's radar.

"This success leads S2 [part of the signals intelligence directorate] to wonder if there are NSA liaisons whose supported customers may be willing to share" their contacts, as well. "S2 welcomes such information!"

Apparently, though, success was measured not so much in secrets learned but just in having the data itself. The memo acknowledges that analysts "have noted little reported intelligence from these particular numbers, which appear not to be used for sensitive discussions."

From this we might conclude that NSA's targets are not fools. Why would anyone in the senior ranks of a government or military have sensitive conversations or discuss classified information over the phone number or email on his business card? But, the NSA seems to have concluded, what could it hurt to find out?

Time will tell. In a statement, a spokesperson for Merkel said she told Obama that tapping her phone would represent a "grave breach of trust" between the two allies. "She made clear that she views such practices, if proven true, as completely unacceptable and condemns them unequivocally."

With the latest news from the U.N., it appears the U.S. might be in store for more than just a slap on the wrist.