The Cable

U.S. Official Blames Shutdown for Failure to Explain NSA Spying

Ever since the first disclosures of global surveillance by the National Security Agency this past June, the Obama administration has maintained a consistent public response: The intelligence gathering programs are effective, legal, and meet with the approval of President Obama. In remarks in August, Obama said, "America is not interested in spying on ordinary people. Our intelligence is focused, above all, on finding the information that's necessary to protect our people, and -- in many cases -- protect our allies."

But now come revelations that the United States has also been spying on those same allies. Questions about how far that surveillance went, and what the White House knew about it, have caught officials off-guard and tied their public response in knots. The NSA is insisting that all of its spying operations are done with the White House's blessing -- while Obama administration officials say that the President was unaware of some of the NSA's most politically-explosive missions. No wonder there's a growing sense at the upper levels of the administration that the NSA has gone too far, and needs to be reined in.

The latest trip-up came Monday, during a scheduled hearing of the Organization of American States (OAS), a long-standing continental organization that includes 35 independent states of the Americas. U.S. diplomats were scheduled to explain NSA practices at the hearing for the first time on the international stage. But Deputy U.S. Permanent Representative to the OAS Lawrence Gumbiner could not offer a response, citing the recent U.S. government shutdown.

"With the government closed and most of its employees furloughed, we lost the time essential for us to engage our inter-agency colleagues and prepare for this hearing," said Gumbiner. The inability to respond to any of the complaints cited about mass surveillance of individuals living outside the United States, a complaint of the hearing's petitioners, clearly frustrated Rodrigo Escobar Gil, rapporteur on the Rights of Persons Deprived of Liberty of the OAS's Inter-American Commission on Human Rights.

"The arguments of the state have been taken into account but there's no causes beyond the control of the state like an earthquake or natural disaster or something like that, that would have made it impossible to respond," Gil said. "The fact of the matter is that the domestic matters of the state are not justification for not providing a response to international bodies. This is an important opportunity."

It's especially important because news reports of NSA spying on foreign governments and their leaders have piled up last week, to include operations aimed at German Chancellor Angela Merkel's cell phone, the emails of former Mexican President Felipe Calderon, and the communications of up to 35 world leaders, as well as large-scale public surveillance directed at Brazil, France, Italy, and, as revealed in a new report Monday, Spain. Merkel, who has been criticized in Germany for not reacting more forcefully to previous revelations of NSA spying, phoned President Obama last week to express her disappointment that a trusted ally had intercepted her calls. Two German media outlets, citing sources in Merkel's office, reported that Obama told the German leader he didn't know about the spying, and that if he had known, he would have put a stop to it.

But U.S. officials now say the White House learned about the surveillance this summer, when it was discovered as part of an internal review of NSA programs that the president ordered following revelations of global surveillance by the ex-contractor Edward Snowden. It's not clear whether Obama was personally told about the spying before he spoke to Merkel, or what he was told about operations directed against other leaders.

The Obama administration now finds itself in the awkward position of defending what it calls routine intelligence gathering of the sort that all governments do -- while simultaneously trying to distance itself from operations that may have become so routine the president or his national security team didn't notice them.

When The Cable asked a White House spokesperson what the president knew, and when, she said she would not discuss "internal deliberations and intelligence matters." White House officials have sought to quell foreign outrage by stressing that the intelligence the NSA gathers is no different than what other nations collect about their adversaries and allies alike. But U.S. officials told the Wall Street Journal on Sunday that the spying operations on Merkel and some other world leaders were stopped after they were discovered during the internal review this summer, months before they were ever disclosed publicly.

That suggests at least some calculation by the White House that the programs were not worth keeping -- perhaps because they weren't productive, or because they were politically risky. One NSA document released last week by the Guardian states that monitoring some foreign leaders' communications didn't produce much useful intelligence. Another, disclosed by Der Spiegel, advises NSA surveillance operators to keep their work discreet because disclosure "would cause serious harm to relations between the United States and a foreign government." The internal review would have discovered the spying on foreign leaders at a politically sensitive time, when the White House was responding to reports of large-scale intelligence operations inside the United States.

Officials are still combing through the NSA's programs to determine what they have collected and which programs to keep. The State Department, one of the spy agency's most important consumers, is reviewing surveillance "with respect to our foreign partners," department spokeswoman Jen Psaki said last week. "We want to ensure we're collecting information because we need it and not just because we can."

The surveillance against Merkel may have begun as early as 2002. Former intelligence officials told The Cable that it's not unusual for the NSA to undertake surveillance without informing the president of every target. (But the fact that foreign leaders' communications were being monitored should have been known or presumed by the president's national security advisers, the former official added.) The NSA, for its part, insists that all its operations are guided from intelligence priorities and policies set at the top, to include the president and his national security team.

"NSA is not a free agent," said NSA spokesperson Vanee Vines. "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 approved by the top leaders of the government, but it leaves the question of how best to gather intelligence to the individual agencies.

On Sunday, a story in a German newspaper reported that President Obama had been personally briefed on the Merkel operation in 2010 by Gen. Keith Alexander, the director of the NSA. The article cited a high-ranking NSA official as saying that Obama allowed the surveillance to continue because he wanted more information about Merkel's role in managing the financial crisis in Europe.

When The Cable asked the NSA spokesperson to respond to the German article on Sunday morning, she declined and referred all queries to the White House. A White House spokesperson also declined to comment. By Sunday afternoon, however, the NSA issued a statement calling the German article false -- but only in the most narrow sense.

"[General] Alexander did not discuss with President Obama in 2010 an alleged foreign intelligence operation involving German Chancellor Merkel, nor has he ever discussed alleged operations involving Chancellor Merkel. News reports claiming otherwise are not true," the statement read.

That left open the question of what other NSA officials may have told other officials in the White House about the operation. By Sunday evening, U.S. officials were reporting that the Merkel operation was halted after the White House learned of it this summer.

Tensions between the White House and the NSA have mounted ever since Snowden gave a cache of documents about NSA surveillance to journalists. Agency veterans have said that Alexander, the NSA director, and his top lieutenants have felt hung out to dry in the scandal, and are irked that very few administration officials have mounted a public defense of the agency and what its leaders believe they were ordered to do.

For his part, Alexander has made several strong public defenses of the NSA. Recently, he accused journalists of sensationalizing the surveillance stories and "selling" access to spy documents.

Alexander will step down from his post next year. His rumored successor, Adm. Michael Rogers, is a career spy with expertise in surveillance and cyber security. But his political resume is thin, and he would be stepping into the NSA job at a rare moment, when its normally secretive operations are tearing at the fabric of U.S. foreign policy.

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