The National Security Agency has routinely been sharing raw intelligence, possibly including the communications of Americans, with Israel -- a country that it also has routinely been spying on.
According to a top secret document released by the former NSA contractor Edward Snowden, the agency has a set up an intelligence-sharing program with its counterpart in Israel, whereby the NSA provides "unminimized" data from its global surveillance networks. Unminimized means that the information hasn't been scrubbed of any references to U.S. citizens or legal residents, whose communications the NSA isn't allowed to monitor without an individual warrant.
It's no secret that the United States works on operations with Israel. But Israel is also a regular target of America's spies. Other leaked intelligence documents show that the country is considered a "priority target," along with Russia, China, Iran, and Cuba, all of which are U.S. adversaries. If the United States were discovered to be sharing raw intelligence, including about Americans, with any of those governments, you can bet resignations of senior intelligence officials would soon follow.
Yet the NSA has been funneling intelligence to the Israeli SIGINT National Unit (ISNU) at least since 2009, the document shows. And the agreement must be built on a foundation of some trust, because it provides for only a loose form of oversight.
The Israeli unit "agree[s] in principle" not to target the communications of U.S. citizens, and to make regular reports to the NSA about how it's abiding by U.S. rules on privacy and information security, the document states. It makes clear that the Israelis are expected not to spy on Americans, but it also doesn't constitute a legal agreement and is not enforceable. The Israeli agency is supposed to "inform NSA immediately" when it detects any U.S. person information in the raw data.
The arrangement raises questions about whether the NSA is using Israel to conduct operations that, by law, it cannot.
The NSA has long been suspected of sharing intelligence with foreign countries in order to bypass U.S. law that restricts that agency's ability to spy on Americans. Officials have vigorously disputed that. But by sharing raw intelligence about Americans with Israel, the NSA is exposing them to a legal system that has less concern for due process and the right to privacy than the United States.
This is particularly true when it comes to counter-terrorism issues: Israel's attorney general even upheld a policy by border guards to read foreigners' emails as they enter the country. While the right to privacy is enshrined in Israel's basic laws, the country does not have a written constitution and Israeli military law still prevails in the West Bank.
The NSA's raw intelligence is apparently given to the Israelis before any U.S. official has had a chance to inspect it and remove any references to Americans. The memo makes no reference to any mechanisms by which the NSA checks up on the Israelis to ensure they're making good on their end of the deal.
The NSA has a mixed history with its foreign intelligence partners. In a 2003 interview with investigators for the 9/11 Commission, an unnamed official stated, "NSA can count on some partners fully, some never, and some sometimes." The strength of the partnership often comes down to personal interactions and trust between government officials.
Country-to-country sharing is managed by officials in what the NSA calls "offices of primary interest." The U.S.-Israel agreement states that these offices are the source of "selectors," or keywords and terms used to search signals intelligence, which is then given to the Israelis. But it's not clear whether these selectors are generated by the NSA, by the Israelis, or by some other country.
It's an important distinction. If it's the NSA is coming up with the terms and keywords to search, and then handing off the results to Israel, it lends credence to the argument that the agency is asking a foreign intelligence service to do work on its behalf.
The sharing regime may not a one-way street, however. "This mutually agreed upon exchange has been beneficial to both NSA's and ISNU's mission and intelligence requirements," the documents says. It also refers to past "joint collection operations" conducted by both countries. This would suggest that the information-sharing is focused on counterterrorism, Iran, or other areas of mutual concern, but none of the targets are identified in the agreement.
The memorandum contains a field for the signature of the NSA Director, Keith Alexander, as well as his Israeli counterpart. Alexander has earned a reputation in the intelligence community as a data hoarder. And according to a large tranche of documents that the Obama administration declassified yesterday, it's not clear that even Alexander knows how much information his agency is collecting and what's being done with it.
In a sworn statement to the Foreign Intelligence Surveillance Court, which oversees NSA's spying operations, Alexander explained how, in 2009, the agency's collection of Americans' phone records became so extensive that no single employee understood all its moving parts. In some instances, intelligence analysts didn't even realize they were examining Americans' records, which reside in a restricted database. They thought they were looking in a different, less restricted system.
The U.S.-Israel agreement is another example of how broad the NSA's operations have become. The agency is collecting information on a scale so vast, and from so many different streams, that it cannot always tell which communications belong to Americans and which to foreigners.
The Israelis aren't the only ones to get access to NSA's raw intelligence, which is some of the most prized information in the intelligence business. The CIA and the FBI also get a peek. When they do, a different set of minimization procedures kick in. Those are classified, so it's hard to know whether those agencies can in turn share information with foreign agencies. But, like the NSA, the CIA and FBI do have liaison offices with their counterparts overseas.
The U.S.-Israel agreement is a reminder of how vast and interlocking the NSA's surveillance operations have become. Information collected by one country is shared with another, and the rules that govern how it's treated get looser in the process. Alexander may have signed his name to the Israel deal. Whether he knows precisely how much of secret information is being routinely shared, and what's happening to it, is another matter.