NSA shares raw intelligence including Americans' data with Israel
• Secret deal places no legal limits on use of data by Israelis
• Only official US government communications protected
• Agency insists it complies with rules governing privacy
• Read the NSA and Israel's 'memorandum of understanding'
* Glenn Greenwald, Laura Poitras and Ewen MacAskill
* theguardian.com,
* 11 September 2013
The agreement for the
US to provide raw intelligence data to Israel was reached in principle
in March 2009, the document shows. Photograph: James Emery
The National Security Agency routinely shares raw intelligence data with Israel
without first sifting it to remove information about US citizens, a top-secret
document provided to the Guardian by whistleblower Edward Snowden reveals.
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.
The disclosure that the NSA agreed to provide raw intelligence data to a
foreign country contrasts with assurances from the Obama administration that
there are rigorous safeguards to protect the privacy of US citizens caught in
the dragnet. The intelligence community calls
this process "minimization", but the memorandum makes clear that the
information shared with the Israelis would be in its pre-minimized
state.
The deal was reached in principle in March 2009, according to the undated
memorandum, which lays out the ground rules for the intelligence sharing.
The five-page memorandum, termed an agreement between the US and Israeli
intelligence agencies "pertaining to the protection of US persons",
repeatedly stresses the constitutional rights of Americans to privacy
and the need for Israeli intelligence staff to respect these rights.
But this is undermined by the disclosure that Israel is allowed to receive
"raw Sigint" – signal intelligence. The memorandum says: "Raw Sigint
includes, but is not limited to, unevaluated and unminimized
transcripts, gists, facsimiles, telex, voice and Digital Network
Intelligence metadata and content."
According to the agreement, the intelligence being shared would not be filtered
in advance by NSA analysts to remove US communications. "NSA routinely sends
ISNU [the
Israeli Sigint National Unit] minimized and unminimized raw collection", it
says.
Although the memorandum is explicit in saying the
material had to be handled in accordance with US law, and that the
Israelis agreed not to deliberately target Americans identified in the
data, these rules are not backed up by legal obligations.
"This
agreement 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 document says.
In a statement to the Guardian, an NSA spokesperson did not deny that personal
data about Americans was
included in raw intelligence data shared with the Israelis. But the
agency insisted that the shared intelligence complied with all rules
governing privacy.
"Any US person information that is acquired as a result of NSA's surveillance
activities is handled under procedures that are designed to protect privacy
rights," the spokesperson said.
The NSA declined to answer specific questions about the agreement, including
whether permission had been sought from the Foreign Intelligence
Surveillance (Fisa) court for handing over such material.
The memorandum of understanding, which the Guardian is publishing in full,
allows Israel to retain "any files containing the identities of US
persons" for up to a year. The agreement requests only that the Israelis should
consult the NSA's special liaison adviser when such data is found.
Notably, a much stricter rule was set for US government communications found in
the raw intelligence. The Israelis were required to "destroy upon
recognition" any communication "that is either to or from an official of the US
government". Such communications included those of "officials of the executive
branch (including the White House, cabinet departments,
and independent agencies), the US House of Representatives and Senate
(member and staff) and the US federal court system (including, but not
limited to, the supreme court)".
It is not clear whether any
communications involving members of US Congress or the federal courts
have been included in the raw data provided by the NSA, nor is it clear how or
why the NSA would be in possession of such
communications. In 2009, however, the New York Times reported on "the
agency's attempt to wiretap a member of Congress, without court
approval, on an overseas trip".
The NSA is required by law to target only non-US persons without an individual
warrant, but it can collect the content and metadata of Americans' emails and
calls without a warrant when such
communication is with a foreign target. US persons are defined in
surveillance legislation as US citizens, permanent residents and anyone
located on US soil at the time of the interception, unless it has been
positively established that they are not a citizen or permanent
resident.
Moreover, with much of the world's internet traffic
passing through US networks, large numbers of purely domestic
communications also get scooped up incidentally by the agency's
surveillance programs.
The document mentions only one check carried out by the NSA on the raw
intelligence, saying the agency will "regularly review a
sample of files transferred to ISNU to validate the absence of US
persons' identities". It also requests that the Israelis limit access
only to personnel with a "strict need to know".
Israeli
intelligence is allowed "to disseminate foreign intelligence information
concerning US persons derived from raw Sigint by NSA" on condition that it does
so "in a manner that does not identify the US person". The agreement also
allows Israel to release US person identities to
"outside parties, including all INSU customers" with the NSA's written
permission.
Although Israel is one of America's closest allies, it is not one of the inner
core of countries involved in surveillance
sharing with the US - Britain, Australia, Canada and New Zealand. This
group is collectively known as Five Eyes.
The relationship between the US and Israel has been strained at times, both
diplomatically and
in terms of intelligence. In the top-secret 2013 intelligence community
budget request, details of which were disclosed by the Washington Post, Israel
is identified alongside Iran and China as a target for US cyberattacks.
While NSA documents tout the mutually beneficial relationship of Sigint
sharing,
another report, marked top secret and dated September 2007, states that
the relationship, while central to US strategy, has become
overwhelmingly one-sided in favor of Israel.
"Balancing the Sigint exchange equally between US and Israeli needs has been a
constant
challenge," states the report, titled 'History of the US – Israel Sigint
Relationship, Post-1992'. "In the last decade, it arguably tilted
heavily in favor of Israeli security concerns. 9/11 came, and went, with NSA's
only true Third Party [counter-terrorism] relationship being driven almost
totally by the needs of the partner."
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."
The memorandum of understanding also contains hints
that there had been tensions in the intelligence-sharing relationship
with Israel. At a meeting in March 2009 between the two agencies,
according to the document, it was agreed that the sharing of raw data
required a new framework and further training for Israeli personnel to
protect US person information.
It
is not clear whether or not this was because there had been problems up
to that point in the handling of intelligence that was found to contain
Americans' data.
However, an earlier US document obtained by
Snowden, which discusses co-operating on a military intelligence
program, bluntly lists under the cons: "Trust issues which revolve
around previous ISR [Israel] operations."
The Guardian asked the Obama administration how many
times US data had been found in the raw intelligence, either by the
Israelis or when the NSA reviewed a sample of the files, but officials declined
to provide this
information. Nor would they disclose how many other countries the NSA
shared raw data with, or whether the Fisa court, which is meant to oversee NSA
surveillance programs and the
procedures to handle US information, had signed off the agreement with
Israel.
In its statement, the NSA said: "We are not going to comment on any specific
information sharing
arrangements, or the authority under which any such information is
collected. The fact that intelligence services work together under
specific and regulated conditions mutually strengthens the security of
both nations.
"NSA cannot, however, use these relationships to circumvent US legal
restrictions. Whenever we share intelligence information, we comply with all
applicable rules, including the rules to protect US person information."
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