Whatever the National Security Agency was doing with Angela Merkel’s cellphone number for the past 10 years may have been poorly conceived — even reckless — but it didn’t violate U.S. law.
No violation of U.S. law is associated with the collection by the NSA’s Signals Intelligence Directorate (SID) — as disclosed by The Guardian newspaper last month — of phone numbers of foreign government officials and politicians. Nor is it illegal for the NSA to receive from French and Spanish security agencies for storage and possible analysis millions of numbers of their citizens.
Recent public disclosures made possible by former NSA contractor Edward Snowden’s downloading of thousands of documents have focused on the NSA’s gathering records of foreign leaders or their nations’ citizens. Several disclosures have been timed to coincide with Secretary of State John Kerry’s visits to certain countries.
As Congress considers reforms in the NSA’s collection of electronic intelligence, the focus should be on legislation protecting the privacy of U.S. citizens, not foreigners overseas, no matter who the foreigners are or what positions they hold.
“Reform,” according to Webster’s New World Dictionary, is “to make better by removing faults and defects” or “to make better by putting a stop to abuses or malpractices or by introducing better procedures.”
Lawmakers should realize that they are dealing with intelligence gathering and, in many cases, with spying and other clandestine operations that are illegal in the countries in which they take place. Members should also remember this phrase: “Nations have no permanent friends and no permanent enemies — only permanent interests.”
Under the U.S. Constitution, the president, as both commander in chief of the armed forces and maker of foreign policy, runs the nation’s intelligence operations. Congress has an oversight function and, through legislation, can seek to limit what the intelligence community does, especially when U.S. citizens are involved or the actions are occurring on U.S. territory.
NSA officials routinely refer to Presidential Executive Order 12333 as the “foundational” authority for their collection, retention, analysis and dissemination of foreign signal intelligence information. That order serves as a basis for collecting communications by foreign persons that occur outside the United States.
The United States isn’t the only country with an intelligence agency carrying out electronic intercepts on a vast scale, though the United States may be the only country that has multiple forms of internal oversight — executive, congressional and judicial — supervising such operations. The United States may also be one of the few countries that limits, through law, the interception of its citizens’ phone calls or electronic messages unless authorized by a court.
When U.S. citizens’ communications are intercepted by operations aimed at foreign intelligence targets, there are ways to minimize — or remove — their identities.