Posted: 11 Sep 2013 10:18 PM PDT
NSA-Unit 8200 memo of understanding
By now, everyone knows that Obama, Clapper, Alexander, et al. are lying through their teeth every time they make a statement about the Snowden documents. So they’re lied about this as well.
The level of intelligence sharing, as well as the blitheness with which we trust Israel to use the information judiciously, is shocking. Here are some of the undertakings included in the memo of understanding that governs the intelligence sharing:
US government handed over intercepted communications [to Israel] 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.Further astonishing news concerns the transmission to Israel of information about U.S. citizens, that is, information the NSA is not supposed to have or collect:
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.
…[A] 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.
…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.
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.Instead of directing the Israelis to destroy such files immediately since they violate NSA guidelines, the Israelis can take their own sweet time and do with them what they wish. And there isn’t even any punishment specified for the Israelis violating provisions of the memorandum, so they can essentially ignore these provisions.
Since much of the shared intelligence is unfiltered, it’s entirely possible the NSA is giving Israel communications between U.S. officials. Can you imagine what a gold mine this is? Israel, which is the third most active intelligence operation in the U.S., doesn’t have to work so hard with the NSA handing the data to it on a silver platter. I just love the gentleman’s agreement that requests that Israel return any official documents that are transmitted to it (of course they would!):
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.All the Israelis have to say is that while they may’ve had such documents they didn’t recognize them as such. They’re home-free under these lax guidelines.
Another beaut in the memorandum is that Israel is directed to restrict access to a limited number of its government officials on a “need to know” basis. I understand something the NSA apparently doesn’t: that as far as such information gleaned from foreign sources there’s no such thing as the artificial bifurcations elaborated on here. Israel will share the information in whatever way it deems useful and give no consideration for any agreement it signed with the U.S. government. We were fools to entrust this material to Israel under the terms specified.
Greenwald says specifically that Israel is not a member of FIVE EYES, the inner circle of English-speaking nations who share intelligence on an unrestricted basis. But the sheer volume of data spoken of here indicates that my Israeli source, who claims Israel has become an “unofficial, undeclared” member, may not be far off the mark. I should note that a number of journalists and analysts who specialize in U.S. intelligence matters have expressed doubt about the accuracy of my source’s claim regarding FIVE EYES. If revelations like this continue, they may want to reassess their judgment.
The Intelligence/Legal Disconnect
I spoke with John Pike of Global Security Project today and it occurred to me that the U.S. faces a huge disconnect between its legal system and operational intelligence. Our judicial system was meant to accommodate a more constrained intelligence apparatus of the past. In the past, the NSA confined itself to overseas intelligence and FBI handled domestic intelligence. Theoretically, there were penalties for violations of the rules. Theoretically, both agencies attempted to adhere to them. Those were the days.
Nowadays, intelligence has superseded the old divisions. The information dragnet is like massive ocean trawling nets that vacuum up every sea creature in its wake. There are no longer separations between foreign and domestic.
The law is stuck in the intelligence Middle Ages. We’ve devised a judicial fig leaf called the FISA court, a top secret court that determines what’s permissible and not. But this is not protection from wrongdoing. This is not protection of constitutional rights. This is rather a means of pretending that the law is overseeing the intelligence system, while allowing it to do essentially whatever it wishes.
This disconnect between intelligence reality and the law is why everyone from the president on down must prevaricate every time he speaks about the NSA. Pres. Obama’s intelligence officials have even lied in Congressional testimony, which is a federal crime. Of course, no one really believes Congress will haul them before a legal tribunal for perjury. There is a gentlemen’s agreement that the executive branch officials may lie because there’s simply nothing else they can do. Can they admit the NSA violates federal guidelines every minute of the day? Can they tell the American people there is no longer such a concept of privacy, let alone a right to privacy? Can they tell us that these are antiquated notions of the past?
What’s standing in the way is the fact that the American people like their privacy. It’s something that is in the American DNA. That makes the NSA a profoundly un-American institution. So the question becomes, who will win? Will the NSA get its way and trample on all-American values with the connivance of Congress. Or will Congress answer to the vox populi, do its job, and protect America from the excesses of the national security state run rampant? My money is on the inside game. These players and forces are too powerful for the American people. With the added connivance of judges and the Supreme Court, who are willing or unwilling collaborators, the spooks have the upper-hand.
That’s why whistle-blowers like Snowden and Manning are so critical. We know we can no longer expect truth from our leaders. Their job is to conceal the truth. To prevent us from knowing the forbidden secrets. But once in a while a courageous individual comes along who’s willing to tear the veil away and suffer the personal sacrifice that inevitably follows.
So I’d say to Barack Obama: I’m with you as long as you rein in the intelligence apparatus. I’m prepared to keep secrets and support the spooks as long as I know that what the NSA is doing is transparent and that it’s truly accountable to the political echelon. And I’m not talking about the charades that pass for civilian oversight now. I’m talking about an agency that draws back from the myriad excesses of the past ten years. That adheres to the rules. That punishes wrongdoers. If the rules are out of date, let’s update them. As long as we don’t lose the bedrock principles on which the republic was founded. The very principles the NSA has been shredding for years.
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