The NSA is prohibited by law from monitoring Americans without a warrant.
At first blush, it appears like a bombshell: The United States listened in on Israeli Prime Minister Benjamin Netanyahu’s phone calls.
But on closer examination, the revelations reported Dec. 29 by The Wall Street Journal might not be so far reaching. Spying on allies is both routine and legal in the United States, though perhaps not very politic.
Here’s what the controversy is all about and what may happen next.
What exactly did the Obama administration do?
According to the Journal, the National Security Agency eavesdropped on Netanyahu and other Israeli officials, in part to assess whether Israel planned to strike Iran and to track the prime minister’s efforts to scuttle the emerging nuclear deal with Iran. In the process, conversations between Israelis and American lawmakers and Jewish organizations were swept up by NSA surveillance. The Obama administration did not directly order those conversations be monitored, but neither did it prevent the listening-in.
“We didn’t say, ‘Do it,’” a senior U.S. official told the Journal. “We didn’t say, ‘Don’t do it.’”
Isn’t spying on foreign leaders routine?
Yes and no. The Journal reported that the NSA asks presidents whether they want information on foreign leaders, allied or not. Obama, apparently like virtually all his predecessors, gave the nod.
But after documents released in 2013 by Edward Snowden showed the NSA had been eavesdropping on the cellphone of German Chancellor Angela Merkel, Obama suspended the practice for much of the NATO alliance. Kept on the list: Netanyahu and Recep Tayyip Erdogan, the Turkish president.
Netanyahu stayed in part because of concerns he would strike against Iran without warning the Americans — a move that would have had far-reaching consequences for U.S. interests — and because he was actively rallying Congress, Jewish community leaders and others against the emerging Iran nuclear deal.
How did Jewish groups wind up getting snooped on?
The NSA is prohibited by law from monitoring Americans without a warrant. But when U.S. citizens in contact with foreigners are spied on incidentally, the information doesn’t have to be trashed as long as their identities are obscured — a process known as minimization. That’s how the Obama administration wound up with reports on meetings between Israeli officials and members of Congress and Jewish organizational leaders.
Several Jewish groups — including the American Jewish Committee, the Anti-Defamation League and the Zionist Organization of America — were troubled by the revelation, even if they weren’t entirely surprised by it.
“It’s obviously deeply disturbing and highly problematic, but frankly not entirely surprising,” said David Harris, the American Jewish Committee’s executive director. “We have always assumed it’s what various governments, for a variety of reasons, tend to do.”
Jewish groups weren’t likely to be shocked because they’ve been caught up in government surveillance before: The case against two former staffers for the American Israel Public Affairs Committee, launched in 2004 and scrapped in 2009, arose because the staffers were swept up in U.S. government tracking of Israeli diplomats.
For this article, AIPAC declined to comment and the Conference of Presidents of Major American Jewish Organizations did not return a request for comment.
What about lawmakers caught up in the sweep?
Reactions among members of Congress, predictably, divided along partisan lines. Rep. Lee Zeldin, R-N.Y., the sole Jewish Republican in Congress, called for an investigation, saying the Journal report suggested “laws were broken.” House Republican leaders wrote the NSA demanding paperwork that would show the rules of minimization were observed. GOP presidential candidates Ted Cruz, Marco Rubio, Rand Paul and Ben Carson all said the matter deserved greater scrutiny.
“Instead of focusing on deterring the Iran nuclear threat and fighting against the mullahs who chant ‘Death to America,’ President Obama has treated Israel, our staunch, democratic ally in the Middle East, as his real enemy,” Carson said.
Rep. Adam Schiff, D-Calif., the senior Democrat on the House Intelligence Committee, told the Journal that in general “we haven’t had a problem with how incidental collection has been handled concerning lawmakers.” Schiff, who like others on the committee would likely have seen some form of the NSA reports, could not be reached for comment.
Doesn’t Israel also spy on the United States?
Israel ostensibly swore off spying on the United States in the wake of the arrest of Navy civilian analyst Jonathan Pollard. Yisrael Katz, Israel’s intelligence minister, said Wednesday that Israel does not spy on the United States and expects the same from Washington.
But if the Journal report is accurate, that isn’t quite true. According to the Journal, soon after Obama assumed office, Unit 8200, the Israeli military’s eavesdropping unit, gave the NSA hacking software that the agency later discovered allowed 8200 to “poke around U.S. networks.”
Will there be political fallout?
On Capitol Hill, not likely. For all the Republican calls for an investigation, curbing spying — even on an ally — runs the risk of being cast as soft on national security in an election season now increasingly focused on the threat of terrorism. As CNN has noted, the GOP congressional leadership has been muted about the affair.
But the revelations are certain to complicate recent efforts by Obama and Netanyahu to smooth over their differences exacerbated by the Iran deal fight and the failed bid by Secretary of State John Kerry to restart the Israeli-Palestinian peace process.
So who gets to say ‘I told you so’?
For years, the prominent pro-Israel lobby’s leaders have repeatedly advised the Israelis to allow the group to lead advocacy on the Iran issue. The fact that the Israelis were aggressively advocating on their own appears to have handed the U.S. security apparatus a legal path to monitor efforts to derail the deal — and perhaps to preempt them. Had AIPAC led the effort, that wouldn’t have been possible, since the deliberations would have been legally out of bounds for U.S. eavesdroppers.
“I would bet that AIPAC’s leaders recognize, consciously or unconsciously, that Israel’s engagement in this way was inappropriate,” said Steven Aftergood, who directs the Federation of American Scientists project on government secrecy. “And because it was inappropriate, it was likely to be counterproductive.”