I. NSA shares raw intelligence including Americans’ data with Israel (9/11/2013)
– 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’
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.”
newtear1 Photograph: Guardian
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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Since 2009, the National Security Agency (NSA) has been sharing raw signals intelligence (SIGINT), including information about specific US people, directly with Israel’s counterpart to the NSA, The Guardianreported on Wednesday. The British newspaper’s revelation comes once again from the documents provided by former NSA contractor Edward Snowden to American journalists Glenn Greenwald and Laura Poitras.
According to the five-page memorandum of understanding, the agreement appears to be a one-way street. Israel, at least as far as this document is concerned, is not obligated to reciprocate.
The raw SIGINT includes “unevaluated and unminimized transcripts, gists, facsimiles, telex, voice, and Digital Network Intelligence metadata and content.” In the context of SIGINT and spycraft, gist is generally assumed to mean something short of a word-for-word transcript.
The agreement stresses Israel’s obligations to respect the privacy of US persons and limits the uses of the raw intelligence information. However, the stress on Israeli intelligence needing to respect limits on the data—they weren’t allowed to retain data with the identity of US persons for more than one year, for example—suggests just how much private data was shared.
The agreement goes on to acknowledge that the US has longstanding intelligence-sharing agreements with the four other members of the “Five Eyes” alliance: the United Kingdom, Canada, New Zealand, and Australia. Israeli intelligence must apply the same procedures to persons from those countries that it applies to US persons.
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The document is something of a “gentleman’s agreement,” not legally enforceable as a treaty.
“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 NSA knew that the Israelis might be looking at information about US citizens—but they wanted to make sure that US government employees weren’t snooped on.
According to the document, Israel must immediately destroy any communication that is “to or from an official of the US Government,” including anyone from the executive, legislative, or judicial system, “independent of seniority or position.”
Despite the cooperation, Israel is viewed as more of a “frenemey” than a close ally. The Guardian also quoted from, but did not publish, what it described as “another top secret document” from 2008, where 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 is quoted as saying. “A NIE [National Intelligence Estimate] ranked them as the third most aggressive intelligence service against the US.
“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.”
IV. Israel Hated American Ban on Sharing Intel for Assassinations, So U.S. Made New Rules
Israeli military officials privately pressed for an exemption to intelligence restrictions during a 2006 war with Hezbollah.
As Israel and the Lebanese militia Hezbollah exchanged blows during their short-lived but devastating 2006 war, Israeli military officials used private channels to pressure their American counterparts in the National Security Agency for intelligence to help assassinate Hezbollah operatives, according to a pair of top-secret NSA documents. The NSA was legally restricted from providing such information but, after Israeli officials asked for an exemption, U.S. intelligence officials decided on a new framework for information-sharing.
The documents, published on an NSA internal news site called SIDtoday and provided by agency whistleblower Edward Snowden, provide a glimpse into the intelligence relationship between two countries during the 2006 conflict.
They form a two-part SIDtoday article titled “The Israel-Hizballah Crisis — Perspectives from an Acting SLO Tel Aviv,” the personal account of a Tel Aviv-based NSA official — a signals intelligence liaison officer, who is tasked with managing relations with foreign partners — and their experience with their Israeli counterparts during the war. By their account, the NSA relationship with Israel during the 2006 war was strained. The NSA liaison officer recounted disputes that occurred with the Israelis over intelligence requests made by the Israeli SIGINT National Unit, or ISNU, the elite Israeli counterpart to the NSA.
“ISNU’s reliance on NSA was equally demanding and centered on requests for time sensitive tasking, threat warning, including tactical ELINT” — electronic intelligence — “and receipt of geolocational information on Hizballah elements,” the NSA official wrote. “The latter request was particularly problematic and I had several late-night, sometimes tense, discussions with ISNU detailing NSA’s legal prohibition on providing information that could be used in targeted killings.”
“Even with his full understanding of the US statutes, [ISNU Commander] BG Harari sought assistance from NSA for an exemption to this legal policy. To ISNU, this prohibition was contrary not only to supporting Israel in its fight against Hizballah but overall, to support the US Global War on Terrorism.”
“I had several late-night, sometimes tense, discussions with ISNU.”
The account goes on to suggest that the NSA ultimately reached a compromise with its Israeli counterpart by working with the Office of the Director of National Intelligence, or ODNI, the cabinet-level office that oversees U.S. intelligence efforts. “In the end,” the article states, “a framework was decided upon by ODNI that defined the parameters and methods of what could and could not be shared with the Israelis.” The documents do not give details of this framework.
With tensions between Israel and Hezbollah constantly being ratcheted up — and persistent chatter about a new conflict — the logistical, geopolitical, and legal contours of U.S. intelligence-sharing with the Israelis takes on increasing import. The reluctance of U.S. officials to share intelligence information in 2006 highlights the thorny geopolitical dynamic between these longtime allies, whose intelligence agencies are sometimes at odds with each other; it also raises questions about the legality of sharing intelligence with a partner nation operating outside U.S. legal constraints.
The question of what intelligence the United States can legally share with a foreign government is notoriously murky. An executive order signed under President Ronald Reagan in 1981 established that the United States “may enter into intelligence and counterintelligence arrangements and agreements with foreign governments and international organizations.” Decades later, despite revolutions in information collection and retention, as well as numerous campaigns for greater transparency on foreign intelligence-sharing, legal experts say that the legal rules about what can and cannot be shared remain opaque.
“There is very little we know about the U.S. government regulations pertaining to the sharing of intelligence with foreign governments,” said Asaf Lubin, a legal expert on cybersecurity and privacy at the Fletcher School of Law and Diplomacy at Tufts University. “It is fair to assume that the Office of the Director of National Intelligence together with the attorney general have developed certain policies on the formulation and application of these intelligence-sharing regimes, but they are not publicly available.”
The NSA and Israeli intelligence drew up a memorandum of understanding in 2009, authorizing the sharing of certain raw intelligence data, according to a Snowden document published by the Guardian. The memo was controversial for apparently giving the Israelis access to data about American citizens, including private messages and metadata. But the civil liberties implications of the agreement were even more troubling when it came to data vacuumed up by the NSA about non-U.S. persons — people who are not residents or citizens of the United States — and then shared with Israeli intelligence.
As a 2016 Brennan Center for Justice report on the memo noted, “None of the publicly available directives explains how intelligence agencies take into account the impact of intelligence sharing on the human rights of non-U.S. persons.” The report added, “The lack of transparency raises concern that shared information could be used to repress, censor, or persecute, or commit other human rights abuses.”
Handwritten Note Refers to Israeli Request as “Problem Area”
The memorandum of understanding between Israel and the NSA suggests a deal was reached nearly three years after the 2006 Israel-Lebanon War. It’s unclear how much cooperation the NSA provided to Israel during that conflict.
An internal NSA presentation, which was also classified, recapped some of the key issues that arose between the NSA and ISNU during the fighting between Israel and Hezbollah. Dated April 2007, the slide deck also described the NSA’s relationship with ISNU more generally. The document noted that ISNU had roughly 5,500 enlisted conscripts and 1,200 career officers, and that the Israeli agency was headquartered in Tel Aviv with “production centers” in Syria, the Palestinian territories, Egypt, and Lebanon.
“There is very little we know about the U.S. government regulations pertaining to the sharing of intelligence.”
According to the slides, Israeli officials experienced “high anxiety” and were heavily reliant on the NSA for support during the 2006 war with Hezbollah. A slide titled “What Did ISNU Want?” indicated that the Israelis sought information on kidnapped soldiers in Lebanon, Iran’s role in those kidnappings, electronic signals intelligence, and geolocational data. A handwritten note on the margins of the slide — affixed by an unknown person — described this last point as a “problem area.”
The presentation also appraised the war effort, noting that Hezbollah was well-prepared for the conflict and enjoyed logistical support from Iran and Syria. The group operated in civilian neighborhoods, and the Israelis were receiving “bad world press” — presumably a reference to critical news stories about the destruction wrought on Lebanon during the war. As the SIDToday documents noted, life in Tel Aviv carried on more or less normally during the fighting, with hotels and restaurants packed with customers. The presentation also observed that there was “little sympathy for civilian non-Israeli casualties from man-on-the-street.”
The widespread civilian harm caused by the fighting also makes the details of U.S. intelligence cooperation with Israel controversial. Human Rights Watch estimated that over 1,100 Lebanese were killed over the course of the war, largely as a result of Israeli airstrikes and shelling in southern Lebanon. Several dozen Israeli civilians were also killed by Hezbollah rocket and mortar attacks that targeted Israeli border towns. Human Rights Watch later criticized the Israel Defense Forces for using indiscriminate force, claiming that the IDF had shown “reckless indifference to the fate of Lebanese civilians.”
“Israel repeatedly, and in some cases egregiously, violated the laws of war,” Nadim Houry, co-author of the Human Rights Watch report, said. “The Israeli military engaged in indiscriminate aerial attacks and massive use of cluster munitions, repeatedly targeting civilian infrastructure that was not tied in any way to the armed conflict.”
Israeli officials’ own statements seemed to back up human rights groups’ allegations that the IDF had deliberately targeted civilian infrastructure as a means of deterrence. Israeli officials later publicly dubbed this strategy the “Dahiyeh Doctrine,” a name taken from a south Beirut neighborhood that suffered catastrophic destruction during the fighting. Despite employing such tactics, the IDF was largely seen to have lost the war — or at least been fought to a draw by Hezbollah. Two points on the NSA slide presentation stated that, in the aftermath of the war, “public confidence in the IDF erodes” and “military morale/confidence low.”
There are ominous signs that Israel and Lebanon are nearing another confrontation, during which the ISNU may again lean on the NSA for support. Although Israeli intelligence-gathering capabilities are believed to have improved since the last war, Hezbollah has also reportedly acquired significant new arms and fortified areas under its control in southern Lebanon. The IDF recently carried out operations near the Lebanese border to uncover tunnels said to have been dug by Hezbollah, and the Israeli Air Force periodically strikes Hezbollah targets in neighboring Syria.
Over the past several years, Hezbollah leaders claimed to have received “game-changing” weapons that would alter the course of any future war with Israel. For their part, Israeli officials have issued a steady drumbeat of statements emphasizing the level of destruction that Lebanon would suffer during another war, specifically highlighting the grievous harm that would be caused not just to Hezbollah, but also to Lebanese civilians and infrastructure.
“If the next war indeed breaks out, it will be rough. But, first and foremost, it will be rough for the other side,” IDF Maj. Gen. Nitzan Alon warned in an interview last year. “I don’t think any Israeli citizen would want to switch places with a Lebanese citizen during the next war.”
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