- By Colum LynchColum Lynch is Foreign Policy's award-winning U.N.-based senior diplomatic reporter. Lynch previously wrote Foreign Policy's Turtle Bay blog, for which he was awarded the 2011 National Magazine Award for best reporting in digital media., John HudsonJohn Hudson is a senior reporter at Foreign Policy covering diplomacy and national security., Shane Harris
Shane Harris is a senior staff writer at Foreign Policy, covering intelligence and cyber security. He is the author of The Watchers: The Rise of America's Surveillance State, which chronicles the creation of a vast national security apparatus and the rise of surveillance in America. The Watchers won the New York Public Library’s Helen Bernstein Book Award for Excellence in Journalism, and the Economist named it one of the best books of 2010. Shane is the winner of the Gerald R. Ford Prize for Distinguished Reporting on National Defense. He has four times been named a finalist for the Livingston Awards for Young Journalists, which honor the best journalists in America under the age of 35. Prior to joining Foreign Policy, he was the senior writer for The Washingtonian and a staff correspondent at National Journal.
An effort in the United Nations by Brazil and Germany to hold back government surveillance is quickly picking up steam, as the uproar over American eavesdropping grows.
The German and Brazilian delegations to the U.N. have opened talks with diplomats from 19 more countries to draft a General Resolution promoting the right of privacy on the Internet. Close American allies like France and Mexico — as well as rivals like Cuba and Venezuela — are all part of the effort.
The push marks the first major international effort to curb the National Security Agency’s vast surveillance network. Its momentum is building. And it comes as concerns are growing within the U.S. intelligence community that the NSA may be, in effect, freelancing foreign policy by eavesdropping on leaders like Germany’s Angela Merkel.
The draft, a copy of which was obtained by The Cable, calls on states "to respect and ensure the respect for the rights" to privacy, as enshrined in the 1976 International Covenant on Civil and Political Rights. It also calls on states "to take measures to put an end to violations of these rights" and to "review their procedures, practices and legislation regarding the extraterritorial surveillance of private communications and interception of personal data of citizens in foreign jurisdictions with a view towards upholding the right to privacy."
The draft does not refer to a flurry of American spying revelations that have caused a political uproar around the world. But it was clear that the revelations provided the political momentum to trigger the move to the U.N.
"We’ll of course review that when the text is available," State Department spokeswoman Jen Psaki said, speaking of Germany and Brazil’s draft. "
"It’s not something you’re opposed to in principle?" a reporter asked.
"No," said Psaki. "Our U.N. mission in New York will review the text as usual."
The NSA has reportedly monitored communications of up to three dozen world leaders and accessed the emails of the president of Mexico.
The draft appears designed to provide oversight of those types of incursions — as well as surveillance incursions of average citizens worldwide. It requests that the U.N. High Commissioner for Human Rights report to the U.N. General Assembly twice in the next two years on "human rights and indiscriminate surveillance" with "views and recommendations" aimed at "identifying and clarifying principles, standards and best practices on the implications for human rights of indiscriminate surveillance."
The State Department said Friday that the U.S. initiated a review of its surveillance practices in order to "balance security needs with privacy concerns." However, it’s already clear that even individuals in the intelligence community are concerned that NSA activities have gone beyond the pale.
Former intelligence officials tell The Cable they are concerned that NSA officials have been deciding on their own which foreign leaders to "target," or collect information about. "We’re targeting these leaders. Who’s making these political decisions? Gen. Alexander or one of his subordinates?" said a former senior intelligence official. "If so, he is getting to make decisions that have wider impact on international relations."
Vanee Vines, and NSA spokesperson, said that the agency takes its cues from higher up the official chain of command. "NSA is not a free agent," she told The Cable. "The agency’s activities stem from the National Intelligence Priorities Framework, which guides prioritization for the operation, planning, and programming of U.S. intelligence analysis and collection."
The framework is a list of priority issues that senior policymakers want the intelligence agencies to work on. It could include long-term matters such as the threat of global terrorism, or more specific and pressing questions, such as how long until Iran is able to build a nuclear weapon.
The list is reviewed twice a year by the most senior officials in government, including the secretaries of Defense, State, and Treasury, as well as the president’s chief of staff and national security adviser. And it’s ultimately approved by the president. But the individual intelligence agencies are generally left to decide how to best address those priorities, which includes choosing what types of intelligence to collect.
Another former senior intelligence official said that, in practice, the NSA is told to collect certain kinds of information, but it also preemptively does that job in anticipation of what its "customers" — those senior government decision-makers — will want and need.
"It works both ways," the former official said. "There are two things the NSA wants to do: Answer their customer’s request, and anticipate their customer’s needs. There’s not a doubt in my mind they’re doing both."
Administration officials have avoided answering questions about what kind of surveillance was ordered against foreign leaders. In response to allegations that Merkel’s phone was tapped, the White House issued a statement that the United States " is not monitoring and will not monitor" her communications. But it didn’t say whether the United States had done so in the past.
There’s nothing in the intelligence framework that would require the NSA to get permission to intercept Merkel’s calls. And it remains unclear what specific direction, if any, the agency received from the White House or senior administration officials about which foreign leaders to target.
According to the framework, the director of national intelligence and his senior staff play a key role in recommending to policymakers what items should be included on the priorities list. And they gather opinions from the component intelligence agencies, of which the NSA is one.
When it comes down to ensuring that the agencies are collecting the right intelligence to meet their customers needs, the director of national intelligence and the individual agencies are authorized to make those decisions, according to the framework.
The heads of executive departments and agencies also have authority to manage elements within their organization. The NSA, for instance, is part of the Defense Department, and can be directed to perform certain intelligence functions by the Secretary of Defense.
On at least one occasion, the NSA appears to have taken upon its own initiative gathering up of phone numbers, email and residential addresses of foreign officials. In 2006, according to an internal NSA memo published by the Guardian, the agency asked U.S. officials to supply contact information of foreign leaders from their personal "Rolodexes." One unnamed official gave the agency 200 phone numbers, which led to the monitoring of 35 world leaders. The memo makes clear that the NSA unit decided on its own to start asking U.S. officials to supply them with such leads.
The report raised questions as to whether State Department officials handed over contact information of foreign leaders to the NSA — an action Foggy Bottom would neither confirm nor deny.
"I was just wondering if you would answer if any State Department employees offered contact information … of foreign leaders to the NSA?" The Cable asked Psaki.
"I’ve seen those reports. I don’t have anything for you on it," she said.
"So you don’t know if there were any State Department employees…"
"I don’t have anything for you on it," repeated Psaki.
The former intelligence official who questioned whether Alexander was making decisions on which leaders to target predicted there will be far-reaching repercussions to revelations about spying on foreign leaders. Stories about NSA’s global surveillance already had sparked public protests in Germany, and in Brazil, the government is considering whether to require companies that store citizens’ personal information on databases inside the country, where they’d be harder for the NSA to access.
"The extent to which international political opinion and law are going to condition intelligence collection for the future, that’s a new world," the former official said, adding that the NSA is not prepared to deal with that political blowback.
You can read the U.N. draft in full below. Other countries participating in the talks are Argentina, Austria, Bolivia, Ecuador, Guyana, Hungary, India, Indonesia, Liechtenstein, Norway, Paraguay, South Africa, Sweden, Switzerland, and Uruguay.