Report that NSA spying on Israel reached Congress raises abuse of power questions

Last night, I wrote about a Wall Street Journal report that the NSA spied on Israeli Prime Minister Netanyahu and members of his government, and that the spying included intercepting communications with members of Congress. I included in the post the Journal’s brief discussion of the rules that apply to U.S. surveillance that reaches such members.

According to the Journal:

A 2011 NSA directive said direct communications between foreign intelligence targets and members of Congress should be destroyed when they are intercepted. But the NSA director can issue a waiver if he determines the communications contain “significant foreign intelligence.”

The NSA has leeway to collect and disseminate intercepted communications involving U.S. lawmakers if, for example, foreign ambassadors send messages to their foreign ministries that recount their private meetings or phone calls with members of Congress.

The Journal’s sources claim that Israeli officials in the U.S. prepared detailed messages to their government about their exchanges with lawmakers. Thus, they would argue, they had “leeway” to disseminate the intercepted communications that were described in internal Israeli communications. I suppose the question would then be whether every intercepted communication transmitted by the NSA to the White House was recounted by the Israelis internally.

But Fred Fleitz, senior vice president for policy and programs with the Center for Security Policy and 25 year veteran of the CIA, DIA, Department of State, and House Intelligence Committee staff, raises a more fundamental point. He argues that Netanyahu’s discussions with members of Congress on a policy dispute between Congress and the president do not qualify as foreign intelligence. Thus, he continues, there was no “leeway” to disseminate the information; it should have been destroyed immediately.

Looking at the bigger picture, Fleitz contends:

By encouraging and accepting this intelligence, the White House used the NSA as an illegitimate means to undermine its legislative opponents. This represented a major abuse of presidential power, since it employed the enormous capabilities of an American intelligence service against the U.S. Congress. It also probably violates the U.S. Constitution’s separation-of-powers principles and the Fourth Amendment, since surveillance may have been conducted against U.S. citizens without a warrant.

I take no position at this point on the constitutional question. However, if the Wall Street Journal’s report is accurate, the abuse of power seems beyond dispute.

Nor, as I argued in my post, does it matter if Team Obama let the NSA decide what to send the White House. As Fleitz puts it:

If the Journal article is accurate, Obama officials knew they were receiving intelligence on the private conversations of U.S. congressmen on a major policy dispute. These officials knew they were not supposed to have this intelligence but did not cut it off, because they wanted to use it to defeat efforts by Netanyahu and Congress to derail the Iran nuclear deal.

Spot on.

I disagree, however, with Fleitz’s view that it is “truly bizarre that Obama officials would be parties to such a gross misuse of U.S. intelligence after the controversy caused by NSA collection of phone records under the metadata program and so-called warrantless wiretaps by the Bush administration.” Given Obama’s lawlessness, his hatred of Netanyahu, and his desire to complete a legacy-making deal with Iran, I see nothing bizarre in his decision to misuse the NSA in this manner.

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