The country's intelligence leaders shuffle off to Capitol Hill for excoriation on Tuesday, even as the Obama administration and Congress plan new limits on their powers. It's a bad day for the NSA — but rest assured, the spies will not go quietly.
Of all things, it appears to have been the National Security Agency's surveillance of foreign leaders that tipped the scales. California Sen. Dianne Feinstein suggested that the administration was considering a ban on such spying on Monday — and the administration quickly denied her suggestion. That spying, including monitoring of German chancellor Angela Merkel's personal phone, has become a flashpoint largely because it isolates the United States from allies that have otherwise seemed complacent about the NSA's activity. Foreign Policy reported last week that 21 nations were backing an effort at the UN to ban such surveillance. In her statement, Feinstein — a staunch, fiery ally of the NSA's to this point — joined that effort, declaring that she was "totally opposed" to such behavior and that it required President Obama's direct approval.
The Obama administration has denied having granted such permission, and, as Foreign Policy notes, there's no reason the NSA would have needed it to do so. In a report in Tuesday's New York Times, it appears that Feinstein got the theme of the administration's response correct, if not the details. The outcry from allies, domestic and foreign, has indeed prompted the administration to implement new limits on the NSA, albeit confidential ones. The Times' Mark Landler and David E. Sanger report:
The administration will reserve the right to continue collecting intelligence in friendly countries that pertains to criminal activity, potential terrorist threats and the proliferation of unconventional weapons, according to several officials. It also appeared to be leaving itself room in the case of a foreign leader of an ally who turned hostile or whose actions posed a threat to the United States.
The definition of "ally," the Times notes, is a fluid one. It writes: "Prohibiting eavesdropping on Ms. Merkel’s phone is an easier judgment than, for example, collecting intelligence on the military-backed leaders in Egypt."
For the first time since the surveillance of foreign leaders was first reported, the head of the NSA, Keith Alexander, and Director of National Intelligence James Clapper will testify before the House Intelligence Committee on Tuesday afternoon. They're expected to face questions about that spying and other recent NSA revelations. But one can also expect that they'll fight back.
The Los Angeles Times' Ken Dilanian and Janet Stobart report that the intelligence community is increasingly frustrated with being the bad guy. The newspaper interviewed "current and former" intelligence officials who suggest that Obama and his aides were, in fact, aware of the surveillance of foreign leaders. "Professional staff members at the National Security Agency and other U.S. intelligence agencies are angry, these officials say, believing the president has cast them adrift as he tries to distance himself from the disclosures by former NSA contractor Edward Snowden that have strained ties with close allies," Dilanian and Stobart write.
That mirrors what Foreign Policy's "The Cable" blog was told.
"We're really screwed now," one NSA official told The Cable. "You know things are bad when the few friends you've got disappear without a trace in the dead of night and leave no forwarding address."
That official was responding to Feinstein's dramatic-if-not-complete about-face in her defense of the agency. A bill introduced by the senator that would write into law the NSA's collection of phone record data is being marked up by the Senate Intelligence committee on Tuesday, a key step in the path to passage. That record collection, the daily gathering of phone call metadata authorized by the Foreign Intelligence Surveillance Court, is authorized under an interpretation of Section 215 of the Patriot Act. Feinstein wants to make the authorization explicit.
The author of the Patriot Act, however, considers that data collection an abuse of the intent of the law. Wisconsin Rep. James Sensenbrenner will on Tuesday introduce legislation curtailing the NSA's ability to use that data. When a similar measure came up in July, it was barely defeated. Since, as MSNBC reports, six members of the House have switched their positions against the NSA. Had they voted the other way in July, it would have been a 211-211 tie.
In a Tuesday editorial, The New York Times backed Sensenbrenner's bill, which will be carried in the Senate by Sen. Patrick Leahy of Vermont.
The bill would require a court order in order to search for Americans’ communications in data collected overseas, which falls under the Foreign Intelligence Surveillance Act, and it would restrict “reverse targeting” — targeting a foreigner with the goal of getting information about an American. The bill would not address spying on foreigners, including such abuses as in the Merkel affair. Those activities are governed by a presidential order that is secret and certain to remain so.
The Times also notes that this surveillance didn't originate with the president that is bearing the brunt of the blowback. Spying on foreign leaders, the paper's editorial board notes, "is an outgrowth of the post-9/11 decision by President Bush and Vice President Dick Cheney that everyone is the enemy, and that anyone’s rights may be degraded in the name of national security." On Fox News on Monday, former Bush administration spokesperson Dana Perino doggedly defended the NSA spying. Fox host Shep Smith said he was "depressed" about the NSA's activity: "Why wouldn't I be depressed about this? I now know that the government spies on everything illegally." To which Perino cheerily responded, "It's not illegal!"
Tuesday may mark the day when that fact began to change.
Photo: Keith Alexander. Not pictured: black cloud hanging over his head. (AP)