James Risen and Laura Poitras at the New York Times have the latest scoop from the steady drip drip drip of National Security Agency files that former NSA contractor Edward Snowden stole and has been distributing to reporters since the middle of last year.
They report the news breathlessly, but there's far less there there than their presentation would lead a casual reader to believe. They write:
A top-secret document, obtained by the former N.S.A. contractor Edward J. Snowden, shows that an American law firm was monitored while representing a foreign government in trade disputes with the United States. The disclosure offers a rare glimpse of a specific instance in which Americans were ensnared by the eavesdroppers, and is of particular interest because lawyers in the United States with clients overseas have expressed growing concern that their confidential communications could be compromised by such surveillance.
Scary, huh? No. Not at all. Here's my summary of the key assertions in the article, stripped of spin, drama, and adjectives:
"A 2013 memo leaked by Edward Snowden shows that Australia's version of the NSA, while engaged in electronic surveillance of an Indonesian trade delegation, came across communications between the Indonesian officials and a US law firm the country had hired for help with trade talks. Australia informed the NSA liaison office in Canberra that intelligence it was collecting and willing to share with the US might infringe on US attorney-client privilege laws. The liaison referred the matter to the NSA general counsel in the US and some sort of legal guidance was sent back. The memo does not say, nor has the Times been able to learn by other means, what that guidance was."
Foreign governments hire US law firms and lobbyists all the time and it would be foolish to assume that US and foreign government signal intelligence collection operations targeting foreign governments don't frequently come across communication between the targets and the US companies in their employ. Yet here's an instance of what can safely be presumed to be a routine occurrence in which US ally Australia - not bound by any US law in its intelligence collection - immediately notified the US of a potential legal problem with intelligence sharing.
The guidance the US sent back (for all we know - the Times doesn't) may well have been: "Feed us the stuff the Indonesian officials say but redact anything involving any American citizens who were involved." Or it could have been: "Give us everything - our lawyers have determined that all of this is legal for us to collect."
In fact, an NSA spokeswoman quoted in the article - if you read down to the 13th paragraph - says the agency takes attorney client privilege very seriously. The NSA's Vanee M. Vines told the paper that in cases like the one described in the article that the agency's legal office could recommend steps including "requesting that collection or reporting by a foreign partner be limited, that intelligence reports be written so as to limit the inclusion of privileged material and to exclude U.S. identities, and that dissemination of such reports be limited and subject to appropriate warnings or restrictions on their use."
This all strikes me as very positive and a far cry from the Times' recommendation in the story's first paragraph to add "American lawyers... (to) the list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners."
The article provides evidence that legal concerns are front and center when intelligence sharing comes up. And while Australia may be the junior partner in the defense relationship with the US, they punch far above their weight when it comes to neighbor Indonesia, the world's fourth largest country. Australia has more linguists and specialists and resources focused on Indonesia than the US does and Australia's willingness to share intelligence about the country of relevance to US interests is evidence of how the so-called "Five eyes" alliance (intelligence sharing between Australia, New Zealand, Canada, the UK and the US) is a two-way street.
To some, all US intelligence cooperation with foreign governments is nefarious. Take Glenn Greenwald, who's been the most prominent of the reporters receiving documents from Snowden and has emerged as a sort of unofficial spokesperson and cheerleader for both the man himself and the supposedly earth-shattering implications of everything he has revealed. This was his response to the Times' story on Twitter:
There's almost no separation between Five Eyes alliance on spying: Australian spying on US law firm w/NSA knowledge http://t.co/5vyopClbCZ— Glenn Greenwald (@ggreenwald) February 16, 2014
What is his point here? It would be better if Australia was conducting its spying activities while keeping the US in the dark? That America has some power to demand Australia rein in its intelligence targeting of Indonesia - one of the country's two most important intelligence targets?
As for "almost no separation" what is actually shown is... separation. Australia, not as familiar with US laws as the NSA is - let the US know what was going on and asked for guidance.
Finally, it's perfectly legal for the US government to receive intelligence from abroad about US citizens under some (well, many) circumstances. If it wasn't, shutting down the NSA (and the CIA etc...) for a foreign government would be as simple as hiring US lawyers.
The Lawfare blog takes a look at the legal rules governing US intelligence collection overseas:
So what would those rules have been? The key is minimization. When the U.S. conducts this sort of surveillance under FISA Section 702 (the minimization rules under Executive Order 12333 probably differ somewhat), NSA cannot target anyone for Section 702 collection—not even foreign persons overseas—without a valid foreign intelligence purpose. Section 702 categorically forbids intentionally targeting any U.S. person—or any other person believed to be inside the U.S. And it requires NSA to follow procedures to minimize any information acquired in the course of targeting non-U.S. persons reasonably believed to be located outside the United States. So it would be legal to target Indonesian officials engaged in trade talks with the United States, but NSA would have to discard any communications they might have with US persons—lawyers or not—to the extent there was no foreign intelligence value in those communications. And NSA would have to discard and mask the US persons’ identities except to the extent that those identities themselves had foreign intelligence value.
Was there something illegal about this case of Australian-US intelligence cooperation? All things are possible. But there is zero evidence provided if there was and plenty of indications that this was all above board.