Obama May Ban Spying on Heads of Allied States
By MARK LANDLER and DAVID E. SANGER - October 28, 2013
WASHINGTON — President Obama is poised to order the National Security Agency to stop eavesdropping on the leaders of American allies, administration and congressional officials said Monday, responding to a deepening diplomatic crisis over reports that the agency had for years targeted the cellphone of Chancellor Angela Merkel of Germany.
The White House informed a leading Democratic lawmaker, Senator Dianne Feinstein of California, of its plans, which grew out of a broader internal review of intelligence-gathering methods, prompted by the leak of N.S.A. documents by a former contractor, Edward J. Snowden.
In a statement on Monday, Ms. Feinstein, chairwoman of the Senate Intelligence Committee, said, “I do not believe the United States should be collecting phone calls or emails of friendly presidents and prime ministers.” Ms. Feinstein, who has been a stalwart defender of the administration’s surveillance policies, said her committee would begin a “major review of all intelligence collection programs.”
The White House said Monday evening that no final decision had been made on the monitoring of friendly foreign leaders. But the disclosure that it is moving to prohibit it signals a landmark shift for the N.S.A., which has had nearly unfettered powers to collect data on tens of millions of people around the world, from ordinary citizens to heads of state, including the leaders of Brazil and Mexico.
It is also likely to prompt a fierce debate on what constitutes an American ally. Prohibiting eavesdropping on Ms. Merkel’s phone is an easier judgment than, for example, collecting intelligence on the military-backed leaders in Egypt.
“We have already made some decisions through this process and expect to make more,” said a spokeswoman for the National Security Council, Caitlin M. Hayden, adding that the review would be completed in December.
Disclosure of the White House’s proposed action came after the release on Monday afternoon of Ms. Feinstein’s statement, in which she asserted that the White House had told her it would cease all intelligence collection in friendly countries. That statement, senior administration officials said, was “not accurate,” but they acknowledged that they had already made unspecified changes in surveillance policy and planned further changes, particularly in the monitoring of government leaders.
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 crossed wires between the White House and Ms. Feinstein were an indication of how the furor over the N.S.A.’s methods is testing even the administration staunchest defenders.
Aides said the senator’s six-paragraph statement reflected exasperation at the N.S.A. for failing to keep the Intelligence Committee fully apprised of such politically delicate operations as eavesdropping on the conversations of friendly foreign leaders.
“She believes the committee was not adequately briefed on the details of these programs, and she’s frustrated,” said a committee staff member, who spoke on the condition of anonymity. “In her mind, there were salient omissions.”
The review that Ms. Feinstein announced would be “a major undertaking,” the staff member said.
The White House has faced growing outrage in Germany and among other European allies over its surveillance policies. Senior officials from Ms. Merkel’s office and the heads of Germany’s domestic and foreign intelligence agencies plan to travel to Washington in the coming days to register their anger.
They are expected to ask for a no-spying agreement similar to what the United States has with Britain, Canada, Australia and New Zealand, which are known as the Five Eyes.
The United States has historically resisted such agreements, even with friendly governments, though it explored a similar arrangement with France early in the Obama administration. But officials said they would give the Germans, in particular, a careful hearing.
“We have intel relationships that are already very close,” said a senior official, who spoke on the condition of anonymity because of the delicacy of the subject. “There are other types of agreements you could have: cooperation, limits on intelligence, greater transparency. The countries on the top of the list for those are close European allies.”
The National Security Agency has said it did not inform Mr. Obama of its reported monitoring of Ms. Merkel, which appears to have started in 2002 and was not suspended until sometime last summer after the theft of the N.S.A. data by Mr. Snowden was discovered.
“At that point it was clear that lists of targeted foreign officials may well become public,” said one official, “so many of the interceptions were suspended.”
The N.S.A.’s documentation on Ms. Merkel’s case authorized the agency’s operatives in Germany not only to collect data about the numbers she was calling, but also to listen in on her conversations, according to current and former administration officials.
It was unclear whether excerpts from Ms. Merkel’s conversations appeared in intelligence reports that were circulated in Washington or shared with the White House. Officials said they had never seen information attributed to an intercept of Ms. Merkel’s conversations. But they said it was likely that some conversations had been recorded simply because the N.S.A. had focused on her for so long.
In both public comments and private interchanges with German officials, the Obama administration has refused to confirm that Ms. Merkel’s phone was targeted, though it has said that it is not the subject of N.S.A. action now, and will not be in the future.
The refusal to talk about the past has further angered German officials, who have said the surveillance has broken trust between two close allies. The Germans were particularly angry that the operation appears to have been run from inside the American Embassy or somewhere near it, in the heart of Berlin, steps from the Brandenburg Gate.
None of the officials and former officials who were interviewed would speak directly about the decision to target Ms. Merkel, saying that information was classified. But they said the legal distinction between tapping a conversation and simply collecting telephone “metadata” — essentially the kind of information about a telephone call that would be found on a telephone bill — existed only for domestic telephone calls, or calls involving United States citizens.
To record the conversation of a “U.S. Person,” the intelligence agencies would need a warrant. But no such distinction applies to intercepting the calls of foreigners, on foreign soil — though those intercepts may be a violation of local law.
That means that the intercepts of other world leaders could have also involved both information about the calls and the conversations themselves.
Dennis C. Blair, Mr. Obama’s first director of national intelligence, declined to speak specifically about the Merkel case. But he noted that “in our intelligence relationship with countries like France and Germany, 90 to 95 percent of our activity is cooperative and sharing, and a small proportion is about gaining intelligence we can’t obtain in other ways.”
He said he had little patience for the complaints of foreign leaders. “If any foreign leader is talking on a cellphone or communicating on unclassified email, what the U.S. might learn is the least of their problems.”
In addition to the Germans, European Union officials and members of the European Parliament are descending on Washington to deliver a tough message: The N.S.A.’s surveillance is unacceptable and has eroded trust between the United States and Europe.
“The key message is there is a problem,” said Silvia Kofler, a spokeswoman for the European Union. “We need to re-establish the trust between partners. You don’t spy on partners.”
One potential threat, Ms. Kofler said, was to the negotiation of the Trans-Atlantic Trade and Investment Partnership, one of Mr. Obama’s major trade initiatives. European Union officials, she said, were anxious to keep those talks on track but would require unspecified “confidence-building measures” to restore trust between the two sides.
An administration official said the White House would take these visits seriously, having senior officials from several government agencies and the White House meet with the Germans, though no meetings have yet been scheduled.
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