Politics & Policy

Did the White House Use the NSA to Spy on Congress about the Iran Deal?

President Obama and Prime Minister Netanyahu in the Oval Office in 2014. (Andrew Harrer/Getty)
If true, the administration would seem to have violated major privacy laws.

According to a bombshell Wall Street Journal article by Adam Entous and Danny Yadron, published online late Monday, the National Security Agency provided the White House with intercepted Israeli communications containing details of private discussions between Israeli prime minister Benjamin Netanyahu and U.S. lawmakers and American Jewish groups on the Iran nuclear deal. If true, this could be the biggest scandal of the Obama presidency.

The Journal article explains that President Obama decided to stop NSA collection against certain foreign leaders after the backlash against Edward Snowden’s disclosure that the NSA had eavesdropped on German chancellor Angela Merkel’s cellphone and monitored communications of the heads of state of other close U.S. allies.

According to the Journal story, President Obama did not halt NSA spying against Netanyahu. This is not a surprise, given the president’s chilly relations with the Israeli leader and Israel’s aggressive spying against the United States. It’s also not a surprise that the Obama administration sought intelligence on Netanyahu’s efforts to undermine the nuclear deal. But it is stunning to learn that NSA sent the White House intelligence on private discussions with U.S. congressmen on a major policy dispute between the White House and Congress.

According to the Journal article, to avoid a paper trail that would show that they wanted the NSA to report on Netanyahu’s interactions with Congress, Obama officials decided to let the agency decide how much of this intelligence to provide and what to withhold. The article cited an unnamed U.S. official who explained, “We didn’t say, ‘Do it.’ We didn’t say, ‘Don’t do it.’”

This suggests major misconduct by the NSA and the White House of a sort not seen since Watergate.

This suggests major misconduct by the NSA and the White House of a sort not seen since Watergate. First, intercepts of congressmen’s communications regarding a dispute between Congress and the White House should have been destroyed and never left the NSA building. The Journal article said a 2011 NSA directive requires direct communications between foreign intelligence targets and members of Congress to be destroyed, but gives the NSA director the authority to waive this requirement if he determines the communications contain “significant foreign intelligence.”

Netanyahu’s discussions with members of Congress on a policy dispute between Congress and the president do not qualify as foreign intelligence. Destroying this kind of information should not have been a close call for NSA. Congress should immediately ask NSA director Michael Rogers and Director of National Intelligence James Clapper to verify the Journal story and explain why intercepts of private discussions of members of Congress were provided to the White House. If this did happen, both officials should resign.

Second, the White House bears significant responsibility for this scandal. 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.

#share#The claim that Obama officials did not directly instruct the NSA to collect this information but simply accepted what the NSA sent them is preposterous. 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. This story is another indication of how desperate the Obama administration was to get a nuclear deal with Iran.

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. These initiatives might have pushed the envelope of the law and intelligence charters, but they were carried out to defend the nation against terrorism and targeted terrorist suspects. By contrast, the Journal article discusses domestic intelligence activities that clearly are prohibited: targeting U.S. citizens over a policy dispute, and targeting the legislative branch of government.

RELATED: Why We Shouldn’t Trust the NSA with Our Metadata

Congress should be outraged over this story, especially in light of how narrow the votes were in September to disapprove the Iran deal. The Obama administration won these votes because it did a better job than the congressmen and American Jewish groups who opposed the Iran deal of persuading Democratic members to support it. The Journal story suggests that NSA collection against American opponents of the deal may have helped the Obama administration win this battle for Democratic support.

Congressional anger over the Journal story might force intelligence officials to resign. However, I believe there is no chance anyone in the Obama White House will be held accountable, since the Obama Justice Department will refuse to investigate and Obama officials probably will feign ignorance. Still, I hope the congressional intelligence committees will conduct full investigations.

The Wall Street Journal article describes a bona fide abuse of intelligence for which I can offer no defense.

The story will damage relations between the Obama White House and Congress, but since these relations are already so poor, it is hard to see how much farther they can sink. The Journal story could inflict serious damage on the reputation of the U.S. intelligence community, which has been struggling to defend itself against unfair and misleading attacks by privacy advocates, liberals, and libertarians, sparked by the Snowden leaks.

I am one of many conservatives who have fought over the last few years to defend U.S. intelligence agencies against these attacks, which have weakened U.S. intelligence programs and undermined the morale of intelligence personnel. But the Journal article describes a bona fide abuse of intelligence for which I can offer no defense.

If it is true that the NSA provided intercepts of the private discussions of congressmen with Netanyahu on the Iran deal, this will be a huge gift to the U.S. intelligence community’s critics, who will say this story confirms their claims about how American intelligence agencies routinely violate the law and the privacy rights of Americans. It also could cause the U.S. intelligence community to lose congressional support, and Congress to pass more legislation restricting important counterterrorist intelligence programs.

National-security-minded Americans should call on Congress to fully investigate this matter and hold the Obama administration and intelligence officials accountable to the greatest extent possible. But the best response to this outrage will be to make it a top issue in the 2016 presidential campaign. This fiasco represents a serious lack of leadership and ethics by the Obama administration that will never be fixed by the ethically challenged Hillary Clinton. It may be the best reason yet why we need a new president who will implement comprehensive government reform and hold himself and his administration to a much higher ethical standard.

— Fred Fleitz is senior vice president for policy and programs with the Center for Security Policy. He held national-security jobs for 25 years with the CIA, DIA, Department of State, and House Intelligence Committee staff.

Fred Fleitz — Fred Fleitz is senior vice president for policy and programs with the Center for Security Policy, a Washington, DC national security think tank. He held U.S. government national security ...

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