The Oversight Black Hole of the Merkel Tap

In one of the better pieces on White House and anonymous NSA official claims about whether President Obama knew of the wiretaps on Angela Merkel, the NSA spokesperson gets to the crux of the issue.

“NSA is not a free agent,” said NSA spokesperson Vanee Vines. “The agency’s activities stem from the National Intelligence Priorities Framework, which guides prioritization for the operation, planning, and programming of U.S. intelligence analysis and collection.” The framework is approved by the top leaders of the government, but it leaves the question of how best to gather intelligence to the individual agencies.

This statement gets at why the anonymous NSA source claims that someone — whether it be Keith Alexander or another briefer — informed Obama of the tap on Merkel in 2010 and that he authorized it continue and the White House’s rebuttal that he didn’t know about the wiretaps on world leaders.

The account suggests President Barack Obama went nearly five years without knowing his own spies were bugging the phones of world leaders. Officials said the NSA has so many eavesdropping operations under way that it wouldn’t have been practical to brief him on all of them.

They added that the president was briefed on and approved of broader intelligence-collection “priorities,” but that those below him make decisions about specific intelligence targets.

The senior U.S. official said that the current practice has been for these types of surveillance decisions to be made at the agency level. “These decisions are made at NSA,” the official said. “The president doesn’t sign off on this stuff.” That protocol now is under review, the official added.

That is, the President approves the National Intelligence Priorities Framework and gets the results of the collection authorized by it, but he may not know specifically how each piece of intelligence was collected. I have no doubt Obama approved a continued focus on EU leaders in the aftermath of the financial crisis, but find it plausible that he did not know that would include monitoring Merkel’s private cell phone.

Here’s how the NIPF describes it working.

1. The National Intelligence Priorities Framework (NIPF) is the DNI’s sole mechanism for establishing national intelligence priorities.
2. Intelligence topics reviewed by the National Security Council (NSC) Principals Committee (PC) and approved by the President semi-annually shall form the basis of the NIPF and the detailed priorities established by the DNI.
3. The NIPF consists of:

a. Intelligence topics approved by the President.
b. A process for assigning priorities to countries and non-state actors relevant to the approved intelligence topics.
c. A matrix showing these priorities.

4. The NIPF matrix reflects customers’ priorities for intelligence support and ensures that long-term intelligence issues are addressed.
5. The NIPF matrix is updated semi-annually, and ad hoc adjustments may be made to reflect changes in world events and policy priorities.
6. The ODNI and IC elements shall use the NIPF in allocating collection and analytic resources.

And while I don’t doubt that Keith Alexander has had specific conversations with the President about sources and methods, with one exception, the formal process (and therefore the thing bureaucrats will point to in case of embarrassment) works through the NSC.

The exception is this:

10. The Assistant Deputy Director of National Intelligence for the President’s Daily Brief shall assist the DDNI/A in developing national intelligence priorities during the semi-annual reviews.

That is, the guy in charge of producing and delivering the President’s Daily Brief may provide input into this process outside the NSC chain (remember this policy was written under the Bush Administration, which has a rather storied history of demanding intelligence via the daily briefers, probably to hide having obtained it via another source).

The problem with all this, of course, is that it is treated as clandestine intelligence gathering, just like recruiting Human Sources. While it is secret, it is not the kind of covert op that requires deniability and therefore specific Congressional approval.

Indeed, while normally the discovery of a single tap (remember the bug allegedly found in Ecuador’s Embassy) will cause a minor diplomatic tiff, the sheer scale of this — and that world leaders are collectively positioned to take advantage of Obama’s embarrassment over it — makes it a bigger deal requiring these non-denial denials.

The bigger problem with this is that it means this massive program (both the bulk collection and the taps on phones) receives very little oversight outside of the Agency and ODNI. The Intelligence Community would — and presumably did — get kudos for all the nifty insights onto how Merkel’s political relationships worked (this is her political, not official, phone), but very few questions about what kind of specific operations are happening.

Here’s the thing. Unlike many of the domestic and quasi-domestic programs, this probably really is perfectly legal (at least under domestic law — it is being challenged both for violating German and international law). Congress has long left the President’s ability to collect foreign intelligence relatively unchecked and we don’t extend Constitutional protections to foreigners not in the US.

But the other problem with it is that these EO 12333 by technical necessity also collect on US persons. And that may well be illegal. Though if no one outside the Agency and DNI is reviewing, how will we stop it?

The White House keeps inching closer to admitting that there need to be real constraints on what we’re doing.

In conjunction with or British partners, we have developed the ability to collect and scan and store much of the telecom traffic in the world. It’s a monstrous machine that developed under a reasonable albeit thoroughly outmoded legal structure.

And yet no one noticed that it had turned into a monster.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

16 replies
  1. bevin says:

    “I……find it plausible that he did not know that would include monitoring Merkel’s private cell phone.”

    I defer to your judgement on the matter.
    But if you are right there is serious problem in the White House if the President either does not realise, or cannot communicate with subordinates, that this sort of espionage would become public knowledge, that it graphically underlines the real relationship between the US and its satellites and that it could not yield much more than a knowledgeable analyst could have worked out from the public record.

  2. lysias says:

    Doesn’t the President chair the National Security Council ex officio? Does he not regularly attend its meetings?

  3. scribe says:

    I am disinclined to believe that Obama did not know about tapping Merkel’s phone. I say this for five reasons.

    1. Obama has been repeatedly described as an enthusiastic consumer of intelligence by people who worked in his WH. (Like, IIRC, Brennan as leaker)

    2. As discussed in the Bild am Sonntag article I cited to in my comment yesterday:
    (a) a statement from Bild’s source in which the source told Bild that, in 2010, Obama indicated he did not trust Merkel,
    (b) that later the White House ordered (“bestellt”) a comprehensive (“umfassend”) dossier on Merkel to answer the question posed in a direct quote related by the source:
    (c) “who is this woman exactly?” Obama wanted to know, in 2010.

    Und nicht nur das: Später bestellte das Weiße Haus bei der NSA ein umfassendes Dossier über die Kanzlerin. Denn Obama, so der hochrangige NSA-Mann, traute Merkel nicht, wollte alles über die Deutsche wissen: „Wer ist diese Frau genau?“

    3. Other German media, particularly the Suddeutsche Zeitung, have noted that Obama and Merkel did not get along from jump, starting at least when Obama wanted to speak during his 2008 campaign (a week before McSame went all “we are all Georgians now” and then named Palin. You remember it.) at the Brandenburg Gate and Merkel, then the head of state, was decidedly against it.

    4. The Bild report also indicated the intercepts from Merkel’s phone did not go to NSA headquarters in Fort Meade (like normal intel would) but rather were stovepiped directly to the White House. That sort of treatment is reserved for information of the highest interest to the consumer when the consumer is sufficiently high-ranking to have the juice to get it. In other words, when the President wants it.

    5. The Bild report also noted that it appears pretty clear that the scope of NSA’s intercepts of Merkel expanded after the 2010 meeting between Alexander and Obama. Initially, they had been intercepting only Merkel’s phone supplied by the CDU/CSU political party, but then they expanded interception to every other phone she used with the probable exception of her office landline. This indicates the NSA went from collecting political intelligence to a “whole life” approach.

    They don’t like each other, he doesn’t “trust” her for whatever reason, and he wants to know “who is this woman exactly?”. And then they build a comprehensive dossier on her to answer the president’s question. And the president doesn’t know?

    I recognize that a lot of the interception of Merkel is perfectly legal under US law. And that it’s probably expected in the realm of international politics. (Not for nothing, recall the NSA spent no little time and effort persuading Obama post the 2008 election that he absolutely had to stop using his crackberry. Apparently he was a thumb-working demon on that thing all the time.) But, the interceptions are crimes under German law and pretty serious ones at that. Having had bad experiences with two (or 3, if you count the Russians) sets of secret police within living memory, the Germans have some of the strictest personal privacy laws going. It can be a crime to take data containing personally identifiable information across their borders. So, their upset is quite understandable. Ministers are talking about prosecutions. Merkel is reported to be “empoert” – furious.

    But, no. I believe Obama knew. He’s a poker player and a good one, and he would (want to) know if he was seeing his opponent’s cards.

  4. joanneleon says:

    A monster. Agreed. After 9/11, it had already been determined that the intelligence machine was a monster then and it’s only gotten magnitudes worse. The timing was such that NSA had to make some huge changes to adapt to the connected world of the internet. But since it coincided with 9/11 and they were given boundless money and elimination of some previous restrictions and access to contractors and the help of private industry, it just went wild.

    Still, I don’t believe for a minute that Obama wasn’t aware of the monitoring of heads of state and key figures in the EU process. I appreciate the way the article cited lays out the process for making priorities and choosing targets to achieve those priorities but I’m more inclined to believe the intel community source who took big risks to put that info out to the German press with some specifics about how Obama was interested in collecting even more information about Merkel. I think the process described in the Foreign Policy article sounds very credible but I think there are almost certainly exceptions to those target selection rules when it comes to heads of state and very key figures. In fact, didn’t we read about agreements between heads of state not to spy on each other? Maybe that’s a fig leaf, I don’t know. But the “he didn’t know” is more likely an attempt to claim the plausible deniability where there was, IMHO, probably none.

  5. GKJames says:

    Without disagreeing in the least that Obama’s White House, like each of his predecessors’, is a 24×7 bullshit machine, it’s easily plausible that the national security apparatus is doing a whole host of things about which the C-in-C is clueless. Part of that is intentional, of course (deniability and all that). But the bigger picture suggests the inevitability of a dynamic that’s been decades in the making. Presidents get the information that the apparatus deigns to give them. In fact, each day begins with the briefing that tells him, effectively, how the apparatus sees the world that morning and what should be done about it. Which is why it’s no wonder that, in the 66 years since it was given life, the apparatus has come to control the C-in-C, not the other way around. And precisely why the legislative and judicial branches’ abject failure to provide the vital checks and balances is as portentous as it is.

  6. lefty665 says:

    “And yet no one noticed that it had turned into a monster.” Not so. People like DiFi did. She fed the monster and called it treason when Snowden revealed how big it had grown.

    There are a lot of folks both in Congress and two administrations who actively created what we’ve got today. Please do not let them off the hook with “no one noticed”.

    Bet you can go to Meade today and find lots of folks who still believe in the Constitution and the First Commandment of spookdom, never collect domestically.

    The monster was created when Duhbya and Hayden turned NSA inward. A fish rots from the head. In this case, Duhbya, Cheney, Hayden, Jello Jay, Obama, Clapper, Alexander, DiFi et al.

    “no one noticed”? Bullshit. We got exactly what they wanted, planned and executed.

  7. liberalrob says:


    …there is serious problem in the White House if the President either does not realise, or cannot communicate with subordinates, that this sort of espionage would become public knowledge, that it graphically underlines the real relationship between the US and its satellites and that it could not yield much more than a knowledgeable analyst could have worked out from the public record.

    Nixon did not authorize the burglary of the DNC offices. But he did authorize the cover-up and was in on its planning. I’m not implying that the President should be impeached, as surveilling Merkel and 34 other world leaders is not a “high crime or misdemeanor;” I’m just noting the similarity. (I also note that this policy was implemented by the Bush Administration, staffed by many survivors of the Nixon Admin and their ideological descendents.)

    “The Buck Stops Here” has been in place for a very long time now. If the President did not know, he should have; and the fact that he did not would not excuse the action.

  8. C says:


    4. The Bild report also indicated the intercepts from Merkel’s phone did not go to NSA headquarters in Fort Meade (like normal intel would) but rather were stovepiped directly to the White House. That sort of treatment is reserved for information of the highest interest to the consumer when the consumer is sufficiently high-ranking to have the juice to get it. In other words, when the President wants it.

    This part of the story doesn’t sit right with me. If you were to say that the intel goes to Ft. Meade and is then rushed to the white house as well that would make sense but bypassing Ft. Meade?

    Stovepiping has happened in the Cheney administration and has happened before that (FDR supposedly ran spy rings himself independently of the Army). But both Cheney and FDR had a far deeper hand into the Bureaucracy than Obama seems to. Cheney accomplished his stovepiping by taking over an existing bureaucracy (The Army Intel offices) and then having them feed separately. FDR on the other hand was competing with a relatively small Army intelligence office and was making the Black Chamber as he went.

    Given the current Bureucratic context, however, it seems a little overwrought to state that he is actively using NSA covert operations and bypassing NSA leadership to do it.

    Don’t get me wrong I’m certain he knew she was being spied upon, even if he didn’t know how close they were getting, but I doubt Mr. “I won’t even manage my own healthcare rollout properly” is going to be micromanaging the NSA.

  9. Don Bacon says:

    Pat Lang has a background in intelligence.
    “There is no possibility – zero -none, that Barack Obama, David Cameron, Hollande and Merkel did not know of the collection activities of their countries’ services.”

    So there is another agenda at work here.
    The Cable:
    “An effort in the United Nations by Brazil and Germany to hold back government surveillance is quickly picking up steam, as the uproar over American eavesdropping grows. The German and Brazilian delegations to the U.N. have opened talks with diplomats from 19 more countries to draft a General Resolution promoting the right of privacy on the Internet. Close American allies like France and Mexico — as well as rivals like Cuba and Venezuela — are all part of the effort.”

    In other words, it’s worse than it looks.

  10. Don Bacon says:

    @C good point, I meant worse in a good sense.:-)

    Also — what is the agenda? Why is Merkel doing this? Does she have a secret pact with China or something? It’s puzzling.

    In any case, it looks like US/EU, and possibly NATO, are treading water. And it could be worse. (I mean better.)

  11. C says:

    @Don Bacon: In another article they referenced the “German Onion” which ran with the headline “Merkel Offended that she is treated like other Germans.”

    Just a Wildarsed Guess as Marcy might say but I suspect that, like DiFi and the others, she is only now realizing just what side of the fence they have put her on and she doesn’t like it. I suspect that some of the taps used on German citizens were setup with their help so that they could benefit from the discoveries. Now she has found out that she is one of “the discoveries.”

    Keep in mind also that this spying started before she actually became prime minister so it means that it was definitely political.

  12. John O'Neill says:

    I believe he knew they were tapping her personal phone because to believe otherwise is foolish. When collecting information from a source all methods of communication should covered or don’t bother at all. We’re to believe that Obama, or any other president in his position for that matter, would balk at intruding into her personal life when collecting information that may regard national security?

  13. Foppe says:

    @C: I agree.. Marcy: you write this is in the aftermath of the gfc, but as articles have pointed out, the bugging started back in 2002, well before she assumed office..

  14. Don Bacon says:

    But Merkel’s going big-time with Brazil etc. to the UN. This is serious and goes beyond personal pique and politics-as-usual into possibly changing major international relationships.

  15. Foppe says:

    @Don Bacon: Maybe. But let’s not forget that her first choice is to shove it back under the rug to ignore it. She cares more about international relations (and is less suspicious of surveillance state logic) than she does about citizen’s rights and nipping protofascism — I am not sure how else to summarize the overbearing worry with national security as elite policy — in the bud.

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