After two years of doing little about the mass surveillance revealed by Edward Snowden, the US Congress has sprung into action in less than two days – with investigations into the NSA spying on some the legislature's members.
On Tuesday the Wall Street Journal reported that conversations between members of Congress and senior Israeli politicians had been monitored by the NSA under the orders of the White House. The surveillance of Israeli Prime Minister Benjamin Netanyahu and his advisors occurred during negotiations into a deal with Iran over its nuclear power program.
When the executive branch surveillance came to light, a senior US official described it as an "Oh-s— moment," and now the legislature is calling for immediate investigations – seasonal holidays be damned.
"The House Intelligence Committee is looking into allegations in the Wall Street Journal regarding possible Intelligence Community (IC) collection of communications between Israeli government officials and Members of Congress," said House Permanent Select Committee on Intelligence chairman Devin Nunes (R-CA).
"The Committee has requested additional information from the IC to determine which, if any, of these allegations are true, and whether the IC followed all applicable laws, rules, and procedures."
On New Year's Eve the chairman of the House Oversight Committee, Jason Chaffetz (R-UT), and three other members of the committee sent an open letter to the head of the NSA, Admiral Mike Rogers, requesting all documents relating to the case be turned in by January 13, with full hearings scheduled two days later.
Rogers can expect a rough ride – Chaffetz is no friend of surveillance and has introduced legislation to ban the use of geolocation data from smartphones without a warrant. Add in the outrage of politicians in the Israeli lobby who may have had their conversations recorded, and this could seriously mar the start of 2016 for the NSA and the Obama administration.
How do you solve a problem like Netanyahu?
Multiple sources told the WSJ that in 2011 the White House, then trying to broker a deal on Iran's nuclear ambitions, was worried that the Israelis would launch an attack on Persian production facilities without warning.
Current and former US officials say that President Obama saw a "compelling national security purpose," in using the capabilities of the NSA to monitor the communications of Benjamin Netanyahu and his senior advisors. The NSA offers such services against foreign supremos under the name "leadership intentions," in a form given to executive officials.
"Who's going to look at that box and say, 'No, I don't want to know what world leaders are saying?'" a former Obama administration official said.
Both the Democratic and Republican lawmakers serving on congressional intelligence committees in Congress apparently signed off on the move. By 2013 it was clear that Israel wasn't going to bomb Iran, but did want to block any deal by working with US congressional leaders.
Unbeknownst to the Israelis, the US was already in secret negotiations with Iran. If news of the talks leaked out then it was thought possible that Iran would pull out, and the NSA was tasked with checking if the Israelis had found out that private negotiations were ongoing.
Then, in January 2014, Netanyahu was invited by Republicans to address Congress and surveillance carried on to find out what his intentions were. According to the report, it soon became apparent that conversations with Congressional politicians were being picked up.
Sources in the administration claim that the NSA was asked to make sure no unlawful information was passed over. The agency redacted the names of many of those people involved in monitored calls, and also removed ad hominem attacks on the administration, but left the question of surveilling Congress members open.
"We didn't say, 'Do it,'" a senior US official said. "We didn't say, 'Don't do it.'"
The NSA used preconfigured taps installed in communications networks to gather information and report back. The agency provided reports on current thinking among Israel's political leadership every six hours, sources say.
Part of the intelligence gathered showed that Israeli officials were working with Jewish-American groups to persuade the US Congress not to ratify a nuclear deal with Iran. The agency reported that Israeli government officials leaked confidential data to pitch lawmakers for their case.
"These allegations are total nonsense," a spokesman for the Embassy of Israel in Washington told the paper.
Days before Netanyahu's speech to Congress in March, Secretary of State John Kerry made some remarks at a press conference warning that "selective details of the ongoing negotiations" might be leaked by the Israeli leader in his address. Similar news reports in Israeli media provided plausible deniability for the warning.
However, what seemed like a good idea at the time for the executive has now backfired. With the release of the report, the forecast in Congress is stormy, with a lot of thunder.
Spying on elected representatives in the US is supposed to be an absolute no-no for the NSA, although the agency refuses to deny that it happens.
Spying on foreign leaders is no problem, usually. It has been going on since the dawn of diplomacy, but the digital age has vastly increased data collection capabilities. As the Snowden archives have shown, the NSA has better access to most political leaders than their fellow cabinet members.
Post-Snowden, this became something of a sore point, with German leader Angela Merkel feeling particularly aggrieved, having grown up under the East German Stasi surveillance state that the US opposed at the time.
Obama has since promised that his fellow leaders' phone calls are safe, unless national security is at stake. The list of no-go politicians included NATO leaders and allied nations, but it seems the Israeli premier, nicknamed Bibi, was considered fair game.
"Going dark on Bibi? Of course we wouldn't do that," a senior US official said.
In almost all cases the heads of congressional parties are informed in advance – or shortly after – such surveillance takes place, and rubber stamps it. This appears to be what happened in the Netanyahu case, but it seems the additional traffic either wasn't reported or wasn't considered.
The thought that the NSA could have been listening in to congressional conversations and reporting them to the White House has shattered the usually sleepy lassitude that overtakes the legislature at this time of year. Former chairman of the House Intelligence Committee Pete Hoekstra (R-MI) has already called for criminal prosecutions for the NSA and White House staff involved.
NSA and Obama officials need to be investigated and prosecuted if any truth to WSJ reports. NSA loses all credibility. Scary.— Pete Hoekstra (@petehoekstra) December 30, 2015
This is the same Representative Hoekstra who in 2008 tried to tack a rider onto a mental health bill that exonerated telecommunications companies from prosecution for allowing mass surveillance taps to be installed.
Judging by the speedy and vociferous response by Congress, the intelligence services and the Obama administration face a rocky road with Congress in 2016 – not that the latter hasn't for the last seven years. Based on past examples, hearings could last right up to the main presidential elections, and possibly beyond.
Still, as long as no one has done anything wrong then they have nothing to fear – isn't that what we're always told by our elected representatives? ®