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The Times Beats a Phantom Pony

8:33 AM, Feb 18, 2014 • By GARY SCHMITT
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Over the weekend, the New York Times published a front-page story (“Spying by NSA Ally Entangled US Law Firm”) by James Risen (a Times reporter) and Laura Poitras (a freelancer who has had the "good fortune" of being a recipient of material stolen from NSA by Edward Snowden). The opening line of the piece is: “The list of those caught up in the global surveillance net cast by the National Security Agency and its overseas partners, from social media users to foreign heads of state, now includes another entry: American lawyers.” A titillating opening to be sure, but not based on what is actually provided in the story itself. If anything, the substance of the story appears to show just how circumspect NSA and its allied SIGINT partners appear to be. 

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What Snowden leaked to Poitras was a bulletin from the Australian Signals Directorate—Australia’s NSA—in which it is recounted that, in the conduct of its own surveillance of the Indonesian government, it had picked up the content of communications between Indonesian government officials and American trade lawyers.  And while, according to the Times, the Aussies offered to share the information, they also had given the NSA liaison team in Canberra the heads-up that “information covered by attorney-client privilege may be included.”  The liaison team in turn then asked the NSA general counsel’s office for guidance about the spying.

In response to the Times’s inquiries about the matter, “An N.S.A. spokeswoman said the agency’s Office of the General Counsel was consulted when issues of potential attorney-client privilege arose and could recommend steps to protect such information. ‘Such steps could include 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,’ said Vanee M. Vines, the spokeswoman.”

Of course, NSA could be lying. But as Ben Wittes over at the Lawfare blog points out in some detail, far more likely (and boring from the Times’s point of view) is that a.) NSA was not using the Aussies as a cut-out to do spying the Americans are prohibited from doing on their own and b.) NSA was asking the Aussies to apply existing minimization rules to the collected material before passing any intelligence along to Washington. In other words, NSA and ASD were behaving precisely as you might have wanted.

Perhaps knowing they didn’t have a real scandal in hand, the Times piece goes on to breathlessly state that  “the Australian surveillance of talks underscores the extent to which the N.S.A. and its close partners engage in economic espionage.”  Only later in the story is it noted that the practice of the U.S. intelligence community is not to pass this information along to private companies for their advantage (unlike Russia, China, and France, among others); instead, such intelligence that does exist is used principally for help in trade negotiations with other states—a government practice presumably the American public is in support of.

All of this has the air of the Times beating a dead horse—except in this case the horse is a phantom pony.

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