Did you hear about the Top Secret Memorandum of Understanding between the NSA and the Israeli SIGINT National Unit, dating from some unspecified time after March 2009?
It memorializes an agreement "pertaining to the protection of U.S. Persons," and purports to prescribe "procedures and responsibilities for ensuring that ISNU handling of materials provided by NSA . . . is consistent with the requirements placed upon the NSA by U.S. law and Executive Order to establish safeguards protecting the rights of U.S. persons under the Fourth Amendment to the United States Constitution," all without binding the parties or creating "any legally enforceable rights." (... because an agreement to perform unlawful acts cannot be enforced at law)
What materials provided by NSA? Why, "SIGINT raw traffic," comprising any signals intelligence acquired "before the information has been evaluated for foreign intelligence and minimized." Minimization, you'll recall, is commonly understood to describe those sets of processes by which U.S. person information is excluded subject to those five notorious exceptions, of which the only one noted in this memo is relevance to foreign intelligence.
NSA agrees to provide "review and training" of such procedures on an annual basis and "regularly" review a sample of that transferred SIGINT "to validate the absence of U.S. Persons identities," in addition to the bulk transfer of the raw SIGINT which occasions the need for procedures.
The Israeli unit agrees to not intentionally target U.S. person communications; not intentionally use personally identifiable information of U.S. persons included in the raw SIGINT "to acquire non-public communications;" limit access to the material; disseminate information concerning U.S. persons only in such a way as to shield U.S. persons' personally identifiable information; destroy U.S. person information after one year; immediately destroy U.S. Government officials' communications within the raw SIGINT; refer all requests for access to the NSA; and to not use in intelligence activities "against the U.S." any information concerning U.S. officials included in the SIGINT transferred from the NSA.
What are the procedures ensuring that the materials will be handled in a manner consistent with U.S. law, Executive Order and the Constitution?
They are clearly specified: ISNU must immediately inform the NSA when U.S. person identities are found in the materials; provide a quarterly written report "detailing the circumstances of those instances" (a right tasty FOIA target there!); immediately inform the NSA when a "selector believed to belong to a valid foreign target is subsequently found to belong to a U.S. person," "detask" any such selector and destroy intelligence collected using such selectors.
This is more or less analogous to those procedures by which U.S. agencies are understood to identify and exclude "inadvertently acquired" U.S. person information. (It is charming to see a spy agency of one nation -- itself in the midst of deliberately misleading its constituents about its activities -- trust a spy agency of another nation not to make use of information freely being provided by the spy agency of the first part.)
So, Dear Reader, you may ask, what then is the problem with all this?
1. It dates from after February 2009, when NSA director Alexander acknowledged to the Foreign Intelligence Surveillance Court that the NSA had misled that court concerning acquisition of bulk telephone metadata, as noted in a 2009 FISC opinion by Judge Reggie Walton -- (recently declassified pursuant to federal court order and available at the IC on the Record, the intelligence community Tumblr page) -- in which the Judge despaired of the viability of such programs.
2. It dates from within the span during which, in a 2011 FISC opinion, Judge Bates noted a pattern of "substantial misrepresentation," "flawed depiction," and "repeated inaccurate statements" concerning "the scope of a major collection program."
3. Therefore the NSA had knowledge that its collection activities did not pass muster at least as early as the first FISC opinion saying so -- if that knowledge cannot be imputed to the Agency as early as its first determination to mislead that court, as it clearly might be.
4. The provision of bulk collected raw SIGINT from NSA to ISNU commenced prior to the execution of this memorandum of understanding.
5. At the time of this MOU the NSA knew that its authorizations were based on fraudulent representations to the oversight court; that its collections were beyond the scope of its authorizations; and that its collections contained U.S. person communications.
6. The statutes, Executive Orders and Constitution do not bind Israel, and, anyway, can provide no additional protection for information that is collected and shared in contravention of those same authorities: Provision of information cannot be consistent with rules barring its collection.
When approached for comment concerning the Guardian's planned story, that agency issued a statement including the claim "Whenever we share intelligence information, we comply with all applicable rules," which might be true in a highly technical sense, insofar as the NSA does not believe any rules are applicable to the NSA.
Just like its parent organization, the United States, with respect to international law.
So, to sum up:
The NSA complies with all applicable laws because no laws apply to the NSA, just as it is not Mr. Obama's credibility on the line because Mr. Obama has none. Thanks for playing.