The National Security Agency is authorized to spy on the citizens of America’s closest allies, including Britain, even though those English-speaking countries have long had an official non-spying pact, according to a newly disclosed memorandum.
The classified N.S.A. document, which appears to be a draft and is dated January 2005, states that under specific circumstances, the American intelligence agency may spy on citizens of Britain without that country’s consent or knowledge. The memo, provided by the former N.S.A. contractor Edward J. Snowden, is labeled secret and “NOFORN,” indicating that it may not be shared with any foreign country.
In recent months, the N.S.A.’s activities have stoked anger across the world after leaked documents have exposed American spying on political and economic partners like Germany and France, as well as various foreign leaders. But until now, there has been almost nothing disclosed about spying among the “Five Eyes” countries — the United States and its close intelligence partners Britain, Canada, Australia and New Zealand.
The N.S.A. declined to respond to questions on whether the draft became official policy and whether spying on Britain without its consent had ever taken place.
But portions of the document appear to indicate that, whether by formal agreement or simply longstanding practice, both Britain and the United States believed that in extraordinary circumstances, one country might feel compelled to spy on citizens of the other.
In a reference to an intelligence-sharing compact struck in March 1946, the memo said the two nations had agreed “that both governments will not target each other’s citizens/persons.”
That agreement, however, came with a caveat that “when it is in the best interest of each nation,” unilateral spying by one nation on the other could take place, the memo says. It goes on to expand that mandate to allow spying by the United States on any of the Five Eyes countries.
The memo was provided by Mr. Snowden to The Guardian, which shared it with The New York Times. The N.S.A. also declined to say whether the memorandum merely codified longstanding American practice or was breaking new ground.
“NSA works with a number of partners and allies in meeting its foreign-intelligence mission goals, and in every case those operations comply with U.S. law and with the applicable laws under which those partners and allies operate,” the agency said in a written reply to questions.
One former senior intelligence official said he had been unaware there were any exceptions to the policy of the five nations sharing intelligence information with each other, but said he would be surprised if the United States chose to spy on its closest allies very frequently.
“They would do this unilaterally so rarely and in such extraordinary circumstances because they would be so concerned about hurting the relationship,” said the former official, who spoke only on condition of anonymity. “My bet is that they wouldn’t go to that well very often.”
The memo contains several protocols on who should be alerted, and under what circumstances, when spying must take place on other Five Eyes countries — also referred to as “Second Party” countries.
One paragraph, marked secret, appears to suggest that the preferred option is to gain permission from the country whose citizens are to be spied upon. But the very next paragraph, marked secret and NOFORN, indicates that the N.S.A. can go it alone if permission is not forthcoming — or if United States chooses not to ask.
“When sharing the planned targeting information with a Second Party would be contrary to U.S. interests, or when the Second Party declines a collaboration proposal, the proposed targeting must be presented to the Signals Intelligence Director for approval with justification for the criticality of the proposed collection,” the passage explains.
It goes on to say that if that spying is approved, the information it gleans “must be maintained in NOFORN channels” — i.e., never shared with the spied-upon country.
A footnote goes further, suggesting that if a Five Eyes citizen is outside of his or her own country, the limits are lifted. In that case, the memo says, “there may be no restrictions associated with that collection” outside of basic N.S.A. rules on avoiding spying on innocent Americans and similar guidelines.
The memo does not detail how much, if at all, these orders differ from existing practice among the spying partners. Even the memo’s purpose is classified secret and NOFORN: “This management directive establishes United States Signals Intelligence System (USSS) policy and procedures related to the targeting of Second Party Persons.”
From the start, the document raises the intriguing question of whether American and British spy agencies have been loosening the rules established in the nonspying compact of 1946. After referring to the compact, the memo contains a passage stating that “this agreement has evolved” to include the understanding that Britain and the United States would not spy on each other.
But in the next two sentences, the memo asserts that the countries “reserved the right” to spy on each other “when it is in the best interest of each nation.”
Mark Mazzetti contributed reporting.
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