FALLOUT: The Geopolitics of the Snowden Files
"...The NSA Report ... authors include such veterans of the US security sector as Richard A. Clarke, Michael J. Morrell, and Peter Swire. This insiders’ perspective, in theory, is balanced by the addition to the group of constitutional lawyers Geoffrey R. Stone and Cass Sunstein. The unofficial purpose of the Report, however, was the Obama administration’s attempt to put a lid on the NSA scandal by pretending to be interested in reform. ... The Review Group was working out of the offices of the Director of National Intelligence, currently occupied by the felonious General James Clapper, who knowingly lied in Congressional testimony. ..."
By Adam Morris
LA Review of Books, April 20th, 2014
ON JULY 2 LAST YEAR, the governments of Portugal, France, Italy, and Spain bowed to US orders and refused airspace to the plane carrying Bolivian president Evo Morales. He’d been traveling from Russia to South America until his presidential jet was forced to land in Vienna. Morales and his ministers were stranded there for 15 hours. Acting on bad intelligence or mere suspicions, the higher-ups in the Obama administration, and perhaps President Obama himself, decreed this embarrassing, unprecedented, and illegal detention of a foreign sovereign. The lies fed to Morales and his pilots in Vienna — that there were “technical” issues for the emergency landing — fooled no one: American authorities suspected that the Bolivians were helping NSA whistleblower Edward J. Snowden escape from Russia to South America.
The political fallout was immediate: a widespread allergic reaction to American imperial power comparable to the irritation Wiki:Leaks provoked in 2010, when it released thousands of secret US State Department diplomatic cables. Here was the great and powerful United States, so threatened and humiliated by a former NSA contractor that it would deny diplomatic immunity to a sitting chief of state. Seldom, if ever, has soft American power been so cynically abused.
Nowhere was the outrage more pronounced than in Latin America, where aversions to the United States are grounded in deep historical wounds — it is, after all, a continent that harder expressions of American power have long scarred. Learning of Morales’s detention, Argentine president Cristina Fernández de Kirchner unleashed a barrage of tweets condemning such unacceptable “impunity.” Over Twitter, Kirchner announced that Uruguay’s José Mujica was as indignant as Ecuador’s Rafael Correa, and that Peru’s president Ollanta Humala had called a meeting of the Union of South American Nations (UNASUR) to address this obvious breach of international diplomatic accords.
That the bullying of a less powerful state failed to produce any significant blowback in the US is not a surprise: Americans are practically taught that it is their God-given right to police the world. The heedless 2003 plunge into Iraq and continuous spree of drone strikes in Afghanistan, Pakistan, and Yemen offer additional proof of this priggish doctrine.
The experience of “benevolent” US intervention south of the Rio Grande has little to do with benevolence at all: for Latin Americans, such rhetoric is all too often a subterfuge for imperial capitalism, and the violence it sows. Before America’s obsession with the Middle East, it was Latin America that bore the brunt of American imperial ambition — first under the rationale of “protecting” Latin American nations from foreign aggression, and then extended under the rubric of containing communism and the “War on Drugs.” The preferred theater for America’s militaristic adventurism has simply been exchanged for another.
Particularly during the Cold War, but dating to the 1823 Monroe Doctrine, the United States regarded Latin America as its own unrivaled sphere of influence, and intervened accordingly. The list of US-backed authoritarian regimes that subverted democracy is long indeed: Augusto Pinochet’s Chile; the Argentine and Brazilian military juntas; and José Efraín Ríos Montt’s genocidal dictatorship in Guatemala are among the most notorious. The tacit approval and material support that the US lent these and other repressive and criminal regimes in Latin America does not figure prominently in the version of history taught in many high schools in the United States. Most Americans therefore have little knowledge of these campaigns, or how they traumatized Latin American citizens and stifled dissent.
The Snowden revelations don’t exclusively concern North–South relations in the Western Hemisphere. But they are instructive about changes to this dymanic — subsequent events in the Snowden affair continue to turn on a North–South axis. Aside from Russia, for whom the American whistleblower was an “unwanted Christmas present” in the words of president Vladimir Putin, each of the four nations that have offered political asylum to Snowden — Bolivia, Nicaragua, Venezuela, and Ecuador — are in Latin America. And though Brazil, a principal target of NSA espionage, has not formally offered asylum, senators from both the ruling party and the opposition have campaigned on his behalf. Nor has Brazilian President Dilma Rousseff ruled out granting asylum, cautiously observing that Snowden has not yet requested her country’s aid. (Snowden’s lawyers have advised him to drop his pursuit of asylum in other nations while he is hosted in Russia.)
Latin American asylum would have made the most sense for Snowden; his mistake may have been not going to Havana or Caracas in the first place, and then sorting out a final asylum arrangement from there. Especially considering the information Snowden possessed on US spying in Brazil, appealing to Brasília might have been his most expedient option.
Brazil is now the leading power of South America, a continent whose leftward drift has begun to pose problems for American imperial ambitions. Glenn Greenwald, the American journalist entrusted with an undisclosed number of the Snowden files, publishes from the safety of his home in Rio de Janeiro. Due to the Obama administration’s unprecedented prosecution of whistleblowers and journalists, Greenwald’s lawyers have advised him against traveling to the United States. Sadly, the prudence of this recommendation was borne out when UK authorities detained Greenwald’s partner David Miranda, a Brazilian national suspected of relaying some of Snowden’s files from Germany to Brazil, in Heathrow airport under the highly dubious auspices of Schedule 7 of the UK Terrorism Act. This clause permits British authorities to stop and search individuals suspected of involvement in terrorism. Miranda is obviously a journalist, not a terrorist. When Greenwald and the documentary filmmaker Laura Poitras flew to New York last week to accept the George Polk Award in Journalism for their work on the Snowden files, they did so without knowing whether they would be subpoenaed or detained.
Brazilians are proud to be hosting Greenwald, and the Brazilian media has followed the Snowden disclosures closely. Rousseff, despite last summer’s widespread domestic unrest over the soaring cost of living in Brazilian cities, will likely cruise to reelection, in part due to the uncompromising posture she has maintained throughout the international imbroglio the Snowden files unleashed. After an initial pledge to improve relations with the US, which had faltered when her predecessor Luiz Inácio Lula da Silva invited Iranian president Mahmoud Ahmadinejad to Brazil in 2009, Rousseff is standing up to Obama: she has drawn a line in the sand regarding NSA spying. In September of last year, she canceled a state visit to the US scheduled for October, citing Brazil’s dissatisfaction with US explanations for spying on Brazilian communications.
Earlier that summer, some of Snowden’s leaked documents disclosed that Rousseff, along with German Chancellor Angela Merkel, was one of the principal targets of NSA espionage. Rousseff’s personal communications were bugged, as were those of an undisclosed number of her “key advisers.” Merkel was criticized for remaining unmoved by US spying on the German people until she learned that her personal “handie” was also tapped — Germany is, after all, too closely allied and economically engaged with the US and its spy partner Britain for Merkel, an incorrigible pragmatist, to have retaliated in a meaningful way. Rousseff, by contrast, opposed American disregard for international norms and human rights in no uncertain terms. She dedicated half of her speech at the opening of the 68th UN general assembly in September to a withering rebuke of US spying (full text of the speech is available here; translations from the Portuguese are my own).
“Never,” Rousseff declared, “should the security of the citizens of one country be guaranteed through the violation of fundamental human and civil rights of the citizens of another country.” The careful wording of her remarks — and her controlled, but seething delivery — made it easy to read them as a broader protest of American techno-military aggression: she may just as well have been speaking of President Obama’s semi-secret drone program. Rousseff’s choice of venue was, after all, intended to signal not only the international concern over the Snowden revelations. It was also calculated to emphasize the double standard by which the world’s “policeman” measures human rights: Article 12 of the United Nations’ Universal Declaration of Human Rights reads:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
The US and Brazil both voted in favor in the UDHR when it was adopted in 1948, but neither country has had a stellar record of upholding it. Case in point: from 1964 to 1985, Brazilians endured a repressive military dictatorship that staged elections between official parties; imprisoned, tortured and assassinated its opponents; and served the interests of the wealthy supporters of the coup, both domestic and foreign, at the expense of perpetuating extreme social inequality. American warships stood by off the coast of Brazil when the Brazilian military took power, and Lyndon Johnson sent a telegram to congratulate General Castelo Branco just four hours after the military had seized power. The Brazilian dictatorship also took part in Operation Condor, the clandestine campaign through which right-wing Latin American dictatorships in Argentina, Bolivia, Brazil, Chile, Uruguay, and Paraguay collectively engaged in persecuting political dissidents, with US collaboration. Condor entailed spying on suspected “subversives” and sharing information about them with the secret police of neighboring dictatorships, ensuring that any political opponents who escaped across national borders would not be safe in most adjacent countries, either. Among those caught in this net of transnational state espionage and terror was Dilma Rousseff.
Thus, Rousseff’s appearance before the UN marked a reversal of fortunes: here was the president of Brazil, standing in New York before the assembled dignitaries and heads of state from the world over, denouncing America’s mass surveillance of her people as an abuse of human rights. The Brazilian president knows of what she speaks. Like the presidents of neighboring Chile and Uruguay, Rousseff herself was imprisoned and tortured for political dissidence — in her case involvement in a Marxist guerrilla cell — and is therefore well acquainted with the price of the human right to privacy and the freedom of expression. “Like many other Latin Americans,” she continued in her speech,
I struggled against authoritarianism and censorship and I will not cease in my intransigent defense of the individual right to privacy and of the sovereignty of my country. Without this — the right to privacy — there is not true freedom of expression or opinion, and therefore, there is not effective democracy. Without respecting sovereignty, there is no basis for the relations between nations.
Mr. President, we have before us a serious case of the violation of human rights and of civil liberties; the invasion and capture of secret information relating to business activities and, above all, the disrespect of my country’s national sovereignty.
The problem, however, transcends the bilateral relationship between two countries. It affects the international community, from which it now demands a response. Telecommunications information technology cannot be a new battlefield between states. This is the moment to create for ourselves conditions for preventing cybernetic space from becoming a new weapon of war, whether through espionage, sabotage, or attacks on the systems and infrastructures of other countries.
It is highly unusual for a nominal ally of the United States to make it the subject of such stark condemnation. But Rousseff was unambiguous: the days of Rooseveltian “Big Stick diplomacy” are over. Her speech provoked widespread public debate in Europe and South America, but gained little traction in the American press.
Rousseff’s UN address is noteworthy beyond just her remarks on the US surveillance program. With scarcely a transition, she then reminded the assembled delegates about Brazil’s rapid strides to improve social equality. In just the most recent two years, Brazil has lifted 22 million people from poverty. This is due, she explained, to her government’s investment in its people through the Brazil Without Misery Plan, an expansion of the far-reaching and highly effective anti-poverty programs initiated under her predecessor and political mentor, Luiz Inácio Lula da Silva.
These remarks were a subtle, but powerful, comparison between Brazil and its nosy North American “ally.” Rousseff and her ministers weren’t the only victims of NSA surveillance: Petrobras, the mammoth Brazilian petroleum company, was a principal target of the program. For Brazilians, this economic espionage was tantamount to sabotaging their social gains. The Brazilian government holds a 64 percent stake in Petrobras, and devotes 75 percent of the petroleum royalties it receives to education and 25 percent to public health. The Workers’ Party (PT), in power since 2003, has achieved great economic and electoral success with these expansive social programs. Unlike Europe and North America, whose economies stagnate in the clutches of austerity hawks, Brazil has managed to increase its investment in what the PT calls “capital humano.” What was once one of the most economically unequal societies in the world has now implemented hugely popular policies and institutions to reverse course: the last 10 years have seen the largest reduction in inequality in Brazil in over half a century. Meanwhile, the poverty rate in the US has slipped back to pre-1993 levels, and the estimated number of Americans living in poverty has for the first time hit the 50-million mark. Near-record rates of income inequality are destroying the middle class and have divided the nation.
Although neither Edward Snowden, nor Dilma Rousseff, nor Petrobras is mentioned in The NSA Report (which mentions Brazil only once), a careful reader will detect their presence.
The NSA Report — commissioned by the White House in August, published on its website in December, and now available in print via Princeton University Press— was authored by the President’s Review Group on Intelligence and Communications Technologies. As suggested by its official title, “Liberty and Security in a Changing World,” the Report was intended to advise President Obama on how to reform the data collection practices of the Intelligence Community (IC), in particular the NSA. Its authors include such veterans of the US security sector as Richard A. Clarke, Michael J. Morrell, and Peter Swire. This insiders’ perspective, in theory, is balanced by the addition to the group of constitutional lawyers Geoffrey R. Stone and Cass Sunstein. The unofficial purpose of the Report, however, was the Obama administration’s attempt to put a lid on the NSA scandal by pretending to be interested in reform. As Luke Harding points out in The Snowden Files, the Review Group was working out of the offices of the Director of National Intelligence, currently occupied by the felonious General James Clapper, who knowingly lied in Congressional testimony about the bulk collection of Americans’ communication data.
Though it makes frequent recourse to the first-person plural, the “we” of the Report is not convincingly univocal. The constitutional lawyers seem absent from the militaristic language that divides the world into “nations with whom we share fundamental values and interests” (whose leaders and people the NSA should only surveil after very careful consideration) and those with whom we do not (whose leaders we do not trust and who thus deserve to be monitored at all times).
Events like the Morales plane-grounding demonstrate that the United States — while understanding it must respect some countries’ sovereignty for geopolitical strategic reasons — feels untrammeled when it comes to violating the sovereignty of others, such as Germany and Bolivia. This psychology leads the Review Group to make some unwise and myopic recommendations. The Group recommends, for example that “with a small number of closely allied governments, the US Government should explore understandings or arrangements regarding intelligence collection guidelines and practices with respect to each other’s citizens.” Harmless wording at first blush — but such thinking has historically formed the basis for programs long decried for their intelligence abuses and political oppression, such as Operation Condor.
The anodyne language of these and other recommendations signals the imperial agenda out of which they are born: The NSA Report is obsessed with framing the debate over surveillance around the neopositivist vocabulary of “risk management,” but we know from history that political liberty will always suffer when a dominant regime deems a nation, its leadership or its population a “national security threat” — just ask Dilma Rousseff.
Perhaps more to the point, consider the way data collection is already used against the populations of Afghanistan, Pakistan, and Yemen. Although the Obama administration recently scaled back the CIA’s use of “signature” drone strikes — those in which, unlike “personality” strikes, the unidentified victim is not known to be an al-Qaeda operative, but merely is a “military aged male” whose “suspicious” behavior has been recorded by surveillance drones — this is only because it more heavily relies on surveillance of cellphone metadata to orient drone strikes. First outlined by theWashington Post in July, the NSA’s Geo Cell program identifies the targets of drone strikes based on cell phone use and location. According to the Post, the internal catchphrase “We Track ‘Em, You Whack ‘Em” was used to describe how Geo Cell functioned.
More recent reporting by Glenn Greenwald and Jeremy Scahill explains how Geo Cell uses “industrial level” NSA surveillance to target SIM cards, not people. This has led to the killing of innocent recipients of borrowed and sold phones. After all, victims of these supposedly “targeted” strikes are not always militants. Despite government estimates to the contrary, the impact of drones on the civilian populations in Pakistan, Afghanistan, and Yemen is significant. The Bureau of Investigative Journalism estimates that drones assassinated between 2562 and 3325 people over an eight-year period in Pakistan alone. An estimated 474-881 of these victims were civilians; the defense community has routinely lied about these civilian casualties. Bystanders, family members, and neighbors are likely the most frequent civilian victims, since Geo Cell targeting is accurate within 30 feet of a targeted SIM card. Medical responders are also sometimes killed in “double tap” strikes separated by a few minutes. The NYU–Stanford “Living Under Drones" project has documented the ordeal that rural and tribal communities face: along with the sudden loss of family members, friends, and community elders, the omnipresent but unpredictable threat of bombings inflicts constant terror and psychological stress on local civilian populations. Clearly, this campaign of state-sponsored terror amounts to nothing less than shameful human rights violations, if not outright war crimes.
Automated warfare condenses the relation between drones and mass surveillance, and makes evident the ethical danger inherent to them both. No matter what sorts of “good practices,” “guidelines,” or legal justifications are implemented to govern unmanned drones and mass surveillance, they are unacceptably dangerous inflations of executive and militaristic power. To recapitulate Rousseff’s words, “Never should the security of the citizens of one country be guaranteed through the violation of fundamental human and civil rights of the citizens of another country.” Unfortunately, the American public is largely shielded from knowing about these programs, which have been underway for years in their name.
The magnitude of such executive and militaristic overreach is not lost on the lawyers among the Review Group. The Report rightfully frets over the Fourth Amendment to the US Constitution, the one that NSA surveillance most cavalierly violates. It also acknowledges that First Amedment rights to free expression are implicitly limited as a consequence of disregarding the Fourth through unwarranted surveillance.
The text of the Fourth is short, and worth considering in its entirety:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A 1967 court ruling, Katz v. United States, reaffirmed the right to “reasonable expectations of privacy” with regard to telephone wiretapping. But it is behind the word “reasonable” that the bad-faith legal positivism of both the Bush and Obama administrations festers. Though telephony and electronic metadata could be considered under protection of the Fourth as personal “effects,” the text of the amendment obviously says nothing about email, telephone, or electronic metadata. Herein lies the problem.
The committee thus asks itself: even admitting the risks the United States faces from terrorists and foreign governments, is it “reasonable” to expect that the NSA collect information on virtually all electronic and telecommunications originating in, terminating in, or crossing the United States or its closest ally, the UK? Is it reasonable for the NSA to have hacked into the servers of Google and Yahoo to harvest their traffic? Or to compel tech and telecom firms to disclose the records of ordinary Americans by using secret subpoenas intended for investigating matters of national security, all without the demonstration of probable cause? Is itreasonable to expect Americans to encrypt all of their personal emails and telephone calls, to use onion-routing to surf the internet, and to use discardable “burner” phones to avoid unnecessary government snooping?
The authors of The NSA Report agree that no, this massive dragnet is not at all reasonable, not even from a practical standpoint. Many of their recommendations ought to be considered welcome and prudent first steps toward closing the legal loopholes used to legitimate the NSA’s vast domestic spying program. The Group acknowledges the legal murkiness of NSA data collection straightaway in their Preface, stating unequivocally that “all parts of the government, including those that protect our national security, must be subject to the rule of law.” The illegality of certain NSA surveillance activities, such as spying on Petrobras, is the clear implication of many of the panel’s recommendations. Surveillance, they write, “mustnot be directed at illicit or illegitimate ends, such as the theft of trade secrets or obtaining commercial gain for domestic industries.”
Although its authors ultimately hew to the assertion that NSA was only ever acting in the interest of national security, the Report details how the Agency blew off the 1975 Church Committee recommendation that NSA “should not monitor domestic communications, even for foreign intelligence purposes.” The Church Committee — which investigated the Johnson and Nixon administrations for illegally spying on suspected American “subversives” — found that these abuses “were due in large measure to the fact that the system of checks and balances — created in our Constitution to limit abuse of governmental power — was seldom applied to the intelligence community,” and that the agencies concealed “improper activities from their superiors in the executive branch and from Congress.”
The NSA Report cites these passages of the Church Report as it reviews the recent abuses, which similarly occurred through deceiving Congress and evading oversight. In particular, it tells how after whistleblower Thomas Tamm blew the cover on Stellar Wind — the NSA’s program to collect and store Americans’ telephony data — DOJ and NSA lawyers pried open legal loopholes for even more ambitious data-gathering schemes that showed total indifference to the requirement of probable cause. Their duplicitous readings of FISA, a law nominally concerned with the privacy of Americans, and the Patriot Act (which was not), were designed to thwart Congressional and legal oversight whenever possible. This occurred through several mechanisms, among them the extensive invocation of section 215 of the Patriot Act. Section 215 permits the collection of material “relevant” to “national security,” allowing intelligence agencies to circumvent the specificities of “reasonableness” and “probable cause” the Fourth Amendment and subsequent court rulings require. The PATRIOT Act thus allowed FBI and NSA to obtain secret court orders, rather than subpoenas, to acquire bulk metadata from telecoms and retain it for five years. These 215 authorizations continued on a rolling basis of 90-day increments that were repeatedly reauthorized in the secret proceedings of the FISA court. Whenever the FISC resisted, the FBI would issue a National Security Letter, an order which only required approval from one of the 56 FBI field offices, to obtain the same records: telephone logs, email subscriber information, and banking and credit card transactions. The NSA Report observes that 21,000 NSLs were issued in fiscal year 2012. Approximately 97 percent of NSLs were also subject to non-disclosure or “gag” orders that prohibited recipients from telling their customers and subscribers that information had been collected.
All of this was conducted in secret, of course. Snowden’s leaked documents make it clear why the public was kept unaware: not because knowledge of the programs’ existence would tip off would-be terrorists that their communications might be monitored (the terrorists that orchestrated 9/11 understood they might be wiretapped, and Osama bin Laden knew better than to use email or a conventional telephone) — but because they would never have agreed to these abuses of their privacy.
Despite the feigned indignation of officials at Facebook, Apple, Google, Yahoo, and Microsoft, Snowden’s documents show corporate complicity in the NSA surveillance programs. Telecoms complied with Stellar Wind, and were handsomely paid for it: as Luke Harding recalls, “the NSA-telecoms partnership was highly lucrative. In return for access to 81 per cent of international telephone calls, Washington pays the private telecom giants many hundreds of millions of dollars a year.” Tech giants followed with Prism, one of the NSA’s programs for collecting internet data. Though there is no evidence that tech firms were paid for their collaboration with the NSA, they did not adequately protest. In the Greenwald–Poitras interview conducted in his Hong Kong hotel room, Snowden speaks about “Google, Facebook, Apple, Microsoft” “getting together” with the NSA to “provide the NSA direct access to back ends” of their systems so that the corporations themselves wouldn’t be held liable for what NSA does with this access.
Yet in the wake of the Snowden revelations, Facebook et. al. have sought to paint themselves as equally aggrieved victims of government intrusion to avoid the wrath of consumers. Although it is true that the NSA engaged in other, more aggressive hacking efforts than Prism — such as using fake Facebook pages to launch spyware into users’ machines under program Quantumhand — leaks that followed the Prism disclosures show that Big Tech’s claims of ignorance are specious.
Tech firms are nevertheless still desperate to cover their tracks with disingenuous public outrage. Though his company is one of the most flagrant abusers of consumer privacy in the first place, Mark Zuckerberg called President Obama after the QUANTUMHAND revelations to complain about the damage NSA spying has done to Americans’ trust in business and government. Although Facebook and the other tech firms have disavowed any knowledge of PRISM, the NSA’s chief counsel recently testified before Congress that such a denial is only rhetorical positioning:the firms were aware of the program, just not its internal NSA codename. So there is no reason to believe his call to Obama was anything but another cynical PR stunt.
To blunt criticism from all sides, The NSA Report repeatedly states the need for greater oversight and accountability of NSA spying. It recommends, among many other things:that the director of the NSA be a civilian, and that he or she be subject to Senate confirmation that this director not also be the head of the military’s US Cyber Command (as is currently the case) the increased transparency of the activities of the FISA court (FISC) the appointment of a Public Interest Advocate permitted to represent the interests of civil liberties and privacy groups during classified hearings of the FISC enhanced oversight of National Security Letters and section 215 orders (used to compel businesses — like tech firms, telecoms, and banks—to hand over their records) restriction of non-disclosure orders and the creation of a new Civil Liberties and Privacy Protection Board, tasked with ongoing review of the impact of government surveillance activities on civil liberties, and of reviewing whistleblowers’ accusations of waste, abuse, and fraud.
Importantly, the Group also recommends that Congress enact legislation “that terminates the storage of bulk telephony metadata” by the government and transition to a system where that information is held by a third party. Eager to get out ahead of Congress, President Obama has proposed a version of this last reform himself. His proposal would leave the metadata in the hands of telephone companies, and would only require phone companies to retain the data for 18 months. But this reform addresses only a fraction of extant privacy concerns, especially if the Patriot Act is not also amended or repealed.
All the new oversight the Report suggests is welcome. But would it be enforced? The executive branch has time and again subverted any checks that Congress attempts to impose on the intelligence community, whether through executive orders, bogus legal reasoning, or outright lies. Congress certainly hasn’t done itself any favors by continually reauthorizing the Patriot Act, amending FISA, and otherwise providing legal cover for much of the IC’s extralegal activity. However, the current showdown between Senator Dianne Feinstein and the CIA over the Agency’s alleged spying on and attempted sabotage of a Senate Intelligence Committee investigation of the CIA’s rendition and torture program suggests that the legislature is waking from its torpor, and beginning to reassert its constitutional authorities over the Executive. Snowden’s disclosures, though condemned by Feinstein and other members of Congress, may have indirectly spurred the Chairwoman into action by focusing so much attention on the IC’s contempt for the Constitution.
Despite its calls for transparency, the Review Group also appears to understand the need for the IC to circle the wagons and tighten its own mechanisms of secrecy and internal surveillance. It suggests a number of steps to reduce “insider threats” — a reference to the McCarthyite Insider Threat Program the Obama administration created, a program that encourages federal employees to tattle on suspicious colleagues. “Employees with high-level security clearances,” the Report continues, “should be subject to a Personnel Continuous Monitoring Program.” Why not just force them all to wear Google Glass?
Without naming him, the Report refers indirectly to Snowden. “Security clearance levels should be further differentiated,” they write, in reference to the systems administrator status that evidently allowed Snowden near-universal access to NSA files. But as Harding points out in The Snowden Files, among the curiosities of the Snowden affair is that some of the most crucial files became accessible to Snowden only after his federal employment at the CIA and NSA. In March 2013, Snowden joined Booz Allen Hamilton, a $6 billion defense contractor separated from the Pentagon by a quickly revolving door. Both Clapper and former CIA director James Woolsey, among others, have enjoyed lucrative positions at Booz Allen. As David Sirota wrote for Salon, these same security contractors are also at the Congressional back door, greasing its hinges by bankrolling the campaigns of the NSA’s biggest defenders on the Hill. Ironically, had it not been for the neoliberal craze for outsourcing even the most sensitive government activities to contractors like Booz Allen, perhaps Snowden would never have gained access to some of the most damning files.
Snowden’s life before becoming “the world’s most wanted man” is not terribly interesting. The first pages of The Snowden Files offer readers the patched narrative of available details. The author, a Guardian journalist who worked on the Snowden stories, did not have access to Snowden while writing it. He relies instead on second-hand accounts of the former NSA contractor. Thus, a repetition of what we already knew: before becoming a highly-paid systems administrator, Snowden was somewhat of a failure. He was a high-school dropout and an inept solider, discharged after basic training. The gun-owning libertarian managed to flex his former-military credentials into a security job at the CIA that later led to his promotion into a series of tech support jobs with the Agency in Geneva and Tokyo, followed by stints at the NSA in Maryland and Hawaii. This self-reliance, the story goes, explains his support of libertarian Republican Ron Paul in the 2012 election.
Somewhere along the way, a political awakening occurs. All we know of Snowden’s current politics is what can be gleaned from the Greenwald–Poitras interview. Amid his persecution by the US government, which has indicted him on espionage charges that carry a sentence upwards of 30 years in prison, or possibly the death penalty, Snowden has continued to deflect attention away from himself. Though he has recently begun to accept online public speaking engagements — including an address to Austin’s SXSW Festival, and more recently at the TED convention in Vancouver — Snowden has made it clear that he does not want the coverage around the leaks to be about Edward Snowden, but about the misdeeds of a military–surveillance complex run amok. His self-effacement is meant to run counter to the widely documented egotism of Julian Assange, itself the subject of a lengthy essay by Assange’s would-be ghostwriter Andrew O’Hagan in a recent issue of the London Review of Books.
Indeed, Harding suggests that Assange was jealous of Snowden’s trove of documents, which comprised a larger and more sensational scoop than anything WikiLeaks ever handled, including Cablegate. O’Hagan’s LRBarticle describes Assange’s regard of Snowden as one of “irritable admiration.” In either case, ever since his forced internment in the Ecuadorian embassy in London, Assange has found it difficult to maintain his relevance. Harding indicates that WikiLeaks’ self-publicized assistance in orchestrating Snowden’s flight from Hong Kong to Russia was Assange’s attempt to claim credit for involvement in the Snowden’s leaks and thus regain the spotlight. O’Hagan confirms this, reporting that Assange asked for his help writing a big-screen thriller about how he helped Snowden escape Hong Kong. However, Snowden had considered, but ultimately rejected handing over the NSA documents to Assange and WikiLeaks. He had observed the way Cablegate’s unfiltered dump of classified cables estranged Assange from many of his supporters, and preferred instead to work with journalists experienced in handling classified information in ways that would not put American lives in danger.
This is where Harding makes his contribution, recounting the heady days of the Snowden leaks from a journalistic perspective. He spends a lot of time defending his employer, the Guardian, as well as ridiculing the British government’s ironic incomprehension of the technical aspects of the leak: GCHQ, the British analog to NSA, sent a goon squad to the paper’s offices to destroy computers used to examine the Snowden files. Elsewhere, Harding has claimed that paragraphs of his book, which is critical of the NSA, would self-delete as he was writing it offline, suggesting that NSA or GCHQ had hacked his computer and was attempting to intimidate him. In his book, Harding is mostly concerned with the personalities of Snowden and the Guardian journalists involved in the publication of the files. Of Snowden’s three Hong Kong contacts, Glenn Greenwald comes across as a scattered but bold crusader, documentary filmmaker Laura Poitras is cast as an unsung and persecuted truth-teller, and the Guardian’s Ewen MacAskill appears as the paper’s chummy but shrewd senior reporter, sent to vet Snowden’s authenticity.
The most interesting among the book’s cast of journalists is Janine Gibson, the spunky editor of the lean and fierce US arm of the Guardian. Acting to protect the paper from accusations of irresponsible publication like the ones that alienated WikiLeaks, Gibson and Spencer Ackerman liaised with officials in the Obama administration before publishing the initial stories based on Snowden’s leaks: the Verizon and Prism disclosures. Publication of the Snowden revelations was Gibson’s call, and she refused to back down in the face of intimidation by Obama administration officials Sean M. Joyce (FBI deputy director), Chris Inglis (NSA deputy directory), and PRISM cheerleader Robert S. Litt (legal counsel to the Office of Director of National Intelligence, headed by James Clapper), who comprised the team of “heavyweights” dispatched by the White House to discourage theGuardian from publishing. Such a tactic had already worked on The New York Times, which had been sitting on the Verizon story for over a year. But Gibson didn’t yield.
Lacking much new material on Snowden himself, Harding continues to bait with the media hook of Snowden’s improbable youth, given the magnitude of his actions. Last summer, those hostile to Snowden — from talking heads on cable TV to President Obama — referred to him as a “kid” in order to tar his act of courage as an act of adolescent impulsivity. He was called worse, of course — everything from hasty to “traitor” and “Russian/Chinese spy.” But a consistent feature of his disparagement by those who attempted to malign him was commentary on his age and appearance, despite how irrelevant both are to his actions. It is annoying that Harding continues this meme, quoting the surprise Poitras and Greenwald expressed when they discovered their “Deep Throat” was not a grizzled curmudgeon, but a 29-year-old nerd. In this way he plays into the mainstream media’s depiction of Snowden as an irresponsible “kid” whose disclosures were acts of adolescent rebellion rather than the principled position he articulately defines in the Greenwald–Poitras interview.
Snowden’s youthful naïveté, as the man himself admits, was to have swallowed the narrative Americans were fed about the purpose of US involvement in the Middle East: “We were actually involved in misleading the public, and misleading all publics, not just the American public,” he says of his work in the intelligence community. He has cited the “litany of lies from senior officials [of the IC] to Congress” — naming Clapper’s lie in particular — as his motivation for going public with the exfiltrated documents. “The public needs to decide whether these programs and policies are right or wrong,” he says. This is an appeal to ethics that you won’t find anywhere in the IC.
Even the old boys of The NSA Report admit that sometimes, what is strategic and efficient is simply not right. But since it was not asked to do so, the Review Group does not recommend legal proceedings against any individuals. Indeed, punishment for the masterminds of the NSA’s huge affront to the Constitution is, unfortunately, not very likely.
However, there remains one obvious way for Congress to assert leadership: James Clapper lied to Congress about the NSA’s domestic spying activities. Lying in Congressional testimony falls under the rubric of obstructing the business of Congress — in this case its duty to oversee executive agencies like the NSA — and is considered contempt of Congress. The Senate is empowered to find Clapper in contempt of Congress, and to refer to the matter to the US Attorney for Washington DC, whom it may then compel to assemble a grand jury to decide whether to pursue criminal proceedings against him.
Let us not forget that all of this malfeasance began or expanded after Obama took office in 2008, pledging the most transparent administration in American history. Moreover, despite “welcoming the debate” that Snowden and the Guardian began, Obama has done almost nothing to rein in the NSA or encourage criminal investigation of the Agency’s alleged violations of Americans’ constitutional rights. He has ignored most of the recommendations contained in The NSA Report. He has not even dismissed James Clapper.
Snowden cites his disillusionment with Obama’s failure to investigate the unlawful activities of the Bush administration as the experience that “hardened” his resolve to act on what he knew. It is easy to understand why: official channels would have blocked his complaint. Far from immature and self-serving, Edward Snowden then took a principled stand and made a tremendous sacrifice for his country. As time passes, both he and Chelsea Manning will be regarded as heroes and champions of freedom. Barack Obama will not. Unless, perhaps, he pardons them.