Tag Archives: Edward Snowden

The Trump Whistleblower Scandal Is Proving Edward Snowden Right

The Trump Whistleblower Scandal Is Proving Edward Snowden Right

Edward Snowden did it all wrong, his critics thundered.

The former National Security Agency subcontractor should have used “other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions,” then-President Barack Obama claimed in an August 2013 press conference, citing an executive order he had signed that — in theory at least — gave intelligence officers some whistleblower protections for the first time ever.

“Snowden could have come to me,” George Ellard, then the NSA’s inspector general, claimed in 2014.

Snowden did, in fact, try to report his concerns through official channels. He questioned the legality of surveillance programs 10 times, he later testified before the European Parliament. He said he was brushed aside. So in 2013, he leaked reams of national security information to journalists Glenn Greenwald and Laura Poitras, revealing the details of multiple surveillance programs and launching a global debate on privacy. Thanks to Snowden, people all over the world now know far more than they otherwise would have about the NSA’s collection of millions of Americans’ phone records, its use of data from internet giants like Google and its spying on the phone calls of world leaders like Angela Merkel.

Snowden’s reward was criminal charges and effectively permanent exile from the U.S. But his concerns were aired publicly and the proper scope and scale of massive government surveillance programs was debated in the open.

So far, the latest fight over an intelligence community whistleblower seems to be vindicating Snowden’s decision. Recently, the intelligence community’s inspector general received a whistleblower complaint that he deemed “urgent and credible.” The inspector general then sent it up to the acting director of national intelligence. The law says the director of national intelligence “shall” at that point pass the complaint on to Congress. But President Donald Trump and his administration are blocking that complaint — which reportedly concerns a call Trump made to the president of Ukraine in which he asked for Ukraine to investigate former Vice President Joe Biden — from being seen by Congress.

That sort of politicization “is precisely the reason so many [whistleblowers] go to the press,” said Jesselyn Radack, a former Justice Department legal ethics adviser and whistleblower who now works as a lawyer for whistleblowers.

Snowden faced similar challenges. He received two kinds of responses to his internal complaints, he told the European Parliament:

The first were well-meaning but hushed warnings not to “rock the boat,” for fear of the sort of retaliation that befell former NSA whistleblowers like [J. Kirk] Wiebe, [William] Binney, and [Thomas] Drake. All three men reported their concerns through the official, approved process, and all three men were subject to armed raids by the FBI and threats of criminal sanction. Everyone in the Intelligence Community is aware of what happens to people who report concerns about unlawful but authorized operations.

The second were similarly well-meaning but more pointed suggestions, typically from senior officials, that we should let the issue be someone else’s problem. Even among the most senior individuals to whom I reported my concerns, no one at NSA could ever recall an instance where an official complaint had resulted in an unlawful program being ended, but there was a unanimous desire to avoid being associated with such a complaint in any form.

The choices for intelligence community whistleblowers are inherently limited. “You can stay silent, risk your career, or risk worse, like prison,” said David Colapinto, a whistleblower lawyer at Kohn, Kohn & Colapinto. “None of those choices are good.”

This system, in which even those who follow the rules are persecuted for talking out of turn, is not new, Radack noted. “Thomas Drake — an NSA surveillance whistleblower pre-Snowden — was prosecuted under the Espionage Act after following the procedures in the Intelligence Community Whistleblower Protection Act,” she said. Seeing what happened to Drake, she added, led “Snowden to correctly conclude that using the same channels that entrapped Drake to make his disclosures … would be an exercise in futility.”

Snowden’s government critics should have known this better than anyone. Obama’s administration used the Espionage Act against more alleged leakers than any administration before or since. An interagency review panel later found that Ellard, the NSA inspector general who said Snowden should’ve come to him, had himself retaliated against a whistleblower. The panel, composed of inspectors general from outside the Defense Department, recommended Ellard be fired; the Defense Department later overruled that decision.

The basic problem with government whistleblowing, as Snowden noted in October 2013, is that “you have to report wrongdoing to those most responsible for it.”

And as Snowden recognized, there are real advantages in going to the press. When journalists do their jobs, they can verify and then help lend legitimacy to complaints. Cooperating with “some kind of media organization would defend me against the worst accusations of rogue activity, and correct for whatever biases I had, whether they were conscious or unconscious, personal or professional,” Snowden writes in “Permanent Record,” his memoir published last week.

Trump’s efforts to “intimidate” this whistleblower could risk “a chilling effect on future whistleblowers,” Democratic Reps. Adam Schiff (Calif.), Elijah Cummings (Md.), Jerry Nadler (N.Y.) and Eliot Engel (N.Y.) warned in a press release last week. But whistleblowing, especially on national security and intelligence matters, has always been difficult and dangerous. The Supreme Court had to intervene to ensure that The New York Times could even publish the Pentagon Papers; Daniel Ellsberg, who released them, was charged with multiple federal crimes. The Obama administration was the most vigorous in modern history in its pursuit and prosecution of leakers, even as it claimed to create the strongest whistleblower protections in history.

It’s true that, thanks to Obama, there is theoretically a legal way for members of the intelligence community to make sure their concerns are heard. But those protections weren’t enough to make Snowden feel safe running his complaints too far up the chain and they didn’t give him confidence that his concerns would be heard.

“In organizations like the NSA — in which malfeasance has become so structural as to be a matter of not any particular initiative, but of an ideology — proper channels can only become a trap, to catch the heretics and disfavorables,” he argues in “Permanent Record.”

Whistleblower protections are most useful when someone is reporting an isolated instance of misconduct, said Ben Wizner, an American Civil Liberties Union lawyer who represents Snowden. “They have nothing to offer when someone is arguing that government programs that have been approved at the highest levels are unconstitutional,” he continued. “In those instances, the only way to affect change is to bring the public into the conversation by disclosing information to journalists.”

Now, a whistleblower inside the intelligence community is trying to do what Snowden claimed he couldn’t. So far, that person has been effectively silenced by the Trump administration’s refusal to provide the complaint to Congress as required by law. It’s possible that the administration will eventually comply with its legal obligations. But the political system has already sent a clear signal: Even intelligence community whistleblowers who follow the law can’t be confident their concerns will be heard.

Should the Trump administration continue to defy Congress, the whistleblower, and others who follow, can always do what Snowden did and try the First Amendment route. It is a big risk, and they should be careful. Our SecureDrop information is here.

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You Are Not ‘Innocent’

You Are Not ‘Innocent’

From Edward Snowden’s new memoir, Permanent Record, this passage about stumbling in 2009 across an extremely classified internal National Security Agency report detailing what the agency had been doing to gather electronic intelligence post-9/11. The report showed up on his desktop at his NSA outpost in Japan by mistake, because he was a systems administrator. The report he saw was completely different from the officially classified one the agency had previously released. In other words, the agency created a fake report for lawmakers, to conceal what it was really doing.

What the extremely classified report disclosed was “the NSA’s deepest secret”: the existence of a program called STELLARWIND, that collected every bit of electronic communication in existence, and stored it permanently. Here’s Snowden (p. 178):

[T]he US government was developing the capacity of an eternal law-enforcement agency. At any time, the government could dig through the past communications of anyone it wanted to victimize in search of a crime (and everybody’s communications contain evidence of something). At any point, for all perpetuity, any new administration — any future rogue head of the NSA — could just show up to work and, as easily as flicking a switch, instantly track everybody with a phone or a computer, now who they were, where they were, what they were doing with whom, and what they had ever done in the past.

Snowden explains that more important than the actual content of our messages are the “metadata” that surveillance agencies get from monitoring us. Metadata, he says, “is data about data.” It’s “all the things you do on your devices and all the things your devices do on their own.” A surveillant does not have to access the actual content of your e-mails (the “data”) to learn a lot about you from the metadata. For example:

the address you slept at last night and what time you got up this morning. It reveals every place you visited during your day and how long you spent there. It shows who you were in touch with and who was in touch with you.

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There’s another thing, too: content is usually defined as something that you knowingly produce. You know what you’re saying during a phone call, or what you’re writing in an email. But you have hardly any control over the metadata you produce, because it is generated automatically. Just as it’s collected, stored, and analyzed by machine, it’s made by machine, too, without your participation or even consent. Your devices are constantly communicating for you whether you want them to or not. And, unlike the humans you communicate with of your own volition, your devices don’t withhold private information or use code words in an attempt to be discreet. They merely ping the nearest cell phone towers with signals that never lie.

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I now understood that I was totally transparent to my government. The phone that gave me directions, and corrected me when I went the wrong way, and helped me translate the traffic signs, and told me the times of the buses and trains, was also making sure that all of my doings were legible to my employers. It was telling my bosses where I was and when, even if I never touched the thing and just left it in my pocket.

Reading this, I recalled my interview earlier this year in Prague, with Kamila Bendova, the Czech dissident and widow of dissident Vaclav Benda, who did a four-year prison stint for his anticommunist resistance. I interviewed Kamila and her son Patrik for my forthcoming book on resisting the present and coming soft totalitarianism. Kamila told me that she does not understand why people today are so careless about their personal data. She said (this is a quote from the transcript):

People still think that openness is all right. They think “I am innocent. I did nothing wrong. I don’t have to be afraid of anything.”

The truth is, said this old dissident, is that nobody collects this information innocently. Reading Snowden tonight brought home the hard-won wisdom of Kamila Bendova and the anticommunist dissidents who suffered under a totalitarian surveillance state.

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