With this diary, let us look at the Snowden saga through the prism of what the discussion should have been about from the beginning: The balance between national security and intelligence on the one scale and privacy on the other. I am persuaded that a majority of people want to hear all sides of a debate and all of the evidence. Unfortunately, much of the news about the Snowden saga has been replete with inaccuracies, withheld information and half-truths, which have snowballed into full-blown myths.
As a Democrat who believes that Government must be given every opportunity to succeed, who believes that whistleblowing procedures should be made stronger, not weaker (and that that perception especially applies to potential whistleblowers), who believes that the Rule of Law isn't something to be glossed over, and who has the hair to prove that the world is not simply black and white, I feel the need to address a few common myths that have cropped up during this debate. Let's begin with Congress and then work our way over to the Constitution.
I. THE MYTHS
MYTH: Because there has been some movement in Congress to amend the NSA metadata program, it was inherently unconstitutional or illegal, at least in part.
FACT: Every single Congresswoman, Congressman and Senator in Washington, D.C. knew about the NSA metadata program well before the Snowden leaks became news, and a majority of them voted to reauthorize the program. Some of them on multiple occasions. (Source: Director Clapper Letter to Senator Wyden). This was not a one-time phenomenon, as "the Executive Branch fully and repeatedly briefed" Congress on the NSA metadata program in 2009, 2010 and again in 2011. (Source: Id.)
Congress can act for any number of reasons, including public pressure, media attention or political expediency. The fact of the matter is that Congress was fully aware of the program and reauthorized it on multiple occasions. Some will argue that Clapper is an inveterate liar as he supposedly lied on one occasion--see that Myth below--but the Clapper letter is significant because (a) it was directed to Senator Wyden, (b) it was posted by Wyden on the Senator's website, and (c) Wyden had the opportunity to rebut the statements in Clapper's letter. A careful Senator would have rebutted that claim if it were untrue. He did respond to other claims in the Clapper letter. To gain the most knowledge about the issues, including the specific issue of Congressional knowledge of the NSA metadata program, it is best to read both Clapper's letter and
Senator Wyden's response
MYTH: The NSA metadata program was unconstitutional or illegal.
FACT: For 35 years, it has been constitutional for the Government to obtain the telephone metadata of known, specifically identified persons. (Source: United States Supreme Court)
In Smith v. Maryland
, 442 U.S. 735 (1979), the United States Supreme Court held that the Government could obtain the telephony metadata of a known, specifically identified person. In that case, it was Michael Lee Smith. The Government focused their criminal investigation on Smith. The Government wanted to know as much as it could about Smith. The Government targeted Smith with a pen register
, which was the means by which they were able to ascertain his telephone metadata. The Supreme Court held that Smith had no reasonable expectation of privacy to the information because he voluntarily shared it with the telephone company.
The best analogy with which to understand this decision is the Attorney-Client Privilege. Most everyone understands the Attorney-Client Privilege. We all know that if you discuss a legal matter with your attorney, the content of that discussion cannot be forced from either of you. However, the fact of your conversation with the attorney is not privileged information. Thus, in court, I can ask you, "Did you talk to an attorney about this matter?" I can ask you when, where, and for how long you talked to the attorney about the subject matter. I can ask you about all the "metadata" involved in your private and privileged conversation with your attorney. I cannot ask you or your attorney to divulge the content of your conversation. That is similar to the rationale behind the Smith v. Maryland decision. The Government could discover the who, the when and the where, but not the what.
This brings us to the major difference between the Smith v. Maryland case and the present NSA metadata program. That is, Smith involved a known person, whereas the NSA program deals with completely anonymous individuals.
Smith involved the Government's right to investigate a crime and, in the end, exact justice. With the metadata program, the goal is to prevent a terrorist attack that could lead to death or even the deaths of thousands and to prevent an injustice from occurring. So, although information about more people are involved in the NSA program than the single individual in Smith, there is anonymity, and the Government's interest is much stronger. Senator Ron Wyden held the position that the NSA program was constitutional:
"The data collected under this program is limited to telephony metadata: information about telephone calls such as the originating and dialed telephone numbers, the time a call is made and its duration. It does not include the content of any communication or the identity of any party to a communication. As you correctly note, the Supreme Court has squarely held that this type of information is not protected by the Fourth Amendment."
(emphasis in original; link added). This is from NSA Director James Clapper's letter to Senator Wyden. To his credit, Senator Ron Wyden noted the obvious: The 4th Amendment does not protect telephone metadata. Collecting it is not illegal. Collecting it is not unconstitutional. This is highly probative of the issue because Senator Wyden responded publicly to this correspondence, but he never contradicted this assertion. A careful and reasonable senator would have corrected that statement if it were not true.
SIDEBAR: In the reporting from Glenn Greenwald, there is no mention of the Smith v. Maryland case. Why is that? Greenwald is a lawyer, and if he were arguing the case before a court, he would have a duty to bring that case to the court's attention. Failing to do so would be an ethical violation. Does he owe a lesser duty to the public? This isn't Top Secret classified material like the program that NSA Director James Clapper hedged about during testimony before the Senate Intelligence Committee. This is a Supreme Court case that was made public 35 years ago. Moreover, every court that has determined the constitutionality of the metadata program, including all of the FISA courts and the other Federal courts, have dealt with the Smith v. Maryland holding.
I have searched every article that Greenwald wrote or co-wrote at The Guardian from June 2013 to the present, as well as every article he wrote or co-wrote at the Intercept from its inception. There is no mention of this seminal case by Greenwald. The search function was working properly, as it picked up all three of Greenwald's scare pictures of the NSA's Fort Meade, "Maryland" complex published in The Guardian and the single article in the Intercept in which he comments about Fort Meade, "Maryland." A related question is this: Did Greenwald tell Edward Snowden--before the latter absconded with top secret material--that there was a United States Supreme Court case which held that obtaining telephone metadata from even known individuals was constitutional? These are questions that an interested media should have asked during the past year. Why have they not?
This is akin to a year's worth of discussion and public debate about the constitutionality of choice without mentioning Roe v. Wade. Or a year's worth of news reporting about the constitutionality of campaign finance reform without mention of the dread holding in Citizen's United. Every time that Glenn Greenwald, especially, as a lawyer, and to some extent, Edward Snowden, as a very interested party, claims the Government has taken unconstitutional or illegal actions, they are holding back something from the public and from you. [END SIDEBAR]
Finally, to create any type of constitutional problem, there would have to be an illegal conspiracy between Government officials. In other words, the big to-do over these matters is not a present conspiracy. For that reason, it doesn't even rise to the level of conspiracy theory; rather, it is "Pre-Conspiracy Theory" or "P-CT."
MYTH: Capability equals reality.
FACT: It does not.
From the beginning, arguments have been made that the United State is currently a dystopian security state or that America is on the precipice of a giant slippery slope. The former looks like this: "The Government can do it, so they must be doing it!" The latter, like this: "They'll be doing it soon." The second fallacy is quite like Scalia's silly and infamous broccoli slippery slope argument
during the ObamaCare hearing at the Supreme Court. If you recall, Justice Antonin Scalia argued that if the Government could mandate the purchase of health care insurance, then it could mandate the purchase of broccoli. (I warned you that it was silly.) What judges who use such rhetoric ignore is the fact that the judge, him- or herself, is about the sixth line of defense against silly laws. In the lawmaking scenario involving Scalia, you have legislators as the first line of defense, the People next, the Media after that, the President with veto power, Federal and State court Judges, and, finally, the Justices on the United States Supreme Court. That, Justice Scalia, is why we cannot make you eat your vegetables.
In the NSA scenario, the slippery slope argument begs you to ignore the fact that we have a Constitution, a Supreme Court, lower Federal courts, case law, the Separation of Powers, less obeseiance to Government than previous generations, Whistleblower protections that were unavailable to earlier Federal employees, Civil Liberties Protection Officers working in the NSA, Attorney General-drafted regulations of the intelligence community, a media and a lay media more apt to report on Government wrongdoing, an independent Privacy and Civil Liberties Oversight Board, stronger oversight by legislators, as well as various in-house precautions we've learned about, including such things as keystroke audits and the new NSA "buddy system."
It can be argued that the LOVEINT matters, the handful of cases in which an NSA employee snooped on a spouse or other romantic interest, are "reality." That is true. On the other hand, those employees, it is assumed, were dealt with appropriately, and, moreover, the threat is less than the hundreds of thousands of United States Postal employees who handle mail every day. That's 600,000+ current employees who have had a part in handling the 158.4 billion pieces of mail the USPS has delivered. With the new "buddy system" in place at the NSA, this should be a concern of the past. I have yet to hear of the Postal Service adopting the buddy system or even a public outcry for it.
Additionally, there was quite a to-do about the matters discovered in the FISA court opinion showing that the NSA had made an unintentional mistake, mishandling the "content" of approximately 3,000 messages from and to US Persons. The facts that showed this error also showed that the NSA voluntarily reported it, the FISA court took swift action, the content was destroyed or rendered unviewable, and future precautions were instituted so that it would not happen again. Borrowing another postal analogy, this was akin to having an out-of-calibration mail sorting machine mistakenly cutting open letters for a couple of hours at the regional postal sorting center in Denver.
There is no doubt that there are concerns. There should always be concerns with Government, which is why we have such mechanisms as the Whistleblower system. What we've seen, though, is that when the curtain was unexpectedly pulled away, there was the NSA and the FISA court working professionally--keeping in mind the importance of privacy--to eliminate potential problems and to put in new safeguards.
MYTH: The United States of America is a security state equal to or worse than Soviet Russia, East Germany under Stasi control or Nazi Germany.
FACT: It is not.
Perhaps now that almost an entire year has gone by, Snowden or Greenwald or Poitras or Applebaum or Assange or Gellman can provide us with proof of a single, intentional illegal act or unconstitutional practice. Before one starts calling America a police state, it should be required that one cite an actual violation of the Constitution.
MYTH: Snowden heard NSA Director James Clapper "lie" to Congress and then decided to abscond with documents from the NSA and make them public.
FACT: Snowden had been thinking about exposing government secrets for approximately five years before Clapper's testimony. (Source: Edward Snowden; The Guardian). Moreover, the timing doesn't work out. Snowden started his job at Booz Allen Hamilton sometime in March 2013; Clapper testified on March 12, 2013. (Sources: ABC News, Booz Allen; The Guardian; CSPAN) Additionally, Snowden contacted Laura Poitras in January 2013 and Glenn Greenwald a month later in February 2013. (Sources: Salon.com, The Guardian, ABC News, The Washington Post, POLITICO).
Recently, with more information coming out, Edward Snowden and Glenn Greenwald have basically admitted that Clapper wasn't the boogeyman who got this ball rolling with his testimony before Congress. In Greenwald's new book, he notes that Snowden first contacted him on December 1, 2013
, which was approximately 3½ months before Clapper testified. In that email to Greenwald, Snowden was already asking him to obtain encryption technology. He told Greenwald and Laura Poitras that he was ready to spill all the beans. Greenwald even said
that Snowden "spent months meticulously studying every document" before handing them over. That doesn't fit the mythic timeline.
Compare this now-supposedly-true timeline with what Snowden said previously:
"I would say sorta the breaking point is seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress. There's no saving an intelligence community that believes it can lie to the public and legislators who need to be able to trust it and regulate its actions."
(emphasis added) (4:46 of this linked video
). These are Snowden's words during an interview with German television, and specifically, a question about what was the "decisive moment," for him, that required his stealing all those documents.
As you can see, early in the game, Snowden, and assumedly his advisors, implied as hard as hell that NSA Director James Clapper's testimony was the impetus for Snowden to act. There's even some evidence that Snowden was stealing documents while he worked for Dell, before he took the job with Booz Allen. Why the subterfuge? Was Clapper just a convenient boogeyman? What it certainly did was allow Greenwald and Snowden and their adherents to argue night and day that nothing from the NSA--and especially Clapper--could be believed, even though the NSA Director was under a duty not to divulge classified information, and the Senate Intelligence Committee knew all about the NSA metadata program well before his testimony.
MYTH: The Obama Administration has prosecuted more whistleblowers than any other administration.
FACT: Whistleblower laws are a relatively recent phenomenon, tracing their origin to the Whistleblower Protection Act of 1989. Daniel Ellsberg, to pick a name at random, for example, could not have availed himself of statutory whistleblower protections, as they did not exist at the time. In 2012, more people claimed whistleblower protection than in any previous year. (Source: Office of Special Counsel Report) In a two-year period, the OSC received "2,276 whistleblower disclosures." (Source: Id.) Also, the internet and the mass-document absconder and dumper are relatively new phenomenon, and, of course, it depends upon how broadly you choose to define "whistleblower."
Mass document-dumpers, who grab millions of files and dump them on the internet or in the laps of "journalists" are not whistleblowers. Sean Penn gets it exactly right here:
It is like Chelsea Manning, and to a lesser extent, Edward Snowden, took information shotguns and discharged them into a crowded information marketplace a million times without looking at what they might destroy.
At Mediate, Tommy Christoper wrote on this subject, noting that times had changed, the number of reporters had increased exponentially, as well as the number of people with security clearances (up to 5 million) and the number of people with Top Secret clearance (up to 1.4 million). Christopher tapped into the current zeitgeist with this remarkable passage:
"There has also been an annoyingly binary narrative to the reporting on leaks, and leak investigations, of late. The media has adopted the weird, reverse-Nixonian premise that if a journalist does it, it must be legal. With regard to leakers, they’re either courageous whistleblowers who should never be prosecuted, or traitors who should be endungeoned for all time. Both opinions miss the essential relationships involved, between journalists and sources, and between the government and those to whom it entrusts its secrets. It is a reporter’s job to protect his or her sources, and the government’s job to protect information. If journalists fail to protect their sources, then they won’t have them for long. Conversely, if there are no consequences for revealing secret information, then the government can’t protect any information."
This "reverse-Nixonian premise," I would add, also seems to have created a second law of whistleblowing: Once a whistleblower, always a whistleblower, as if leaking important matters that should be brought to the attention of the Government clads the whistleblower in some kind of forever-immunity. Take the cases of John Kiriakou and Thomas Drake. Kiriakou was the first person to blow the whistle on waterboarding torture. That was an important and necessary matter that should have been brought to the attention of the Government and the media. Some time later, though, he was sentenced to 30 months in prison after pleading guilty to disclosing the name of a covert CIA officer to a member of the media. That's a secret that must be kept.
Thomas Drake blew the whistle on the NSA's Trailblazer project, which was reportedly a huge waste of money. He followed the proper procedures, and the Government eventually terminated the project. Drake reportedly "complained internally to the designated authorities: to his bosses, the NSA Inspector General, the Defense Department Inspector General, and both the House and Senate Congressional intelligence committees," a lesson that Edward Snowden should have followed. This was all basically done by 2002. Subsequently, though, in 2007, Drake was on the phone with a Baltimore Sun reporter and was found to have material stored at his home that shouldn't have been there. His attorneys argued that he brought home the material accidentally, not "willfully." He pled to a misdemeanor charge for exceeding the authorized use of a computer. Claims that the charges brought against him for his 2007 actions related to his pre-2002 whistleblowing are not corroborated in this respect: His three pre-2002 co-whistleblowers were not charged with crimes.
Four other game-changers in just the last two decades deal with computational storage ability, the internet, the public's access to secure encryption and the phenomenon of the mass-document dumper. Edward Snowden and Chelsea Manning cannot be called whistleblowers because of the indiscriminately large number of the documents leaked, as well as the irrelevance of a vast portion of them and the potential for harm. Moreover, neither followed the whistleblower procedures that Thomas Drake and his three co-whistleblowers managed to follow before 2002. Snowden and Manning were able to use the internet and/or encryption technology to clandestinely contact those who would receive the documents, and the advances in computational storage ability allowed them to dump millions of documents.
Two other "whistleblowers" include Stephen Jin-Woo Kim, who was a Department of Defense contractor who "leaked classified information to Fox News reporter James Rosen, which appeared in [a] 2009 Fox News article that appeared to have little news value, other than to inform the North Korean government that the United States had managed to develop an intelligence source in the North Korean government" and Jeffrey Sterling, who was indicted in 2010 "for allegedly leaking information about the Agency's efforts against Iran's nuclear program, to New York Times reporter and State Of War author James Risen." This is apparently the whistleblower that Edward Snowden wanted to shoot "in the balls."
In context, this myth is like saying that Truman prosecuted more people for divulging nuclear secrets than any other President. Of course he did. At that time, atomic technology was rare, secret and sexy, a dangerous trio.
MYTH: It was too dangerous for Snowden to blow the whistle on the Federal Government, as he would have been "transported" and "renditioned."
FACT: Again, the numbers don't lie. Thousands of people have obtained and received Whistleblower status under the Obama Administration every year.
What we've heard on this issue is people taking mutually exclusive positions: Snowden did blow the whistle, or, at other times, Snowden couldn't blow the whistle because of some potential hypothetical Hollywood bad-government scenario involving plastic cuffs and the roomy trunk of a big black sedan.
It has recently come to light that Snowden did send one email to the NSA's Office of General Counsel, but it only asked whether Executive Orders or statutes took precedence and whether DoD or ODNI regulations took precedence. As one writer noted, it is a "civics" question, not whistleblowing. It didn't alert anyone about any problem of any kind (even if there was one). Moreover, this one email was sent in April 2013, four months after Snowden had contacted Laura Poitras and Glenn Greenwald and told them to obtain encryption tools. Snowden does claim to have sent at least one other email, but he has not provided a copy of it. A whistleblower who has downloaded potentially millions of documents somehow failed to download his own whistleblowing emails? That strains credulity. Moreover, writing one email about which rule to follow on the job is to following established whistleblowing procedures as dreaming about being on a date with Beyonce is to being on a date with Beyonce.
This raises the question: Who elected Snowden? I voted for a President to set up a regulatory scheme through his Attorney General, to appoint Federal Judges to review the program from outside the FISA court system, and to set up such other mechanisms he thought necessary such as the independent Privacy and Civil Liberties Oversight Board. I voted for members of Congress to provide oversight, to set up a Whistleblower system and to vote to authorize or not to authorize various NSA programs. I didn't vote for Snowden. Moreover, I would never vote for a person who was so ignorant about the most relevant facts (Clapper wasn't hiding anything from Congress) and law (Smith v. Maryland provides that Government telephone metadata collection is constitutional) appertaining to his leaks. Do we want people who are ignorant of the salient facts and the law to make policy judgments that include the divulgence of millions of Top Secret documents?
[Another alternative is that Snowden realized that the NSA metadata program was constitutional and, for that reason, did not engage the whistleblowing process. If he had taken his information to the Inspector General, the IG would have shown him the Smith v. Maryland case, and the story would have ended. "Gathering telephone metadata has been constitutional for 34 years, son." The evidence for this isn't substantial enough to make it more, right now, than an alternative to keep in mind: The Supreme Court case wasn't secret. It had been on the books for 34 years by the time Snowden left for Hong Kong. He's supposedly a really intelligent guy. Moreover, he was being advised by at least one attorney, who, if he didn't know about the Supreme Court case, could have found it pretty quickly. Snowden hasn't shown any violations of the constitution, nor did he elect to effectively engage the Whistleblower system. Snowden has implied that he is some kind of caretaker for the world's privacy, which either explains why he can't show violations of US laws or is a cover for the fact that all he's got is data showing that the NSA spied on Pakistan and Iran and Poland, and etc., as well as one Constitutional NSA program that deals with telephone metadata. As champion of the world's privacy, why should he care what American whistleblower laws prescribe? Snowden has only been able to scare the public with "capabilities" and not "realities." He has provided only "pre-Conspiracy Theories" that would require a future conspiracy of Government employees, and that would not go over well in a whistleblower complaint.]
In the end, whistleblowing is absolutely necessary to Government, especially one as layered as ours. That's why we have set statutory mechanisms for blowing the whistle. To claim that there were no whistleblowing mechanisms available to Snowden or to allege that the Obama Administration comes down hard on whistleblowers may "chill" future whistleblowers, who aren't mass-dumpers of Top Secrets or who aren't outting CIA agents. That's why the public should know the details of these claims.
MYTH: NSA Director James Clapper lied to Congress on March 12, 2013 during testimony before the Senate Intelligence Committee and Senator Ron Wyden.
FACT: Every Senator in that room, and, in fact, every Senator and Congressman and Congresswoman in Washington, D.C., no matter how junior, knew about the NSA metadata program. The NSA delivered packets about the program to each one of them. (Source: Senator Ron Wyden).
Senator Ron Wyden asked Director James Clapper the spy version of the "when did you stop beating your wife" question on national tv (CSPAN). No response, short of a feigned heart attack, was correct, and even that would have been a fraud upon the committee. Senator Wyden asked his question in such a way as to demand a "yes" or "no" answer. If the Director had responded with a "yes," he would have violated his sworn duty as NSA Director. If he said that he could only respond during a closed-door session, then the next day's headlines in The New York Times
would have been about the NSA spying on millions of Americans. As Director of the NSA, Clapper was sworn to keep secrets. He chose his duty as Director of the NSA over his duty as a witness before Congress. He chose wisely.
Moreover, as noted above, every Congresswoman, Congressman and Senator in Washington, including Senator Wyden and the others attending that hearing knew the answer to that question. As noted below, even Daniel Ellsberg admits that the country must keep secrets. If the country must keep secrets, then those gatekeepers must be exceedingly reticent to give them up. Put yourself in Clapper's shoes and walk around a bit: Would you have divulged Top Secret information knowing that the person asking the question, as well as everyone else on that panel, already knew the answer to it?
"[A]s Congress required, the Executive Branch fully and repeatedly briefed the Intelligence and Judiciary Committees of both Houses about the program and timely provided copies of the relevant classified documents to the Committees. Moreover, the Executive Branch undertook special efforts to ensure that all Members of Congress had access to information regarding this classified program prior to the USA PATRIOT Act's reauthorization in 2011, including making a detailed classified white paper available to all Members. Specifically, in December 2009, the Department of Justice and the Intelligence Community provided a classified briefing paper to the Senate and House Intelligence Committees that could be made available to all Members of Congress regarding the telephony metadata program. Both Intelligence Committees made this document available to all Members prior to the February 2010 reauthorization of Section 215. That briefing paper was then updated and provided to the Senate and House Intelligence Committees again in February 2011 for all Members in connection with the reauthorization that occurred later that year."
(emphasis added). In the very Snowden-friendly Vanity Fair
article, the journalists wrote the following
without citation or quotation marks or mentioning a source: "But for anyone from the intelligence community to even acknowledge the existence of a classified document may be a crime." This, of course, is exceedingly obvious, but it is one of those exceedingly obvious things that anti-NSA types conveniently forget. Interestingly enough, that statement was made for another purpose other than to discuss NSA Director James Clapper. That same statement was not
mentioned when the article's subject was Director Clapper. Ironically, when people assert that Clapper would be fired but the law doesn't apply to the ruling class
, they ignore the impact of this law on Clapper.
Besides having a nearly ironclad justification defense for what he did, Clapper also did not commit perjury according to Federal perjury law. "Clapper is guilty of perjury and should rot in prison for lying" is a common refrain on the internet. It is another myth. Let's see how perjury before a legislative body is handled in the Federal system:
"[C]ourts generally favor the encapsulation from United States v. Dunnigan to describe the elements of perjury in other contexts under Section 1621: 'A witness testifying under oath or affirmation violates this section if she gives false testimony concerning a material matter with the willful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory.'"
As you can see, under § 1621, it sure looks like NSA Director James Clapper is guilty of perjury with his testimony to the Senate Intelligence Committe. But that's not true. The section specifically requires that the false testimony be "concerning a material matter." The test used by Federal courts for "materiality" under § 1621 is whether the false assertion “has a natural tendency to influence or [is] capable of influencing the decision-making body to which it [is] addressed.” Id.
(citations omitted). As you know, all the Members on that panel of the Senate Intelligence Committee knew what the NSA metadata program did, so Clapper's testimony had no chance of influencing the decision-making body as they had already been briefed on the program multiple times. [Interestingly enough, if there was a case against Director Clapper, the case against Senator Ron Wyden for Subornation of Perjury (18 U.S.C. § 1622
) would be just as good. But, as noted above, there's no case against Clapper, and because of that, there's no case against Wyden.]
MYTH: The NSA metadata program has been entirely unsuccessful.
FACT: In correspondence with Senator Ron Wyden, Director Clapper noted that the program had led to successful interdictions, including some so classified that he couldn't describe them or even give a number for them in the letter. Government lawyers cannot bandy about the successes in court because that could possibly open the door to opposing lawyers finding out those Top Secrets. (Source: See, e.g., Rule of Optional Completeness; "Open Door" Doctrine)
In correspondence with Senator Ron Wyden, Director Clapper noted that the program had led to successful interdictions, naming two of them and implying that others were so classified or current that he couldn't even give a number for them in the letter. It is common knowledge that if an intelligence failure is secret, then an intelligence success is Top Secret. A spy agency doesn't want to give away secrets that have led to intelligence successes, which might put an end to the usefulness of the program or practice. Moreover, Government lawyers cannot bandy about the successes in court because that could possibly open the door, allowing opposing counsel to walk right in and discover all those Top Secrets. (Source: Rule of Optional Completeness) This is what Director Clapper wrote in his letter to Senator Wyden on the subject:
"We have previously declassified two instances where the Section 215 bulk collection was useful: the attempt by Najibullah Zazi to bomb the New York subway system, and the material support investigation of Basaaly Moalim. Other examples which have already been provided and which must remain classified for operational reasons are provided in the classified supplement."
It is not as probative for our purposes as the other material in the letter (Wyden's view that the NSA program was constitutional; the multiple Executive Branch efforts to provide information about the program to "all Members" in Congress) because the Senator did challenge this information about effectiveness. Senator Wyden
"[I]ntelligence leaders were specifically asked to demonstrate the unique value of the bulk phone records collection program. They did not. Instead, they persist in citing two cases where the government could have obtained a court order or emergency authorization for the information it needed. The bottom line is we still have yet to see concrete evidence that the dragnet collection of phone records provides any unique value."
In a letter to a Federal Judge, a Department of Justice attorney wrote that "The program has contributed to the disruption of multiple potential terrorist attacks in the United States and abroad." This is probative of the issue because the lawyer would be disbarred--or at least have disciplinary action taken against him--if he were caught lying to the Judge. Anyone who has practiced in front of a life-tenured Federal Judge will tell you that the first rule in Federal court is to not piss off the Federal Judge. The quickest way to piss off a Federal Judge is to lie to him or her. Since we cannot peruse the classified materials, we cannot know the true effectiveness or ineffectiveness of the program. At the present, then, the program may, indeed, be ineffective, but all we know is that the claim that the program is ineffective is a myth.
MYTH: Edward Snowden did not have any whistleblower remedies because he worked as a contractor for the Department of Defense.
FACT: Even Glenn Kessler, the fact-checker for the Washington Post, gave Snowden a "Pinocchio" for this one. (Source: Washington Post).
QUESTION: Does anyone really believe that, in the year 2013, the United States, a country that employs hundreds of thousands of contractors didn't have whistleblower protections available for Edward Snowden? Remember, we're not talking about Narnia or Middle-Earth here; we're talking about the United States of America.
DISCUSSION: Snowden could have followed established whistleblower procedures. If he felt that that wasn't going to work, he could have modified them slightly and, most likely, not been faced with decades of prison. In our system--and it is a system and not a pooling of individual anarchy and chaos--the basic questions are: (1) Who decides, and (2) How should they decide. In a Democracy, officials are elected who appoint judges to determine questions of constitutionality. They also appoint officials to determine what should and shouldn't be classified and kept from the public at large. Legislators have also provided a system in which whistleblowers can bring attention to issues involving governmental illegality or waste.
That whistleblower system was effective enough in 2012 to encourage more than one thousand people to contact the Office of Special Counsel. Thousands more contacted the Securities and Exchange Commission that same year. Also well before Snowden, President Obama received praise from the Government Accountability Project for fighting for and ultimately enacting the Whistleblower Protection Enhancement Act of 2012, which included among its reforms provisions that would have applied to Snowden had he elected to follow that route, including:
"... federal employees now are protected (in addition to already-existing scenarios) from reprisal if they: are not the first person to disclose misconduct; disclose misconduct to coworkers or supervisors; disclose the consequences of a policy decision; or blow the whistle while carrying out their job duties."
Specifically, there was a mechanism in place since 2008 for Snowden to blow the whistle in a way that did not harm the country and still got the job done. This was the specific regulation in effect at the time he left for Hong Kong (highlighted in pink):
Additionally, there has been whistleblower protection for DOD contractor employees since at least 2006 found in the Code of Federal Regulations. Title 48 of the Code of Federal Regulations, Subpart 3.9 reads as follows:
Statement of Acting DOD Inspector General Gimble, Feb. 14, 2006, at p. 5.
MYTH: Complaining orally to co-workers makes you a "Whistleblower."
FACT: It makes you a worker. There are specific procedures to follow to achieve protected whistleblower status under Federal Law.
For most people, whistleblower protection begins here
at the OSHA Government site. There you will find remedies involving the following:
OSHA's Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.
If you observe Government malfeasance involving finances, especially involving stocks and large banks, you should start here
at the Securities and Exchange Commission's Office of the Whistleblower, or better yet, here
at their "Complaint Center." For those who work in the Veteran's Administration or consume their services, there's special whistleblowing assistance for you here
. Anybody working in state government can use the link here
to find consumer protections and whistleblowing sites. If you work for the Federal Government or alongside Federal employees and you don't know where to start, here
at the Office of Special Counsel you can find answers. If they can't help you, they know who can. Finally, if all else fails, then the Office of the Inspector General has a site devoted to assisting whistleblowers here
MYTH: National secrets, secret courts and secret laws and Black Budgets are something new (and therefore scary).
FACT: Even revered Whistleblower Daniel Ellsberg notes that we must keep secrets. (Source: Democracy Now!) Moreover, throughout modern history, courts and legislatures have always barred the public when certain topics were the subject matter.
The common trope from a few on daily kos is that this matter involves "secret courts and secret laws" as if that was novel and frightening. In fact, courts and legislatures have long held closed-door sessions when certain private matters need to be taken up. Attorneys know that the public is excused, in most cases, when a minor is testifying, and in many cases, when corporate trade secrets (i.e. formulae, customer lists) are to be divulged. Over centuries, courts and law-making bodies have balanced the important public interest in what occurs during these proceedings with the damage that could be caused from the divulgence of certain secrets. National secrets, emotional trauma to minors and, of course, capitalism won out. Local law-making bodies frequently go into closed-door session to discuss personnel matters. Is that more important than national security?
Does anyone here actually believe that before the FISA courts existed there were open-to-the-public hearings on Capitol Hill during which current military intelligence operations were discussed? When the FISA courts were created, the novelty was that the court was centralized, fewer people were involved (fewer loose lips), Judges were appointed who could specialize in that kind of law and technology, and Judges were given the time necessary to keep up to speed with the daily goings-on in the intelligence community. It's rather an ingenious system, and with a few tweaks--especially dealing with the appointment of judges--it is the best, most efficient model for this kind of matter.
MYTH: This is a terrifying new technological era with terrifying new technologies and capabilities which will surely end in "1984" or "Minority Report," with nothing to protect the privacy of Americans and other world citizens, just look at the Church Committee.
FACT: There was a long list of protections and safeguards that Glenn Greenwald and Edward Snowden have, thus far, virtually ignored.
Edward Snowden, in melodramatic fashion, stated his "great fear" was of "omniscient State powers kept in check by nothing more than policy documents." (Source: Vanity Fair) Of course, what Snowden glossed over with the phrase "policy documents" is what we know as the Constitution, the rule of law, the Separation of Powers, and legislative oversight among other things and entities. Times have changed since the days of the Church Committee. There's still a Constitution, a Supreme Court, court system and case law, as well as the Separation of Powers, but we now have:
1. Less obeseiance to Government.
2. Whistleblower protections.
3. Civil Liberties Protection Officers.
4. Attorney General-drafted regulations of the intelligence community.
5. Courts dedicated to balancing security and privacy.
6. Appellate review of intelligence matters that involve privacy.
7. A media and a lay media more apt to report on Government wrongdoing.
8. Stronger oversight by legislators.
9. Keystroke audits.
10. The "buddy system."
MYTH: The creation of an anonymous metadatabase is a "search" for 4th Amendment purposes.
FACT: Could happen, hypothetically. But, not in this case.
What is a search? A search is when somebody looks for some particular thing (i.e. contraband) or conduct (i.e. criminality) or some particular person (i.e. a suspect). Gathering a database, especially an anonymous one, is not likely to be a search. First of all, it's anonymous. There is no particular person searched or searched for. Secondly, any search occurs only after the Government has the verified telephone number of a terrorist or other foreign hostile with which to search the database. Then, only if your telephone number has called or received calls from a terrorist or foreign hostile telephone number can the Government obtain your name and other information. Thirdly, if the NSA metadata program is a search, then it is the worst search in search history, possibly only eclipsed by Monty Python's Search for the Holy Grail. I can show you what I mean by putting together a "Wanted" poster containing your information obtained by the NSA for the metadata program. It would look like this:
That's simply not a search. Let's look at another Federal database for instruction. The Government maintains a huge database of fingerprints: The fingerprints of everyone who's been arrested, everyone in the military, everyone who has worked for the Federal Government, most state governments and some local governments, and everyone who has ever been issued a security clearance or received a background check that included a trip to the local police station. They use it to match fingerprints on file with prints found at a new crime scene. It has been computerized and has gotten more technologically advanced over the years. Is it a violation to search that database? Other than the people arrested, everyone else has more or less voluntarily agreed to provide their fingerprints, even if it is only to the local or state police. That's how the Supreme Court sees telephone metadata. You have voluntarily given a third party--the telephone company--the information about when you called and what number you called. If your fingerprints provide a "hit" to the police, they will automatically know your name and last known address. If you called a terrorist, on the other hand, and your call provided a "hit" in the NSA database, the Government would not automatically know your name. The NSA would still have to get a warrant. Finally, fingerprints are not "metadata." They are absolute identifiers.
Another way to look at it would be to think of telephone books. Could the Federal Government obtain a complete set of every telephone book in the United States and every directory assistance listing, upload that data into a computer, and then search it? Of course they could. You could too. There's nothing remotely unconstitutional about that. Yet, that database wouldn't be anonymous like the NSA's metadatabase. On the contrary, that database would include your telephone number and address. Besides anonymity, the one advantage that the NSA's metadatabase offers over a hypothetical telephone database is cost (with time and labor rolled up into cost). What the NSA metadatabase is is a clever and cost-efficient way to anonymously provide important security functions: Locate terrorists working in the country and people in this country who are financing terrorism while keeping any invasion of privacy to an anonymous minimum.
Let's try another angle. Is there now a pretty well accepted means for the state to anonymously search people? Yes, they're called random roadblocks. Police are searching for drunk drivers but will confiscate contraband if they find it. The police aren't looking for you, they're looking for conduct or contraband. There are certain rules and protections that apply, but the police can set up a random roadblock on your street tonight. There are also certain rules and protections that apply to NSA searches of their metadatabase, but for that, there is no in-person contact with law enforcement like you have with random roadblock searches.
MYTH: President Barack Obama is as bad (IF NOT WORSE!!) than President George W. Bush when it comes to unconstitutional and illegal surveillance.
FACT: George Bush's administration was caught illegally wiretapping the content of American's speech. (SOURCE: Washington Post; The New York Times) President Obama's administration has not. The only alleged unconstitutional act his administration has taken regarding surveillance has been held constitutional for the last 35 years. (SOURCE: Smith v. Maryland)
Whereas Bush's administration was caught dabbling in the illegal and unconstitutional seizure of content, the Obama administration was "caught" having added many new regulations to the ledger abetting privacy, having strengthened whistleblower protections in a way that brought praise from the Government Accountability Project
, having ended numerous other practices that had been born of Bush and 9/11, and having set up an independent Privacy and Civil Liberties Protection Board, an entity that was envisioned during the Bush years, but was never, for one reason or another, set up. The word "caught" in quotation marks in the preceding sentence is specifically used because without Snowden, nobody would have cared, and in some instances, even known of the reforms that President Barack Obama and Attorney General Eric Holder initiated while nobody was looking.
One side of the equation that seems to be given short shrift is that of national security. The real discussion should be about a balance between privacy rights and the Government's interest in national security. For some, there should be no balance; only privacy matters. Most people, I believe, are reasonable enough to understand that national security is important, and if there was a way to legally and constitutionally protect the nation from harm--cyber or explosive or other--then the Federal Government should take those steps. In fact, if the Government didn't take those reasonable steps, would it not be negligent? President Bush erred unconstitutionally on the side of national security. President Obama has created a balance. Moreover, he has put in enough policy and regulatory infrastructure and set enough Executive Precedent that future presidents will not be as tempted to stray too far.
MYTH: FISA courts acted as a "rubber-stamp" for whatever the NSA wanted to do.
FACT: FISA courts and the NSA have a relationship that is far from rubber-stamping. It includes hands-on and detail-oriented meetings that shape NSA programs before they get started and review them periodically after they've been approved. The FISA courts have modified requests made by the NSA. They have also provided unique "Advisory Opinions" that Federal Courts usually avoid.
DISCUSSION: Looking at the FISA court opinions and orders that have been declassified, it is apparent that the court is providing what is very like advisory opinions. That take on the proceedings was affirmed by a former Chief Judge of the FISA court, who said:
"FISC judges examine proposed applications for surveillance warrants and programs, approving, suggesting amendments to or declining the applications, Selya said. This process 'weeds out' applications that would be denied in further stages of review and encourages them to be withdrawn, he said. Contrary to statistics claiming FISC has around 99 percent approval rates for applications, only around 73 percent of applications are actually accepted, he said."
As you can see, the process involves a lot of "No, you can't do that; you'll have to think of a better way of protecting privacy rights" until the Government eventually fashions a program or request that satisfies the Constitution. If Edward Snowden and Glenn Greenwald have shown us anything, it is that when the curtain was unexpectedly pulled back from the FISA judicial oversight wizardry, it was found to be working in a professional manner, balancing the Public's right to privacy with the Government's interest in protecting the nation.
In the screengrab below, you see the FISA court insisting on modifications to the "minimization procedures" that protect the privacy of Americans by minimizing, to the degree possible, any intrusion on Fourth Amendment Rights:
In this screengrab, the FISA court told the NSA that it could do some of the things requested, but not all of them. The court found constitutional and other problems with those other requests made by the agency:
MYTH: "[O]ur governments, working in concert, have created a system of worldwide mass surveillance watching everything we do.”
FACT: Not true. Not possible. Tin-foil hat stuff. At the least, hyperbole of a Barnum-esque nature.
DISCUSSION: This myth started with Edward Snowden himself. In his "Holiday Message to the People," he used those exact words. This used to be tin-foil-hat-wearing territory, but some supposedly otherwise rational people seem to believe it. Even though logistically, politically, legally and theoretically impossible--Have you searched your closet for bugs and tiny video transmitters?--there's still the fact that of the million-plus documents that Snowden stole, none prove this at all. In fact, all those documents establish quite the contrary. This is how hyperbole becomes myth, and Snowden didn't stop at that, with one of the next words coming out of his mouth during his Christmas Message to the People: Orwell.
II. THE MYTHS AT WORK
You have undoubtedly seen many of these myths at work at daily kos. The myths don't just punch in at The Great Orange Satan, though, as you can find them employed everywhere, even from respected journalists who should know better. For example, in the May 2014 issue of Vanity Fair, five journalists collaborated on an extensive article dealing with the Snowden Saga. In that article, this myth appears:
There were attempts by Congress to limit the N.S.A.’s new surveillance programs, but, as would emerge after Snowden’s disclosures, there was a lot that officials on the Hill didn’t know.
There are no quotes around the sentence in the article, and it is not attributed to any source, even a confidential one. The statement is alleged to be fact, perhaps even common knowledge, but it is myth. As we have seen above, the Executive Branch repeatedly briefed "all Members" of Congress about the NSA programs, even the most controversial one dealing with telephony metadata. Yet, later in the long article, the Vanity Fair
reporters wrote this:
That first Guardian story sent tremors through the N.S.A. Somewhere, it was clear, there had been a leak. But was it inside the N.S.A. or elsewhere? Verizon? A rogue congressional source?
(emphasis added). Interesting, don't you think, that Congress, unaware of what was going on, could be a source for the leaks? The myths are also very much at work in the words uttered by Edward Snowden and Glenn Greenwald. For example, as recently as January 26, 2014, Snowden claimed that NSA Director James Clapper hid the telephone metadata from Congress during Clapper's testimony before the Senate Intelligence Committee. These are Snowden's words:
"I would say sorta the breaking point is seeing the Director of National Intelligence, James Clapper, directly lie under oath to Congress. There's no saving an intelligence community that believes it can lie to the public and legislators who need to be able to trust it and regulate its actions."
(emphasis added) (4:46 of this linked video
Now, it may be true that Snowden believed that the NSA was hiding the metadata program from Congress at the time he flew to Hong Kong. That would have been a mistake of fact. (He apparently also didn't know, at the time he absconded, that the Government's collection of telephone metadata was Constitutional for the last 35 years.) If he was truly ignorant of perhaps the most important fact and and the most significant law relevant to him at the time he stole the documents, that would be an excuse for his actions in June 2013. Unfortunately, he continues to make these claims that are out-and-out myths.
Back to the Vanity Fair article for another myth, a myth which was noted above to have earned a "Pinocchio" from the Washington Post:
But whistle-blowing, especially from within the intelligence world, where there is virtually no protection from whistle-blower laws, is too traumatic, Radack says, for anyone to do it lightly, or for ego gratification only.
If Glenn Kessler of the Washington Post
could find enough evidence to give this statement a Pinocchio, how come the Vanity Fair
journalists could not? They didn't offer a single source or citation to a law to rebut the myth. Examples of these myths abound, and, as you would expect, are found in Chapter One
of Glenn Greenwald's new book, which provides:
If disclosing proof that top-level national security officials lied outright to Congress about domestic spying programs doesn’t make one indisputably a whistleblower, then what does?
Again, by the time Greenwald wrote the book, surely he knew that that line was a myth. Every member of Congress knew about the NSA metadata program. Yet, he still included it in his book.
In another selection from the first chapter of Greenwald's book, you find the "capability versus reality" myth very prominent:
First, though, Laura [Poitras] asked that I either remove the battery from my cell phone or leave it in my hotel room. "It sounds paranoid,” she said, "but the government has the capability to activate cell phones and laptops remotely as eavesdropping devices."
There's no mention, of course, that the Government would have to obtain a warrant beforehand, that before getting the warrant signed by a Federal Judge, a Government lawyer would have to make a case to the Federal Judge that a crime was probably being committed, would be committed or had been committed, that before that the Justice Department attorney would have to prepare a sworn affidavit stating the reasons a warrant was necessary, that before the Federal Government could do any of that it would have to conduct an investigation to determine if a crime was being committed, establishing to some degree of certainty that the crime was being committed specifically by Greenwald or Poitras, and that use of the wiretap was necessary to prevent the crime or to obtain justice. Including all of that reality in Greenwald's first chapter, however, would have made the narrative more cumbersome and less scary. Best keep to "capability," which is quick, easy and more terrifying.
In an outlet called "TomDispatch," there's this tribute to mythology:
[W]ho hasn’t been thinking about the staggering ambitions of the National Security Agency, about its urge to create the first global security state in history and so step beyond even the most fervid dreams of the totalitarian regimes of the last century?
The author, having accounted for the Nazi, Stasi, Khmer Rouge, Chinese, Libyan, Iraqi, Syrian, Eastern Bloc and Iranian regimes, not to mention the actions of Spanish and Italian Fascists and Stalin, among others, still managed to use words and phrases such as "nightmare," "dystopian," "complete global omniscience," "Orwellian," "security state," the "free world" (mockingly and in quotation marks) and "our ignorance is our strength" sprinkled throughout the rest of his piece. He did that in a writing of only 699 total words. No mean feat! Yet, he also somehow managed to avoid proof of any unconstitutional surveillance--not offering it once--and he never used words like "Constitution" or "regulations" or "oversight" or "appeals." That's not to mention the author's omission regarding the very public existence of white supremacy groups, militia Facebook pages and Fox News, as well as the non-existence of FEMA camps. It's all one big "pre-
conspiracy theory" to him.
Greenwald, again, in an interview with Democracy Now!, provides a textbook example of the "capabilities" myth with this:
"There is this massive surveillance apparatus being gradually constructed in the United States that already has extremely invasive capabilities to monitor and store the communications and other forms of behavior not just of tens of millions of Americans, but of hundreds of millions, probably billions of people, around the globe," Greenwald says. "It’s one thing to say that we want the U.S. government to have these capabilities...."
No mention of the rule of law keeping everything in check, of course, no mention of Government "capablities" having to do with nuclear, biological and chemical weapons or an armed military that is two million strong with ready access to tanks and uranium-depleted shells or a Government that controls the airwaves and the internet, and no mention of potential security threats from terrorists, foreign states, major drug cartels, human trafficing networks or Russian and Chinese hackers. There's only a laser focus on capabilities, but no information about other realities.
In that same article/interview, Greenwald started the "whistleblower prosecution" myth with this:
"[O]ver the past four years, ... the U.S. government, under President Obama, has prosecuted whistleblowers more aggressively and more prolifically than any other prior administration in American history by far."
Sounds scary, huh? What's left unsaid is that the Federal Whistleblower law went into effect in 1989. That means there were a total of three administrations that could have prosecuted whistleblowers, and one of those administrations--that of President George H.W. Bush--lasted for only four years. Also left unmentioned is the fact that under President Obama, thousands more feel comfortable blowing the whistle than did under either Bush or Clinton. The one example of a "whistleblower" that Greenwald provides in the interview--Private Manning--was not a whistleblower.
A final myth, not described above, is that Glenn Greenwald has acted as a "journalist" in presenting Snowden's NSA information. Who better to set the parameters for this myth than Greenwald himself? This from an interview with Al-Akhbar:
"I definitely think public reaction is an important part of journalism, but at the same time you’re a journalist, not an entertainer so you have to consider other things as well, such as what kind of information needs to be out there to make the story complete...."
(emphasis added). Ha! That says it all.
III. THE MYTHS IN ONE BIG BUNDLE
Edward Snowden heard the testimony of James Clapper and knew that the NSA Director was lying and hiding a massive and unconstitutional surveillance of millions of Americans from Congress. Leaping into action, he did everything that the whistleblower laws and regulations allowed him to do to alert the Government, but they took no notice, so, instead of being tied up and put into the trunk of a big black Government Lincoln--this happens to all whistleblowers--he bravely fled to China and then Russia, taking only those documents necessary to expose the Orwellian nightmare that is our lives being watched by Big Brother in everything that we do.
IV. THE MYTHS (EXPOSED) IN ONE BIG BUNDLE
Edward Snowden wanted to turn on the NSA for years. He chose NSA Director James Clapper as a convenient scapegoat, either knowing that Congress was fully informed about the NSA metadata program or being ignorant of that fact. Glenn Greenwald either told Snowden about the Supreme Court case allowing the Government to use telephone metadata, or he decided not to tell him because Story!, or they were both ignorant of the 35-year-old Supreme Court case that made it constitutional for the Government to do what it was doing. Although certainly capable of unconstitutional spying on Americans, the reality is that, when the curtain was unexpectedly pulled aside, the Government was going about its business balancing privacy with national security, implementing a three-tiered oversight mechanism that involves the Executive, Judicial and Legislative branches, as well as oversight from the media and whistleblowers, and neither Greenwald nor Snowden could show a single constitutional violation even with all those documents and a year to do it in. Thousands of Americans safely become whistleblowers every year, following the prescribed statutory mechanisms and providing a huge benefit to the Government. Oh, and the NSA doesn't care to surveil the LOLCats on your Facebook page.