After Snowden: Privacy, Secrecy, and Security in the Information Age (2015)
RONALD GOLDFARB is a veteran Washington, D.C., attorney, author of thirteen books, and a literary agent. He worked in the Department of Justice prosecuting organized crime cases during the Kennedy administration, and served as trial counsel in the U.S. Air Force, JAG, for three years before that. He was special counsel to a congressional (House of Representatives) investigation, and was appointed to chair a special review committee established by a D.C. federal court dealing with the practices of the Department of Labor. His Web site,http://www.ronaldgoldfarb.com, lists his biography in full detail.
THE NOTORIOUS REVELATIONS of Edward Snowden, former U.S. government employee and contractor, who stole and made public a deluge of classified government documents concerning U.S. surveillance practices, have generated passionate reactions worldwide. Most people have strong opinions about whether Snowden is a megalomaniacal traitor or a self-sacrificing patriot, and whether our nation’s policies should err on the side of protecting national security or civil liberties. Use of the word “leak” to describe Snowden’s disclosures, rather than geyser or waterfall, is as minimalizing of his action as the charge of espionage by the government seems a grandiose exaggeration of his offense.
Mediating the debate over the right judgment of Mr. Snowden’s behavior is not the aim of this collection of essays by eminent scholars with expertise in relevant fields affected by the Snowden affair. Whatever the final verdict on Snowden may be—whether he is a public-spirited whistleblower, classic leaker, actor in a proud tradition of civil disobedience, or a vain and reckless vigilante, a treacherous criminal who has hurt his country—his behavior has raised important questions about our nation’s dragnet surveillance practices and the proper agencies and manner of its review. These questions are the subject of this book.
What are the proper bounds of secrecy? Are current government surveillance practices justified as necessary measures of national security at a time of extraordinary provocation, or do they go too far, setting a dangerous precedent for our national policies of self-protection that could lead to a security state? And if so, who decides that, and what should be done about it?
A high school dropout and technical wizard, Snowden worked for the CIA, NSA, Defense Intelligence Agency, and recently for a private contractor (first Dell, then Booz Allen Hamilton) commissioned by the NSA, doing what has been described as cyber-counterintelligence. Once an idealistic participant in U.S. national security programs, Snowden became disillusioned by what he perceived as government excesses and abuses in its data gathering. Believing that he had no proper alternatives, Snowden fled from his carefree life in Hawaii, his well-paying job, his girlfriend, and his country, taking along four laptops with encrypted, top secret files. He claims he did so in order to protest what he viewed as major incursions on people’s privacy and constitutional rights. “I took an oath to support and defend the Constitution and saw that the Constitution was being violated on a massive scale,” he told a Texas teleconference.1
The Snowden Files, by The Guardian editor Luke Harding2—to be a movie by Oliver Stone—described the exciting, intense behind-the-scenes story of Snowden’s dramatic flight to Hong Kong and his secret meetings with lawyer-journalist Glenn Greenwald, author of No Place to Hide.3Greenwald’s book complements and expands on Harding’s story, as does the work of documentary filmmaker Laura Poitras—Snowden’s other chosen vehicle for telling his story to the world. Poitras’s Academy Award–winning documentary covering that clandestine drama, Citizenfour(Snowden’s code name for Poitras), was shown in New York City on October 2014.4 New Yorker columnist George Packer called it “a political thriller.” Poitras considers it a “human drama.”6 The prize-winning reporter Barton Gellman would later join them in telling Snowden’s story at The Washington Post.
For ten intense, perilous, around-the-clock days in Hong Kong, the three met secretly in Snowden’s room at the Mira Hotel, joined by The Guardian’s expert on national security, Ewen MacAskill, to evaluate Snowden’s story before they would eventually tell it to the world. Once satisfied with Snowden as a credible source (after forty-eight hours of “speed dating,” as MacAskill called it),5 The Guardian called the White House seeking a quick response before going public with Snowden’s material. Getting none, The Guardian broke the story. Snowden hurriedly departed Hong Kong for refuge in South America, but finding his passport canceled by the United States ended up grounded en route at the airport in Russia.
At this time, Snowden, a thirty-one-year-old man without a country, remains in Russia under temporary asylum, recently joined by his girlfriend, regularly interviewed by visiting reporters, and broadcasting his story and viewpoints to audiences worldwide over the Internet. His residence permit recently was extended for three more years, as he negotiates safe harbor in other countries, evading extradition and facing an indictment in the United States for espionage and theft of government property for which he faces thirty years in prison. Reviled for recklessness and praised for self-sacrifice, his actions already have generated the beginnings of reforms.
Through his trusted journalistic confederates, he continues to expose the government’s questionable surveillance practices. He certainly has generated a national debate about this subject in the United States, and engaged other countries in an international conversation by raising the public’s consciousness about the practices of surveillance in the borderless world of cyberspace. In October 2014, the UN’s top counterterrorism and human rights official formally reported to the General Assembly that questionable electronic surveillance by member states unjustifiably violated core privacy rights in violation of multiple treaties and conventions. Reformative bills are pending before the U.S. Congress. Reevaluation of House and Senate oversight practices are underway. Lawsuits have been filed. A high-level White House review panel already has proposed forty-six reform measures.
The Snowden affair raises a classic, fundamental question about how our three branches of government should synchronize their work, yet check and balance each other’s powers. Is the executive branch’s work on national security—arguably no more important role exists as part of its constitutional powers—properly overseen by the Congress and the courts? And how does the press monitor all three branches when national security is the question? Have surveillance technologies “outpaced democratic controls,” as one of Snowden’s attorneys claimed? A recent Foreign Affairs article concluded that “Snowden’s revelations demonstrated how the implicit bargain that has governed the U.S. intelligence community since the 1970’s has broken down.” Has it? How so? What to do about it?7
This book aspires to inform the debates generated by the Snowden disclosures about critical policies: the role of the press in reporting about national security; the value of leaks and the need for whistleblowers; the proper bounds and treatment of civil disobedience; the roles of courts and Congress in overseeing executive practices taken in the defense of our nation; and the appropriate balance between privacy and government investigation and secrecy in this evolving era of invasive technology and metadata gathering.
How do we protect our nation’s security without creating, in the words of Cato Institute official Julian Sanchez, “a nigh-omniscient, planet-spanning, electronic panopticon”?8 And how do we deal with the conundrum described by James Clapper, Director of National Intelligence?: “We are supposed to keep the country safe, predict anticipatory intelligence, with no risk and no embarrassment if revealed, and without a scintilla of jeopardy to privacy of any domestic person or foreign person. We call that ‘immaculate collection.’”9
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In the history of the United States—it could be said so about most, if not all, places—when national security, domestic terror, and personal provocation clash with people’s civil liberties, the former prevail. That is human nature. The Constitution is not a suicide pact, the late Supreme Court Justice Robert Jackson said, capturing the human dilemma of this conundrum.10,11 As Professor Jon L. Mills points out in his chapter, “The Future of Privacy in the Surveillance Age,” the first words of the Constitution pronounce the need for national security. Over a century later judges declared that privacy, not a word that appears in the Constitution, is constitutionally protected by implication from other protections in the Constitution.
There is both wisdom and cynicism in the manner in which national security is enforced. A book, America’s War Machine, by the late James McCartney and his wife, Molly, both experienced reporters, quoted a remarkable conversation that took place in 1946 after World War II that echoes today in the wake of 9/11 and this country’s attempts to prevent its recurrence.
“… it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship…,” the speaker said.
But in a democracy, his questioner argued, “… the people have some say … through their elected representatives, and in the U.S. only Congress can declare wars.”
The challenged interviewer responded: “Oh, that is all well and good, but voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country.”
Ironically, the commentator quoted by the McCartneys was Hermann Goering, then a Nuremberg prisoner in an interview just before his execution. Some moral tutor to instruct on realpolitik!12
History provides comparisons to current dilemmas—the internment of Japanese American citizens after the treacherous attack on Pearl Harbor, Hawaii, on December 7, 1941, was not one of this country’s finest hours, and the infamous attack on America on 9/11 gave rise to draconian measures of extreme rendition, rationalized by some as necessary for national security, but condemned by others as excessive torture. In both instances, the provocation was clear, but the methods of response were questionable.
Materials provided by Snowden to Glenn Greenwald (reported in The Daily Beast and The Intercept) reported that the NSA and the FBI were monitoring e-mails of prominent Muslim Americans under secret procedures for targeting terrorists and foreign spies.13 Should ethnic profiling of American Muslim citizens today be condoned as a rational necessity, or compared with the excessive intelligence gathering of civil rights and antiwar activists of the 1960s and 1970s, and alleged Communist movie figures in Hollywood in the McCarthy era?
There will be inevitable victims of investigative abuses in trying times, to be sure. No one questioned the deceptions and spying we and our allies performed during World War II in the war against fascism; indeed we romanticize what the OSS accomplished at Bletchley and elsewhere to bring down our fascist enemies by any means or tactics. The government’s specific rationale for the particular practices Snowden has questioned is classified, and therefore impossible to assess. Presumably the rationale is that after 9/11 extreme precautions were prudent, necessary.
The policing of government at its highest precincts is a tricky but vital assignment. The late New York University law professor Edmond Cahn argued, in The Predicament of Democratic Man (1961), that misconduct by the government is more pernicious than that of individuals. We are all morally involved in the wrongs of government. Undermining the rule of law, which is the bedrock of democracy, is the ultimate crime, Professor Cahn posited, because it leads to anarchy and the police state.
That notion is the premise of Snowden defenders, that whatever his offense may have been, the official misconduct he revealed is worse. When James Clapper, our Director of National Intelligence, was asked at a Senate inquiry—pre-Snowden disclosures—if NSA collected data on Americans, he said under oath, “No, not wittingly,” a perjury in the view of some critics, though no one has called for his indictment. Nor has there been criminal action taken against CIA employees who reportedly improperly surveilled U.S. Senate personnel and records. Senator Ron Wyden reportedly knew Clapper’s remarks were false, but prevailing confidentiality rules forbade his challenging them publicly. “If the American people knew what I knew,” he was quoted as saying, “they would be angry and they would be shocked.”14
The efficacy of congressional oversight of the executive actions of seventeen separate agencies in national security matters became a matter of heightened public interest in the wake of Snowden’s actions. How effective can congressional oversight be? For there to be synchronicity between branches of government, there needs to be trust between the congressional committees performing oversight and the executive agencies they oversee. Legislators have full plates of responsibilities. They rely on special committees and on their staffs and experts, some with more expertise and longevity and time than the members they serve. But they can probe only so far without the risk of spoiling the relations they depend on. Trust, but verify, works only insofar as one can verify.15
Dealings are not always collegial between the overseers and the overseen. The CIA inspector general reported that, in July 2014, CIA Director John Brennan apologized to Senator Dianne Feinstein for “spying on the senator’s activities,” in regards to her investigation of the CIA’s torture practices in this instance.16 No surprise, Senator Feinstein, a chief senatorial watchdog of executive surveillance practices, expressed pique at the interference with her committee staff by agents of those executive officials her committee was authorized to oversee.
Historically, some managers of congressional oversight didn’t want to know what was going on and gave security agencies carte blanche. When he was Armed Services Committee Chairman, the late Senator John Stennis told CIA Director James Schlesinger in 1973 concerning the CIA’s activities abroad, “No, no, my boy, don’t tell me, just go ahead and do it but I don’t want to know,” according to Loch Johnson’s history of intelligence oversight.17,18
In the 1970s, this attitude changed, but after 9/11 the national security apparatus ramped up, understandably. In the follow-up of the Snowden affair, congressional experts and critics are reexamining the effectiveness of Congress acting as proxies for the American public in overseeing the intelligence community, and legislation is pending to rein in NSA’s surveillance practices.
If there was greater professionalism by Congress in exercising its oversight responsibility—for example, a joint select committee and super staff for national security matters—as the 9/11 Commission recommended, would that improve the status quo? The 9/11 Commission stated:
Of all our recommendations, strengthening congressional oversight may be among the most difficult and important. So long as oversight is governed by current congressional rules and resolutions, we believe the American people will not get the security they want and need. The United States needs a strong, stable, and capable congressional committee structure to give America’s national intelligence agencies oversight, support, and leadership.19
A 2006 report by the Center for American Progress, No Mere Oversight, prepared by national security veterans, concluded that congressional oversight has been dysfunctional: “Congress has all of the tools it needs; it is simply not using them.” The process has become “paralyzingly partisan,” needs to be prodded by the press to deal with abuses, and is hampered by lack of cooperation “all but non-existent today” between congressional committees with different responsibilities. Congress largely defers to the executive, the report states. Congress is in an awkward position because there is a difference between what its members can say in public and in classified briefings.20
How does Congress know about what intelligence agencies are doing? The CIA and NSA require a written finding from the uppermost echelons of the executive branch before it carries out its surveillance programs. Congress knows that, and the budget breakdowns report the funding of these programs, even if code words are used in describing sensitive areas. Therefore, it appears unlikely that at least the top congressional intelligence members did not know about the surveillance programs Snowden revealed. Or that the private companies the PRISM data-mining program exploited did not go to those congressional officials to complain. We, the public, can’t know the answer, of course.
A former congressional official told me that, even if it is counterintuitive, considering the scale of the surveillance procedures now in question, it is possible no one in our Congress was aware of them.21
However, a knowledgeable, retired CIA and Senate intelligence official advised me that the law requires committees to be “fully and currently informed,” and that the intelligence agencies are required to inform the committees about covert action. They fail to do so “at their own peril,” he concludes. In his experience, both on the committee and in the intelligence agencies, “… the agencies generally make a good-faith effort to tell the committees what they are doing, especially if it appears to be problematic to them. They don’t want something to blow up in their faces and have the committees pissed off that they were never notified. They want buy-in from the committees because it protects them.”
Nevertheless, the 9/11 Commission concluded that legal oversight for intelligence and counterintelligence is now dysfunctional. It interviewed members of Congress and staff and reported that “dissatisfaction with congressional oversight remains widespread.” Few members have the necessary knowledge of intelligence work, the Commission concluded.
This criticism does not mean that Congress has failed to act to improve its oversight practices in recent years, one experienced insider advised me. It has required an array of additional oversight measures: notification of executive intelligence activities, added financial oversight and improved appropriations and authorization processes, and created the position of inspector general in intelligence agencies. These inspectors are authorized to work with whistleblowers, respond to press pressures, and oversee the minimization of excessive practices.
Another former intelligence official suggested that as a practical matter, the controversial programs Snowden disclosed may be curtailed for economic reasons, especially if their utility is of dubious value. Further, he speculates, there may be worse incursions of privacy by local and state police officials whose gathering and collating of their terrorism surveillance are likely to be available to federal intelligence agencies.
Still another expert suggested that one of the problems with the post-9/11 national security process is that the NSA hired many contractors to do what its employees did in the past. That led to hires, like Snowden, who had access to highly sensitive materials. The agencies were not as careful about hiring outside employees as they had been in the past, this former high CIA and Senate official told me. And further, he added, political polarizing has hurt the oversight function, adding mistrust and uncertainty to the process of synchronization of congressional and executive branch officials in this sensitive field.
New Yorker political analyst Ryan Lizza spelled out the background politics of congressional oversight in detail in “State of Deception” (December 16, 2013). While the Intelligence Committee was created in the 1970s to provide “vigilant oversight of the intelligence community,” he noted, there have been and still are differences in congressional members’ views of their responsibility. Currently there are those who believe the Committee is too beholden to the officials they oversee. Congressman Jim Sensenbrenner, one author of the Patriot Act, wrote in August 2013, “I did not know the administration was using the Patriot Act (Section 215) for bulk collection and neither did a majority of my colleagues.” Others, the majority, are deemed by critics to be solicitous, sometimes deferential to the expertise of executive officials in the intelligence community.
Lizza’s behind-the-scenes depiction of how, up to the present, the Department of Justice, the White House, and even the Foreign Intelligence Surveillance Act (FISA) courts have gone along with intelligence excesses, even when some had criticisms of them, is daunting. He concludes his analysis: “… given the history of abuse … it’s right to ask questions about surveillance—particularly as technology is reshaping every aspect of our lives.”
James Risen’s Pay Any Price describes a revealing incident that demonstrates the weakness of congressional oversight. A NSA official advised Diane Roark, a staff member of the House Permanent Select Committee on Intelligence, that a domestic surveillance program was potentially unconstitutional and he couldn’t persuade his colleagues of its danger. Roark agreed and questioned NSA Director Michael Hayden about this, and he resisted her entreaties, stating that high congressional officials and lawyers “from three branches” had been informed of and approved the program. She raised the question with her Committee colleagues and was told to drop the matter. She called a FISA judge, who didn’t talk to her but reported her call to the Department of Justice. Everyone she called seemed to accept the executive decision that the program was legal. Roark was told by Hayden that if challenged they “have the majority of nine votes,” the Supreme Court, presumably. Risen wrote: “She had gone to all three branches of government … and had discovered that there was a conspiracy of silence … to protect an unconstitutional operation.” Roark resigned her job and moved to Oregon.22
Bottom line, it is unfair to criticize national security agencies alone for these now controversial programs. The public elects representatives in Congress to oversee the executive. Periodically, the question whether the constitutional tripartite function of our government is working as it should be is up for consideration. One history of intelligence oversight concluded that it has gone through five phases—eras of trust, uneasy partnerships, distrust, partisan advocacy, and congressional acquiescence. Historically, and to this day, the pendulum swings favoring different demands, different emphases, as events change. Where will it—should it—go after Snowden?
There is a fundamental quandary separating those who favor erring in favor of national security and those concerned about invasions of personal privacy in times of conflict. Everyone sensibly favors national security and personal privacy. National security specialists argue there is no proof that their practices damaged anyone; and civil libertarians argue that the mere fact of the incursions alone is the damage.
Florida Senator Bob Graham, now retired, chaired the Senate Intelligence Committee for a decade at the end of the last century and the beginning of the present one. He wrote about congressional oversight in Intelligence Matters in 2004. Graham chaired the post-9/11 joint congressional committee inquiry into intelligence activities. Until the mid-1970s, he wrote, “Congress interfered as little as possible and trusted our intelligence agencies as much as possible.” The CIA and the FBI failed to communicate with each other, and the executive branch had a blank check after 9/11, Graham wrote, as the intelligence process was politicized. Information was overclassified, he complained, and as a result “the public had its vision shrouded.”
Graham pointed out that the Bush administration practiced “incestuous amplification,” where people sharing the same point of view were making decisions. Graham believes that congressional oversight requires more expertise in Congress and avoiding too close an association with agencies it oversees. The December 2002 Joint Inquiry recommended, among other specifics, “the need to enhance national security while fully protecting civil liberties.” It also pointed out that classification can impair congressional oversight, as it may shield self-interest.
The lessons Graham advocates are relevant today. Complaining about excessive secrecy, Graham pointed out, “The public can’t respond to things it isn’t told, or seek reforms to problems it is kept from seeing.” Prophetically, he added, “America must decide how much domestic security they will accept and the inevitable intrusion that it will cause on our individual civil liberties. The debate on that balance has yet to begin.”
I asked Senator Graham how congressional oversight might be improved in the wake of the Snowden affair. He doesn’t think, as the 9/11 Commission suggested, that structural change is needed. He believes improvement will come with more qualified and aggressive members and a unified nonpolitical professional staff. As much as politics can be taken out of the mix, the better; though that is unlikely in such an essentially political institution. Graham is critical of the insularity and competitiveness of the executive agencies managing surveillance, which can result in missed opportunities to prevent terrorism, as has happened. In the final judgment, however, Graham agrees that there is a fundamental problem in oversight when, as is the case, the overseer must rely on the overseen: “You don’t know what you don’t know.”
Congress does not seek to and ought not manage national security, so oversight is reduced to watchdogging and reforms after the fact. Congress can do something about Snowden’s revelations now if it wants to, but can it ever prevent excesses from happening before they happen? Or must Congress ultimately defer to executive branch practices, relying on its expertise and on the courts to perform judicial oversight? Professor Barry Siegel’s “Judging State Secrets” suggests that relying on judicial oversight is illusory, or has been in modern times. Judiciary Committee Chairman Senator Patrick Leahy has noted, “The press is doing our work for us and we should be ashamed of it.”
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Critics of Snowden argue that if every rogue government employee was free to decide when and whether to violate his duties and commitments, we would have nihilistic anarchy. If our government cannot insure domestic tranquility and provide for the common defense, as the Constitution declares in its opening passage, there will be no democracy, no surviving society, no “perfect union,” and ultimately, no Constitution. Snowden admits he signed an agreement, Standard Form 312, subjecting him to civil sanctions and the risk of jail, when he took his job.
How did our country’s defenders become the accused offenders in performing their important work, and Snowden suddenly a hero, to some, for what others claim was treacherous malfeasance? For one reason, as Professor Mills points out, the national security apparatus decided, in the frightening aftermath of 9/11, to go after our enemies, even if it meant “collecting the haystack” in search of the dangerous needles within it. At times of threats like this, the public understandably defers to its government to do whatever is necessary to defend us, no-holds-barred.
But secrets rarely remain secrets, and inevitably there is exposure and pushback. In his recent novel, The Director, David Ignatius’s antihero, reminiscent of Edward Snowden, is a fugitive in Caracas who has leaked secret U.S. government records. His credo is not unlike some real-life, new-generation geek hackers and rogue patriots—or pseudo-patriots, in some eyes—who decide for themselves what is good and evil, moral and immoral, and take pride in doing it:
“I didn’t kill anyone. I didn’t torture anyone. I didn’t listen to people’s telephone calls or steal their secrets. They claim that I broke the laws of the United States, but I didn’t break any of the laws of humanity. I left the CIA as an act of conscience. I revealed its secrets to give liberty to others.”23
The question, as we see it, is not whether the executive branch of our government should take all proper steps to guard the security of the nation—of course it should. But what are the proper bounds of those steps? And who gets to say so? And how should that be accomplished and monitored in the public’s interest?
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The NSA was created by President Harry Truman in 1952 to coordinate government surveillance after WWII. It is a military agency that reports to the Director of National Intelligence. In response to congressional disclosures of intelligence gathering excesses (the Church Committee) in 1978, Congress enacted FISA to oversee domestic surveillance practices by a special secret court. The effectiveness and fairness of this method of judicial review of executive activities (rarely denying government requests for warrants, or hearing an opposing argument) has been questioned, as bordering on ministerial rather than judicial. The failure of judicial review in national security cases is demonstrated in Professor Siegel’s chapter.
Professor Mills’s chapter details how after 9/11, the Patriot Act widened the scope of prior authorized government surveillance practices. Under Section 505, National Security Letters (NSLs) were issued by the FBI to communications providers, banks, phone companies, and Internet companies, demanding their data and forbidding them from revealing that fact. In effect, they are administrative subpoenas, needing no prior judicial approval, though they later can be and have been challenged in courts. Section 215 of the Patriot Act was the basis of a FISA ruling that Verizon data could be collected, procedures which the President’s Oversight Board called an “impermissible” interpretation.
Litigation questioning the constitutionality of these NSLs disclosed the FBI had issued 56,000 of them, Frontline reported. The gag order provision of the NSLs under the Patriot Act has been challenged in federal courts as a violation of the Fourth Amendment. A bill reforming this practice as it pertains to U.S. citizens was proposed by President Obama and passed by the House. It is pending in the Senate.
A distinction has been made between the collection of metadata and content, suggesting that the former is less invasive of personal privacy than the latter, and doesn’t necessarily require warrants. But critics, even the former general counsel to the NSA, point out, “If you have enough meta data, you don’t really need content.” One commentator cited a hypothetical example. If a husband calls his wife to say he is working late, his remarks to her are the content. But the metadata might show that the call came from a motel, following an earlier call to an escort agency (ZDNet, September 16, 2014).24
The Bush administration acted on the theory that presidential power under Article II, Section 2, of the Constitution itself allowed additional means of collecting information in time of “war.” Executive Order 12333, issued in 1981 by President Reagan, expanded the essentially secret collection of intelligence overseas on foreigners. The reach of this surveillance practice is vast, and includes data not reviewed by courts or Congress because it targets foreigners, though it dragnets American citizens in the process under FISA, Section 702, which became the basis for the collection of data of U.S. citizens, too. The evolution of all these laws is analyzed by Professor Jon Mills in his chapter.
An additional wrinkle was reported by former State Department official John Napier Tye in a Washington Post article in July 2014.25 His article, “reviewed and cleared” by the State Department and the NSA, states that Section 215 of the Patriot Act authorizing the government to obtain court orders to compel private telecommunications companies to turn over phone data is not the whole story. It does not include the collecting and storing of U.S. communications, which is covered by Executive Order 12333. That order, not a law and not subject to judicial review or congressional oversight, allows collection of content, not only the gathering of metadata, of U.S. citizens, even if it is “incidentally” collected overseas. That “loophole,” Tye pointed out, “can be stretched very wide.”
Since U.S. communications travel across U.S. borders routinely, the NSA can collect and store the content of communications between U.S. citizens gathered outside the United States as part of a foreign intelligence investigation, without a warrant or court order and without Congress knowing about it. Senator Dianne Feinstein, chairman of the Senate Select Committee on Intelligence, stated that her committee cannot oversee conduct covered by Executive Order 12333. Nor does the NSA need to advise the private companies collecting this data that it is doing so.
Tye reports that he advised the State Department inspector general, NSA’s inspector general, and House and Senate intelligence committees that he thought 12333 violates the Fourth Amendment’s unreasonable search and seizure prohibition. He discussed his view with a member of the President’s review group appointed after the Snowden disclosures and was advised that it had recommended (Rec. 12) that all data of U.S. citizens incidentally collected be “purged unless it has foreign intelligence value or is necessary to prevent serious harm.” Tye was told by White House staffers there were “no plans to make such changes.”
Tye argues that it makes no sense that U.S. citizens should have weak privacy protection when their communications are collected by their government outside the United States. In words reminiscent of Snowden’s (who, unlike Tye, did not try first to go through all available official channels with his complaints), Tye protested:
I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is NSA collecting on millions, or hundreds of millions, of Americans?
The USA Freedom Act, passed by the House and pending in the Senate, would reform FISA practices and end bulk collection of phone records, as the President and intelligence chief James Clapper proposed after Snowden’s disclosures of PRISM became public. Microsoft’s general counsel Bradford Smith recently told a Harvard Law School audience that the FISA court should be reformed. However, that act hasn’t been passed, and proponents fear that, given the current reemergence of worldwide terrorist activities, the public pressure for limiting intelligence gathering will fade.
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How did all this happen? There was understandably “a profound shift in national security priorities” after 9/11, which combined with a “tectonic shift” caused by advances in technology. We now know that in addition to its own surveillance, the NSA appropriated data from nine private Internet companies, capturing “enormous flows of data at the speed of light from fiber optic cables that carried Internet and telephone traffic over continents and under seas,” Pulitzer Prize–winning journalist Barton Gellman reported, based on his interviews with Snowden.
Those private Internet companies, like Microsoft, acknowledge their duty to comply with legal orders and judicial dictates, but were outraged by being seen as “candy stores for U.S. intelligence,” Gellman noted. Where there is probable cause to target people for proper intelligence purposes, doing so is legitimate. Yet The Wall Street Journal reported that roughly 75 percent of all U.S. Internet traffic is vacuumed by the U.S. surveillance programs, including private communications of both U.S. and foreign citizens. Intelligence Committee member Senator Ron Wyden told Silicon Valley executives that the government’s “digital dragnet” created a clear and present danger for the Internet economy without making the country safer.26
Microsoft’s general counsel Bradford Smith and his otherwise competitive legal counterparts at Google, Facebook, Twitter, Apple, and LinkedIn recently formed a coalition, Reform Government Surveillance, to push for government changes to its appropriation of online social media data. Those companies, along with Yahoo, Microsoft, and Dropbox, signed an open New York Times letter calling for stronger congressional controls. Private companies are concerned about their image, and the economic impact of these surveillance practices on their business, as well as the constitutional implications. Their awareness has heightened as a result of the Snowden disclosures. For example, Yahoo has improved its security practices and other companies are taking more care of data security through encryption. New companies in Switzerland and Germany are developing NSA-proof encryption products to exploit this new market.
Government officials have expressed fears that encryption devices developed by Apple and Google in the wake of Snowden’s disclosures will adversely affect law enforcement. As a result of Snowden’s exposure of the PRISM program, Google and Apple (96.4 percent of the smartphones in the world) have developed encryption techniques to avoid intrusions. The new head of Government Communications Headquarters (GCHQ) in Britain, along with the FBI and the New York City district attorney, complain that this will preempt search warrants and thus impair necessary law enforcement. Snowden says that, after a warrant is issued, encrypted material and geo-location data can be accessed from the cloud. And he told Harvard law professor Lawrence Lessig that backdoors in any system can be accessed by savvy intruders, not only law enforcement officials. Snowden advocates an international Magna Carta for the Internet governing digital rights worldwide.
The Communications Assistance for Law Enforcement Act of 1994 (CALEA) requires traditional phone companies to include lawful intercept capabilities. The FBI is seeking its expansion to other companies as a law enforcement necessity. Civil liberties organizations and software manufacturers argue that weakening encryption makes citizens vulnerable to hacking by criminals and foreign governments. That seesaw debate will continue until a balanced compromise is found.
Economic considerations merge here with ethical ones. Bloomberg News reported that technology companies fear losing $35 billion in the next three years from foreign customers who choose not to buy U.S. products because these companies cooperated with spy programs (July 2014). However, a Forbes magazine report suggested these private companies “don’t look to be suffering from any kind of mass exodus” (April 15, 2014). Politico added, “Nations and companies have too much invested in the global Internet to let it balkanize,” as different countries are motivated to apply rigorous safeguards to prevent excessive surveillance protection (June 5, 2014).
The release in September 2014 of 1,500 pages of formerly classified sealed documents made headlines because they showed that the government had ordered Yahoo to make its customer records accessible, and threatened to fine the company $250,000 a day if it refused to comply. It would have bankrupted the company to dispute the government’s demands. The government acted under the earlier Protect America Act of 2007 and later FISA 2008 Amendments. Yahoo argued unsuccessfully before trial and appellate FISA courts that doing so violated its customers’ Fourth Amendment rights. As a result of this defeat, other tech companies capitulated to the PRISM program providing for warrantless orders.
While Google, Yahoo, Microsoft, LinkedIn, and Facebook have settled with the government, Twitter is suing in the Ninth Circuit (Northern District, California), challenging the nondisclosure provision of the NSLs on First Amendment grounds. Twitter argues that it has been subjected to prior restraint, in effect a gag order, which requires preapproval of its company reports, or refraining from any comments at all to its customers about government surveillance of its reports. The government contends that this information is classified.
The irony is, as a recent Frontline documentary on PBS described,27 the private sector companies who surveilled their subscribers for advertising and economic purposes learned that the government was accessing their stored data for national security purposes through advanced tracking techniques.
Snowden advocates that there should be no constitutional “distinction between digital information and printed information.” Yahoo’s new security consultant reports that “[p]rivacy is much more effective as a selling point than it used to be.” Professor Mills’s chapter traces the law of privacy from the ideas of the progressive Justice Louis Brandeis of an earlier era to that of the current conservative Chief Justice John Roberts, demonstrating that the Constitution, then and now, protects personal privacy.
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Resort to the Espionage Act for disclosures in the press, as is threatened in the Snowden matter, is rare. During World War II, The Chicago Tribune was investigated, but not indicted, for reporting secret government naval intelligence. It ran antiwar stories mentioning our breaking encrypted Japanese messages about its armada at Midway in 1942, and an account on December 6, 1941, of U.S. military plans in Europe. The government threatened, but backed off, indicting The Tribune under the Espionage Act of 1917. One can hardly imagine a situation more warranting of prosecution than the disclosure of secret wartime maneuvers. The only example of a successful prosecution for press behavior involved Samuel Morison’s publication in Jane’s Defence Weekly of three classified photos of a Soviet nuclear submarine. He was convicted under the Espionage Act, served two years in prison, and was pardoned by President Clinton. In other cases involving the Espionage Act, such as the notorious Rosenberg and Pollard cases, disclosures had been made to foreign countries (one hostile, the other friendly), but that was not the case here.
The press usually prevails in comparable clashes with the government, more so than lone individuals. When the notorious Pentagon Papers were leaked and published by The New York Times and The Washington Post, despite government arguments that this endangered America’s interests, the U.S. Supreme Court refused to enjoin publication of that Vietnam War history. It was a cause célèbre and became a landmark victory for freedom of the press.
The role of the press is critical when intragovernment checks and balances don’t work. The digital press changes and speeds up this process. In the Snowden case there was an ironic element. Snowden distrusted the establishment press and sought out Greenwald, Poitras, and Gellman for that reason, but they all realized that without the resources of the establishment press their story would lack the impact they sought. First, they reached out to The Guardian. While it broke the story, The Guardian was pressured by United Kingdom government officials who actually came to their offices and destroyed Guardian computers. The Guardian then made a deal with The New York Times (we have the thumb drives, they said to their new press partners, but you have the First Amendment, which protects us better than British law). Barton Gellman and The Washington Post also were brought in, and Gellman’s stories have been prominent.
Even then, Glenn Greenwald complained in his book that the establishment media was timid, risk averse, not as adversarial with the government as he thought it should be, and that some of its members treated him and his extraordinary stories with cynicism while others seemed protective of the government. Hodding Carter, a former newspaper editor and later government spokesman for the State Department, discusses the role and responsibilities of the press in tense situations like Snowden’s in his chapter, “The Press.”
Snowden’s revelations have caused a furor abroad, as well as in the United States. Brazilian President Dilma Rousseff protested after learning that her personal conversations were monitored, along with other officials in the world, whether they be foreign allies or enemies (i.e., Iran, Turkey, Venezuela, Cuba, China, Russia). Australia and Indonesia formed a new agreement on their spying practices. Former Israeli Prime Minister Ehud Olmert learned his phones and e-mails were tapped, though Israel and the United States, however close their relations, are known to spy on and share information with each other.
Chancellor Angela Merkel complained to the German Parliament after learning that her cell phone records had been “monitored” by the NSA program (those of thirty-five other foreign leaders were, too, the AP reported). Her charge has been disputed by a later study, but, at the time, Merkel warned that the ethics of security in democratic states must be a model to the undemocratic states around the world.
There is a Casablanca element here: “There is gambling in Rick’s place.” Hark, nasty surveillance practices are going on! Washington Post columnist David Ignatius noted that the United States and Germany had cooperated for years in secret surveillance activities. NSA also works with GCHQ, its British counterpart, in surveillance practices, and the United States has arrangements with Australia, Canada, and New Zealand for sharing intelligence. Josef Joffe, the editor of Die Zeit in Hamburg, noted in The Wall Street Journal that friends do spy on friends, pointing out examples of Germany doing so, and he refers to Germany and America “as comrades-in-snooping.” He added, referring to a dated adage, “This world of power, politics and terror is not run by gentlemen” as gentlemen “don’t read each other’s mail.”28
Snowden has won several German prizes for his disclosures. The Wall Street Journal reported (September 24, 2014) that Snowden has become a cult hero in Germany, portrayed in graffiti, posters, T-shirts, pop performances, and advertisements.29 Sweden has proposed Snowden for its Humanitarian Award, and he was nominated for the 2014 Nobel Peace Prize.30
In an interview with The Guardian (July 2014), Edward Snowden sarcastically pointed out that the fact that the NSA spying on millions of German citizens wasn’t considered a scandal, but when Merkel’s cell phone allegedly was invaded, it became one. “[T]he priorities of governments seem to be very distinct from the desires of the public,” he pointed out, “… the search for truth has been subordinated to political priorities.” That other countries do versions of what Snowden exposed the United States as doing doesn’t make it right, but it does add perspective to the current international uproar.
The sheer volume of current surveillance practices is mind-boggling. Glenn Greenwald reported that the NSA “was processing more than 20 billion communications from around the world each day,” including Internet and phone records, of Americans and foreigners. The recent post-Snowden presidential review board reported that collecting this information did not prevent attacks on the United States, and the NSA was instructed to cease monitoring world leaders.
President Obama demanded that the Director of National Intelligence make public information about U.S. surveillance programs in the wake of the Snowden revelations. A year later a list of almost 90,000 foreign persons and organizations who were surveilled through U.S. companies was disclosed. The names of U.S. citizens whose phone calls or e-mails were gathered up accidentally or because they were in contact with foreign contacts were not listed. Privacy advocates complained. However, a federal court in Portland, Oregon, ruled that the Section 702 orders under 2008 FISA amendments allowing intercepts without court orders are constitutional. There is no public record of Executive Order 12333 authorizing intelligence collection overseas on foreigners.31
Among many responsible observers—from the left and the right of the political spectrum—there is a deep concern over the implications of Snowden’s revelations. They exposed “an all-out assault on the Constitution” (Rand Paul), and they revealed practices that are “obscenely outrageous” (Al Gore). As an ACLU counsel argued to a Brookings Institution conference: “you don’t have to think the NSA is malevolent in order to conclude that it’s unwise to concentrate so much information, so much power in its hands.”
Nevertheless, critics are concerned about the fallout from Snowden’s actions. Sir Iain Lobban, retired GCHQ director, said Snowden’s revelations made his agency’s work more cumbersome, and his country less safe. There have been concerns in the United States, too. At a Brookings Institution conference in 2014, law critic Stuart Taylor Jr. reported: “America’s diplomacy has been hobbled, its image abroad tarnished, its alliances strained, its government’s standing in the eyes of its own people damaged, its policies challenged in court…” Princeton University professor Sean Wilentz wrote in The New Republic that while we are right to be concerned about the information Snowden disclosed about government secret practices, that concern goes too far if as a result we come to distrust democratic governments: “Surveillance and secrecy will never be attractive features of a democratic government, but they are not inimical to it, either.”
NSA defenders point out that Congress passed our security laws, that in recent decades the chief executives of Republican and Democratic administrations employed them, and about forty federal judges approved their exercise. Why should rogue employees or contractors be trusted more than our government agencies? Clemency for Snowden would send the wrong message, his critics claim. Laura Poitrus and Glenn Greenwald recently reported there is a second leaker at NSA, senior to Snowden, who is being investigated for leaking details of the government’s watch list.
As time passes, the initial strong widespread public criticism of Snowden’s actions has been tempered and some public sympathy has evolved. The debate continues in the cloud. Snowden spoke for an hour to NBC’s Brian Williams from Russia in May 2014, as he had earlier on German television and Skype, defending his actions. Snowden claimed he has not given any records to Russia or any other country (more than what he made available to the public worldwide). He argued that the U.S. government has offered no explanation of how his revelations prejudiced our national security or caused harm to anyone. In October 2014 he told a New Yorker audience over the Internet that there is no evidence that as a result of his revelations agencies hostile to the United States have hurt communities we want to protect, that sources have gone “dark,” or disinformation resulted, or that his acts caused damage to our national security, as his critics have claimed. He spoke to a UK audience in a virtual, live video link explaining how GCHQ agency has been collecting citizens’ data unchecked.
In the only case dealing with the question of whether Snowden’s acts caused damage to our national security, Klayman v. Obama, federal trial judge Richard Leon wrote in December 2013 that the government asserted that NSA’s surveillance program prevented fifty-four terrorist attacks, but would offer no proof of that, even to the judge in camera. The judge concluded that he was not convinced “that the NSA’s database has ever truly served the purpose of rapidly identifying terrorists in time sensitive investigations.”
Poitras claimed that information about the 9/11 suicide bombers was available to our intelligence authorities, but not used. Snowden stated that while the FBI had been warned that the Boston marathon bombers had ties to Islamic terrorist groups, our mass surveillance was unable to prevent their terrorist acts. Here were instances that might justify mass surveillance, but which were of no use to the government. In Thomas Blanton’s chapter, “Secrecy, Surveillance, and the Snowden Effect,” he points out how “the 9/11 attacks themselves were enabled by excessive secrecy,” and agencies’ failure to share materials made surveillance practices “counterproductive.” Needles in the haystack can be missed because too much data has been accumulated by too many collectors.
The judicial verdict on the value of our surveillance practices is inconclusive. While the Klayman judge viewed NSA’s actions harshly, in December 2013 a federal court in New York City ruled that collecting phone metadata was protected by Section 215 of the Patriot Act. And a federal trial court in California, which initially restrained NSA from destroying evidence of dragnet surveillance, revoked its order when the federal government argued maintaining Section 702 evidence would freeze NSA’s system. These cases, this subject, will be in play after the publication of this book.
Admiral Michael Rogers, now in charge of the NSA’s cyber operations, told David Sanger of The New York Times that he doesn’t believe “the sky is falling” as a result of Snowden’s disclosures, though terrorist groups are making changes as a result of Snowden’s revelations. Working relations with American telecommunications, tech, and social media firms are changing. When the President’s commission reviewed the practices Snowden exposed, “it could not find a case in which a program lead definitively halted a potential terrorist attack.”
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There is a central point in any evaluation of Snowden’s conduct. While he stole secret government documents, and absconded with them, he did not dump a mass of raw information onto public screens. He says he retained nothing, posted nothing, turned all his misappropriated data over to a few trusted journalists he considered responsible, with instructions to publish only information that they thought would not endanger public safety but would reveal misconduct. Barton Gellman reported that Snowden “has not tried in any way to tell me what to write, what not to write, or when.”
Gellman was questioned in a Frontline interview about his relationship with Snowden, who, he says, “turned out to be among the very most reliable sources I’ve ever had.” After extensive questioning of Snowden, Gellman became convinced he was “the real thing,” his revelations “a jaw dropper.” Everything Gellman printed was authenticated and verified independently. Gellman was unable to rebut information Snowden provided him. Snowden did not ask to be protected through anonymity, preferring to unmask himself, knowing that in doing so he risked his freedom and perhaps his life. Gellman describes Snowden as ascetic, introspective, “almost Zen-like in his serenity,” a “classic sort of digital native.” On a recent Internet broadcast, looking like a gentle version of tennis star Novak Djokovic, Snowden said he was appalled by what he discovered were NSA’s intelligence gathering practices. Claiming that they were illegal, he determined he had to document his claims in order to “provoke a public debate.” He surely succeeded in that respect!
Snowden relied on the journalistic judgment of the three people to whom he gave his collected information to publish only the documents whose revelations wouldn’t harm innocent people. He did not publicize en masse all the records he purloined, as Julian Assange and Bradley, now Chelsea, Manning did. Rather, he relied on his press contacts to curate what was published.
That is what they did. Gellman, along with Washington Post colleagues who are analyzing the Snowden material, quoted Snowden’s instructions to them: “I know that you and The Post have enough sense of civic duty to consult with the government to ensure that the reporting on and handling of this material cause no harm.” In fact, before the reporters published excerpts from Snowden’s materials, which they considered of important public interest, they determined not to publish revelations concerning ongoing intelligence operations, which would have been prejudicial to our national interests if disclosed. Of course, Gellman’s remark confirms that Snowden did reveal information that even his admirers admit should have remained secret could be offered as proof of the recklessness of his revelations, and confirms his critics’ contention that he caused problems to our country’s intelligence and diplomatic missions. In Slate, critic Fred Kaplan takes the position that a mass misappropriation should not be rationalized by relying on others to curate the publication of parts of it. The fundamental underlying question is whether it is the individual’s or the press’s role, or should it remain solely the government’s responsibility, to make these decisions.
The curating of Snowden’s material and the independent determinations by responsible journalists of what not to publish did make all the more powerful their embarrassing disclosures. The public was shocked to learn that “startlingly intimate, even voyeuristic … stories of love and heartbreak, illicit sexual liaisons, mental health crises, political and religious conversions, financial anxieties and disappointed hopes” were found in the records of “10,000 account holders who were not targeted.” Snowden told The Guardian that it was the culture of NSA to pass around nude photographs of people in sexually compromising situations.
The Post reporters “reviewed roughly 160,000 intercepted email and instant message conversations, some of them hundreds of pages long, and 7,900 documents taken from more than 11,000 online accounts.” According to Gellman’s report, only 11 percent of those targeted by the NSA were legitimate targets; nine out of ten were “snagged in the NSA’s net,” which had been cast to entrap others, but were found on online accounts of digital networks. These captured records, gathered without warrants, may be kept for five years. A 2014 study in Washington Lawyer magazine reported that NSA “gathered about 250 million Internet communications each year without a warrant.” The New York Times reported (August 2014) that “20,800 U.S. citizens and permanent residents are included in a federal government database of people suspected of having links to terrorism,” over a million in total. Whatever the final number is, it is vast!
Breaching confidences of personal information collected by the NSA in its Internet sweeps raises a related but troubling legal issue. Communications between doctors and patients, attorneys and clients, priests and penitents, psychiatrists and people in analysis, are protected by law from disclosure. The privacy of these communications is widely accepted as fundamental to professional relationships. If they are swept up by the NSA, legally or illegally, intentionally or negligently, serious legal implications result. My book In Confidence: When to Protect Secrecy and When to Require Disclosure discusses these special relationships and the law governing them. All these professional communications are affected by any of the NSA’s intrusions. In his interview (July 2014) in The Guardian, Snowden commented that he is researching the special problems of journalists and their sources in this regard. Poitras, too, has expressed concern that government surveillance could disclose journalists’ sources.
Government officials have claimed that Snowden never protested the NSA’s activities through proper channels before going public with them. Snowden’s ACLU lawyer, Ben Wizner, told a conference that “[t]here was no one to report to who had not been part of the system of approval.” Snowden told the European Parliament in March that he reported his concerns “to more than ten distinct officials, none of whom took any action to address them.” He did not name those former colleagues, management, and senior leadership team members, though he identified them as two superiors in the NSA’s Technology Directorate, and two in the NSA’s Ops Center in Hawaii. He noted that as a private contractor he had no statutory whistleblower protection. The government denies he made these attempts to operate within intramural regulations for complaints. This matter is relevant in assessing Snowden’s actions and can be resolved by a good faith, impartial investigation of the facts in dispute, and should be.
A May 2014 Frontline special, “United States of Secrets,” reported the frightful treatment of several recent whistleblowers, no doubt daunting to others contemplating such action. Professor Edward Wasserman’s chapter, “Protecting News in the Era of Disruptive Sources,” reminds readers how some former whistleblowers have been cruelly mistreated, and he offers interesting ideas for reform. Law professor David Cole analyzes the problems of leakers as well. No surprise Snowden shied away from that course.
James Clapper admitted to security specialist David Ignatius that the impact of Snowden’s disclosures may be less than once feared; he thinks Snowden took less than he originally thought. But the exact volume—whether Snowden purloined 1.5 million rather than 1.7 million documents—is not the issue. In Clapper’s view, volume aside, the danger Snowden caused was “profound.”
Clapper’s comments are reminiscent of former Solicitor General Erwin Griswold’s statements in the Pentagon Papers case where he argued to the Supreme Court on behalf of the United States that Daniel Ellsberg’s release of the Pentagon Papers endangered the national security. Years later he wrote in The Washington Post that he had exaggerated the dangers and was wrong to have argued so. The government’s position at the time was a cover-up of its misconduct, he admitted. Professor Siegel’s chapter on judicial review of executive action presents a line of cases where the claims of state secrets in fact shielded government misconduct. Ellsberg argues that Snowden’s acts were heroic, that he did what he had to do, and acted appropriately when faced with a moral dilemma.
In Snowden’s case, there are moral, as well as legal, questions to be considered. In doing what he did, for the reason he said he did it, Snowden aligned himself (in his eyes, detractors would say) with the classic positions of civil disobedience taken throughout history. In the Bible’s Exodus, in Sophocles’ play Antigone, in the writings of Shelley and Thoreau, and the actions of Gandhi and Martin Luther King Jr., martyrs have faced and endured condemnation and punishment for their acts taken against their state to seek morality, justice, or changed policies.
Looking back, many of those figures—real or fictional—were pilloried and punished at the time of their acts, only to be honored retroactively when their points of view later were accepted. Snowden’s remarks to his allies and collaborators indicate he viewed his actions in the historic light of civil disobedience. Snowden’s acts were themselves nonviolent, though critics claim they might have caused violence. Snowden’s acts of electronic disobedience are a product of our new age, rationalized as acts of conscience in the public’s interest. One academic observer called Snowden “a conscientious objector to the war on privacy.”32
Is punishment a critical part of civil disobedience? Law violators understand—or ought to—that they risk punishment, whether the laws they disobey are fair or just. Snowden says he expected punitive reactions, as happened to his models. He told The Guardian in 2014 that he was prepared to go to Guantánamo if that sanction was adjudged, though he thought that if he was tried by a jury, the moral element of his acts would hold some weight.
Professor Wasserman’s chapter urges that the modern whistleblower should be judged by the public interest served by his disclosures, and that any sanctions for his conduct must take that matter into consideration, as is the case in other countries. The public interest defense is not recognized in the United States. It is akin to jury nullification in cases where technical rules warrant conviction but moral ones suggest otherwise. Snowden has said he isn’t interested in being deemed a hero or celebrity, only in being tried and judged by a jury of his peers, and allowed to present a public interest defense. He told The Nation editors that the label whistleblower “otherizes us” and excuses the public from exercising its civic duty to speak out against abuse of power.33 Wassserman argues that the press, which distributes whistleblower information, in addition to seeking its own glorification for having done so, also has an obligation to defend its sources after exploiting their information.
Law professor John Yoo, who when in government championed strong measures of national defense after 9/11, argued that the press’s prizes do not vindicate Snowden’s crimes. “Awarding a prize to a newspaper that covered a hurricane does not somehow vindicate the hurricane,” Yoo argued. Thus, he continues, prizing the leaked reports “was by no means an endorsement of the leaker or the leaks.” Hodding Carter’s chapter (and Professor Coles’s) describes the editor’s dilemma and professional duty in balancing legitimate government requests to honor national security claims and their obligation to publicize information in the public’s interest.
A Harvard Law and Policy Review article by Professor Yochai Benkler in 2014 advocated passage of a law providing a defense to leakers who challenge abusive systemic practices that threaten democracy and avoid public accountability. All organizations are subject to imperfections, error, malfeasance, Professor Benkler states, and those which deal with issues of war and peace “require public understanding.” “Checks and balances become corroded and subverted over time,” Professor Benkler wrote in The Atlantic, so whistleblowing “is a central pillar of the way American law deals with these dynamics of error, incompetence, and malfeasance in large organizations.” Leaks in these cases, the author argues, “serve both democracy and security,” and the powerful national security establishment doesn’t merit a “magical exemption,” based on its mystique.
Professor Benkler’s rationale for his proposal is that “where a person takes a substantial personal risk reasonably calculated to inform the public about substantial abuses of government power, the state should correct itself, not the person who blew the whistle.” Professor Benkler lists cases in our country’s history where whistleblowers like Snowden were not prosecuted, suggesting that his proposal is consistent with past practices. He also proposes a civil cause of action for abuse of powers when leakers are harassed but not prosecuted.
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Underlying all the questions about Snowden’s mass disclosures is the systemic question whether all or some of the data our government keeps secret should have been classified in the first instance. That issue is not confined to the Snowden disclosures; it pertains to all secret government documents. Perhaps one good result in the fallout of the Snowden disclosures would be a reform of our classification system.
As I reported in my book In Confidence, and as the Director of the National Security Archive, Thomas Blanton, develops further in his chapter, our government’s classification system excessively blankets much government information that ought to be available to the public.
Secrecy raises the potential for mischief and abuse, so it should not prevail unless there are clear and strong reasons for it. Many classified records do not have a redeeming public purpose for their classification as confidential, but bureaucrats in government agencies have the proclivity to hide behind classified claims. Philosopher Sissela Bok suggested in her book Secrets that there is a primordial tendency in government to hide information. If wrongdoing can be shielded by the very wrongdoers’ shield of secrecy, citizens have no redress of their legitimate grievances. On a more innocent level, there is a self-protective inclination to err on the side of being careful with disclosing government records.
The government-wide system of executive classification of sensitive records began with good reasons during wartime under President Franklin D. Roosevelt, but it has been expanded under later administrations during the Cold War. In recent history, the prevailing policies have varied. The Clinton administration attempted to contain the growing trend toward classification of government records (and to accelerate declassification). But since September 11, 2001, classification has expanded (and declassification has been reduced) under Presidents George W. Bush and Barack Obama. Few would deny the justification for classifying some selective government information, but recent history has demonstrated that the process is far too expansive and has been abused.
Classified information falls into three categories: “top secret,” “secret,” and “confidential”—the latter defined as “information, the disclosure of which reasonably could be expected to cause damage to the national security.”
Seven blue-ribbon committee examinations of the classification system over the years have criticized its application, expansion, and costs. In 1956, the Coolidge Committee reported that the classification system had “vague standards, failed to punish overclassification,” which had reached “serious proportions,” and had lost public confidence. In 1957, the Wright Commission also criticized overclassification and recommended abolishing the “confidential” category. In 1958, the Moss subcommittee called for punishing overclassification. In 1970, the Seitz Task Force called for “major surgery” of the system that would eliminate 90 percent of classified technical and scientific information. In 1985, the Stilwell Commission criticized the “implementation” of existing classification policies. In 1994, the Joint Security Commission criticized “unacceptable levels of inefficiency, inequity and cost.”
Despite these critical analyses by prestigious independent experts, the problematic classification system remains, and in the words of the most recent (1997) commission headed by the late Senator Daniel Patrick Moynihan, the system “simply will not let go.” The Moynihan Commission concluded that the classification system has proliferated; it is conducted by millions of self-interested people administering complex regulations so that “secrets in the federal government are whatever anyone with a stamp decides to stamp secret.… Such a system inevitably degrades.” We have become “a nation of secrets,” a 2007 book concluded.34 Jack Goldsmith, Harvard law professor and former Justice Department official in the second Bush administration, calls it “a secrecy bureaucracy” of about 1.5 million people having top security clearance.
The steady stream of studies of the classification system for government records has uniformly described both an increase in the volume of classified documents and a decrease in declassification, both exacerbated dramatically since September 11, 2001. Indeed, there has been a rise in the reclassification of declassified documents in this recent period. During the first four years of the Bush administration (2001–2004), classifications rose from 8 million to 23 million; declassifications dropped from 100 million a year to 29 million a year. Derivative classifications occur by the millions (over 14 million in 2005) as a result of a secret appearing in a document, which said document then is derivatively classified and becomes a secondary market in secrets.
This secrecy machinery costs over $7 billion to run; at an incalculable cost to litigants, historians, common sense, and notions of democracy. Andrew Bacevich, a retired general and now a professor at Boston University, reminds that “insiders’ control of secrets … insulates them from accountability and renders them impervious to criticism.”
Government agencies classify thousands of documents every day, millions of documents every year. So many documents are now classified that the term has no meaning, Time magazine executive Norman Pearlstine has noted, and “much of what is classified is of dubious value to anyone.”
Despite the evolution of sunshine laws aimed at opening the operations of government, and despite a consensus among experts that the classification system is too pervasive and expansive, and that there is a major need to declassify documents, these critical findings have been ignored. In fact, the trend of controlling the secrecy of government information has expanded. As one newspaper editor remarked, “Labeling something ‘classified’ or important to ‘national security’ does not make it so. The government overclassifies with abandon. And the definition of ‘national security’ is elusive.”
Recent assessments put the number of people with top secret clearance in the millions, not an exclusive club. The Snowden revelations led to a bizarre government directive instructing military employees not to read Greenwald’s The Intercept, even those having top secret security clearance, because it might contain classified information. So government insiders now cannot read public Web site stories while Web site readers can read leaked insider stories?
Over 1,000 government agents and 2,000 private companies work on super-secret intelligence matters in 17,000 locations and 33 buildings in Washington, D.C., alone, according to Dana Priest of The Washington Post and William Arkin in Top Secret America. Our “bottomless well” of official secrets, as Priest and Arkin call it, costs the public $10 billion annually, only part of an $81 billion national intelligence network. There are also about 4,000 federal, state, and local organizations who are involved in counterterrorism work. NSA is building a data center in Utah “five times the size of the US Capitol Building, with its own power plant that will reportedly burn $40 million a year in electricity,” according to a recent report.
In August 29, 2013, Gellman and a Washington Post colleague described the $52.6 billion “black budget” for fiscal 2013 that funds 16 spy agencies with 107,035 employees, predominately the CIA.
When people think of state secrets they presume that military plans, clandestine spying, and back-channel diplomacy are involved. As Professor Siegel reported in Claim of Privilege, and he expands and updates in his chapter, many claims of state secrecy by the government arise in civil matters—tort claims, for example. The 1953 case U.S. v. Reynolds set the questionable precedent that courts essentially abide by and defer to the judgments of the executive about what should remain secret. More often than not, the claim of state secrets has been a pretext to hide government misconduct, and since 9/11 the practice has increased remarkably, as the battles over disclosing information about our country’s rendition practices demonstrate.
Making the secret mine of executive government information accessible to the public was the goal of the 1966 Freedom of Information Act (FOIA) (amended in 1974 and 1986). FOIA was enacted to ensure transparency of government records. The Supreme Court stated that FOIA was designed “to ensure an informed citizenry,” “check against corruption,” and “hold the governors accountable to the governed.” FOIA was supposed to “open agency action to the light of public scrutiny.” Full disclosure is mandated unless clearly exempted by the statute. Lee Hamilton, who vice-chaired the House Intelligence Committee, and Thomas Kean, who chaired the 9/11 Commission, recently placed the burden of demonstrating the value of intelligence gathering on the government, not the American public.
The FOIA process is expensive and slow, and it can be daunting. It effectively puts the burden on citizens to pursue their interests in discovering information instead of on the government to justify its claim for confidentiality. A survey of FOIA practices in eighty-seven government agencies and departments disclosed that instead of responding to FOIA requests in the “timely manner” called for in the law, agencies took months and years to respond—in the extreme, fifteen to twenty years! That survey concluded that the system is “plagued by delay and backlogs.” The trend is discouraging: FOIA requests have fallen 20 percent, personnel has been cut 10 percent, backlogs have tripled, and denials have increased 10 percent. One neighboring country handles such requests overnight, electronically.
Neither FOIA nor the regulations designed to permit declassification by interested agencies and officials have succeeded in adequately opening government records to the public. As a result, we are left with a “disturbing new culture of government secrecy.”
The line between justifiable governmental claims of confidentiality and overly autocratic claims is elusive. It is easy to agree that openness and sunlight are good disinfectants and that the pitiless light of public glare is salutary, as civil libertarians historically have argued. But all three branches of government, like all private organizations, have a legitimate need to protect the confidentiality of some of their work. Military secrets like those pertaining to troop movements—the classic example—are obvious to defend. So, too, are diplomatic communiqués and sensitive national security records. The problem, however, is where to draw the line, by whom, and when and how to traverse it—how to balance self-preservation against appropriate transparency and public access. If the Snowden disclosures generate a national reform of our classification system, his questioned behavior will have served an important public service.
Outside of the government, we rely on the press as the public’s institutional watchdog, and the Constitution provides the press with special protection. The clash of core values between self-government and self-defense, between the government’s interest in protecting national security and the public’s interest in knowing about its government’s practices, was discussed by Barton Gellman in a Nieman Report in 2004, before Snowden. “If we are sovereign,” Gellman argued, “we rule those who rule us. Secrecy corrodes self-government.” The courts are disinclined to play the role of overseer, and Congress knows what the government officials tell it. Thus informal methods are required to keep equilibrium, and leakers to the press in effect perform a form of “arbitrage.”
Journalism dean and professor Edward Wasserman and now university professor Hodding Carter deal with the apparent conflict between giving the press awards for revealing government malfeasance, as was the case with the journalists behind Snowden’s disclosures, and indicting the source of that very content that won two reporters their Pulitzers for public service. Fears have been expressed by two senators (Ron Wyden and Chuck Grassley) that monitoring practices designed to prevent Snowden-like incidents may chill whistleblowers.
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The fallout after the Snowden affair, as the following chapters make clear, deals with the fundamental question of how to protect public privacy without degrading our national security. There is general agreement with the notion that public participation is required in a democracy for state decisions to have moral legitimacy. The public relies on the courts and Congress and the press to protect against excessive executive actions. The Economist noted that there is a “maddening, vertiginous, spiraling quality” to the debate about deciding who should and how to decide right and wrong in these confounding circumstances. We hope the treatments of this issue in the following chapters will help the public with its decision. President Obama recently stated the profound issue simply:
We have to make some important decisions about how to protect ourselves and sustain our leadership in the world, while upholding the civil liberties and privacy protections that our ideals—and our Constitution—require (Huffington Post, June 5, 2014).
The chapters that follow bring the decision-making quandaries to light and offer wise recommendations for reforms.