September 22, 2016 | Posted in 4th Amendment, Al-Qaeda, Classified Information, Department of Defense, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, President Obama, Russia, Snowden, Terrorism | By Tom Wither
In recent days, in the run-up to the release of an Oliver Stone helmed movie about him and his self-admitted theft of secrets from NSA and subsequent flight to China and then Russia, Edward Snowden has stated that he believes he deserves a presidential pardon for his crimes.
He bases this on a belief that, “If not for these disclosures, if not for these revelations, we would be worse off,” and goes on to say that a pardon would be appropriate, “…for the exceptions, for the things that may seem unlawful in letters on a page but when we look at them morally, when we look at them ethically, and when we look at the results, it seems obvious that these were necessary things,”. Both these quotes come from a CNN article that cites an interview in The Guardian.
Estimates reported by news outlets vary, but he allegedly stole approximately 1.5 million classified documents from NSA’s internal networks, far more material than anyone could have possibly needed to demonstrate alleged malfeasance and abuse by the government. According to NBC and Defense One, he did so by using computer passwords and credentials belonging to a civilian employee of NSA, a member of the military, and an NSA contractor to hide his criminal acts – in other words, he acted as a thief and con man to gain access to as much classified material as he could before he fled to China, and Russia – two great bastions of freedom and personal privacy.
Much has been made in various media outlets of the alleged impropriety, illegality, or unconstitutionality of NSA’s foreign intelligence efforts, both within the U.S. and abroad. However, after extensive public debate, the most controversial tools that concerned U.S. citizens remain in NSA’s toolbox, one of them, the ‘Section 215’ program, retooled by Congress and the Obama administration to ally the public’s concerns about potential overreach or misuse, but not halt it.
Moreover, NSA’s extensive efforts to preserve and protect the privacy rights of U.S. citizens is now documented the Director of National Intelligence’s ‘IC on the Record’ pages on Tubmlr. Thousands of now declassified documents that demonstrate how the government worked within the constitutional and complex legal framework set up to protect U.S. citizen privacy rights during the conduct of NSA’s SIGINT operations – controls that have been in place since at least 1980.
With regard to Mr. Snowden’s assertion that we “…look at the results…” of his actions to see that his pardon is warranted, we can do that. The report from the DoD Information Review Task Force-2 (IRTF-2) Initial assessment in December of 2013, titled ‘Impact Resulting from the Compromise of Classified material by a Former NSA Contractor’, said in its overall assessment that, “The IRTF-2 assesses with high confidence that the information compromise by a former NSA contractor….will have a GRAVE impact on U.S. national defense.”
In January 2015, Al-Qaeda created a YouTube video after the Snowden leaks teaching its operatives how to evade what the terrorists referred to somewhat erroneously as ‘FBI Secret Spying technology’. In May of 2015, the Henry Jackson Society, a conservative British think-tank published a 78-page report that drew heavily from the testimony from senior security sources outlining how terror groups had changed their communications methods and began more extensive use of encryption to hide terrorist operations from intelligence agencies. A July 2015 report in the New York Times also reported the Islamic State learning communications security from the Snowden leaks.
More recently, a Wall Street Journal article discussed how an Islamic State terrorist who led the November 13th terror attacks in Paris, evaded western intelligence agencies using better operational discipline and technical savvy in his communications. An awareness of which Mr. Snowden’s leaks undoubtedly raised, given the previous reporting.
The results of Mr. Snowden’s theft and leaks are pretty clear to my mind. Operating from a misguided sense of superiority and a flawed and incomplete understanding of the extensive U.S. person privacy protections in place within the intelligence community more broadly, and NSA in particular; he elected himself congressman, attorney general, and judge of a process and an oversight regime he initially tried to cheat his way into, and then barely had three months of experience in as a contractor (I’ll bet none of that is in the movie).
President Obama believes Snowden should stand trial, and so do I.
Today, the CIA and U.S. military managed to kill Anwar al-Awlaki with a missile strike from an unmanned drone. His death, and those of the terrorists/bodyguards with him in his convoy is another victory in the war against those who use a peaceful faith as an excuse to foment violence in pursuit of a political cause.
I noticed an article in the New York Times today that discussed the debate continuing in political, legal, and public forums about what the ‘proper’ course of action is in dealing with people like al-Awlaki.
The options for dealing with terrorists like al-Awlaki are pretty straightforward. Kill or capture them. The instance of al-Awlaki presents a different issue in the minds of some – he was an American citizen.
As an American citizen, some people offer the opinion that al-Awlaki should have been treated differently. He should perhaps have been captured by local law enforcement.
The Obama Administration obviously thought differently, and as it has done since the beginning of President Obama’s Presidency, it has continued (and argued for in court) most of the Bush Administration’s policies in what is now called the War on Al-Qaeda.
Let’s consider the premise of capturing al-Awlaki or another U.S. citizen operating overseas to further the aims of a terrorist organization carrying on a war against America. If this terrorist is living and conducting his operations in the United Kingdom, then capturing him becomes a relatively simple thing, conducted within the rule of law. The UK has an excellent police force, not to mention MI-5 (the domestic security service, a well established court system, and a system of government from the local to the national level that is largely uncorrupted and supported by the people. All of this presents a permissive environment within the UK that would enable the arrest, interrogation, and trial of such a person, under the rule of law. Nice and comparatively neat, isn’t it?
Now we need to consider the more realistic scenario. Most of these terrorists, be they Americans, Yemenis, Afghanistanis, or Iraqis, usually work in countries like Somalia, Yemen, the uncontrolled border of Afghanistan and Pakistan, etc. In many of these cases, there is no rule of law as we understand and experience it here in the West. No strong system of courts. No well trained and professional modern police or internal security force with well trained forensic scientists to back them up. Even worse, no supportive population of citizens to set the conditions to allow those kinds of institutions to flourish, and thus create a more supportive population of citizens.
Terrorists operate in these areas precisely because the conditions in these nations make it easier for them to operate and in some cases enable or aid them. It cannot be reasonably argued that the U.S. could approach the government or internal security services (assuming they exist at all) for assistance and permission to arrest, and then deport a terrorist. It is likely the target of such an arrest would be tipped off by members of the government or internal security services (either for money or because of some ideological sympathy). Further, attempting to make a case in a U.S. court room against such people, where the rules of evidence are very strict, would be impossible for a couple of reasons. It would require the compromise of U.S. intelligence sources and methods, which would endanger American security; and collecting evidence on a battlefield or in a non-permissive environment in any country would never be able to meet the standards of evidence required in a U.S. courtroom.
This issue will undoubtedly continue to be debated, but we are left with the only practical option, one the Bush Administration started, and the Obama Administration has expanded upon – send in the drones or the Special Forces and kill them.
For the past few days, the major media outlets have been reporting something (again) that should not come as a shock to our nation, and I’m sure is no surprise to the U.S. military or intelligence community. Pakistan is not really a good ally, or perhaps even a trusted partner in the U.S. effort to create a stable Afghanistan and eliminate the Taliban and Al-Qaeda presence or influence there or within its own borders in the Federally Administered Tribal Areas.
The Pakistani government routinely chastises the U.S. for conducting drone attacks on Taliban, Al-Qaeda, or militant leaders within the Tribal Areas. Leaders who cross the border regularly from Pakistan into Afghanistan to coordinate attacks against U.S. and Afghan forces. Admiral Mullen, outgoing Chairman of the Joint Chiefs was the first senior U.S. government official to actually call out the Pakistani Inter-Services Intelligence (ISI) organization as being a supporter of the attack on the U.S. Embassy last week during his testimony before the Senate Armed Services Committee.
It gets worse. Remember where we found Usama Bin Laden? That’s right. In Pakistan. A little town called Abbottabad that just happens to be where a large number of Pakistani military senior officers retire to, and home of the Pakistani Military Academy. You may also remember that we did not tell the Pakistani government that we were sending an armed assault force into their sovereign territory to capture or kill Bin Laden. That in itself proves the point. Pakistan is not really our full ally or trusted friend, despite the political rhetoric from U.S. and Pakistani governments since 9/11.
If they were, we would have briefed the Pakistani government on Bin Laden’s location, asked for permission to send in a team to capture him, and they would have agreed, or at the very least assaulted the house themselves and turned him over to us. That’s what we do when we deal with an ally or friendly nation, because we know they would be happy to accommodate the request of a friend.
Instead, we sent our Special Operations Forces to sneak into Pakistan with stealth helicopters, staged a daring raid in the middle of the night, killed Bin Laden, took everything we could of intelligence value, and snuck out again, leaving the Pakistanis a destroyed stealth helicopter. The remains of which they probably allowed nations like China and Russia to examine and sample, for a small fee of course, before they let us come pick up the parts.
Pakistan has obviously decided that it isn’t interested in being a full partner in dealing with Al-Qaeda, the Taliban, and the remaining insurgents in Afghanistan. In fact, the Haqqani network, probably the biggest threat to the U.S military and U.S. goals in Afghanistan at the present time, in spite of being strongly supported by the U.S. during the Soviet occupation of Afghanistan, is allegedly now supported by the Pakistani ISI.
It’s past time the U.S. began to cut back massively on our aid to Pakistan, and hold the Pakistani government directly responsible for the ISI’s actions by revealing what it knows about the ISI’s activities that work to undermine U.S. and Afghan efforts to keep Afghanistan on a path to self determination and governance.
Sunday marks the passing of a decade since 19 hijackers took control of four commercial airliners and used them as guided missiles aimed at our nation’s government, military, and economy. Those 19 Al-Qaeda hijackers killed nearly 3,000 people, destroyed a building at the heart of our nation’s economic center, and severely damaged our nation’s military headquarters. Were it not for the bravery and courage of ordinary American’s on Flight 93, the hijackers may have struck the Capitol or the White House, injuring and killing hundreds more.
We all remember where we were when we first saw, or heard about the attacks. For a brief time afterwards, we ceased being people of multiple outlooks on life, diverse political views, differing races or religious faiths. We simply became Americans. We all flew our nation’s flag in our communities and in our hearts in the immediate aftermath, and in the weeks that followed.
The brave men and women in the ranks of our first responders fought back in the first hours after the Towers fell, and while the Pentagon and a crater in a Pennsylvania field burned. Then we sent our intelligence services and armed forces into battle in Afghanistan, Iraq, the Horn of Africa, and the Philippines to hunt down the members of Al-Qaeda responsible for the 9/11 attacks and attempt to halt the spread of a terrorist organization that uses a corrupted interpretation of Islam as its rallying cry. Our service members and intelligence officers went where they were ordered to go, and pursued our nation’s enemies, even if the justification for the war seemed less than completely understood or fully justified in the minds of our nation’s leaders or people. In spite of the terrible hardships of life on foreign battlefields, loss of limbs and of friends and comrades to death, broken marriages and failed relationships, they have kept faith with our nation and held to their oaths. They have continued the fight over these past ten years, and we have stood behind them, and we will continue to do so, so long as they are called to serve.
Ten years later – We have debated and will continue to debate the conduct of what the Bush Administration called ‘The War on Terror’, and what the Obama Administration now calls ‘The War on Al-Qaeda’. As a nation, we learned and will continue to learn from this debate. Challenges to the conduct of intelligence operations like the ‘warrantless wiretapping’ program and the detainment of terrorists and insurgents at Camp Delta were brought to the courts and litigated. The speeches made in Congress, the testimony before various committees, the resounding sound of public opinion, and the resultant new legislation. Legislation like the USA Patriot Act, passed and re-authorized the twice to improve and expand law enforcement and intelligence community capabilities under the law.
Ten years later – Executive Order 12333 has been amended, clarifying authorities and strengthening our nation’s intelligence services, the ‘warrantless wiretapping’ program continues under more rigorous oversight and under the rule of law affirmed in an August 2008 ruling by the U.S. Foreign Intelligence Surveillance Court of Review. Closer and more collaborative relationships were forged within the intelligence community and between the intelligence community, law enforcement, and the military, and the National Counter Terrorism Center has been created to fuse and widely disseminate within the government all terrorism related intelligence and operational data.
Ten years later – Camp Delta remains open, and while President Obama has attempted to bring some of the detainees to the U.S. for trial within the criminal court system, the U.S. Congress has prohibited any appropriated funding from being used for such purposes. President Obama has since given permission for military trials to resume for the terror suspects, and signed an executive order to formalize the existing system of indefinite detention.
Ten years later – After being wrested from Taliban and Al-Qaeda control, Afghanistan has taken the first uncertain and hesitant steps towards a democratic form of government, but internal tribal loyalties hampering nationalism, dogged Taliban insurgents in the mountains dreaming of a strict Islamist State reborn, and an America strained, but unbeaten from ten years of fighting call into question Afghanistan’s future.
Ten years later – Osama bin Laden is dead. Buried at sea, the best unmarked grave we could find, he was laid to rest after the prayers of the faith he had defiled were said over his body by an American Muslim. He will not be a martyr to the evil cause he cherished, to those who choose hate and intolerance over peace and respect for others in spite of a different opinion or belief. He has paid for the pain and suffering he brought to our nation and others, and surely Allah has explained to him the depth of his mistakes in no uncertain terms.
In the years to come, the healthy debate in our nation will continue. We will continue to refine our approach to the problem of religious extremism used as an excuse to condone violence, while doing all we can to remain true to America’s ideals and beliefs of freedom and tolerance for other races, genders, faiths, and political viewpoints.
In the years to come, Al-Qaeda, its offshoots, and organizations like it will continue to exist in one form or another. Others will join the organization Bin Laden started, or create some splinter group fighting against America’s actions overseas or policies. They will commit acts of terror to further their cause and attempt to change America’s foreign policy, perceived or real, no matter which party holds the majority in Congress or occupies the White House. American citizens will be hurt and killed at home and abroad from time-to-time, and our intelligence, military and law enforcement organizations will do all they can to learn about these plots and then arrest, capture, or kill the plotters.
In the years to come, America will continue its fight against those who chose warfare and terror to attempt to gain political power or intimidate others. That fight will require more than just finding, fixing, tracking, and killing the leaders of these organizations. It will take continued efforts to inhibit radicalization in wherever and however it might occur, in order to break the generational cycle that breeds new radicals of any stripe. It will take several more decades, and it will cost both sides many young lives and billions in unrealized economic productivity; military, diplomatic, and humanitarian efforts. Fortunately we fought a long Cold War once, and while the reasons were different, the lives lost and billions spent were not. We won that long Cold War with the help of our friends and allies.
We and our allies will win this long war too.