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.
December 20, 2015 | Posted in Air Force, Author, Blog, Classified, Classified Information, Congress, Cyber attack, Department of Defense, E.O. 12333, FISA, Intelligence, Law Enforcement, Leaks, NSA, PPD-28, President Obama, Privacy, Snowden, U.S. Code Title 10, U.S. Code Title 50, Writing | By Tom Wither
I hope you’ve had a great summer and fall, and are enjoying the holiday season. I’d like to extend my thanks for being fans of my work, and wish you happy holidays and a bright new year.
I’ve been busy crafting my next novel, a project I’ve named ROGUE SENTINEL, and I will finish the manuscript shortly after the New Year. ROGUE SENTINEL will see Shane Mathews take on a solo mission to Jordan to find and capture an Islamic State mission planner known only as ‘Al-Amriki’ – The American.
Up next, I’ll be resuming work on SWIFT JUSTICE, the third and concluding novel of the ‘Aziz Trilogy’ that started with THE INHERITOR and AUTUMN FIRE, with main characters Shane Mathews and Emily Thompson.
During the year I’ve written a few Op-Eds on current issues that have been published in the Baltimore Sun and in The Hill’s Congress Blog. Here’s a list so you can look at them if you’re interested.
‘The NSA data collection program isn’t criminal; ending it is’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-nsa-data-20151203-story.html
‘Open Letter from a cyber terrorist’ – http://thehill.com/blogs/congress-blog/homeland-security/255370-open-letter-from-a-cyber-terrorist
‘Stand with our watchers’ – http://thehill.com/blogs/congress-blog/homeland-security/261237-stand-with-our-watchers
‘Access to encrypted communication, a balancing act’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-encryption-data-20151001-story.html
‘Clinton E-mails: Who else was involved?’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-clinton-emails-20150908-story.html
‘The country is vulnerable without CISPA’ – http://www.baltimoresun.com/news/opinion/oped/bs-ed-cispa-redux-20150209-story.html
Thanks again for being fans of my stories, and feel free make them presents for the fiction reader on your holiday list – they can be purchased from Amazon or Barnes & Nobel as e-books or hardcopies in trade paperback. You can even contact me via email@example.com for a signed copy if you like.
Take care and Happy Holidays!
January 26, 2014 | Posted in Classified Information, Department of Defense, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, NSA, President Obama, Snowden, Terrorism, U.S. Code Title 18 | By Tom Wither
The editorial boards of the New York Times and Washington Post, a handful of members of Congress and others in the general public will undoubtedly continue to advocate for the extension of clemency for Mr. Snowden. The reasons why he will not be receiving clemency are pretty clear to me.
Let’s review what he’s charged with (you can read the criminal complaint filed with the court yourself). Bear in mind that this is likely only the initial set of charges. They could be amended once he’s in custody and a fuller understanding of his actions and activities is known (charges of misuse of government computer and telecommunications systems, etc.).
Snowden is charged with:
- Theft of Government Property – 18 U.S.C. Section 641
- Unauthorized Communication of National Defense Information – 18 U.S.C. 793(d)
- Willful Communication of Classified Communications Intelligence Information to an Unauthorized Person – 18 U.S.C. 798(a) (3)
HOW MANY COUNTS & THE PENALTY IF CONVICTED
One of the things missing so far is the number of counts for each of these charges. Something the government may amend the compliant to include once Mr. Snowden is in custody or been arraigned. Statements by various NSA officials to the media have provided the following numbers to consider: 1.7 million documents stolen. 200,000 of those leaked to journalists so far. In briefly perusing the 2013 Federal Sentencing guidelines, for just one conviction of violating 18 U.S.C 793(d) or 18 U.S.C. 798(a)(3), the minimum sentence is between seven and nine years.
Even if we assume the best case, and the government treats the entire theft of 1.7 million documents as one theft, and the communication of the information to Mr. Greenwald and Ms. Poitras are treated as two counts of unauthorized communication of National Defense Information, and two counts of Willful Communication of Classified Communications Intelligence Information; Mr. Snowden is looking at between 35 and 45 years in prison, aside from whatever fines the court may impose.
Worst case, the government chooses to make a point with Mr. Snowden’s case, and they charge him with just 10 counts each (out of a possible 1.7 million thefts and 200,000 unauthorized and willful communications). Do the math for 10 counts on each charge and that’s 210 to 270 years in prison.
THE GOVERNMENT’S POSITION
Any hope that some in Congress, the public, and the media may have that Mr. Snowden will be given clemency should be tempered by the following statements:
President Obama – “…I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it into their own hands to publicly disclose classified information, then we will not be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.”
Attorney General Holder – “We’ve always indicated that the notion of clemency isn’t something that we were willing to consider. Instead, were he coming back to the U.S. to enter a plea, we would engage with his lawyers. ”
A CRIMINAL NOT A WHISTLEBLOWER
What Mr. Snowden continues to fail to understand is something the President pointed out in his speech, and that FBI Director Comey pointed to in his remark quoted above.
“What I did not do is stop these programs wholesale — not only because I felt that they made us more secure, but also because nothing in that initial review, and nothing that I have learned since, indicated that our intelligence community has sought to violate the law or is cavalier about the civil liberties of their fellow citizens.” – President Obama
You can’t ‘blow the whistle’ on a program that is implemented under a law Congress passed, the President signed, and that the Courts oversaw in concert with Congress. Should Congressional Oversight have been tighter? From what I’ve seen in the open hearings, there is a reasonable argument to made there. Should legislators and the Courts keep better pace in all areas of law regarding the rapid advances in telecommunications technology and related privacy issues? There is a case for that too.
Did those changes need to be fomented by a series of media sensationalized, unauthorized leaks of classified material describing lawful activities by the intelligence community where no evidence of willful abuse had occurred? Leaks that damaged diplomatic relations with our allies and other friendly nations? Leaks that have, according to members of the intelligence committees, caused terrorists to change their communications methods and potentially exposed military operations, increasing the risk to our military service members at home and abroad? Leaks that will in all likelihood continue because ‘journalists’ like Mr. Greenwald and Ms. Poitras care more about selling stories than they do about the safety and security of American, allied, and friendly nation’s citizens throughout the world? No, it did not.
Mr. Snowden could (and should) have gone to the NSA Inspector General, or the Director of National Intelligence’s Inspector General, or the Department of Defense’s Complaint Hotline for classified complaints. He also could have made a complaint to the FBI or Attorney General’s Office, or his company’s security office or leadership. If all of those failed, he could have gone to Congress himself with his concerns. Oversight committees LOVE to investigate potentially unlawful acts by the executive branch, and moreover, it’s their job to do so.
Instead, Snowden chose to steal 1.7 million classified documents and shared at least 200,000 of them (so far) with two members of the media, then made sure everyone knew he did it as soon as possible, so he could rise from obscurity, and show everyone that he really did know better than the collective wisdom of the members of Congress, the 15 judges on the FISA Court, and the administrations of two Presidents. Moreover, real whistle blowers have the courage to stand up and be counted, even if they must stand in a courtroom to do it. They don’t run away to a foreign nation to avoid the consequences of their actions, afraid of punishment for their criminal activities before the charges are even filed.
Given the recent huge leaks of classified information by Mr. Snowden, and the large volume of press reporting resulting from it, I was struck by some of the comments by politicians and journalists about the ‘over classification’ of information by elements of the executive branch or the excessive amount of information classified by the United States government.
Since most Americans have no direct experience with generating or handling classified information as part of their daily lives, I thought I’d cover some of the basics of the subject and hopefully lend a little knowledge and background information as food for thought.
The first thing you should know is that the high level guidance for classifying information is not classified at all. That’s right, the basic instructions and guidelines are completely unclassified and available to anyone if you do a little digging. In fact, the guidance comes from the President as an Executive Order, which is binding on all executive branch departments and agencies, including all elements of the Defense Department (which includes the DIA and the NSA) and all sixteen agencies/elements of the Intelligence Community (the CIA, the Department of Energy, etc).
All of the recent Presidents: Regan, Bush, Clinton, Bush, and Obama have issued Executive Orders laying out the rules for determining what can be considered classified national security information, and in my experience, those rules have not substantially changed the basic guidelines or criteria for determining what information to classify. They have altered the length of time information can remain classified, as well as some of the review timelines, but that’s about all.
The current Executive Order, EO 13256, entitled ‘Classified National Security Information’ was signed by Barack Obama on December 29, 2009 and remains in force.
In order to start classifying information, you need to know a few things: What levels of classification are there, who is allowed to classify information, and what information should be classified.
No surprises here, you’ve all heard or seen them in the movies, but I’m listing them along with the definitions because these are the only classification levels in use by the U.S. Government (unless some statute creates others) and the definitions are key to allowing a classification authority to make a decision about which level a piece of information should be classified at.
- “Top Secret” is applied to information, the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe
- “Secret” is applied to information, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe
- “Confidential” is applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe
A key takeaway here is the last phrase in each definition: ‘that the original classification authority is able to identify or describe’. No parlor games or hidden items here. The damage that may result has to be able to be identified and described in writing by the classifying authority, otherwise known as the Original Classification Authority.
Who Can Classify Information?
If you think any government official or employee of the government can classify information just to keep it from the public, you are misinformed or have made a poor assumption. The real world is not what Hollywood or the more conspiracy minded among us might think.
EO 13256 establishes two classification authorities – Original Classification Authority and Derivative Classification Authority.
Original Classification Authorities (OCA) are the President, Vice President, Agency and Department heads designated by the President, and U.S. Government Officials delegated in writing. These Officials are usually General Officers in the military or Senior Executive Service level civilians in the civil service, not front line worker bees or managers. Once they have been trained (yes they Order requires that they be trained), an OCA can make decisions, in writing, about exactly what information their department or agency creates should be classified. To make those decisions, they must apply and adhere to the criteria described in the President’s Order (more on that in a bit). Out of the entire federal workforce of 2.2 million people in 2012, only 2,326 were OCA.
A Derivative Classification Authority (DCA) is one of those worker bees or managers in an organization or entity who might create a document, power point slide, or some other material that would need to be classified. They work solely off the written decision of the OCA discussed earlier. They do not get to decide what is classified at which level, they must follow the written guidance they have received from the OCA.
What Information Gets Classified?
Under the President’s Order, information can only be classified if it meets ALL of the following criteria:
- An original classification authority is classifying the information
- The information is owned by, produced by or for, or is under the control of the United States Government
- The information falls within one or more of the categories of information listed in the order
- The original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.
Moreover, the Order also states that “If there is significant doubt about the need to classify information, it shall not be classified.”
The categories of information the Order allows an OCA to classify are:
- Military plans, weapons systems, or operations
- Foreign government information
- Intelligence activities (including covert action), intelligence sources or methods, or cryptology
- Foreign relations or foreign activities of the United States, including confidential sources
- Scientific, technological, or economic matters relating to the national security
- United States Government programs for safeguarding nuclear materials or facilities
- Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security
- The development, production, or use of weapons of mass destruction
Note that under the order, you are not permitted to classify information for political purposes (i.e. claiming ‘national security’ when you are covering up a crime like Nixon did), to hide crimes or malfeasance, or simply because you don’t want to share information with the public. In our system, it meets the criteria or it doesn’t get classified.
That’s quite a bit to take in quickly, so lets walk through a simplified practical example. For the next five minutes, we’ll assume I’ve been appointed Secretary of Defense. Consequent to my appointment, The President appoints me in writing as an OCA.
Soon after, the Commander of Central Command walks into my office to inform me that he’s able to track the movements of the terrorist Usama bin Bad Guy. Bad Guy calls his wife every day at noon to check in with her and he often tells her where he is, and CENTCOM has the ability to monitor the phone calls using NSA’s SIGINT capabilities. Since Bad Guy is planning terrorist operations in Europe and the U.S., the CENTCOM Commander wants to capture or kill Bad Guy before he can carry out his plans.
Obviously, I need to give the Commander some guidance on classifying some important national security information.
First of all, does the information meet all four criteria? Yes. The President appointed me as an OCA, the information is produced and under the control of the U.S. Government (the DoD), it all falls within two of the categories of information that can be classified (military plans and operations and intelligence), and as the new Secretary of Defense, I’ve determined that disclosing the information may damage national security.
So here are the results of my classification decisions as an OCA, in writing for the CENTCOM Commander:
The fact that we can track Usama bin Bad Guy’s movements will be classified TOP SECRET
The fact that NSA & CENTCOM can monitor Usama bin Bad Guy’s phone calls will be classified TOP SECRET
Any information about Bad Guy’s terrorist plans in Europe or the U.S. will be classified SECRET
The CENTCOM operations to capture or kill Bad Guy will be classified TOP SECRET
This written listing forms the Classification Guide that CENTCOM and all other subordinate elements of the DoD will follow. The practical effect of this is that all military and civilian personnel will now use this guide to exercise their Derivative Classification Authority under EO 13256 to classify any information about Bad Guy’s movements, the content of his phone calls, his evil plans for Europe and the U.S., and the CENTCOM operations to stop him.
Depending on how long Bad Guy keeps calling his wife, and CENTCOM takes to plan and execute operations to capture or kill Bad Guy, hundreds or thousands of documents containing classified information may be generated, from just this one activity alone.
How Many Classified Documents Are There?
According to the National Archives’ Information Security Oversight Office’s 2012 Annual Report, which covers all U.S. Government executive branch agencies, the 2,326 OCA’s made 73,477 original classification decisions.
The employees across the government who create and handle classified material made 95,180,243 derivative classification decisions during that year. That seems like a large number, but given the proliferation of office automation technologies and computer networks, you need to remember than every e-mail, every word or power point document, or field or record in a database is counted because it was subject to a derivative classification decision.
Moreover, given the wording in the report, (i.e. decisions versus documents) you should remember that decisions themselves may not equate to just an individual ‘document’. One derivative classification decision on a paragraph in a twenty page word document can result in twenty classified pages because of the procedures used when classifying the whole document. Each classified page may be counted as one ‘classification decision’ based on the instructions issued by that organization to comply with the National Archives annual need. Having been part of some of the counting that happens once a year, I can tell you that the number of decisions is a reasonable benchmark, but probably under counts the actual number of classified items (call them documents, pages, or whatever you like) created due to the counting method in use and the usual bureaucratic processes in government.
Surprisingly, the Department of State made the most original classification decisions in FY 2012 – 39,770, while the Department of Defense only made 19,121.
Hopefully, you now have a better understanding of how classified information is generated by the government and why there is so much of it.