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.
The New York Times reported today that the Obama administration, as part of the military options presented for the initial U.S. action in Libya, considered conducting a cyber attack against the air defense systems in order to protect U.S. and allied war planes. The administration and the Pentagon chose not to exercise that option.
According to the article, “….administration officials and even some military officers balked, citing the precedent it might set for other nations, in particular Russia or China, to carry out cyber raids of their own, and questioning whether the attack could be mounted on such short notice. They were also unable to resolve whether the president had the power to proceed with such an attack without informing Congress.”
It’s gratifying to see well intended people at senior levels in government debating these kinds of issues; the military readiness and ability to conduct such an attack, the legal issues involved, the potential actions of other nations, and the need to coordinate with and keep Congress properly informed.
I only hope nations like Russia and China would actually debate and discuss these issues as thoroughly. I strongly suspect they won’t. Russia and China very likely have cyber attack capabilities that are comparable to whatever the U.S. may have developed, and I strongly suspect we would not see a lively debate within the Russian or Chinese command structures about using such capabilities. They will use them as needed to protect their soldiers and their nation’s interests, and so should we to protect our military forces and our interests.
Cyber warfare is one of the new weapon sets of the 21st Century. We are hardly the only nation on the planet that possesses them, and we should not be hesitant in using them. Our adversaries will not hesitate, and we need not suffer an electronic Pearl Harbor or 9/11 before electing to use the force multiplying advantage that they can afford us when we send our servicemen and women into battle anywhere on the globe, for any reason.