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.
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.
If you are skeptical about NSA operations and activities reported over the recent weeks, that’s certainly understandable, particularly since most Americans do not work within the intelligence community or understand the rigorous training, oversight (from the courts and Congress), and professionalism the men and women of the intelligence community bring to their work every day.
I’ll ask that you keep in mind a few things as you read news reporting from journalists that may have only incomplete or partial facts drawn from briefings or other documents outside of their proper context, and/or an incomplete understanding of the law, rules, and oversight in place. Every civilian employee and military member in the U.S. Intelligence Community (I.C.), including those at NSA, are U.S. Citizens, just like you are. They are highly trained professionals that take an oath to defend our nation and uphold the Constitution; not to any executive branch organization or institution. In fact, many have spent their entire professional lives quietly and unobtrusively working without fanfare or acknowledgement outside of the close knit intelligence community to defend our nation, provide our policymakers with the information needed to make informed decisions, and protect our troops in battle when needs be. To be allowed to serve, they have allowed themselves to be subjected to repeated background investigations, financial reviews, and polygraph examinations every few years to prove that they are responsible men and women of good character, worthy of being trusted with their nation’s most highly valued secrets. These investigations, when done properly and thoroughly (as most are), are an invasive process that many of their fellow citizens might find unacceptable or intolerable with regards to their personal privacy. These men and women are given their nation’s (actually every American citizen’s) trust, and are no more interested in violating the privacy or other constitutional rights of U.S. citizens than you are. Remember, these men and women are citizens of this nation, just like YOU are.
Undoubtedly, more news reports about the size, scope, and capabilities of NSA’s activities will be appearing in print and electronic news sources, given Mr. Snowden’s admitted removal and provision of classified material to an activist/journalist like Mr. Greenwald, and Mr. Greenwald’s recent statements that ‘new revelations‘ are coming. As you read these future stories, bear in mind that NSA’s activities are governed by Executive Order 12333, and constrained by the Foreign Intelligence Surveillance Act, and the Foreign Intelligence Surveillance Court, as well as regular oversight by Congress. Moreover, publishing of more ‘sources and methods’ information by Mr. Greenwald and his contemporaries will serve primarily to give away any advantage we may have over our adversaries and result in exceptionally grave damage to U.S. national security.
We citizens are reliant upon our members of Congress to provide proper and regular oversight of the I.C. elements. To date, Congress has held three hearings (House Intel Senate Judiciary House Judiciary ) addressing the legitimate concerns voiced by the public and some members of Congress about the programs and activities Mr. Snowden and his enabler Mr. Greenwald have shared. The law often fails to keep up with the rapid pace technology changes, and some members of Congress are not likely giving the activities of the intelligence community regular scrutiny due to time constraints, current committee assignments, or just simply because their activities aren’t the ‘hot button’ issue of the day. I do believe that the majority of members on the House and Senate Intelligence Committees have it right. The programs exposed thus far are legal, in that they are operating under the FISA law as enacted, and they are Constitutional, given the strict oversight and compliance requirements outlined by the Foreign Intelligence Surveillance Court, and the process and procedures NSA put in place to adhere to those requirements, as outlined in the public testimony and statements (Mr. Litt from ODNI). Having said that, given that Congress is paying more attention now, certain senior members like Senators Chambliss and Feinstein, and Congressmen Rogers and Ruppersberger have offered not only endorsement but in some cases reasonable improvements to the programs and oversight regime (note that they do not advocate stopping it, nor does the administration). Should Congress change the law or oversight requirements, I am certain that the Attorney General, FBI, and the NSA will abide by those changes.
Encourage your member of Congress and Senators to pay closer attention if you have concerns, and choose to take their word or not when they tell you an agency is doing what is supposed to under the law and Constitution. Fortunately, it’s YOUR choice, because we live in America; not Russia or China; but get all the facts, not just the ones a particular journalist may offer as you evaluate what you’ve been told.
As to whether Mr. Snowden is a ‘whistle blower’ / leaker, or a traitor, I’ll say this. In my view, a whistle blower sees illegality or unconstitutional acts and reports them to competent legal (the FBI or Attorney General) or agency authorities (a supervisor, a senior manager, an inspector general, an internal counsel) first, then to Congress and the media if the existing process fails. Along the way that person may suffer the loss of a job, the travails of our legal process including: possible pre-trial confinement, and a trial for his or her belief in the truth or ‘rightness’ of their actions, consistent with our Constitution and laws. In the end, they will either be vindicated, not only in court, but in the court of public opinion, or convicted under the law. Moreover, if this whistle blower is working in a classified information environment, that person uses the processes established to ‘blow the whistle’ in a way that does not expose the sources and methods of intelligence operations to our nation’s adversaries, endangering the lives of our men and women in uniform, our diplomats overseas, and our citizens (and those of our allies and friends) at home and abroad.
A traitor takes whatever classified information he can, boards a plane to a foreign country beyond the reach of U.S. law enforcement, and barters that information for notoriety, monetary gain, or presumed safety in the hands of one or more foreign governments. Mr. Snowden is not a whistle blower. People like Bunnatine ‘Bunny’ Greenhouse are whistle blowers.
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.
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.