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.
When you get a chance, please read my Op-Ed in the Baltimore Sun.
Please feel free to contact me with your comments using the e-mail address in the tag line at the end of the piece. We live in a free society and I respect any point of view that you may have, so long as you express it in a civil manner.
Thanks to all who have already sent me comments. I’ve enjoyed reading them, and I am doing my best to respond to all of them individually. Also, I’d like to thank Tricia Bishop and the other members of the Sun’s Editorial Board who thought my Op-Ed was worth publishing.
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.
This is a very informative and interesting session that occurred at Penn Law last November. Not only is Mr. Inglis, the recently retired Deputy Director of NSA, giving a keynote address that provides an excellent insight into the technological environment NSA operates in, and the constraints it operates under; the Q&A session provides pretty direct answers to some of the questions many Americans may have since the Snowden Leaks. I think it’s worth your time.
You Tube – Chris Inglis Keynote and Q&A at Penn Law
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.
It seems that every couple of months or so, some professional news outlet, or the on-line site WikiLeaks, releases or reports what is described as classified material. Once an organization or entity reports it, other professional journalists tend to jump on the story quickly, hitting up their sources and reporting on the story in whatever unique way or angle they believe they can.
Today’s case in point is the Washington Post’s initial reporting (based initially on a WikiLeaks release of classified State Department cables between the U.S. and the host governments), on the locations of the bases used to purportedly launch and recover unmanned drones like the MQ-9 REAPER. These drones are used, in part, to carry the U.S. war against Al-Qaeda and its affiliates directly to the leaders in those organizations. REAPER drones have launched missiles and bombs directly at identified Al-Qaeda or Al-Qaeda affiliate leaders to kill them with pinpoint strikes, giving the U.S. an unmatched capability to strike and limit collateral damage, while reducing risk to U.S. forces.
The Post reporting picked up and expanded upon by Fox News today, is obviously something that would be judged a ‘newsworthy’ item by an editor. There is just one problem. The revelation of even the general location of these bases has placed the lives of American military personnel in extreme danger.
Did the Washington Post or Fox News provide specific geographic coordinates for these bases? No. Did the classified cables posted on the WikiLeaks site? I’m not going to look and find out (I have no interest in making WikiLeaks think they are providing a useful service.) It doesn’t matter if they did or not. Anyone with any reasonable amount of deductive reasoning and an Internet connection can look at the publicly available information on the MQ-9’s performance characteristics, check Google Earth for the overhead imagery of the airfields capable of allowing a REAPER to land in country X, and then send people to stay in nearby towns for a day or two and wait to see a REAPER takes off from, or lands at the airfield nearby to confirm the presence of the drones. And Al-Qaeda has more than proven itself to have people capable of deductive reasoning and Internet access and usage.
What comes next is obvious. Al-Qaeda conducts a little more reconnaissance of the security at the airfield, some planning, obtains some weapons and explosives, and conducts a little more planning. Suddenly there is an attack on the airfield, killing the American military members who act as the REAPER’s ground crew and maintenance team, and damaging or destroying one or more of the drones at the base. Al-Qaeda gains a propaganda windfall within the Arab world and the Jihadist community, while a few more American soldiers, sailors, airmen or marines are shipped home in coffins to grieving family members.
So where is the problem? The problem is the person or persons who leaked the State Department cables to WikiLeaks that kicked off the journalistic process of ‘they reported the news worthy item, why don’t we?’ inside the editorial offices and journalist’s minds.
The U.S. news outlets can’t be faulted for anything other than what I view as being in ‘rush to publish’ mode and what I view as less than ideal judgement. The Constitution of the United States explicitly allows the freedom of the press, but I will argue that in my personal opinion, the editors at the Post and Fox News should have recognized the potential danger and elected not do a story on the leaked cables. However, they are journalists first, and I’m sure they did not see (or likely consider) the potential repercussions beyond the immediate gratification of trumpeting this previously unknown facet of U.S. drone operations before more of their colleagues did, and the perceived ‘luster’ of the story faded.
What can be done is that the people who leaked the cables need to be identified by the appropriate law enforcement agencies, investigated, and prosecuted within the fullest extent of all applicable laws. They have compromised the security of the United States and its allies in a time of war, imperiled U.S. confidential diplomatic discourse with other nations, and potentially endangered the lives of U.S. and Allied military personnel. If any U.S. or Allied service member or person is harmed or killed by the leak of this information, the individuals who leaked the cables should also be charged as accomplices to assault or murder.