Snowden’s Pardon Fantasy

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

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.

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USSID 18 & Your Privacy

July 27, 2014 | Posted in 4th Amendment, Department of Defense, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, PPD-28, Privacy, Snowden, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

Over the last year, some media outlets have used the leaked classified material from Edward Snowden to write news stories that imply NSA has either: allegedly violated the privacy rights of ‘every American’ or exceeded its authorities.  In every one of these stories, what is usually missing is a SIGINT professional’s level of understanding on the part of the journalist, admittedly difficult to gain when SIGINT operational training is classified.

Signals intelligence, referred to as SIGINT, is both technically complex due to the nature of modern communications technologies, and legally complex, due to the heavy legal and Constitutional burdens placed on the professionals at NSA who conduct it.

These professionals spend months and oftentimes years during a career training in the operational, technical, and legal aspects of conducting SIGINT – which includes training in the protection of U.S. person privacy.

For example, a recent Washington Post article on July 11th, ‘How 160,000 intercepted communications led to our latest NSA story’; written to amplify its July 5th story ‘Non-targets far outnumber targets in NSA data collection’, states that the rules for ‘minimization’ of U.S. person information are ‘opaque’ – in fact, they are not opaque at all.

The minimization rules come in two forms, both of which are written in black and white for anyone to read, now that they have been declassified.  They are contained in the Foreign Intelligence Surveillance Court’s minimization instructions as part of its numerous court rulings, and United States Signals Intelligence Directive 18 (USSID 18).   USSIDs provide implementation guidance and direction to NSA’s civilian and military workforce, ensuring our Constitutional principles, current laws, Executive Orders, and binding court orders are implemented and enforced within the entire United States SIGINT System.  For the purposes of this blog post, we’ll focus on USSID 18.

USSID 18 is titled, “Legal Compliance and U.S. Persons Minimization Procedures”, and is fifty-two pages long.  Naturally, portions of many paragraphs are blanked out as part of the declassification process, but the direction in, and intent of USSID 18 are very clear, and I can tell you from my experience in the intelligence community that it is binding and followed by all SIGINT professionals.

Discussing all the limits USSID 18 places on SIGINT operations would take several blog posts worth of space, but we can look at one instance where USSID 18 applies in the Washington Post’s July 5th story.

The Post’s story states that, in the sample of surveillance files it reviewed, ‘NSA analysts masked, or “minimized,” more than 65,000 [references to U.S. citizens or residents], but the Post found nearly 900 additional e-mail addresses, unmasked in the files, that could be strongly linked to U.S. citizens or U.S. residents.’  This line is clearly meant to bolster the implication that U.S. person identities or identifiers incidentally collected under the legally authorized, and court monitored FISA Amendments Act (the Patriot Act) Section 702 program are not properly minimized.

If this element of the Post’s story is accurate, that translates to a 98.7% accuracy rate (based on (900 / 65,900) x 100) of minimization, as required under USSID 18 – an operational standard that many U.S. corporations would envy.  The Post didn’t word it that way, but it is example of how the professionals at NSA take protection of U.S. person privacy seriously, rather than supporting the Post’s implication that NSA treats U.S. person data in a cavalier manner.

The Post’s explanatory piece on the 11th also expresses its concern about the volume and nature of incidental collection, the Director of National Intelligence’s assertion that it is unable to estimate how many Americans are affected, and that no outside watchdog – the Congress, courts, or the President’s Privacy and Civil Liberties Oversight Board have access to the content to judge for themselves.

The reason for this is obvious to a professional.  Although the Post could traipse at will through its purported pile of 160,000 intercepts (reviewing U.S. citizen’s private information under the comforting blanket of the 1st Amendment) – the government cannot legally look through incidental collection to identify and characterize it because laws, and both executive and court orders forbid it.  Laws and orders every American citizen, including those working at NSA, must obey.

At this stage of the debate, I had hoped to see stories covering how NSA adheres to law and policy to conduct their assigned foreign intelligence mission, using background interviews with NSA’s professionals and managers in a more transparent environment. Instead, we continue to see stories from some members of the media filled with a selected set of ‘facts’ provided by a man charged with theft and violations of the espionage act, filtered through well-intended, but only partially educated journalist guesswork, resulting in implications or insinuations of impropriety or illegality.  There is more to the story than just what Mr. Snowden, or the journalists who support him, would have you believe.

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Worth Watching – NSA D/Dir at Penn Law

January 5, 2014 | Posted in 4th Amendment, E.O. 12333, FISA, FISC, NSA, Privacy, U.S. Code Title 10, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

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

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Are we living in a surveillance state?

December 15, 2013 | Posted in 4th Amendment, Director of National Intelligence, E.O. 12333, FBI, FISA, FISC, Intelligence, Law Enforcement, NSA, Privacy, U.S. Code Title 10, U.S. Code Title 50 | By

Absolutely not.  A odni-circlenation where every move of every American citizen is recorded, cataloged and data based by the government runs counter to the privacy rights each citizen of the United States expects, and would be an abhorrent infringement upon one of the principle freedoms of our democracy.  Protecting those rights is something I swore to do as a member of the intelligence community, and was required to do as a civil servant and uniformed member of the armed forces.

In light of the ‘Snowden revelations’ and the plethora of news stories (few of those stories entirely accurate and not jaundiced by sensationalism), many Americans are concerned about invasions of their privacy by the government.  I share those concerns, but mine are tempered by the testimony offered before the House and Senate Intelligence and Judiciary committees, the declassified documents posted on the IConTheRecord tumbler site, and my own professional experiences within the intelligence community.

Much like the majority of the 100,000+ members of the intelligence community, I have a lifetime obligation to protect the classified material I’ve been exposed to.  I understand the valid reasons for that secrecy, and I respect them.  I was also made fully aware early in my career of the myriad of mechanisms in place to report perceived illegal or improper acts, from IG reporting through classified channels to include arranging closed door testimony before the relevant Congressional committees if needed.  For the record, in my more than twenty-five years in the intelligence community, I never encountered any instance of willful or intentional misuse of the tools, capabilities, or authorities any of my colleagues or I operated under, had access to, or could utilize.  Certainly honest errors were made, as they would be in any human endeavor, and those errors were reported through the proper mechanisms, and corrected.

At this point, let me point out some of the facts now available for every citizen to evaluate when deciding for themselves if the government is violating your privacy rights, and temper that with a few other thoughts.  Using just the FISA 215 program as an example, all of what follows is either from declassified documentation/information released by the ODNI, or provided as testimony on public session in front of the intelligence or judiciary committees by the senior leaders of the intelligence community.  See the ODNI’s IC on the Record website for the details on the FISA 702 program.

The FISA 215 Program

  • Gathers and centralizes at NSA, telephone call records from various U.S. telecommunications companies
  • The telephone companies are compelled to provide the information to the government by a FISA Court order
  • The FISA Court approves the orders based on the law and precedent (e.g. Smith v. Maryland, the FISA Law Congress passed twice, etc.) subsequent to receiving an application for the order by the government (usually the FBI, after coordination with the NSA, ODNI, and the National Security branch of the DoJ)
  • The FISA Court requires the government to store, access, and utilize the call records obtained under the order in a specific manner outlined by the Court, and report all deviations from those orders
  • The only records provided to the government by the telephone companies are:

               Calling Number

               Called Number

               Date & Time of the Call

               Duration of the Call

  • For example: Phone number 203-555-1212 called phone number 203-555-1414 at 0900 on the 10 Oct 2012 and the call lasted 10 minutes
  • No names, no addresses, or other identifying information is provided by the telephone companies under the FISA Court’s order
  • The content of conversations are not collected under this program – other warrants are required to collect content, and NSA says it currently has only 60 active warrants for content collection against U.S. persons
  • Searches of the call records under this authority can only be conducted with a ‘seed phone number’ that can be reasonably and articulately described, in writing, as being terrorism related
  • The written articulation must be signed off on by an NSA manager (an intelligence professional, not a political appointee) before a query is run against the records in the database
  • ALL queries of the database are recorded, tracked, and audited to ensure the FISA Court’s instructions are not violated
  • The returned call records meeting the intelligence need (i.e. not all of the returned records) are turned over to the FBI for any follow-up action
  • If the government wishes to wiretap any number based on the call records NSA provides, it must apply to the appropriate court for a warrant

Laws, Executive Orders, and Congressional Oversight

The United States intelligence community operates under several enabling laws, Executive Orders from the President, and Congressional Oversight.   These laws, orders, and oversight apply to every intelligence program conducted by the United States government. Some of the most notable of these are, USC Title 10, USC Title 50, Executive Order 12333, the Foreign Intelligence Surveillance Act of 1978 (as amended), and the oversight of the Senate Permanent Select Committee on Intelligence, the House Permanent Select Committee on Intelligence, and the Senate and House Committees on the Judiciary.  Within the SIGINT system specifically, the primary instruction for the protection of U.S. citizen’s 4th Amendment rights is outlined in USSID 18.

USSID 18

The recently declassified United States SIGINT Intelligence Directive (USSID) 18, Legal Compliance and U.S. Persons Minimization Procedures, dated 25 January 2011, describes the U.S. person privacy protections all elements of the NSA are obligated and required to follow.  Paragraphs 1.1 – 1.4 show that U.S. person privacy protections required by the 4th Amendment were in place long before Mr. Snowden’s massive leaks of classified material made the subject of U.S. person privacy a daily staple of newspaper front pages and legitimate public concern.  USSID 18 has been in existence since at least 1993.  In addition, the ODNI has made the training materials used by NSA to teach their analysts what is allowed and what is not allowed when dealing with FISA 215 data available for you to see.

Corporate America is ‘Spying’ on You All the Time – And you let them

Every time you make a purchase at a store, they know what you buy, and how often.  That frequent shoppers card you use at the checkout ties you to every item on your shopping list – vegetables, meats, shampoos, bakery products, gluten free items, condoms, feminine hygiene items, etc.  How many, which brands, how often, and which charge card you used.  Think about the ‘pattern of life’ information that offers the company that owns that store about you and your family.  You even surrendered it willingly.    Companies use the information to target advertising, sending you e-mails and paper circulars featuring the products you buy most often using a process called data mining.  You may not mind that, but what else are they using it for?  Reporting to the FDA about how much red meat a family consumes in a year?  How far you travel to get to the store?  How many times a week you go?  At what times of day?  If you have children and how old they are?  Are you under a doctor’s care or do you have an annoying hemorrhoid problem?   The list is practically endless.

Your credit card company shares your purchasing habits with marketing companies.  They may offer you the option to opt out, but I recently received a notice from one of my credit card companies telling me that they shared my personal information and purchase history with eight other companies, only offering me the opportunity to ‘opt out’ of the sharing with two of those companies.

How many video or still cameras did you appear on today as you went about your ‘private’ business?   Did you even notice them?  Did you notice the ones in every store you walk into, each ATM you passed, and the cell phone everyone you passed on the street was carrying?  How many of those cell phone captured videos or still images were forwarded to a friend, lover, relative, or business colleague by the shutterbug/videographer?  Do you know that there is a copy of that video or image on the telecommunication’s company’s servers or systems?  Do you know how long it stays there or what is done with it?  Are they kept for hours or years?  By whom?  How and where are they stored?  Are they ever deleted?  How can you be sure?

Oh, and those private phone calls you make, or e-mails you send?  The telecommunications companies can mine those records as needed to improve their infrastructure, determine what services to market, or even re-direct your communications through the network.  In doing so, do to the technical sophistication of today’s communications networks, the e-mail from your wife or husband in Cleveland, OH, just may have been routed through Vladivostok, Russia, where a copy was left on a server in Russia.  Are the Russian security services scanning that e-mail for information it might find of interest?  Do you honestly think they care about your privacy as a U.S. citizen?  Maybe they think that picture of your significant other in her new Victoria’s Secret undies is pretty hot and keep a few copies.

Internal to these companies, what are the company’s restrictions or policies on which employees can access, review or share that information?  Do those employees go through any kind of background check before they are hired?  What kind of oversight is there on the use or access to the data?

Just Who Might be Invading Your Privacy – The U.S. Government, a Corporation, or a Foreign Government?

Should we be reasonably concerned about U.S. Government overreach and invasion of privacy?  Yes.  It’s our government and we should keep an eye on it.  But I’m less concerned about the U.S. intelligence community’s activities than I am about a telecommunications provider (especially a foreign one) or foreign government’s respect for ‘privacy’ as we perceive it.

In the U.S., the intelligence community’s motivations, codified in both law and executive order, and overseen by Congress and the Courts, is at least grounded in a desire to preserve, protect, and defend the Constitution and the nation.  The professionals in that community undergo deep background checks, polygraph examinations, and in many cases, submit to financial disclosure requirements and psychiatric examinations before being exposed to intelligence operations or activities that may impact a U.S. person’s privacy in the modern digital age.  Moreover, they seem, based on the information released by the ODNI, to be rigorously trained to protect the 4th Amendment rights of U.S. persons, and there is at least one directive in place at NSA that requires that U.S. person privacy is protected.

Corporations (U.S. or foreign) are motivated by a desire to make a profit for their shareholders, and they never have to go to a judge for a warrant to see data that might invade someone’s privacy.  They also don’t have Congress and the Courts looking over their shoulder to be sure they aren’t using ‘private’ data to profile a person’s life, purchasing habits, or travel.

Foreign governments may not care at all about your privacy.  France just passed a surveillance law that, according to the story in the NYT, “…defines the conditions under which intelligence agencies may gain access to or record telephone conversations, emails, Internet activity, personal location data and other electronic communications.  The law provides for no judicial oversight and allows electronic surveillance for a broad range of purposes, including “national security,” the protection of France’s “scientific and economic potential” and prevention of “terrorism” or “criminality.””

Mr. Inglis, Deputy Director of NSA, made a statement during a Q&A session at Penn Law’s Center for Ethics and the Rule of Law Conference that I think is very relevant.  He based it on the number of NSA employees and affiliates who have died since 9/11 and the twelve internally reported ‘willful abuses’ during the conduct of its SIGINT operations – “… it’s three times more likely that you’ll die for your country if you work for NSA than you are to abuse the [U.S. SIGINT] system.”

For myself, while I accept that there is always room to improve a process, law, and oversight; I put more trust in the professionals in the U.S. intelligence community, the laws and policies that govern their activities, the internal controls, and the oversight mechanisms in place in the courts and congress when it comes to protecting my 4th Amendment rights.

 

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NSA, Privacy, and Mr. Snowden

November 3, 2013 | Posted in 4th Amendment, Director of National Intelligence, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

Over the last week, Mr. James Clapper (US Air Force, Lieutenant General, Retired) Director of National Intelligence, General Alexander, Director of NSA and Commander of US Cyber Command, Mr. Chris Inglis, Deputy Director of the NSA, and Mr. James Cole, Deputy Attorney General, DOJ testified before the House Permanent Select Committee on Intelligence, as more news stories about NSA, GCHQ, and foreign partner intelligence operations were reported by the media, and Mr. Snowden asked for clemency and the opportunity to testify before Congress.

First of all, I urge you to watch the past week’s testimony on C-Span’s website.  In my opinion, it’s informative and straightforward, and far better than any of the news reporting I saw about it.

On Sunday, the White House, and the chairs of the Senate Select Committee on Intelligence, and the HPSCI all agreed that there would be no clemency for Mr. Snowden.   I will point out that Mr. Snowden’s request does seem to indicate that he is guilty of the crimes he is charged with, since you wouldn’t ask for clemency to avoid or mitigate a criminal penalty unless you felt you would be found guilty.

Let’s talk about privacy for a minute.  Privacy is a right that every U.S. citizen expects, as do most people in modern nations with educated populaces operating in a modern telecommunications environment.  The testimony last Tuesday re-affirmed that the mission of the NSA is the production of foreign intelligence from SIGINT, which does not include the invasion of U.S. citizen’s privacy without a court order or warrant.  It also highlighted that NSA’s mission (like all the other U.S. intelligence agencies) is driven by foreign intelligence requirements issued from the White House and the President’s national security staff in the form of the National Intelligence Priorities Framework (NIPF).  Further, that the NSA’s mission is conducted in accordance with US law, and where U.S citizen’s privacy rights are concerned, with the added protections of oversight by the Office of the Director of National Intelligence, the Department of Justice, and the FISA Court.

In case you think I don’t know what I’m talking about, you can find out for yourself.  Do a little research of your own into the legal authorities for the missions of the intelligence community.  Read Executive Order 12333, and USC Title 50, Chapters 36 (FISA), 45 (Intelligence Community Authorities), 46 (CIA), 47 (NSA), and the Intelligence Community Directives (ICD) available on the Director of National Intelligence’s website.  All of these require adherence to the U.S. Constitution’s Fourth Amendment protections against unreasonable search and seizure.

As for the on-going concerns expressed in the media of gross intentional violations of U.S. citizen’s privacy, I believe they are unfounded, based on the NSA’s now declassified internal reporting and the declassified legal opinions now available on the FISA Court and ICONTHERECORD web sites.  For those that harbor concerns about the telephone metadata collection, read the posted court opinions and other material yourself.  As you do so, remember two things: the call records were provided to NSA under a series of court orders applied for by the DOJ, under a law repeatedly approved by Congress.   We also know now that those orders cited long standing Supreme Court precedent and placed specific controls on how the call data can be accessed and used.  Those controls were developed and directed by the FISA Court, across multiple judges’ tenures, based on the knowledge of the professionals at NSA and the experience of honest error that occurs in any process humans engage in.

General Alexander also made some remarks in Baltimore last week where he took the media to task for continuing to write articles from the classified material Mr. Snowden took, and for writing stories that were inaccurate and/or mischaracterized what they were reading in the material.   Personally, I wouldn’t want a journalist, not trained as a medical professional, looking at a set of power point slides or other internal hospital documents and then drawing a conclusion that every heart surgeon in that hospital was using improper technique and placing patient’s lives at risk – they just aren’t qualified to understand what they are looking at.  Intelligence activities operate (in the U.S.) under the U.S. Constitution, U.S. law, and all the policies and procedures each agency derives from them.  It is a complex professional environment that took me years during my career to truly master, and I assure you Mr. Snowden’s understanding of them, based on his statements and his alleged criminal acts, is sadly lacking.

I place much more weight on the statements of people like General Alexander, Mr. Inglis, and Mr. Cole; as well as people like Representative Rogers, Senator Feinstein, and many others on the relevant committees, particularly when they all resoundingly castigate Mr. Snowden for his apparent crimes, and demonstrate understanding and predominate agreement with these senior members of the intelligence community.  Mr. Cole alone effectively recused himself, as the Snowden matter is an on-going investigation/item of litigation and he cannot comment under the requirements of professional ethics.  As with any human endeavor, I’m sure there may be improvements to be made in the conduct of all intelligence operations, but those changes need to come from more Senators and Congressmen and women doing their ‘homework’ as Mr. Rogers put it during the hearing this week, not from a public debate on sources and methods that gives our nation’s adversaries the means to avoid U.S. intelligence scrutiny and places U.S. citizens, military members, diplomats, and our allies’ citizens in danger at home and abroad.

Moreover, I think you should keep something else in mind.  According to the official statements, there are more than 100,000 men and women in the intelligence community of the United States, and more than 30,000 men and women working for NSA.  Only one lone man, a systems administrator with no intelligence training to speak of, with an apparent surfeit of ego and naïveté, decided to steal and leak tens of thousands of classified documents to the media because he alone felt that illegal acts were being committed.  I find it difficult to believe, based on my own extensive experience working with the dedicated, trained professionals at NSA and the rest of the intelligence community that ANY of those people would be shy about speaking up if anything they were asked to do was outside the law or their assigned intelligence mission.

I am also sure they would use the proper channels to reach out to the NSA Inspector General, the National Security Division of the Department of Justice, and the relevant committees in Congress where their concerns would have been given fair hearing and extreme scrutiny, rather than risk the lives of American citizens, military members, and innocent people abroad by exposing classified sources and methods information.

As Congress debates changes to the FISA law, the need for increased transparency to assure an understandably concerned public, and some its members reexamine the vigor with which they make themselves aware of the on-going intelligence operations of the U.S. government, I have no doubt that whatever direction the President issues or oversight requirements or changes in law Congress puts in place will be obeyed faithfully by the intelligence community – just as they have over the years since 9/11.

Finally, I’m sure that certain elements of the press will continue to publish articles from the classified material Mr. Snowden provided them, just as I’m sure our Russian friends are doing their level best to learn everything they can from Mr. Snowden about his brief time in the U.S. intelligence community.  Remember, he can only stay in Russia for a year, and the extension of his stay is a very big carrot (and stick) to encourage him to talk.  Otherwise, he might find himself on the next plane out of Russia – to a courtroom in the United States in the company of some U.S. Marshals.

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NSA’s Lawful Operations & Mr. Snowden

August 8, 2013 | Posted in Classified, E.O. 12333, FISA, FISC, Intelligence, Leaks, NSA, Terrorism, U.S. Code Title 50 | By

NSA Complex, Fort Meade, MD.

NSA Complex, Fort Meade, MD.

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.

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