Reign of Terror

by Spencer Ackerman

  The Obama administration went after WikiLeaks as quickly as it dismissed the Iraq and Afghanistan revelations as old news. Admiral Mike Mullen, in a typical comment, said WikiLeaks “might already have on their hands the blood of some young soldier.” When WikiLeaks asked for the administration’s help with redactions, the State Department’s Harold Koh demanded instead that Assange return the Manning files and purge its website of all the materials she provided. Joe Biden called Assange, someone who had never committed political violence, a “high-tech terrorist.”

  A federal grand jury began considering espionage charges against WikiLeaks, an investigation that risked criminalizing national security journalism. The administration’s primary imperative was to deter anyone else within the Security State from becoming another Manning. The Pentagon expanded its monitoring of its employees’ network usage and contracted for algorithmic analysis to determine who might pose what it called an “insider threat.” Protecting the apparatus of secrecy was a higher priority than dealing with the ugly truths that secrecy concealed.

  Manning’s treatment in pretrial captivity bore disturbing similarities to the torture techniques that the CIA and military had gotten away with using. Guards bringing food to her Kuwait cell told her she would be sent to Guantanamo Bay. She contemplated castrating herself, later writing of the toll of “living as and being treated as a male,” and attempted to choke herself with her blanket. At the Marine Corps brig at Quantico, she was stripped nude at night, frequently in view of her captors and despite the coldness in her cell. When she was permitted to exercise, she would be shackled. Her isolation from all but the guards, under conditions of twenty-three-hour surveillance, lasted nine months atop the two she had already endured in Kuwait. The pretext for this cruelty was to prevent her from hurting herself.

  It was the first time in the War on Terror that such treatment was visited on a white person. One difference was relative transparency. Manning’s treatment was public enough to prompt State Department spokesman Crowley to call it “ridiculous and counterproductive and stupid” before a small MIT audience. It marked how deeply Manning was vilified that Crowley had to resign for that comment. Reporters were not present, and the public learned about his remark because Philippa Thomas, a BBC journalist on a fellowship at Harvard, blogged what she had heard at the discussion. “Nonetheless [Chelsea] Manning is in the right place,” Thomas also quoted Crowley as saying.

  Not long after Crowley’s resignation, Obama insisted that Manning’s treatment inside the brig was humane. “I have actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards,” he said, and the Pentagon assured him they were. The following month, when Obama stopped by the St. Regis hotel in San Francisco for a morning fundraiser, a group of singers interrupted him with a song about Manning “alone in a six-by-twelve cell.” This time, Obama lectured the protesters, insisting, “[Manning] broke the law.” Since Manning was then in pretrial military detention and Obama was still her commander in chief, his remarks improperly presumed her guilt.

  While Bill O’Reilly called Manning a “traitor” who should be “executed or put in prison for life,” a growing body of people considered her a hero who had acted in the noble tradition of uniformed war resistance. Even more simply did not want Manning treated with cruelty. They found themselves arrayed against Obama.

  A secret Pentagon study that concluded that the damage from Manning’s leaks was marginal was later obtained and published by Jason Leopold of BuzzFeed. The Pentagon’s WikiLeaks Task Force found in 2011 that twenty-three soldiers in Afghanistan had their full names and Social Security numbers exposed, and that “risks” to local informants and U.S. intelligence capabilities did result. But it could not connect Manning’s disclosures to anyone who suffered physical harm. The task force further reported that the helicopter crew from “Collateral Murder” had been found to have followed the rules of engagement “to a satisfactory degree” and overall concluded that “there is not any significant ‘strategic’ impact to the release of this information.” Meanwhile, a UN special rapporteur found that Manning’s treatment in Kuwait and at the brig, defended by Obama, “could constitute torture.”

  In 2013, after almost three years of detention, Manning appeared in a military courtroom to plead guilty to ten of twenty-two charges, guaranteeing her twenty years of what was ultimately a thirty-five-year sentence. She continued to plead not guilty to the most serious charges against her, principally aiding the enemy. Reporters streamed into an overflow room at Fort Meade to hear Manning speak for the first time since the leaks began. Years of rumors about her collapsed mental health were undone by the eloquent statement she read, uninterrupted, for over an hour. Manning took “full responsibility” for the leaks, denied that WikiLeaks solicited them—a critical statement, legally, since it undermined an espionage accusation against the group—and warned of the dangers of counterterrorism operations divorced from “their effect on people.”

  The only time her voice caught came when she spoke about the relief she felt when she communicated with WikiLeaks. On WikiLeaks’ IRC channel, she was free from the alienation she felt from her fellow soldiers, “free of any concerns about social labeling in real life.” She recalled the friendship she felt with someone she understood was likely Assange, whose name she mispronounced in court, whom she had called “Nathaniel,” after the author Nathaniel Frank. They spoke almost daily, particularly after she had uploaded the “Collateral Murder” video. “In retrospect,” Manning told the court, she realized that “these dynamics were artificial and were valued more by myself than Nathaniel.”

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  THE 2008 FISA AMENDMENTS ACT gave new license to perhaps the most portentious endeavor of the entire War on Terror. Previewing Obama’s “sustainable” war, it transformed bulk surveillance from an emergency activity, executed in secrecy from Congress and most of the FISA Court, to a core function. Much of the coverage of the time focused on the retroactive legal immunity the new law afforded the telecommunications firms. But the broader tectonic shift, a milestone in what Shoshana Zuboff calls “surveillance capitalism,” rendered those traditional phone companies and internet service providers less relevant than the emergent giants of a maturing internet.

  Social media companies, search giants, and web hosts were repositories of unfathomable amounts of data—data they monetized before their users grasped that their online activity was commodifiable. Any person’s status update contained a bounty of surveillance-relevant information, as it indicated what they were doing or feeling at a discrete point in time and space. But hundreds of millions of people’s accounts, posts, and interactions created an entire infrastructure of data. Expanding like the universe after the Big Bang, it waited to be analyzed for patterns and exploited, revealing untold stories about human behavior depending on how it was mined. The infrastructure of surveillance capitalism involved accounts given away free to users who were unaware of the economic model at work. It was the cost of entry to the social and economic conditions of the twenty-first century. Not only was this economic structure built to exploit users, it was agnostic as to whether an advertiser, an analytics firm, or the NSA exploited them.

  A company like Google or Amazon, two of the most important surveillance capitalism pioneers, was classified as a “U.S. person” under the Foreign Intelligence Surveillance Act, and as such was entitled to certain privacy rights. But thanks to the 2008 FISA Amendments Act, now known as Section 702 of FISA, the NSA could conduct what internal documents described as “legally-compelled collection” from the servers—the exact form of access remains unknown—of these giants. NSA received access to Microsoft servers in September 2007; to Google in January 2009; to Facebook that June; to Google’s YouTube the following year; and to Apple in October 2012. While the debate over the 2008 law was focused on terrorism, the N
SA’s collection was not. Intelligence reporting emerging from the data collection during a single week in February 2013 concerned Mexican internal security, Egyptian politics, Palestinian finances, Iraqi oil, Israeli cyberplanning, Japanese trade, Venezuelan military procurement, and, for good measure, al-Qaeda. The suite of surveillance on the data empires of these Silicon Valley giants was codenamed PRISM.

  That kind of surveillance was not always sufficient. But 702 provided contingencies. The NSA, citing 702, digitally siphoned data as it transited the internet between servers, a process known as UPSTREAM collection. Sometimes the agency intercepted data coming from or headed to Google or Yahoo servers overseas. Section 702 permitted the NSA to presume the overseas clientele of “U.S. person” data giants were foreigners. Internal descriptions from the NSA’s in-house wiki referred to “full take” operations from those servers. These operations were known by the codename MUSCULAR, a partnership with the UK’s GCHQ.

  While the NSA was collecting Americans’ communications data wholesale—PRISM, UPSTREAM, MUSCULAR, and other programs were supplemented by the mass collection of Americans’ phone call records—the Justice Department erected a wall of secrecy around it. That wall came into view over a case called Jewel v. NSA, a lawsuit filed in 2008 by the Electronic Frontier Foundation after AT&T technician Mark Klein discovered the company was routing its internet traffic to the NSA. Holder’s Justice Department moved to dismiss the case, as its central allegation was a state secret. Such secrecy, federal prosecutors contended, prevented any plaintiff from being able to claim their particular communications had been collected or analyzed by the NSA or its partners. In criminal cases, individuals like Fazliddin Kurbanov found themselves prosecuted for material support for terrorism without knowing that they had come to the government’s attention through a warrantless and legally inadmissable search. By 2011, FISA Court judge Bates, the same judge who dismissed the lawsuit to save Anwar al-Awlaki’s life, paused NSA’s 702 internet collection, citing repeated “substantial misrepresentation” by the government about how the surveillance worked. Bates, concerned about the lawlessness of UPSTREAM, found that 702 surveillance had grown to accumulate hundreds of millions of internet communications annually, the overwhelming majority from PRISM. Yet the growing corpus of surveillance and secrecy also generated its own antibody.

  Edward Snowden, born in 1983, was a child of the internet. He was raised in the Maryland middle-class environment of service members, federal employees, and government contractors. Snowden remembered his early experiences with the internet as an idyll filled with human potential. It was the community-forging frontier that John Perry Barlow envisioned “without privilege or prejudice accorded by race, economic power, military force, or station or birth.”

  But Snowden was also a child of 9/11. That September morning, under what he recalled was a “Microsoft-blue sky,” Snowden drove to Fort Meade, where he did web design in the on-base house of a woman he had a crush on, and watched anguished NSA officials speed out of their black-glass headquarters once Hayden gave the evacuation order. On what he would later describe as a quest “to be a part of something,” Snowden enlisted in the army but washed out. Unwilling to quit, he applied for a security clearance, realizing his digital fluency would be more valuable to the government than his body. Over the next seven years, working for the CIA and then the NSA through contractor cutouts, Snowden became part of a generation of spies for whom “it was less about clandestine meetings and dead drops [than] about data.” He would later call his “reflexive, unquestioning” support for the War on Terror “the greatest regret of my life.”

  Snowden’s devotion to the America that was advertised in the aftermath of 9/11—the freedom-sworn place where resolute people stuck Dixie Cups through chain-link fences to spell united we stand on highway overpasses—was visible in his disgust with what the country had him do. Snowden was an accomplice to wholesale surveillance on Americans and most of the world. It was bitterly ironic that Snowden was present to witness and facilitate the NSA’s exploitation of his beloved internet. Had he not known the internet so thoroughly—with a system administrator’s facility for its endless pathways and all the identifying markers that traveling down them created—Snowden might not have been radicalized. Working for the NSA for the first time in Japan, sysadmin Snowden suddenly had access to the constellation of digital surveillance operations, and he immediately understood its implications. Snowden’s admin credentials even made him privy to the secret NSA history of STELLARWIND. He recalled a vertiginous feeling after realizing the devices guiding him around Tokyo meant that the NSA could know where he was going even if he didn’t.

  Like Manning, Snowden reached a crisis point. But he didn’t turn to WikiLeaks. Snowden wanted journalists—not himself, not Assange—to sift through them and determine what was and wasn’t in the public’s interest to know. He loaded NSA drives with documents detailing the architecture of mass surveillance and in May 2013 arranged to meet with the prominent civil-libertarian columnist Glenn Greenwald and filmmaker Laura Poitras in Hong Kong; Ewen MacAskill of The Guardian accompanied them. Snowden also gave a copy of the trove to Barton Gellman, an investigative reporter who worked with The Washington Post. One of the handles he used to communicate with Poitras was “Verax,” or truth-teller, a deliberate contrast to Julian “Mendax” Assange. Snowden, unlike Manning, wanted the public to know the source of the documents. Days after The Guardian and the Post began their revelations—bulk collection of all domestic phone data, PRISM, an indexing tool called Boundless Informant—he announced his identity and explained why he had executed the greatest data breach in NSA history. “This is something that’s not our place to decide. The public needs to decide whether these programs and policies are right or wrong,” he said in a conversation with Greenwald that Poitras filmed. His greatest fear about his disclosures, Snowden continued, “is that nothing will change.”

  Snowden’s revelations created a legitimacy crisis at the NSA. Authorities that the agency understood as having been settled by Congress in 2008 and functionally ratified by Obama not long afterward were now in question. The intelligence apparatus helmed by Director of National Intelligence James Clapper needed to know that its congressional allies and the White House would support Fort Meade.

  The NSA could rely on the bipartisan congressional leadership and leaders of the intelligence committees, the so-called Gang of Eight. Dianne Feinstein, the Democratic chair of the Senate intelligence panel, immediately said Snowden had engaged in an “act of treason.” Michigan Republican Mike Rogers and Maryland Democrat Dutch Ruppersberger made the crucial House Intelligence Committee safe terrain for NSA and allied officials to contend that it was Snowden, and not surveillance, that was the outrage. But discomfort, particularly over the bulk collection of Americans’ phone data, ran beyond the expected precincts of the Tea Party–adjacent House Freedom Caucus and congressional progressives. A month after the disclosures, the Freedom Caucus’s Justin Amash came only twelve votes short of putting a ban on the domestic collection in a sure-to-pass defense bill. Nancy Pelosi and John Boehner voted with Rogers against it, as Rogers asked if his colleagues had forgotten 9/11.

  By any measure the NSA could also rely on the White House, but the Security State continued to grade Obama on a curve. “Even Obama didn’t know the extent of what the NSA was doing in 2009,” Ben Rhodes avers. But he retained NSA’s mass surveillance despite its making three “substantial misrepresentation[s]” to the FISA Court between 2009 and 2011. In an August press conference Obama said Snowden was “not a patriot,” unlike “the men and women of our intelligence community.” He offered a characteristic response to bulk surveillance: it could continue, but under “additional safeguards,” like greater congressional and FISA Court oversight. Yet those restrictions applied only to the phone records surveillance. He proposed no substantive limitations on any of the surveillance under Section 702, which was far more important to
the agency as collectable digital communications expanded. The NSA seethed nevertheless. “There has been no support for the agency from the President or his staff or senior administration officials, and this has not gone unnoticed by both senior officials and the rank and file at the Fort,” its former inspector general said in October.

  Clapper and the uptight, occasionally hapless NSA director, General Keith Alexander, attempted to reframe NSA surveillance. Clapper, officious and impatient with the many he considered fools, came to the task weakened. Snowden’s disclosures revealed that Clapper had lied during a Senate appearance in March at which he said in response to Oregon Democrat Ron Wyden that the NSA did “not wittingly” collect what Wyden had characterized as “any type of data at all on millions or hundreds of millions of Americans.” Clapper first explained his response as the “least untruthful” answer he could publicly provide; later, in an apology, he insisted he had forgotten about the phone records surveillance. With that out of the way, Clapper denounced Snowden’s revelations as “one of the most egregious violations of trust I’ve seen in more than 50 years in intelligence.”

  But the NSA made headway in Congress by arguing that it wasn’t actually listening in on Americans’ calls. It fell to civil libertarians like Wyden to warn his colleagues that the metadata was all the NSA needed to construct a “human relations database on millions of Americans.” That was a harder point to grasp than the balm that Clapper and Alexander had offered. When the balm didn’t work, Alexander showed the steel, claiming that PRISM had disrupted more than fifty terrorist plots—though only ten were domestic terror incidents, and at least two weren’t incidents at all, but rather financial support to terror groups. (Alexander later defined it down as disrupting “terror-related activities,” rather than attempted attacks.) He suggested, untruthfully, that the phone records surveillance had prevented any terrorism at all.