The Edward Snowden Affair

by Michael Gurnow

  The impact of the Tempora and Fairview articles is also felt. The memo confesses that the United States is partnered with “over 30 nations” but does not ask any foreign relation “to do what NSA is itself prohibited by law from doing.” The WP even blatantly states, “[ … ] a large amount of metadata is consolidated and preserved by the Government [ … ]” and relays that the NSA has a five-year raw data retaining buffer.

  The NSA survey makes sure to deny only metadata is collected: “This process will often [my emphasis] involve the collection of communications metadata [ … ].” The WP seconds this: “Section 215 permits the FBI to seek a court order directing a business or other entity to produce records or documents when there are reasonable grounds to believe that the information sought is relevant [my emphasis] to an authorized investigation of international terrorism.” Under relevancy, contact chaining is acknowledged, but nothing else is said about the protocol. The document’s failure to provide further comment on the policy implies the answer to the question left open in Greenwald’s Stellar Wind report: The surveillance practice was made freely and impenitently permissible through a later law. It confirms Greenwald’s June 20 warrantless surveillance exposé by adding, as with “tangible things,” “[ … ] [metadata] can be reliably identified only through analysis of a large volume of data [ … ]” because “It would be impossible to conduct these queries effectively without a large pool of telephony metadata to search, as there is no way to know in advance which numbers will be responsive to the authorized queries.” In the middle of all its assurances, the WP confesses that a dragnet is cast and analysts then go through the data captures. It is clear the intelligence community’s policy is information is not surveilled until it has been viewed by an analyst in the same manner that Clapper’s books do not officially become books until he begins reading them.

  But even collectively the documents are far from being an admission of guilt to all of the preceding editorial charges. The WP dauntingly admits, “Intrusion on privacy interests is limited” and “If any Fourth Amendment privacy interest were implicated by collection of telephony metadata, which does not include the content of any conversations, it would be minimal.” Though the government’s perspective is clear when the WP references a 1989 Supreme Court case, “[ … ] it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant [ … ],” the memo continually reassures the reader that only international communications or those by “foreign persons” who are “reasonably believed” to be “wholly outside the United States” are targeted and domestic surveillance is incidental. The surveillance survey decrees U.S. citizens’ rights are adamantly protected. Despite a PRISM slide which states it is “nothing to worry about,” the WP imparts, “[ … ] compliance incidents are also reported to the Intelligence and Judiciary Committees of both houses of Congress [ … ].” It does not state whether the reports include incidental data captures nor does it claim that domestic information is immediately destroyed.

  The document refutes that interagency data exchange is a pre-review “team sport”: “[ … ] [B]efore the NSA disseminates any information about a U.S. person outside the agency, a high-ranking NSA official must determine that the information identifying the U.S. person is in fact related to counterterrorism [ … ].” Amazingly, the NSA overview opens a new door for criticism by announcing that identifiers have been put in place to highlight people who “[ … ] are likely [my emphasis] to receive foreign intelligence information authorized for collection under an approved certification.” (The WP states that only 300 identifiers are used instead of 30,000 as cited in The Guardian’s Tempora report.) Though both articles contain subjective, broadly defined terms which legally permit overreach, the WP reveals that an FISC order is not needed for “an investigative activity that does not require any particular factual predication,” otherwise known as a “threat assessment.” A suspicion which is not based upon a “factual predication” is often referred to as a “hunch.” This clemency is granted because a “federal prosecutor need only sign and issue a grand jury subpoena to obtain similar documents in criminal investigations, yet national security investigations have no similar investigative tool.” This is analogous to New York outlawing child pornography by passing legislation making it illegal while San Francisco freely permits it simply because the city never got around to banning it.

  Amid the two documents’ backpedaling and whitewashing, the U.S. government finds itself facing a chicken-or-the-egg conundrum. If one agency cannot release data to another without first verifying that targeting is legitimate, but to establish legitimacy interagency cross-referencing is required, it is logistically impossible for any substantiation to occur. Because the WP discusses American law, it does not attempt to address claims of international data swapping used to evade domestic surveillance legislation.

  It was clever. Over the course of a single day, the president of the United States assumed the role of “good cop” by doling out assurances that measures were being taken to quell any concerns about domestic surveillance. Meanwhile two government issued documents played the part of “bad cop.” They informed the populace that its grievances were unfounded, and, in truth, Washington was being legally frugal because it reserved the right to be much more intrusive. With the same hubris used to pressure various European nations after Morales took flight, the WP stays true to its political and literary tradition by adamantly proclaiming unconstitutional privacy invasions have and do occur, though they are “limited” and “minimal.” Without so much as a hint of green, it shrugs at the law having been gerrymandered to permit blanket warrants. Despite the implied, admitted guilt involved in releasing a statement upon programs and laws which the public had been repeatedly informed needed no justification or explanation, the WP and accompanying memo marks a turning point for the Obama administration. They contain much of the same defensive postures Washington had committed to memory since June 5. However, a fair degree of offense is contained within their pages. Though presented under the ruse of transparency, the Capitol seized the opportunity to exploit the American public’s demand for answers and gave it fervently spun propaganda and a firm reprimand for doubting its authority.

  The media whiteout, bombings, Obama’s appearance on The Tonight Show, his long overdue White House press conference and the publication of the NSA memo and White Paper might not have happened if it hadn’t been for seven individuals. The time when the American people and corporations could be satisfied with answers had long past. They now demanded change. A week before Snowden was granted asylum, Congress voted on legislation which would have proved something was being done about the current state of American surveillance. The legislation lost by six votes. The rest was a domino effect. In the end, the president had no choice but to personally reassure everyone change was coming, even if it had to be at his own hands.

  Various members of Congress had set to work addressing American espionage practices soon after Greenwald reported on Verizon. Some were unrealistically radical and merely put forth as a testament to one’s party platform or constituency. Representative Rush Holt’s “Surveillance State Repeal Act”29 demanded that the PATRIOT Act be eradicated. House Resolution No. 205 by Tom McMillin insisted Clapper be prosecuted. Senator Patrick Leahy would revise his prophetic March proposal, Electronic Communications Privacy Act Amendments Act of 2013,30 and reissue it in June as FISA Accountability and Privacy Protection Act of 2013.31 Several politicians wanted variations on the first piece of sponsored legislation to arise out of the Snowden debacle, Senator Jeff Merkley’s June 11 public transparency plan. The Ending Secret Law Act32 asked for FISC opinions to be made available to Congress and the court’s decisions released to the American people. Other tentative laws narrowly focused on one aspect of the surveillance debate. Representatives John Conyers and Justin Amash’s LIBERT-E Act33 argued blanket monitoring was illegal and stipulated only ind
ividual cases involving probable cause be allowed. Many called for the expiration date on the FISA Amendments Act be moved forward so its legislation could be reviewed and revised before 2017. A handful thought the problem was with the appointment of FISC judges. A multitude of bills offered resolutions. A few lawmakers had pity on the telephone and Internet providers. They made the appeal that the companies be allowed to publicly release their FISC request figures. Obama had entered the press conference having absorbed a number of Capitol Hill’s suggestions, such as placing a defense attorney in America’s secret court. Despite Congress members’ efforts, U.S. intelligence and the White House did everything they could to make sure nothing would change.

  The LIBERT-E Act had over 50 sponsors. It was the product of two Michigan politicians. Amash, a Republican with Libertarian leanings and the sixth-youngest representative, had been joined by Conyers, a Democrat born in 1929 who was the second-longest serving incumbent on Capitol Hill now in his 48th year in Congress. But the two politicians knew the controversial law would not pass on its own. They judiciously took another approach. The decision wound up testing the moral fabric of democracy.

  Unlike the Senate, where all members can force a vote, the House Speaker reigns supreme. If the speaker doesn’t deem a topic worthy of consideration, it isn’t put on the docket. Amash walked gingerly around Speaker Boehner, who had already decreed Snowden a traitor. He made his bill into an amendment to the Department of Defense Appropriations Act, 2014.34 Any lawmaker can propose an amendment to a bill so long as it can be proven to relate to the legislation it is trying to piggyback. The amendment’s relevance was obvious and irrefutable. It dealt with defense spending. Amash was calling to cancel the NSA’s authority to conduct blanket surveillance.35 There were two sides to the legislative coin. In theory, Amash’s proposal should have been agreeable to the fiscally conservative Republican-led House because it would cut costs. In reality, House Republicans strongly supported national defense, which the bill sought to limit. It was nonetheless Amash’s best bet for getting the law passed.

  It was also a prime example of why politicians hate amendment riders. Piggybacked legislation frequently puts them in a difficult position with their party, campaign donors and constituency. In the case of Amash’s proposal, a lose-lose scenario ensued. If the amendment was attached, a House member would be simultaneously voting for and against national defense, and the press and public rarely issued benefit of the doubt after final votes were cast. Because of this, leaders of the House started humoring the unthinkable. The amendment process was a liberty which assured all voices were heard. Talk about limiting the number of amendments to a bill began to circulate. Democracy remained intact for one reason. If an actual move toward blocking a vote on the amendment ensued, Amash’s legislation had enough support for the entire Defense bill to be held up.36 Republicans reluctantly consented. The amendment was ruled to be in order on Monday, July 22.37 It was then scheduled to be debated on Wednesday evening, July 24, before going up for a tentative vote the next day.

  The White House was so nervous, it broke character. Carney publicly denounced the pending legislation during a press conference on Tuesday, “[ … ] we [the White House] oppose the current effort in the House to hastily dismantle one of our intelligence community’s counterterrorism tools. This blunt approach is not the product of an informed, open or deliberative process. We urge the House to reject the Amash Amendment, and instead move forward with an approach that appropriately takes into account the need for a reasoned review of what tools can best secure the nation.”38 The White House chose to ignore the irony of the statement being made moments after another closed-door briefing had come to an end.39

  The White House and intelligence community knew that little could be done about Monday’s ruling. It was a mere technicality. The day after the amendment was declared legal and could therefore proceed, amid promises of greater transparency, invitations to a top secret meeting with General Alexander were extended to select members of the House.40

  The Republicans had a right to be worried. After 15 minutes of debate the day before,41 Amash’s amendment was narrowly defeated 205-217 on Thursday.42 Ninety-four Republicans and 111 Democrats voted in favor, 134 Republicans and 83 Democrats had been against the legislation. Surprisingly, the author of the PATRIOT Act, James Sensenbrenner, voted for Amash’s law.43 He said he had done so because, “The time has come to stop it.”44 Since a majority of Democrats supported the amendment, it would have likely passed in the Democratled Senate. Aside from what might have been said by Alexander, a look behind the campaign contribution curtain suggests Lon Snowden was right. The 217 “nay” voices received 122 percent more money from the intelligence and defense industries than the 205 “yea” voters.45

  The $594 billion Defense bill was passed with over 60 amendments46 by a vote of 315 to 109.47 The tab was five billion dollars below current spending and the White House threatened to veto it in order to continue to fund the Pentagon. Its emotional appeal was that the reduced budget would force compensatory cuts to other programs such as health research and education.48

  However, one of the amendments that did pass relates to U.S. government surveillance. It was put forth by Mike Pompeo of Kansas and declares that the NSA cannot use its budget to “acquire, monitor, or store the contents [ … ] of any electronic communication” of a U.S. citizen.49 It passed by a vote of 409-12.50 The reason Pompeo’s law was met with little fanfare and passed by an overwhelming margin is because it is essentially flaccid. It prohibits what the NSA stated it was not doing and currently steering around. Pompeo’s legislation does not ban the bulk collection of metadata.

  As Congress, the White House and the intelligence community continued to fight against and amongst themselves, the press sallied forth. It seized every opportunity to pounce upon a corporation’s whitewashed statement or an exaggeration by Washington, all the while further displaying the depth and range of American and international surveillance.

  Chapter 8

  The Band Played On

  “These programs were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.”

  –Edward Snowden, open letter to the people of Brazil, December 16, 20131

  AFTER GIVING SNOWDEN HIS ASYLUM PRESENT of XKeyscore, Greenwald’s exposés became sporadic. He had signed a book deal in the middle of July to produce an entire volume of new surveillance revelations. However, in a matter of weeks he—and not his writing—would make headlines. Poitras dutifully fed and explained classified data to the German press as she worked on the final chapter of her post-9/11 trilogy. Her last installment focuses on how the War on Terror was brought home to American soil. One of its themes is United States surveillance. Gellman even resurfaced to contribute one of the better, more penetrating, vital and timely post-asylum disclosures.

  The day Snowden was granted asylum, The Guardian celebrated with another exclusive: “NSA pays £100m in secret funding for GCHQ.”2 It proudly proclaims “Secret payments revealed in leaks by Edward Snowden.” The article answers the question left from the June 21 Tempora report of which intelligence agency calls the shots.

  Largely because Britain’s comparatively lax surveillance laws are a “selling point,” the U.S. government started financially supporting many of GCHQ’s intelligence stations and programs after GCHQ suffered substantial domestic budget cuts. One such British spy project hopes to ultimately “exploit any phone, anywhere, any time.” Having poured over 100 million pounds into contracted British intelligence services from 2010-2013, the NSA is allowed to prioritize surveillance affairs at some of Britain’s spy stations. Half the cost of GCHQ’s Cyprus station is paid by U.S. taxpayers. But Washington is not always happy with what it gets for its citizens’ money. Internal, classified documents comment, “GCHQ must pull its weight and be seen to pull its weight” because the U.S. government had “raised a number of issues with regards to meeting
NSA’s minimum expectations.” This is perhaps because 60 percent of Britain’s filtered data still comes from American intelligence. It is obvious a portion of the nine-figure paycheck, revealed in GCHQ’s “investment portfolios,” was for foreign surveillance of U.S. citizens and subsequent data-swapping services. One classified review brags of how GCHQ made “unique contributions” to the NSA investigation of the American citizen behind the failed 2010 Times Square car bomb attack. The plot by Faizal Shahzad was foiled by a T-shirt vendor who noticed that a suspiciously parked car happened to be smoking.3

  A companion article titled, “GCHQ: inside the top secret world of Britain’s biggest spy agency”4 appeared the same day. Its focus is largely on the daily life within GCHQ, its history, but also its plans. The report admits, “Of all the highly classified documents about GCHQ revealed by the whistleblower Edward Snowden, this has to be one of the least sensitive.” The exposé discusses the nuances of working inside the world’s largest surveillance facility whose annual budget is one billion pounds. (The NSA’s yearly allotment is 17 times greater.)5 Employees have bake sales, annual in-house sporting events, team vacations and chat using an internal networking site sardonically named “SpySpace,” a titular mockup of Facebook’s predecessor, MySpace.