by Robert Manne
The response of the American political class was highly revealing. Rather than moving to impeach the president, after protracted negotiations they brought the program of mass surveillance, implicitly acknowledged now to have been illegal, under the cover of statute. Some of this involved secretly pressing old law into service: section 215 of the Patriot Act of 2001 was used from May 2006 to collect telephone metadata in bulk. Some involved new laws like the FISA Amendments Act of 2008, section 702 of which was used for the collection of content from leading US internet corporations. The amended FISA also provided immunity for telephone companies that had previously been involved in warrantless wiretapping. In this politics of forgiveness, a key moment arrived when a once-savage critic of Bush’s program, the Democrat candidate for the presidency, Senator Barack Obama, announced in June 2008 that he had decided to support the amended FISA legislation.
*
In late 2009 a 26-year-old American, Edward Snowden, entered the National Security Agency as a contract employee of Dell Corporation, serving first in Tokyo. Snowden came from a family with a tradition of government-security service on both sides. In 2004, he had joined the army in the hope of helping to liberate the people of Iraq. He broke both legs in a training accident soon after. Somewhat shamefacedly, he quit. Even though Snowden had not completed high school, he had benefited from what he has described as “a deep informal education in computers and electronic technology”. Several of those who worked with Snowden have described him as an IT “genius”.
Because of this, in 2006 he found employment in the CIA working primarily undercover in Geneva. Snowden’s politics were, in American terms, libertarian. He supported the right to bear arms. He was sceptical of social welfare. He wore Electronic Frontier Foundation T-shirts to work. In 2012 he sent money to Ron Paul in support of his presidential bid.
Snowden’s disillusionment with the American security state began during his time in the CIA. The story he has frequently told to illustrate his disquiet concerned a Swiss banker whom the CIA encouraged to drive while drunk in the hope of subsequent blackmail. The disillusionment deepened at Dell. As a systems analyst, working primarily in Tokyo, Fort Meade and Hawaii, Snowden had privileged access to the most secret programs of the NSA. Gradually, he formed the idea of alerting Americans to the secret nightmare world he believed he had become a witness to.
Around the middle of 2012, Snowden began collecting tens of thousands of NSA documents. He transferred employment from Dell to Booz Allen Hamilton, one of the NSA’s largest contractors, to get even better access to sensitive documents. In mid-May 2013, he flew in secret from Hawaii to Hong Kong. He had already contacted two critics of the US security state, the documentary filmmaker Laura Poitras and the journalist Glenn Greenwald, and they joined him in Hong Kong. When they met in Snowden’s hotel, Poitras and Greenwald were astonished to discover not a grizzled intelligence veteran but a pale 29-year-old.
Snowden had decided that, unlike most previous whistleblowers, he would not try to remain anonymous. He was convinced that the public had a right to learn his motives and determined to protect his NSA colleagues from investigation. Nor would he allow all his documents to be dumped indiscriminately, as Bradley (now Chelsea) Manning, the whistleblower who gave a vast trove of classified material to WikiLeaks in 2010, had been accused of doing. Snowden placed responsibility for what should be published in the hands of trusted journalists, who were asked to ensure, if necessary with the advice of government, that no individual would come to harm as a result of publication.
On 5 June 2013, the Guardian published Greenwald’s first story based on Snowden’s documents. Snowden’s greatest fear had been that his revelations would be greeted with indifference. To put it mildly, his fears were not fulfilled. During the next fifteen months, as hundreds of articles based on the Snowden documents were published in some of the world’s most important newspapers, it became clear that Snowden has provoked the most significant global debate about the relationship between democracy and intelligence collection that history has seen. Because of Snowden, US Congress and the European Parliament considered the question of how to regulate mass surveillance. In early 2014 he told a conference of youthful supporters: “I am living proof that an individual can go head to head against the most powerful adversaries and the most powerful intelligence agencies around the world and win.” It was not an idle boast.
*
The Snowden documents have been meticulously analysed in several publications, most importantly by Greenwald in the Guardian and the Intercept, and Barton Gellman in the Washington Post. What they revealed was global surveillance by the NSA of trillions of phone calls, emails and internet communications. Before Snowden, the world might have been abstractly aware of the pervasiveness of American electronic intelligence; after him, it knew what was being done in vivid, precise and concrete detail. It was as if, to borrow an analogy from the Slovenian thinker Slavoj Žižek, a woman who knew her partner was unfaithful was then sent steamy webcam images of his many sexual liaisons.
Most initial interest fell on those Snowden documents that revealed the NSA’s dragnet surveillance of Americans, in apparent breach of the Fourth Amendment’s prohibition of warrantless search and seizure.
To its considerable surprise, the public learned that the NSA had compelled the three most important US telecommunications companies to hand over the metadata of all their customers’ phone records – the numbers, dates, times, locations and lengths of calls. This practice began during the warrantless wiretapping Bush–Cheney episode. After exposure of the scandal, it had been continued with the blessing of the FISA court, which in May 2006 agreed with the NSA’s lawyers that telephone metadata were “business records” that, under section 215 of the Patriot Act of September 2001, the government was permitted to acquire without warrant or probable cause. It based its decision on a 1979 Supreme Court judgement, Smith v Maryland, which found that because telephone company records were public, from which no expectation of privacy could arise, the police did not need a warrant for their seizure. On the legal foundation of this single criminal case, the NSA had in secret collected billions of the metadata phone records of Americans suspected of nothing. Even the ultra-conservative senator Jim Sensenbrenner, the primary author of the Patriot Act, was astonished to learn about the way section 215 had been interpreted to justify this massive intrusion on rights that citizens had once imagined were protected by the Fourth Amendment.
The public also learned that the NSA had compelled almost every major American internet company, beginning with Microsoft in 2007, to hand over not the metadata but the content of their users’ records – emails, chats, searches, videos, voicemail and so on. This collection had taken place under section 702 of the FISA Amendments Act. All these companies’ records – of both Americans and non-Americans – had been hoovered up for storage by the NSA for five years. The ostensible purpose of this surveillance was to target non-Americans. However, the surveillance also necessarily involved Americans in contact with foreign targets. The communications of Americans, acquired and analysed without warrant via foreigners, were described by the NSA as “incidental”. To protect the Fourth Amendment rights of the Americans whose communications had been incidentally acquired, the FISA court and the NSA had developed complex “minimisation” procedures. In reality, however, as the American public now learned for the first time, billions of their internet communications had for years been secretly sent to vast government-controlled storage warehouses without warrant, and an unknown number had been subject to analysis.
The internet companies were of course aware, although many at first dissembled, that the NSA acquired their records. Google and Yahoo were genuinely unaware that, in an operation code-named MUSCULAR, the NSA had also arranged for its British counterpart, Government Communications Headquarters (GCHQ), to hack the underwater fibre-optic cables linking their data centres. Much of this data was from American customers. As the acquisition occurred outsid
e US borders, it did not even benefit from the weak kinds of Fourth Amendment “minimisation” protections that section 702 of FISA accorded communications “incidentally” collected in the United States.
Intelligence the NSA collects exclusively from non-Americans, usually under the presidential Executive Order 12333, is not protected by laws crafted with the Fourth Amendment in mind. Americans were far less interested in the non-American dimension of the Snowden documents than they ought to have been. As Snowden remarked, the Constitution did not say: “We hold these Truths to be self-evident, that all US persons are created equal.” What the surveillance of non-Americans revealed was massive dragnet NSA operations across the globe. According to one of the Snowden documents, for example, in a thirty-day period the NSA collected 70 million metadata phone records from France, 60 million from Spain and 47 million from Italy. Nor was its telephone collection restricted to metadata. Recently it was revealed that the NSA collects the content of almost every phone call made in Afghanistan and from the Bahamas, presumably not with terrorism in mind but rather the drug trade. Dragnet surveillance without suspicion of course covers not only phone calls but the entire internet. By mid-2012, the NSA was collecting 20 billion “communication events” each day. It was able to calculate its daily ingestion through a program code-named BOUNDLESS INFORMANT, and was able to gain access and make some sense of this unimaginably vast data haystack in warehouses in Maryland and Utah through highly sophisticated programs, like the one Snowden regarded as critical, known as XKEYSCORE.
Many of the NSA’s targets are not enemies of the United States. We learned from the Snowden documents, for example, that the NSA bugged G8 and G20 meetings in Toronto, the Copenhagen Climate Conference, the United Nations, and the European Union, including the office of its astonished counterterrorism coordinator, Gilles de Kerchove. Even more famously, we learned that among several dozen world leaders it had successfully targeted were the German chancellor, Angela Merkel, and the president of Brazil, Dilma Rousseff. Some of the NSA’s foreign targets suffered from more than eavesdropping. The NSA played a crucial part in the 2500 or so anti–al-Qaeda drone killings by the CIA or the shadowy Joint Special Operations Command, carried out primarily during the Obama presidency.
The Snowden documents showed the methods used by the NSA to increase its level of global communication penetration. It had taken direct control of 100,000 computers worldwide. It had introduced malware into the computers of users it hoped to harm. It had spent hundreds of millions of dollars on programs like BULLRUN, aimed at attacking the various systems of encryption that are its greatest technological enemy. A Snowden document succinctly captured the NSA attitude to one of the most successful encryption systems: “TOR Stinks”. Nor was the NSA’s struggle to take control of the world’s communications systems always remote. One of Snowden’s documents outlined how NSA operatives had stolen servers and routers produced by the US corporation Cisco, and then inserted beacons inside them before posting them on, repackaged, to their intended destination. As this document justly pointed out: “SIGINT [signals intelligence] tradecraft is very hands on (literally!)”
According to Michael Hayden, while previous whistleblowers had produced buckets of information, Snowden had revealed the NSA’s plumbing. The documents, however, showed even more than this. They revealed an organisation driven by a dystopian vision – to take entire control of the world’s communications system, an ambition captured in the personal motto of Hayden’s successor as director, General Keith Alexander: “Collect It All”. They also revealed an organisation whose morale was high. One of the most interesting Snowden documents, for me at least, was an exuberant NSA mission statement that gloried in its achievements, was supremely confident about its future, and characterised the present historical era as “the Golden Age of SIGINT”.
*
After fleeing Hong Kong in late June 2013 – extraordinarily enough with the assistance of WikiLeaks founder Julian Assange, operating from his sanctuary in the Ecuadorian embassy in London – Edward Snowden became marooned in Moscow’s Sheremetyevo Airport on his way to Ecuador. After a month, Russia granted him temporary asylum. As a consequence, Snowden’s enemies, including General Alexander, claimed he was a Russian spy.
This was absurd. As Snowden has several times pointed out, if he were a Russian spy why would he have flown to Hong Kong? Why would the Russian government have left him in limbo at Moscow’s airport for a month? Snowden has admitted that “of course” he was approached by the Russian secret service. They got nothing from him, in part because he had decided not to hold on to any of the documents he had given to Glenn Greenwald and Laura Poitras to avoid precisely this possibility of compromise, and in part because he was accompanied at the time by one of Assange’s gallant offsiders, Sarah Harrison, who had instant access to WikiLeaks, described aptly by Snowden as one of the world’s loudest megaphones. As someone struggling “to expand the domain of our rights and our privacy”, Snowden has admitted he is pained to have found asylum in one of Europe’s most illiberal states. Recently, Alexander’s successor at the NSA, Admiral Michael Rogers, has acknowledged that Snowden is no Russian spy. Many people with whom I have discussed Snowden are still not convinced. As Aleksandr Solzhenitsyn once put it: “Slander is a hummable tune.”
Snowden first explained the reasons for his decision to blow the whistle on the NSA to Greenwald in Hong Kong. From Moscow, over the past fifteen months, he spoke at length to several journalists – Brian Williams of NBC, Barton Gellman of the Washington Post, Alan Rusbridger, editor of the Guardian and James Bamford for Wired. By video link he has addressed several human rights and internet activist conferences, and provided detailed testimony before committees of both the European Parliament and the Council of Europe. Shortly after Snowden’s defection, President Obama dismissed him contemptuously as a mere “hacker”. Nothing could be further from the truth. From his many interviews and interventions, it has become increasingly clear that Snowden is not only an extraordinarily talented information technologist but also a formidable thinker – of depth, penetration and maturity. What follows is a brief account of Edward Snowden’s sophisticated explanation for his actions, frequently in his own words.
Snowden had read the top secret NSA document outlining the history of STELLARWIND, the earlier Bush–Cheney warrantless wiretapping program. This had been for him “an earthquake moment”. He discovered from it that the plotters had been aware of their crime against the Constitution. Mass surveillance had continued after its December 2005 exposure. From his privileged position as a systems analyst with the NSA, Snowden believed he was a witness to an unprecedented assault on the values at the heart of American and Western civilisation: privacy and the right to freedom from all-intrusive state surveillance. Snowden was shocked by the power their programs gave the NSA analysts. He told Greenwald, “Any analyst anywhere can target anyone … I, sitting at my desk, certainly had the authorities to wiretap anyone from your accountant to a federal judge to even the president if I had a personal email.” Analysts had access to every detail of a targeted individual’s life – “your text messages, your web history, every Google search you’ve made, and every plane ticket you’ve ever bought, the books you buy at Amazon”. They had the ability to watch in real time the computer keystrokes of those they targeted, giving them an intimate understanding of an individual’s way of thought. Snowden did not believe one needed to be a lawyer to understand that these current programs of suspicionless surveillance involved “criminal, and even unconstitutional” violations.
For a number of reasons, Snowden regarded the FISA court, which had been established in 1978 to protect American citizens’ Fourth Amendment rights, as a sham. It operated in secret. It was appointed by a single judge. It was subservient to the agency it was meant to police. In some 34,000 decisions it made between 1979 and 2012, it ruled against the NSA on only eleven occasions. The court was dominated by 125 lawyers employed by the NSA, “who interpre
t decisions, interpret rulings, interpret laws and regulations in the most permissive way”. The FISA court did not even hear arguments from lawyers representing the privacy interests of citizens. In Snowden’s view, no court of this kind should have the power in effect to create constitutional law. “The interpretation of the Constitution has been changed in secret from no unreasonable search and seizure to, hey any seizure is fine, just don’t search it.”
The only thing preventing even greater abuse of the NSA’s technical capability was something Snowden called “policy”, a reference to the thicket of rules and regulations established by the FISA court for searching the agency’s trillions of collected communications. Snowden regarded hopes that there might be some natural trajectory towards restraint of dragnet surveillance under current policy settings as fanciful. The apertures that the analysts used in their searches were always the widest the rules permitted. Policy was, moreover, “a one-way ratchet that only loosens”. It was also inherently unstable. Policy might change with the next NSA director, the next Congress, the next president. In a future crisis, a new leader was likely to say: “Because of the dangers we face in the world, some new and unpredicted threat, we need more authority, we need more power.”
Snowden was appalled by the culture he had witnessed inside the NSA, driven not by the employees, whom he respected and whom he felt were often unjustly “demonised”, but by its unaccountable leaders. These leaders devised secret programs that they knew the public would reject. They used the cover of the post–September 11 terrorist threat, which Snowden did regard as serious, to implement programs – like BULLRUN, the attack on encryption – that Congress had previously rejected. Worst of all were the barefaced lies the leaders of the NSA told the public about their activities. They had consistently informed Congress that there was no way to make even a “ballpark” estimate of the numbers of Americans whose communications they collected. This was precisely what the program BOUNDLESS INFORMANT was designed to achieve. In March 2013, the director of national intelligence, James Clapper, told Congress that the NSA conducted no mass surveillance of Americans. After Snowden heard this, there was “no going back”.