Sumit Ganguly
Professor of Political Science
Rabindranath Tagore Chair in Indian Cultures and Civilizations
Director, Center on American and Global Security
Indiana University
Acknowledgments
As editor of The Snowden Reader, I would like to acknowledge and thank people who made this book possible. The book originated in a panel conceived and organized by Sumit Ganguly in September 2013, and he took the initiative, with Rebecca Tolen at Indiana University Press, to begin the process of turning the panel presentations into contributions for a book. Nick Cullather, Fred Cate, Lee Hamilton, and William Scheuerman were an editor’s dream in terms of contributors, and I thank them for making my task easier. I am grateful to David Delaney for answering questions and providing advice to me throughout the book’s development. Ashley Ahlbrand and Cindy Dabney in the Maurer School of Law’s library provided valuable assistance in helping identify and organize the documents Edward Snowden disclosed and the responses to his revelations. Stacey Kaiser patiently endured and professionally fulfilled all my requests for help in transforming primary documents into manuscript texts. Rebecca Tolen and her staff, including Mollie Ables and Darja Malcolm-Clarke, deserve my thanks for moving the manuscript to publication in such an efficient and effective way. Finally, thanks to my family for understanding all the times I was Snowdened under in completing this book.
David P. Fidler
Bloomington, Indiana
Editor’s Note
Part II of The Snowden Reader was organized to provide an overview of the revelations by Edward Snowden that began in June 2013 and what the disclosures generated during the months that followed. The selections in part II roughly come from the first year of the “Snowden affair,” with updates made as permitted by the publication schedule. The documents selected represent only samplings of the vast quantity of documents that have been generated and disseminated by various parties. Selections were made with the goal of providing a diversity of accessible materials and with the nonspecialist reader in mind. For the most part, the volume does not address specialists in the policy, law, and technology of foreign intelligence, which meant that a number of fascinating but technically challenging documents had to be left out. I can only beg the reader’s forgiveness if the selections have left out documents you think are more important, interesting, or entertaining. In part II, “as of this writing” means approximately December 10, 2014.
Before each selection, I have included a short introductory note to provide context and to connect it with other documents and developments in the Snowden saga. Except where documents appear in their original forms (e.g., NSA briefing slides), the selections have been edited, with ellipses used to indicate where material has been omitted. Except where indicated, the documents in part II are in the public domain.
Abbreviations
ACLU
American Civil Liberties Union
AG
Attorney General
AUS
Australia
C
Classified
CAN
Canada
CIA
Central Intelligence Agency
COMINT
Communications Intelligence
CT
Counterterrorism
DHS
Department of Homeland Security
DNI
Director of National Intelligence
DOC
Department of Commerce
DOD
Department of Defense
DOE
Department of Energy
DOJ
Department of Justice
DSD
Defence Signals Directorate (now Australian Signals Directorate)
ECHR
European Convention on Human Rights
EO or E.O.
Executive Order
EU
European Union
FBI
Federal Bureau of Investigation
FISA
Foreign Intelligence Surveillance Act
FISC
Foreign Intelligence Surveillance Court
FISCR
Foreign Intelligence Surveillance Court of Review
FOUO
For Official Use Only
FVEY
Five Eyes
GBR
Great Britain
GCHQ
Government Communications Headquarters (UK’s signals intelligence agency)
GPS
Global Positioning System
HUMINT
Human Intelligence
IC
Intelligence Community
ICCPR
International Covenant for Civil and Political Rights
IPT
Investigatory Powers Tribunal
ISA
Intelligence Services Act
ISC
Intelligence and Security Committee
ISP
Internet Service Provider
IT
Information Technology
NF
No Foreign Nationals
NOFORN
No Foreign Nationals
NSA
National Security Agency
NSL
National Security Letter
NZL
New Zealand
ODNI
Office of the Director of National Intelligence
PCLOB
Privacy and Civil Liberties Oversight Board
PPD
Presidential Policy Directive
RAS
Reasonable Articulable Suspicion
RIPA
Regulation of Investigatory Powers Act
REL
Release to
S
Secret
SI
Sensitive Information
SID
Signals Intelligence Directorate (NSA)
SIGAD
Signals Intelligence Activity Designator
SIGDEV
Signals Intelligence Development
SIGINT
Signals Intelligence
SWIFT
Society for Worldwide Interbank Financial Telecommunication
TAO
Tailored Access Operations (NSA)
TTIP
Transatlantic Trade and Investment Partnership Agreement (being negotiated between the United States and the EU)
TS
Top Secret
TSP
Terrorist Surveillance Program
U
Unclassified
UK
United Kingdom
UN
United Nations
US or U.S.
United States
USA FREEDOM Act
Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Drag-Net Collection, and Online Monitoring Act
USA PATRIOT Act
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
U.S.C.
United States Code
WCIT
World Conference on International Telecommunications
THE
SNOWDEN
READER
Introduction
DAVID P. FIDLER
Into a Secret World
On June 5, 2013, Edward J. Snowden entered history with the first of a series of disclosures about the activities of the National Security Agency (NSA). Over the months that followed, Snowden continued to leak documents he obtained while working as a contractor for the NSA. Through these revelations, Snowden opened a secret world, and we were at once disconcerted and amazed at what we saw. We responded, emotionally and analytically, in attempts to make sense of Snowden, what he did, what he revealed, and what we should do now that he has made us direct participants in deliberations about protecting national security and respecting individual rights. Snowden’s actions, and
their impact in the United States and internationally, are unprecedented and constitute a seminal event for many areas of policy and politics, including cyber security, cyberspace, national security, the roles and responsibilities of Congress, foreign policy, constitutional and statutory law, international law, and the ethics of civil disobedience.
Pausing to assess history-making events that continue to make history may be misguided, but it is an overpowering impulse. More than a year into the journey into this secret world, and as events continue to unfold, we do not have clarity about what it all means, but we do have enough documentation, analysis, and perspective to warrant looking back and capturing some of the unprecedented things that have happened. This book explores the nature and significance of Snowden’s leaks and the challenges they have created for the United States and other countries.
During his employment as a contractor for the NSA and in earlier jobs in the U.S. intelligence community, Snowden came to the conclusion that electronic surveillance undertaken by the NSA violated U.S. and international law on a massive scale, with the violations hidden from public scrutiny by secrecy rules imposed and enforced by the U.S. government. According to Snowden, his alarm about the power and practices of the NSA ripened into civil disobedience when NSA officials did not take his concerns seriously. He believed his only choice was to expose the NSA activities in order to spark public debate about what the NSA was doing, and to stimulate reforms.
With access to classified information on NSA computer systems, Snowden surreptitiously obtained a collection of secret documents later estimated to total 1.7 million pages of material. While gathering his trove of documents, Snowden made contact with journalist Glenn Greenwald at the Guardian newspaper in the United Kingdom, documentary filmmaker Laura Poitras, and—through Poitras—reporter Barton Gellman at the Washington Post to develop channels to disclose the information.1 Snowden left the United States for Hong Kong in mid-May 2013, where Greenwald and Poitras met him for the first time in early June. A few days later, on June 5, the Guardian published the first of Greenwald’s stories based on documents provided by Snowden.
When the disclosures began, the newspaper stories did not identify the leaker. Snowden revealed himself as the source of the leaked documents on June 9 while he was still in Hong Kong. Reeling from the shock waves caused by the disclosures, the U.S. government sought to get custody of Snowden by asking Hong Kong to extradite him under the U.S.-Hong Kong extradition treaty. Officials in Hong Kong refused the American request, claiming it did not meet the requirements of the treaty, and permitted Snowden to leave on a flight to Moscow, where he arrived on June 23. Although Snowden did not intend to stay in Russia, the U.S. government’s revocation of his passport and pressure on other countries not to grant Snowden asylum left Snowden in limbo in the transit area of Sheremetyevo Airport. Russia eventually granted Snowden temporary asylum for one year in early August, allowing him to leave the airport to live in Moscow. At the end of this temporary asylum, Russia gave Snowden permission to reside in Russia for three more years.
During and after the Moscow airport ordeal, disclosures based on documents Snowden provided to journalists continued to make news around the world. Media stories based on Snowden-leaked information appeared in, among other places, Brazil, China, Germany, Spain, United Kingdom, and the United States. The disclosures have been nearly relentless and have produced a body of documents, reactions, and commentary about diverse issues that is overwhelming in scale, substance, and significance. Snowden introduced people unfamiliar with intelligence activities to baffling code names for complex secret programs, such as BULLRUN, DROPMIRE, FOXACID, MUSCULAR, QUANTUMTHEORY, TURBINE, and XKEYSCORE. As Snowden intended, the revelations provoked intense controversies and heated debates in the United States and other countries about the surveillance conducted by the NSA, the relationships between other national intelligence agencies and the NSA, and the surveillance activities of other governments, especially the United Kingdom.
Among other things, the leaks prompted the U.S. intelligence community to increase transparency about its activities, including by establishing a website—IC on the Record2—and releasing dozens of previously classified documents. The leaks also infuriated U.S. technology companies; damaged U.S. relations with fellow democracies; provided the basis for litigation in U.S. courts, British tribunals, and the European Court of Human Rights; and forced the Obama administration to retreat from its initial staunch defense of the NSA and embrace the need for reforms. The whirlwind generated by Snowden has been astonishing in its intensity, political contentiousness, and global scope. This impact makes trying to understand the Snowden affair and its implications all the more important for the United States, international relations, and the future of civil rights and liberties in an increasingly digital world.
The Significance of the Snowden Affair
The political choices, national security challenges, legal rules, and technologies implicated by Snowden’s revelations had been years in the making, and this created complicated backstories for everything Snowden exposed. Figuring out why the NSA was engaging in the activities Snowden disclosed involved asking how these capabilities and programs came to be, but confusion about what exactly the NSA was doing frustrated attempts to answer these “why” and “how” questions. Provocative headlines exasperated NSA officials frustrated with the incomplete, misleading, and misinterpreted information they believed was being released. The nature and magnitude of what Snowden divulged overwhelmed normal patterns of domestic and international politics, which discombobulated dynamics inside the Beltway and diplomacy abroad. The world Snowden made more accessible had its own difficult history, shadows between fact and fiction, and confusion caused by political compasses going haywire. Many people worried by Snowden’s leaks doubted his guidance in navigating this difficult terrain because he took refuge in Russia, a place generally not associated with the values he proclaimed to be defending.
In the long term, the most significant features of Snowden’s actions arise from neither the intense emotions they aroused nor the specific secrets he divulged, but rather from the enormous pressure his disclosures put on already existing fault lines in the national security politics of democratic governments. Snowden’s actions transcend the “hero v. traitor” debate because they disrupted the trajectory of political affairs and forced democratic societies to reconsider fundamental questions the answers to which help define the quality of the democratic experience. Analyzing Snowden’s agitation of these fault lines is agnostic on whether Snowden is a brave defender of American ideals,3 a “useful idiot” who has helped democracy’s enemies,4 or a perplexing bit of both.
The fault lines in national security politics affected by Snowden’s actions include the tension between secrecy and transparency and between material power and political principle. Although phrased or described in different ways, the same tensions appear throughout the essays in part I of this book, which provide perspectives on what Snowden did and the importance of his actions from leading experts on U.S. history and politics, cyber security, political science, privacy, and international law. Part II contains key primary documents released by Snowden or produced in response to what he revealed. These documents capture for a general readership how Snowden’s disclosures disturbed the political status quo, caused political earthquakes in the United States and beyond, and exposed problems, issues, and questions that governments and societies are still working through.
NSA Activities under the Foreign Intelligence Surveillance Act
The center of gravity of Snowden’s leaks is the NSA, and much of the information made public exposes NSA programs, policies, procedures, partnerships, and capabilities. Created in 1952, the NSA became the U.S. intelligence community’s premier entity for collecting signals intelligence (SIGINT), or “the production of foreign intelligence through the collection, processing, and analysis of communications or other data, passed or accessible by radio, wire, or other elec
tromagnetic means.”5 The organization was so secret (and secretive) that the NSA’s existence was not acknowledged until 1957, leading to the joke that the initials stood for “No Such Agency.” To the general public, the NSA’s role and importance have usually been overshadowed by the better-known Central Intelligence Agency (CIA). When most Americans think of scandals in the U.S. intelligence community, the CIA typically comes to mind, whether the controversies occurred during the Cold War (covert operations to overthrow foreign governments) or in the years following the terrorist attacks of 9/11 (use of “enhanced interrogation techniques” against suspected terrorists).
But the NSA did not avoid scrutiny during investigations in the mid-1970s of abuses in the U.S. intelligence community. The famous Church Committee found, for example, that the NSA had violated policy and law in intercepting domestic communications (such as telegrams),6 findings which led Congress to adopt the Foreign Intelligence Surveillance Act (FISA) in 1978. FISA regulated government surveillance for foreign intelligence purposes conducted in the United States by, among other things, requiring prior review and approval of such surveillance by a special court, the Foreign Intelligence Surveillance Court (FISC).
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