Snowden’s disclosures have created sufficient political pressure to precipitate another shift in national security politics in the United States and, perhaps, in other democratic states. Snowden exerted pressure along six key fault lines:
Secrecy / Transparency
Elitism / Populism
Legalism / Rule of law
Duty / Responsibility
National security / International cooperation
Material power / Political principle
His leaks increased transparency at the expense of secrecy and in doing so challenged pervasive secrecy in national security politics. His actions privilege transparency over secrecy in how democracies handle national security threats. His revelations have forced the U.S. intelligence community—and the NSA in particular—to become more transparent, and proposals for reform seek greater transparency in the future.
Snowden’s leaks have a populist quality because he claims the American people should debate and determine NSA surveillance powers rather than having such powers defined and exercised by elites operating in secret. The tension between popular participation in national security and foreign policy and elite management of such affairs is not new, but Snowden’s actions brought this issue to the fore again. And he can claim some vindication on this point with respect to the telephone metadata program, which elites across all three branches of government crafted and implemented in secret but which, when exposed, did not survive unchanged the political uproar that ensued.
Snowden’s actions drew attention to friction between legalism and the rule of law in national security politics. Defenders of NSA activities often stress that the programs comply with existing legal rules, and they argue that the NSA has followed the complex rules and procedures laid down by Congress, the president, and the courts. Snowden started a different conversation, one focused on the rule of law. Uninterested in legalities—such as whether the NSA complied with the law—he challenged the law more fundamentally. How, Snowden asked, can laws interpreted secretly by a secret court, implemented secretly by the executive branch, and considered in secret by legislative bodies comport with the rule of law? Given the scale of the NSA surveillance programs exposed, this question carries extra wallop in a polity that embraces the rule of law as part of its governing ethos.
Snowden’s decision to violate laws prohibiting the release of classified information highlighted tensions between duty and responsibility frequently encountered in national security contexts. Given the dangers the country faces, the need for individuals working on national security issues to follow the rules is significant, including rules about protecting certain types of sensitive information. But we know the pitfalls of blind obedience when power is abused and no outlet to disclose such abuses exists. Snowden has argued that NSA officials paid no attention to the concerns he raised and that because he was a private contractor for the NSA, U.S. law provided him none of the protections provided for “whistleblowers.” Although the NSA disputes his account, the larger point here is that Snowden’s actions have refocused attention on the duty/responsibility problem and highlighted the potential need for rethinking whistleblower rules and procedures in the intelligence community. The director of national intelligence issued a new directive (in the works before Snowden appeared) on whistleblower protection in the intelligence community in March 2014.14 Reactions to Snowden’s leaks in the European Union also led to discussion about crafting European-wide protections for whistleblowers.
Snowden’s disclosures also highlight tensions between national security interests and prospects for international cooperation. Fairly or unfairly, Snowden’s disclosures painted a picture of a United States willing and able to engage in signals intelligence on a massive scale against adversaries and allies alike, exploiting for national security advantages its position as a leader in the development of cyber technologies and services. In the wake of the leaks, the fears of adversaries were confirmed, cooperation with allies strained, and U.S. leadership in cyber technologies damaged. Whether Snowden is a hero or a traitor does not enter into the calculations of countries trying to process what they have learned and how they might relate to the U.S. government and the NSA in the future. Although some blame Snowden for this predicament, others ask whether some of the programs Snowden disclosed made sense in terms of U.S. relationships with other countries and the U.S. need for international cooperation on a host of cyberspace and other political and economic challenges.
Snowden’s actions also touch age-old tensions between the exercise of material power and fidelity to political principles. Lee Hamilton observes in his essay in this volume that the United States “cannot proceed on the basis that our spying is necessary or appropriate simply because we can technologically do it.” This sentiment captures what many people thought when exposed to the NSA’s formidable capabilities—amazement at what the NSA could do, but with questions about whether the United States should engage in some of these SIGINT activities. We know from history that the advent of new technologies can increase the material power countries wield, and such technological enhancements entice governments to reinterpret rules, procedures, and principles to accommodate what the new instruments of power can do. A common refrain in NSA responses to Snowden’s revelations about its technological capabilities was that media stories rarely observed that the NSA only uses its capabilities in compliance with established policies and laws. But Snowden’s disclosures prompted people to wonder whether the availability of new technological power in the cyber and digital realms has unduly influenced how the U.S. government shapes, interprets, and applies policies and laws.
Interestingly, Snowden’s leaks did not touch on other fault lines in U.S. national security politics, most notably the tension between the executive and legislative branches. Tensions here routinely appear, for example, in relation to war powers. Clashes have occurred in the surveillance context as well, often centered on presidential claims of authority to conduct warrantless surveillance inside the United States for foreign intelligence and national security purposes. The surveillance program eventually authorized under Section 702 of FISA was started by President George W. Bush as the Terrorist Surveillance Program (TSP) under his interpretation of presidential authority to conduct foreign intelligence surveillance in the United States outside FISA and without judicial involvement. The controversy that exploded when the press disclosed the TSP in 2005 placed stress on the executive-legislative fault line. The controversies around the telephone metadata and Section 702 programs leaked by Snowden did not create such stress because these programs involved participation from all three branches of the government.
Although Snowden put significant pressure on fault lines in U.S. national security politics that affect the security-liberty relationship, this does not mean he was right to do so or that what emerges, if a shift occurs, will reflect what he wants or produce a more stable or legitimate outcome. Nevertheless, Snowden’s legacy includes the increasing political strain he put on these long-standing fault lines and the possibility of another historic realignment in U.S. national security policy and law.
Disclosures from Snowden are likely to continue, but future leaks might not top the shock, awe, anger, and action generated after the first story appeared on June 5, 2013. Some observers noted “Snowden fatigue” in the relative lack of media coverage of, and political and public interest in, new disclosures made in the fall of 2014, such as the one on AURORAGOLD, an NSA operation to gain access to cellphone networks and technologies worldwide.15 Other surveillance controversies might emerge, but not necessarily ones caused by Snowden. For example, U.S. government officials believed a “second Snowden” leaked classified documents to journalists involved in Snowden’s disclosures.16 In addition, a former State Department official and the American Civil Liberties Union both argued that Americans should be more concerned about the U.S. government’s collection of their communications under Executive Order 12333 than under FISA.17
These d
evelopments have prompted speculation about what Snowden will leave behind. Will Snowden’s impact fade under the rush of other national security crises that require governments to exploit powerful surveillance and intelligence capabilities at home and abroad?18 If so, the Snowden affair might appear years from now more as a historical curiosity than a turning point. Or has Snowden triggered changes in national security politics that produce more governmental transparency, deliberative democracy, and whistleblower protections? If so, then the secret world Snowden exposed might, in years hence, seem like a relic of a time and place no longer valuable to those responsible for meeting security threats without diminishing individual liberty.
Notes
1. Glenn Greenwald, No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State (New York: Macmillan, 2014); Laura Poitras, Citizenfour, 2014, https://citizenfourfilm.com.
2. Office of the Director of National Intelligence, IC on the Record, http://icontherecord.tumblr.com/, accessed August 13, 2014.
3. This perspective informs, for example, Greenwald, No Place to Hide.
4. This interpretation informs, for example, Edward Lucas, The Snowden Operation: Inside the West’s Greatest Intelligence Disaster (London: Amazon, 2014).
5. National Security Agency, “The National Security Agency: Missions, Authorities, Oversight and Partnerships,” National Security Agency document, August 9, 2013, 2.
6. Intelligence Activities and the Rights of Americans: Final Report of the Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Book II (Washington, D.C.: U.S. Government Printing Office, 1976), 12.
7. “Spying Together: Germany’s Deep Cooperation with the NSA,” Der Spiegel, June 18, 2014, http://www.spiegel.de/international/germany/the-german-bnd-and-american-nsa-cooperate-more-closely-than-thought-a-975445.html.
8. Quoted in Ewen MacAskill, Julian Borger, Nick Hopkins, and James Ball, “GCHQ Taps Fibre-Optic Cables for Secret Access to World’s Communications,” Guardian, June 21, 2013, http://www.theguardian.com/uk/2013/jun/21/gchq-cables-secret-world-communications-nsa.
9. For more on Snowden’s biography, see Luke Harding, The Snowden Files: The Inside Story of the World’s Most Wanted Man (New York: Vintage Books, 2014).
10. Andrei Soldatov and Irina Borogan, “Russia’s Surveillance State,” World Policy Journal (Fall 2013), http://www.worldpolicy.org/journal/fal12013/Russia-surveillance.
11. Human Rights Watch, “Venezuela,” in World Report 2014, http://www.hrw.org/world-report/2014/country-chapters/venezuela?page=1.
12. Amnesty International, “Venezuela’s Withdrawal from Regional Human Rights Instrument a Serious Setback,” September 6, 2013, http://www.amnesty.org/en/news/venezuela-s-withdrawal-regional-human-rights-instrument-serious-setback-2013-09-06.
13. Human Rights Watch, “Venezuela.”
14. Director of National Intelligence, “Intelligence Community Directive 120 on Intelligence Community Whistleblower Protection,” March 20, 2014, http://www.dni.gov/files/documents/ICD/ICD%20120.pdf.
15. See, for example, the lack of mainstream coverage of the disclosure of the secret 2009 Quadrennial Intelligence Community Review in Glenn Greenwald, “The U.S. Government’s Secret Plans to Spy for American Corporations,” The Intercept, September 5, 2014, https://firstlook.org/theintercept/greenwald/. On AURORAGOLD, see Ryan Gallagher, “Operation AURORAGOLD: How the NSA Hacks Cellphone Networks Worldwide,” The Intercept, December 4, 2014, https://firstlook.org/theintercept/2014/12/04/nsaauroragold-hack-cellphones/.
16. Arit John, “U.S. Officials Say There’s a Second Snowden Leaking Documents,” The Wire, August 5, 2014, http://www.thewire.com/politics/2014/08/us-official-says-theres-a-second-snowden-leaking-security-documents/375613/. In October 2014, news reports indicated the FBI had identified a suspect and conducted an investigation of his home. Andrea Peterson, “The ‘Second Source’ for Snowden Reporters,” Washington Post, October 29, 2014, http://www.washingtonpost.com/blogs/the-switch/wp/2014/10/29/the-second-source-for-snowden-reporters-explained/.
17. First issued in 1981, Executive Order 12333 is the key document guiding U.S. surveillance and intelligence activities outside the United States. For the arguments warning about this executive order, see John Napier Tye, “Meet Executive Order 12333: The Reagan Rule That Lets the NSA Spy on Americans,” Washington Post, July 18, 2014, http://www.washingtonpost.com/opinions/meet-executive-order-12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5-d0de80767fc2_story.html; American Civil Liberties Union, “New NSA Documents Shine More Light into Black Box of Executive Order 12333,” October 30, 2014, https://www.aclu.org/blog/national-security/new-nsa-documents-shine-more-light-black-box-executive-order-12333.
18. My chapter in this volume identifies dramatic developments in international politics in 2014 that increased interest in the use of extensive surveillance and intelligence capabilities to address mounting national security threats.
PART I
PERSPECTIVES ON THE
SNOWDEN
DISCLOSURES
1
Security and Liberty:
The Imaginary Balance
NICK CULLATHER
If one truism captures the tenor of discussion surrounding the Snowden revelations, it is the recurring metaphor of balance between liberty and security. In May 2013, three days after Snowden fled to Hong Kong but before his disclosures began, President Obama maintained his administration was “working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are.”1 Later, as the magnitude of National Security Agency’s mass surveillance became clear from Snowden’s leaks, editorialists condemned the president in almost the same words: George W. Bush had “tipped the balance too far from liberty towards security,” wrote The Economist, “and it has stayed there under Barack Obama.”2
On December 16, 2013, a federal district judge ruled the NSA’s domestic telephony metadata program “probably unconstitutional,” and observed that the case was “the latest chapter in the Judiciary’s continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens. . . . In the months ahead, other Article III courts, no doubt will wrestle to find the proper balance consistent with our constitutional system.”3 On December 27, 2013, another judge in a different circuit upheld the NSA’s telephony metadata program in dismissing a lawsuit from the American Civil Liberties Union. Referring to the 9/11 Commission, this judge stated that “[t]he choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil.”4
Extending the meme beyond America’s borders, Silicon Valley giants—including Google, Facebook, and Twitter—objected in an open letter in December 2013 that the “balance in many countries has tipped too far in favor of the state and away from the rights of the individual.”5 The contexts in which the “balance” metaphor has arisen in responses to Snowden’s disclosures all refer to government’s need to protect official secrets as central to the maintenance of “security.” Through repetition, the balance cliche has gained an aura of probity, even wisdom. It appears to be a neutral framing of the problem of official secrecy, but the perception that liberty and security sit in the teetering pans of a beam scale comes laden with assumptions that deserve examination.
This perception implies that security and liberty are competing considerations and that a responsible government has an obligation to restrict civil liberties to meet a minimum standard of diligence in pursuit of security. It also carries connotations of quantity and precision, as if security and liberty are two columns in a ledger in which incremental deductions can be measured or recorded.6
The metaphor also gives primacy to administration over law or principle, conveying a notion that the process of balancing is a matter of bureaucratic fine-tuning, not a job for politicians o
r citizens but for experts. And, finally, it implies a permanence to the process, as if balancing (“a continuing challenge”) has always gone on and always will. In December 2013, Senator Ron Wyden attributed “what’s always been the constitutional teeter-totter” to “the founding fathers, it really comes back to that. They always said, our system works when you have liberty and security in balance.”7
The Invented History of Balance
Wyden felt no need to specify which founding father invented the teeter-totter image or in which of the Federalist Papers it appeared. Nor did Senator Charles Schumer, who told Face the Nation that the “balance” issue was “age-old . . . since the Constitution was written.”8 Although the image gains much of its rhetorical power from its presumed antiquity, it does not appear in any of the founding documents, the debates in the Congressional Globe, or the speeches of Abraham Lincoln. Oliver Wendell Holmes, who limited free speech to those not yelling fire in crowded theaters, did not mention it. Perhaps more strikingly, Americans weathered three existential crises in the first half of the twentieth century—World War I, the Great Depression, and World War II—without discussing or attempting to balance security and liberty.
In facing dangers more dire than terrorism, previous administrations pushed for suspension or modification of conceptions of liberty by arguing either that the circumstances required it or the Constitution allowed it. Woodrow Wilson’s administration, in securing passage of the 1917 espionage laws under which Snowden is charged, stated plainly that the Bill of Rights was suspended for the duration of the war. Wilson noted that “a time of war must be regarded as wholly exceptional, and that it is legitimate to regard things which would in ordinary circumstances be innocent as very dangerous.”9
The Snowden Reader Page 4