The Snowden Reader

by David P Fidler

. . .

  Mrs. BACHMANN [of Minnesota]. . . . Madam Chair, this is a very important issue that we are taking up today because the number one duty of the Federal Government is the safety of the American people. . . . As we know all too well, national security is a real and present danger, and it is something that we have to take quite seriously. We can’t deal in false narratives.

  A false narrative has emerged that the Federal Government is taking the content of Americans’ phone calls. It’s not true. It’s not happening.

  We need to deal in facts. The facts are real, and the facts are these:

  The only people who have benefited from the revelation of classified information by someone who worked for this government—who intentionally and without authorization declassified some of the most sensitive national security information that we have—are those who are engaged in Islamic jihad. . . .

  Consider this:

  There is more information about each one of us contained in the phone book that sits at home on your kitchen counter than information that is in the National Security Database that we’re talking about today. Your name, your address are in the phone book. Your name, your address are not in this National Security Database.

  No other nation in the world has the advantage that the United States of America has on national security—no other nation—and we by this amendment today would agree to handcuff ourselves and our allies by restricting ourselves? Let it not be. Let us not deal in false narratives. Let us deal in facts that will keep the American people safe.

  When you look at an envelope, when a letter is put in the mail, is there a privacy right as to what has been written on that envelope? No, there isn’t. There is a privacy right as to what is contained inside that envelope. That’s a Fourth Amendment right.

  Is there a Fourth Amendment right to the record that you called someone on a certain day? No, there isn’t—that’s a record—but there is a Fourth Amendment right to what’s in that phone call. Let’s deal in reality, not in false narratives.

  . . .

  Mr. SENSENBRENNER [of Wisconsin]. Madam Chair, I rise in strong support of the Amash amendment. I do so as the person who was the principal author of the PATRIOT Act in 2001, who got that law through quickly after 9/11 and who supported and managed its 2006 reauthorization.

  Let me make this perfectly clear that . . . this amendment does not stop the collection of data under section 215—the people who are subject to an investigation of an authorized terrorist plot. What it does do is to prevent the collection of data of people who are not subject to an investigation. . . . The time has come to stop it, and the way we stop it is to approve this amendment.

  . . .

  Mr. POLIS [of Colorado]. . . . Madam Chair, reports of the NSA surveillance program have broad and far-reaching consequences.

  Many Americans feel that our fundamental liberties as a country and our constitutional rights are threatened. In addition, it has ruined and hurt our reputation abroad—threatening our trade relationships with allies, threatening American jobs as a result, and putting in danger our cooperative security relationships that we need to fight the war on terror.

  The responsible thing to do is to show some contrition. Let’s pass this amendment. Let’s make sure that we can have a practical approach that shows that protecting our liberties and securities are consistent and critical for the United States of America. . . .

  . . .

  Mr. MULVANEY [of South Carolina]. Madam Chair, here is the question:

  It’s a question of balancing privacy versus security. It’s a question beyond that. It’s a question of who will do the balancing.

  Right now, the balancing is being done by people we do not know, by people we do not elect and, in large part right now, by somebody [James Clapper, Director of National Intelligence] who has admitted lying to this body at a hearing. That’s wrong.

  We should be doing the balancing. We were elected to do that. We need to pass this amendment so that we can do the balancing, not the folks who are not elected and whom we do not know.

  . . .

  Ms. LOFGREN [of California]. I want to talk about the much ballyhooed oversight.

  Every year, there is a report to the Judiciary Committee, an annual report, on section 215. This year, the report was eight sentences—less than a full page. To think that the Congress has substantial oversight of this program is simply incorrect. . . . I do agree that when we wrote the PATRIOT Act relevance had a meaning.

  . . .

  Mr. BARTON [of Texas]. . . . Madam Chair, this is not about how sincere the NSA people are in implementing this technique. It is not about how careful they are. It is whether they have a right to collect the data in the first place on every phone call on every American every day.

  The PATRIOT Act did not specifically authorize it. Section 215 talks about tangible things that are relevant to an authorized security investigation. In the NSA’s interpretation of that, “relevant” is all data all the time. That is simply wrong. We should support the Amash amendment and vote for it.

  . . .

  Mr. POE of Texas. Warrants need to be particular and specific about the place to be searched and the items to be seized.

  No judge would ever sign a general search warrant like the British did, allowing the police to search every house on the block, much less seize everybody’s phone records, but this is what has happened under section 215. . . .

  The government has gone too far in the name of security and the Fourth Amendment has been bruised.

  Rein in government invasion. No more dragnet operations. Get a specific warrant based on probable cause, or stay out of our lives.

  . . .

  Mr. NADLER [of New York]. Madam Chairperson, this amendment stops the government from misusing section 215, to engage in the dragnet collection of all of our personal telephone records. Congress did not grant the executive the authority to collect everything it wants so long as it limits any subsequent search of that data.

  This amendment restores the requirement that records sought are relevant to an authorized foreign intelligence or terrorist investigation. It restores the minimal relevant standard required by Congress but ignored by successive administrations.

  No administration should be permitted to operate above or beyond the law as they have done in this respect. I therefore urge all of my colleagues to vote in favor of the Amash-Conyers amendment.

  . . .

  Mr. GRIFFITH of Virginia. General warrants, writs of assistance, that’s what we’re looking at, and the Founding Fathers found that to be anathema. What they’re doing does violate the Fourth Amendment. We took an oath to uphold the Constitution, and we’re supposed to rely on a secret agency that deals with a secret court that deals with a selective secrecy committee; and Members of Congress are limited to their access to the actions of that committee, but we’re supposed to trust them.

  . . .

  Ms. GABBARD [of Hawaii]. Madam Chairwoman, countless men and women from my State of Hawaii and all across the country have worn the uniform and put their lives on the line to protect our freedoms and our liberties. I cannot in good conscience vote to take a single dollar from the pockets of hardworking taxpayers from across the country to pay for programs which infringe on the very liberties and freedoms our troops have fought and died for.

  Ben Franklin said:

  They who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.

  . . .

  Mr. COTTON [of Arkansas]. Madam Chairwoman, I rise to strongly urge opposition to the Amash amendment.

  This program has stopped dozens of terrorist attacks. That means it’s saved untold American lives.

  This amendment is not simple. It does not limit the program. It does not modify it. It does not constrain the program. It ends the program. It blows it up. . . . You will not have this program if this amendment passes. . . .

  This program is constitutional under Supreme Court prece
dent. . . . This program is approved by large bipartisan majorities of this body on the statute—text that they approved, not their secret intents or wishes.

  It is overseen by article III judges who have been confirmed by the Senate and are independent of the executive branch. It is reviewed by the Intelligence Committees, and it is executed primarily by military officers, not generals, but the majors and the colonels who have been fighting and bleeding for this country for 12 years.

  What is it, metadata? It sounds kind of scary. It’s nothing more than an Excel spreadsheet with five columns: called to, called from, date, time, and the duration. Five columns, billions of rows. It’s in a lockbox. It can’t be searched unless you have specific suspicion of a number being used by a terrorist. Only then do they go into that database and do they run a search for what that number has been calling.

  Why do you need it? Verizon, AT&T, [and] other companies will not keep this data for the years necessary. Secondly, you need it quickly. When I was in Iraq as a platoon leader with the 101st Airborne, if we rolled up a bad guy and we found a cell phone or we found a thumb drive, we would immediately upload that data so intelligence professionals could search it so they could go roll up another bad guy, because you only have a few hours to stop a terrorist once you catch another terrorist.

  Folks, we are at war. You may not like that truth. I wish it weren’t the truth. But it is the truth. We’re at war. Do not take this tool away from our warriors on the frontline.

  . . .

  U.S. House of Representatives, Debate on the Amash-Conyers Amendment to Change the Telephone Metadata Program, July 24, 2013.

  Source: Congressional Record, July 24, 2013, H5023–H5027.

  Hero or Villain?

  Persecuting a Defender

  of Human Rights v. Prosecuting a

  Criminal Suspect

  5

  Edward Snowden,

  Statement at the Moscow Airport

  When the first stories about NSA activities appeared from June 5 to 8, 2013, the world did not know who provided the documents and information to journalists. Snowden, who had been working as a private contractor for the NSA in Hawaii, revealed himself as the source on June 9, 2013, from Hong Kong, where he had flown to avoid U.S. law enforcement. Once he was identified, arguments about whether Snowden was a hero or traitor began, focusing attention on his background and motivations for leaking classified documents and for leaving the United States. Snowden began explaining his actions in interviews in Hong Kong with the Guardian and the South China Morning Post. William Scheuerman (chapter 5) and others have identified Snowden’s statement at the Moscow airport in July 2013 as important for understanding what he did and why he did it. When he made this statement, Snowden was not sure where he would get asylum from the persecution he feared from the U.S. government for his defense of the Constitution and international law. Snowden eventually accepted temporary asylum in Russia in August 2013 and a three-year residency in Russia when this asylum ended.

  Hello. My name is Ed Snowden. A little over one month ago, I had family, a home in paradise, and I lived in great comfort. I also had the capability without any warrant to search for, seize, and read your communications. Anyone’s communications at any time. That is the power to change people’s fates.

  It is also a serious violation of the law. The 4th and 5th Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance. While the US Constitution marks these programs as illegal, my government argues that secret court rulings, which the world is not permitted to see, somehow legitimize an illegal affair. These rulings simply corrupt the most basic notion of justice—that it must be seen to be done. The immoral cannot be made moral through the use of secret law.

  I believe in the principle declared at [the] Nuremberg [war crimes tribunal] in 1945: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

  Accordingly, I did what I believed right and began a campaign to correct this wrongdoing. I did not seek to enrich myself. I did not seek to sell US secrets. I did not partner with any foreign government to guarantee my safety. Instead, I took what I knew to the public, so what affects all of us can be discussed by all of us in the light of day, and I asked the world for justice.

  That moral decision to tell the public about spying that affects all of us has been costly, but it was the right thing to do and I have no regrets.

  Since that time, the government and intelligence services of the United States of America have attempted to make an example of me, a warning to all others who might speak out as I have. I have been made stateless and hounded for my act of political expression. The United States Government has placed me on no-fly lists. It demanded Hong Kong return me outside of the framework of its laws, in direct violation of the principle of non-refoulement—the Law of Nations. It has threatened with sanctions countries who would stand up for my human rights and the UN asylum system. It has even taken the unprecedented step of ordering military allies to ground a Latin American president’s plane in search for a political refugee. These dangerous escalations represent a threat not just to the dignity of Latin America, but to the basic rights shared by every person, every nation, to live free from persecution, and to seek and enjoy asylum.

  Yet even in the face of this historically disproportionate aggression, countries around the world have offered support and asylum. These nations, including Russia, Venezuela, Bolivia, Nicaragua, and Ecuador have my gratitude and respect for being the first to stand against human rights violations carried out by the powerful rather than the powerless. By refusing to compromise their principles in the face of intimidation, they have earned the respect of the world. It is my intention to travel to each of these countries to extend my personal thanks to their people and leaders.

  I announce today my formal acceptance of all offers of support or asylum I have been extended and all others that may be offered in the future. With, for example, the grant of asylum provided by Venezuela’s President Maduro, my asylee status is now formal, and no state has a basis by which to limit or interfere with my right to enjoy that asylum. As we have seen, however, some governments in Western European and North American states have demonstrated a willingness to act outside the law, and this behavior persists today. This unlawful threat makes it impossible for me to travel to Latin America and enjoy the asylum granted there in accordance with our shared rights.

  This willingness by powerful states to act extra-legally represents a threat to all of us, and must not be allowed to succeed. Accordingly, I ask for your assistance in requesting guarantees of safe passage from the relevant nations in securing my travel to Latin America, as well as requesting asylum in Russia until such time as these states accede to law and my legal travel is permitted. I will be submitting my request to Russia today, and hope it will be accepted favorably.

  . . .

  Edward Snowden, Statement to Human Rights Groups at Moscow’s Sheremetyevo Airport, July 12, 2013.

  Source: Wikileaks, https://wikileaks.org/Statement-by-Edward-Snowden-to.html.

  6

  Attorney General Eric Holder,

  Letter to the Russian Minister of Justice

  On July 23, 2013, Attorney General Eric Holder sent a letter to his Russian counterpart explaining the U.S. government’s position regarding Snowden; rejecting Snowden’s claim of stateless, refugee, or asylee status; and offering assurances about how the U.S. government would treat Snowden in a criminal trial. The United States and Russia have no extradition treaty, so Russia had no international legal obligation to process U.S. requests for Snowden to be returned to the United States. Holder’s letter emphasizes the criminal nature of Snowden’s actions, including violations of the Espionage Act, as well as the consti
tutional rights and legal protections he would receive in the U.S. criminal justice system. Much to the chagrin of U.S. officials, Russia refused to return Snowden and instead offered him temporary asylum—actions which contributed to worsening relations between the two countries.

  Attorney General Eric H. Holder Jr., Letter to Alexander Konovalov, Minister of Justice, Russian Federation, July 23, 2013.

  Source: Politico, http://images.politico.com/global/2013/07/26/attorney_genral_letter_to_russian_justice_minister.pdf.

  Rubber Stamp or Robust Tribunal?

  The Foreign Intelligence Surveillance Court

  7

  FISC Order on the

  Telephone Metadata Program, 2009

  Controversies stirred up by the leaks of the telephone metadata and Section 702 programs included debates about the Foreign Intelligence Surveillance Court, a court unknown to most people and opaque even to those who study U.S. national security law. Congress established the FISC and the Foreign Intelligence Surveillance Court of Review in 1978 when it enacted FISA, but this secret court did not draw much attention until after 9/11. The FISCR heard its first appeal of a FISC decision in 2002 and published redacted, unclassified versions of decisions in 2002 and 2008. In the wake of Snowden’s disclosures about the telephone metadata and Section 702 programs, critics called the FISC a “rubber stamp”—a charge amplified by citing the FISC’s approval of almost every FISA application it reviewed. As seen in Robert Litt’s speech (Document 3), supporters argued that the FISC is a serious court that provides robust oversight. The U.S. government released the next document in September 2013 to counter the “rubber stamp” accusation. In this 2009 decision, the FISC suspends the NSA’s access to telephone metadata because the U.S. government violated FISC orders and made misrepresentations to the FISC. The U.S. government also declassified a 2011 decision (not included here) in which the FISC criticized the NSA for misrepresenting aspects of “upstream” surveillance conducted under Section 702 and held that NSA’s targeting and minimization procedures for such surveillance did not comply with the Fourth Amendment. The seriousness of the FISC’s analyses and decisions in these cases did not fit the “rubber stamp” critique. Critics, however, emphasized the NSA’s violations and misrepresentations as evidence that the FISC process needed major reform.