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[DECEMBER DRAFT--- 287 pages]
THE SNOWDEN AFFAIR
A Spy Story in Six Parts
By Edward Jay Epstein
CONTENTS
PROLOGUE
On the Snowden Trail: Hong Kong 2014
PART ONE
The Intelligence Crisis
Chapter One The Great Divide
Chapter Two The Crime Scene Investigation
PART TWO
Snowden’s Arc
Chapter Three Tinker
Chapter Four Secret Agent
Chapter Five Contractor
Chapter Six Thief
Chapter Seven Crossing the Rubicon
Chapter Eight Hacktavist
Chapter Nine String-Puller
Chapter Ten Raider of the Inner Sanctum
Chapter Eleven Escape Artist
Chapter Twelve Whistle Blower
Chapter Thirteen Enter Assange
Chapter Fourteen Fugitive
PART THREE
The Counterintelligence Conundrum
Chapter Fifteen Did Snowden Act Alone
Chapter Sixteen The Question of When
Chapter Seventeen The Keys to the Kingdom Are Missing
Chapter Eighteen The Unheeded Warning
PART FOUR
The Game of Nation
Chapter Nineteen The Rise of the NSA
Chapter Twenty Back Door In
Chapter Twenty-One The Russians Are Coming
Chapter Twenty-Two The Chinese Puzzle
Chapter Twenty-Three The Pawn in the Game
PART FIVE
WALKING THE CAT BACK
Chapter Twenty-Four Dinner with Oliver Stone
Chapter Twenty-Five Vanishing Act
Chapter Twenty-Six through the Looking Glass
Chapter Twenty-Seven the Handler
PART SIX
CONCLUSIONS
Chapter Twenty-Eight Snowden’s Choices
Chapter Twenty-Nine The Whistle Blower Who Became an Espionage Source
EPILOGUE
THE SNOWDEN EFFECT
Chapter Thirty The ‘War on Terrorism’ after Snowden
Chapter Thirty-one America after Snowden: The Good, the Bad and the Ugly
Appendix A the Spies in this Book [TK]
End Notes
Bibiography [TK]
Chronology 1: Snowden Thriller:
From Honolulu to Moscow in 82 Days.
April 8, 2013, Honolulu. Edward Snowden begins working as an infrastructure-analyst in training at the National Threat Operations Center for outside contractor Booz Allen Hamilton.
June 5, 2013, London The Guardian publishes a classified document revealing that the National Security Agency has secretly been gathering the telephone billing records of millions of American. The Washington Post then publishing other secret documents revealing that the NSA has been intercepting data from the Internet.
June 9, 2013, Hong Kong. In a 12-minute long video posted on the website of the Guardian, Edward Snowden reveals himself as the source for the document published by the Guardian and the Washington Post
June 11 Hong Kong. Sarah Harrison arrives in Hong Kong to work behind-the-scenes to assist Snowden.
June 14, 2013, Washington D.C. Federal prosecutors in the Eastern District of Virginia, file a three-count criminal complaint against Snowden charging him with theft of government documents, unauthorized communication of national defense information and the willful communication of classified communications intelligence information to an unauthorized person.
June 23, 2013, Moscow. Snowden arrived from Hong Kong at Sheremetyevo International Airport.
PROLOGUE
On The Snowden Trail: Hong Kong 2014
The National Security Agency, or, as it now commonly called, the NSA, was created on October 24, 1952, in such a tight cocoon of secrecy that even the Presidential order creating it was classified “Top Secret.” When journalists asked questions about this new agency, Washington officials jokingly told them that the initials NSA stood for “No Such Agency.” The reason for this extraordinary stealth is that the NSA is involved in a very sensitive enterprise. Its job is to intercept, decode and analyze foreign electronic communications transmitted around the globe over from copper wires, fiber optic cable, satellite, microwave relays, cell phone towers, wireless transmissions and the Internet for intelligence purposes. In intelligence jargon, its product is called COMINT. This form of intelligence-gathering is particularly effective when the NSA’s targets are unaware of the state-of-the-art tools the NSA uses to break into their computers and telecommunications and decipher their enciphered messages.
In the first week of June in 2013, the NSA learned that a huge number of its most secret files had been stolen. The suspect was Edward Snowden, a 29 year old civilian analyst at the NSA’s regional base in Oahu, Hawaii, who had fled to Hong Kong. The stolen documents revealed, among other things, the secret tools and capabilities that the NSA employed to do its job. According to a three-count criminal complaint filed by Federal prosecutors in the Eastern District of Virginia, Snowden had stolen government documents and violated the Espionage Act by the unauthorized and willful communication of national defense information to an unauthorized person.
This was not a who-dunn-it mystery. On June 9th, 2013, in an extraordinary 12-minute video made in a cramped hotel room in Hong Kong, Snowden identified himself as the person who had taken the NSA documents. Watching the video, the world saw a shy, awkward and sympathetic-looking, man wearing a rumpled shirt, rimless glasses and a computer geek-style haircut, passionately speaking out against the NSA’s violations of the law and, in a shaky voice, expressing his willingness to expose them.
Snowden had an innocent, idealistic, principled look about him, and the world was ready to congratulate him for revealing the NSA's illegal collection of data inside the United States. But in fact, he stole a great deal more than documents relating to domestic surveillance. He had also stolen secret documents from the NSA revealing the sources and methods it employed in its monitoring of foreign adversaries.
What made this theft even more extraordinary was that he got away with it. By the time it had been discovered in the first week of June 2013, it was not possible for the FBI, the Grand Jury or any other US agency to question him because he had fled the country. He went first to Hong Kong. Although it is economically autonomous, the city of 7.2 million is actually a special administrative zone of China, whose national security apparatus is ultimately controlled by Beijing. Making the possibility of questioning him even more remote, he next went to Russia, a country which has no extradition treaty with the United States. And Russia granted him asylum. His escape left in its wake an incredibly-important unsolved mystery: how did a young analyst at the NSA succeeded in penetrating all the layers of NSA security to pull off the largest theft of secret documents in the history of American intelligence? Did he act alone? What happened to documents? Was his arrival in Russia part of the plan?
As I had written several books on the vulnerability of intelligence services, this was a mystery-- a "how-dunnit" if you like-- that immediately intrigued me. After all, even if the perpetrator had acted for the most salutary of reasons, the unauthorized transfer of state secrets to another country is, by any definition, a form of espionage.
I decided to begin my investigation of this case in Hong Kong because it was the place to which Snowden first fled after leaving Hawaii. Snowden had planned the trip for at least 4 weeks, according to the travel plan he had filed at the NSA, I assumed he had a good reason for going first to Hong Kong. But when I spoke to my sources in the intelligence community, they could not explain Snowden’s choice of this semi-autonomous zone in China as his initial destination. It would not protect him from the reach of US law since Hong Kong had an active extradition treaty with the United States. Just a few months earlier, Hong Kong had made headlines by extraditing Trent Martin, a fugitive wanted in America for insider-trading, who was arrested in Hong Kong following an American request to detain him. Martin was then sent back to the United States to stand trial.
Nor was Hong Kong particularly convenient to Hawaii. There were no non-stop flights to it from Honolulu. Snowden’s flight took 8 hours and ten minutes just to Narita airport, Japan, where he had to change planes. After a three hour wait at the airport, it took him five more hours to fly to Hong Kong. Moreover, at the time he departed Honolulu, Snowden had not yet arranged for any journalists to meet him in Hong Kong and, as far as US intelligence could determine, he had no known appointments there. Even so, Snowden carried the digital copies he had made of the top-secret NSA documents to Hong Kong. General Michael Hayden, who served both as the head of the NSA and the CIA, told me. “It’s very mysterious why Snowden chose Hong Kong.” Whatever reason he had for flying to Hong Kong, we can assume it was compelling enough for him to take the risk that he would be arrested there after US authorities discovered the theft and invoked the detention provision of its extradition treaty with Hong Kong. It was possible that Snowden travelled there to see someone other than a journalist. But who?
Using my frequent travel miles, I bought a ticket on Japan Air Lines to Hong Kong. The route, like that of Snowden’s route the previous year, had a stop-over in Narita Airport in Japan (where, according to an intelligence source, Snowden was caught on the CCTV cameras waiting in the transit lounge for his connection to the four and one half flight to Hong Kong).
I arrived in Hong Kong on May 20th 2014– the same day that Snowden had arrived there the previous year. I checked into the five-star Mira Hotel. It was in the Tsim Sha Tsui shopping district of Kowloon, a 10-minute ferry ride away from Hong Kong island, where most of the foreign consulates are located.
I chose the Mira because it was the hotel in which Snowden stayed and made the celebrated video admitting his role in taking the NSA documents. I asked at the front desk for room 1014, the same one that Snowden had occupied in 2013. Snowden had told the journalists from the Guardian that that he had been at Mira Hotel since he first arrived in Hong Kong on May 20th until he left on June 10th. My motive in taking the room during that period was not journalistic nostalgia; I wanted access to the hotel’s service and security personnel who may have had contact with Snowden a year earlier. Unfortunately, that room was occupied. Even so, I was given a nearby room that served my purpose. The rate was $330 a day with taxes, although I received a journalist’s discount of 30 percent.
My first surprise was that Snowden had not arrived at the Mira until 11 days after he arrived in Hong Kong. He told the Guardian reporters that he hid out at the Mira hotel since his arrival because he feared that he might be captured by the CIA. But, as I learned from the hotel staff, Snowden had actually registered there under his real name and used his own passport and credit card to secure the room. Even more surprising was the date he checked into the Mira Hotel. It was not May 20th but June 1, 2013. Since he checked out on June 10, 2013, he was there for only nine days.
The question that could not be answered by the registry of the Mira Hotel was: where was Snowden staying for the eleven days between from May 20th to June 1? Wherever he was, he apparently considered himself safe enough to take another irrevocable step in his defection. He sent journalist Glenn Greenwald of the Guardian a “welcome package,” as he called it, of 20 top-secret NSA documents on May 25, 2013. He had now not only downloaded documents but, in a violation of his oath, he provided them to an unauthorized party. He also in Hong Kong, for the first time, directly contacted via email Barton Gellman of the Washington Post. Indeed, it was during these first 11 days during which he was staying someplace other than the place he claimed to be staying that he made almost all the arrangements for his journalistic event. He was also apparently in contact with at least one foreign mission during this period, according to what he written to Gellman on May 25th. In that email concerning when and how his story was to be published by the Washington Post, Snowden even asked Gellman to include in it some text that would help him with this mission. But which country was he approaching? Clearly his whereabouts during these missing 11 days was a gap that needed to be filled in. It could shed light on why he came to Hong Kong.
I next called Keith Bradsher, a prize-winning journalist who had been the New York Times bureau chief in Hong Kong in 2013, who had written a well-researched report about Snowden’s arrival in Hong Kong in 2013.. He proposed we meet at the Foreign Correspondent’s Club on top of Ice House Street in central Hong Kong, a venue, I recalled, reminiscent of where John LeCarre had set the opening chapter of his spy novel The Honourable Schoolboy. When we spoke later, Bradsher told me that he knew Albert Ho, who had been retained as Snowden’s lawyer, for more than a decade, and interviewed him many times as he was a leader of a political movement in Hong Kong. Bradsher said that a few days after Snowden had revealed himself on June 9th, 2013, he met with Ho and questioned him on the very question that intrigued me about Snowden’s unknown whereabouts. Ho told Bradsher that all of Snowden’s logistics had been arranged for him by an intermediary, who Ho called a “carer.” Ho further said that Snowden had been in contact with the “carer” prior to his arrival in Hong Kong on May 20th. According to Ho, it was this person who had arranged accommodations for Snowden on his arrival—and afterwards. If so, it seemed plausible to me that this person might be able to shed light on whom, if anyone, Snowden saw in his first ii days in Hong Kong. Of course, this person may have been unaware of the reasons for Snowden’s escape to Hong Kong when he made the arrangements for him but he was the best lead I had to learning why Snowden had come to Hong Kong. But who was the “carer?” Bradsher told me that he pressed Ho for details about this mystery person over the course of several meeting but Ho would not identify him beyond saying, that he was a “well-connected “resident” of Hong Kong.
I next called Ho’s law office in Hong Kong. But Ho politely declined to be interviewed by me, saying he had said all he was going to say about the Snowden case. I next made an appointment with Robert Tibbo, a Canadian-born barrister, specializing in civil liberties cases, who had worked closely with Ho on the Snowden case. He immediately agreed to see me.
I met Tibbo in the tea room at the Mandarin Oriental hotel on Hong Kong Island, where I moved to from the Mira hotel. The Mandarin was also convenient to Tibbo’s office at the court.
Tibbo was a tall, round-faced man, with thinning hair, in his early fifties. He talked freely about his remarkable career. After earning a degree in chemical engineering from McGill University, and working in Asia as an engineer for a decade, he went to law school in New Zealand, and then became a barrister in Hong Kong specializing in cases involving the legal status of refugees. Over a leisurely tea, Tibbo made it clear to me that he had played a far more active role than Ho in the Snowden case, even personally escorting Snowden from the Mira Hotel on June 10th to a safe house. He did not dispute what Ho had told Bradsher, but said that he was himself bound by lawyer-client privilege which prevented him from providing me with any details that might reveal the identity of the person who had made arrangements for Snowden. When I asked the date that he was officially retained by Snowden, he said that Snowden had signed an agreement hiring Ho’s law firm as his legal adviser on June 10, 2013 (which was a matter of public record.) “I understand that,” I said, “but I am inquiring about something that had happened before you became his legal adviser.” He shook his head, as if getting rid of a pesky fly, and said that his oath precluded him saying anything at all that might do damage to the credibility of his client. “Not even where he was staying in May in Hong Kong,” I persisted. He leaned forward and, after a brief hesitation, said, jokingly I assumed that he would not divulge that information “even if you held a gun to my head.” We met two more times but, true to his word, Tibbo would not say if he even knew the identity of the “carer.”
Meanwhile, Joyce Xu, a very resourceful Chinese journalist who was assisting me in Hong Kong, had filed the equivalent of a Freedom of Information request with the Hong Kong Security Bureau asking for information about Snowden’s movements in May. Thomas Ng, the Secretary for Security, turned down the request, adding that Hong Kong authorities do not keep records of hotel registrations. So I ran into a dead end on the issue of Snowden's “carer” and his whereabouts for those eleven crucial days with the Hong Kong authorities.
At this point, I had some much-needed help from an old friend on the White House staff. Before I had left New York, I asked him if he could find someone at the consulate in Hong Kong who might brief me on the Snowden case. I didn’t hear from him until just a few days before I was due to return to New York. He had managed to put me in touch with a former employee of the consulate, who he said was “fully informed” about the efforts of the US mission to locate Snowden in Hong Kong. This person was still living in Hong Kong and he agreed to meet with me on condition that I did not mention either his name or his position in the US mission in Hong Kong. The venue was the terrace lounge of the American Club in Exchange Square in central Hong Kong, a posh club mainly for expatriate Americans. It was on the 48th floor with a spectacular view of Victoria Harbor. Once there, I had no problem finding my source. He was, as he had described himself, a large man with short-cropped brown hair wearing a brightly-striped tie. He was sitting alone at a discreet table in the corner. I introduced myself and gave him a copy of my latest book, The Annals of Unsolved Crime.
After ordering drinks, he told me in a soft voice about the American reaction to Snowden’s revelations in Hong Kong. “All hell broke loose,” he said, describing the atmosphere at the US mission after Snowden’s video was posted on the Guardian’s website on June 9th, 2013. To break the ice, I went over some of the assertions Snowden had made concerning the US consulate in that extraordinary video. For example, Snowden had said that he could be seized at any moment by a CIA rendition team based at the US consulate “just down the road” from the Mira Hotel. “Was that true,” I asked? He rolled his eyes, and said, “Snowden has a pretty wild imagination. For one thing, the US consulate is not down the road from the Mira in Kowloon, it is here on Hong Kong Island. And there was no CIA rendition team in Hong Kong.”
My next question concerned a second period during which Snowden's whereabouts are unknown—the period between the time he left the Mira Hotel on June 10, 2013 and the day he left Hong Kong for Russia on June 23, 2013. When I asked my consulate source whether the US mission took any action to track Snowden during these 13 days, he explained that the FBI had a contingent of “legal attaches” based at the consulate to pursue, among other things, video pirates. In addition, the CIA and the Defense Intelligence Agency had a handful of “China-watchers” in Hong Kong. This group constituted the intelligence “mission,” as he referred to it. After Snowden outed himself on the Internet, the mission began tracking Snowden’s movements. Since Snowden, his lawyers and the journalists in his entourage frequently used their cell phones to text one another, it was fairly easy for the mission to follow Snowden’s trail after he left the Mira hotel. Presumably, the Hong Kong Police also knew where he was during this period. My source further suspected that the massive Chinese intelligence contingent in Hong Kong also knew, since it had close relations with the Hong Kong police. If so, Snowden’s whereabouts as he moved every few days from apartment to apartment was no secret anyone but the public from June 10th to June 23rd. “Of course we knew,” he said, adding that there were also photographs of Snowden entering the office building that housed the Russian consulate. I mentioned that there was a report in a Russian newspaper that Snowden had visited the Russian consulate in late June in connection with the flight he later took to Moscow. “All we know is he entered the building,” he answered, with a shrug. That visit did not come as a complete surprise to US intelligence. After Snowden left the Mira, his interactions with the Russian and Chinese intelligence services in Hong Kong also had been closely monitored by the “secret means,” as was subsequently confirmed to me a former top intelligence executive in Washington DC. All of Snowden’s stealth in exiting from the Mira hotel, which included wearing a baseball cap and dark glasses, was ineffective in hiding him from US intelligence and presumably other intelligence services seeking the treasure trove of documents he had taken from the NSA. Among other things, the Hong Kong lawyers moving him to a safe house were carrying easily traceable cell phones.
The mystery that most concerned me was, however, not where Snowden was housed in the interim between when he went public and when he went to Moscow. It was where, and in whose care, Snowden had been before, he had checked into the Mira hotel on June 1st. When I asked him about this period, he said that as far as he knew neither the FBI nor the Hong Kong police could find a trace of him during the period between May 20th, when he passed through Hong Kong customs, and June 1st, when he used his credit card and passport to check into the Mira hotel. They could not find any credit card charges, ATM withdrawals, telephone calls, hotel registrations, subway pass purchases or other clues to Snowden’s activities. As far as a paper trail was concerned, Snowden was a ghost during this period. Could an American just vanish in Hong Kong for eleven days, I asked”? “Apparently he did just that,” my source replied.
Snowden’s whereabouts during these 11 days was not a mystery I was going to solve on this first trip to Hong Kong. I needed to know more about Snowden’s activities before he flew to Hong Kong. After all, Snowden was not, as he himself pointed out from Moscow, an “angel descending from the heavens.” He had a past working for the US government that extended back seven years. During that period, he had been part of America’s secret intelligence regime, and held a clearance for Sensitive Compartmented Information, or SCI. Such SCI material is considered so sensitive that it must be handled within formal access control systems established by the Director of National Intelligence.
Nor did Snowden’s breach begin with him handing over classified documents to the Guardian reporters in Hong Kong in June 2013 or, for that matter, in the eleven days prior to his meeting with journalists in 2013. He had, as the NSA quickly determined begun illicitly copying documents in the late summer of 2012. Such an enterprise does not emerge from thin air. Even if he had managed to elude American intelligence from late May to early June 2013, he could not hide all the history that led to his decision to come to Hong Kong. There had to be an envelope of reality surrounding it, including Snowden’s motivation, associates, movements, finances, and his activities prior to his fleeing to Hong Kong. What was missing was not just Snowden’s first 11 days in Hong Kong but the entire context of the alleged crime. I now needed to fill in that envelope of reality in America. I left Hong Kong for New York on June 2, 2014 two days after my meeting with the former official of the consulate.
PART ONE
THE INTELLIGENCE CRISIS
CHAPTER ONE
The Great Divide
“What you’ve seen so far is just the tip of the iceberg.”
-- retired Admiral Michael McConnell, vice chairman of Booz Allen Hamilton
On June 9, 2013, the Guardian, the British newspaper known for the quality and gravity of its reporting posted Snowden’s 12-minute video on its website. In it, Snowden identified himself as an infrastructure analyst at a regional base of National Security Agency that was located in Oahu, Hawaii. He revealed in a calm, unemotional voice that he had been the source for the stories in both the Guardian and the Washington Post. He said that he had supplied the secret, classified documents that the two newspapers had used in their scoops about domestic surveillance being conducted by the NSA, America’s enormous electronic surveillance agency. These sensational revelations had been, literally, the talk of the world, and now, in another major news event, the boyish-looking Snowden revealed his responsibility for what would turn out to be the largest theft of top-secret documents in the history of U.S. intelligence.
In the video, Snowden was questioned by Glenn Greenwald, an American journalist living in Brazil who had broken the NSA story in the Guardian. What was his motive? Greenwald asked. Why did he do it? Snowden replied that he had become horrified by the NSA’s secret operations which, to him, represented a kind of distillation of the excesses of the American national security state, and he therefore made it his mission to blow the whistle. He believed that the public needed to be informed of the existence of a vast, secret surveillance operation directed against tens of millions of Americans that flagrantly violated US laws and was a grave threat to their privacy and their freedoms. Within hours of the release of that video on the Guardian website, Snowden was one of the most famous people in the world, celebrated by his supporters as a courageous whistle-blower.
The Snowden interview in the video subsequently was expanded by the documentary filmmaker Laura Poitras into the two-hour movie CitizenFour, which won the 2015 academy-award for the best documentary. Poitras said in accepting her Oscar in the Academy Awards Theater in Hollywood on February 22nd 2015, that Snowden acted as a whistle-blower not only to “expose a threat to our privacy but to our democracy itself.” She received a standing ovation. The film convincingly depicts Snowden as an altruistic young man who is willing to risk his own personal freedom and face years of imprisonment for the sake of others. Adding to the drama, almost all the footage of Snowden in the film is from interviews with him in the confines of Snowden’s small room at the Mira hotel from June 3 to June 9th, 2013, as the event was actually unfolding. Snowden, speaking for the camera, describes himself as a civilian contractor for the National Security Agency. He took full responsibility for the theft of classified documents, saying that he had acted alone. He said that he had been forced to take these documents to expose a crime that threatened the freedom of Americans: the US government’s illegal surveillance of US citizens. He said that he had a duty to bring this secret activity to the attention of the American people. “Sitting on his unmade bed—white sheets and covers, white headboard, white bathrobe, white skin—Snowden seems like a figure in some obscure ritual, being readied for sacrifice,” George Packer wrote about the film in a widely-read article in The New Yorker. He said repeatedly he was willing to make the ultimate sacrifice, by allowing himself to go to prison, so that Americans could live in freedom. A large part of the public, who viewed this powerful film, including many of my colleagues in journalism whose writing I greatly respect, came to accept Snowden’s whistle-blowing narrative.
This powerful narrative, as lucidly articulated by Poitras, Greenwald and other Snowden supporters, described the NSA activities exposed by Snowden as part of a vast criminal conspiracy involving, among others, President Obama, James Clapper, the Director of National Intelligence and both Democrat and Republican members of the Congressional oversight committees. It further derided claims that there was evidence that Snowden’s theft of NSA secrets went beyond exposing government misdeeds as part of an orchestrated effort to demonize Snowden. The purpose of this demonization was to divert away from the government’s crimes. For example, this narrative asserted as if it was established fact, that US government officials had deliberately “trapped” Snowden in Russia. According to Snowden, the purpose of this government ploy was to “demonize” him.
To be sure, it is not unprecedented for the government to release defamatory information about individuals who have embarrassed US intelligence by defecting. When two NSA analysts, William Martin and Bernon Mitchell, defected to Russia in the 1960s and accused the NSA of violating international law after arriving in Moscow, U.S. government officials responded by putting out the story that they were homosexual lovers, which was both untrue and irrelevant to the intelligence secrets that they compromised. So it is certainly possible that the government put out information to intentionally defame Snowden. Secretary of State John Kerry, after all, characterized him as a coward who should “man up” by returning to the United States.
While one can discount such characterizations against him by government officials as demonization, as I do, one cannot as easily dismiss the independent evidence that undermines Snowden assertion that his sole motive was blowing the whistle on illicit surveillance in the United States. For example, by the Lawfare Institute in cooperation with The Brookings Institution in 2014 did an independent analysis of all the published documents that Snowden provided to the media. It concluded that, with some notable exceptions, such as the two documents initially published by the Guardian and Washington Post, the now famous FISA warrant and the PRISM slides, few of the other documents that Snowden had given Poitras and Greenwald for publication had little to do with either domestic surveillance or the infringements on the privacy of Americans. By the Lawfare Institute’s count, 32 of Snowden’s leaks to these journalists concerned the NSA’s overseas sources and method, nine identified overseas locations of the NSA’s intelligence bases, 25 of them revealed the identities of foreign officials of interest to US intelligence agencies, 14 of them disclosed information about Internet companies legally cooperating with the NSA, and 19 of them concerned technology products that the NSA had been using or researching. In addition, a considerable number of the published documents did not even belong to the NSA but were copies of reports sent to the NSA by its allies, including the British, Australian, Canadian, French, Norwegian and Israeli intelligence services. For example, he provided journalists with secret documents from the British cyber service GCHQ describing its own plans to obtain a legal warrant to penetrate the Russian computer security firm Kaspersky to expand its “computer network exploitation capability." All the GCHQ was revealing in this document was its own capabilities to monitor a Russian target of interest to it. While the release of these foreign documents may have embarrassed foreign allies of the United States, they exposed no violations of US law by the NSA. It was a legitimate part of the NSA’s job to share information with its allies. This raises the question: what constitutes whistle-blowing?
To the general public no doubt, a whistle-blower is simply a person who exposes government misdeeds from inside that government. But in the eyes of the law someone who discloses classified information to an unauthorized person, even as an act of personal conscience, is not exempt from punitive consequences of his act. Indeed, if a person deliberately reveals secret US operations, especially ones that compromise the sources and methods of US intelligence services, he or she may run afoul of American espionage laws.
In the past when government employees have disclosed classified information to journalist to redress perceived government misconduct, they almost always received prison sentences, Just during Obama’s presidency, there were six government employees who, as a matter of personal conscience, shared classified information they obtained from the FBI, CIA, State Department and US Army with journalists. They were Shamai Leibowitz in 2010, Chelsea Manning in 2013, John Kiriakou in 2013, Donald Sachtleben in 2013, Stephen Kim in 2014 and Jeffrey Sterling in 2014. Like Snowden, they claimed to be whistle-blowers informing the public of abuses of the government. But since they disclosed classified documents, they were dealt with as law-breakers. All six men were indicted, tried, convicted and received prison sentences. Sterling, a CIA officer who allegedly turned over a document to James Risen, a Pulitzer Prize winning reporter for the New York Times, was sentenced to 42 months, for example. The most severe sentence was meted out to Private Bradley/Chelsea Manning, who an Army court sentenced to 35 years in a military stockade.
The prison time that others received did not go unnoticed by Snowden. He had been following the Manning case since 2012. In fact, he posted about it shortly before he began stealing far more damaging documents than had Manning. He therefore would have been aware that by revealing state secrets that he had sworn to protect, he would be risking imprisonment unless, unlike Manning, he fled the country. His motives, no matter how noble they might be, would not spare him, anymore than it spared the other six, from determined federal prosecution.
To be sure, the view of those on the Snowden side of the divide is not grounded in legal definitions, but in a broader notion of morality. Snowden‘s supporters do not accept that the law should be applied in this fashion to Snowden. They argue that Snowden had a moral imperative to act, even if it meant breaking the law. They fully accepted his view that he had a higher duty to protect citizens of all countries in the world from, as he put it, “secret pervasive surveillance.” That higher duty transcended him any narrower legal definitions of law-breaking. For example, Ben Wizner, a lawyer from the American Civil Liberties Union who represented Snowden since November 2013, argues that Snowden’s taking of classified documents was as “act of conscience” that overrode any legal constraints because it “revitalized democratic oversight in the U.S.” And, without question, Snowden’s theft caused a much needed debate on govern surveillance.
In this ends- justify-the-means view, any person with access to government secrets can authorize himself or herself to reveal those secrets to the world if it serves the public good and because doing so would be an “act of conscience,” he or she should be immune from legal prosecution.
So for Snowden’s supporters, his “act of conscience” justifies his claim to being a whistle-blower even though the preponderance of the secrets disclosed by Snowden had to do with the NSA’s authorized activity of using its multi-billion dollar global arrays of sensors to intercept data in foreign countries and share it with some 30 allied intelligence services, as it did in 2013. Snowden, for example, took the NSA to task for its sharing information with Israel. In an interview in Moscow with James Bamford for Wired Magazine in August 2014, Snowden describes supplying intelligence to Israel as “One of the biggest abuses we’ve seen.” He was referring to the NSA providing the Israeli Cyber Service, known as Unit 8200, with data concerning Arab communications in Gaza, the West Bank, and Lebanon. But providing Israel with such data, as well as providing it with lethal weaponry, was not some rogue operation. It was part of a policy that had been approved by every American President—and every Congress—since 1948. Snowden had every right to disagree with this established US policy of aiding Israel with intelligence, but it is another matter to release secret documents to support his view. If the concept of whistle blowing is expanded to cover intelligence workers who steal secrets because they disagree with their government’s foreign policy of their government, it would also have to include many notorious spies, such as Kim Philby.
Snowden’s concept of whistle-blowing also applied to NSA’s spying on adversary nations. “We’ve crossed lines.” Snowden said in regard to China, “We’re hacking universities and hospitals and wholly civilian infrastructure.” The NSA’s operations against China were such “a real concern” for Snowden that he targeted lists of the NSA’s penetrations in China. This expansion of the whistle-blowing concept to adversaries was echoed by Russian President Vladimir Putin. He complimented Snowden for having “uncovered illegal acts by the United States around the globe,” Putin’s view implies a convenient global concept of whistle-blowing that justified breaking US laws.
Even so, this whistle-blower interpretation of Snowden’s act has had immense international resonance in the media. The Washington Post and Britain's Guardian, the newspapers that initially published the purloined documents, won the 2014 Pulitzer Prize. The journalists, who assisted Snowden in this enterprise, including Greenwald and Poitras, were awarded the 2014 Polk Award for national-security reporting. Former Congressman Ron Paul organized a clemency petition in February for Snowden, stating: "Thanks to one man's courageous actions, Americans know about the truly egregious ways their government is spying on them," and his son, Senator Rand Paul, who was a candidate for the Republican Presidential nomination in 2016, calling for a Presidential pardon for Snowden.
Senator Paul’s concern fitted with the growing public apprehension over increasing intrusion on its privacy. Snowden was correct, in my opinion, in describing the threat of a surveillance state and the loss of privacy is certainly a legitimate public concern. “We actually buy cell phones that are the equivalent of a network microphone that we carry around in our pockets voluntarily,” he pointed out from Moscow.
Snowden is correct that the technology involved in the electronic equipment we all use in the 21st century has made mass surveillance part of our daily life. There can be little doubt that our privacy has been largely eroded, if not entirely negated, by the widespread use of cell phones, credit cards, social media and the search engines of the Internet. When we use smart phones, as most Americans do today, our location is relayed to our telephone service provider every three seconds. The phone companies collect and archive our phone usage “metadata,” which includes whom we called and how long we spoke. When we use Google to search for anyone or anything on the Internet, that activity is captured by Google, a company whose profits mainly come from making available to advertisers the results of its surveillance and collection of its users’ searches. When we use Gmail, the Google’s email service used by nearly one-billion senders and recipients, we agree to allow Google to read the actual contents of our correspondence to find keywords in them of interest to advertisers. When we use a credit card, the credit card company also retains data about what we buy and where we go. When we travel in automobiles equipped with GPS, every turn and stop is tracked and recorded. And when we are in public places with CCTV cameras, our image is recorded and archived. When we use Facebook, Twitter, and other so-called social media, as over two billion people do today, we allow these companies to collect, retain and exploit its surveillance of our movements, associations with other people, and stated preferences. When we use Amazon and other on-line stores, we allow them to track and archive a great deal of our commercial activity. For Internet companies, such as Facebook, Twitter, Yahoo and Google, collecting private data on hundreds of millions of their members provide them with vast searchable data bases that they can sell to advertisers and other search parties. The exploitation of these data bases is a fundamental aspect of their business plans. Without such surveillance of their users, social media companies would not be able to turn a profit. Indeed, they may be more aptly called surveillance media rather than social media. For those of us who use them to post pictures and communicate, any notion of personal privacy is largely illusionary.
To be sure, there is a distinction to made between the surveillance of our activities to which we voluntarily agree in exchange for the benefits and conveniences that we gain from social media, search engines, and other Internet companies, and the surveillance done by government to which we do not voluntarily invite-- or want. We willingly waive our privacy for corporations but not for governments. What the public might not fully realize, however, is that all the personal information in data bases of private companies can be accessed by the government if it obtains a court order or search warrant. As Snowden himself pointed out, “If Facebook is going to hand over all of your messages, all of your wall posts, all of your private photos, all of your private details from their server, the government has no need to intercept all of the communications that constitute those private records." These Internet companies, even if they are only interested in exploiting the data for its own profit, cannot refuse to share this information with the NSA, FBI and other agencies of the government if they have a court-ordered search warrant, Consequently, all the information these private corporations collect about us is legally available to any municipal, state and federal authority that obtains a warrant from a court. And such search warrants are routinely issued. That reality became evident to me in my investigation of the rape charges brought (and subsequently dropped) against Dominique Strauss- Kahn, the managing director of the International Monetary Fund, in 2011. Immediately after his arrest, Cyrus Vance Jr, the district attorney of New York county, obtained a warrant for Strauss-Kahn’s cell phone records, credit card records, hotel room electronic key records, emails, room service bills, and the CCTV videos of his activities (some of which I published in my article about the case in the New York Review of Books). If anyone doubts the pervasiveness of government data collection, consider a little known government agency called the “Consumer Financial Protection Bureau.” Created in 2010 by Congress, it mines data on a monthly basis from some 600 million personal credit card accounts, targeting about 95 percent of the credit cards users in the United States. In additions, through 11 other data mining programs, it gathers data on everything from private home mortgages and student loans to credit scores and overdrafts in personal banks accounts. This ubiquitous surveillance of virtually every non-cash transaction came about because of advances in computer technology which made it economically feasible to mine data.
Nor is the concern raised by Snowden about NSA domestic surveillance misplaced. Ever since the 9-11 attack the NSA has increasingly played a role in this surveillance state not by own choice but because Congress mandated it. In 2001, it empowered the NSA to obtain and archive data on American citizens. Accordingly, the NSA obtained the billing records of customers from phone and Internet companies and archived these records. The operation was intended to build a searchable data base for the government that could be used to trace the history of the telephone and Internet activities in the United States of FBI-designated foreign terrorists and spies. The government also kept secret these anti-terrorist programs from the public because it did not want the foreign suspects to realize their communications in America were being monitored. The public only learned that the phone company was turning over its billing records on June 5, 2013, when Snowden disclosed it to the Guardian and Washington Post. The documents he provided the journalists showed that the NSA had been obtaining phone records every three months that had been collected by Verizon. While this revelation may have shocked the American public, the NSA had not acted on its own. It had obtained a warrant issued by a secret court established by Congress in 1978 as part of the Foreign Intelligence Surveillance Act (FISA) for each request for records. Congress empowered the FISA court to hear cases and authorize search warrants in secret in cases involving national security. As its name implies, the FISA court was meant to deal with matters bearing on foreign intelligence activities in the United States. That restriction changed after the devastating terrorist attacks of September 11, 2001. A month after the attack, Congress expanded the purview of the FISA court by passing the USA Patriot Act (an acronym which stands for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”). Part of the Act, Section 215, euphemistically referred to as the "library records" provision, permitted the FISA court to issue warrants authorizing searches of records by the NSA and other federal agencies to investigate international terrorism or clandestine intelligence activities Through these FISA authorizations, the NSA could obtain "tangible things" such as "books, records, papers, documents, and other items." Under the interpretation of this section of the law by both the Bush and Obama administrations, the FISA court was enabled by Congress to issue warrants to telephone companies demanding that they turn over to the NSA the bulk billing records of all calls made in America.. The FISA court need only deem these records to be “relevant: to the FBI’s investigations of terrorists and spies. Essentially, this controversial interpretation of the word “relevant” in Section 215 by the FISA court was used by the NSA to create a searchable database of telephone billing records. Such a “haystack,” as the NSA called the national collection of billing records, could allow the FBI to instantly find missing “needles,” even if the connections were made years earlier. For example, if the FBI had a lead on a foreign suspect, it could search the data base for any telephone calls made by the foreign suspect to telephone numbers in America, and then who those people called. The FBI always had this power, if it obtained a warrant, but it did not have the records previously in a single data base. General Alexander believed such a “Haystack” database made sense. His approach was, ‘Let’s collect the whole haystack,’ ” according to one former senior U.S. intelligence official quoted by the Washington Post. According to its critics, including the ACLU, the results provided by this vast database did not justify its immense potential for abuse. In early May 2015, just three weeks before this part of the Patriot Act was set to expire, a three-judge panel of the Second U.S. Circuit Court of Appeals in New York, agreed with the ACLU position, overturning a lower court decision that it was legal. The panel found that the word “relevant” in the Act was not intended by Congress to justify the acquisition and storing of the bulk records of telephone companies. It declared that the government’s interpretation of Section 215 of The Patriot Act was incorrect. Soon afterwards Congress replaced the Patriot Act with the USA Freedom Act, which effectively transferred bulk storage of billing records from the NSA to the phone companies themselves. Despite the change in venue, the records of individuals were still not completely private. The databases held by phone companies could still be searched under the new law via a FISA warrant by the FBI.
The core of Snowden’s charge in the media was that the FISA court overreached its authority by issuing sweeping warrants that allowed the NSA to obtain data collected by private phone and Internet companies. It the initial story published in the Guardian on June 5, 2013, Snowden disclosed one such FISA warrant to support his charge. It was issued by Judge Roger Vinson of the FISA court on April 25, 2013 and ordered Verizon to turn over to the FBI all its billing records of landline customers for the next 90 days. The FBI presented this FISA authorization to the NSA, which acts as a service organization for the FBI and CIA in collecting communications data. The NSA, with the FISA warrant in hand, then obtained the Verizon billing records. Snowden also provided the Washington Post and Guardian with another secret document, which was actually a power point presentation on 20 slides by the NSA to other intelligence agencies. It described a program it was using for monitoring the Internet. Its code name was PRISM. It was authorized under Section 702 of the Foreign Intelligence Surveillance Act and was designed to collect messages sent over the Internet from foreigners. Since most of the Internet pipes that carried these messages ran through the United States, the NSA intercepted a large part of the data from Internet companies bas