Edward Snowden is back in the news. Oliver Stone’s sympathetic and conspiracy-heavy biopic landed in theaters this month. Meanwhile, a raft of Snowdenistas are leveraging the movie to demand that the President pardon the former National Security Agency contractor.
Human motivation is a complex thing, and good and evil compete within each of us. We all make trade offs. So there are many elements to what Snowden did.
To come to the lionization of the film or to the vindication of a pardon, however, requires suppressing several important elements of this episode while substantially inflating several others.
Snowden’s supporters, like Katrina Vanden Heuvel writing in the Washington Post, point out that he “risked his job, his prestige and his freedom to expose the NSA’s secret mass surveillance programs that trampled the privacy rights of Americans.”
The movie paints an NSA mindset of security uber allies—in Vanden Huevel’s words, “spying on the digital lives of hundreds of millions of innocent people, trampling their privacy with no prior review, reasonable suspicion or probable cause.”
It’s an “I gotta multiply-the-evil-in-order-to-justify-this-as good” approach, but rather than being the voracious, unconstrained agency portrayed in the film, NSA operations in real life are layered, lawyered, and cautious. Civil libertarian Geoffrey Stone, a member of the President’s NSA Review Group, testified that the agency operated “with a high degree of integrity and a deep commitment to the rule of law [with]…no evidence that the NSA had knowingly or intentionally engaged in unlawful or unauthorized activity.” Still, the movie and the movement need NSA to be an outsized bogeyman to make the plot work, and so they consistently portray it as so.
They also need Snowden to be an outsized hero. In the movie, his talents are such that he is personally sought after by the NSA Deputy Director for a difficult task. Chris Inglis, the DDIRNSA at the time, says that that never happened, and it is “preposterous on its face” to believe that it ever could.
I have been told that the movie shows a photo of Snowden and me (Another attempt to pump up his mojo?). Such an incident actually did happen—about a half dozen years AFTER I had left NSA. The occasion was a charity ball near Fort Meade where I was invited to speak. Young Mr. Snowden, not known to me at the time, was one of scores of NSA officers and contractors who kindly lined up for a photo op with a former director, hardly the stuff of professional credentialing.
Snowden also needs to be a bit of a white knight for all of this to work. Whatever one thinks of his macro issues (Vanden Heuvel summarizes it as he “was forced to break the law, but he did so responsibly and with great caution”), at the micro level, Snowden left quite a bit of wreckage. He lied to his supervisor, betrayed the trust of his office mates, and caused several of his coworkers to be fired for having shared accounts and passwords with him.
And, bureaucracies being bureaucracies, an inevitable aftermath of his actions was a system of invasive personnel monitoring that sometimes seems Stasi-like in its approach. The effects of such a regime are likely to linger, not least in driving away the very work force that American intelligence agencies need to recruit to be successful.
Snowden’s efforts also threaten to chill the rich culture of internal intelligence sharing that has animated and empowered the American intelligence community since 9-11. The Atlantic cogently observed that “data derives its value the same way it derives its vulnerability, through its utility and sharability.” Betrayed trust creates very long term effects, in government as well as in individuals.
Of course, the macro level claim of both the movie and the Snowdenistas is that all of this was justified by the violations of privacy that Snowden exposed, but even here, very little of what Snowden stole and then passed on to advocacy journalists had anything to do with the privacy of Americans. It did have a lot to do with how the United States and its closest allies collect legitimate foreign intelligence against legitimate foreign intelligence targets, a topic I cover in greater detail in a recent Op-Ed. What violation of American (or any other innocent’s) privacy was unearthed, for example, by telling the world that NSA and its British partner could intercept the satellite phone of the Russian President?
Snowden’s revelations prompted a lengthy debate over NSA surveillance that was lively but also—witness the Stone film and many of the free-Edward-Snowden Op-Eds—badly misinformed.
Admittedly, some government practices have been changed. U.S. intelligence will be more transparent, a good idea even if U.S. intelligence was already the most transparent in the world—pre-Snowden! There have been attempts to strengthen oversight through measures such as adding independent friends of the court (amici curiae) to surveillance court deliberations, a move that has gotten mixed reviews from jurists. The executive unilaterally pulled back from some overseas collection (on two dozen or so foreign leaders, for example) but those restraints are voluntary and transient. The President also directed the intelligence community to look into providing some privacy protections to non-U.S. persons, an effort that seems destined more to increase paperwork than reduce espionage.
The big takeaway from l’affaire Snowden, though, was his exposure of the so called 215 program and the program’s subsequent termination (or at least remodeling) by the USA Freedom Act. To refresh: 215 involved NSA acquiring the metadata (fact of call, time, duration) of U.S. phone calls from the business records of U.S. phone carriers and then keeping that data for a period of five years in a tightly controlled repository. The data could be accessed by about two dozen NSA analysts, who could use what the agency calls a “seed number”—a number (almost always foreign) believed to be associated with international terrorism—to see if terrorist related calls were entering or leaving the United States.
After several false starts, Congress decided to end NSA’s acquisition of such data even though the intelligence oversight committees continued to support the program, and no abuses had been shown or even alleged (at least not by knowledgeable critics). Just the existence of such a data base convinced enough from the traditional left and the tea party right to scotch it.
NSA will still work with American metadata, mind you. It just won’t keep it. Now the agency, when it has a seed number, will query the data bases that the phone companies will still keep for their own purposes. That’s a little clumsy, and it will take more time to contact chain across these multiple data bases, and the data bases won’t be as historically deep as NSA’s, either, since phone companies only keep records for a year or so. But, in an ironic twist, NSA will be querying an even wider pool of U.S. metadata. The original program (which I set up in October 2001) was geared for landlines, but as time went on and more and more of American telephony was conducted via cell phone, NSA was acquiring a diminishing portion of the metadata. Now—post USA Freedom Act—with phone companies holding the data, NSA inquiries will be more exhaustive of all the available information.
That plot twist usually doesn’t show up in films like Snowden or in NSA-damning Op-Eds. Another thing that rarely shows up is the precedent that a pardon or even leniency for Snowden would set.
Such a move would be an object lesson to the more than 100,000 Americans in the intelligence community who do keep their oaths and who do keep the secrets that, no matter how junior you might be; how incomplete your knowledge; how legal and overseen a program—that you have a right to disclose it if you are personally opposed to it and if you can wrap your disclosure in hundreds or thousands of other headline producing tidbits and you can deliver the unredacted package to sympathetic journalists who (preferably) work for big media outfits. Extra credit too for increased scale and especially for making the universe of what you disclose as wide as possible.
American history is dotted with debates over the concept of nullification, the belief that institutions or even individuals can defy duly passed laws. We dismissed John C. Calhoun’s state nullification doctrine—that South Carolina could nullify federal laws on tariffs—in the 1830s, although we have occasionally seen jury nullification, returning a verdict of not guilty even when the facts would say otherwise, in very specific cases.
Are we now ready for “contractor nullification,” conceding a midrange Booz Allen employee the right to publicize activities appropriately classified and to do so on a massive and, let it be said, indiscriminate scale because he personally just wasn’t happy with them?
Even the most ardent Snowden supporter needs to think about that—and what the natural extension of that principal to other situations would mean, not just to American security, but to American liberty and governance, as well.