Q&A: Snowden's Dilemma - A Conversation With Marcy Wheeler

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Earlier this week, new evidence regarding the case of Edward Snowden came to light. As the result of a massive Freedom Of Information Act request, approximately 800 pages of pertinent data were provided to media requests. Vice News ran the extensive article, “Exclusive: Snowden Tried to Tell NSA About Surveillance Concerns, Documents Reveal,” outlining the salient details of the barrage of newly published documents.

Marcy Wheeler, independent journalist and blogger at emptywheel.net, was one of three co-authors weaving together the discovery made from the data retrieved by the released documents. She joins Radio Dispatch, BTRtoday’s daily outsider news podcast, to discuss whistleblowing, privacy, and the now infamous Snowden scandal.

For the full interview, follow this link to listen to Radio Dispatch.

Radio Dispatch (RD): What do we now know about the concerns that Snowden raised internally prior to going public?

Marcy Wheeler (MW): If you recall, Snowden never actually said that he tried to raise whistleblower complaints. He said he raised concerns. He has said, “Of course I would not go through the whistleblower process, look what happened to Thomas Drake.”

That’s a mistake people often make.

He had raised those issues at the end of 2013, and twice in 2014. In May of 2014, an email was released to the lawyers, which showed Snowden asking about a slide in a training course.

The email [essentially] said, ‘Look, you’ve said that this is a hierarchy of authorities and you’ve got executive orders on the same line as you’ve got laws. That doesn’t seem right.’ And the answer that he got back is, ‘You’re right. The NSA has to follow the law.’

One of the things disclosed [in these newly released documents] is that within a week of that exchange, Snowden had a face-to-face with one of the people who had been looped in on the response….the person in question just interpreted it as somebody being stressed about passing a training test.

That’s probably not what really happened, although that may be how the person understood it.

The NSA had already identified that by the time they released Snowden’s email. They just didn’t acknowledge that there was this face-to-face exchange, which frankly, probably was part of the same process but NSA considers it a separate one.

So, that’s one thing; that he had a face-to-face exchange with one of the people involved in the response that they claim was kind of routine.

RD: What are some other salient details?

MW: Another interesting detail is that after it became clear that there was more than just the email–after it became clear that there was this face-to-face exchange–a fairly senior NSA person (Admiral Rodgers, the head of the NSA) wrote this amazingly apologetic email saying, ‘I’m sorry I didn’t give you the full context, I’m sorry I didn’t tell you about these other contexts…’

That email has some errors which I find really interesting, because it was written after three days of fact checking. The director of the NSA was obviously a little bit angry that it had been said that there was only this one email, when in fact there was this face-to-face exchange.

Finally, the last other really important thing is that they did reports. There was a tiny paragraph of one of the investigators saying, ‘Here’s what we learned in our interviews with Snowden’s colleagues: he talked about the constitution with them, he talked about privacy, he said he had a black-and-white interpretation of the constitution. But we don’t consider that ‘raising concerns.’ He never raised a specific concern about a specific program and therefore that doesn’t count.’

So, it’s clear that his colleagues actually did say that he was talking about privacy with them, it’s just that the NSA doesn’t consider that important.

RD: One of the biggest takeaways from this new information is that the NSA had tried to discredit Snowden. Does this information prove that that was a misleading narrative?

MW: Well it depends on who you are. I’ve worked on this issue, and I know how persistently the NSA has found loopholes around The Foreign Intelligence Surveillance Act (FISA). I think actually it does.

I think what Snowden was saying is, ‘Your official documents show that you’ve got loopholes around FISA.’ After we submitted questions, neither Snowden nor the NSA actually responded to them. So I can’t tell you what really happened in that face-to-face exchange.

Two years ago, Snowden claimed that a compliance person had told him that an executive order could trump law. When we tried to get both the NSA and Snowden to answer questions for more specifics about that face-to-face exchange, both of them just gave their canned response.

RD: The NSA saying that an executive order is on the same level as the law raised alarm bells for Snowden: What sort of powers or capabilities did the NSA claim to have through this executive order that would not have been statutorily supported?

MW: Across the board, in FISA, there are ways to collect data overseas that programs domestically collect. For example, Snowden revealed that the NSA had hacked Google’s fiber overseas. The NSA was getting data from google overseas by stealing it.

They shouldn’t need to do that. They’ve got a legal way to go to Google through the front door and say: “Hand over this data.” So, that’s an example where by stealing from an American company to access a US person’s data, they wouldn’t need the same level of court approval as if they were going to Google and asking for it.

In other words, to spy on an American, they should have to get a probable cause warrant saying that the American is an agent of a foreign power. But, if you’ve got all this data that you’ve collected overseas and you can access it in bulk, then there are ways around that.

Snowden has suggested that NSA does that. There are reasons to believe that NSA does do that: both legally with metadata, and more dubiously with content.

RD: Through the Freedom Of Information Act requests, what did you ask for, what were you hoping to get, and what was the significance of these 800 pages you were able to get released?

MW: Jason Leopold and Jack Light, his [Snowden’s] attorneys, deserve all the credit for this… In response to Snowden’s comments; almost every journalist asked for the email [that Snowden sent to a higher up, raising concerns about ethics.] I asked for the training course that he had talked about, and they took my request and dumped it in a circular file, and it’s still pending–unresolved. We’ll have to sue on that, and we’ll discover that they destroyed the evidence, and then we’ll really get some place.

Leopold asked them: “Give me your processing notes, give me any recorded discussion about responding to these requests to emails.” So, what we got was this remarkable discussion, kind of a media-crisis response frenzy—going back to April 2014—of people saying, “Do you have the email, can you find the email, are you sure you did a good response?”

One of my favorite parts about the discussion is that the day they released the email, the White House was like, ‘OK, we don’t want to approve the release of the email yet, why don’t you do a Q&A for us…” A stall tactic. So, while they were doing the stall tactic, one of the lawyers realized this might be responsive to the Freedom Of Information Act (FOIA) that they got. And, about 45 minutes later, another lawyer said, ‘Just so you know, yes, we don’t think we can withhold this from FOIA.’

It was sort of like them performing before us, knowing that the discussion would be turned over in FOIA… You could see them trying to hide information from the FOIA in real time.

RD: One of the really key elements about this Snowden story from the beginning is that, since he was a contractor, he wasn’t protected by Whistleblower protections, contrary to what Obama and some other public officials have said. What kind of protections were there?

MW: For folks who don’t know, Thomas Drake went through formal channels, went to the NSA Inspector General, when to the Department Of Defense Inspector General.

The DOD Inspector General came back and said, ‘You’re right, this program that Michael Hayden rolled out to his buddies actually was ripe with abuse, and ended up costing billions when you guys had something that was much cheaper, and much more effective.’

But, even though the DOD Inspector General said that Drake was correct, they reported him to the Department Of Justice anyways. That led to his indictment, and to him losing his job. He’s still working at Apple in the Genius Bar because they ruined his life. Because he went through formal channels.

Snowden has said, given that example, he would never go through formal channels.

They say that Snowden could have gone to the Inspector General, the same thing Drake did, which turned out so horribly.

RD: What could have happened to Snowden had he come forward formally?

MW: Ultimately, even if NSA employees are not supposed to retaliate (like they did against Drake), a contractor’s employer can still retaliate. So, it would be perfectly legal for Booz [Snowden’s employer] to have started doing bad stuff to Snowden, and there are cases of contractors where this has happened to them. Frankly, the NSA could have asked Booz to do it and that would be perfectly legal as well.

By refusing to extend whistleblower protections to contractors, it just gives the intelligence community one more check against any real oversight from the people who work for them…

There was no way he could have come forward with what he was saying.