The Edward Snowden Affair (30 page)

As a testament of his commitment to transparency, Obama’s press conference was accompanied by the release of two documents, the “Administration White Paper: Bulk Collection of Telephony Metadata under Section 215 of the USA PATRIOT Act” and an NSA memorandum.
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They are both dated June 9. By issuing a white paper instead of a green one, Washington was making its position clear before uttering a word. A “white paper” is a government report which takes a firm, resolute stance upon an issue. It is in contrast to a “green paper,” which opens and invites discussion. Much like Bergen and Cahall’s CNN exposé which simultaneously defends national intelligence while implicitly incriminating Snowden, the presentation of the two documents is a calculated double-edged sword. The White Paper (WP) and memo respectively declare they are intended to provide “as much information as possible to the public concerning the legal authority for this [215] program” and “a succinct description of NSA’s mission, authorities, oversight and partnerships.” Rather than apologetic confessions, they are angry, finger-pointing acknowledgements disguised as legal defenses. By their conclusions and through the use of phrases such as “catastrophic terrorist attacks” and “the only practical means,” it is clear that the government’s stance is stricter, more invasive surveillance measures could have stopped 9/11 and are the only way to provide effective, continued national security.

The memo unrepentantly opens with “[w]e now know that 9/11 hijacker Khalid al-Midhar, who was on board American Airlines flight 77 that crashed into the Pentagon, resided in California for the first six months of 2000. While NSA had intercepted some of Midhar’s conversations with persons in an al-Qaeda safe house in Yemen during that period, NSA did not have the U.S. phone number or any indication that the phone Midhar was using was located in San Diego. NSA did not have the tools or the database to search to identify these connections and share them with the FBI.” Though other programs, such as Fairview, are mentioned, the document conveniently overlooks ThinThread, which was available but unused due to political reasons at the time of the American attacks.

Obama even admitted during the Q & A segment of the press conference, “There’s no doubt Mr. Snowden’s leaks triggered a much more rapid and passionate response than if I had simply appointed this review board.” The whistleblower’s influence is evident throughout the two documents as is the pressure that had been perpetually exerted upon the U.S. government by service providers after Washington refused to permit them to release data proving their hand had been federally forced. The memo states, “[ … ] the government compels one or more providers to assist NSA with the collection of information responsive to the foreign intelligence need.” The WP validates intelligence had open-door access to provider’s servers: “Providers would also be forced to review daily requests of differing docket numbers, rather than merely complying with one ongoing request, which would be more onerous on the providers and raise potential and unnecessary compliance issues.” The U.S. government admits individual court orders were never issued.

The WP owns up to Greenwald’s June 20 report on warrantless surveillance: “[ … ] the FBI must rely on publicly available information, other available intelligence, or other legal processes in order to identify the subscribers of any of the numbers that are retrieved.” Determining a person’s identity via cell number is as easy as querying Facebook. In order to receive a vanity URL, a person must have an authorization code which is sent by Facebook once an individual provides a working cell number. Many email providers ask for a phone number for “security purposes.” The WP goes on to state that “other available intelligence,” which is designated under the phrase “tangible things,” includes “books, records, papers, documents, and other items,” such as electronically stored documents one might put into an online cloud service. Using legal precedent, “tangible things” are collected if it is “reasonable to believe” the information relates to terrorism. The requisition can include “entire repositories of records” and, under “Prospective Orders,” it is not necessary to submit individual orders after an initial request on a target has been recognized and approved, because the requirement would “impose entirely unnecessary burdens on both the Court and the Government.”

The impact of the Tempora and Fairview articles is also felt. The memo confesses that the United States is partnered with “over 30 nations” but does not ask any foreign relation “to do what NSA is itself prohibited by law from doing.” The WP even blatantly states, “[ … ] a large amount of metadata is consolidated and preserved by the Government [ … ]” and relays that the NSA has a five-year raw data retaining buffer.

The NSA survey makes sure to deny only metadata is collected: “This process will
often
[my emphasis] involve the collection of communications metadata [ … ].” The WP seconds this: “Section 215 permits the FBI to seek a court order directing a business or other entity to produce records or documents when there are reasonable grounds to believe that the information sought is
relevant
[my emphasis] to an authorized investigation of international terrorism.” Under relevancy, contact chaining is acknowledged, but nothing else is said about the protocol. The document’s failure to provide further comment on the policy implies the answer to the question left open in Greenwald’s Stellar Wind report: The surveillance practice was made freely and impenitently permissible through a later law. It confirms Greenwald’s June 20 warrantless surveillance exposé by adding, as with “tangible things,” “[ … ] [metadata] can be reliably identified only through analysis of a large volume of data [ … ]” because “It would be impossible to conduct these queries effectively without a large pool of telephony metadata to search, as there is no way to know in advance which numbers will be responsive to the authorized queries.” In the middle of all its assurances, the WP confesses that a dragnet is cast and analysts
then
go through the data captures. It is clear the intelligence community’s policy is information is not surveilled until it has been viewed by an analyst in the same manner that Clapper’s books do not officially become books until he begins reading them.

But even collectively the documents are far from being an admission of guilt to all of the preceding editorial charges. The WP dauntingly admits, “Intrusion on privacy interests is limited” and “If any Fourth Amendment privacy interest were implicated by collection of telephony metadata, which does not include the content of any conversations, it would be minimal.” Though the government’s perspective is clear when the WP references a 1989 Supreme Court case, “[ … ] it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant [ … ],” the memo continually reassures the reader that only international communications or those by “foreign persons” who are “reasonably believed” to be “wholly outside the United States” are targeted and domestic surveillance is incidental. The surveillance survey decrees U.S. citizens’ rights are adamantly protected. Despite a PRISM slide which states it is “nothing to worry about,” the WP imparts, “[ … ] compliance incidents are also reported to the Intelligence and Judiciary Committees of both houses of Congress [ … ].” It does not state whether the reports include incidental data captures nor does it claim that domestic information is immediately destroyed.

The document refutes that interagency data exchange is a pre-review “team sport”: “[ … ] [B]efore the NSA disseminates any information about a U.S. person outside the agency, a high-ranking NSA official must determine that the information identifying the U.S. person is in fact related to counterterrorism [ … ].” Amazingly, the NSA overview opens a new door for criticism by announcing that identifiers have been put in place to highlight people who “[ … ] are
likely
[my emphasis] to receive foreign intelligence information authorized for collection under an approved certification.” (The WP states that only 300 identifiers are used instead of 30,000 as cited in
The Guardian
’s Tempora report.) Though both articles contain subjective, broadly defined terms which legally permit overreach, the WP reveals that an FISC order is not needed for “an investigative activity that does not require any particular factual predication,” otherwise known as a “threat assessment.” A suspicion which is not based upon a “factual predication” is often referred to as a “hunch.” This clemency is granted because a “federal prosecutor need only sign and issue a grand jury subpoena to obtain similar documents in criminal investigations, yet national security investigations have no similar investigative tool.” This is analogous to New York outlawing child pornography by passing legislation making it illegal while San Francisco freely permits it simply because the city never got around to banning it.

Amid the two documents’ backpedaling and whitewashing, the U.S. government finds itself facing a chicken-or-the-egg conundrum. If one agency cannot release data to another without first verifying that targeting is legitimate, but to establish legitimacy interagency cross-referencing is required, it is logistically impossible for any substantiation to occur. Because the WP discusses American law, it does not attempt to address claims of international data swapping used to evade domestic surveillance legislation.

It was clever. Over the course of a single day, the president of the United States assumed the role of “good cop” by doling out assurances that measures were being taken to quell any concerns about domestic surveillance. Meanwhile two government issued documents played the part of “bad cop.” They informed the populace that its grievances were unfounded, and, in truth, Washington was being legally frugal because it reserved the right to be much more intrusive. With the same hubris used to pressure various European nations after Morales took flight, the WP stays true to its political and literary tradition by adamantly proclaiming unconstitutional privacy invasions have and do occur, though they are “limited” and “minimal.” Without so much as a hint of green, it shrugs at the law having been gerrymandered to permit blanket warrants. Despite the implied, admitted guilt involved in releasing a statement upon programs and laws which the public had been repeatedly informed needed no justification or explanation, the WP and accompanying memo marks a turning point for the Obama administration. They contain much of the same defensive postures Washington had committed to memory since June 5. However, a fair degree of offense is contained within their pages. Though presented under the ruse of transparency, the Capitol seized the opportunity to exploit the American public’s demand for answers and gave it fervently spun propaganda and a firm reprimand for doubting its authority.

The media whiteout, bombings, Obama’s appearance on
The Tonight Show
, his long overdue White House press conference and the publication of the NSA memo and White Paper might not have happened if it hadn’t been for seven individuals. The time when the American people and corporations could be satisfied with answers had long past. They now demanded change. A week before Snowden was granted asylum, Congress voted on legislation which would have proved something was being done about the current state of American surveillance. The legislation lost by six votes. The rest was a domino effect. In the end, the president had no choice but to personally reassure everyone change was coming, even if it had to be at his own hands.

Various members of Congress had set to work addressing American espionage practices soon after Greenwald reported on Verizon. Some were unrealistically radical and merely put forth as a testament to one’s party platform or constituency. Representative Rush Holt’s “Surveillance State Repeal Act”
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demanded that the PATRIOT Act be eradicated. House Resolution No. 205 by Tom McMillin insisted Clapper be prosecuted. Senator Patrick Leahy would revise his prophetic March proposal, Electronic Communications Privacy Act Amendments Act of 2013,
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and reissue it in June as FISA Accountability and Privacy Protection Act of 2013.
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Several politicians wanted variations on the first piece of sponsored legislation to arise out of the Snowden debacle, Senator Jeff Merkley’s June 11 public transparency plan. The Ending Secret Law Act
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asked for FISC opinions to be made available to Congress and the court’s decisions released to the American people. Other tentative laws narrowly focused on one aspect of the surveillance debate. Representatives John Conyers and Justin Amash’s LIBERT-E Act
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argued blanket monitoring was illegal and stipulated only individual cases involving probable cause be allowed. Many called for the expiration date on the FISA Amendments Act be moved forward so its legislation could be reviewed and revised before 2017. A handful thought the problem was with the appointment of FISC judges. A multitude of bills offered resolutions. A few lawmakers had pity on the telephone and Internet providers. They made the appeal that the companies be allowed to publicly release their FISC request figures. Obama had entered the press conference having absorbed a number of Capitol Hill’s suggestions, such as placing a defense attorney in America’s secret court. Despite Congress members’ efforts, U.S. intelligence and the White House did everything they could to make sure nothing would change.

The LIBERT-E Act had over 50 sponsors. It was the product of two Michigan politicians. Amash, a Republican with Libertarian leanings and the sixth-youngest representative, had been joined by Conyers, a Democrat born in 1929 who was the second-longest serving incumbent on Capitol Hill now in his 48
^th
year in Congress. But the two politicians knew the controversial law would not pass on its own. They judiciously took another approach. The decision wound up testing the moral fabric of democracy.

Unlike the Senate, where all members can force a vote, the House Speaker reigns supreme. If the speaker doesn’t deem a topic worthy of consideration, it isn’t put on the docket. Amash walked gingerly around Speaker Boehner, who had already decreed Snowden a traitor. He made his bill into an amendment to the Department of Defense Appropriations Act, 2014.
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Any lawmaker can propose an amendment to a bill so long as it can be proven to relate to the legislation it is trying to piggyback. The amendment’s relevance was obvious and irrefutable. It dealt with defense spending. Amash was calling to cancel the NSA’s authority to conduct blanket surveillance.
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There were two sides to the legislative coin. In theory, Amash’s proposal should have been agreeable to the fiscally conservative Republican-led House because it would cut costs. In reality, House Republicans strongly supported national defense, which the bill sought to limit. It was nonetheless Amash’s best bet for getting the law passed.