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The Three Leakers and What to Do About Them

Edward Snowden; drawing by James Ferguson

What should we make of Edward Snowden, Bradley (now Chelsea) Manning, and Julian Assange? Their names are known across the globe, yet the actions that made them famous have also driven them to lives of intense isolation—in hiding, in prison, or in a foreign embassy. They have been lionized as heroes and condemned as traitors. Snowden, a former contractor for the National Security Agency (NSA), and Manning, a low-level army intelligence analyst, are responsible for the two largest unauthorized disclosures of classified information in the nation’s history.

Manning released to Assange’s website, WikiLeaks, about 720,000 secret documents from the State and Defense Departments, and Assange published them on the Internet. The NSA still doesn’t know the full extent of the information Snowden stole and passed on to the journalists Glenn Greenwald, Laura Poitras, and Barton Gellman, but it estimates the number to be 1.7 million classified documents, concerning some of the US’s most closely guarded secret surveillance programs.

The federal government views Manning and Snowden as criminals. It tried and convicted Manning for violating the Espionage Act and he was sentenced to thirty-five years in prison. (Manning subsequently announced that he was changing his gender, and hereafter would be known as Chelsea.) The government has charged Snowden with stealing government property and violating the Espionage Act, although he has thus far evaded trial by obtaining temporary asylum in Russia. And the Justice Department has empaneled a grand jury to investigate Assange, who is holed up in the Ecuadorean embassy in London seeking to evade extradition to Sweden for alleged sex crimes.

The prosecutors in Manning’s trial repeatedly contended that Assange actively encouraged Manning’s crimes. In November, however, a Justice Department official told the The Washington Post that Assange would not likely be prosecuted for publishing Manning’s documents. According to former Justice Department spokesman Matthew Miller, “if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” But the grand jury investigation continues.

Others praise Manning, Snowden, and Assange for exposing our government’s secret and legally dubious activities at home and abroad. Snowden’s revelations about the scope of NSA electronic surveillance have touched off a much-needed national and global debate about privacy in the digital age. Indeed, because of his influence he was rumored to have been the runner-up to Pope Francis for Time magazine’s “Person of the Year.” Manning’s and Assange’s disclosures had much less dramatic effect, but they, too, revealed a host of potential abuses, including US troops in Iraq killing civilians, the US State Department spying on foreign UN officials, and a secret agreement between Yemen and the United States to permit US drone strikes there on the condition that they not be publicly admitted.

These leaks, the most significant since Daniel Ellsberg made the Pentagon Papers available to The New York Times and The Washington Post in 1971, raise anew the question of when it is justified to disclose classified information to the public. Some advocates of transparency seem to treat any exposure of secrets as an unmitigated good; this appears to be the philosophy behind Assange’s WikiLeaks. But that position is morally untenable; there are undoubtedly good reasons for secrecy in many aspects of government, especially foreign relations, and particularly during wartime. And there are many legitimate bases for condemning disclosures, particularly when they reveal the identities of sources and methods of foreign intelligence.

Security hawks consider any unauthorized disclosure of classified information unacceptable, stressing that cleared employees take an oath not to disclose such information, and that no government can operate without some secret deliberations and covert actions. But this, too, is an untenably extreme position. History demonstrates that secrecy is used not only for legitimate purposes of national security, but too often to shield illegal or embarrassing activity from public scrutiny. Even the most ardent security proponent must concede that the benefits from revealing illegal abuses of authority will sometimes outweigh the costs of disclosing those secrets.

If neither extreme is acceptable, how should we distinguish legitimate from illegitimate leaks? The Intelligence Community Whistleblower Protection Act, passed in 1998, marks one effort at striking a balance. It provides a way for individuals to disclose classified information regarding a “serious or flagrant problem, abuse, violation of law,” but only to members of congressional intelligence committees, and only after initially presenting it to the NSA’s inspector general and the attorney general. This law, however, provides no protection for revealing information to the public, and has been used only rarely. Whatever balance it struck in theory has proven largely irrelevant in practice.

To understand why, imagine if Snowden had gone to the NSA’s inspector general with information that the agency was collecting large amounts of “metadata” on every American’s phone calls—i.e., records of who they called, when, and for how long they talked—storing the data for five years, and searching through it. What would the inspector general have done? As the NSA’s defenders repeatedly emphasize, the metadata program was blessed by all three branches. The Bush administration instituted it and Obama maintained it. Fifteen federal judges on the secret Foreign Intelligence Surveillance Court—or FISA court—declared it lawful. And Congress reauthorized the Patriot Act provision upon which the program was based, even after being informed of the program (albeit in a limited and anodyne manner designed not to raise any alarms).1

Given these circumstances, the inspector general surely would have responded that there was no basis for disclosing it. But even if Snowden had been given a green light to bring the NSA’s activities to the attention of the intelligence committees, the problem was not that those committees were in the dark, but that the American people were. As Snowden put it in a videotaped interview from Hong Kong at the time of his initial leaks, “These things need to be determined by the public, not by somebody who was simply hired by the government…. The public needs to decide whether these programs and policies are right or wrong.”

The reactions that Snowden’s disclosures have sparked suggest that he was onto something. The only parties kept out of the “checks and balances” so often lauded by the NSA’s defenders were the American and global publics—in other words, the people whose privacy was at stake. As long as the program was kept under wraps, all three branches of government were willing to tolerate it. But once it became public, that changed dramatically. On December 16, the first federal court to assess the legality of the NSA’s telephony metadata program in a public, adversarial proceeding declared it likely unconstitutional. US District Judge Richard Leon ruled that the mass collection and search of metadata invaded US citizens’ reasonable expectations of privacy, and could not be justified without a warrant and probable cause.2

Two days later, the president’s own expert panel, which included a former acting director of the CIA, raised serious questions about the wisdom and propriety of the program, and recommended forty-six reforms to rein in the NSA, including an end to the NSA’s bulk collection of telephone records, more judicial and legislative oversight, and a requirement of specific presidential approval for spying on foreign leaders.

Members of Congress have introduced more than thirty bills to restrict the NSA. The most important bill is cosponsored by Jim Sensenbrenner, a Republican from Wisconsin in his thirty-fifth year in Congress, and Senator Patrick Leahy, the veteran Democrat from Vermont. Sensenbrenner, an architect of the original Patriot Act, says that he never imagined that it could authorize what the NSA has been doing. And Silicon Valley is also urging reforms, arguing that the NSA’s practices have not only damaged privacy, but undermined their businesses—and the US economy—by eroding trust in the confidentiality of US-based Internet services.

At the end of December, US District Judge William Pauley III in Manhattan, disagreeing with Judge Leon, ruled that the NSA’s program was constitutional. Judge Pauley reasoned that Americans have no legitimate expectation of privacy in the phone numbers they call, and therefore have no constitutional basis for objecting to the NSA’s mass collection and searching of that data. If an appeals court finds the NSA program unconstitutional, review by the Supreme Court is almost certain.

In the end, the Obama administration, Congress, and the courts should all act to curb NSA spying. More targeted surveillance, subject to closer judicial oversight, should replace the NSA’s current dragnet approach. How the conflict ultimately will be resolved will not be known for some time. But one thing is clear: none of this debate would have happened without Snowden’s revelations.

Consider what we have learned from Snowden’s leaks and the further government disclosures that they prompted:

(1) Since 2006, the NSA has been systematically collecting records on every phone call every American makes. It has done so on the basis of NSA lawyers’ secret, strained interpretation of a Patriotic Act provision that authorized the collection only of records “relevant” to an investigation of international terrorism. The NSA argued that it can collect everyone’s phone records, regardless of any connection to terrorism, on the theory that the records might in the future become “relevant” to a terrorism investigation. But on that theory, what records couldn’t the NSA collect?

(2) Director of National Intelligence James Clapper lied under oath about this program when asked in a congressional hearing whether the government was collecting any kind of data on millions of Americans. Clapper answered “no,” but Snowden has shown that the NSA was doing precisely that.

(3) Under another statute, the FISA Amendments Act of 2008, the NSA has engaged in far more intrusive surveillance—including reviewing the content of e-mails, Internet searches, and chat rooms—of persons it believes are foreign nationals overseas, even if they are communicating with US citizens here. It may do so without any individualized suspicion that the target is engaged in criminal or terrorist activity. The agency has tapped the phones and e-mails of some of our closest allies’ leaders, including German Chancellor Angela Merkel and Israeli Prime Minister Ehud Olmert.

(4) These NSA programs were authorized in secret by FISA judges, but have often violated the terms under which the courts authorized them. For example, in 2009 FISA Judge Reggie Walton castigated the NSA for illegally reviewing thousands of Americans’ phone data over two years, and imposed a temporary requirement (later lifted) that all searches of the database be preceded by judicial approval.3

(5) Within the United States, the NSA has been collecting not just records of Americans’ phone calls, but of their e-mails as well. E-mail data is often even more revealing than phone data (identifying, for example, the e-mail groups and political and religious organizations with which one communicates).

(6) The NSA has been collecting cell phone location data and e-mail address lists from outside the US on a vast scale, data that tracks phone users’ every move around the clock and reveals e-mailers’ closest associations.

(7) The NSA has not been satisfied even with all of these powers. It has hacked into the overseas links between Google’s and Yahoo’s data hubs, vacuuming up enormous amounts of data, subject to no statutory or judicial limits whatsoever. And it has inserted vulnerabilities into private industry’s encryption codes to enable it to hack into them more easily.

(8) Finally (at least for now), the NSA has been cooperating in potentially disturbing ways with its British counterpart, Government Communications Headquarters (GCHQ), apparently exploiting loopholes that allow the NSA to do things GCHQ could not, and vice versa.

And Snowden is not done yet. Reports of new programs, initiatives, and targets break weekly if not daily. In short, Snowden’s disclosures portray an insatiable agency that has sought to collect as much information as it possibly can, most of it relying on secret interpretations of law, often exploiting the fact that the law has not caught up to technology.

Julian Assange; drawing by James Ferguson
  1. 1

    The NSA notified members of the Senate and House intelligence committees of the program, and made some information available to other members of Congress. However, it did not disclose the questionable reasoning of the FISA courts upholding the program. The chairman of the House Intelligence Committee reportedly barred the program’s disclosure to other House members. And while senators were allowed to examine a classified letter reporting on the program, they could not bring any staff members with them, and could not take notes or copy the letter. They could review the letter only for a limited period of time, and could not discuss it with their colleagues or the public. 

  2. 2

    For a discussion of Judge Leon’s ruling, see my article “ The NSA on Trial,” NYRblog, December 18, 2013. 

  3. 3

    Declassified Order of Foreign Intelligence Surveillance Court, March 2, 2009, at www.dni.gov/files/documents/section/pub_March%202%202009%20Order%20from%20FISC.pdf

  4. 4

    See Barton Gellman, “Edward Snowden, After Months of NSA Revelations, Says His Mission’s Accomplished,” The Washington Post, December 23, 2013. 

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