No Hero

Jeff Toobin takes Edward Snowden down a few notches. Money quote:

These were legally authorized programs; in the case of Verizon Business’s phone records, Snowden certainly knew this, because he leaked the very court order that approved the continuation of the project. So he wasn’t blowing the whistle on anything illegal; he was exposing something that failed to meet his own standards of propriety. The question, of course, is whether the government can function when all of its employees (and contractors) can take it upon themselves to sabotage the programs they don’t like. That’s what Snowden has done.

Enter The Media Martyr, Ctd

A reader adds to this post:

I spent a decade as a government IT contractor and another five years in commercial IT contracting (which I’m back to).  Over the course of my government time I was basically in the same job, but as contracts rebid or companies merged or whatever, I worked directly or indirectly for four different companies.  It’s entirely possible that Snowden was in the job prior to March but under a different lead or sub contracting company.  The relevant question isn’t when did he start at Booz, since that’s really just a paperwork and billing question, but rather when did he start on site.


Your reader’s suggestion is to call the Ethics Hotline maintained by the NSA? That’s unrealistic to the point of being laughable – what conceivable effect would that have (aside from costing Snowden his job without publicizing the program)? As for the idea that he work with members of Congress, it’s just as silly.  Remember, Wyden and Udall were deeply troubled by the program, but couldn’t say anything because they didn’t want to release classified information.  The only way that this program comes into the public eye is for a hero like Snowden to take the hit and alert everyone.  It seems to be legal, so there’s no crime to report; and yet it’s nevertheless causing a huge public outcry.  The case for leaking this material couldn’t be clearer, and I applaud Snowden for his brave act of civil disobedience.

Huge public outcry? We’ll see. But the debate itself and the end of secrecy around this program are healthy developments, it seems to me. Meanwhile, Noam Scheiber compares the missions of Edward Snowden and Aaron Swartz:

Both Snowden and Swartz (and, for that matter Manning) were precociously talented computer programmers who were frustrated in classroom settings—neither completed high school or college—but easily assimilated knowledge on their own. Both had strong moral and idealistic streaks, along with (apparently) well-worked out, libertarian-ish, ideas about the proper relationship of government to its citizens. Both had high hopes for Barack Obama, but became disillusioned with his administration relatively quickly.

And yet both come off as basically liberal in their outlook, as opposed to anarchist or some other form of radical. Snowden told The Guardian there was a key difference between himself and Manning: “There are all sorts of documents that would have made a big impact that I didn’t turn over, because harming people isn’t my goal. Transparency is.” (Manning observed no such restraints.) Swartz, according to several friends I interviewed for this profile, likewise believed that Wikileaks went too far in releasing information that could do more harm than good. He worried that the group had become an exercise in showmanship and preening.

Now, clearly, there are key differences between Snowden and Swartz. Even though Swartz was facing the prospect of decades in prison, the act that got him in trouble couldn’t have been more than a minor offense under any rational legal code. (JSTOR articles are available to anyone with access to a university or research library; JSTOR itself declined to pursue the case.) By contrast, it’s obvious that Snowden, whether you agree or disagree with his decision to distribute classified material, has undertaken something of enormous legal consequence.

The Dish On The Leaks

A mid-day round-up of today’s coverage: my view is basically David Simon’s – that a lot of this is bullshit – but that’s clearly not how many readers Water_drop_animation_enhanced_smallsee this issue. Au contraire.

More Dish fodder: a post where I hope this is an opportunity to debate if we still need a serious counter-terrorism policy at all; a reader wonders about whether Snowden sought the Booz-Allen job in order to leak; a granular primer on what PRISM actually is; the foolishness of Snowden’s seeking refuge in Hong Kong – or perhaps not; and the inherent difficulty of a full public debate about programs that are labeled secret.

Stay tuned.

Yglesias Award Nominee

“National security is different from internal matters of the government. We’re dealing with foreign threats here. They’re not allowed to go into that data until they have a warrant signed off on by a judge. That is totally different from the IRS abuses, which I think are very serious, and I think it’s very important for conservatives and Republicans to make that distinction,” – Bill Kristol, agreeing with me and Josh Marshall (on PRISM anyway). And, er, yes, gulp.

Quis Custodiet … ?

Obama says that the NSA isn’t listening to your calls:

But Conor worries that our system of checks and balances is useless in the era of deep state:

Congress cannot act as a check on the executive branch in the way the Framers intended when hugely consequential policies it is overseeing are treated as state secrets. The Senate, intended as a deliberative body, cannot deliberate when only the folks on the right committees are fully briefed, and the Ron Wyden types among them think what’s happening is horribly wrong, but can’t tell anyone why because it’s illegal just to air the basic facts. Our senators have literally been reduced to giving dark hints.

Walt believes this situation “gives those in power an obvious incentive to inflate threats”:

When no significant dangers are apparent, they will conjure them up; when real dangers do emerge, they will blow them out of all proportion. And having assembled a vast clandestine intelligence apparatus to go trolling for threats in every conceivable location, they can quell skeptics with that familiar trump card: “Ah, but if you knew what I know, you’d agree with me.”

And so the circle continues: An exaggerated sense of threat leads to energetic efforts to shape events abroad, even in places of little strategic value. These efforts inevitably provoke backlashes of various kinds, some of which (e.g., 9/11) do genuinely harm Americans. Because it is deemed unpatriotic or worse to even ask what might have led others to want to attack us, officials merely declare that they “hate our freedoms” and launch new efforts to root out enemies. The result is more surveillance, more secrecy, and even more global intervention (e.g., Iraq, Afghanistan, drone wars, etc.) in an endless attempt to root out all sources of “evil.”

Reihan is conflicted about the expanding powers of the NSA:

I have two clashing instincts: a skepticism of concentrated power (milder than most of my libertarian friends, but still there) and a post-9/11 sense that small networks of hyperempowered individuals can pose a real threat, and that it is appropriate to use technological tools to mitigate such threats. The problem with the latter view, which has definitely been going out of style in the public if not in the national security bureaucracy, is that when the bad guys realize that mobile phones are not the best way to go (as the more formidable of them have long since realized), they will turn to some other, harder-to-detect means of communication. It is inevitable that the NSA will want as much information as it can possibly get, and I’m glad that they’re getting some pushback.

That’s roughly where I fall out too. And Mike Konczal imagines a better surveillance state:

What would a democratic surveillance state look like? Balkin argues that these states would be “information gourmets and information philanthropists.” A democratic surveillance state would limit the data it collects to the bare minimum. Meanwhile, maximum transparency and accountability across branches would be emphasized. Congress and the public would need to be far more involved.

A democratic surveillance state would also place an emphasis on destroying the data that the government collects. Amnesia used to be the first line of defense against surveillance. People just forgot things with time, giving citizens a line of defense against intrusion. In the age of digital technology, however, amnesia no longer exists, so it needs to be mandated by law.

A democratic surveillance state would also require public accountability for the proper conduct of private companies that deal and sell in private information. It’s easy for people to be cynical about not being able to control their privacy when it comes to the government when they also feel powerless against private agents as well.

Which Leaks Matter?

Ben Wittes and Robert Chesney explain why it’s a mistake to conflate the recent leaks about PRISM and Verizon:

At a high-level of abstraction, it does make some sense to lump these stories together. They both concern the tension between privacy and the need to collect intelligence in the context of evolving technologies—and the leaks, of course, came from the same source. But at another level, conflating these two stories is a big mistake. They are by no means of equal weight and importance when it comes to informing the public about the government’s data-collection and monitoring powers. The Post story actually tells us little we did not already know—other than operational details that may prove of considerable use to those seeking to avoid NSA surveillance. By contrast, the Guardian story reveals a genuinely surprising and significant government legal position—albeit one apparently accepted by the FISA Court and congressional oversight leaders for a number of years—with important implications for the future of big data in government collection, surveillance, and intelligence authorities. …

These fleeting glimpses into the shadow worlds of counterterrorism, counterespionage, and counterproliferation are not always a bad thing. Sometimes, they prompt needed debate; even the White House has said that the president “welcomes the discussion of the trade-off between security and civil liberties” that the Verizon disclosure will produce. Some secret activities may be especially unwise or even illegal, so the proper amount of leaking in a healthy democracy is surely not zero. But it is equally true that, in some cases, exposure of classified information achieves little, while risking much. Snowden’s disclosures so far offer vivid examples of both the good and the bad of national security oversight by individual acts of civil disobedience.

What Is PRISM, Exactly?

Ambers provides an extremely thorough, acronymn-filled explainer on the NSA program:

What makes PRISM interesting to us is that it seems to be the ONLY system that the NSA uses to collect/analyze non-telephonic non-analog data stored on American servers but updated and controlled and “owned” by users overseas. It is a domestic collection platform USED for foreign intelligence collection. It is of course hard to view a Facebook account in isolation and not incidentally come into contact with an account that is owned by an American. I assume that a bunch of us have Pakistani Facebook friends.

If the NSA is collecting on that account, and I were to initiate a Facebook chat, the NSA would suck up my chat. Supposedly, the PRISM system would flag this as an incidental overcollect and delete it from the analyst’s workspace. Because the internet is a really complicated series of tubes, though, this doesn’t always happen. And so the analyst must sometimes “physically” segregate the U.S. person’s data.

What happens if I, in America, tell my Pakistani friend via Facebook chat that I am going to bomb a bridge? We don’t know precisely what happens when, in the course of a foreign intelligence intercept, a U.S. person creates evidence of their complicity with terrorism. The analyst must be able to distinguish between relevant and non-relevant communication. If the analyst catches my threat, then he or she will immediately initiate a procedure that sends the information to the FBI, which begins its own investigation of me. The NSA does not continue to collect on me. The FBI does — and probably uses the NSA tip as probable cause to obtain a FISA order to start collecting data using a PRISM-type tool of its own.

Great to have a simple empirical explanation – and it reaffirms my view that this is not unconstitutional at all.

How Dumb Was Fleeing To Hong Kong?

Many bloggers have noted how foolish the NSA leaker was for choosing to hide out in Hong Kong, but:

[T]here is at least one reason it could be incredibly shrewd: Hong Kong’s asylum system is currently stuck in a state of limbo that could allow Snowden to exploit a loophole and buy some valuable time.

Simon Young, director of the Centre for Comparative and Public Law at the University of Hong Kong, told GlobalPost that a decision delivered by Hong Kong’s High Court in March of this year required the government to create a new procedure for reviewing asylum applications. Until the government does this, he said, asylum seekers are allowed to stay in Hong Kong indefinitely. “We’re still waiting to hear from government how they are going to implement this decision,” said Young. “Until that’s the case, you can’t return anyone until the law’s in place.” In other words, should Snowden apply for asylum, then even if the US made a valid extradition request and Hong Kong was willing to comply he could not be deported until the government figured out a new way to review asylum cases — a potentially lengthy process.

And on what grounds would get asylum? This seems a stretch to me. Meanwhile, Trey Menefee maintains that Fallows mischaracterized China’s control over Hong Kong:

He seems to fundamentally misunderstand and/or misrepresent the nature of “one country, two systems.” Or he does understand, but skips ahead three steps without articulating his meaning. The principle and reality of “one country, two systems” is that all of the critiques Fallows makes of freedom in China simply don’t apply to Hong Kong because we have a separate system. China’s spying on citizens and government control of media stops at the Shenzhen border – and is exactly where Hong Kong is legally and politically separate from “China.” Fallows knows this but is – very strangely – critiquing the mainland Chinese system as if that’s the political and legal system that Snowden fled to.

Worse, one gets the impression reading what he wrote that he’s saying that, at any moment, Beijing’s Standing Committee can snap their fingers and make facets (or the entirety?) of Hong Kong’s domestic system of freedoms disappear. That two systems become one. There’s really no evidence of anything like that ever having happened at any large scale* – though Hong Kong people are, perhaps correctly, fearful of this prospect and are on a constant guard against intrusions.

Where Fallows might be correct, but is being unhelpfully inarticulate, is that Beijing can snap its fingers and make or change policy on some issues. Specifically, Hong Kong stops being “two systems” and becomes “one country” in relation to foreign policy. If China goes to war with a country, Hong Kong goes to war with them too. So while Hong Kong does have relatively autonomous relations with the outside world, those relations can change “in a pinch” if they conflict with Beijing’s foreign policy.

And that’s the correct framing of an almost certain Snowden extradition request by the US government: it’s going to be a complex Hong Kong-China foreign policy issue, not an issue of freedom in Hong Kong.

Dissents Of The Day

A reader writes:

Okay, I really don’t understand. Mike Bloomberg wants to regulate smoking and guns and soft drinks and you rail about how “the man just despises freedom.” Yet when the NSA is revealed to be invading communications records on a massive scale and says “trust us, we’re not actually listening to the content,” you’re content to stand by and yawn. Answer me this: Which is the more basic, existential threat to individual liberty: the right to smoke cancer sticks and buy a Big Gulp whenever and wherever, or the right to have some semblance of privacy when communicating with other people? A quick skim of the Constitution makes it pretty clear which of those would have attracted the interest of its authors.

More interesting to me than the much-publicized phone-metadata aspect of PRISM is the way it allows the NSA virtually unlimited access to anything you have done on the Internet. Gizmodo’s explanation of the program is terrifying:

When the NSA monitors phone records, it reportedly only collects the metadata therein. That includes to and from whom the calls were made, where the calls came from, and other generalized info. Importantly, as far as we know, the actual content of the calls was off-limits.

By contrast, PRISM apparently allows full access not just to the fact that an email or chat was sent, but also the contents of those emails and chats. According to the Washington Post’s source, they can “literally watch you as you type.” They could be doing it right now.

In any context other than this, a backdoor into your computer that allowed someone else to view this kind of data would be considered a computer virus, and the person doing it would most likely be a hacker interested in stealing your identity. The government regularly sends people to lengthy prison sentences for doing that. In the wake of the IRS scandal, which we are told was the work of a few rogue government employees, who’s to say that a few “overzealous” NSA employees aren’t reading things they’re not supposed to read?

Yes, today they tell us the content isn’t being viewed, but the key factor is that it CAN be viewed. At any time. And we wouldn’t know.

It seems foolhardy that we are supposed to just let that possibility sit out there and pray we don’t end up with another Nixon Administration willing to turn the nation’s intelligence apparatus against its own citizens for political gain.

I voted for President Obama, and I worked for his campaign. I had hoped that he would reverse the Bush Administration’s record on pushing the envelope towards much more government intrusion into private communications. I had hoped President Obama would realize that the government declaring its own citizens to be legitimate targets of incredibly broad surveillance power is one of the hallmarks of a banana republic. To see the president not only defend these programs, but viciously assail the people who have brought it out into the open for a little disinfecting sunlight, makes me incredibly sad. “Openness and transparency” has become a cover for the administration that is completely okay with giving itself the power to literally read my email with not the slightest fig leaf of due process of law.

If you still think Mike Bloomberg is the biggest threat to freedom around, you need help.

As I understand it – and one of the good things about the leak is that it helps us understand all this better – the feds would have to go to a FISA court to pursue any specific content of an email. Another reader:

Handing over custody of this information BEFORE anyone is suspected of being up to no good?  How could you possibly believe it’s not been abused, Andrew?  Wake up!  Based on our history, we should assume there is a 100% chance some lackey with access to this database had some fun and made a map of some famous person’s whereabouts for no reason other than that he could.  Then he found out some leading man in Hollywood frequents a gay club and chuckled.  Of course he only told his fellow co-workers who also have clearance, so no harm no foul right?  This is what happens in bureaucracies. And by definition the opportunity for abuse holds doubly so for a secret program.

So we leave this kind of information to private entities alone? As long as you’re clear about what you’re doing and will not complain about the government next time a Tsarnaev sets off a bomb, fine. Another lays out other scenarios:

The NSA data that was collected is basically a discrimination and blackmail nuclear bomb waiting to go off. With it you could determine if a closeted gay politician secretly called a gay lover or visited a gay porn website. You could determine if a judge or politician was having an affair by scrutinizing their credit card purchases and phone calls (with GPS coordinates). You could determine if a rival businessman was talking with competitors, giving you a business advantage. You could blackmail government employees in a way that makes the Valerie Plame affair look like child’s play. And you could track political enemies and determine the composition and funding of all opposing PACs. The DOJ could mine data to start criminal investigations even though people were under no suspicion of a crime.

The data is all there, which is why the NSA wanted it for terrorism first. Will it stop there? News reports indicate that it is being shared with the UK. But since there is now the infrastructure in most major technology companies to spy on their users, could this data somehow make its way to organized crime or China? If so, then the entire US political system could be blackmailed (the nuclear bomb that I mentioned).

This is not a joke. You need to take this seriously and ignore the half-assed responses by Obama.

Another sends the above video:

I’ve been reading your blog since 2003. This is the first email I have ever felt I needed to send to you. When you broke off from the Daily Beast and added a subscription service I joined on day one. But I believe your friendship with President Obama is clouding your judgment on the NSA whistleblower case.

You have yet to point out how disingenuous it is of the president to come forward after the fact to say he now welcomes this debate on privacy. Yet hasn’t his administration has done everything in its power to keep this information from the public? His prosecution of more whistleblowers than all other administrations combined is a pretty clear indication he doesn’t want transparency or accountability within the national security state. That in and of itself is a pretty damning story.

At the very least you could write about how this is a campaign promise broken by the president. The leak of NSA documents detailing an all encompassing database that organically builds profiles on every individual foreign and domestic is a fascinating story regardless of what side you come down on. I suspect you keep saying you are “not surprised” and “underwhelmed” so that you can ignore this story as much as possible as it develops. I really hope I am wrong.

The size and scope of the security state should be of real concern. This is not the first topic I have disagreed with you on but I will say it is the first time I have ever seen you handle something disingenuously. Never would you have given Bush so much rope.

Edward Snowden just threw his life away so that this information could be made public. It deserves a fair hearing. I think Obama 2007 would agree. And that to me is what it comes down to, Obama ran on transparency and on limiting these powers. That he changed his mind once he got into office isn’t the problem. The problem is that he kept that change of heart from the public. He violated our trust whem he continued to promote his administration as one championing transparency, accountability and the rule of law.

I did give Bush the same amount of rope – although obviously these technologies have accelerated and intensified since then. And I do believe that this program should be debated. But no, I don’t think it’s somehow a grotesque betrayal that a president actually has to weigh the balance between national security and non-surveillance and is not always completely on the side of non-surveillance. Sometimes you begin to think that the critics have no idea what it is to take charge of and shift a massive security bureaucracy toward a calmer, saner place after the over-reach after 9/11. I think I have some idea. You can’t just wipe the slate clean. It takes time. Some programs endure; others rightly wither. And of all the things Obama inherited from Bush in the national security infrastructure, analyzing haystacks for needles seems to me one of the least objectionable.

But as I said, I can live without it. I just think those who want it gone need to address the potential trade-off in security it might entail – and argue that it’s worth it.