Snowden’s Muddled Message

Also posted in my blog, Strategic Ramblings.

Edward Snowden is once again the headline leader. The man some consider a whistle-blower and others think a traitor is trying to gain temporary asylum in Russia. His U.S. passport having been suspended, Russian asylum seems to be his only immediate path out of the transit lounge of Sheremetyevo International Airport in Moscow. A few countries in Latin America have agreed to offer Snowden asylum and he has expressed interest in taking Venezuela up on the offer, but without a passport he is stuck like Tom Hanks’ character in Terminal Man.

The request for Russian asylum is problematic in that Russian President Vladimir Putin has said that asylum wouldn’t be considered as long as Snowden was still leaking. While Snowden said he has no interest in hurting the U.S., he is still talking about U.S. intelligence activities and seems unlikely to give up giving up information.

When the revelations of this story initially broke in the Guardian, I was outraged by the allegations being put forth by Snowden. In essence, Snowden suggested that Americans’ electronic communications were being spied on without warrants and without specificity. While lawyers and politicians love to play word games, the Fourth Amendment is clear and concise. Where there is a reasonable expectation of privacy, searches require a warrant that says who is involved and what’s being sought. In short, the Constitution doesn’t allow fishing expeditions.

The damage control by the Administration and the Intelligence Community in subsequent days was even more infuriating. The message seemed to be, “We want to have an open debate about all these nifty protections that are in place to make this all legal, but, alas, that’s all classified.I’m not saying you should just trust us, but–yeah–just trust us, ya-da-ya-da-ya-da.” I’m suspicious of a government attempting to expand its power; I abhor a government that tries to do it under the cover of darkness.

Director of National Intelligence, James Clapper, had been asked the following question by a Senator during his testimony, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

Clearly the answer to this question, in light of the Verizon revelation was, “yes.” However, Clapper answered in the negative, and then added a qualifier “not wittingly” that didn’t help improve the truthfulness of statement, but should have been a red flag that the Director was trying to play some type of semantic game. Clapper later went on a Nixon-esque / Clinton-esque defensive about how his answer was the “least untruthful.” Of course, to suggest that the Verizon data was “unwittingly collected” strains credulity.

When General Keith Alexander of the NSA (among others) testified, he said that he had three points. First, that the programs had yielded positive results, or–in other words–the ends justified the means. Second, that the programs in question were “limited, focused, and subject to rigorous oversight.” Third, privacy and civil liberties are protected by the programs. However, he seemed to only want to talk substance about the first point–that is, what ends justified these means. I found it disconcerting that Gen. Alexander could tell us something about which cases had positive outcomes as a result of these programs, but not about the processes and protections required to draw specific information from the vast pools of data being collected on Americans. The former being the kind of information that could have negative security ramifications, the latter could only embarrass politicians. Secrecy is needed to protect assets and methods, but shouldn’t be a tool of protecting dubious legal practices. Al Qaeda doesn’t get a leg up by knowing the legal process required to access data generically.

The testimony was full of what would be objected to as “leading questions” in a court of law. For example, Alexander was asked if there was “any switch that could be flipped to allow analysts to eavesdrop on communications.” This makes for nice ass-covering when it turns out that they, in fact, have to type a command into a command line. “No, we never lied. We were as truthy as can be, there is no switch– we had the switches replaced with buttons decades ago.” Alexander repeated the “flip a switch” phrase back in his reply so that they were all on the same page.

As sad as any comment made was when Alexander said, “Further, as the Deputy Attorney General noted, virtually all countries have lawful intercept programs under which they compel communications providers to share information about individuals they believe represent a threat to their societies.” At the risk of sounding nostalgic, I remember when America prided itself in being a leader in liberty rather than saying, “look we aren’t doing anything that Russia and China aren’t!”

Telling me that you had success due to these programs isn’t enough for me. If you said, “hey, we put everyone of a particular religious persuasion in jail, and we foiled x-number of plots,” should I be reassured or outraged. I would argue the latter.

Telling me that other countries have such programs doesn’t satisfy me. I think the U.S. should seek to be on the leading edge of freedom and not happy slouching around the middle of the pack.

Telling me that a given database has only phone numbers and metadata and no identifying information doesn’t really inspire confidence. It turns out that there’s this nifty thing called “the internet” that allows one to look up people’s names from a phone number. You’re going to tell me that no one is going to google the number they’re looking for information about?

If the government wants to reassure the public, they need to have transparency in legal processes and not hide behind a veil of classified information.

Of course, part of the disagreement is that the law as it now stands only suggests only the content of messages incurs a reasonable expectation of privacy. That Mr. A talked to his therapist for two hours one Sunday evening as (according to cell tower triangulation data) he was sitting in the parking lot of a hospital is–in the eyes of many–completely unprotected information that no one could reasonably expect to be their own damn business.

I’m not comfortable with the collection of vast stores of information on citizens. Even if there are some protections that are working for the moment, all that information will just be waiting for some moment of weakness, some rally-around-the-flag moment, during which people are willing to flush all they hold dear down the crapper in exchange for a promise of security.

Having said all this, I’ve had a bit of trouble retaining sympathy towards Snowden as he’s muddled his initial message about unconstitutional actions. When he started releasing information about how the U.S. was spying on China, his message became lost. Of course the U.S. is spying on China, and they upon us. That’s the nature of the game in an anarchic international system. Yes, it’s a political embarrassment; coming as it did when the President was attempting to give China “the old what for” over the issue, but spying on other countries in order to keep one safe is part of what is expected of a government. (Yes, even on allies. You can be certain Israel, Japan, and the United Kingdom are spying on the U.S.) I take as a given that other countries might try to read my email if they think it has any potential benefit to them. However, they haven’t been granted a monopoly on the legitimate use of force against me. I expect my government to serve to protect me from any dire consequences of other country’s snooping. In fact, I have held jobs where other countries may have eavesdropped on me (not because of the work I did, but because of with whom I was in contact.) The potential for nefarious activities by a foreign country are just not the same as they are for domestic shenanigans–for most of us at least. There is less incentive to try to manipulate a random Joe for political or material gain across borders than there is within.

If Snowden is driven by his love of freedom, why has he headed in the direction that he has. Even if everything he says is absolutely true, the U.S. is still vastly more free than either Russia or Venezuela (e.g.Freedom House ranks the former as “not free” and the latter as “partially free.”) (There is some doubt about whether what Snowden says is true, but as the government hasn’t really delved into details or engaged in any contradiction that is not riddled with carefully censored qualifying words, one cannot tell.)

The Snowden Dilemma

[This was previously posted in my blog, Strategic Ramblings.]

As I–and everyone else– follow the slew of articles on Edward Snowden, I saw the following quote from Lord Acton:

Every thing secret degenerates, even the administration of justice; nothing is safe that does not show how it can bear discussion and publicity.

I agree wholeheartedly with Acton’s statement. The debate revolving around the former Booz Allen Hamilton contractor raises some intriguing questions. Once upon a time, I held a security clearance–not a particularly high one–but nonetheless a promise to keep the secrets I was exposed to in the process of my job. I took that clearance deadly serious and recognized its value and importance. However, I had it easy. I never faced any great moral dilemma over keeping my promise. Snowden’s situation was quite different.

What does one do when one sees one’s employer engaging in behavior that is illegal and/or unconstitutional under the normal definitions of words as we commonly use them. That is, the government has creatively taken words like “facility” and “targeting” and put an Orwellian twist on them to make a wild violation of U.S. citizens’ reasonable expectation of privacy in order to lawyer the program into one that some might define as “technically” legal. (e.g. the Washington Post article said that huge sets of information data were labeled “facilities” [suspected involved in terrorism] in order to justify all that information being handed to the government.) Of course, the national security leadership has been singing a refrain of “we don’t target U.S. citizens.” What is left unsaid is that while they don’t “target” U.S. citizens they come into a lot of information on citizens because: a.) they have a very low standard for determining likelihood of foreignness, and b.) they are collecting information on individuals regardless of whether they are suspected of anything.

So if you are Edward Snowden, you are a low-level employee. Your superiors don’t give a damn what you think about the legality of the program. You can’t complain to anyone because no one who cares is cleared to hear it, and those who are cleared to hear it have a vested interested in maintaining (if not expanding) the intrusions.  What would you tell Snowden if you were his friend, and not a complete stranger with your own feelings on the subject? That’s a tough one.

Secrecy may be necessary in some cases, but I’m uncomfortable writing the government a blank check. Officials will say, “it’s not a blank check, we have internal and external oversight.” First of all, the idea of “internal oversight” is not particularly confidence inspiring. That’s a little too much like “Otis” from the Andy Griffith Show letting himself in and out of the drunk tank as he saw fit for my taste. Second, how can any of us know that a judge acting on a FISA warrant treats it with the same seriousness as a case in which their decision will be open to public scrutiny? I don’t know, but I don’t hear of a lot of warrants in, say, bank robbery cases in which the phone records of millions of people unsuspected of a crime are to be handed over for a period of months.  Yes, finding and uncovering terrorists is more difficult than building a case against other criminals, but I remain skeptical because–as Lord Acton said, “Every thing secret degenerates, even the administration of justice…”