When Edward Snowden began leaking NSA documents in June 2013, his actions sparked impassioned debates about electronic surveillance, national security, and privacy in the digital age. The Snowden Reader looks at Snowden’s disclosures and their aftermath. Critical analyses by experts discuss the historical, political, legal, and ethical issues raised by the disclosures. Over forty key documents related to the case are included, with introductory notes explaining their significance: documents leaked by Snowden; responses from the NSA, the Obama administration, and Congress; statements by foreign leaders, their governments, and international organizations; judicial rulings; findings of review committees; and Snowden’s own statements. This book provides a valuable introduction and overview for anyone who wants to go beyond the headlines to understand this historic episode.
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About the Author
David P. Fidler is James Louis Calamaras Professor in the Maurer School of Law at Indiana University. He is author or editor of twelve books, including (with Arturo J. Marcano Guevara) Stealing Lives: The Globalization of Baseball and the Tragic Story of Alexis Quiroz (IUP, 2002).
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The Snowden Reader
By David P. Fidler
Indiana University PressCopyright © 2015 Indiana University Press
All rights reserved.
Security and Liberty: The Imaginary Balance
If one truism captures the tenor of discussion surrounding the Snowden revelations, it is the recurring metaphor of balance between liberty and security. In May 2013, three days after Snowden fled to Hong Kong but before his disclosures began, President Obama maintained his administration was "working hard to strike the appropriate balance between our need for security and preserving those freedoms that make us who we are." Later, as the magnitude of National Security Agency's mass surveillance became clear from Snowden's leaks, editorialists condemned the president in almost the same words: George W. Bush had "tipped the balance too far from liberty towards security," wrote The Economist, "and it has stayed there under Barack Obama."
On December 16, 2013, a federal district judge ruled the NSA's domestic telephony metadata program "probably unconstitutional," and observed that the case was "the latest chapter in the Judiciary's continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens.... In the months ahead, other Article III courts, no doubt will wrestle to find the proper balance consistent with our constitutional system." On December 27, 2013, another judge in a different circuit upheld the NSA's telephony metadata program in dismissing a lawsuit from the American Civil Liberties Union. Referring to the 9/11 Commission, this judge stated that "[t]he choice between liberty and security is a false one, as nothing is more apt to imperil civil liberties than the success of a terrorist attack on American soil."
Extending the meme beyond America's borders, Silicon Valley giants—including Google, Facebook, and Twitter—objected in an open letter in December 2013 that the "balance in many countries has tipped too far in favor of the state and away from the rights of the individual." The contexts in which the "balance" metaphor has arisen in responses to Snowden's disclosures all refer to government's need to protect official secrets as central to the maintenance of "security." Through repetition, the balance cliche has gained an aura of probity, even wisdom. It appears to be a neutral framing of the problem of official secrecy, but the perception that liberty and security sit in the teetering pans of a beam scale comes laden with assumptions that deserve examination.
This perception implies that security and liberty are competing considerations and that a responsible government has an obligation to restrict civil liberties to meet a minimum standard of diligence in pursuit of security. It also carries connotations of quantity and precision, as if security and liberty are two columns in a ledger in which incremental deductions can be measured or recorded.
The metaphor also gives primacy to administration over law or principle, conveying a notion that the process of balancing is a matter of bureaucratic fine-tuning, not a job for politicians or citizens but for experts. And, finally, it implies a permanence to the process, as if balancing ("a continuing challenge") has always gone on and always will. In December 2013, Senator Ron Wyden attributed "what's always been the constitutional teeter-totter" to "the founding fathers, it really comes back to that. They always said, our system works when you have liberty and security in balance."
The Invented History of Balance
Wyden felt no need to specify which founding father invented the teeter-totter image or in which of the Federalist Papers it appeared. Nor did Senator Charles Schumer, who told Face the Nation that the "balance" issue was "age-old ... since the Constitution was written." Although the image gains much of its rhetorical power from its presumed antiquity, it does not appear in any of the founding documents, the debates in the Congressional Globe, or the speeches of Abraham Lincoln. Oliver Wendell Holmes, who limited free speech to those not yelling fire in crowded theaters, did not mention it. Perhaps more strikingly, Americans weathered three existential crises in the first half of the twentieth century—World War I, the Great Depression, and World War II—without discussing or attempting to balance security and liberty.
In facing dangers more dire than terrorism, previous administrations pushed for suspension or modification of conceptions of liberty by arguing either that the circumstances required it or the Constitution allowed it. Woodrow Wilson's administration, in securing passage of the 1917 espionage laws under which Snowden is charged, stated plainly that the Bill of Rights was suspended for the duration of the war. Wilson noted that "a time of war must be regarded as wholly exceptional, and that it is legitimate to regard things which would in ordinary circumstances be innocent as very dangerous."
Franklin Roosevelt, in asking for a vast expansion of executive power to meet the twin emergencies of the Depression and war persuasively argued that the Constitution was expansive enough to accommodate the requirements of liberty as well as the need to act in the national defense. "Our Constitution is so simple and practical," he explained in his first inaugural, "that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form." Wilson and Roosevelt each violated civil liberties on a frightful scale, but these older justifications had the advantage of requiring politicians to acknowledge the violation, to say when the public could expect its full rights to be restored, and to explain their interpretation of their obligations under the Constitution.
Balance and the Politics of Secrecy
It was only in the 1940s that the term "security" came to mean protecting state secrets, or, as the Oxford English Dictionary's earliest record of this usage put it, "the Army term for what normal people call secrecy." The apparatus of official secrecy in the United States, as well as the balance metaphor used to justify it, emerged in the particular cultural setting of the nuclear age, the Red Scare, wiretapping by the Federal Bureau of Investigation (FBI), and the Cold War. Its inventor was Harry S. Truman, under attack for tolerating a State Department riddled with communist spies and for overzealously enforcing the loyalty codes intended to keep spies out. On January 23, 1951, he named Admiral Chester Nimitz to head a presidential commission on secrecy and enjoined him to "seek the wisest balance that can be struck between security and freedom." It was the first recorded use of the balance image.
The balance trope, thus, emerged in a specific policy context. The Nimitz Commission was the first of a series of panels that dismantled the patchwork of McCarthy-era loyalty programs and replaced them with a unified, professionalized system of security clearances. This system classified two things, documents and personnel. Documents were divided into three primary and other exceptional levels of secrecy, and personnel were given "clearance" at corresponding levels. The classification system emerged as a solution to the divisive politics of loyalty, which subjected the Truman and Eisenhower administrations to repeated charges of harboring subversives and sympathizers and which subjected officials, writers, educators, and anyone of influence to unsubstantiated charges against their integrity.
The loyalty programs began in 1941, when Roosevelt authorized the FBI to fingerprint and investigate the backgrounds of all federal employees. In 1947, Truman created an extensive apparatus of commissions to enforce the "complete and unswerving loyalty" of all federal employees. Dismissal was mandated on the basis of any "derogatory information" or simply by the subject's inability to refute unsubstantiated charges. Loyalty was a universal category, and anyone positioned anywhere in the government, from the Manhattan Project to the Bureau of Weights and Measures, could be fired on the basis of mere accusation. The FBI pushed the program outside government, sending "blind memoranda" to private companies fingering suspect employees on their payrolls.
By 1951, Truman faced a rising public backlash against indiscriminate investigations and reckless allegations of disloyalty. At the same time, Senator Joseph McCarthy was accusing the administration of harboring hundreds of known communists. The security clearance system was designed to narrow investigations to a smaller set of officials who had access to high-level secrets. The press generally applauded the move, but editorials hit at Truman's framing of the issue as one of balance. The New York Times argued, "We do not have to choose between sedition or treason on the one hand and a sterile conformity on the other. We do not have to endure either." "Security and freedom are not in conflict," insisted the Washington Post, "they are, on the contrary, complimentary." Editorials maintained that the government was responsible for ensuring both security and liberty, but they welcomed a more civil and methodical process for granting security clearances.
Begun by the Nimitz Commission, the work of establishing a nonpolitical system for rationing security clearances was implemented through presidential Executive Orders 10290 and 10450 and finalized by the Wright Commission in 1957. This solution turned the fractious issue of loyalty into an issue of "suitability" assessed through a system of uniform procedures. "All loyalty cases are security cases, but the converse is not true," the Wright Commission observed. "A man who talks too freely when in his cups or a pervert who is vulnerable to blackmail may both be security risks although both may be loyal Americans." The polygraph, psychological profiling, and background investigations were tools for drawing a harder, more scientific line between the suitable and the unsuitable.
The new system changed loyalty from a political question to a procedural one and changed "clearance" from a verdict—exoneration before a Loyalty Board—into a credential. By the late 1950s, it was being used as an ordinary noun, a "security clearance," something everyone in defense or intelligence work had to have. This strategy did not fully end the injustices of the loyalty screenings. In fact, it replaced the Red Scare with a Lavender Scare as the government searched for evidence of unsuitability in bedrooms. But, consequentially for the Snowden case, it introduced new hierarchies, between sensitive jobs and nonsensitive ones, those with a clearance and those without, and, eventually, between those with various levels of clearance.
The Cleared and the Uncleared
The language of balance was, thus, introduced to describe the proper relation between the small group of people with a security clearance and the remainder of the American public, which now had no legitimate recourse to the growing system of hidden knowledge their government was creating and using. That is what the balance idea still describes. Snowden justifies his actions as an attempt to redress what he sees as a widening imbalance of power between the cleared and the uncleared. "These things need to be determined by the public, not by somebody who was simply hired by the government," he explained in his first statement from Hong Kong. "The public needs to decide whether these programs and policies are right or wrong."
Today, five million Americans hold security clearances, 1.5 percent of the population. They are seen as government insiders, but they attain that status by sacrificing a substantial share of their rights. Most are subject to lifetime confidentiality contracts that prohibit them from ever speaking about what they know. Those without clearances also sacrifice rights; they live in a country divided between those who know and cannot speak, and those who can speak but do not know.
The politics of the Snowden case rests on this division. Leaks have become the prime driver of reform in the intelligence establishment, not because illegal or improper acts were necessarily committed, but because the public has been left in the dark about what is legal and proper under the applicable rules. The oversight procedures in the executive, legislative, and judicial branches, operating within the confines of the secrecy regime, were satisfied that the system was working and that adequate and effective checks were in place. It was only those outside the clearance wall—the press, foreign leaders, and the public—who were outraged by the nature and scale of the NSA's activities.
The leaker is now an indispensable but criminalized link, mediating a vexed relationship between the public and the cleared. Snowden is charged, and Bradley/Chelsea Manning was convicted in the Wikileaks affair, with disclosing classified information to "unauthorized persons." The charge refers not only to the Russians or Chinese, but also to the 308 million Americans without a security clearance. Obama's vigorous pursuit of leakers, the Department of Justice's use of subpoenas to obtain information about press contacts, and the administration's ongoing prosecution of New York Times correspondent James Risen for shielding a confidential source are all attempts to police a crumbling boundary between the suitable and unsuitable sectors of the American polity.
There have been other rationales for drawing arbitrary lines between Americans, and they have proven more or less durable. "Separate but Equal" lasted sixty years; "Don't Ask Don't Tell" lasted considerably less. When such barriers fall, they do so abruptly, resting as they do on a kind of common sense that suddenly makes no sense.
Snowden's most politically damaging revelation was the complicity of the watchdogs charged with protecting the public interest, the oversight committees and the FISA court, which acquiesced when the NSA overstepped even the residual safeguards left standing after 9/11. When it became clear that there was no balancer, no effective advocate for the uncleared majority, NSA surveillance lost legitimacy. To continue, former NSA chief Michael Hayden explained, the president needed to regain "the consent of the governed." The NSA and the administration scrambled to put forward transparency proposals and shift some collection activities from intelligence agencies to telecom providers. This was, Hayden told Chris Wallace of Fox News Sunday, "a PR move." The president needed to restore an appearance of balance, "but the objective ... is to keep on doing what he's doing."CHAPTER 2
Edward Snowden and the NSA: Law, Policy, and Politics
FRED H. CATE
The disclosures by Edward Snowden have revealed a great deal about the National Security Agency, its surveillance activities, and the oversight provided by the president, the Foreign Intelligence Surveillance Court (FISC), and Congress. Snowden's disclosures, and subsequent responses (or lack thereof) by government officials, focus attention on five significant sets of issues that confront the American people and their government: the scope of the NSA's legal authority, problems with the honesty of U.S. officials, the hypocrisy of the U.S. government concerning cyber espionage, the undermining of cyber security by U.S. actions, and the impact of U.S. surveillance activities on personal privacy.
The NSA's Legal Authority
The first set of issues concerns the authority under which the NSA has conducted the sweeping surveillance programs Snowden disclosed. Thanks to the documents Snowden leaked, we have learned about more and more NSA practices, including how it undertakes surveillance activities, introduces security vulnerabilities into products and services, or compels the private sector to cooperate in these activities. In each case, we want to know under what legal authority is the NSA acting. To date, the only surveillance activities we know about in legal detail are the ones the Obama administration has addressed publicly-compelling phone companies to disclose metadata about all telephone calls under Section 215 of the USA PATRIOT Act and the PRISM program operated under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is addressed elsewhere in this book.
Excerpted from The Snowden Reader by David P. Fidler. Copyright © 2015 Indiana University Press. Excerpted by permission of Indiana University Press.
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Table of Contents
Foreword Sumit Ganguly
Introduction David P. Fidler
Part I. Perspectives on the Snowden Disclosures
1. Security and Liberty: The Imaginary Balance Nick Cullather
2. Edward Snowden and the NSA: Law, Policy, and Politics Fred H. Cate
3. From Passivity to Eternal Vigilance: NSA Surveillance and Effective Oversight of Government Power Lee H. Hamilton
4. U.S. Foreign Policy and the Snowden Leaks David P. Fidler
5. Taking Snowden Seriously: Civil Disobedience for an Age of Total Surveillance William E. Scheuerman
Part II. The Snowden Saga in Primary Documents
A. Revelations and Reactions
Unconstitutional Abuse of Power or Legitimate and Necessary Security Measures?
NSA Programs under the Foreign Intelligence Surveillance Act
1. The Verizon Order
2. NSA PRISM and UPSTREAM Briefing Slides
3. Robert S. Litt, Director of National Intelligence, Speech at Brookings Institution
4. Amash-Conyers Amendment Debate, U.S. House of Representatives
Hero or Villain? Persecuting a Defender of Human Rights v. Prosecuting a Criminal Suspect
5. Edward Snowden, Statement at the Moscow Airport
6. Attorney General Eric Holder, Letter to Russian Minister of Justice
Rubber Stamp or Robust Tribunal? The Foreign Intelligence Surveillance Court
7. Foreign Intelligence Surveillance Court Order 2009
Made in the USA? NSA Surveillance and U.S. Technology Companies
8. NSA MUSCULAR Program Briefing Slide
9. Statement by Yahoo CEO Marissa Mayer
10. Reform Government Surveillance: Open Letter from U.S. Technology Companies
Friend and Foe? U.S. Espionage against Other Countries
11. NSA Briefing Slides on Brazilian President Dilma Roussef and Petrobas Oil Company
12. Director of National Intelligence James Clapper, Statement on Economic Espionage and Foreign Intelligence
13. Dilma Rousseff, President of Brazil, Statement to United Nati
What People are Saying About This
The Snowden Readeris a must-read volume for every citizen who cares about protecting our fundamental right to privacy, and ensuring that our nation’s legitimate security needs are kept within the letter and spirit of our Constitution.
The Snowden Readercombines a collection of key original documents with thoughtful essays by a range of experts, which shed new light on the momentous issues surrounding Edward Snowden’s dramatic disclosures. This is an invaluable resource for anyone interested in not only the compelling Snowden story, but also urgent broader questions about government surveillance, secrecy, treatment of whistleblowers and executive accountability, as well as implications for technology companies, international relations, and potential legislative reform.