The Edward Snowden Affair

by Michael Gurnow

  The program “searches [the] bodies of emails, webpages and documents,” including the “To, From, CC, BCC lines” as well as ‘Contact Us’ pages on websites.” By utilizing a tool called “Presenter,” an analyst can freely read Facebook chats or private messages. This is as simple as entering a user’s Facebook name and listing a date range for the desired online conversations. An analyst can even investigate what terms have been entered into a search engine and the locations a person has explored using Google Maps. In the NSA’s assessment, XKeyscore allows access to “nearly everything a typical user does on the internet.” The slides boast of “provid[ing] real-time target activity” which alerts analysts to new online activity conducted by a target. Analysts are told to be on the lookout for people “searching the web for suspicious stuff.” After “suspicious stuff” is detected, XKeyscore is used to reveal who has visited a particular website by accessing the website’s IP cookie address catalog. One training prompt dauntingly asks for XKeyscore to “Show me all the exploitable machines in country X.”

  As an example of the program’s prowess, when an analyst queries a person’s email, XKeyscore brings up everything that has been collected, and the analyst can then pick which emails to read. The available information includes “communications that transit the United States and communications that terminate in the United States.” In other words, the surveillance tool gathers any communications that travel through American networks. Accompanying documentation shows XKeyscore is positioned in Washington State, Texas and the upper northeast, presumably New York.

  In order to retroactively access this data, the NSA must record and index the World Wide Web’s “raw unselected bulk traffic” flow. Poitras would later add that it does this using “DeepDive” buffer technology. This slows down Internet connections so data captures can be made more easily.19 The classified slides relay that up to two billion records are added daily. During one month in 2008, XKeyscore had vacuumed up nearly 42 billion live, full-take records. By 2012, an average of 150 bits of data for every Internet user in America was stored in the NSA’s 30-day buffer. Confirming Snowden’s previous Der Spiegel statement, XKeyscore has “customizable storage times.”

  Targeting takes places using templated forms that permit an analyst to select justification from a simple dropdown menu. Analysts are allowed to pick from several choices, including “Phone number country code indicates person is located outside the U.S.,” “Phone number is registered in a country other than the U.S.” and the easiest alibi for an inquiry, “In direct contact w/tgt [target] overseas, no info to show proposed tgt in U.S.” As Greenwald makes clear, after an analyst hits “send,” the NSA employee does not have to wait for an FISC order or even in-house clearance before proceeding with the investigation. The only time a request is reviewed is after the fact should an audit take place. But, as Snowden informed his journalistic team in Hong Kong, “It’s very rare to be questioned on our searches and even when we are, it’s usually along the lines of ‘Let’s bulk up the justification.’” Using typical linguistic ambiguity, the NSA’s official statement regarding Greenwald’s report was, “Every search by an NSA analyst is [my emphasis] fully auditable,” not that searches were regularly audited in much the same manner a person can take a walk every day not necessitating the individual actually does.

  The documentation substantiates Greenwald’s June 20 warrantless data acquisition exposé as well as The Guardian’s July 11 Microsoft encryption report. Just as American citizen Bob’s foreign telephone is cause for an investigation, XKeyscore analysts are told to be mindful of “someone who is using encryption.” An example prompt also tells the program, “Show me all the VPN [virtual private network] startups in country X, and give me the data so I can decrypt and discover the users.” A VPN is often used for security purposes and grants the user the theoretical safety of a private network while permitting data to travel freely over the Internet. VPN’s are frequently utilized by corporate personnel to keep confidential business information out of a competitor’s grasp.

  XKeyscore also validates one of the whistleblower’s most controversial statements. On June 9, Snowden told the world, “Not all analysts have the ability to target everything, but I, sitting at my desk, certainly had the authorities to wiretap anyone from you or your accountant, to a federal judge, to even the President if I had a personal e-mail.” A week before Greenwald’s XKeyscore article premiered, Hayden stated in his op-ed, “To be sure, Snowden was reaching for dramatic effect, but if his words were true, he would have been violating not only the laws of the United States, he would also have been violating the laws of physics. He had neither the authority nor the ability to do what he has claimed he could do.” Nine days after Snowden had made his dubious announcement, Alexander met with members of Congress to discuss the NSA’s surveillance programs. When asked the leaning question by Chairman of the House Intelligence Committee Mike Rogers, “So the technology does not exist for any individual or group of individuals at the NSA to flip a switch, to listen to American’s phone calls or read their emails?” Alexander replied, “That is correct.”20 This is the same senator who, on October 3 during the 2013 Cybersecurity Summit, joked with Hayden about placing Snowden on an assassination list.21

  Pundits had focused upon what they considered the highly dubious claim by Snowden. Now they had proof. However, in the last line of his live June 17 chat, Snowden substantiated why he would need a letter to spy on the president, “The US Person / foreigner distinction is not a reasonable substitute for individualized suspicion, and is only applied to improve support for the program. This is the precise reason that NSA provides Congress with a special immunity to its surveillance.”22 Obviously, a warrant is required to spy upon anyone in the White House or Capitol Hill because the intelligence community considers such data “in-house.” Everyone else is fair game.

  Though it was known Germany had been given XKeyscore, the classified certification listed at the bottom of each slide grants the other Four Eyes permission to view the contents of the PowerPoint presentation. It is less obvious but nonetheless apparent that XKeyscore’s point-and-click dropdown menu was created for convenience and expediency but serves a greater internal purpose. Its design subtly imparts to analysts that nothing is legally amiss in what they are doing. The ease and speed to proceed with an investigation in lieu of a court order implies an analyst’s activities are being automatically processed and therefore are lawful and freely permitted. (Staff morale is perhaps the reason the PowerPoint pauses to announce “300 terrorists captured using intelligence generated from XKEYSCORE.”) Yet the choices an analyst is given to validate an inquiry are so broad, when placed alongside the grossly nondescript justification “suspicious stuff” being cause for alarm, almost any reason that can be articulated complies with NSA policy. For example, because terrorists want knowledge of the inner workings of the NSA, after criminal justice major Bob clicks on nsa.gov while researching a class project, he is a legitimate target once the analyst chooses XKeyscore’s option of “no info to show proposed tgt in U.S.” Under NSA policy, since Bob is now a target, all of Bob’s Facebook friends and email contacts (first hop) and subsequently his friend’s friends (second hop) are under surveillance.

  After waking up the world by exposing PRISM, Greenwald dispensed piecemeal disclosures to counter each progressive refutation by Washington that it was not committing invasive privacy violations. With each report, he further restricted the U.S. government’s argumentative wiggle room. Aided by a global editorial team, he gradually built up his case while taking the time to show that the surveillance abuses were not exclusive to the United States. But Greenwald had saved the best for last. After proving Washington had cleverly given itself the legal authority to domestically spy under the ruse of foreign targeting protocols, he established that it also had the technological capability to do so. It was his most condemning exposé to date. The only thing left to prove was that the technological capability was bein
g abused.

  During Washington’s July 31 public relations effort, Hayden appeared on CNN. When Erin Burnett asked about Greenwald’s XKeyscore report, “So you’re [Hayden] saying they [NSA analysts] can search through any given civilian … the text, the databases, the email searches, the internet searches, all those things [to] find that needle in the haystack,” a notably flustered Hayden reluctantly grumbled, “Yes.”23

  As with the meticulous timing of most every report, Greenwald knew Washington was sending out its best to help curb the world’s discontent with U.S. intelligence programs. The Guardian released Greenwald’s story on Wednesday morning. Even if the various government representatives compensated for XKeyscore by quickly editing what they were planning to say, their mere presence put a bad taste in the audiences’ mouths, especially after the same audiences had just finished reading Greenwald’s headline piece. Still, those familiar with Snowden’s plight could not help but wonder about the journalist’s poor timing. He had even made a point to specifically name Snowden as the responsible party.

  The appearance of Greenwald’s report could be read in two ways. Snowden had either told the journalist the two of them had nothing to fear because he was about to be granted Russian asylum, or all hope was lost because he’d been informed that his application was going to be denied and he was about to be deported. Though Greenwald had been delicate with what information he released and was conscientious about when he released it, Snowden not taking advantage of his newfound freedom after the Russian Federal Migration Service recognized his paperwork signaled something was wrong. Another ominous sign was Lon Snowden had given up hope of visiting his son in Russia.

  Snowden’s father had been reticent to speak to the press after he and the world learned that his son was the one responsible for the NSA disclosures. By June 17, Eric Bolling of Fox News had convinced Lon to conduct an exclusive interview.24 This was “after days of talking, emailing, and texting,” once Snowden’s father had “[ … ] reached out to someone in [Washington] D.C. whom he trusted.” That person, in Bolling’s words, “happen[ed] to trust me.”

  From the commencement of the dialogue, it is clear Edward inherited his linguistic dexterity. Lon speaks of “political discourse” and reports that the last time he saw his son was “in the shadow of the National Security Agency” on April 4. He exhibits a familiarity with law, incorporating the frequently heard legalese defense “I can’t speak to that” when asked if Edward had broken the law. Like his son, Lon is a thinker.

  Even though he is Edward’s father, Lon refuses to produce a blanket defense for his son’s actions. Lon announces he “served [the] nation for over 30 years honorably” and admits “that’s [stealing classified data] not something I could have done” but adds, “I’m not in Ed’s shoes.” He judiciously states because he is not aware of what Edward saw or experienced, he cannot rightly pass judgment.

  Lon acknowledges that a distinct line between right and wrong does not exist as he nonetheless stands on principle. The audience comes to understand where Edward derived his ethical sensibilities. Lon eloquently reports that his son had been confronted by what he viewed to be a “moral hazard,” the conflict between Edward’s oath to guard national security while simultaneously respecting the tenants of the Fourth Amendment.

  Lon states he personally does not “want the government listening to my phone calls, I don’t want the government archiving the places that my other children visit on the internet [ … ]. I don’t want them reading my email. I don’t want them reading my texts,” even under the guise of “we need to keep you safe.” He offers the analogy of the NSA’s snooping being akin to the government walking up to a person’s mailbox, nonchalantly opening an individual’s mail, looking and copying the contents “in case you do something wrong sometime in the future” and resealing the envelopes before putting them back as if nothing happened.

  Despite his intellectual acumen, it is painfully clear he is outside his element. Lon plays directly into the hands of the media. He instantly becomes a clichéd caricature of the bereaved parent. Less a minute into the interview, he is brandishing a childhood photo of Edward. It is obvious he does not possess his son’s sociopolitical understanding of the media. Lon placates Bolling and makes an appeal directly into the camera. He asks his son not to release any more classified information for fear of being accused of treason, a concern a former military employee has been trained to dread. He declares, “I would rather my son be a prisoner in the U.S. than a free man in a country that did not have the freedoms that are protected, that we have.” Lon would have many more opportunities to get a handle on the media and the political maelstrom that had engulfed his boy.

  Lon proceeded to search for a legal defense team in case Edward was apprehended. He also wanted to contact and possibly travel to meet his son. Famed Washington attorney and former assistant deputy attorney general under Ronald Reagan, Bruce Fein, offered his services for free. Fein’s interest in the Snowden affair was a supposed matter of principle. As part of the Reagan administration, he followed the “fundamental premise of who we are as a people—the right to be left alone.”25

  Less than two weeks later, on Lon’s behalf, Fein presented a letter to Attorney General Holder.26 It outlines terms Lon purportedly believed would goad Edward to return to the U.S. on his own volition and stand trial. Three extremely idealistic provisions are cited.

  1. He [Edward Snowden] would not be detained or imprisoned prior to trial.

  2. He would not be subject to a gag order.

  3. He would be tried in a venue of his choosing.

  The request asks that these guarantees be made and should any of them not be honored, Snowden’s case would be “dismissed without prejudice.” Fein failed to punctuate the last sentence.

  The next day, June 28, Lon appeared on the TODAY27 program on NBC. During the interview with Michael Isikoff, Lon inadvertently creates a divide between his son’s supporters. He doubts the sincerity of WikiLeaks’ interest in his son, stating the anti-secrecy group’s agenda was not to uphold the Constitution but to “release as much information as possible.” It is obvious Lon had not yet been in contact with Edward, otherwise he might have been more reluctant to pass judgment on the organization that had recently pulled strings to get his son to safety.

  It is possible the former warrant officer had spent a long 11 days meditating upon Edward’s predicament and come to a handful of conclusions, but later evidence suggests Fein was already directing Lon’s media approach. Whereas he had been reserved and indisposed to pass judgment on June 17, Lon now declared his son, “[ … ] has in fact broken U.S. law, in the sense that he has released classified information. And if folks want to classify him as a traitor, in fact he has betrayed his government. But I don’t believe that he’s betrayed the people of the United States.”

  That weekend, Assange personally contacted Fein. WikiLeaks’ founder relayed a message from Edward, asking that Fein and Lon refrain from commenting on matters pertaining to him.28 A month and a half later, Snowden would provide a definitive 170-word statement to The Huffington Post, declaring that neither Fein, his wife (a politician and business partner to Fein) or his father spoke for or represented him.29

  Undeterred by the whistleblower’s polite demand, Fein published an open letter30 to Edward on July 2. Fein’s verbose address is less a note of support than a platform the Washington attorney uses to project his political philosophy. He alludes to American revolutionary Thomas Paine, makes a pained reference to 18th-century German philosophy, and speaks of the “vicissitudes” of life and Clapper’s “stupendous mendacity” before addressing Edward’s “reduction to de facto statelessness.” It is unclear who he believes his audience to be. He tells Snowden, “You have forced onto the national agenda the question of whether the American people prefer the right to be left alone from government snooping absent probable cause to believe crime is afoot to vassalage in hopes of a risk-free existence.” He closes by mode
stly announcing, “[ … ] [W]e will be unflagging in efforts to educate the American people about the impending ruination of the Constitution [ … ].”

  Fein informed the website Politico that he’d posted the letter online because Lon was unable to contact his son directly.31 The statement brings into question Fein’s interest in Lon. If the letter was solely meant to be a personal address to Edward, Fein had a channel to Assange. Centered at the top of both letters, the address and telephone number of Fein’s legal firm rests above his personal email address.

  On July 26 two things became clear. Lon’s abruptly aggressive approach to the media had been at Fein’s instruction, and Edward’s father realized he’d lost control of the situation. This is apparent in the third chapter of Fein’s letter-writing campaign32—to none other than the president—and Lon’s trio of complementary interviews.

  Fein’s presidential missive is propaganda thinly disguised as a “concerned citizen” letter. He does nothing short of accuse Obama of committing evil acts before arriving at his second paragraph: “You are acutely aware that the history of liberty is a history of civil disobedience to unjust laws or practices. As [18th-century philosopher and politician] Edmund Burke sermonized, ‘All that is necessary for the triumph of evil is that good men do nothing.’” Fein proceeds to dig the hole deeper. While providing an account of civil disobedience, he quotes Thoreau’s titular essay and cites the Nuremberg Trials before making the—if not politically incorrect, at least embarrassing—mistake of including slavery as another example. Granted, it is a fine illustration of corrupt, unjust law, but presenting it to an African-American as well as highlighting it by devoting a single-line paragraph to the subject is nothing short of exploiting the reader’s ethnicity in hopes of evoking empathy. Fein would go on to quote Martin Luther King, Jr., while plagiarizing portions of his letter to Holder.