The Edward Snowden Affair (15 page)

As disclosed in a classified report titled, “Russian Leadership Communications in support of President Dmitry Medvedev at the G20 summit in London—Intercept at Menwith Hill station,” the NSA intercepted and decrypted then-Russian president Dmitry Medvedev’s telephone calls as they dispatched through satellite links to Moscow starting the day he arrived at the first summit, April 1. Menwith Hill is an NSA outpost located in Harrogate, North Yorkshire in England. Until 2013, it was believed to be the largest intelligence facility in the world. Menwith Hill occupies 560 acres.

Without having to lend a word to the topic, MacAskill made demonstrably clear the United States was in espionage cahoots with England. As Gellman had reported, the NSA had given Britain PRISM and was in possession of classified GCHQ documents. Like Greenwald, MacAskill left the reader to discover that Menwith Hill had been in operation since 1966, is leased to America and suspiciously staffed with both American and British intelligence agents.
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As of March 2012, there is a one-to-three mix of British to American Menwith employees: 400 to 1,200.
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Menwith Hill is so productive it was given the NSA’s “Station of the Year” award in 1991.
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The obvious question remained: Why wouldn’t Britain be concerned with more powerful attendees’ data, such as its former colony, Australia, or America’s neighbor, Canada? The answer was coming.

The very next day, South Africa, Russia and Turkey reacted—the latter two violently—to the claims.
The Guardian
reported Turkey demanded nothing short of Britain’s ambassador, David Norman Reddaway, arrive at the capital, Ankara, to personally receive the country’s official statement on the matter. It was read aloud to him: “If these allegations are true, this is going to be scandalous for the UK. At a time when international co-operation depends on mutual trust, respect and transparency, such behaviour by an allied country is unacceptable.”
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Other British news outlets demurely denied Reddaway was summoned and quoted the U.K. Foreign Office as stating, “No, this was discussed in a phone call.”
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Though the latter seems more probable, given the severity of the accusations, the former circumstance could have taken place and the foreign affairs office was downplaying Britain’s apologetic response for public relations purposes. Regardless,
The Guardian
’s report further enflamed tensions between the two nations. Turkey’s Prime Minister, Recep Tayyip Erdoðan, specifically cited the BBC as sustaining and advocating civil unrest in Turkey amid nationwide demonstrations and violent protests.
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While at the G8 Summit in Ireland, Prime Minister David Cameron refused to attempt to deny, comment upon, or even acknowledge the surveillance allegations: “We never comment on security or intelligence issues and I am not about to start now.”
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The report did not help U.S.-Russian relations. It appeared amid a heated debate between the two nations on how to address Syrian violence. Eyebrows were raised by Russian officials about America’s sincerity in “resetting” the countries’ relationship as offered by Obama during a July 7, 2009, speech at Moscow’s New Economic School. It was during his first visit to Russia after being elected president that Obama also ironically proclaimed, “In 2009, the great power does not show strength by dominating or demonizing other countries. The days when empires could treat other sovereign states as pieces on a chess board are over.”
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Greenwald’s name is suspiciously absent from the G20 article because he was preparing the unthinkable. The world had been introduced to Snowden through Greenwald’s writing as well as his participation in the making of Poitras’ video. He was now going to let the world talk to Snowden. As New York was getting ready to take lunch while Hong Kong was going to bed, on Monday, June 17, Snowden gave the world an exclusive interview.

Going “live” online might seem like Snowden was blatantly thumbing his nose at U.S. intelligence, especially since Greenwald issued a two-hour notification before the start of the Q & A session. However, Snowden was on the equivalent of a relay. He was monitoring the questions as they were submitted and sent Greenwald his responses over a secure line. Though a degree of risk was involved because American intelligence knew when he’d be online, it was safer than if he’d posted directly onto the forum.

In the 96-minute interview,
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Snowden addresses a range of topics: why he chose Hong Kong over Iceland, the public’s reaction to the leaks, whether he was working with foreign governments, previous whistleblowers, the Obama administration, WikiLeaks, Internet companies’ responses to the PRISM disclosures, the discrepancy in his reported salary and various IT questions. At the commencement of the chat, he makes clear his intent is to make people around the world aware of privacy violations and at no time has he put U.S. citizens at risk: “I did not reveal any US operations against legitimate military targets.” He states he did not remain in America because the government “destroyed the possibility of a fair trial” by “openly declaring me guilty” and justifies his decision to flee: “[I]t would be foolish to volunteer yourself to it [an unfair trial] if you can do more good outside of prison than in it.” Snowden includes he would not be aiding foreign governments because he “only work[s] with journalists.”

The day prior to the chat, Apple and Yahoo responded to claims of allowing U.S. intelligence direct access to their servers. (In a brief aside, Snowden pauses to insinuate FISC orders and NSLs are the companies’ alibi for compliance: “If for example Facebook, Google, Microsoft, and Apple refused to provide this cooperation with the intelligence community, what do you think the government would do? Shut them down?” He implicitly acknowledges individual court orders are time consuming but that legality demands their being filed. Snowden is obviously hinting at an ulterior, self-interested motive for the businesses consenting to data submission.) He is asked to clarify the phrase “direct access” and expound upon the implications.

He opens with the assurance that “more detail on how direct NSA’s accesses are is (sic) coming” before outlining that an analyst with high enough clearance can query the NSA’s databases and “get results for anything they want. Phone number, email, user id, cell phone handset id (IMEI), and so on.” The reason the NSA has access to individuals’ information who are not targets is because after an investigation is closed, the data that was “incidentally” compiled is not automatically discarded. Snowden relays, “If I target for example an email address, for example under FAA 702, and that email address sent something to you, Joe America, the analyst gets it. All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time—and can be extended further with waivers rather than warrants.” “Raw” data is collected information which has not been anonymized. It still contains content and identifying markers such as a user’s name and location.

This means if Bob is a target and he has emailed Mary, all of Mary’s emails will be confiscated. Even if nothing arouses reasonable suspicion, her records are nonetheless kept on file. Though it might appear to be a question of who is lying, Clapper told NBC, “[A]ny of the ill-begotten collection is destroyed.” (In the interview transcript on the Office of the Director of National Intelligence’s website, Clapper’s connotative “collection” is inexplicably replaced by the more innocuous “information.”)
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This could well be true and consistent with Snowden because the director of intelligence does not designate the timeframe of—in his words—the NSA’s “retention period” for accidentally gathered data.

Snowden reiterates from his interview with Poitras that there are no technological limitations to what can be gathered and requested. Previewing a forthcoming disclosure, he states, “[T]he intelligence community doesn’t always deal with what you would consider a ‘real’ warrant like a [p]olice department would have to, the ‘warrant’ is more of a templated form they fill out and send to a reliable judge with a rubber stamp.” Policy, which is subject to administrative whim, is the only restraint, but Snowden declares “policy protection is no protection—policy is a one-way ratchet that only loosens and one very weak technical protection—a near-the-front-end filter at our ingestion points. The filter is constantly out of date, is set at what is euphemistically referred to as the ‘widest allowable aperture,’ and can be stripped out at any time.” Like the NSA’s reminder to its analysts that accidental intercepts are “nothing to worry about,” Britain’s system of checks and balances for query protocol is equally lax. “For at least GCHQ,” Snowden tells his audience, “the number of audited queries is only 5% of those performed.” It is worthy to note Menwith Hill is overseen by a Royal Air Force officer.
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Toward the end of the interview, Snowden overtly condemns America’s invasive surveillance policies and practices: “Journalists should ask a specific question: [S]ince these programs began operation shortly after September 11th, how many terrorist attacks were prevented SOLELY by information derived from this suspicionless surveillance that could not be gained via any other source?” He assures his audience that regardless of what happens to him or how strict whistleblowing legislation becomes, gray hat leaking will not cease, because “[c]itizens with a conscience are not going to ignore wrongdoing simply because they’ll be destroyed for it: the conscience forbids it.” He boldly proclaims, “Truth is coming, and it cannot be stopped.”

Greenwald charitably gave Washington three days to breathe before heading another barrage of disclosures. On Thursday, June 20,
The Guardian
released, “The top secret rules that allow NSA to use US data without a warrant.”
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With this disclosure, a distinct pattern becomes clear. Snowden was aiding in the order and direction of the various releases. Once the attention-grabbing, nationwide appeal of the Verizon and PRISM information was made public, the publication trajectory was set to incriminate Washington’s every step. As witnessed in the timing of the president-directed cyberattack hit list and the G20 leak coinciding within hours of related events, Snowden was also reinforcing his claims each time the nation’s capital refuted them. It made for a sweaty-palmed effort by the White House because the intelligence community was still unclear what data had been taken. Even if it did know, it could not preempt the negative impact of future disclosures, because the programs were classified. It had no choice but to attempt to vainly, desperately deny and dodge accusations, hoping Snowden couldn’t have the documentation to prove otherwise. In the event a report did appear which undermined a previous official statement, the U.S. government had no choice but to backpedal. Snowden and Greenwald’s process was systematic and exact.

Greenwald begins by announcing the publication of accompanying classified documents that prove the U.S. government had passed covert laws through the FISC that permits intelligence to acquire and utilize American communications. Two of the enclosed documents are procedure orders which were signed by Attorney General Eric Holder on July 28, 2009 and put into practice the next day. Greenwald provides a third document, a 2010 one-paragraph umbrella court order, which declares the attorney general’s directives “[ … ] are consistent with the requirements of [ … ] the fourth amendment to the Constitution of the United States.”

The orders allow the NSA to retain “inadvertently acquired” domestic communications for up to five years. Even if a person is not under suspicion, an individual’s wholly domestic data can be kept on file because it is encrypted, relates to criminal activity, insinuates potential harm to people or property, or in Greenwald’s terms, “[is] believed to contain any information relevant to cybersecurity.” Under Holder’s directive, attorney-client privilege is suspended if the communication includes “foreign intelligence information.” The legislation also permits the gathering of information from “U.S.based machines[s]” if it is deemed necessary to determine whether a target is located within American borders. As Snowden noted, unlike standard police procedure, where evidence is inadmissible if it was not obtained by a warrant after reasonable suspicion had been established by an external authority, if the NSA “stumbles” across information it deems worthwhile, it can lawfully exploit and act upon the data.

Holder’s documents answer a lingering question: “NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person.” Thus, the U.S. government acknowledges it has alternative means of verifying whether an individual is an American citizen residing within the United States before targeting begins and, within the confines of the documents themselves, incriminates itself further: “[I]n order to prevent the inadvertent targeting of a United States person, NSA maintains records of telephone numbers and electronic communications account/address/identifiers that NSA has reason to believe are being used by United States persons.” The intelligence agency admits to keeping files on Americans. Its paradoxical justification is it needs these records to determine who can and cannot be surveilled. It is not disclosed how these records are obtained. The implication is that they consist of “inadvertently” intercepted data and information culled from “U.S.-based machines” used to aid in location verification. It is assumed this data is under a one-year retention license or a five-year extension.

In theory, “domestic” designates any communication that involves a U.S. citizen or takes place on American soil. The disclosures broadly define the term as well as harbor numerous exemptions to supposedly hard-and-fast rules of surveillance.

The decision to extract information begins and ends with the analyst. In the unlikely event an audit questions a retrieval or “task” request, clemency is granted so long as it can be argued there was “reasonable belief” the appeal fell under any of Holder’s provisions. In order to allow the “widest allowable aperture” for targeting, the directives do not place the burden of proof upon an analyst. Even with the aid of NSA databases and access to external files and records, if an analyst cannot arrive at a conclusive answer, shadow of a doubt is not granted. The attorney general’s orders explicitly instruct the analyst to assume a person is abroad and non-American when no definitive location data is available: “A person reasonably believed to be located outside the United States or whose location is not known will be presumed to be a non-United States person unless such person can be positively identified as a United States person.” All international communications are granted free license for surveillance: “Information indicates that the telephone number [and in a subsequent clause, ‘electronic communications account/address/identifier’] has been used to communicate directly with another telephone number [etc.] reasonably believed by the U.S. Intelligence Community to be used by an individual associated with a foreign power or foreign territory.” This also allows for targeting of anyone with foreign associations via electronic “buddy lists,” such as Facebook. In any situation where an American is communicating with a foreigner, the data can be intercepted.