Friday, June 21, 2013

Edward Snowden and the NSA's Three Wise Whistleblowers

[This piece originally appeared at Asia Times Online on June 21, 2013.  It can be reposted if ATOl is credited and a link provided.  Thanks to some missed connections during the editing process, in one passage in the ATOl piece, the Daily Caller is misidentified as the Daily Beast...and in another passage the Daily Caller is mischaracterized as the online successor to Newsweek, no doubt causing both Tina Brown and Tucker Carlson to weep bitter tears.  I've corrected it here and ATOl will presumably correct their version in the next day or two.]

Whistleblowing is a risky business.

I expect that, as they planned their course of action over the four months, Edward Snowden and his main media minder, Glenn Greenwald, paid very close attention to what happened to three past whistleblowers who crossed the NSA. And looking at these three men gives an idea of the interests, principles and powers that are being contested beneath the superficially simple tale of a young analyst who fled to Hong Kong to tell the world about runaway US government surveillance.

There is no evidence to suggest that the three whistleblowers, who convincingly say that they live under the closest US government surveillance, had any prior knowledge of Snowden's exploit; but there are considerable indications that his situation and the information he holds are the focus of their concern and, in turn, Snowden was guided by their example and experiences.

There are three well-known NSA whistleblowers: Bill Binney, J Kirk Wiebe, and Tom Drake. They were whistleblowers in the legal sense - they reported to the Inspector General of the Department of Defense and, subsequently, oversight committees of the US Congress that a multi-billion dollar NSA data collection program known as Trailblazer was ineffective and wasteful and another one, Stellar Wind, had been programmed to strip out procedures that prevented acquisition of the data of US citizens (and assured the constitutionality of the program).

These three gentlemen were not, with all due respect to Edward Snowden, pimply-faced junior techs with pole-dancer girlfriends.

Drake had spent 12 years at NSA and, before that, 10 years in the Air Force specializing in intelligence.

Bill Binney had worked for the NSA for 30 years and had risen to the position of Technical Director of the World Geopolitical and Military Analysis Reporting Group.

Wiebe had worked for the NSA for 30 years, was awarded the NSA's Meritorious Civilian Service Award, and finished out his career as senior analyst.

Pure organization men, Binney, Wiebe, and Drake followed the chain of command and the procedures for whistleblowing - and passed no classified information to the press. Yet they were undone by the hostility of the NSA.

The NSA, under Michael Hayden, is generally considered to have blown it by not picking up the 9/11 conspiracy. Binney and Wiebe rubbed salt into the wound by telling Congress that the NSA's decision to go with Trailblazer was responsible.

Hayden, fulminating, sent out a memo declaring that "individuals, in a session with our congressional overseers, took a position in direct opposition to one that we had corporately decided to follow ... Actions contrary to our decisions will have a serious adverse effect on our efforts to transform NSA, and I cannot tolerate them."

Binney, Wiebe, and Drake's complaints became public knowledge in 2007, after the Bush administration searched for the sources of an unrelated leak to the New York Times' James Risen for his expose of illegal NSA surveillance of US citizens.

The FBI decided to talk to Binney. He described his experience to Amy Goodman of Democracy Now!:
Well, they came in, and there were like 12 FBI agents with their guns drawn, and came in. My son opened the door, let them in, and they pushed him out of the way at gunpoint. And they came upstairs to where my wife was getting dressed, and I was in the shower, and they were pointing guns at her, and then they - one of the agents came into the shower and pointed a gun directly at me, at my head, and of course pulled me out of the shower. So I had a towel, at least, to wrap around, but - so that's what they did.

And then they took me out and interrogated me on the back porch. And when they did that, they tried to get me - they said they wanted me to tell them something that would be - implicate someone in a crime. ... I said I didn't really know about anything. And they said they thought I was lying. Well, at that point, "OK," I said, "I'll tell you about the crime I know about," and that was that Hayden, Tenet, George Bush, Dick Cheney, they conspired to subvert the constitution and the constitutional process of checks and balances
Wiebe and Drake's experiences were similar. None of them were implicated in the leak.

In 2010, Binney and Wiebe finally received Letters of Immunity from the Justice Department confirming their whistleblower protection. Drake, however, was less fortunate. After being threatened with spending "the rest of his natural life behind bars" if he didn't provide information on the source of the leak to the New York Times, and several years in the NSA/Department of Justice wringer, he was finally indicted and put on trial.

In 2011, Drake - having by now left the NSA to work in the local Apple store - rejected two plea deals offered by the government and finally settled for no admission of sharing classified information and one year of probation and community service for "exceeding authorized use of a computer".

This reminds me of a cartoon strip about Dilbert accepting a misdemeanor plea of "lewd conduct with appliances" after being falsely accused of stealing a computer.

As to the question of whether Snowden should have worked within the system as they had, the three NSA men were strikingly straightforward in an interview with USA Today:

Q: Did Edward Snowden do the right thing in going public?

William Binney: We tried to stay for the better part of seven years inside the government trying to get the government to recognize the unconstitutional, illegal activity that they were doing and openly admit that and devise certain ways that would be constitutionally and legally acceptable to achieve the ends they were really after. And that just failed totally because no one in Congress or - we couldn't get anybody in the courts, and certainly the Department of Justice and inspector general's office didn't pay any attention to it. And all of the efforts we made just produced no change whatsoever. All it did was continue to get worse and expand.

Q: So Snowden did the right thing?

Binney: Yes, I think he did.

Q: You three wouldn't criticize him for going public from the start?

J. Kirk Wiebe: Correct.

Binney: In fact, I think he saw and read about what our experience was, and that was part of his decision-making.

Wiebe: We failed, yes.
Looking at what happened to the NSA's three wise men, it would appear very unlikely that Snowden, a wet-behind-the-ears grunt in the infowars, could get a private or public hearing in the United States for his complaints about the NSA before he disappeared beneath an FBI dogpile ... or worse, in the opinion of the three:
Q: What should Edward Snowden expect now?

Binney: Well, first of all, I think he should expect to be treated just like Bradley Manning [an army private now being court-martialed for leaking documents to WikiLeaks]. The US government gets ahold of him, that's exactly the way he will be treated.

Q: He'll be prosecuted?

Binney: First tortured, then maybe even rendered and tortured and then incarcerated and then tried and incarcerated or even executed.

Wiebe: Now there is another possibility, that a few of the good people on Capitol Hill - the ones who say the threat is much greater than what we thought it was - will step forward and say give this man an honest day's hearing. You know what I mean. Let's get him up here. Ask him to verify, because if he is right - and all pointers are that he was - all he did was point to law-breaking. What is the crime of that?

Drake: But see, I am Exhibit No. 1. ...You know, I was charged with 10 felony counts. I was facing 35 years in prison. This is how far the state will go to punish you out of retaliation and reprisal and retribution. ... My life has been changed. It's been turned inside, upside down. I lived on the blunt end of the surveillance bubble. ... When you are faced essentially with the rest of your life in prison, you really begin to understand and appreciate more so than I ever have - in terms of four times I took the oath to support the Constitution - what those rights and freedoms really mean. ...

Believe me, they are going to put everything they have got to get him. I think there really is a risk. There is a risk he will eventually be pulled off the street.
There is another reason to pay attention to Binney, Wiebe, and Drake.

Binney and Wiebe are experts in - perhaps even invented - the automated surveillance techniques Snowden is talking about. Binney, in particular, is described as a brilliant crypto-analyst - "regarded as one of the best code breakers and mathematicians in the NSA's history", according to a documentary film by Laura Poitras - who came up with the automated distributed data analysis solution, ThinThread, that correlated data to targets in real time and only forwarded relevant hits to the NSA mothership.

This is in contrast to Trailblazer, which vacuumed up everything and sent it home in the hope that the data could be mined retroactively, but in time to reveal some dangerous plots.

Binney's opinion that ThinThread could have stopped 9/11 - if Hayden hadn't stopped ThinThread in 2000 and proceeded with Trailblazer instead - certainly contributed to the rancor with which the NSA pursued Binney.

Jane Meyer reported in the New Yorker that, in one of life's little ironies, as Trailblazer was headed to the intel boneyard post-9/11 as an unworkable, over-budget boondoggle, the NSA allegedly picked up Binney's ThinThread, stripped out the code which encrypted the data of US citizens until a warrant was obtained, and started running it under the codename Stellar Wind for targeted and unwarranted surveillance of US citizens as well as foreign subjects. Thereby, "violation of the Fourth Amendment right to protection from unreasonable search and seizure" was added to "fraud, waste, and mismanagement" on Binney's menu of grievances against the NSA.

In an interview Binney gave to Daily Caller, he gave an idea of how the system works:
Daily Caller: But what universe of information are we talking about that's available to the NSA?

Binney: The former FBI agent, Tim Clemente, says they can get access to the content of any audio, any phone call. He says that there are no digital communications that are safe or secure. So that means that they were tapping into the databases that NSA has. For the recorded audio, and for the textual materials like emails and phone.

Daily Caller: All textual material?

Binney: Any kind of textual material is relatively easy to get. The audio is a little more difficult. Now I don't think they're recording all of it; there are about 3 billion phone calls made within the USA every day. And then around the world, there are something like 10 billion a day. But, while they may not record anywhere near all of that, what they do is take their target list, which is somewhere on the order of 500,000 to a million people. They look through these phone numbers and they target those and that's what they record.

Daily Caller: There's been some talk about the authorities having a recording of a phone call [alleged Boston marathon bomber] Tamerlan Tsarnaev had with his wife. That would be something before the bombing?

Binney: Before the bombing, yes.

Daily Caller: Then how would they have that audio?

Binney: Because the NSA recorded it.

Daily Caller: But apparently the Russians tipped off the FBI, which then did a cursory interview and cleared him. So how were they recording him?

Binney: Because the Russians gave a warning for him as a target. Once you're on a list, they start recording everything. That's what I'm saying.

Daily Caller: So why didn't they prevent the bombing?

Binney: Once you've recorded something, that doesn't mean they have it transcribed. It depends on what they transcribe and what they do with the transcription. ... They can do textual processing at a rate of about 10 gigabits a second. What that means is about a million and a quarter 1,000-character emails a second. They've got something like 10 to 20 sites for this around the United States. So you can really see why they need to build something like Utah to store all of this stuff. But the basic problem is they can't figure out what they have, so they store it all in the hope that down the road they might figure something out and they can go back and figure out what's happening and what people did. It's retroactive analysis. The FBI is using it that way too.

Daily Caller: Can you do that for audio? Can they retroactively put together the conversation we're having right now? Suppose nobody from the government is taping this conversation right now. Is there any way they can go back and reconstruct it?

Binney: Well I think I'm on a target list, so anybody that my phone calls, they will be recorded. So yeah.

Daily Caller: Does this mean that my phone number is now going to be on a list?

Binney: You are now part of my community, so you can assume you are now going to be targeted, too.

As for Snowden's assertion that he could listen to the phone calls of anyone in the United States, including the president, it's a question of admin privileges, according to Binney (from USA Today):
So that meant he had access to go in and put anything. That's why he said, I think, "I can even target the president or a judge." If he knew their phone numbers or attributes, he could insert them into the target list which would be distributed worldwide. And then it would be collected, yeah, that's right. As a super-user, he could do that.
The third reason to pay attention to Binney, Wiebe, and Drake is that they seem to be trying to coach Snowden on the best way to avoid the most dire legal and public relations jeopardy (from USA Today):
Q: What would you say to him?

Binney: I would tell him to steer away from anything that isn't a public service - like talking about the ability of the US government to hack into other countries or other people is not a public service. So that's kind of compromising capabilities and sources and methods, basically. That's getting away from the public service that he did initially. And those would be the acts that people would charge him with as clearly treason.

Drake: Well, I feel extraordinary kinship with him, given what I experienced at the hands of the government. And I would just tell him to ensure that he's got a support network that I hope is there for him and that he's got the lawyers necessary across the world who will defend him to the maximum extent possible and that he has a support-structure network in place. I will tell you, when you exit the surveillance-state system, it's a pretty lonely place - because it had its own form of security and your job and family and your social network. And all of a sudden, you are on the outside now in a significant way, and you have that laser beam of the surveillance state turning itself inside out to find and learn everything they can about you.

Wiebe: I think your savior in all of this is being able to honestly relate to the principles embedded in the constitution that are guiding your behavior. That's where really - rubber meets the road, at that point.
A few inferences we can draw:

First, Snowden gave considerable thought to the consequences of his revelations (something which has inexplicably escaped certain critics, such as The Daily Banter's Oliver Willis - motto: "Like Kryptonite to stupid" - who characterized Snowden as a "childish simpleton").

Second, if he had stayed in the US and tried to pursue the legal whistleblower route - which protects NSA employees who report their concerns about illegal behavior, fraud, abuse, and mismanagement to the Inspector General and the relevant congressional oversight committees, but specifically forbids them to go public - he would have gotten nowhere.

Third, his best option was to go overseas, beyond the reach of the FBI, and publicize his information and gain sympathy for himself and his cause, perhaps hoping that, as in the case of Thomas Drake, the Obama administration would find it politically awkward to pursue the maximalist criminal case.

Fourth, when reviewing his overseas options, he wanted to establish himself in a jurisdiction less vulnerable to US government pressure. For this reason, he ruled out Iceland (and Iceland has apparently ruled out Snowden; the Iceland government declined to meet with Snowden's intermediary and said that Snowden could only apply for asylum if he was already in Iceland).

Quite possibly, he chose Hong Kong both for its laudable freedom of speech/rule of law credentials, and also because, as an ex-CIA employee who had worked briefly on the covert side (and made a point of stating he knew where the CIA Hong Kong station was located), he regarded Hong Kong as a jurisdiction in which the PRC does not cooperate with the CIA very actively and may, in fact, keep their people on a relatively tight leash.

Also, asylum requests in Hong Kong are handled by the local office of the UN Human Rights Council, not the SAR itself. Perhaps this unique wrinkle in the Hong Kong asylum process had more than a little to do with Snowden's decision to go there.

The UNHCR's concern about the treatment of Wikileaks whistleblower Bradley Manning invites speculation that its local office might eventually approve a request by Snowden for asylum against a US extradition demand on the grounds that he is at risk of persecution, not just prosecution in the United States.

After all, the UN Special Rapporteur for Human Rights, Juan Mendez, reports to the UNHRC and is on record characterizing the treatment of Bradley Manning at Quantico as follows: "I conclude that the 11 months under conditions of solitary confinement (regardless of the name given to his regime by the prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture. If the effects in regards to pain and suffering inflicted on Manning were more severe, they could constitute torture."

Fifth, in order to retain the sympathy of the "few good men" inside the national security apparatus and supporters in the media and public - and to forestall a domestic witchhunt - it would be important not to disclose operational details of NSA operations that might open him to the charge, no matter how specious, that he was helping the "bad guys" evade US surveillance.

It seems Snowden has done this; in fact, pundits looking for smoking gun revelations have been frustrated with the vagueness with which he has described the PRISM program and other surveillance techniques.

Parenthetically, Binney had this to say about the "helping the enemy" issue in his Daily Caller interview:
Q: Did foreign governments, terrorist organizations, get information they didn't have already?

Binney: Ever since ... 1997-1998 ... those terrorists have known that we've been monitoring all of these communications all along. So they have already adjusted to the fact that we are doing that. So the fact that it is published in the US news that we're doing that, has no effect on them whatsoever. They have already adjusted to that.
Sixth, Snowden and Glenn Greenwald understand the importance of sustaining media heat and public interest in his case by dribbling out sensational revelations - while trying not to compromise his "American patriot" cred.

So, while one would expect that US spying on international gabfests would be expected, Snowden exposed non-US activity: the pervasive surveillance regime instituted by the British government targeting foreign dignitaries and their staffs attending the Group of 20 conference in the UK last September.

Seventh, I believe that Snowden wants to very carefully pressure the US government by increasing its anxiety that he a) has information interesting to the PRC, and b) is currently gallivanting around in a PRC Special Administrative Region vulnerable to whatever skullduggery the Chinese might unleash, either during his residence or when his 90-day visa expires mid-August.

The Snowden-in-Hong Kong situation certainly raised hackles in the United States, particularly among the less informed for whom the distinction between Hong Kong and the People's Republic of China (and, for that matter, between the South China Morning Post and some Red Chinese broadsheet) is considerably less than a clear, bright line, and even Bill Binney expressed his anxiety about what Snowden might be telling the Chinese:
Q: There's a question being debated whether Snowden is a hero or a traitor.

Binney: Certainly he performed a really great public service to begin with by exposing these programs and making the government in a sense publicly accountable for what they're doing. At least now they are going to have some kind of open discussion like that. But now he is starting to talk about things like the government hacking into China and all this kind of thing. He is going a little bit too far.

I don't think he had access to that program. But somebody talked to him about it, and so he said, from what I have read, anyway, he said that somebody, a reliable source, told him that the US government is hacking into all these countries. But that's not a public service, and now he is going a little beyond public service. So he is transitioning from whistle-blower to a traitor.
As far as Dick Cheney is concerned, of course, Snowden has already completed the journey.

To which Snowden riposted:
Being called a traitor by Dick Cheney is the highest honor you can give an American.
I think in his interview with the South China Morning Post, Snowden was, as usual, trying to use the sizzle to sell the steak, intentionally vague in his responses, resorting to generalities, repeating details in the public domain, and not handing over documentation that might turn out to be legally compromising to his case (one interested Hong Kong legislator commented that Snowden's allegations so far "are noticeably lacking in details or evidence.")

As the SCMP reported it:
Snowden said that according to unverified documents seen by the Post, the NSA had been hacking computers in Hong Kong and on the mainland since 2009. None of the documents revealed any information about Chinese military systems, he said.

One of the targets in the SAR, according to Snowden, was Chinese University and public officials, businesses and students in the city. The documents also point to hacking activity by the NSA against mainland targets.

Snowden believed there had been more than 61,000 NSA hacking operations globally, with hundreds of targets in Hong Kong and on the mainland.

"We hack network backbones - like huge Internet routers, basically - that give us access to the communications of hundreds of thousands of computers without having to hack every single one," he said.
In what was probably more unwelcome news for the United States, the UN Human Rights Council local office told the South China Morning Post it might take the UNHRC months to shuffle Snowden's asylum paperwork to the top of the pile if he decided to apply:
Farooqi [a protection officer at the Hong Kong UNHRC office] said because the city has no asylum-screening system, applicants whose tourist visas have expired are usually detained at an immigration centre while their documents are verified. Applications can be made to the UNHCR for asylum at any time. The period of detention usually ranges from a few weeks to a few months, but can be longer, the UNHCR says.
What would happen to Snowden's four laptops, purportedly jammed with interesting information (encrypted? unencrypted?) if he was detained by the Hong Kong government prior to deportation or extradition? Enquiring minds want to know.

For the time being, the PRC government is happy to keep its head down and let the US government writhe on the forked stick of its predicament.

In their public statements, Snowden and the three whistleblowers declare their belief that the NSA has misled congress and the president, implying there is wriggle room for President Obama to mitigate the abuses of the US surveillance state - and recognize Edward Snowden in a role other than that of thief or traitor. It remains to see if this fond hope is rewarded.

Exactly how this plays out - and whether the public goes along with the Snowden-as-Chinese-spy narrative - is open to conjecture. In a USA Today/PEW poll released on June 17, 54% said Snowden should be prosecuted, with 34% saying no. As to whether the revelations served the public interest, 49% said yes and 44% said no.

The situation is fluid, and a mis-step by Snowden - or overreach by the US government - could send public opinion tilting either way.

The way the pendulum swings may determine whether Snowden gets asylum in Hong Kong - or a favorable plea bargain in the United States and US government re-evaluation of the pervasive NSA surveillance regime that he says he desires - or extradition and long, hard time in a US penitentiary.

It is possible that Binney, Wiebe, and Drake will continue to give the pendulum a push toward Snowden in order to use his notoriety to gain public accountability for a government program that they believe is profoundly unconstitutional.

Laura Poitras, the filmmaker who produced Snowden's video interview with the Guardian (and co-bylined Snowden stories in the Guardian and the Post) was also the first person Snowden contacted when he decided to go public - because she had made a short film about Bill Binney and Stellar Wind, The Program, that was posted on the New York Times in 2012, and had described her personal experience of being on a government watch list in the accompanying article:
To those who understand state surveillance as an abstraction, I will try to describe a little about how it has affected me. The United States apparently placed me on a "watch-list" in 2006 after I completed a film about the Iraq war. I have been detained at the border more than 40 times. Once, in 2011, when I was stopped at John F Kennedy International Airport in New York and asserted my First Amendment right not to answer questions about my work, the border agent replied, "If you don't answer our questions, we'll find our answers on your electronics."
When Snowden contacted her in January, he told her:
He told me he'd contacted me because my border harassment meant that I'd been a person who had been selected. To be selected - and he went through a whole litany of things - means that everything you do, every friend you have, every purchase you make, every street you cross means you're being watched. "You probably don't like how this system works, I think you can tell the story."
Poitras is now working on a documentary about Snowden.

This is the story that the Obama administration is trying to make smaller, about Edward Snowden, the rogue analyst, the "childish simpleton".

In his most detailed defense of the system so far, in Germany, President Obama has decided to acknowledge the NSA's capabilities but hang his hat on the legal process ostensibly underpinning the surveillance, a "circumscribed, narrow system, directed at us being able to protect our people and all of it is done with the oversight of the courts".

By moving the debate away from the universe of tens of thousands of leak-prone analysts to the privileged and murky world of the allegedly rubber-stamp FISA court, President Obama perhaps expects he can keep the NSA story bottled up.

But there are some smart, connected, and determined people - starting with, but probably not limited to Binney, Wiebe, Drake, Greenwald, and Poitras - out there who want to make the story bigger.

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