I’ve read the Vice News report based on the FOIA-released documents three times now, and still do not see within it support for the headline, “Exclusive: Snowden Tried to Tell NSA About Surveillance Concerns, Documents Reveal.”
Perhaps there is more reporting to come based on this collection of documents, but if today’s report was supposed to expose the smoking gun revealing that Snowden took substantial steps to lodge his complaints about the legality of NSA surveillance activities, then it just doesn’t live up to the hype.
Instead, the report reveals:
•An NSA workforce conducting a huge after-action search for documents seeking to affirm or refute Snowden’s claim that he had raised red flags internally before resorting to leaking classified documents;
•Numerous officials terrified that they would miss something in the search, knowing full-well how easily that could happen in NSA’s giant and complex enterprise; and
•The NSA and ODNI General Counsels, and others in the interagency process – doing their job.
The emails in the report do reveal that government officials debated whether to release the one document that was evidence that Snowden did, in fact, communicate with the NSA Office of General Counsel. It’s hard to be surprised by this. On one hand, the one email in and of itself does not support Snowden’s public claim that he lodged numerous complaints; on the other hand, experienced senior government officials have been around the block enough times to know that as soon as you make a public statement that “there’s only one,” there is a very high likelihood that your door will soon be darkened by a staff member telling you, “wait, there’s more.” So it is no wonder that there was some interagency disagreement about what to do.
The report is quite taken with the interagency emails as news in and of themselves. As if the government response to Snowden’s disclosures and subsequent interviews, articles and media attention should have been carefully choreographed, and seamlessly executed: Respond to the biggest crisis in an organization’s history with a perfectly executed document search; a speed-of-light investigation; a robust plan of action; all supported by perfectly composed emails? Sure. That’s how the world works. Said no one, ever.
The Vice report reveals that Snowden did do at least these things related to his interest in legal authorities and surveillance activities: (i) he clicked on a link to send a question to NSA OGC regarding USSID 18 training, which resulted in an emailed response from an NSA attorney; and (ii) he had a personal interaction (perhaps a short conversation) with a compliance official regarding questions in a training module. But according to the report, in his public statements, “Snowden insisted that he repeatedly raised concerns while at the NSA, and that his concerns were repeatedly ignored.”
If this is all there is – a conversation and a question – then to believe that somehow NSA attorneys and compliance officials were supposed to divine that he was so distraught by his NSA training modules that he was going to steal the largest collection of classified documents in NSA history and facilitate their worldwide public release, is to live in a fantasy land.
No, what this new report reveals is that NSA lawyers and compliance personnel take questions, and answer them. Did they provide a simple bureaucratic response when they could or should have dug deeper? Maybe. Maybe not.
Because what they apparently do not do is go on a witch hunt of every employee who asks a couple legal questions. How effective do we think compliance and training would be, if every person who asks a question or two is then subject to intense follow-up and scrutiny? Would an atmosphere like that support a training environment, or chill it?
As far as we know – even after this new reporting – Snowden didn’t lodge a complaint with the NSA Inspector General. Or the Department of Defense Inspector General. Or the Intelligence Community Inspector General. He didn’t follow up with the NSA Office of General Counsel. He didn’t make phone calls. He didn’t write letters. He didn’t complain to Members of Congress who would have been willing to listen to his concerns.
Now here’s the rub: do I think that had he done all these things, the programs he questioned would have been shut down and there would have been the same effect as his unauthorized disclosures? No. He probably would have been told that more knowledgeable lawyers, leadership officials, congressmen and dozens of federal judges all assessed that the activities he questioned were legal.
More at Lawfare blog.
VICE’s Vice: Snowden Scoop Promises Fire, Doesn’t Even Muster Smoke