COLORADO SPRINGS, July 22, 2013 — As Edward Snowden maintains his residence in Moscow’s Sheremetyevo Airport, living in a limbo land reminiscent of a Cold War standoff, events he set in motion continue to unfold. Is Snowden a hero or a traitor? Should he have revealed the secrets he did? The answers are surprisingly complex.
America’s intelligence community has its roots in World War II but it was not until the 1970s following the classified papers leaked by Daniel Ellsberg and the Congressional hearings that followed that their activities began to be made known to the public.
Real Congressional oversight of the intelligence community—more properly called the foreign intelligence community—dates from this time. Then-president Carter signed the Foreign Intelligence Surveillance Act (FISA) in 1978. The act was introduced by Sen. Ted Kennedy and co-sponsored by such Democrat stalwarts as Birch Bayh, Daniel Inouye, and Strom Thurmond. It was meant to correct abuses of the CIA by Richard Nixon to target U.S. citizens.
Since the targets of foreign intelligence should properly be foreigners, the statute includes limits on how it may be applied to U.S. persons. A “U.S. person” includes citizens, lawfully admitted permanent resident aliens, and corporations incorporated in the United States. In brief, if a communication originates in the U.S., it is protected. The FBI conducts investigations within the U.S., and so they are the ones who take requests for exceptions to the newly-created FISA court. This court is designed to allow intelligence collection under strictly controlled circumstances while providing security over sources and methods by making the court proceedings secret.
A general declassification schedule was put into place whereby all classified information would eventually be declassified. Exceptions were made for several categories that needed to remain classified indefinitely, one of the most relevant ones being an exemption for information that revealed “sensitive sources and methods.”
Anyone who was engaged in monitoring communications was well aware of FISA provisions. Instructions were that as soon as it was recognized that one end of a conversation was located in the United States, the communication was immediately dropped, and all records of the communication destroyed.
After 9-11 things changed.
A number of laws including the Patriot Act have expanded the powers of the intelligence community to collect information. The trade-off has always been between the Fourth Amendment right to privacy and the nation’s security needs. Americans—or at least their elected representatives—have been more than willing to trade privacy for security.
Then came Edward Snowden.
Like Daniel Ellsberg before him, Snowden unilaterally released a large number of classified documents. Ellsberg’s arrest and prosecution resulted in a mistrial; he was never convicted of a crime and never served any jail time. Snowden fled the U.S. to avoid prosecution.
As the documents released by Snowden reveal, the NSA has entered into agreements with technology companies to collect electronic communications, apparently in a legal manner and with the blanket approval of the FISA court. Blanket approvals had not been part of the bargain in the pre-911 world.
Before the internet, it was not possible to capture all of the information flowing on the world’s communications paths, much less to store it. Filtering methods—still classified—had to be used to reduce the volume to just that which was likely to yield information that would satisfy foreign intelligence collection requirements. Nothing more.
In the years since 9-11, storage capacity has increased. Processing capacity has increased. Capturing and storing information for later use has become more practical. A huge data facility has been built in Utah.
The bottom line: the almost mind-boggling accumulation of information that Edward Snowden revealed is probably legal. Most of it has likely not been mined in ways that have already compromised the privacy of American citizens. But the potential is there, waiting to be exploited.
That’s the real danger of the PRISM program and related collection, processing and storage systems. If you trust your federal government to never target you in illegal ways you can sleep easy. On the other hand, if you are aware of how the Nixon and Obama administrations used federal agencies to target political opponents you should be very worried indeed.
Was Edward Snowden right to expose this potential? He certainly violated his own oath of secrecy. He violated laws requiring him to protect national security secrets. Yet he has alleged to have exposed government wrongdoing. If that is true, he is a whistleblower and is protected under federal law.
Things have already changed since Snowden’s revelations.
Edward Snowden has agreed to fulfill his pledge not to hurt U.S. interests in exchange for temporary asylum in Russia. Meanwhile, the FISA court on Friday granted the government’s request to continue a telephone surveillance program—one of the two data collection efforts leaked by Snowden. A number of major U.S. Internet companies, including Microsoft, Google and Facebook, have asked the government for permission to disclose the number of national security-related user data requests they receive.
The debate is beginning to focus on the real issue: not whether Snowden should have revealed what he did nor what his motives were, but rather what is going on in the foreign intelligence community. And furthermore, not only on the question of whether what they are doing is legal, but whether it is constitutional.
This is a debate well worth having and we have Edward Snowden to thank for getting it started.
Al Maurer worked for the intelligence community for more than twenty years, including an assignment as a Director’s Fellow at the National Security Agency and as a direct report to two NSA Directors. He is co-author of the 1985 book, Intelligence: Policy and Process.
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