• Why Snowden the Movie Matters

    October 6, 2016 // 44 Comments »

    snowden



    I’ve reviewed Oliver Stone’s movie Snowden elsewhere, and it’s well worth seeing just as a movie. But of course the issues brought up by Snowden the man, and Snowden the movie, are more complex than fit into two hours.


    I had this hit home in a recent discussion with a friend who keeps insisting he has nothing to hide in his emails, phone calls, social media, etc., so why should he care if the NSA looks at all that?

    Friend, here’s why:



    NSA surveillance is legal.

    True, as was slavery in the U.S., the Holocaust under Nazi Germany, Apartheid in South Africa and so forth. Laws serve higher purposes. They can be manipulated for evil. That’s why we need checks and balances to protect us.



    Well, there are checks and balances in the system to protect us.

    The king of all checks and balances in this, the Fourth Amendment, has been treated by the government like a used Kleenex.

    As for the Foreign Intelligence and Surveillance Court (FISA), set up to review government requests for wiretapping, it approved all 1,789 requests submitted to it in 2012. The FBI made 15,229 National Security Letter requests in 2012 on Americans. None of those even require FISA rubber-stamping. And here’s DOJ trying to keep classified a court ruling that says it might have acted unconstitutionally.

    The first FISA ruling ever released in full came from Edward Snowden. Before that, no one outside a small circle inside the government had ever seen one.

    And you know who represents the “suspect” (i.e., you) in front of the FISA court? No one. You don’t even know they’re reviewing you.

    If all the NSA’s activities are legal, why not allow them to be tested openly and unambiguously in public, in front of the Supreme Court. After all, if you’ve done nothing wrong there is nothing to hide. Unfortunately, when Amnesty International tried to bring such a case before the Court, the case was denied because Amnesty could not prove it was subject to monitoring– that was a secret!– and thus was denied standing to even bring the suit.

    Unfettered surveillance violates both the Fourth Amendment protections against search, and the First Amendment protections on the right to peaceably assemble, online in this instance.

    Anyway, whatever, FISA. I’m not doing anything wrong, so why should I care? If you’re doing nothing wrong, then you’ve got nothing to hide!

    The definition of “wrong” can change very quickly, especially if you have no way to defend yourself, or even know you’re under suspicion. Are you really, really ready to risk everything on what is right and wrong today staying that way forever? Seems like a fool’s bet, given America’s witch hunts in the 1950s for communists, and Islamophobia today. Things do change.



    Well, I trust Obama on this.

    Good for you. There’ll be a new president soon. You also trust him or her? How about the one after that, and the one after that? Data collected is forever. Trusting anyone with such power is foolish.

    FYI, whether you trust Obama, Trump, Hillary or the next presidents, do remember your personal data is in the hands of the same people that run the TSA, the IRS and the DMV. Do you trust all of them all the time to never make mistakes or act on personal grudges or political biases? Do you believe none of them would ever sell your data for personal profit ever? That they have your information so well protected hackers will never get to it and dump it out onto the Internet?

    How about other governments? The NSA is already sharing your data with, at minimum, British and Israeli intelligence. Those are foreign governments that your American government is informing on you to.


    Distasteful as this all is, it is necessary to keep us safe. It’s for our own good.

    The United States, upholding to our beautiful Bill of Rights, has survived (albeit on a sometimes bumpy road) two world wars, the Cold War and innumerable challenges without a massive, all-inclusive destruction of our civil rights. Keep in mind that the Founders created the Bill of Rights, point-by-point, specifically to address the abuses of power (look up the never-heard-from-again Third Amendment) they experienced under an oppressive British government.

    A bunch of angry jihadis, some real and many imagined, seems a poor reason to change that system. Prior to 9/11 we did not have a mass-scale terror act (by foreigners; American Citizen Timothy McVeigh pulled one off.) Since 9/11 we have not had a mass-scale terror attack. More than 15 years in, we must accept 9/11 was a one-off, an aberration, and cannot be a justification for everything the government wishes to do.

    There is also the question of why, if the NSA is vacuuming up everything, and even sharing that collection abroad, this all needs to be kept secret from the American people. If it is for our own good, the government should be proud to tell us what they are doing for us, instead of being embarrassed when it leaks.

    After all, if you’re not doing anything wrong then you’ve got nothing to hide, right?


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    Oliver Stone’s New Movie ‘Snowden’ Tackles the Myth

    September 14, 2016 // 40 Comments »

    snowden


    Snowden is a helluva movie, kicking an audience’s ass on a number of levels. I had a chance to see the film last night at a preview event; it opens everywhere on September 16. Go see it.


    On one level the film presents Snowden’s story as a political thriller. A brave but frightened man, certain he is doing the right thing but worried if he can pull it off, smuggles some of the NSA’s most secret information out of a secure facility. He makes contact with skeptical journalists in Hong Kong, convinces them of the importance of what he has to say, and then goes on the run from a U.S. government out to arrest, or, possibly assassinate, him. In interviews Stone has made clear that he has dramatized and/or altered some events, and that his film is not a documentary. It does keep you on the edge of your beliefs, watching a story you know as if you don’t.


    The next level of the film is a carefully constructed vision of the national security state, seen through Snowden’s eyes. For many Americans, this may be the first time they will react emotionally to the way our government spies on us. It is one thing to “know” the NSA can access webcams at will, it is another to watch a technician “spy” on a Muslim woman undressing in her bedroom.

    When Snowden (played by Joseph Gordon-Levitt) slaps a piece of tape over his own webcam before an intimate moment with his girlfriend (played by Shailene Woodley), he has the wool taken from his eyes, his trust in government shattered. He is all of us.


    The final level of Snowden is perhaps the most important.

    Director Oliver Stone is in the business of creating counter-myths at critical points in time, and his work is best understood in that context.

    Even as most Americans still believed the myth that while the Vietnam was bad, the warriors were not, Stone showed us the dark side in Platoon. In the 1980s, when making money was seen as the best of America, Stone gave us Wall Street, and turned the myth “greed is good” from an instructional line out of an MBA program to a condemnation of how we all suffered when the bubble broke in the financial markets.

    And so with Snowden, which makes clear the myth of a benign national security (“nothing to hide, nothing to fear,” they’re the good guys protecting us) is anything but. The NSA and other agencies want to vacuum it all up, every communication, everywhere. They then move on to controlling our communications; the movie illustrates the depth of NSA’s penetration into the Japanese electrical grid by imagining a black out of Tokyo, and shows us how an NSA technical mistake reveals how they could shut down the Internet across the Middle East.

    In what is the most Oliver Stone-like scene in perhaps any of his movies, Snowden’s CIA boss confronts him, suspicious of wrongdoing. Their video conference discussion starts with Snowden at one end of the table, the boss’ face on a monitor at the other. As the scene unfolds and the intensity increases, Snowden moves closer to the screen until his head is a small dot, and the boss’ face takes over the audience’s whole field of view. The government itself has morphed into Big Brother before your eyes.


    For many aware viewers, a lot of this may seem old hat — of course the NSA is doing all that.

    But imagine the impact of Snowden. Thoughts that have largely been laid out only on blogs and left-of-center, non-main stream media, are now in suburban multiplexes, all carefully wrapped inside a thriller Tom Clancy fans will enjoy.

    You can’t get much more radical than that.






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    ‘Snowden’ Movie Trailer: Can Oliver Stone Make Whistleblowing Suspenseful?

    April 29, 2016 // 20 Comments »




    Of course he can. Have a look at the latest trailer for the upcoming Oliver Stone movie, SNOWDEN, due out in September.

    The Edward Snowden story is many things, but at some level, well apart from politics, it is a helluva thriller. Think of it: a young programmer, at great personal risk, figures out a way to gain access to a vast trove of very highly classified documents from one of America’s most secret agencies. He then discovers a way to beat all of NSA’s security to smuggle that information out of secure facilities. With the Feds no doubt on his heals, he finds his way to a foreign country, meets up with journalists, and reveals to Americans (and the world) that their own government has been illegally spying on them — reading their emails, listening to their calls, looking in their very bedrooms via hijacked webcams — for years. He then successfully eludes the full resources of the U.S. government and settles into a new life in Russia.

    So if that isn’t suspenseful, then not much can be.


    And it is hard to imagine a filmmaker more equipped to handle this story than Oliver Stone. Stone’s work has been all about creating narratives, often narratives contradictory to the mainstream, around significant historical and social events (Wall Street, W. Platoon, JFK). Snowden’s story may have found its natural storyteller.

    The trailer looks good, and shows a movie that is structured as a thriller, but one with a larger message. This film looks to be an excellent addition to the conversations about the changes he brought to the United States, and the world.



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    ‘The Boys Who Said No!’: New Documentary About War Resisters

    April 4, 2016 // 8 Comments »

    VIDEOPOSTER

    Evil is participatory, says interviewee David Harris at the beginning of a documentary in progress about Vietnam-era draft resisters, The Boys Who Said No!

    Evil continuing depends on people joining in, and the first step to stopping it, he continues, is withdrawing your own participation. So Harris said no to the Vietnam-era draft, and went to jail for it.

    The Boys Who Said No!

    The Boys Who Said No! is set during the late 1960s and early 70s, when thousands resisted conscription at the risk of federal prison. Unlike those who evaded the draft by fleeing to Canada, getting various deferments, or resorting to violent protest, the subjects of this film chose civil disobedience.

    It was a costly decision.

    An estimated 500,000 young men evaded or refused to cooperate with the draft, and 3,250 went to prison for their beliefs, the largest mass incarceration of war resisters in U.S. history. The film tackles this broad narrative mostly through the story of David Harris (who spent three years in Federal prison for refusing to be drafted, and for encouraging others to do the same) and his wife, folksinger Joan Baez. Interviews with many other draft resisters round out the narrative.

    As part of understanding the Vietnam era, the film also reviews the history of the draft, and opposition to previous drafts, and the Vietnam war. Resistance to the war is tied into the larger civil rights movement, two sides of the same coin in opposing unjust actions by the government, with the inclusion of the Reverend Martin Luther King, Jr. visiting Joan Baez and those jailed for blocking the Oakland Draft Board in 1967.

    How Do You Say “Vietnam” in Arabic? Iraq

    To a younger audience, the film is perhaps a bit funny, guys with weird hair and unhip clothing burning whatever draft cards were. For a cynical generation, it is as easy to dismiss the value of individual action as it is wrong to do so. Indeed, the actions of one person alone can amount to little. But as an interviewee says, you never know who’s watching. The Boys Who Said No! illustrates how one can become two, two can become ten, and over time they together remind you all that sand on the beach was once a rock.

    The Boys Who Said No! thus resonates strongly today.

    It offers an answer to the question of what courage is in a modern world: not only choosing the harder right over the easier wrong, but being willing to pay the price for acting on conscience, for a good bigger than oneself. And in that definition, the actions of men like David Harris and the thousands who joined him in refusing the draft, become clearer. The path they put themselves on leads in a straight line through whistleblowers Ellsberg (Pentagon Papers), Drake and Binney (NSA), Manning and Assange (Iraq War), Kiriakou and Sterling (CIA) and Snowden.

    Acts of conscience never go out of fashion, and a country never has enough examples. That’s what makes a film like The Boys Who Said No! more than historical document.

    To many today the war in Vietnam seems as old as the battles at Gettysburg and Antietam. But think about this: Vietnam was a war started on false pretenses (U.S. ships attacked in Gulf of Tonkin, Weapons of Mass Destruction in Iraq), built on deeply flawed fear (Communism will overtake Southeast Asia, a caliphate will engulf the Middle East), a faux-threat to the United States/Homeland (Communists on the beaches of California, Islamic terrorists in your town) and the strategy of extraordinary means spent for limited ends. Very, very similar comparisons apply to America’s war in Central America during the 1980s.

    And before you dismiss that by saying the struggle against Islamic terror is “different,” remember this: history shows those who resisted the war in Vietnam, and that in Central America, turned out to be right.

    The Boys Who Said No! is currently in production, but in need of additional funding for completion. Take a look at a 17 minute excerpt, and visit the project’s website, Facebook, or Indiegogo page if you wish to contribute.

    A Bit More

    The Boys Who Said No! was directed is Judith Ehrlich, who won an Academy Award nomination for The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers. The producer is Christopher C. Jones, who at age 17 refused to register for the draft, was arrested and served nine months in federal prison. As the documentary is not complete, my comments above are based on previews and clips I have seen.

    The film takes its title from a 1960s poster showing Joan Baez’ sisters sitting on a couch with the caption “Girls say yes to boys who say no.”




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    Web Ads (and the NSA) Use Inaudible Sound to Link and Track Your Devices

    December 2, 2015 // 5 Comments »

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    Remember how Ed Snowden told us to stick black tape over our webcams, as the NSA had learned to turn them on remotely without triggering the little light?

    Well, you better stick some tape over your speakers now, too.


    Silverpush, along with several other companies to include Adobe, has found a way to use ultrasonic bleeps emitted by apps, websites, and even TV commercials to combine the identities associated with different devices (tablets, phones, computers, etc), so that your activity on all of them can be aggregated.

    The system works by implanting software (malware?) into various apps you run on your devices and computers. Silverpush will not say which companies are using its technology. When one app is triggered, say by an ultrasonic tone emitted by a website you visit, the other devices nearby hear it and can transmit a unique signal that IDs all your devices as belonging to the same family. You do not know this is happening, you cannot opt out, and you have no idea what data is being collected or where it is going.

    And given the NSA’s proven ability to insert software remotely, you likely do not even need to install an app to become part of this scheme. The NSA has been said to already use ultrasonic sounds to in part bridge air-gapped computers.


    In comments filed with the Federal Trade Commission, the Center for Democracy and Technology raised a warning about these technologies and the ways in which they compromise user privacy. They claim as of April of 2015, SilverPush’s software is used by 67 apps and the company monitors 18 million smartphones.

    Here are some of the marketing firms selling the systems.

    Here is a partial list of the apps.

    The Center for Democracy and Technology pointed out just one way the technology could be misused.

    “For example, an organization could see that a user searched for sexually transmitted disease symptoms on her personal computer, looked up directions to a Planned Parenthood on her phone, and then checked the opening hours of a nearby pharmacy on her tablet. While previously the various components of this journey would be scattered among several services, cross-device tracking allows companies to infer that the user received treatment for an STD. The combination of information across devices not only creates serious privacy concerns, but also allows for companies to make incorrect and possibly harmful assumptions about individuals.”


    Welcome to your future, Citizens.




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    Snowden: NSA, GCHQ Using Your Phone to Spy on Others (and You)

    October 15, 2015 // 11 Comments »

    snowden hopex



    You are a tool of the state, according to NSA whistleblower Edward Snowden.


    The NSA in the U.S., and its equivalent in the UK, GCHQ, are taking control of your phone not just to spy on you as needed, but also to use your device as a way to spy on others around you. You are a walking microphone, camera and GPS for spies.

    Snowden, in a BBC interview, explained that for the most part intelligence agencies are not really looking to monitor your private phone communications per se. They are actually taking over full control of the phone to take photos or record ongoing conversations within earshot.

    According to Snowden, the UK’s spy agency, the Government Communications Headquarters, uses NSA technology to develop software tools to control almost anyone’s smartphone. He notes that all it takes is sending an encrypted text message to get into virtually any smartphone. Moreover, the message will not be seen by the user, making it almost impossible to stop the attack.


    GCHQ calls these smartphone hacking tools the “Smurf Suite.” The suite includes:

    “Dreamy Smurf” is the power management tool that turns your phone on and off with you knowing.

    “Nosey Smurf” is the hot mic tool. “For example,” Snowden said, “if the phone is in your pocket, NSA/GCHQ can turn the microphone on and listen to everything that’s going on around you, even if your phone is switched off because they’ve got the other tools for turning it on.

    “Tracker Smurf” is a geolocation tool which allows spies to follow you with a greater precision than you would get from the typical triangulation of cellphone towers.

    “Paranoid Smurf” is a defensive mechanism designed to make the other tools installed on the phone undetectable.



    Snowden said the NSA has spent close to $1 billion to develop these smartphone hacking programs.



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    NSA Can Track You Through Your Phone’s Battery Use

    February 26, 2015 // 21 Comments »

    snowden hopex

    I see you out there.

    Sitting in front of your computer. I see what you’re wearing, who you are with. I know where you have been today, and who you interacted with. I know where you were last night.

    Watching You

    We are shocked on a daily basis at the degree our cell phones can be used to monitor our movements. The most basic technique is via the phone’s built-in GPS; heck, that system is actually designed to locate the phone in physical space, and can at least be turned on and off (though it appears the NSA may be able to remotely trigger the system.)

    Next up is the way that cell phones work. Your phone is constantly seeking to connect to three cell towers at once. As you move around, it drops the connection to the weakest signal, holds on to two others, and reconnects to a new third. This happens seamlessly, and so you can keep talking to your girlfriend even as you drive (don’t use your phone while driving.) Your location can be tracked fairly accurately by someone who is measuring your triangulated point among the three towers.

    And when your phone connects to a Wi-Fi signal (how’s that Starbucks latte?), your location is easily determined.

    Lastly, the NSA has access to the SIM chip in your phone, which basically opens up the basic encryption used that might have in olden days offered some modicum of privacy.

    Location via Battery Levels

    Now, here’s another way.

    A team of security researchers from Stanford and the Israeli government (!) just published the details of a technique that lets spies watch as you move around by monitoring tiny changes in your phone’s battery level. It all comes down to how hard your phone has to work to ping those three cell towers. The towers that are further away or obscured by a building or hill cause your phone to use a little bit more power. If the spies know your normal routine, they can track your movements with 90 percent accuracy. If they don’t know your routine, that accuracy drops to about 60 percent. That may still be enough to place you close enough for whatever purpose, or to find you for closer monitoring.

    This is especially concerning because there’s not really any way to protect yourself from this kind of surveillance, aside from taking out your phone’s battery. Most any app can gain access to battery usage data, so a hacker could either build a fake app to monitor that data or pull data from another app.

    Funny thing: in the Edward Snowden documentary, CitizenFour, Snowden tells reporters visiting him to remove the batteries from their phones and place everything inside the metal box of the room fridge.


    And Oh Yes, They’re Watching You

    And oh my does the NSA like tracking your phone.

    The National Security Agency is gathering nearly five billion records a day on the whereabouts of cellphones around the world, enabling the agency to track the movements of individuals — and map their relationships — in ways that would have been previously unimaginable. The records feed a vast database that stores information about the locations of at least hundreds of millions of devices 24/7.

    Sophisticated mathematical tech­niques then enable NSA analysts to map cellphone owners’ relationships by correlating their patterns of movement over time with thousands or millions of other phone users who cross their paths. So let’s also hope you don’t accidentally find yourself nearby anyone the NSA is interested in. Since the ever-hungry NSA cannot know in advance which tiny fraction of the records it may need, it collects and keeps as many as it can — 27 terabytes, by one account, or more than double the text content of the Library of Congress’ print collection.

    And for those last seven or eight people who still cling to “Hey, I’ve got nothing to hide,” good for you. You may not be an ISIS super-villain, but really, nothing to hide from your girlfriend, boyfriend, boss, creditors, stalkers, ex-spouse, creepy guy downstairs, complete strangers, nobody? Because once information is collected, it exists, and once it exists it can be hacked, shared with foreign governments, your local cops, leaked or otherwise made available.


    So smile, and speak up — somebody’s paying attention!




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    What Didn’t Happen in 2014: The Paranoia Year in Review

    January 5, 2015 // 4 Comments »

    paranoia



    So how’s 2015 so far?

    Outside playing on your hoverboard while Dad brings in the family helicopter? Mom inside serving up a hearty meal, all in pill form? Planning a trip to the Lunar Grand Hyatt? Enjoying a life free from all disease, war and hunger, courtesy of the alien overlord world government?

    Good, good.


    With 2015 underway, let’s take a quick look back at the highlights of government paranoia from 2014.

    America’s War of Terror requires all of us (do your part!) to maintain a high state of fear while at the same time trusting our government to keep us safe. This means we need to be spoon-fed a constant stream of faux threats to Der Homeland to justify, whatever, without any of the threats coming true so we are pleased with what we are giving up in return for this faux security.


    Got it? So here we go:


    Chelsea Manning and Wikileaks: Julian Assange, evil mastermind of Wikileaks, remains trapped in the Ecuadorian Embassy in London. Chelsea Manning remains in prison. The dire predictions of what the leaked information was going to do to national security, blood on Chelsea’s hands when soldiers got killed and all, never happened.


    Edward Snowden: Snowden remains in exile in Russia. The dire predictions of what the leaked information were going to do to national security, blood on Snowden’s hands when soldiers got killed and terrorists ran amok and all, never happened.


    Boko Haram: Remember these guys and #SaveOurGirls? Nobody saved them. Boko never got on planes and flew to the U.S. as we were warned they might.


    Kim Jong Un: Wow, he may have lessened the chance we ever have to see another Seth Rogen movie. We owe the guy a Starbucks gift card or something. He otherwise did not transform America into a sea of flames. Oh, and hey, those hacks of Target, Home Depot and others that caused millions of dollars in lost revenues, nope, that wasn’t cyberterrorism, no, not at all.


    Ebola: OHMYGOD WE’REALLGONNA FREAKINGDIE. Quarantine the airports, nobody breathe on the east coast, get ready to nuke West Africa. Except nothing happened.


    Putin: We… are… seconds away from nuclear annihilation if Crimea eastern Ukraine the rest of Ukraine falls. Except nothing happened.


    Iran: We… are… seconds away from nuclear annihilation because they will get the Bomb. Except nothing happened.


    Home-Grown Terrorists: Yep, they are everywhere, no doubt rooming with the North Korean and ISIS sleeper cells that are also everywhere. Absent two clown-like kids in Boston that every single spying thing missed completely, not much. And oh, all those mass shootings, please note they are not home grown terrorists even though they mowed down more Americans since 9/11 than anything else. Grand juries are also not home-grown terrorists.


    Al Qaeda: Nope, nothing out of them this year either but You Never Know (c) We’ll keep killing their Number Two guys. But dammit, we were promised a Butt Bomb!


    Taliban: Nope, nothing out of them this year either but You Never Know (c) We better keep 10,000 troops in Afghanistan.


    Syria’s Assad: He gassed his own people! He is close to nuclear weaponization! He harbors terrorists who’ll take over our fast food franchises! Except he didn’t, and now we sort of passively support him because he does not care for ISIS.


    ISIS: 2014’s big winner in the paranoia sweepstakes. They never showed up at our shopping malls or our July 4th parades, but, what the hell, let’s invade Iraq again anyway.


    Also, everything that FOX, Lindsey Graham and John McCain said.


    BONUS: That thing on your shoulder, the red thing with the weird hair growing out of it? You probably should be worried about that.



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    Movie Review: CitizenFour, Snowden for Lovers and Haters

    October 28, 2014 // 7 Comments »

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    Two kinds of people are interested in Laura Pointras’ new documentary, CitizenFour, about Edward Snowden’s early contacts with journalists Glenn Greenwald, Ewen MacAskill and herself. Let’s have a review of the film for each group, the Haters and the Everyone Else.

    But First, a Quick Recap

    Snowden worked deep inside America’s national security state. His last job was as a contract systems administrator for the NSA. Through this job he obtained a massive trove of documents which, when made public, demonstrated to the world U.S. government electronic surveillance and espionage on a scale even its worst critics had not fully described. The documents also validated the information provided by earlier NSA whistleblowers. Snowden left the U.S. for Hong Kong, where he met the journalists above, and where most of CitizenFour was filmed. Following U.S. government efforts to bring Snowden back to the U.S., he left for Moscow, likely enroute to some other place, possibly Ecuador. He instead spent weeks in suspended status at the Moscow Airport before being granted long-term residency.

    With few exceptions, pretty much everyone can agree with that basic outline of the Snowden story to date, and CitizenFour does a very good job recounting most of it. It is there, however, where agreement ends. CitizenFour (the title comes from the codename Snowden choose for himself when first contacting filmmaker Pointras) cannot be understood independently from the greater Snowden story, and separate from the strong opinions of Snowden’s decisions.


    Review for Real Haters

    If you thought traitors like Chelsea Manning have their hate groups, they aren’t jack compared to what those on the right side (oh yes, pun intended) of the house will think of this film. To them, Pointras has created an evil-genius piece of propaganda, with the give-away starting point that she was a huge part of the Snowden story herself, throwing out any hint of objectivity. Her success at humanizing Snowden, portraying him as the amiable geek-nerd-manchild you could have a Lite beer with, is Riefenstahl-level work.

    This is a celebrity “authorized biography” with all the integrity those have. Apart from making a traitor look good, they’ll say, Pointras also crudely tells only the tidy parts of the story. Snowden’s believed-espionage relationships with Russia and China are glossed over. Many details of his time in Hong Kong and sneaky flights in and out are absent. Nothing is said about why Snowden won’t return to the U.S. to defend his so-called honorable acts in court like a real man would do. Nothing is said about how the NSA keeps America safe from Americans. Snowden is a starry-eyed savior of the left who’d likely smirk from his cozy Russian lair as America is attacked again.

    Review for Everyone Else

    CitizenFour is impressive filmmaking. Pointras starts with the problem of telling a story most people already know, in an engaging way, trying to reach a broad audience in many cases polarized as to her subject, and her Subject. She succeeds brilliantly, and if CitizenFour is not awarded the Academy Award for Best Documentary then that award no longer is relevant.

    To be fair to other films in award contention, Pointras starts from, and makes the most of, some very significant advantages. She is indeed part of the story (a fact she never hides nor diminishes) and thus enjoys a level of trust and access with her subjects almost unavailable to other documentarians. The viewer is in the room as the journalists with Snowden struggle to understand the story he is trying to tell them, working to interpret the documents he shows them and creating on the fly the most effective way to bring this information to the public. It is heady stuff.

    The interplay between Snowden and the journalists is dramatic, but in the sense that it is real human stuff. When Snowden claims he does not care if he is exposed as the whistleblower– he encourages the journalists to name him– they back him off a step, and try to make sure Snowden truly knows the impact such a decision will have on him and people he cares about. Funny things happen, particularly when Snowden realizes he is explaining some technical point to people who are nowhere near his level of expertise (an exchange about password security between Snowden and Greenwald is laugh-out-loud funny.)

    Pointras skillfully weaves her story, presenting it sometimes as if it was a thriller (it is), other times as a classic movie brave journalist saga (it is) and often times as a profile of a man everyone thinks they know but does not (it is that too.)

    Parts of Snowden’s journey from Hawaii to Moscow are omitted. Most sentient members of the audience will understand they have to be, given the global efforts underway to nab Snowden, and the need to protect the many people who played a role who choose to or need to remain anonymous. None of that is new in a documentary– turn on the evening news and witnesses speak in shadowy profile, while most docs about the CIA or the NSA alter voices and employ false names for the same reasons. Anyone expecting Pointras’ film to be a How to Catch Edward Snowden for Dummies will indeed be disappointed.

    Perhaps most powerfully, Pointras’ portrait of Snowden is of a whistleblower for a new generation. He is passionate, but in a laid-back way, confident in his actions such that his passion comes from within, maybe call it a kind of intellectual hipster patriotism. He is political, but in a small “p” way, moving through classic Left and Right into a place where many people feel more comfortable today, with a focus on issues such as privacy and authoritarianism above two sides shouting “Facist!” and “Hippie!” at each other in some news show’s clumsy attempt at their parents’ version of balance. When dealing with the older journalists in that hotel room, Snowden at times sounds like many young people do explaining how the DVR works to moms and dads dully mystified by but stuck being dependent on new technologies.

    And there (partisan now, no shame) lies CitizenFour’s most long-lasting contribution. There are millions of young men and women working inside the Dark State, often times with impressive levels of access to information. Like Snowden, they have seen evidence of government wrongdoing, obscenities directed at the Constitution, harm done to ordinary citizens. Almost every one of those people will remain silent, partners to the crimes. But maybe– just maybe– one out of a million will see a role model, an example, that rings true in CitizenFour, and stand to speak.

    If it was up to me, I’d have this movie play in every theatre in the Washington DC area 24/7, because s/he is out there.



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    E.O. 12333: End-Running the Fourth Amendment

    September 22, 2014 // 7 Comments »




    Historians of the Constitutional Era of the United States (1789-2001, RIP) will recall the Fourth Amendment to the Constitution, the one that used to protect Americans against unreasonable and unwarranted searches.

    The Supreme Court had generally held that searches required a warrant. That warrant could be issued only after law enforcement showed they had “probable cause.” That in turn had been defined by the Court to require a high standard of proof, “a fair probability that contraband or evidence of a crime will be found in a particular place.”

    The basic idea for more or less over 200 years: unless the government has a good, legal reason to look into your business, it couldn’t. As communications changed, the Fourth evolved to assert extend those same rights of privacy to phone calls, emails and texts, the same rules applying there as to physical searches.

    That was Then

    It was a good run. The Bill of Rights was designed to protect the people from their government. If the First Amendment’s right to speak out publicly was the people’s wall of security, then the Fourth Amendment’s right to privacy was its buttress. It was once thought that the government should neither be able to stop citizens from speaking nor peer into their lives. Folks, as our president now refers to us, should not have to fear the Knock on the Door in either their homes or The Homeland writ large.

    In Post-Constitutional America (2001-Present), the government has taken a bloody box cutter to the original copy of the Constitution and thrown the Fourth Amendment in the garbage. The NSA revelations of Edward Snowden are, in that sense, not just a shock to the conscience but to the concept of privacy itself: Our government spies on us. All of us. Without suspicion. Without warrants. Without probable cause. Without restraint.

    The government also invades our privacy in multiple other ways, all built around end-runs of the Fourth Amendment, clever wordplay, legal hacks and simple twisting of words. Thus you get illegally obtained information recycled into material usable in court via what is called parallel construction. You have the creation of “Constitution Free” zones at the U.S. border. The Department of Justice created a Post-Constitutional interpretation of the Fourth Amendment that allows it to access millions of records of Americans using only subpoenas, not search warrants, to grab folks’ emails by searching one web server instead of millions of individual homes. Under a twist of an old “privacy law,” doctors disclose your medical records to the NSA without your permission or knowledge. SWAT raids by local police designed to break into African-American businesses on harassment expeditions are also now OK.

    The Center of It All: Executive Order 12333

    The most egregious example of such word-twisting and sleazy legal manipulations to morph illegal government spying under the Fourth Amendment into topsy-turvy quasi-legal spying is the use of Executive Order 12333, E.O. 12333, what the spooks call “twelve triple three.” The Order dates from 1981, signed by Ronald Reagan to buff up what his predecessors limited in response to overzealous law enforcement activities. The Gipper would be mighty proud that his perhaps most lasting accomplishment was legalizing surveillance of every American citizen.

    Back to today. Despite all the secret FISA court decisions and as yet uncovered legal memos, most collection of U.S. domestic communications and data is done under E.O. 12333, section 2.3 paragraph C.

    Specifically, the one sentence that the government believes allows them to bypass the Fourth Amendment says the intelligence community can “collect, retain, or disseminate information concerning United States persons” if that information is “obtained in the course of a lawful foreign intelligence, counterintelligence, international narcotics or international terrorism investigation.”

    So, the work-around for the Fourth Amendment is as follows: NSA collects massive amounts of data on foreigners, often by hoovering up every fragment of electronic stuff flowing around the U.S. it can. So, while purportedly looking for a single terrorist email enroute to Yemen (“the needle”), the NSA collects every single email from Google, Yahoo and Microsoft (“the haystack.”) Thus, any American’s emails caught in that net are considered to have been collected “incidentally” to the goal of finding that one terrorist email. The NSA claims that the Executive Order thus makes its mass-scale violations of the Fourth Amendment legal.

    Tom Drake, perhaps the best-known NSA whistleblower prior to Edward Snowden, put it in simpler terms: “12333 is now being used as the legal justification for everything.”

    Oh and hey reformers: Executive Orders by one president stay in force until another president changes or negates them. We could have one at work today written by George Washington. What that also means is that Congress, should they regain consciousness, can’t change an E.O. Congress could in theory pass a law making the contents of an E.O. invalid, but that presumes someone in Congress knows the order exists and what it says. Many E.O.’s are classified and if they are not, such as 12333, the legal documents behind them and FISA interpretations of them, likely are.

    Snowden Knew

    Again, as a historical note, executive orders– basically dictates from the president– once did not trump the Constitution. However, in Post-Constitutional America, they do.

    As for this realization we have come upon, E.O. 12333, well, we’re all behind the curve. Edward Snowden, while still at NSA, wrote a now-famous email to the spy agency’s legal advisor, asking specifically whether an Executive Order has more legal force than an actual law passed by Congress, or indeed the Constitutional itself. The NSA’s answer was a bit convoluted, but said in a pinch the Constitution wins (wink wink), even while acting as if the opposite is true.

    As General Michael Hayden, then head of the NSA, said in a blistering blast of Newspeak, “I am convinced that we are lawful because what it is we’re doing is reasonable.”

    Ask Obama This Question

    So let’s make it simple: Journalists with access to the president, ask this question directly: Why is E.O. 12333 being used today, interpreted by the FISA court or any other means, stating that the NSA’s surveillance of U.S. citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain constitutional under the Fourth Amendment?

    Of course getting an answer out of Obama will not happen. After all, he is the Constitutional law professor who studied the document the same way a burglar learns about an alarm system. TO BREAK IT BETTER.


    BONUS: The stuff above is real amateur-level writing on E.O. 12333. When you are ready to dig in deep, get over to Marcy Wheeler’s blog. She is the smartest person working in journalism today on the subject. My debt to her is hereby acknowledged.



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    Interview with NHK, Japanese TV

    July 27, 2014 // 7 Comments »




    Japan’s main broadcast station, NHK (similar to PBS here in the U.S.) dropped by for an interview about my new book, as well as a discussion about an event from my past, my brief encounter with chess great turned psycho Bobby Fischer.

    Ghosts of Tom Joad is of interest to Japan for two reasons. First, the main time frame in the book, the late 1970s and early 1980s, represents arguably the high point of the Japanese industrial economy. That was the era of Japan as Number One: Lessons for America, the time when Japanese investors poured money into U.S. real estate, including high-profile purchases such as Rockefeller Center and the Pebble Beach golf course. Of course, Japan’s economic ascendancy was fueled in large part by their industrial exports, especially cars and steel to the U.S. One of the factors of American de-industrialization was the loss of jobs to Japan.

    In the way that history loves irony, Japan has interest in Ghosts now also because it is experiencing its own era of de-industrialization. We’re painting in broad strokes here (economists, relax a bit), but much of Japan’s current industrial malaise is due to cheap imports from China and other parts of Asia. Japanese companies are increasingly moving production abroad in search of cheaper labor. Ghosts, to some in Japan, is both a history of Japan’s role in America, and a road map to it’s potential future, with a dash of prophecy.

    BONUS: About Bobby Fischer. Bobby you’ll recall was a Cold War hero in America after beating Soviet chess champ Boris Spassky in Iceland in 1972. Fischer went on to lose to his mind, as well as play a for-money chess match in what was then Yugoslavia. The latter violated U.S. trade sanctions of the time, and turned Fischer into a wanted man. He avoided U.S. law enforcement for many years by traveling around the world, until by accident, aided by post-9/11 snooping, Homeland Security found him in Japan. My job at the U.S. embassy there included the revocation of U.S. passports. Homeland Security and State, via me, took away Bobby’s passport in a preview of what would later be done to Edward Snowden.



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    Edward Snowden is the Most Dangerous Man in America. Good.

    July 21, 2014 // 9 Comments »




    Oh yes, yes, Edward Snowden is clearly the most dangerous man in America.

    Speaking via video link (he uses Skype!) from Russia to the HopeX hackers’ conference in New York City July 19, Edward Snowden issued a call to arms to those present. Engineers, he said, “need to think now in adversarial terms to defeat government technical capabilities.” While the government now uses technology to shield themselves from accountability, software and hardware must “become a way to express our freedoms while protecting our freedoms.”

    Technology and Government

    Snowden went on to make a number of important points regarding the new relationship technology has created between the government and the people.

    — Technology now makes it possible to publish information without the government’s ability to stop it. While the photocopier was the “killer app” of Daniel Ellsberg’s day, Wikileaks and Snowden’s own revelations show the empowerment potential of technology. Snowden reminded the audience that when the government fears its people (as opposed to the inverse), that is democracy.

    — The value of masses of documents– evidence– cannot be understated because it cannot be ignored. Only mass evidence of NSA illegal spying “brought the president to the podium, and the people back to the table of government.”

    — Snowden noted his and other whistleblowers’ attempts to “go through channels” with their concerns, but cautioned “The American Revolution was not fought for the right to channels.”

    — Secret courts interpreting secret laws to issue secret findings carried out by secret agencies in secret defines much of our world today. The government through this “exploit chain” has shut us out from the process and policies that impact our lives.

    — Via his NSA revelations, we now know a new truth about our world, that who we love, who we spend time with, who we hate is now known by people who are not held accountable, not even by the full Congress.


    Encoding Our Rights

    Snowden’s most important points were part of a call to action for technologists. He emphasized encryption, while very important, only protects content (what is written in your emails) and not metadata (information about to whom you send emails, for example.) This means, encryption or not, everything you communicate is being measured and analyzed; the government is programmatically examining our lives, in bulk, creating layers of suspicion by association. And in that sense, metadata is not about you, or me, it is about us, the collective us, all Americans and all others around the world.

    In this sense, what the NSA is doing is perhaps greater, perhaps even worse, than “merely” listening in on what you say or reading what you write. They are, in a broader sense, creating a map of how every global citizen fits in with every other citizen. Pair that with whatever content is collected, and the NSA comes close to knowing everything.

    That is why, Snowden told the crowd, the next job for us all, and Snowden’s own future work, will be to encode our rights into our technology, to take away by our own hands and intellect what the government has learned to use against us.

    The key is to divorce the connection from the connector, i.e., create unattributable communications that destroy the government’s ability to collect and analyze metadata and run traffic analysis. Snowden gave the example of Tor, a secure enough networking tool. The big weakness of Tor is that the NSA can easily see that a computer has entered the Tor network, allowing them to otherwise easily target that computer, and, if possible, target the person associated with that computer. Same with someone who makes a call using the Verizon network. Divorcing the connection from the connector means cutting those links of association, forcing NSA to have to find some other means of targeting an individual or uncovering broader patterns.

    Whistleblowers

    A significant issue that holds many potential whistleblowers back is the risk of getting caught. Getting caught in this era means potentially life in prison, loss of family, loss of savings, loss of job and/or loss of status, position and identity. If technologists can lower the risk of getting caught, then that would likely make it more likely that more people would consider acts of patriotism and conscience. It is important that thousands (maybe hundred of thousands?) of people could have done what Snowden did, but only one man did it.

    Snowden then made one of his most chilling, and significant points, unexpectedly.

    He informed that crowd that there were almost certainly NSA operatives among them as he spoke. He explained that NSA has a budget just for sending people to hacker conferences, to see what they can learn, which people to look at further, and report back. Addressing those NSA people specifically, as well as the mass audience, Snowden challenged them directly to think about the world they wanted to live in, and then help build it.

    Comment

    Snowden just upped his game. In addition to his own work and revelations, he is now directing how others should proceed. He is combining technology and patriotism, whistleblowing and philosophy.

    The NSA may be right; Edward Snowden may be the most dangerous man (virtually) in America.

    Note: The presentation was built around a three-way discussion among Daniel Ellsberg, Trevor Timm and Ed Snowden. I’ve only reported on Snowden’s remarks, though seeing him interact with Ellsberg was like what I imagined being in the room would have been like when Bruce Springsteen met Pete Seeger.

    Here’s the full audio of the presentation if you’d like to listen.




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    Does Snowden Know Why the NSA Doesn’t Need Warrants? He Might.

    June 30, 2014 // 9 Comments »




    A funny thing to come out of Snowden’s recent interview with NBC News was his claim that he raised concerns about the NSA’s surveillance of American citizens through channels at the NSA, well before he began disclosing classified documents to journalists like Glenn Greenwald.

    The NSA denied for almost a year any record of Snowden speaking up, though located a single such email only following the recent television interview. It gets complicated, and very interesting, from that point…

    Snowden’s Email to the NSA

    The email the NSA disclosed showed Snowden asked a fairly simple legal question arising from an NSA training session that outlined various legal authorities, from the Constitution on down.

    “I’m not entirely certain, but this does not seem correct, as it seems to imply Executive Orders have the same precedence as law,” Snowden wrote, citing a Hierarchy of Governing Authorities referenced during the training. “My understanding is that E.O.s [Executive Orders] may be superseded by federal statute, but E.O.s may not override statute. Am I incorrect in this? Between E.O.s and laws, which have precedence?”

    “Hello Ed,” came the reply from an NSA lawyer. “Executive orders… have the ‘force and effect of law.’ That said, you are correct that E.O.s cannot override a statute.”

    What the Email Means

    Based on the NSA training he was given, Snowden was questioning which carries more weight within the NSA– an actual law passed by Congress, or an order from the president (an E.O., Executive Order.) The answer was a bit curvy, saying that absent a specific law to the contrary, an order from the president has the force of a law.

    By way of a trite illustration, if Congress passed a law requiring Snowden to eat tuna every day for lunch in the NSA canteen, he’d have to do that, even if the president ordered him to have the tomato soup instead. However, absent a law specifically telling him what to eat, the president’s order meant he would have to eat soup. Of course if Congress did not even know of the president’s order, it could not pass a law countering it.

    Back to 2006

    Hold on to the Snowden question for a moment and let’s go back to 2006.

    In 2006 we knew very, very little about what the NSA was doing, and knew even less about the scope and scale of their surveillance of Americans. That context is important.

    General Michael Hayden, then head of the NSA, gave a talk in January 2006 at the National Press Club. Journalist Jonathan Landay started a back-and-forth with Hayden over the wording and meaning of the Fourth Amendment. Most media outlets played the story as a mockery of Hayden, claiming he did not even know what the Fourth said. MSNBC quipped “Well, maybe they have a different Constitution over there at the NSA.”

    Let’s take another look at the exchange, with a few parts highlighted:

    LANDAY: I’m no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American’s right against unlawful searches and seizures. Do you use —

    HAYDEN: No, actually — the Fourth Amendment actually protects all of us against unreasonable search and seizure.

    LANDAY: But the —

    HAYDEN: That’s what it says.

    LANDAY: But the measure is probable cause, I believe.

    HAYDEN: The amendment says unreasonable search and seizure.

    LANDAY: But does it not say probable —

    HAYDEN: No. The amendment says —

    LANDAY: The court standard, the legal standard —

    HAYDEN: — unreasonable search and seizure.

    LANDAY: The legal standard is probable cause, General. You used the terms just a few minutes ago, “We reasonably believe.” And a FISA court, my understanding is, would not give you a warrant if you went before them and say “we reasonably believe”; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, “we have probable cause.”

    And so what many people believe — and I’d like you to respond to this — is that what you’ve actually done is crafted a detour around the FISA court by creating a new standard of “reasonably believe” in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

    HAYDEN: Sure. I didn’t craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

    Just to be very clear — and believe me, if there’s any amendment to the Constitution that employees of the National Security Agency are familiar with, it’s the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you’ve raised to me — and I’m not a lawyer, and don’t want to become one — what you’ve raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is “reasonable.” And we believe — I am convinced that we are lawful because what it is we’re doing is reasonable.


    Reasonable Searches v. Warranted Searches

    The full text of the Fourth Amendment is as follows, broken into two parts for our purposes here:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

    AND

    no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


    The reporter questioning Hayden, and most everyone else, wrongly conflates “unreasonable” with “unwarranted,” claiming that the only reasonable search is one done under a warrant. That is not true. Cops search people and cars all the time, legally, without warrants. Same thing at the border with TSA and others. New York City has its infamous stop and frisk law.

    There are libraries of case law on this, and yes, courts have generally– but not always— claimed that the same probable cause required to obtain a search warrant is an implied part of a “reasonable” search. But not always.

    One Supreme Court case of interest is Vernonia Sch. Dist. 47J v. Acton. The case involved a student’s refusal to submit to drug testing as a condition of playing high school sports. But take a look at the clarity of precedent in the Court’s opinion (emphasis added):

    Where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court has said that reasonableness generally requires the obtaining of a judicial warrant. Warrants cannot be issued, of course, without the showing of probable cause required by the Warrant Clause. But a warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either. A search unsupported by probable cause can be constitutional, we have said, “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable.”


    What Hayden Knew, Part I

    As head of the NSA, Hayden was not an emotional man, one prone to off-the-cuff remarks, or an imprecision of language. Standing in front of the press in 2006, Hayden knew in great detail the vast scope and scale of surveillance of Americans his agency was carrying out at that very moment, even if his audience did not. Hayden had also been around Washington a long time, and knew political will fades, winds change, and was not about to implicate himself in a violation of the Constitution in front of a room full of journalists.

    Hayden parsed the Fourth Amendment to maintain that under some legal opinions, a government search could be both “reasonable” and unwarranted and still be constitutional. Hayden also clearly referred to his “the authorization,” said “I am responding to a lawful order,” added that “the attorney general has averred to the lawfulness of the order.” He ended by saying “I am convinced that we are lawful because what it is we’re doing is reasonable.”

    What Hayden Knew, Part II

    The law, the statuate Snowden asked about in his 2013 email to the NSA lawyer, as passed by Congress was clear: under the Foreign Intelligence Surveillance Act (FISA), government officials have to prove to the secret intelligence court that there was “probable cause” to believe that a person was tied to terrorism to obtain a search warrant. Warrants, FISA or otherwise, still require probable cause, precisely as the Fourth Amendment states.

    But what if, standing there in 2006, guessing some or all of his NSA’s work would someday become public, Hayden knew he was covered for all the searches he was doing without warrants if he just chose his words very carefully. What if Hayden had an Executive Order from the president in his office safe, a secret legal memo, similar to the memos we now know of by John Yoo that explained how torture was not torture, or the one by David Barron explaining how the president ordering the drone killing of an American was not a violation of the Fifth Amendment’s guarantee of due process. Perhaps that Executive Order Hayden had laid out the legal argument that the NSA’s electronic surveillance of every America constituted a “reasonable” search under the Fourth Amendment. Reasonable searches do not require warrants. The Fourth prohibits only “unreasonable searches.” All the push and shove over unwarranted searches was just a smokescreen, a distraction for the public. It was all legal without a warrant anyway.

    At that point everything Hayden said– that what the NSA was doing was lawful because it was reasonable– makes chilling sense.

    What Snowden Knows

    Edward Snowden and the journalists working with his materials are smart cats. Over the past year they have had a curious knack for releasing a document, watching the president lie about it (“we don’t read Americans’ emails”) and then releasing another document exposing the lie.

    Does Snowden know of, or strongly suspect, there is a secret Executive Order legalizing everything the NSA is doing by claiming the searches are “reasonable,” and thus no warrant is needed to conduct them on a mass scale? Did something in his NSA training hint at that, and, through his email inquiry asking about the relative strength of an Executive Order versus a law (in the case, the FISA law requiring probable cause for warrants to be issued), was Snowden trying to tease that out of the NSA lawyer he wrote to?

    Ask Obama This Question

    So let’s make it simple: Journalists with access to the president, ask this question directly: Is there an Executive Order or other document stating that the NSA’s surveillance of American citizens is “reasonable,” and thus no warrant is required for the surveillance to continue and remain Constitutional under the Fourth Amendment?

    Yes or No, Mr. President. Edward Snowden and the rest of us would like to know.



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    Government Demands Whistleblower Organization’s Encrypted Files

    June 11, 2014 // 4 Comments »




    For those people who still do not believe we have crossed a terrible line into a Post-Constitutional state, here’s another chance to repent before we all go to hell.

    The Department of Veterans Affairs’ (VA) in-house watchdog has demanded that the Project On Government Oversight (POGO) turn over all information it has collected related to abuses and mismanagement at VA medical facilities, according to a subpoena delivered to POGO May 30.

    The VA is part of the federal government. POGO is a private non-profit group.

    The subpoena from the VA Office of Inspector General demands all records POGO has received from current or former VA employees, as well as any other individuals, including veterans. The subpoena asks for records related to “wait times, access to care, and/or patient scheduling issues at the Phoenix, Arizona VA Healthcare System and any other VA medical facility.”

    POGO refused to provide the records, most of which have come from confidential tips submitted through VAOversight.org.

    Background

    The Project On Government Oversight has for 33 years helped government whistleblowers. They are scrupulously non-partisan and very dedicated to exposing waste, fraud and mismanagement in Washington. They’re part of the reason we know that the Department of Defense wasted billions on things like a $7,600 coffee maker and a $436 hammer. They are very active in trying to bring some modicum of transparency to what the NSA is doing.

    The Veteran’s Affairs disaster is well-known. In short, the VA, which should be helping returning service members with their health problems, instead has been hiding their impossible wait times for appointments. They got caught for some of what they did already, but to ferret out more, POGO set up an online drop-box where people could submit tips and blow the whistle anonymously. Much of the information POGO received– which could very likely help veterans– has been submitted by persons from inside the VA. After all, who knows more about what the government is really doing (or not doing) than those who work inside? Sadly, those same workers also know that today, blowing the whistle is considered a Crime Against the State, and they do not wish to go to prison simply for informing the American people what the People’s Government is up to.

    Drop Box

    As a way of helping those who wish to pass on information that may help our veterans, POGO created an online drop box. This is the equivalent of an email Inbox, except it is secure. POGO advises “To maximize your security and anonymity, you should consider using the Tor Browser Bundle for all of your electronic correspondence with POGO. You should never use a government or contractor phone, fax, or computer to contact POGO. The information you submit from this page will be sent to POGO in an encrypted message.”

    Some VA employees who contacted POGO and requested confidentiality said they feared retaliation if their names were divulged. Some of the employees told POGO that they had already filed reports with the VA. You know, through channels.

    Encryption still pretty much works. And the government knows that. That’s why, instead of trying to decrypt the VA whistleblowers’ messages to POGO, the VA has simply demanded them from POGO, unencrypted, via subpoena.

    Subpoena

    A subpoena is an order to do something, most typically to produce a document or appear in court.

    Wait a second. How can the Veteran’s Administration be able to “legally” demand documents from a private, non-governmental entity like POGO anyway? The VA’s Inspector General, whose real job is supposedly to inspect the VA and root out waste, fraud and mismanagement, has subpoena powers that are supposed to be used for that purpose.

    All other federal Inspectors General have the same power. So does Congress. These subpoenas have the titular power of law. They have the same power that a real court has to demand documents be produced. These sorts of subpoenas are authorized within the agency itself, and do not require probable cause or a court’s approval. They are considered administrative acts and occur with no outside oversight.

    That said, subpoena power was never intended as a blunt tool to chase down whistleblowers even as the organization they’re blowing the whistle on fails in its mission. You’d think that the VA Inspector General has gone rogue here. But that’s not true. This is 2014 and we’re in Post-Constitutional America.

    Subpoenas and the Old Fourth Amendment

    The Department of Justice created a novel interpretation of the Fourth Amendment that currently allows it to access millions of records on Americans without search warrants. To clarify, a warrant is court permission to search and seize something. A warrant must be specific– enter Mr. Anderson’s home and look for drugs. Warrants are not free-hunting licenses (with exceptions) and cannot be general in nature, such as search everyone around 93rd Street for whatever illegal things they might have laying around.

    DOJ has turned all that around. It claims now that under the Fourth Amendment, it can subpoena an Internet company such as Facebook and demand they look for and turn over all the records they have about Mr. Anderson. DOJ isn’t searching, per se– they are demanding Facebook do that for them, so no warrant is needed. Worse yet, DOJ believes it can subpoena multiple records, maybe all the records something like Facebook has, with one piece of paper. The same thing applies, DOJ claims, to email. If they came to someone’s home and demanded access to that person’s emails, it would require a specific search warrant. Instead, if DOJ issues a subpoena to say Google, they can potentially vacuum up every Gmail message ever sent.

    The Department has continued this practice even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. An FBI field manual released under the Freedom of Information Act also makes clear agents do not need warrants to access email in bulk when pulled directly from Google, Yahoo, Microsoft and others.

    Snowden was Wrong

    Edward Snowden, along with many others, has said that the best tool right now to defeat the NSA and other government spying is the use of encryption. It is possible that some forms of encryption are not breakable by the NSA. It is likely that breaking other forms of encryption is slow and/or expensive to do on a world wide web-scale. It is a race of course, between how many supercomputing algorithms the NSA can throw at the problem and the cleverness of the people creating new forms of better encryption.

    If the government can access documents and information with a simple piece of paper– a subpoena– then all the encryption in the world is pointless.

    POGO says they’ll fight, and that their people are willing to go to jail instead of releasing any documents. Let’s believe them. But the possibility of the government getting the documents is likely enough to scare off would-be whistleblowers from submitting anything new. And not every whistleblower organization has the guts and the resources of POGO to fight back.

    The race for privacy may now be over, and the government is laughing at you still running around the track while they cut across the grass to the finish line. Suckers.



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    Obama Official: Bowe Bergdahl was Swift-Boated

    June 6, 2014 // 10 Comments »

    Let’s be clear: I am glad Bowe Bergdahl is home from five years with the Taliban. If he was truly captured on the battlefield, give him a parade. If he ran away, send him to trial.

    At the same time, the Obama administration’s bleating that “all the facts aren’t in” and that somehow after five years some sort of endless investigation needs to happen are just sad. The military has had five years to interview everyone they needed to, except Bowe.

    They have, no doubt, five years of intelligence, electronic eavesdropping and many, many pages of transcripts of what the Taliban said while negotiating with the U.S. over Bergdahl’s release. Bergdahl may have left letters behind before he disappeared, so some of his side has already been heard.

    Oops, There Already was an Investigation

    Better (worse?) yet, the Army already has done an investigation. A classified military report detailing the Army’s investigation into the disappearance of Sgt. Bowe Bergdahl in June 2009 says that he had wandered away from assigned areas before — both at a training range in California and at his remote outpost in Afghanistan — but returned.

    The roughly 35-page report, completed two months after Sergeant Bergdahl left his unit, concludes that he most likely walked away of his own free will from his outpost one night, and it criticized lax security practices and poor discipline within his unit. But it stops short of concluding that there is solid evidence that Sergeant Bergdahl intended to permanently desert.

    The report is said to have been based extensive interviews with members of Bergdahl’s unit, including his squad leader, platoon leader, and company and battalion commanders. It is said to confirm certain other details relayed in recent accounts, including that Bergdahl shipped his computer and a journal home before he disappeared. It also confirms that he left behind his body armor and weapon, taking with him only water, knives and a compass.

    So all that’s left is to ask Bergdahl himself a few questions (“What happened that night you walked off base?” “Why did we pick up radio transmissions the next day saying you were in a local village, asking for people who spoke English?” “Why didn’t you try and return to your unit?”)

    And yet…

    And yet… we have these Tweets from an Obama administration official, albeit a minor one. The Tweeter is former Department of Veteran’s Affairs Director of Online Communications, and now Deputy Assistant Secretary, Department of Housing and Urban Development, Brandon Friedman. That’s the photo, above, he uses on his personal website. See, he’s holding the frame of an iPad, so it’s “hip.”

    Here’s what Brandon Tweeted about Bowe Bergdahl:



    Now for all you Snowden accusers out there, who claim Snowden is a traitor because he did not “go through channels” and all that, take a close look at Brandon Friedman’s statements. He claims that if you’re in the military and have grown disillusioned and no longer trust your leaders (You out there Edward?), it’s kinda sorta OK to just walk over to the Taliban and join their jamboree. After that, if any of your former squad mates call you out, well, they’re psychopaths and have a reason to smear you.

    Sorry, It is Actually Worse

    At this point you’d think “What does a douche like Brandon Friedman know about military life anyway? Guys like him fight wars from cushy dorms at Ivy League colleges.”

    Nope. Friedman served as an infantry officer in the U.S. Army’s 101st Airborne Division in Pakistan, Afghanistan, Kuwait, and Iraq. In March 2002, he led a rifle platoon into Afghanistan’s Shah-e-Kot Valley engaging Taliban and al Qaeda fighters as part of Operation Anaconda, a battle later written about in Not a Good Day to Die A year later, Friedman commanded a heavy weapons platoon during the invasion of Iraq. He led troops during combat and counterinsurgency operations in Hillah, Baghdad, and Tal Afar. He was awarded two Bronze Stars for his service in Afghanistan and Iraq.

    One doubts Friedman would have been so forgiving of his own deserting troops when he commanded in the field. In other words, he knows better but writes idiotic garbage such as those Tweets anyway.


    Scabby Syncophants

    The Obama people knew all about Bergdahl. They knew of the serious questions about his disappearance. Yet they sent Susan Rice (again; she really just needs to sleep in on Sundays) on the talk shows to say he served “with honor and distinction.” Same swill from the State Department spokesperson. They have little bed bugs like Brandon Friedman out there saying ridiculous things.

    And there’s your tale of the infestation of the scabby syncophants we call our “government.” They’ll say and do anything to please their boss, with callous disregard for the public they are allegedly paid to serve.

    No man left behind? Brandon Friedman left himself behind and could do little more harm to respect and faith in government if he had joined up with the Taliban himself. I propose another swap. Send Susan Rice, too, for that matter. Or maybe just blame it all on some obscure anti-Islam video on YouTube?





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    Kerry Tells Snowden to “Man Up” and Come Home

    May 29, 2014 // 48 Comments »




    U.S. Secretary of State John Kerry, who at this point has all the credibility of a minor Kardashian just out of rehab, somehow was allowed on national television to say this:

    If Mr. Snowden wants to come back to the United States, we’ll have him on a flight today. [He] should stand up in the United States and make his case to the American people… A patriot would not run away… Let him come back and make his case. If he cares so much about America and he believes in America, he should trust the American system of justice.

    A near-complete failure as Secretary of State (if you are not sure, read this), Kerry is apparently relegated within the Obama administration to the role of mumbling bully-boy statements, faux-machismo rantings whose intended audience and purpose are very, very unclear. Did Kerry think he might persuade Snowden to take up the challenge and fly back to the U.S.? Maybe meet Kerry in the Octagon mano-a-mano? No, Kerry sounded much more like Grandpa Simpson than America’s Senior Diplomat.

    And Kerry should know better. He once, perhaps briefly, was also brave enough to act on conscience.

    Kerry’s Fall from Courage

    In the 1960s, Kennedy-esque, Kerry went from Yale to Vietnam to fight in what he came to see as a lost war. He became one of the more poignant voices raised in protest by antiwar veterans. He threw away his medals, no doubt causing some pundit of the day to claim he had harmed America in the eyes of its enemies, perhaps disgraced his fellow service members. Four decades after his Vietnam experience, he has achieved what will undoubtedly be the highest post of his lifetime: secretary of state. What does he do from that peak? Make fun of Edward Snowden.

    (I’ll keep the focus on Kerry here, but is important to mention that the things said about Snowden are the same old lazy, sad tropes said about whistleblowers since Dan Ellsberg. They should face justice. They harmed America (never any specifics on that one) and so forth.)

    Make His Case to the American People?

    Having watched Manning, Snowden (and Kerry if he’d admit it) knows what he could expect from American justice.

    Trials under the Espionage Act, which the U.S. says is how Snowden will be charged, quite specifically prohibit discussion of anything except proof or rebuttal that the accused did leak classified information. A jury is not allowed to rule on, or even hear about, motive and intent.

    John Kiriakou, the former CIA officer who was the first to go on-the-record with the media about waterboarding, pled guilty in his Espionage Act case last year partially because a judge ruled he couldn’t tell the jury about his lack of intent to harm the United States. In the case of State Department official Stephen Kim, the judge ruled the prosecution “need not show that the information he allegedly leaked could damage U.S. national security or benefit a foreign power, even potentially.” In the Espionage Act case against NSA whistleblower Thomas Drake, the government filed motions to make sure the words “whistleblowing” or “overclassification” would never be uttered at trial. In Chelsea Manning’s trial, Manning’s defense wanted to argue she intended to inform the public, that the military was afflicted with a deep and unnecessary addiction to overclassification, and that the government’s own internal assessments showed she caused no real damage to U.S. interests. All this information was ruled inadmissible.

    A SuperMax cell is not a very good bully pulpit.

    Kerry is either lying, or his hopelessly ignorant.

    John Kerry, here’s a deal Snowden might accept: When the Department of Justice agrees to charge James Clapper, national director of intelligence, for lying under oath to Congress about the surveillance of Americans, Snowden will know American justice is fair and equally applied, and come home for a trial. Better yet Kerry, promise that both trials will be televised live with no sealed documents or secret sessions. Deal?

    Fair Trial?

    As for any sort of a fair trial, John Kerry claimed in the past “People may die as a consequence to what this man [Snowden] did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.”

    Despite the fact that none of that has happened in the long year since Snowden’s information has been on the Internet worldwide, it does suggest officers of the United States government such as Kerry have stepped back from the now-quaint notion of innocent until proven guilty.

    Patriots Don’t Run

    As for Kerry’s remark about patriots not running, the Secretary should check with the Department of State he titularly heads up. He’d learn between 2009-2011 the U.S. granted asylum to 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members, among many others from a variety of countries. The U.S. acknowledges these people as patriots, men and women who took a dangerous and principled stand against a government they felt had gone wrong. A double-standard is no standard at all.

    Love of Country

    As for love of country, which Kerry maintains Snowden does not have until he surrenders himself to American authorities, Snowden took his love of America with him. Unlike whatever topsy-turvy version Kerry might still hold to, love of country does not necessarily mean love for its government, its military, or its intelligence services. Snowden, and Kerry took an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” He didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, The People.

    In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower. Snowden risked everything, and gained almost nothing personally, not to betray his country, but to inform it.

    John Kerry, love is expressed through one’s actions, not just words. Snowden clearly believes something other, more, deeper, better than himself matters. He has to believe that one courageous act of conscience can change his country. I think once, long ago, John Kerry might have believed that, too.


    BONUS: John Kerry, who said patriots don’t run, and that people should face justice, make their case to the American people and trust in the system, is currently running away from a Congressional subpoena because he doesn’t want to talk about Benghazi.



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    Welcome to the Memory Hole: Disappearing Snowden

    April 28, 2014 // 15 Comments »

    What if Edward Snowden was made to disappear? No, I’m not suggesting some future CIA rendition effort or a who-killed-Snowden conspiracy theory of a disappearance, but a more ominous kind.

    What if everything a whistleblower had ever exposed could simply be made to go away? What if every National Security Agency (NSA) document Snowden released, every interview he gave, every documented trace of a national security state careening out of control could be made to disappear in real-time? What if the very posting of such revelations could be turned into a fruitless, record-less endeavor?

    Am I suggesting the plot for a novel by some twenty-first century George Orwell? Hardly. As we edge toward a fully digital world, such things may soon be possible, not in science fiction but in our world — and at the push of a button. In fact, the earliest prototypes of a new kind of “disappearance” are already being tested. We are closer to a shocking, dystopian reality that might once have been the stuff of futuristic novels than we imagine. Welcome to the memory hole.

    Even if some future government stepped over one of the last remaining red lines in our world and simply assassinated whistleblowers as they surfaced, others would always emerge. Back in 1948, in his eerie novel 1984, however, Orwell suggested a far more diabolical solution to the problem. He conjured up a technological device for the world of Big Brother that he called “the memory hole.” In his dark future, armies of bureaucrats, working in what he sardonically dubbed the Ministry of Truth, spent their lives erasing or altering documents, newspapers, books, and the like in order to create an acceptable version of history. When a person fell out of favor, the Ministry of Truth sent him and all the documentation relating to him down the memory hole. Every story or report in which his life was in any way noted or recorded would be edited to eradicate all traces of him.

    In Orwell’s pre-digital world, the memory hole was a vacuum tube into which old documents were physically disappeared forever. Alterations to existing documents and the deep-sixing of others ensured that even the sudden switching of global enemies and alliances would never prove a problem for the guardians of Big Brother. In the world he imagined, thanks to those armies of bureaucrats, the present was what had always been — and there were those altered documents to prove it and nothing but faltering memories to say otherwise. Anyone who expressed doubts about the truth of the present would, under the rubric of “thoughtcrime,” be marginalized or eliminated.

    Government and Corporate Digital Censorship

    Increasingly, most of us now get our news, books, music, TV, movies, and communications of every sort electronically. These days, Google earns more advertising revenue than all U.S. print media combined. Even the venerable Newsweek no longer publishes a paper edition. And in that digital world, a certain kind of “simplification” is being explored. The Chinese, Iranians, and others are, for instance, already implementing web-filtering strategies to block access to sites and online material of which their governments don’t approve. The U.S. government similarly (if somewhat fruitlessly) blocks its employees from viewing Wikileaks and Edward Snowden material (as well as websites like TomDispatch) on their work computers — though not of course at home. Yet.

    Great Britain, however, will soon take a significant step toward deciding what a private citizen can see on the web even while at home. Before the end of the year, almost all Internet users there will be “opted-in” to a system designed to filter out pornography. By default, the controls will also block access to “violent material,” “extremist and terrorist related content,” “anorexia and eating disorder websites,” and “suicide related websites.” In addition, the new settings will censor sites mentioning alcohol or smoking. The filter will also block “esoteric material,” though a UK-based rights group says the government has yet to make clear what that category will include.

    And government-sponsored forms of Internet censorship are being privatized. New, off-the-shelf commercial products guarantee that an organization does not need to be the NSA to block content. For example, the Internet security company Blue Coat is a domestic leader in the field and a major exporter of such technology. It can easily set up a system to monitor and filter all Internet usage, blocking web sites by their address, by keywords, or even by the content they contain. Among others, Blue Coat software is used by the U.S. Army to control what its soldiers see while deployed abroad, and by the repressive governments in Syria, Saudi Arabia, and Burma to block outside political ideas.

    Google Search…

    In a sense, Google Search already “disappears” material. Right now Google is the good guy vis-à-vis whistleblowers. A quick Google search (0.22 seconds) turns up more than 48 million hits on Edward Snowden, most of them referencing his leaked NSA documents. Some of the websites display the documents themselves, still labeled “Top Secret.” Less than half a year ago, you had to be one of a very limited group in the government or contractually connected to it to see such things. Now, they are splayed across the web.

    Google — and since Google is the planet’s number one search engine, I’ll use it here as a shorthand for every search engine, even those yet to be invented — is in this way amazing and looks like a massive machine for spreading, not suppressing, news. Put just about anything on the web and Google is likely to find it quickly and add it into search results worldwide, sometimes within seconds. Since most people rarely scroll past the first few search results displayed, however, being disappeared already has a new meaning online. It’s no longer enough just to get Google to notice you. Getting it to place what you post high enough on its search results page to be noticed is what matters now. If your work is number 47,999,999 on the Snowden results, you’re as good as dead, as good as disappeared. Think of that as a starting point for the more significant forms of disappearance that undoubtedly lie in our future.

    Hiding something from users by reprogramming search engines is one dark step to come. Another is actually deleting content, a process as simple as transforming the computer coding behind the search process into something predatory. And if Google refuses to implement the change-over to “negative searches,” the NSA, which already appears to be able to reach inside Google, can implant its own version of malicious code as it has already done in at least 50,000 instances.

    But never mind the future: here’s how a negative search strategy is already working, even if today its focus — largely on pedophiles — is easy enough to accept. Google recently introduced software that makes it harder for users to locate child abuse material. As company head Eric Schmidt put it, Google Search has been “fine-tuned” to clean up results for more than 100,000 terms used by pedophiles to look for child pornography. Now, for instance, when users type in queries that may be related to child sexual abuse, they will find no results that link to illegal content. Instead, Google will redirect them to help and counseling sites. “We will soon roll out these changes in more than 150 languages, so the impact will be truly global,” Schmidt wrote.

    While Google is redirecting searches for kiddie porn to counseling sites, the NSA has developed a similar ability. The agency already controls a set of servers codenamed Quantum that sit on the Internet’s backbone. Their job is to redirect “targets” away from their intended destinations to websites of the NSA’s choice. The idea is: you type in the website you want and end up somewhere less disturbing to the agency. While at present this technology may be aimed at sending would-be online jihadis to more moderate Islamic material, in the future it could, for instance, be repurposed to redirect people seeking news to an Al-Jazeera lookalike site with altered content that fits the government’s version of events.

    …and Destroy

    However, blocking and redirecting technologies, which are bound to grow more sophisticated, will undoubtedly be the least of it in the future. Google is already taking things to the next level in the service of a cause that just about anyone would applaud. They are implementing picture-detection technology to identify child abuse photographs whenever they appear on their systems, as well as testing technology that would remove illegal videos. Google’s actions against child porn may be well intentioned indeed, but the technology being developed in the service of such anti-child-porn actions should chill us all. Imagine if, back in 1971, the Pentagon Papers, the first glimpse most Americans had of the lies behind the Vietnam War, had been deletable. Who believes that the Nixon White House wouldn’t have disappeared those documents and that history wouldn’t have taken a different, far grimmer course?

    Or consider an example that’s already with us. In 2009, many Kindle owners discovered that Amazon had reached into their devices overnight and remotely deleted copies of Orwell’s Animal Farm and 1984 (no irony intended). The company explained that the books, mistakenly “published” on its machines, were actually bootlegged copies of the novels. Similarly, in 2012, Amazon erased the contents of a customer’s Kindle without warning, claiming her account was “directly related to another which has been previously closed for abuse of our policies.” Using the same technology, Amazon now has the ability to replace books on your device with “updated” versions, the content altered. Whether you are notified or not is up to Amazon.

    In addition to your Kindle, remote control over your other devices is already a reality. Much of the software on your computer communicates in the background with its home servers, and so is open to “updates” that can alter content. The NSA uses malware — malicious software remotely implanted into a computer — to change the way the machine works. The Stuxnet code that likely damaged 1,000 centrifuges the Iranians were using to enrich uranium is one example of how this sort of thing can operate.

    These days, every iPhone checks back with headquarters to announce what apps you’ve purchased; in the tiny print of a disclaimer routinely clicked through, Apple reserves the right to disappear any app for any reason. In 2004, TiVo sued Dish Network for giving customers set-top boxes that TiVo said infringed on its software patents. Though the case was settled in return for a large payout, as an initial remedy, the judge ordered Dish to electronically disable the 192,000 devices it had already installed in people’s homes. In the future, there will be ever more ways to invade and control computers, alter or disappear what you’re reading, and shunt you to sites weren’t looking for.

    Snowden’s revelations of what the NSA does to gather information and control technology, which have riveted the planet since June, are only part of the equation. How the government will enhance its surveillance and control powers in the future is a story still to be told. Imagine coupling tools to hide, alter, or delete content with smear campaigns to discredit or dissuade whistleblowers, and the power potentially available to both governments and corporations becomes clearer.

    The ability to move beyond altering content into altering how people act is obviously on governmental and corporate agendas as well. The NSA has already gathered blackmail data from the digital porn viewing habits of “radical” Muslims. The NSA sought to wiretap a Congressman without a warrant. The ability to collect information on Federal judges, government leaders, and presidential candidates makes J. Edgar Hoover’s 1950s blackmail schemes as quaint as the bobby socks and poodle skirts of that era. The wonders of the Internet regularly stun us. The dystopian, Orwellian possibilities of the Internet have, until recently, not caught our attention in the same way. They should.

    Read This Now, Before It’s Deleted

    The future for whistleblowers is grim. At a time not so far distant, when just about everything is digital, when much of the world’s Internet traffic flows directly through the United States or allied countries, or through the infrastructure of American companies abroad, when search engines can find just about anything online in fractions of a second, when the Patriot Act and secret rulings by the Foreign Intelligence Surveillance Court make Google and similar tech giants tools of the national security state (assuming organizations like the NSA don’t simply take over the search business directly), and when the sophisticated technology can either block, alter, or delete digital material at the push of a button, the memory hole is no longer fiction.

    Leaked revelations will be as pointless as dusty old books in some attic if no one knows about them. Go ahead and publish whatever you want. The First Amendment allows you to do that. But what’s the point if no one will be able to read it? You might more profitably stand on a street corner and shout at passers by. In at least one easy-enough-to-imagine future, a set of Snowden-like revelations will be blocked or deleted as fast as anyone can (re)post them.

    The ever-developing technology of search, turned 180 degrees, will be able to disappear things in a major way. The Internet is a vast place, but not infinite.  It is increasingly being centralized in the hands of a few companies under the control of a few governments, with the U.S. sitting on the major transit routes across the Internet’s backbone.

    About now you should feel a chill. We’re watching, in real time, as 1984 turns from a futuristic fantasy long past into an instructional manual. There will be no need to kill a future Edward Snowden. He will already be dead.




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    You Can’t Opt Out: 10 NSA Myths Debunked

    March 17, 2014 // 21 Comments »

    The debate Edward Snowden envisioned when he revealed the extent of National Security Agency (NSA) spying on Americans has taken a bad turn. Instead of a careful examination of what the NSA does, the legality of its actions, what risks it takes for what gains, and how effective the agency has been in its stated mission of protecting Americans, we increasingly have government officials or retired versions of the same demanding — quite literally — Snowden’s head and engaging in the usual fear-mongering over 9/11. They have been aided by a chorus of pundits, columnists, and present as well as former officials offering bumper-sticker slogans like “If you have nothing to hide, you have nothing to fear,” all the while claiming our freedom is in direct conflict with our security.

    It’s time to face these arguments directly. So here are ten myths about NSA surveillance that need debunking. Let’s sort them out.

    1) NSA surveillance is legal.

    True, if perhaps you put “legal” in quotes. After all, so was slavery once upon a time in the U.S. and apartheid in South Africa. Laws represent what a government and sometimes perhaps even a majority of the people want at a given point in time. They change and are changeable; what once was a potential felony in Colorado is now a tourist draw.

    Laws, manipulated for terrible ends, must be challenged when they come into conflict with the fundamental principles and morals of a free society. Laws created Nelson Mandela, the terrorist (whom the U.S. kept on its terror watch list until 2008), and laws created Nelson Mandela, the president.

    There’s a catch in the issue of legality and the NSA. Few of us can know just what the law is. What happens to you if you shoplift from a store or murder someone in a bar fight? The consequences of such actions are clearly codified and you can look them up. Is it legal to park over there? The rules are on a sign posted right where you’d like to pull in. If a cop tickets you wrongly, you can go to court and use that sign to defend yourself. Yet almost all of the applicable “law,” when it comes to the National Security Agency and its surveillance practices, was secret until Edward Snowden began releasing his documents. Secret interpretations of the shady Patriot Act made in a secret court applied. The fact that an unknown number of legal memos and interpretations of that secret law (themselves still classified) are operative means that we really don’t know what is legal anymore.

    The panel of experts appointed by President Obama to review the Snowden revelations and the NSA’s actions had a peek into the issue of “legality” and promptly raised serious questions — as did one of the two federal courts that recently ruled on some aspects of the issue. If the Obama administration and the Justice Department really believe that all the NSA’s activities will be proven legal in a court of law, why not allow them to be tested openly and unambiguously in public? After all, if you’ve done nothing illegal, then there’s nothing to hide.

    When Amnesty International first tried to bring such a question before the courts, the case was denied because that organization couldn’t prove that it had been subject to monitoring — that was a secret, of course! — and so was denied standing even to bring the suit. Snowden’s revelations seem to have changed all that. The documents made public have given “standing” to a staggering array of individuals, organizations, and countries. For the first time in 12 years, they pave the way for the issue to come to its proper venue in front of the Supremes. Openly. Publicly.

    2) If I’ve done nothing wrong, I have nothing to hide. So why should I care about any of this?

    Keep in mind that the definition of “wrong” can quickly change. And if you don’t know what the actual law really is, how can you say that you know you have done nothing wrong? If you’ve got nothing to hide, post your social security number and credit card information online, leave your curtains open at night, and see how that sits with you.

    In a larger sense, however, the very idea that “I’ve got nothing to hide” is a distraction. The Fourth Amendment guarantees a right to privacy. The Constitution does not ask if you want or need that right; it grants it to everyone, and demands that the government interfere with it only under specific circumstances.

    The Fourth Amendment came into being because of the British use of general warrants in the colonial era. Under that “law,” they could legally search whole groups of people, their possessions, and their papers without having to justify searching any specific person. Called “writs of assistance,” these general warrants allowed the King’s agents to search anyone, anytime, regardless of whether they suspected that person of a crime. The writs were most often used by Royal Customs agents (an irony perhaps, given the draconian powers now granted to U.S. Customs agents to search anyone’s personal electronics, including those of American citizens, at the border).

    The U.S. fought a revolution, and James Madison wrote the Fourth Amendment, against broad government authority to search. Whether you personally do or do not have anything to hide is not even a question that should be on the table. It should be almost un-American to ask it.

    3) But the media says the NSA only collects my “phone metadata,” so I’m safe.

    My older, conservative neighbor quickly insisted that collecting this metadata thing she had heard about on Fox was necessary to protect her from all the terrorists out here in suburbia. She then vehemently disagreed that it was okay for President Obama to know whom she called and when, from where to where and for how long, or for him to know who those people called and when, and so forth.

    Think of metadata as the index to all the content the NSA can sweep up. That agency is able to record, say, 24 hours worth of Verizon phone calls. Its operatives can then easily locate any particular call within that huge chunk of metadata. Such basic information can also provide geo-location information to track physical movements. Metadata showing that you called your doctor, followed by metadata about which lab department she called next, followed by a trip to the pharmacy might fall into the “something you want to hide” category. (Actually, using metadata to learn about your medical history may not be even necessary. An exception to the privacy policy of one of America’s larger HMOs, Kaiser Permanente, states: “We may also disclose your PHI [personal health information] to authorized federal officials as necessary for national security and intelligence activities.” BlueCross BlueShield has a similar exception as do regional medical outfits.)

    Metadata is important. Ever play the game “Six Degrees of Separation”? Silly as it seems, almost anyone is indeed just six hops away from anyone else. You know a guy in Detroit who has a friend in California who has a sister who cuts hair whose client is Kevin Bacon’s high school classmate’s cousin. You and that cousin are connected. Publicly available information tells us that the NSA traces “three hops” from a target: A knows B, C, and D. But once C morphs into a target, C’s three hops mean the NSA can poke into E, F, and G, and so forth. The Guardian calculated that if A has 50 friends, the number of targets generated under the three-hop rule would be over 1.3 million people. I really do hope that you (and everyone you know, and they know) have nothing to hide.

    4) Aren’t there are already checks and balances in our system to protect us against NSA overreach?

    In recent years, the government has treated the king of all checks and balances, the Constitution, like a used Kleenex. The secret Foreign Intelligence and Surveillance Court (FISA) was set up to provide judicial oversight in a classified setting to the intelligence community.  Theoretically, the government is required to make a compelling case for the issuance of orders authorizing electronic and other surveillance, physical searches, and compelled production of business records. Either the government is very good at making its case, or the court has become a rubber stamp: that secret FISA court approved all 1,789 requests submitted to it in 2012.

    The Patriot Act elevated a once rarely used tool, the National Security Letter (NSL), into the mainstream of government practice. National Security Letters are an extraordinary search procedure that gives the FBI the power to compel the disclosure of customer records held by banks, telephone companies, Internet service providers, public libraries, and others. These entities are prohibited, or “gagged,” from telling anyone about their receipt of the NSL. Though the Justice Department itself cited abuse of the letters by the FBI in 2008, in 2012 the FBI used 15,229 National Security Letters to gather information on Americans. NSLs do not require judicial approval and the built-in gag orders prevent anyone from seeking judicial relief; indeed, most people will never even know that they were the subject of an NSL. And at the moment, the Department of Justice is trying to keep classified an 86-page court opinion that determined the government violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

    Director of National Intelligence James Clapper directly lied to that check-and-balance branch of the government, Congress, in a public session. (He later termed his response the “least untruthful” answer.) And we wouldn’t even know that he lied, or much of anything else about the NSA’s surveillance activities here or globally, if it weren’t for one man’s courage in exposing them. The government had kept it all from us for 12 years and never showed the slightest sign of reconsidering any part of that policy. Without Snowden, we would not even know what needs checking and balancing.

    5) But I trust Obama (Bush, the next president) on this. 

    I can guess what your opinions are of the people that run the Transportation Safety Administration or the Internal Revenue Service. On what basis, then, can you conclude that the NSA or any other part of the government is any more trustworthy or competent, or any less petty?

    While the government does not trust you to know what it does, thanks again to the Snowden revelations, we know that the NSA trusts some foreign governments more than you. The NSA is already sharing at least some data about Americans with, at a minimum, British intelligence and the Israelis. And who knows how those governments use it or whom they share it with downstream?

    Do you really trust all of them all the time to never make mistakes or act on personal grudges or political biases? History is clear enough on what former FBI director J. Edgar Hoover did with the personal information he was able to collect on presidents, the Supreme Court, Congressional representatives, Martin Luther King, and others in the Civil Rights movement. Among other things, he used his secretly obtained information to out gay members of government. As for the NSA, so far it hasn’t even been willing to answer the question of whether it’s been spying on, surveilling, or gathering metadata on members of Congress.

    Still, let’s assume that Obama or the next president or the one after that will never do anything bad with your personal data. Once collected, however, that data potentially exists forever. If the NSA is to be believed, it claims to hold metadata for only five years, though it can keep copies of intercepted communications from or about U.S. citizens indefinitely if the material contains “significant intelligence” or “evidence” of crimes. The NSA can hold on to your encrypted communications as long as is needed to break the encryption. The NSA can also keep indefinitely any information gathered for “cryptanalytic, traffic analysis, or signal exploitation purposes.” Data held is available to whoever can access it in the future, using whatever technologies come to exist. Trusting anyone with such power is foolish. And as for data security, we know of at least one recent instance when more than 1.7 million highly-classified NSA documents just walked out the door.

    6) But don’t private companies like Facebook already have access to and share a lot of my personal data? So what’s wrong with the government having it, too?

    While private companies can pass your private information to the government, either willingly or under secret compulsion, there still are some important differences.

    At least in theory, it’s your choice to give data to private companies. You could stop using Facebook, after all. You can’t, however, opt out of the NSA. About the worst that Facebook and the others directly want is to take your money and send you spam. While certainly no angel, Facebook can’t arrest you, put you on the No-Fly list with no recourse, seize your property or put you under investigation, audit your finances, imprison you without trial as a terrorist, or order you assassinated by drone. Facebook can’t suspend your civil rights; the government can. That is a big, big difference.  And by the way, a proposed solution to the metadata collection problem — having private companies, not the NSA, hold the data — is no solution at all.  Data stored and available to NSA analysts, wherever it is, is data stored and available to NSA analysts.

    7) All this surveillance is distasteful and maybe even illegal, but isn’t it necessary to keep us safe? Isn’t it for our own good? Haven’t times changed and shouldn’t we acknowledge that?

    This isn’t a new argument; it’s Old Reliable. It was the argument that Hoover, Senator Joseph McCarthy, and so many others made to justify the particular acts they chose to endorse to protect us against Communism. The 1976 Church Committee Report, the first and only large-scale review of America’s internal spy networks, found that between 1953 and 1973 nearly a quarter of a million first-class letters were opened and photographed in the United States by the CIA. Like the NSA, it was at that time officially forbidden to spy on Americans domestically. It nonetheless produced a computerized index of nearly one and one-half million names. At least 130,000 first class letters were also opened and photographed by the FBI between 1940 and 1966, all to keep us safe and for our own good in changing times. I doubt many people now believe any of that is what kept the Reds at bay.

    The same argument was made about the necessity of domestic surveillance during the Vietnam War. Again, from the Church Report, we learned that some 300,000 individuals were indexed in a CIA computer system and that separate files were created on approximately 7,200 Americans and more than 100 domestic groups under the umbrella of Operation MH/CHAOS, designed to ferret out supposed foreign influence on the antiwar movement. Intelligence files on more than 11,000 individuals and groups were created by the Internal Revenue Service between 1969 and 1973 and tax investigations were started on the “basis of political rather than tax criteria.” I doubt many people now believe any of that is what kept the nation from descending into chaos.

    The Constitution and the Bill of Rights have matured with our nation, growing to end slavery, enhance the rights of women, and do away with Jim Crow and other immoral laws. The United States survived two world wars, the Cold War, and innumerable challenges without a massive, all-inclusive destruction of civil rights. Any previous diversions — Abraham Lincoln’s suspension of habeas corpus during the Civil War is a favorite instance cited — were short, specific, and reversed or overturned. The Founders created the Bill of Rights to address, point-by-point, the abuses of power they experienced under an oppressive British government. (Look up the never-heard-from-again Third Amendment.) A bunch of angry jihadis, real and imagined, seems a poor reason to change that system.

    8 ) Terrorists are everywhere and dangerous.

    From 1776 to 2001 the United States did not experience a terror attack anywhere close to the scale of 9/11; the worst terror attack against the United States as of 9/10, the Oklahoma City bombing, claimed 168 lives compared to some 3,000 at the Twin Towers. Since 9/11 we have not had a comparable mass-scale terror attack. No dirty bombs at the Super Bowl, no biochemical nightmares, no suicide bombers in our shopping malls or theme parks. There have been only about 20 domestic terror-related deaths since 9/11. Your chances as an American of being killed by a terrorist (the figures are for the world, not just inside the U.S.) are about 1 in 20 million. The inevitable comparison shows the odds of being struck by lightning at 1 in 5.5 million.  You are, in other words, about four times more likely to be struck by lightning than killed by a terrorist. Most of the “terrorists” arrested in this country post-9/11 have been tragicomic fabrications of the FBI. 9/11 was a one-off, an aberration, so unique that its “success” stunned even Osama bin Laden. It was a single morning of disaster and cannot be the justification for everything the government wishes to do forever after.

    9) We’ve stayed safe. Doesn’t that just prove all the government efforts have worked?

    No, that’s called false causality. There simply is no evidence that it’s true, and much to the contrary. It’s the same as believing government efforts have prevented Martian attacks or wild lions in our bedrooms. For one thing, we already know that more NSA spying would not have stopped 9/11; most of the needed information was already held by the U.S. government and was simply not properly shared or acted upon. 9/11 was a policy failure, not a matter of too-little snooping. Today, however, it remains a straw-man justification for whatever the NSA wants to do, a way of scaring you into accepting anything from the desecration of the Fourth Amendment to taking off our shoes at airport security. But the government uses this argument endlessly to promote what it wants to do.  Even the NSA’s talking points recommend their own people say: “I much prefer to be here today explaining these programs, than explaining another 9/11 event that we were not able to prevent.”

    At the same time, despite all this intrusion into our lives and the obvious violations of the Fourth Amendment, the system completely missed the Boston bombers, two of the dumbest, least sophisticated bro terrorists on the planet. Since 9/11, we have seen some 364,000 deaths in our schools, workplaces, and homes caused by privately owned firearms, and none of the spying or surveillance identified any of the killers in advance.

    Maybe we should simply stop thinking about all this surveillance as a matter of stopping terrorists and start thinking more about what it means to have a metastasized global surveillance system aimed at spying on us all, using a fake argument about the need for 100% security in return for ever more minimal privacy. So much has been justified in these years — torture, indefinite detention, the Guantanamo penal colony, drone killings, wars, and the use of Special Operations forces as global assassination teams — by some version of the so-called ticking time bomb scenario. It’s worth getting it through our heads: there has never been an actual ticking time bomb scenario. The bogeyman isn’t real. There’s no monster hiding under your bed.

    10) But doesn’t protecting America come first — before anything?

    What exactly are we protecting from what? If, instead of spending trillions of dollars on spying and domestic surveillance, we had spent that same money on repairing our infrastructure and improving our schools, wouldn’t we now have a safer, stronger America? Remember that famously absurd Vietnam War quote from an American officer talking about  brutal attack on Ben Tre, “It became necessary to destroy the town to save it”? How can anyone say we are protecting our liberty and freedom by taking it away?




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    Snowden Warns Us of the Dark Path Ahead

    March 10, 2014 // 16 Comments »

    In written testimony to the European Union (EU), Edward Snowden explained in patient, well-written, detailed prose exactly why what the NSA is doing is so dangerous. Snowden reveals himself an articulate writer, and through that moves from mere whistleblower into an almost philosophical role. His testimony deserves your full read, so you should best stop right here and just go read it.

    For those who prefer some highlights, with commentary, please follow me deeper down the page rabbit hole.

    Snowden says:

    The suspicionless surveillance programs of the NSA, GCHQ, and so many others that we learned about over the last year endanger a number of basic rights which, in aggregate, constitute the foundation of liberal societies.

    The first principle any inquiry must take into account is that despite extraordinary political pressure to do so, no western government has been able to present evidence showing that such programs are necessary. In the United States, the heads of our spying services once claimed that 54 terrorist attacks had been stopped by mass surveillance, but two independent White House reviews with access to the classified evidence on which this claim was founded concluded it was untrue, as did a Federal Court.

    …There are indications of a growing disinterest among governments for ensuring intelligence activities are justified, proportionate, and above all accountable. We should be concerned about the precedent our actions set.

    Snowden understands that the programs he revealed are fundamentally in conflict with the very basis of a just society; the two cannot co-exist. When the government turns its full resources to spy, without suspicion or reason or legitimate purpose, on its full citizenry (including the Senate, charged with in theory a check-and-balance role on the executive), a fundamental shift occurs: the Government is no longer of the People, it has made the People its enemy. The opposite follows by course. Deceiving your enemy is part of any war.

    More:

    I know the good and the bad of these systems, and what they can and cannot do, and I am telling you that without getting out of my chair, I could have read the private communications of any member of this committee, as well as any ordinary citizen. I swear under penalty of perjury that this is true.

    These are not the capabilities in which free societies invest. Mass surveillance violates our rights, risks our safety, and threatens our way of life. If even the U.S. government, after determining mass surveillance is unlawful and unnecessary, continues to operate to engage in mass surveillance, we have a problem.

    Indeed we do Edward. The problem is that following the events of that one day– 9/11– America went, quite simply, insane. For a short period of time, nearly every American, naw, let’s all look at our shoes and feel ashamed, because EVERY American agreed that anything that even might make us feel safe again was OK. We went out and bought duct tape when told a gas attack might happen, and we eyed our neighbors cautiously.

    But as the dust literally settled, the government realized that they could cite 9/11 as justification forever, for anything. Evil people took this opening to slip a still-metastasizing national security state into the fabric of our lives, then enlarge it to cover the globe. Snowden in his testimony acknowledges that the NSA’s reach covers billions of people. I am certain that if we could ever catch anti-freedom figures like Cheney, Obama and their pig helpers in a private moment, they would all say: “If we knew it was going to be this easy to create an omnipotent executive, we would have done it years ago.”

    Snowden:

    Whether we like it or not, the international norms of tomorrow are being constructed today, right now, by the work of bodies like this committee. If liberal states decide that the convenience of spies is more valuable than the rights of their citizens, the inevitable result will be states that are both less liberal and less safe.

    There is the most important sentence of all: the international norms of tomorrow are being constructed today. Because if this devolution of our world, our freedoms and our privacy is allowed to remain, it will grow, and that will be the end of that. As Snowden warned earlier, no one in elementary school today will ever know what privacy is, and will grow up in a police state that envelopes their lives in total. They will never hold a private thought, never share a private communication, never wake to a place where they are not on someone’s video screen. Snowden is clear that we are at the last Y in the road.

    The final words are Snowden’s:

    If you want to help me, help me by helping everyone: declare that the indiscriminate, bulk collection of private data by governments is a violation of our rights and must end. What happens to me as a person is less important than what happens to our common rights.


    Now really, go read Snowden’s full testimony.



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    Barrett Brown: The Criminalization of Web Links

    March 7, 2014 // 20 Comments »

    This– A LINK— could have sent me to jail. Another link came very, very close to sending Barrett Brown to jail.

    First, a quick recap of how the internet works. People from all over the world put stuff on the web (“posts”). In many cases you the viewer do not know who posted something, when they did it, where they live or where they obtained the information they posted. It is just there on your screen. If the info is of interest, you can link to it, sending instructions via chat, email, HTML, Facebook or whatever to someone else, telling them where to find the information.

    The act of linking is analogous to saying “Hey, did you see that article in the Times on page 4? Check it out.” It is kind of what the internet is about. Here’s how the government seeks to criminalize linking from one article on the web to another.

    The United States v. Barrett Brown

    Barrett Brown is an internet guy. He may or may not have been involved with web naughty boys Anonymous and most certainly was deeply involved with broad free speech issues online. In 2011 Brown posted a link in a chatroom, pointing to data that was obtained during the late-2011 hack of Stratfor Global Intelligence. The link pointed to the Wikileaks site.

    The government arrested Brown and charged him with a number of offenses, the most significant of which was for posting that link. The link, the government contended, exposed enormous amounts of credit card information, a crime. Not mentioned by the government, the link also documented discussions of assassination, rendition and how to undermine journalists and foreign governments.

    To be clear, neither the government nor anyone else accused Brown of stealing the info himself, or misusing the info to use others’ credit cards, physically possessing the information, hosting it on a server he controlled or anything like that. His crime was simply linking to data that already existed on the internet and which was already available worldwide for viewing.

    (To be further clear, Brown is no choirboy. He was once addicted to heroin, is accused of threatening an FBI agent on YouTube and who knows, may be mean to strangers. And so what. What matters is his actions, not his Match.com profile.)

    Browns Wins, Though Broader Issues Remain

    The Electronic Freedom Foundation (EFF) supported Brown throughout his arrest. Because the government imposed a gag order on Brown speaking publicly about his situation, friends such as the EFF were critical in keeping the case in the public eye. The significance of Brown’s case was made quite clear by the EFF:

    The U.S. Attorney for the Northern District of Texas today [March 5, 2014] filed a motion to dismiss eleven charges against Barrett Brown in a criminal prosecution that would have had massive implications for journalism and the right of ordinary people to share links. EFF has written extensively about the case and had planned to file an amicus brief on Monday on behalf of several reporters groups arguing for the dismissal of the indictment.

    Brown, an independent journalist, was prosecuted after he shared a link to thousands of pages of stolen documents in an attempt to crowdsource the review of those documents—a common technique for many journalists. The records came from the US government contractor, Stratfor Global Intelligence and documented discussions of assassination, rendition and how to undermine journalists and foreign governments. They also included thousands of stolen credit card numbers. Brown had no involvement in the hack, but was charged nonetheless with identity theft.


    Looking for a Test Case

    Though the government in its Motion to Dismiss gave no reasons for its decision, the implication is that while the government was clearly looking to set a precendent on the Brown case, it did not want that precedent to be a loss. Better to let a small fry like Brown swim away than risk the greater principle the government seeks.

    Having failed to find any legal or otherwise effective way to deal with sites like Wikileaks, or the publication of classified materials elsewhere on the internet, the government is taking a side-step in seeking to punish those that use, view or handle the material itself.

    U.S. Government Orders its Employees to Not Look at Wikileaks and Others

    For example, when the Wikileaks information first started pouring out across the web, most government agencies blocked access to the data via their firewalls, claiming the content was still classified and thus could not be viewed on a government computer even while it could be viewed on any other web-connected computer from Cleveland to Karachi. Similar blocks have been put in place to prevent much of the Snowden material from being viewed at work.

    Before Barrett Brown, Me

    The attempt by the government to punish people for links to “objectionable” material did not start with Brown. Though I can’t promise I was the first test case, I was certainly an early attempt.

    In 2010 the Department of State suspended the Top Secret security clearance I had held without incident or question for over twenty years because I linked to a supposedly classified document on the Wikileaks site from this blog.

    State referred my linkage to the Department of Justice for prosecution in fall 2010. When Justice declined without reason to pursue the case, State took the non-judicial action of “temporarily” suspending my security clearance indefinitely, because of the link. State claimed that via that link I revealed classified information publicly, a major no-no for cleared personnel and sought to fire me. As in the Brown case, in the end State choose not to pursue charges, again without comment.

    There may be other such link cases out there that we do not yet know of. They may be classified, or the parties involved may be under gag orders as was Brown.



    Who’s Next?

    There appears little question that the government is testing the concept, looking for a case that it can win that would criminalize linking. From the government’s point of view, the win would pay off handsomely:

    — With use of their content criminalized, sites like Wikileaks would slip beneath the world radar. People would be increasingly afraid of reading them, and the crowdsourcing critical to sifting through millions of documents would slow down significantly.

    — In cases the government saw as particularly dangerous, people would disappear into jail. With a precedent set in a “good” test case, winning such prosecutions would be rote work for interns. Is there a link? Did Ms. X create the link? Does the link go to classified information? It’s a slam dunk.

    — Best of all from a control standpoint, prosecuting links will have a chilling affect. Many people will simply be afraid to take the chance of legal trouble and stop creating links or following them. That will certainly be the case among the main stream media, already far too skittish about security matters. One wonders what effect such prosecuting of links will have on search engines like Google, essentially little more than a collection of links.

    Another step toward a post-Constitutionalization of America is the creeping criminalization of everything. If every act is potentially cause for prosecution, the ability of the government to control what people do or say grows.

    So while we still can, better hit these links: Wikileaks, Cryptome, some Snowden. Who could have guessed that in 2014 a click of the mouse would be a subversive act?



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    Hope and Change, NSA Edition

    February 28, 2014 // 12 Comments »

    Hey lookit here, jiggling, shiny keys. Wait, I just forgot what I was going to write, but at least I’ve stopped kicking the seat in front of me.

    Distracting people from real issues with shiny objects is called “hope and change” nowadays. Here’s the latest (and this is not satire.)

    The Wall Street Journal, citing unnamed administration “officials close to the matter,” tells us that four suggestions for “NSA reform” will be forwarded to the president for a decision.

    A Quick Recap

    Prior to June of last year and Edward Snowden’s revelations about the NSA, most people had only a limited idea at best of the depth and expanse of NSA spying on Americans here in Das Homeland. It was not widely known that nearly every/every bit of electronic effluence we produce was being monitored, stored and analyzed for our safety and security. We had no idea that our very lives were just one NSA-missed email away from ending.

    Now we know a little bit more, keeping firmly in mind that only a tiny portion of Snowden’s information has been published, and that Snowden is only one whistleblower from only one of the universe of U.S. and international intelligence agencies that actively spy on all of us. In addition, Snowden’s revelations are mostly about what information the NSA and others collect, and a bit about how they collect it. We know almost nothing about what is done with that information.

    The NSA Reform Recommendations

    Still, even this tiny peep-hole view of Big Brother set off enough noise among Americans that the president was moved to create the appearance of action and reform. Hence the four recommendations the Wall Street Journal tells us will be offered to the president so that he can make a decision. Let’s have a look at those recommendations (Reminder: this is not satire.)

    Recommendation One: The NSA would continue to vacuum up our lives. Only under this recommendation telecommunications companies like Verizon and AT&T would store the data, not the NSA. The NSA would “ask” for data as needed.

    Recommendation Two: The NSA would continue to vacuum up our lives. Only under this recommendation some other part of the government would store the data, not the NSA. The NSA would “ask” for data as needed.

    Recommendation Three: The NSA would continue to vacuum up our lives. Only under this recommendation some non-telecom, non-government entity would store the data, not the NSA. The NSA would “ask” for data as needed.

    Recommendation Four: The entire spying program would be ended.



    Those Jingling Keys

    Leaving aside the obvious proof that the government still has a sense of humor proposing Recommendation Four, it is equally obvious that One, Two and Three are no reform, change or hope whatsoever. They are merely the illusion of change, the jingling keys.

    Such false “reforms” are the new normal in our post-Constitutional America. Once implemented, these reforms will then be endlessly cited by the president, the press and both parties as proof that they are listening, evidence that Something Has Been Done and that it is time to move on. As a bonus, the reforms will be available to further disrespect Snowden, asserting that his stated goal– to provoke debate and reform– has been satisfied. His work done, Snowden thus should return to America immediately for imprisonment.

    Thank you for reading this but do not be further distracted by its content. Please disperse and go about your daily lives, Citizens.


    BONUS CONTENT: Only on February 26 did we learn that the Justice Department asked the Foreign Intelligence Surveillance Court to allow it to hold the already-collected bulk telephone records beyond the currently-allowed five years.

    Why the sudden need? Because the ACLU and others are suing Justice over the collection program, and Justice says destroying the records would be inconsistent with legal obligations to retain evidence. Naughty ACLU, see what you did! Now you made it so the government has to hold our phone records longer!



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    Whistleblowing is About the Message, Not the Messenger

    January 9, 2014 // 18 Comments »

    The current media pablum about whether Snowden is “narcissistic” or “spiteful” or the devil himself is nonsense.


    This kind of thing has become a set-piece in America to dehumanize and discredit whistleblowers so as to dilute public support for the vital information they make available. In high school debate class this lame name-calling is known as ad hominem, one of the lowest forms of argument. The idea is that a claim is rejected on the basis of some irrelevant fact about the person presenting the claim. First comes an attack against the character of person making the claim. Second, this attack is taken to be evidence against the claim the person in question is making, just like stating 1+3=2.

    The technique is in full use against NSA whistleblower Edward Snowden, particularly swirling around demands by the New York Times and The Guardian that the U.S. government grant him clemency.

    The use of cheap ad hominem takes its crudest form in “opinion pieces” such as those by Washington Post typist Ruth Marcus. In the course of only a couple of hundred words, Marcus (who has never actually spoken to Snowden) calls Snowden messianic, smug, self-righteous, egotistical, disingenuous, megalomaniacal, overwrought, feckless and insufferable before concluding “The whistleblower personality is rarely an attractive one. Whistleblowers tend to be the difficult ones, the sort who tend to feel freer to speak out precisely because they don’t fit in. So perhaps it is not a surprise that the biggest whistleblower of all time has an unpleasant personality to match.” In an earlier piece, Marcus announced that “Snowden is no Socrates and no Martin Luther King,” as if anyone but her was even making such assertions. She concludes that “Socrates is [sic] a great philosopher and Snowden the lowest type of menial.”

    Former National Security Agency and CIA head Michael Hayden said of Snowden: “I used to say he was a defector… I’m now kind of drifting in the direction of perhaps more harsh language… such as traitor.”

    None of this is new. After Daniel Ellsberg exposed America’s duplicitous history in Vietnam by leaking the Pentagon Papers, the Nixon White House broke into his psychiatrist’s office looking for dirt to smear him. Chelsea Manning’s sexuality featured prominently and pruriently in media coverage of her disclosures. NSA whistleblower Thomas Drake described his own experience as “the politics of personal destruction while also engaging in abject, cut throat character assassination, and complete fabrication and frame up.” When the State Department was seeking to prosecute/fire me because of my own whistleblowing (seriously minor compared to Snowden of course) they pushed out all sorts of nasty things, and several media people accused me of being bad in some way. I was typically asked to “respond” to questions that I blew the whistle as part of some self-promotion campaign, or that I was simply a disgruntled employee out for revenge.

    When asked to respond to such statements, I would cut them off and stipulate “I am indeed a terrible person, mean to babies and puppies. And so what? This must be about the message, not the messenger. I don’t matter. What I said is either true or made up (of course it was true). Focus your energy on that. What I said either exposed government waste and mismanagement or it did not (it did), so focus your energy on that and not whether I return my library books on time (I do).

    The technique of smearing the messenger is crudely wielded when people try to diminish Snowden’s information’s value by criticizing him for not “manning up” to face consequences in the U.S., or for “selling out” to the Russians for asylum. Snowden, having watched what happened to Manning, Drake and others, knew he would be unlikely to be handled justly. The Espionage Act of 1917 carries the death penalty, and as we learned with the Manning trial the government need not prove any actual damage was done or any foreign power was actually aided to gain a conviction. The proceedings would all be classified and Snowden would be held in devastating pretrial detention in some Supermax. He would be prohibited from discussing his case with anyone but perhaps his lawyer and denied any outside contact or information. I don’t think Snowden wanted to live in Russia but under those circumstances he did not have many options outside of basically handing himself over to the U.S. government to be disappeared. To put this in some perspective, the U.S., after all, takes in many political asylees each year, the circumstances of which ebb and flow with U.S. policy of the moment. Other countries do the same and unless one is willing to condemn all those political asylees in the same way as one does Snowden (no guts, face the music, etc.) than it isn’t right to single him out.

    Snowden. I don’t know the guy. Maybe he is cool, fun to hang around with, quick with a joke and nice to babies, puppies and kittens. Maybe he is not. But outside the guilty pleasures of gossip (what new diet trick is Edward using to stay trim? Is it true about him and Lady Gaga?!?), Snowden, in a larger sense, in a good way, doesn’t matter as a person. What matters is what he has revealed to us about a national security state that has clearly gone quite insane, violating our liberty and our freedom to live without unwarranted search and seizure of our private lives.

    We would know nothing about the extent of NSA intrusion without Snowden’s information. Whether the debate on the NSA leads anywhere or not is an evolving question, but, without Snowden’s leaks, it would not be happening in any form. Let’s focus on Snowden’s information to save our democracy and leave the hypocrisy outside the door, the name-calling on the schoolyard and the gossiping for the Kardashians.


    BONUS: No one in government takes an “oath of secrecy.” I held a TS clearance for 23 years. You sign a paper promising to follow the rules on handling classified info. However, you do swear one oath, to preserve and defend the Constitution against all enemies foreign and domestic. Snowden believed he was acting on that oath in revealing the extent that the NSA had spun out of control. That action is called “conscience,” and it requires significant courage. FYI.



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    Whistleblowers Write Open Letter to Federal Employees after Snowden

    December 23, 2013 // 5 Comments »



    I know you’re out there, and this is for you.

    Somewhere there is a Federal government employee who has witnessed an act of government waste, fraud, malfeasance or mismanagement and is unsure what to do next. Several former whistleblowers have written a letter to you. I fully endorse what they say (see my additional thoughts here), and encourage you to take the hard, right choice over staying silent.

    We’re all depending on you.

    (This open letter originally appeared in the UK’s Guardian newspaper; links added)

    The Letter

    At least since the aftermath of September 2001, western governments and intelligence agencies have been hard at work expanding the scope of their own power, while eroding privacy, civil liberties and public control of policy. What used to be viewed as paranoid, Orwellian, tin-foil hat fantasies turned out post-Snowden, to be not even the whole story.

    What’s really remarkable is that we’ve been warned for years that these things were going on: wholesale surveillance of entire populations, militarization of the internet, the end of privacy. All is done in the name of “national security”, which has more or less become a chant to fence off debate and make sure governments aren’t held to account – that they can’t be held to account – because everything is being done in the dark. Secret laws, secret interpretations of secret laws by secret courts and no effective parliamentary oversight whatsoever.

    By and large the media have paid scant attention to this, even as more and more courageous, principled whistleblowers stepped forward. The unprecedented persecution of truth-tellers, initiated by the Bush administration and severely accelerated by the Obama administration, has been mostly ignored, while record numbers of well-meaning people are charged with serious felonies simply for letting their fellow citizens know what’s going on.

    It’s one of the bitter ironies of our time that while John Kiriakou (ex-CIA) is in prison for blowing the whistle on US torture, the torturers and their enablers walk free.

    Likewise WikiLeaks-source Chelsea (née Bradley) Manning was charged with – amongst other serious crimes – aiding the enemy (read: the public). Manning was sentenced to 35 years in prison while the people who planned the illegal and disastrous war on Iraq in 2003 are still treated as dignitaries.

    Numerous ex-NSA officials have come forward in the past decade, disclosing massive fraud, vast illegalities and abuse of power in said agency, including Thomas Drake, William Binney and Kirk Wiebe. The response was 100% persecution and 0% accountability by both the NSA and the rest of government. Blowing the whistle on powerful factions is not a fun thing to do, but despite the poor track record of western media, whistleblowing remains the last avenue for truth, balanced debate and upholding democracy – that fragile construct which Winston Churchill is quoted as calling “the worst form of government, except all the others”.

    Since the summer of 2013, the public has witnessed a shift in debate over these matters. The reason is that one courageous person: Edward Snowden. He not only blew the whistle on the litany of government abuses but made sure to supply an avalanche of supporting documents to a few trustworthy journalists. The echoes of his actions are still heard around the world – and there are still many revelations to come.

    For every Daniel Ellsberg, Drake, Binney, Katharine Gun, Manning or Snowden, there are thousands of civil servants who go by their daily job of spying on everybody and feeding cooked or even made-up information to the public and parliament, destroying everything we as a society pretend to care about.

    Some of them may feel favourable towards what they’re doing, but many of them are able to hear their inner Jiminy Cricket over the voices of their leaders and crooked politicians – and of the people whose intimate communication they’re tapping.

    Hidden away in offices of various government departments, intelligence agencies, police forces and armed forces are dozens and dozens of people who are very much upset by what our societies are turning into: at the very least, turnkey tyrannies.

    One of them is you.

    You’re thinking:

    ● Undermining democracy and eroding civil liberties isn’t put explicitly in your job contract.
    ● You grew up in a democratic society and want to keep it that way
    ● You were taught to respect ordinary people’s right to live a life in privacy
    ● You don’t really want a system of institutionalized strategic surveillance that would make the dreaded Stasi green with envy – do you?

    Still, why bother? What can one person do? Well, Edward Snowden just showed you what one person can do. He stands out as a whistleblower both because of the severity of the crimes and misconduct that he is divulging to the public – and the sheer amount of evidence he has presented us with so far – more is coming. But Snowden shouldn’t have to stand alone, and his revelations shouldn’t be the only ones.

    You can be part of the solution; provide trustworthy journalists – either from old media (like this newspaper) or from new media (such as WikiLeaks) with documents that prove what illegal, immoral, wasteful activities are going on where you work.

    There IS strength in numbers. You won’t be the first – nor the last – to follow your conscience and let us know what’s being done in our names. Truth is coming – it can’t be stopped. Crooked politicians will be held accountable. It’s in your hands to be on the right side of history and accelerate the process.

    Courage is contagious.

    Signed by:

    Peter Kofod, ex-Human Shield in Iraq (Denmark)
    Thomas Drake, whistleblower, former senior executive of the NSA (US)
    Daniel Ellsberg, whistleblower, former US military analyst (US)
    Katharine Gun, whistleblower, former GCHQ (UK)
    Jesselyn Radack, whistleblower, former Department of Justice (US)
    Ray McGovern, former senior CIA analyst (US)
    Coleen Rowley, whistleblower, former FBI agent (US)



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    Obama and the NSA: Information is Power

    October 29, 2013 // 23 Comments »

    Obama, the president of the United States, Commander-in-Chief and self-proclaimed leader of the free world, says he did not know about his own government’s spying on multiple allied world leaders until quite recently. This means that Obama learned of this amazing thing same as we did, basically via Edward Snowden’s whistleblowing.

    We’ll take a moment on behalf of the president to say:

    “Thanks” Edward for bringing this to my attention. It appears that not all of our allied world leaders have been pleased to learn that my government has been (maybe still is? I gotta check Buzzfeed) spying on them, right down to the level of sitting in on Chancellor Merkel’s personal cell phone chats. Since these revelations affect the foreign standing and policy of the United States globally, I guess Edward I have to say I am grateful you let me know about this all. Hope Moscow is treating you well. Say hi to Julian for me!


    Well, well, about that Mr. President who-don’t-know-nuthin’, there are two possible ways this can go:

    1) Obama really did not know the NSA was spying on world leaders he called friends. This would mean that the NSA and who knows who else inside the government has gone rogue, taking actions independently that threaten the very allied relations the US depends upon to facilitate trade and commerce, build coalitions to support American aims and otherwise deal with a complex, multi-polar world. As such, the NSA has committed the essential elements of treason, aiding foreign powers and damaging the credibility and security of the United States. Obama should thus immediately fire the top several layers of NSA leadership, and appoint an independent prosecutor to look into charges against them.

    Oops– instead of firing anyone, Obama spokesperson Jay “Goebbels was an Amateur” Carney cheered the American public by saying that “the president has full confidence in General Keith Alexander and the leadership at the NSA.”

    2) That leaves only the conclusion that Obama lied. He lied straight into the eyes of the American people, ever gullible, even as those spied-upon world leaders rolled their own eyes in disbelief that the self-proclaimed World’s Most Powerful Man could not come up with a better excuse than total and complete ignorance.

    We Must Protect America (from Spiders!)

    On the subject of lies, the only justification the White House has offered on why it is necessary to conduct all this espionage is that it is necessary to protect America from terrorists. This is indeed important– a recent poll showed that among Americans’ deepest fears, Number One is Death, Number Two is Spiders and Terrorism is Third. Roll them up into terrorist spiders that can kill you and it is one scary image. So Obama is right to want to protect Americans from terrorist spiders.

    The problem is that it is quite unclear how listening in on Merkel’s cell phone might in any way contribute to the fight to protect Americans against terrorists. Is Merkel a terrorist herself, a super sleeper agent spending years working her way into the seat of power of Europe’s leading economy? Does Merkel butt dial terrorists? Does she reveal inside dope on terrorists only on her cell phone calls home asking what’s for dinner?

    Information is Power

    No, no, of course not. Spying on someone like Merkel (or the President of Mexico, et al) has only one purpose: to gather information that can be employed by the United States to coerce, blackmail, threaten or otherwise manipulate.

    Oh sure, the NSA might pick up some tidbits about a negotiating position, or whatever, but that info can be gathered elsewhere at much lower risk and with much more ease. Indeed, the CIA and others are out there as we speak offering money and other sweet goodies to code clerks, systems administrators and foreign diplomats to gather that kind of stuff.

    The NSA and Obama want to know who sleeps with whom. They want to know who has a mistress, who is in an unhappy marriage, who gossips too much. who drinks too much, who likes to gamble, who visits prostitutes, who takes drugs, who has some weakness or vulnerability that can be quietly, maybe cleverly, exploited. This is a very big thing. Nothing as crude as Obama ringing up the Minister of Silly Walks in France and threatening to send over some incriminating photos like in the old KGB/Stasi days. But how about a quiet word dropped in the right place about a powerful leader with some odd connections to a guy who knows a guy who moves dope across southern Europe?

    Information is power, straight as that, and Obama used and will continue to use the NSA to achieve it.

    Oh, by the way, all that NSA spying on Americans, maybe corporate leaders, journalists and other politicians? Yep, same thing.



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    Failed Faith: Why Security Clearances Fail (And a Way to Fix Them)

    October 7, 2013 // 9 Comments »

    (This article originally appeared on Fire Dog Lake)

    Whistleblower Edward Snowden had one of the highest levels of security clearance, and exposed the most secret of NSA work. Chelsea Manning held a Top Secret clearance, and disclosed hundreds of thousands of classified records to Wikileaks. Aaron Alexis held a security clearance and used a shotgun to murder twelve people at the Washington Navy Yard. Over four million other Americans today hold some form of security clearance from the Federal government. Can we trust them? How did they obtain those clearances? Are Snowden, Manning and Alexis exceptions, or was the process one that could never have been expected to work in the first place? What can be done to make the clearance process work the way it was intended?

     

    What is a Security Clearance?

    A security clearance is issued by a part of the U.S. Government (Department of Defense, CIA, the State Department) and says that as a result of some sort of background investigation, and perhaps a polygraph examination, the holder can be trusted to handle sensitive documents and duties and to do so in secret. At the low end, this may mean a contractor like Alexis can enter the Navy Yard without a body search, or at the extremes mean that a person will assume a completely new identity, live abroad, and conduct sensitive, clandestine actions on behalf of the U.S.

    Government-wide there are three basic levels of classification and access: Confidential, Secret and Top Secret. There are formal definitions, but the basic idea is that the higher you go up the ladder, the more harm and damage disclosure would create. Added to this three-tiered system are many subcategories, including Sensitive But Unclassified, for well, unclassified things that are still sensitive, such as an applicant’s social security number, Law Enforcement Sensitive and the self-explanatory like. Once more or less the top of hill, Top Secret, TS, is now supplemented by Sensitive Compartmented Information (SCI), often used to denote information obtained from intelligence sources. There also many, many flavors of Special Access Programs (SAP) that require both a very high level clearance and permission to access just that single project. A clandestine operation against Iran, or the identities of spies in Syria, might be in this category. The military also creates its own lexicon of classifications.

    While the range of what “cleared” people do for the United States covers much territory, the clearance process is largely a variation on a single note: let’s look into what this person has said and done in his/her life prior to seeking a clearance, and then try to extrapolate that into what they will do once cleared. But because, like with your mutual funds, past performance is no guarantee of future success, the process is inherently flawed.

     

    How To Get Cleared

    Despite the wide variety of clearances available, the process of obtaining one is similar. What changes is less the process of looking into someone’s life than the depth and granularity of the look.

    Most everyone seeking a clearance begins at the same place, filling out Standard Form 86, Questionnaire for National Security Positions, form SF-86. The form itself is no secret, and available on line, though many agencies have supplemental forms and requirements not public.

    The SF-86 is mainly a very detailed autobiography, the raw material that fuels the rest of the process. Young people filling out their first SF-86 invariably end up on the phone to mom, gathering old addresses they lived at as kids, birthdays of disconnected relatives, foreign countries visited on family trips and more, a lot more: the SF-86 runs some 129 pages. Some interesting stuff is near the end; almost silly questions such as “Have you ever engaged in an act of terrorism?” and a follow-up requiring you to describe, in one line, “The nature and reason for the terror activity.”

    However, after a hundred pages of names and dates and silly questions, the SF-86 dips into the deal breakers, the questions that weed out quickly those who are unlikely to get very far in the clearance process. Applicants are asked to self-describe financial problems, debts, drug use, gambling, drinking, mental health issues, legal troubles, job firings and more. Whether out of duty and honor, or more likely a thought process that the agency will find out anyway and lying is an automatic disqualification (it usually is; if one lies on a security check, what else is fair game to lie about?), most applicants do tell the truth and easily disqualify themselves.

     

    First Level of Background Checks

    Though the details vary from agency to agency, everyone gets some standard checks run on them. Since U.S. Citizenship is the most basic and unwaivering requirement for a clearance, every applicant’s claim is verified. In my own case (I held a Top Secret clearance for 22 years), investigators obtained a certified paper copy of my actual birth certificate from a distant city, and were nice enough to give it to me when the process was over in case I needed it for something. I’m not sure they’re as nice these days.

    Every applicant then gets a run through whatever databases and electronic records can be found. This step is increasingly detailed as more and more of our lives move on line. The goal is to verify quickly as much of the self-provided data on the SF-86 and to skim off the low-hanging fruit. A serious arrest record, neck-deep financial problems and the like will be easily found. Checks are also run through the various intelligence files (a “National Agency Check”) to make sure while you’re applying for a job at the State Department you are not on some secret list of bad guys over at CIA. Before everything went on line that used to happen once in awhile, though now the biggest problem is both too much irrelevant information and the need to wonder about the accuracy of what was found; that record entry from the Pigeon Hollow local police department from 1983– accurate enough to deny someone a career over?

    Absent any whoppers uncovered, most applicants are given a chance to explain abnormalities. Some say this is to be fair, some say it makes the agency’s job much easier if the applicant will either self-incriminate with even more details, or just voluntarily withdraw knowing she was caught.

    For some low-level or short-term clearances, the process can stop here and a decision is made. The time period varies, but usually is in the area of a couple of months for a background-only clearance. Much of this work, due to the volume and perceived simplicity of the process, is farmed out now to private contractors. Alexis, the Navy Yard killer, had such a background-only clearance, done by a contracting firm in Northern Virginia that specializes in such work for the government. The same firm worked on a part of Edward Snowden’s clearance.

     

    Full Background Investigation

    For higher level clearances, including Top Secret, a full spectrum background investigation is required. Someone, typically a combination of someones including agency investigators and contractors, will comb through the SF-86 and whatever the electronic searches uncover and conduct field interviews. The investigator really will visit an applicant’s home town school teachers, her second-to-last-boss, her neighbors, her parents and almost certainly the local police force and ask questions in person. As part of the clearance process, an applicant will sign the Mother of All Waivers, basically giving the government permission to do all this as intrusively as the government cares to do. This is old fashioned shoe leather police work, knocking on doors, eye balling people who say they knew the applicant, turning the skepticism meter up to 11. The investigator will ask each interviewee to keep quiet about the interview, but typically the applicant will get a hushed phone call or email from some old acquaintance saying the Feds just knocked. Many of the contract investigators at this level are retired FBI or Secret Service people and often will present their old ID to add some gravitas to the procedure. If an applicant lived abroad, the process is tasked out to various liaisons and the nearest U.S. Embassy.

    The process is proactive; the investigator must find people to talk to who know the applicant. If he can’t (say wrong addresses, or no one from the USG can track down an old college roommate now in Tehran) the investigation often “pauses,” sometimes indefinitely. Not being able to find adequate information on an applicant is a big negative.

    As you can imagine, this process is not quick. Most full background investigations take at least a year and complex lives, especially if the applicant has lived abroad and has many foreign contacts, can drag… on… for… years… All this on-the-street work does not come cheap. It is hard to put a number on it, as obviously the complexity of the applicant’s life will dictate costs, but a full background investigation can run $15-20,000.

     

    The Box

    For many agencies, including the CIA and NSA, another step in the clearance process is the polygraph, the lie detector. The federal government polygraphs about 70,000 people a year in connection with security clearances.

    What portion of the polygraph process that isn’t shrouded in movie drama is classified, but the basics are simple; even TV’s Mythbusters show looked into it. The process is based on the belief that when one fibs one’s body involuntarily expresses stress in the form of higher blood pressure, changes in pulse, breathing and perspiration rate. Those things can be precisely monitored. Did you ever steal anything? No? That’s a lie– see here, your heart rate went up 15 percent when you answered.

    The reality is much more complex. Though I have never been polygraphed, I have spoken with many government employees who have been. Here’s what they had to say.

    The whole polygraph experience is set up as a mind game. Subjects can be kept waiting a long time, or left in a too-cold or too-hot room, and interviews can be scheduled and then canceled to create stress. A planted staffer in the waiting room can tell the applicant they are being watched, even make a comment such as “You shouldn’t read that kind of magazine while waiting, they judge that too.” There may be mirrors, real or imagined two-way viewing panels. This is referred to as the pre-test. It sets the stage.

    Some say that the presence of the polygraph machine itself may be mostly for show, and the real nuts and bolts of the process are actually just clever manipulation and interrogation techniques as old as dirt. An awful lot of information obtained via a polygraph has nothing to do with the needles and dials per se, but the applicant’s fear of them and belief that they “work.” Polygraphers are allowed considerable freedom in style, and some get more into role-playing than others.

    That said, most polygraphers will first establish baseline readings with irrelevant questions– “Is your name John?” Yes. “Is your name Micheal?” No. He will try and put the subject at ease, asking softball questions such as “Do you plan to tell the truth today?” Nobody can answer no honestly (it is believed) and this helps create a trusting atmosphere where the polygrapher assures the subject that everyone has told little lies and his job is to sort those out from the “big” ones. The polygrapher will also likely point out things on the charts or “explain” the details of his work; the goal is to plant the idea in the subject’s head that the machine is an accurate way to detect lies. This sets up the next phase.

    The polygrapher will have reviewed the background investigation results and slowly move into the meat of the interview, asking both broad questions– “Do you have a drinking problem?” and specific ones– “Then why did you have this DUI in March 2003?” Many times the got ya’ question, including a why or when or who, is really a way to play off the applicant’s fear and get her to talk. Look at the sequence above. It is unlikely that someone will admit to a drinking problem, yet the next query is about an actual DUI. The applicant’s natural inclination will be to explain, to talk about the DUI, all the time knowing her answer is being run through a “lie detector.” Often the applicant will self-incriminate.

    Lastly, there is the post-interview test, often the time when the most information is disclosed. The subject feels at ease, having “finished” the polygraph. One tactic is, after a lengthy review of the charts and after much hemming and hawing, maybe a sigh or two and a consultation with “another expert” outside the interviewing room, the polygrapher comes in and says “I think you’re a nice kid, and I like you. I know you want this job and I want to help you get it. The problem is, here (gestures to some squiggly line marked in red), where you said you never used drugs, the machine indicates you might not have told the truth. Now, look, I’ll turn off the machine and you just tell me what really happened and I’ll try to go to bat for you.” Self-incrimination follows, game over, thanks for playing today!

    In some instances, only a limited polygraph will be conducted, as opposed to a full-lifestyle test. In a “coordination of expectations” test, used in many military and update-only situations, very specific and limited questions will be asked. Sometimes the subject will even know the questions in advance, such as “Since your last polygraph, have you transferred classified information without authorization?”

    There exists a point of view that the polygraph is indeed more useful than simply as a prop, and that you can “fool the box” physically and pass the test. There are people who purport to teach tricks and techniques designed to do so. The basic idea is to register false anxiety during true relevant questions, thus making your real anxiety on lies less clear. People are taught to clench their sphincter to induce a measurable but false stress reaction, to bite their tongue or to place a tack inside their shoe to poke themselves and send pain-induced stress indicators. Others teach a kind of meditation. As counter-countermeasures, there are rumors of polygraphers placing real or fake “stress” pads on the seats of chairs, and inspecting applicants’ shoes. For the most part, however, the Feds just poo-pooed these ideas, claiming over the years that they were a waste of money because they just did not work.

    Interestingly, however, the government has very recently changed its position, and is now actively seeking to prosecute those who teach “how to beat the box.” Prosecutors have raised the specters of terrorists infiltrating the CIA, or pedophiles securing sensitive positions. The possibility that the prosecutions are only security theater is also real, an expansion of the mind game, given that despite the prosecutions strategies for passing a polygraph are still just a Google away, including on the ever-so-pedestrian WikiHow.

     

    Adjudication

    Up to this point the clearance process has been mostly the aggregation of information. Along the way some applicants might be picked off, people whose U.S. Citizenship wasn’t verifiable, people who made whopping self-incriminations, applicants scared off or afraid what the process might reveal. But overall, most applicants for a clearance end up in Adjudication. And in Adjudication lies the core problem in the clearance process: it relies on human judgment.

    The basics of an adjudication look at vulnerabilities, and especially at past examples of trust kept or violated.

    Vulnerabilities are more concrete, and thus easier, to determine. Historically, people betray their country’s trust for (in rough order) money, sex, ego or ideology. People with loads of debt or a gambling problem are more susceptible to bribes. People with records of infidelity or a pattern of poor judgment with partners might be lured into sexual encounters that could be used to blackmail them. In the bad old days when most gay and lesbian applicants were deeply closeted, this was used as a one-size-fits-all pseudo-reason to deny them employment. Ego is a tougher one to pin down, but persons who lack self-esteem or who want to play at being a “real spy” might be tempted to become “heroes” for the other side. Ideology is a growing issue as more and more hyphenated Americans seek government work and, needing qualified language employees, more and more are recruited by the government. Will a Chinese-American’s loyalty fall to her new home or to the old country? What about a born-and-bred whitebread American, but with a spouse from Egypt? Would his allegiances be blurred? Even if he bleeds red, white and blue, could the Egyptians cajole, blackmail or threaten his spouse’s parents back home to make him cooperate?

    Back in the good old days, when qualification for high level positions required one to be male, pale and Yale, these things were less of concern. Fathers recruited sons, professors noted promising students and no one thought much about the messy range of people now eligible– or sought– for government work. Need fluent Pashtu speakers? You’re going to have to recruit farther afield than the country club. Agencies who used to toss back into the pond pretty much anyone without a pristine background now face unfilled critical positions. So, standards change, always have changed and will continue to change. Security clearances just work that way.

    If vulnerabilities seem sometimes ambiguous to adjudicate, the next category, trust, is actually much harder. Persons who have kept trusts extended to them, not been fired, not broken laws, paid their bills, saw to their responsibilities, are in the Nice category. Those who didn’t end up over in Naughty. The adjudication part becomes important because very few people are perfect, and very few are really bad. Most everyone falls in the middle, and so agencies must make judgment calls.

    For example, in modern America some casual drug and alcohol abuse is not outside the boundaries of normal, especially when it is self-admitted, and done when a person was young and maybe in an experimental phase of life such as college. So, while twenty years ago copping to smoking some weed was an automatic no for a clearance, now, hypothetically, a 26 year old grad student who says she might have smoked a joint four years ago at a party but didn’t like it so did not do it again, and who passes her current urine test, might be approved. Same for debt; it is not unusual for an American today to carry heavy credit card debt or a six figure student loan, but if he’s paying it off, maybe not so bad. Mental health issues are tricky; again, nowadays seeing a mental health professional and taking common meds like anti-depressants is a very commonplace thing with little stigma attached. The key issue under question is whether or not an applicant’s judgment is impaired by a mental health condition, and often real medical professionals get involved to sort this out.

    There are rules and standards for these adjudications, some of which are even on line. The problem is not having or knowing the rules, the problem is figuring out how to apply them. In one of my own assignments at the State Department, I was part of a group that reviewed background investigative reports. I saw a lot of them, mostly new applicants, and was part of a process that was used to help determine “suitability” for employment. The easiest way to win a fight is not to get into a fight, and so instead of formally denying a security clearance and opening a potential can of worms, some agencies conduct a suitability review to basically weed out people unlikely to get a clearance, on a more amorphous, less-challengeable, vaguer not-so-legalistic basis. Different hallway to the same exit door, it is the clearance process at work nonetheless.

    The adjudication process as I saw it was taken seriously. We were taught to look for patterns of life and not at isolated incidents. The goal was to try and come up with a picture of the person, and then project that picture forward into what they might be like on the job. Like any human-powered process that attempts to predict the future, it was flawed. After pushing the Eagle Scouts to one side and the convicted arsonists to the other, there was always a big pile left in the middle. And we knew that at least statistically we probably made some errors approving the Eagle Scouts and some mistakes turning down at least a couple of the arsonists. The race is not always to the swift and sure, but that’s the way you have to bet.

     

    So How Did Snowden, Manning and Alexis Get Cleared?

    Snowden is the easy case. Based on what is publicly available, Snowden was a slam dunk approval. He had held high level clearances with the government for many years without issue. He did not have any drinking, drug, debt, mental health or personal problems. He seemed like a relatively dull guy actually. Nothing in the security clearance process could have ever peeked into his head and found that he was a person of conscience who decided to blow the whistle and radically alter his life to bring the NSA’s sleazy, illegal activities into daylight. While the NSA certainly should be blamed for unbelievably lax internal controls on who could access and copy its data, the clearance process worked exactly as it was designed to work. Claims that short cuts in the process were at fault are wrong.

    Chelsea Manning is at best a gray area, and likely should never have been given a clearance. She made little attempt to hide her gender confusion inside a hyper-macho world, struggled against the Army system at every turn, fought physically with her supervisors and was alienated and ostracized by her peers. Despite all that, she was deployed into an environment where counseling was unavailable, where security and supervision were lax to the point of criminality and where the stresses of combat conditions pressed heavy on everyone. It is unclear why she was cleared, though the most likely reason was that the Army was desperately short of analysts and could not afford to lose one, even one stuck in a slow-motion train wreck.

    Alexis, the Navy Yard killer, should never have been granted any security clearance. His was a preventable tragedy. Because he held only a lower level clearance, it is very likely that no field investigation took place. All those friends and family members the media found who readily told of his problems with hearing voices, violence and drink were likely never interviewed by the government contractor assigned his case. One screaming red flag, Alexis’ lying about a gun-related arrest, was not considered significant. The system failed for various reasons to pick up on his string of other arrests, and no one seemed to care about his uneven service record in the Navy. Clear human error, likely as a result of turning such clearances over to the for-profit sector.

     

    What’s Next?

    Picking up on Alexis in particular, it is important to note that the clearance process is not a real-time endeavor. Someone applies, some sort of background check is done and a clearance decision is adjudicated. Next case, please. Most clearances are only reviewed every five years and then investigators lean heavily on anything new or changed, and especially on the subject’s performance those five years. There is no 24/7 continuous reevaluation process. A felony arrest properly documented might pop up, and many agencies yearly run standard credit checks and conduct random drug tests. But overall, absent something self-reported or too obvious to ignore, a clearance rides for five years, sometimes literally with no questions asked. How could it be otherwise with over four million active cleared Americans strung across the globe?

    Following Snowden, Manning and now Alexis, much noise will be generated about “doing something.” But what? Dramatically increasing the number and scope of on-the-street investigations will spiral wildly into crazy expenses and even longer waiting periods. It could bring the hiring process to its knees, and spawn more and more “temporary clearances,” a self-defeating act. This all with no assurance of better results due to both limitations on the whole concept (see Snowden) or human judgment errors (Alexis). If done properly, such changes might catch a few of the Alexis’ out there, but to be honest, there are few Alexis’ out there to begin with and most of them will be sending up obvious danger signals at work long if anyone would pay attention before a clearance review catches up.

    It is certain that many in the government will call for more aggressive “monitoring” of employees, having them sign away basically all of their civil rights in return for a job. The government will turn its vast intelligence gathering tools further inward and end up pointlessly compiling CIA officers’ credit card receipts from Applebee’s, the web browsing habits of diplomats’ children and so forth. In truth, a lot of that is probably already going on now anyway (the CIA and other intel agencies have had for years robust counterintelligence operations designed specifically to spy on their own spies.) Yet as noted, even ramped up, real-time monitoring would not have caught the current Snowden and is unlikely to catch the next Snowden (albeit to the nation’s broader benefit!) You just can’t see into a person’s head, or his heart.

    In addition to a huge waste of money and resources, these measures will inevitably lead to more mistrust and paranoia inside government. Lack of sharing (the CIA believes things it shares with State get leaked, the Army won’t give things away to the Navy, the FBI hoards info so as to not let another agency get credit for the bust, the NSA doesn’t trust anyone, and so forth) is already an issue among agencies, and even inside of agencies, and helped pave the way for 9/11. In addition, handing even more power to security teams will also not work well in the long run. Hyper-scrutiny will no doubt discourage more decent people from seeking government work, unwilling to throw their lives open for a job if they have prospects elsewhere. The Red Scare of the 1950s, and the less-known Lavender Scares, when labeling someone gay inside government would see him fired, show what happens when security holds too many cards. James Jesus Angleton’s paranoid mole hunting at CIA, which ruined many careers, is still a sore point at Langley. In my own case, my unblemished clearance of 22 years was suspended because of a link on my blog. The link was pedestrian but the blog offended the State Department politically, and security was the tool they tried to use to silence me. No, unleashing the bullies won’t help.

     

    Fixing It: Less is More

    As a wise man once said, cut through all the lies and there it is, right in front of you. The only answer to the clearance problem is to simply require fewer cleared people inside government.

    This will require the tsunami of document classification to be dammed. In FY2009 alone, 54 million U.S. Government documents were classified. Every one of those required cleared authors and editors, system administrators and database technicians, security personnel and electronic repair persons. Even the cafeteria personnel who fed them lunch needed some sort of vetting.

    With fewer people to clear, always-limited resources can be better focused. Better background checks can be done. Corners need not be cut, and unqualified people would not be issued clearances out of necessity. Processing time would be reduced. Human judgment, always the weak link, could be applied slower and more deliberately, with more checks and balances involved.

    More monitoring won’t help and will very likely hurt. In a challenge as inherently flawed as the clearance process, the only way forward is less, not more.

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    Manning Begat Snowden

    August 12, 2013 // 18 Comments »




    Yes We Can! (spy on Americans).

    I know it is hard for us as a nation to think back past last night’s episode of Breaking Bad, but try and remember when Obama, a former constitutional law lecturer, campaigned on a pledge to ensure that national security policy remained consistent with American laws and values. He also made the now-ironic pledges about protecting whistleblowers. Good times, yes?

    Strawmen Tell No Tales

    Obama now continues to defend his unfettered spying on, well, pretty much the whole world. In his most recent press conference, Obama pulled out the old Bush-era strawman argument: whatever the government does is essential to protecting the United States. It is either chaotic liberty or apocalyptic daily terror attacks, pick one or the other, baby. The money shot statement from the press conference: “(Terrorists) have the capacity, potentially, to go after our businesses.” You can take our liberty, but don’t mess with our money. Americans, as we go to war, be sure to keep shopping!

    Manning Begat Snowden

    In addition, Obama found time in his press conference to mock Edward Snowden personally, saying he was not a patriot (Snowden, not Obama) and saying he (Snowden, not Obama) should come to the Das Homeland for a fair trial before being sent away for life.

    Obama, as he has not realized after killing al Qaeda’s No. 1 and No. 2’s repeatedly for years without effect, has not realized that despite his aggressively hunting down and smiting whistleblowers whenever the Empire can catch one, new whistleblowers keep emerging. Manning begat Snowden and so forth. Among a handful of The People at least, a fire still burns.

    Your Guide to Smiting Whistleblowers

    So, as a public service knowing more whistleblowers are sure to emerge, here is a handy guide on how to respond. The pattern following a whistleblower’s disclosure must come from some joint media-government handbook, because it is always the same:


    — Initially deny everything and hope the story fades away. Claim the info is from an unreliable web site, or a foreign news source, is just bad guy propaganda.

    — When that doesn’t work, denigrate the whistleblower on personal grounds (gay, lazy, narcissistic, unpatriotic) and work hard to focus people on the messenger, not the message.

    — When that doesn’t work, say, you know, come to think of it, the disclosures are not that big a deal. The whistleblower really did not say anything important, so best to just ignore him.

    — When that doesn’t work, claim the whistleblower is a criminal, violated his oath, his military commission, his Netflix terms of service, that little checkbox when you install software, whatever sticks.

    — When that doesn’t work, say the whistleblower should have gone through channels (as if in reality they exist). Do not explain what/where these channels are, for say, an Army private in the middle of the Iraqi desert.

    — When that doesn’t work, claim the whistleblower must “face justice” and “take responsibility,” though only in the form of jail time and on the government’s terms. Maybe three years of pretrial detainment to soften things up? Perhaps a little sleep deprivation? Hmm, you have relatives still in Germany, yes?

    — When that doesn’t work, switch gears and claim whatever was disclosed is a grave threat to the U.S. Cite the danger to American lives, and especially to “the troops.” Say blood is on the whistleblower’s hands. No evidence needed.

    — Repeat as needed.


    BONUS: Here’s an article that pretty much covers most of the points above, The Five Nastiest Things the White House Has Said About Snowden.



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    Edward Snowden’s Long Flight: What a Whistleblower Thinks a Fellow Whistleblower Might Have Thought

    July 19, 2013 // 15 Comments »

    What a Whistleblower Thinks a Fellow Whistleblower Might Have Thought

    This article originally appeared on Huffington Post.

    As a State Department whistleblower, I think a lot about Edward Snowden. I can’t help myself. My friendships with other whistleblowers like Tom Drake, Jesslyn Radack, Daniel Ellsberg, and John Kiriakou lead me to believe that, however different we may be as individuals, our acts have given us much in common. I suspect that includes Snowden, though I’ve never had the slightest contact with him. Still, as he took his long flight from Hong Kong into the unknown, I couldn’t help feeling that he was thinking some of my thoughts, or I his. Here are five things that I imagine were on his mind (they would have been on mine) as that plane took off.

    I Am Afraid

    Whistleblowers act on conscience because they encounter something so horrifying, unconstitutional, wasteful, fraudulent, or mismanaged that they are overcome by the need to speak out. There is always a calculus of pain and gain (for others, if not oneself), but first thoughts are about what you’ve uncovered, the information you feel compelled to bring into the light, rather than your own circumstances.

    In my case, I was ignorant of what would happen once I blew the whistle. I didn’t expect the Department of State to attack me. Snowden was different in this. He had the example of Bradley Manning and others to learn from. He clearly never doubted that the full weight of the U.S. government would fall on him.

    He knew what to fear. He knew the Obama administration was determined to make any whistleblower pay, likely via yet another prosecution under the Espionage Act (with the potential for the death penalty). He also knew what his government had done since 9/11 without compunction: it had tortured and abused people to crush them; it had forced those it considered enemies into years of indefinite imprisonment, creating isolation cells for suspected terrorists and even a pre-trial whistleblower. It had murdered Americans without due process, and then, of course, there were the extraordinary renditions in which U.S. agents kidnapped perceived enemies and delivered them into the archipelago of post-9/11 horrors.

    Sooner or later, if you’re a whistleblower, you get scared. It’s only human. On that flight, I imagine that Edward Snowden, for all his youthful confidence and bravado, was afraid. Would the Russians turn him over to Washington as part of some secret deal, maybe the sort of spy-for-spy trade that would harken back to the Cold War era?

    Even if he made it out of Moscow, he couldn’t have doubted that the full resources of the NSA and other parts of the U.S. government would be turned on him. How many CIA case officers and Joint Special Operations Command types did the U.S. have undercover in Ecuador? After all, the dirty tricks had already started. The partner of Guardian journalist Glenn Greenwald, who broke Snowden’s story, had his laptop stolen from their residence in Brazil.  This happened only after Greenwald told him via Skype that he would send him an encrypted copy of Snowden’s documents. 

    In such moments, you try to push back the sense of paranoia that creeps into your mind when you realize that you are being monitored, followed, watched. It’s uncomfortable, scary. You have to wonder what your fate will be once the media grows bored with your story, or when whatever government has given you asylum changes its stance vis-a-vis the U.S. When the knock comes at the door, who will protect you? So who can doubt that fear made the journey with him?

    Could I Go Back to the U.S.?

    Amnesty International was on target when it stated that Snowden “could be at risk of ill-treatment if extradited to the U.S.” As if to prove them right, months, if not years, before any trial, Speaker of the House John Boehner called Snowden a “traitor”; Congressman Peter King called him a “defector”; and others were already demanding his execution. If that wasn’t enough, the abuse Bradley Manning suffered had already convinced Snowden that a fair trial and humane treatment were impossible dreams for a whistleblower of his sort. (He specifically cited Manning in his appeal for asylum to Ecuador.)

    So on that flight he knew — as he had long known — that the natural desire to go back to the U.S. and make a stand was beyond foolhardy. Yet the urge to return to the country he loves must have been traveling with him, too. Perhaps on that flight he found himself grimly amused that, after years of running roughshod over international standards — Abu Ghraib, Guantanamo, “enhanced interrogation techniques,” “black sites” — the U.S. had the nerve to chide Hong Kong, China, and Russia for not following the rule of law. He certainly knew that his own revelations about massive NSA cyber-spying on Hong Kong and China had deeply embarrassed the Obama administration. It had, after all, been blistering the Chinese for hacking into U.S. military and corporate computers. He himself had ensured that the Chinese wouldn’t turn him over, in the same way that history — decades of U.S. bullying in Latin America — ensured that he had a shot at a future in someplace like in Ecuador.

    If he knew his extradition history, Snowden might also have thought about another time when Washington squirmed as a man it wanted left a friendly country for asylum. In 2004, the U.S. had chess great Bobby Fischer detained in Japan on charges that he had attended a 1992 match in Yugoslavia in violation of a U.S. trade ban. Others suggested that the real reason Washington was after him may have been Fischer’s post 9/11 statement: “It’s time to finish off the U.S. once and for all. This just shows what comes around, goes around.”

    Fischer’s American passport was revoked just like Snowden’s. In the fashion of Hong Kong more recently, the Japanese released Fischer on an immigration technicality, and he flew to Iceland where he was granted citizenship. I was a diplomat in Japan at the time, and had a ringside seat for the negotiations. They must have paralleled what went on in Hong Kong: the appeals to treaty and international law; U.S. diplomats sounding like so many disappointed parents scolding a child; the pale hopes expressed for future good relations; the search for a sympathetic ear among local law enforcement agencies, immigration, and the foreign ministry — anybody, in fact — and finally, the desperate attempt to call in personal favors to buy more time for whatever Plan B might be. As with Snowden, in the end the U.S. stood by helplessly as its prey flew off.

    How Will I Live Now?

    At some point every whistleblower realizes his life will never be the same. For me, that meant losing my job of 24 years at the State Department. For Tom Drake, it meant financial ruin as the government tried to bankrupt him through endless litigation. For CIA agent John Kiriakou, it might have been the moment when, convicted of disclosing classified information to journalists, he said goodbye to his family and walked into Loretto Federal Correctional Institution.

    Snowden could not have avoided anxiety about the future. Wherever he ended up, how would he live? What work would he do? He’s just turned 30 and faces, at best, a lifetime in some foreign country he’s never seen where he might not know the language or much of anything else.

    So fear again, in a slightly different form. It never leaves you, not when you take on the world’s most powerful government. Would he ever see his family and friends again? Would they disown him, fearful of retaliation or affected by the smear campaign against him? Would his parents/best friend/girlfriend come to believe he was a traitor, a defector, a dangerous man? All whistleblowers find their personal relationships strained. Marriages are tested or broken, friends lost, children teased or bullied at school. I know from my own whistleblower’s journey that it’s an ugly penalty — encouraged by a government scorned — for acting on conscience.

    If he had a deeper sense of history, Snowden might have found humor in the way the Obama administration chose to revoke his passport just before he left Hong Kong. After all, in the Cold War years, it was the “evil empire,” the Soviet Union, which was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West.

    To deepen the irony of the moment, perhaps he was able to Google up the 2009-2011 figures on U.S. grants of asylum: 1,222 Russians, 9,493 Chinese, and 22 Ecuadorians, not including family members. Maybe he learned that, despite the tantrums U.S. officials threw regarding the international obligation of Russia to extradite him, the U.S. has recently refused Russian requests to extradite two of its citizens.

    Snowden might have mused over then-candidate Obama’s explicit pledge to protect whistleblowers. “Often the best source of information about waste, fraud, and abuse in government,” Obama then said, “is an existing government employee committed to public integrity and willing to speak out. Such acts of courage and patriotism… should be encouraged rather than stifled as they have been during the Bush administration.” It might have been Snowden’s only laugh of the flight.

    I Don’t Hate the U.S., I Love It Deeply, But Believe It Has Strayed

    On that flight, Snowden took his love of America with him. It’s what all of us whistleblowers share: a love of country, if not necessarily its government, its military, or its intelligence services. We care what happens to us the people. That may have been his anchor on his unsettling journey. It would have been mine.

    Remember, if we were working in the government in the first place, like every federal employee, soldier, and many government contractors, we had taken an oath that stated: “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same.” We didn’t pledge fealty to the government or a president or party, only — as the Constitution makes clear — to the ultimate source of legitimacy in our nation, “the people.”

    In an interview, Snowden indicated that he held off on making his disclosures for some time, in hopes that Barack Obama might look into the abyss and decide to become the bravest president in our history by reversing the country’s course. Only when Obama’s courage or intelligence failed was it time to become a whistleblower.

    Some pundits claim that Snowden deserves nothing, because he didn’t go through “proper channels.” They couldn’t be more wrong and Snowden knows it. As with many of us whistleblowers facing a government acting in opposition to the Constitution, Snowden went through the channels that matter most: he used a free press to speak directly to his real boss, the American people.

    In that sense, whatever the fear and anxiety about his life and his future, he must have felt easy with his actions. He had not betrayed his country, he had sought to inform it.

    As with Bradley Manning, Obama administration officials are now claiming that Snowden has blood on his hands. Typically, Secretary of State John Kerry claimed: “People may die as a consequence to what this man did. It is possible that the United States would be attacked because terrorists may now know how to protect themselves in some way or another that they didn’t know before.” Snowden had heard the same slurs circling around Bradley Manning: that he had put people in danger. After the wars in Iraq and Afghanistan, not to speak of the war on terror, there is irony too obvious to dwell upon in such charges.

    Flying into the unknown, Snowden had to feel secure in having risked everything to show Americans how their government and the NSA bend or break laws to collect information on us in direct conflict with the Fourth Amendment’s protections. Amnesty International pointed out that blood-on-hands wasn’t at issue. “It appears he is being charged primarily for revealing U.S. and other governments’ unlawful actions that violate human rights.” Those whispers of support are something to take into the dark with you.

    I Believe in Things Bigger Than Myself

    Some of the charges against Snowden would make anyone pause: that, for instance, he did what he did for the thrill of publicity, out of narcissism, or for his own selfish reasons. To any of the members of the post-9/11 club of whistleblowers, the idea that we acted primarily for our own benefit has a theater of the absurd quality to it. Having been there, the negative sentiments expressed do not read or ring true.

    Snowden himself laughed off the notion that he had acted for his own benefit. If he had wanted money, any number of foreign governments would have paid handsomely for the information he handed out to journalists for free and he would never have had to embark on that plane flight from Hong Kong. (No one ever called Aldrich Ames a whistleblower.) If he wanted fame, there were potential book contracts and film deals to be had.

    No, it was conscience. I wouldn’t be surprised if somewhere along the line Snowden had read the Declaration of the Nuremberg War Crimes Tribunal: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

    Edward Snowden undoubtedly took comfort knowing that a growing group of Americans are outraged enough to resist a government turning against its own people. His thoughts were mirrored by Julian Assange, who said, “In the Obama administration’s attempt to crush these young whistleblowers with espionage charges, the U.S. government is taking on a generation, a young generation of people who find the mass violation of the rights of privacy and open process unacceptable. In taking on the generation, the Obama administration can only lose.” Snowden surely hoped President Obama would ask himself why he has pursued more than double the number of Espionage Act cases of all his presidential predecessors combined, and why almost all of those prosecutions failed.

    On that flight, Edward Snowden must have reflected on what he had lost, including the high salary, the sweet life in Hawaii and Switzerland, the personal relationships, and the excitement of being on the inside, as well as the coolness of knowing tomorrow’s news today.  He has already lost much that matters in an individual life, but not everything that matters. Sometimes — and any whistleblower comes to know this in a deep way — you have to believe that something other, more, deeper, better than yourself matters.  You have to believe that one courageous act of conscience might make a difference in an America gone astray or simply that, matter or not, you did the right thing for your country.




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    Living in Fear: A Fable for Trayvon

    July 16, 2013 // 7 Comments »

    The Commerce Department in 2012 claimed it suffered a foreign cyberattack that put its entire computer network at risk. It had to do with Trayvon.

    Commerce destroyed hardware worth $175,000, stopping only when they ran out of funding. Meanwhile, an outside cybersecurity contractor was hired at $823,000 to implement a $688,000 unneeded “solution.” After that, Commerce bought $1.1 million worth of new computers. The expenses ate up half the department’s technology budget.

    A year later, the Commerce Department’s inspector general determined the devastating attack was nothing of the sort, actually just a small malware infection on six computers that could have been erased with off-the shelf anti-virus tools.

    What Happened?

    Have a look at some of the explanations:

    — “In an environment of heightened vulnerability to cyberattacks, once you’re infected you often overact.”

    — “You feel violated.”

    — “All you feel is somebody’s in my house and I’ve got to get them out. And you get overly conservative.”

    — “[Commerce] did not know what it was facing. Under those circumstances, given the cyber risks, one has to be cautious.”

    — “It’s a question of which side do you want to err on?”

    — “Fear of foreign cyberattacks was so high that the department called in help from the Homeland Security and Energy departments, the National Security Agency and a private cybersecurity contractor.”

    — “Fear led the Office of the Chief Information Officer not to question the accuracy of the extent of the malware infection, despite a lack of supporting evidence.”


    Lessons Learned?

    At first brush this story is just another government screw up. Instead of assessing the situation, incompetent bureaucrats faced with a problem spent taxpayer money, lots of money. Expensive beltway bandit contractors sucked up panic spending cash to implement unneeded solutions. The whole thing was then hidden away until another beleaguered Inspector General stumbled upon it. The story gets reported with an eye-roll, fodder for the Daily Show.

    But look a bit deeper for the real lesson. Anyone controlled by fear will act this same way, desperate for solutions to the scary things they think are hiding under the bed. Actions capture more emotion than fact. That’s always the problem, isn’t it, trying to stay inside the lines when you’re boiling inside your heart.

    Even in 2001, considerably more Americans died of drowning than from terror attacks. Since then, the odds of an American being killed in a terrorist attack in the U.S. or abroad have been about one in 20 million, even less if you don’t work for the U.S. government or military. This real-world low risk isn’t evidence that homeland security spending has worked: It’s evidence that the terror threat was never as great as we thought.

    Indeed, from 2005 to 2010, federal attorneys declined to bring any charges against 67 percent of alleged terrorism-related cases referred to them from law enforcement agencies; the cases just weren’t terrorism.

    What you get is a society controlled by its fears. A lot like a guy I knew, Depression Kid, he kept old aluminum foil and shopping bags folded up in the basement, never threw out anything, used to lick the dinner plates clean in the kitchen when he thought nobody was looking. No matter what he achieved, Eagle Scout, college degree, captain’s rank, he could never rest. Nothing was ever, could ever, be enough.

    This leads in a direct line to gunning down an unarmed teenager because you fear the way he is dressed or the color of his skin. It leads to an internal spying system that can’t stop itself from trying to vacuum up everything for fear of missing something. It leads to a foreign policy that abandons hundreds of years of standards, norms and morality over a single “fugitive” person. It leads to an endless war on someone (Reds, Terrorists). You ban nail clippers on airplanes and force millions of travelers to trod through airports without shoes.

    Once you give in to the fear there is no end to things to be afraid of. When most of those fears turn out to be just made-up shadows– even non-viruses inside a computer network– unreal and unsubstantiated, nothing you can do can make them really go away. They don’t live externally and are not vulnerable to your countermeasures. Safety and security are fleeting, grabbed only in moments before the next threat grows inside you. Armed, you look for targets.

    Like an old Twilight Zone episode, the boogie men are inside you. Once you’re infected you often overreact.



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    Edward Snowden’s Statement

    July 12, 2013 // 7 Comments »

    Edward Snowden, in front of officials from Human Rights Watch and Amnesty International at Moscow’s Sheremetyevo Airport, made clear both his own bona fides as a whistleblower, and the hypocrisy of the United States in its manhunt for him.

    Whistleblower? Snowden’s remarks reinforce the basic tenet of whistleblowing, that it is an act of conscience. He made clear what he gave up– home, family, perhaps even his liberty and life– and what we gained, learning what a government which claims to be “of the people” is doing to the people. Snowden still loves America, if not its government and its intelligence services. He reinforced the idea that one courageous act of conscience might make a difference in a nation gone astray.

    Snowden also touched on the most fundamental of points: that the America he is defending is not limited to physical safety, but extends deeper, to the freedoms from unwarranted search and seizure that define America. We are better people than we are now.

    Hypocrisy? Of the countries that offered to help Edward Snowden, the U.S. itself has accepted 3,103 of their own asylees, 1,222 from Russia and 1,762 from Venezuela. The U.S. took those people in without a hint of regard for anyone’s opposition. This is in fact how the asylum system, codified by various UN treaties the U.S. has signed, should work.

    The concept of asylum reaches back to the original democracy, Greece, and it is shameful that the United States today, in only this one case, refuses to recognize it as a fundamental right of a free people. Our Founders, who pledged their own lives, fortunes and sacred honor to such ideals, would weep.

    Irony? During the Cold War, the Soviet Union was notorious for refusing to grant dissidents passports, while the U.S. regularly waived such requirements when they escaped to the West. Indeed, it was only about a year ago that the U.S. gave Chinese dissident Chen Guang Cheng refuge in our own embassy in Beijing before allowing him to enter the United States. Chen had escaped from Chinese government house arrest and was a fugitive to reach the U.S. embassy.


    Bonus: Please also see my article, Edward Snowden’s Long Flight, as there seem to be some overlaps between what I wrote and today’s statement.



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    Trolling with Trolls, Whistleblower Edition

    July 11, 2013 // 11 Comments »

    I promise myself I won’t do it again, then some idiot on the Internet says something so stupid that I end up commenting. Here’s one recent example. I hate myself already, don’t judge me.

    The Troll: The problem has been around for a long time. Did you hear about the time Lincoln suspended habeas corpus? In this day and age, however, the threats are magnified and the opportunity to conduct surveillance is magnified. When one of you comes up with a way to protect my liberty and my security fully and equally, please share.

    A whistleblower who reveals something that is clearly illegal according to our own laws, such as torture, is one thing. A whistleblower who reveals the inner workings of a program that is highly disturbing in its scope but is nevertheless the law of our land is another. And if by revealing this information, he cripples our capacity to protect ourselves and exposes our intelligence resources (as in people) to danger, then I am not so sanguine about him and the whistle he rode in on. Heh.


    Me: (Deep sigh) Is the internet broken at your house? Let me help.

    Lincoln’s suspension of habeas corpus was strictly provided for in the Constitution by the Founders, in cases of rebellion or invasion (Article One, Section 9, Clause 2). What he did was fully Constitutional, if controversial, and was during a clear state of declared war in response to a specific problem. He reinstated habeas as soon as possible. The draconian measures you believe are protecting you (By the way, exactly how does the NSA spying on our EU partners protect you from terrorists?) have been in place for twelve years, following a single attack on the U.S., the perpetrators of which are all in jail or dead. None of these measures have been allowed to be tested in open court.

    I dream of a president someday who is brave enough to stand with Lincoln, fighting the fight when required and then returning our great country to peace as soon as practical. Terrorism? It is nothing– for God’s sake 3000 people died on 9/11, while 51,000 died at Gettysburg alone. Get off Facebook and look it up.



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