Secrecy: FOIA

VICE's Vice: Snowden Scoop Promises Fire, Doesn't Even Muster Smoke

By Susan Hennessey
Wednesday, June 8, 2016, 2:24 PM

Over the weekend, VICE published a story entitled “Exclusive: Snowden Tried to Tell NSA About Surveillance Concerns, Documents Reveal.” If you haven’t read it, don’t bother. By its incendiary headline, the story—the product of documents released as part of a FOIA lawsuit—would purport to be an outright validation of Edward Snowden’s claims that he repeatedly tried to raise surveillance concerns with NSA officials but was ignored. But as journalist Mike Sacks put it, the story is “thousands of words promising fire and there’s not even any smoke.”

When Sacks says thousands of words, he’s actually understating—it’s over eleven thousand words long. But as Carrie Cordero noted over the weekend, it falls short of justifying its headline. Even as reported by the article, the documents do not, in fact, reveal that Snowden did anything more than send a single email asking for clarification on a training slide, and had two additional contacts with compliance officials unrelated to raising legal or privacy concerns about NSA programs.
But not only does the story not support its headline, the documents that underlie it, in large measure, do not support the story. A review of the actual documents—800 pages, of which a significant portion are blank—reveals a rather different portrait of both the veracity of Snowden’s claims and the actions of NSA officials than authors Jason Leopold, Marcy Wheeler, and Ky Henderson would have you believe.

My point here is not that any specific fact in their piece is false, although I could pick some nits. It’s that the entire narrative arc of the story is wrong. The authors are so committed to vindicating Snowden and indicting NSA that they tell a story that didn’t happen. Perhaps more egregiously, they miss the fascinating story the documents actually do describe.

Having reviewed all of the documents, here I will discuss some of the story as I understand it. I draw rather different impressions and conclusions than VICE. Full disclosure: I served in the Office of General Counsel for the NSA during the period in question, but I worked on matters unrelated to Snowden. Any factual representations made here are drawn directly from the declassified portions of these documents. My views do not represent those of NSA/CSS.

VICE weaves such a complex tale of intrigue, it is actually rather difficult to track the narrative. But the events are more or less straightforward. Here’s the short version: On two occasions, in April 2014 and May 2014, Snowden made specific claims to the media that he had attempted to raise concerns regarding NSA surveillance within the Agency and was ignored. The veracity of Snowden’s claims are important because presumably they are intended to justify stealing and leaking classified documents before fleeing to Hong Kong and then Russia. On both occasions, NSA officials discussed, both internally and with other elements of the government, how to respond to these allegations. Those discussions primarily revolve around whether the Agency should release an email in order to refute Snowden’s claims and the degree of confidence that no other relevant communications existed. Following the second media event—and the release of the email in question—NSA senior officials learned of two additional contacts a compliance officer had with Snowden. Upon review, those contacts turned out to be wholly irrelevant to Snowden’s claims.

Factually, that’s the whole story. Still the documents offer a fascinating glimpse into the inner workings of the NSA. They tell an interesting and important story, elements of which I hope to explore in later posts. But they do not tell quite the story the Vice article claims.

 

The OGC Email—April 2013

The crux of the issue involves a single email Snowden sent through an OGC web form in April 2013, six weeks before stealing documents and leaving the country but four months after he first contacted reporter Glenn Greenwald and others about leaking documents. The email was unearthed shortly following the revelation of Snowden’s identity, but not publically disclosed.

The NSA has since released a copy of that email. In it Snowden asks a question regarding a chart presented during training on USSID 18 setting forth the orders of legal authorities. Federal statutes and executive orders are listed on the same line, despite the fact that statute take legal precedence. The slide is intended to reflect that executive orders are treated as binding law with the force of statute within the executive branch. Snowden used a generic General Counsel contact form to raise the question of whether the slide was inaccurate and requested clarification. An NSA attorney responded, clarifying that executive orders have “the force and effect of law” but “cannot override a statute.” She invited Snowden to call her to discuss further, but he never followed up.

NSA has maintained, both internally and publically following release, that this email does not constitute an attempt to raise legal and privacy concerns with NSA programs. As ODNI General Counsel Bob Litt told VICE: "To the extent Snowden was saying he raised his concerns internally within NSA, no rational person could read this as being anything other than a question about an unclear single page of training."

VICE claims that the FOIA documents demonstrate something more nefarious. The article insinuates that NSA actually believed or has reason to believe this email somehow raised the kinds of concerns Snowden claimed it did. Readers can judge the substantive merits of whether that email qualifies as trying to blow the whistle. But nothing in the documents show that NSA ever wavered, even in internal communications, from the belief this email only served to discredit Snowden’s claims.

According to VICE the documents reveal that “the truth about the ‘single email’ [was] more complex and nuanced than NSA disclosed to the public.” Allegedly, while “NSA portrayed [the email] as an innocuous question that elicited a direct response,” in reality “the declassified documents tell a somewhat different story, with multiple people from different departments becoming involved in formulating an answer.” As evidence of their claim, VICE cites to emails indicating that Snowden’s question first came to OGC, then was forwarded to the Compliance office, and then back to OGC. But the actual documents reveal that the back-and-forth is a simple bureaucratic exchange over turf, not a secretly complex legal question. Unsurprisingly, the roles of compliance officers—who ensure laws and rules are followed—and attorneys—who interpret legal regulations—occasionally overlap. Both organizations agree it is a straightforward question, but are unsure who should answer. As the compliance officer notes “Although I felt comfortable answering his question, I thought it was more appropriate for OGC to respond since the authority documents include legalities”.

Contrary to VICE’s assertion, the fact an attorney copied five additional people on the response does not indicate the question’s complexity. It’s the punchline to a joke about how many lawyers and compliance officers it takes to change a lightbulb (or answer a basic question), not damning evidence of a secret conspiracy. Likewise, the fact that the attorney later said she found the question “unusual” or characterized it as “out of the ordinary”—and considered calling Snowden to respond—does not support VICE’s claims. It is unusual that someone would be aware of orders of authorities, but not their binding force on the executive branch. And most analysts view training as a necessary evil; it’s rare someone would seek to prolong the experience by engaging OGC on the basic materials.

VICE additionally alleges the documents indicate that OGC and Compliance has been “collaborating on the subject of Snowden’s question” and reveal that NSA’s position that this was a simple question with a straightforward answer was only “superficially true.” What the documents actually show is that lawyers author the parts of training materials which make representations about the law. It’s not shocking.

Nothing in the entire release indicates that any individual who viewed the email deemed it to raise the kind of legal or privacy concerns Snowden claimed he had. In fact, the email was so insignificant that there was some trepidation over whether it could possibly be the right document: could Snowden possibly claim this constituted raising concerns about the scope of NSA surveillance?

Consequently, NSA officials made statements that they had been unable to locate any record of communications of Snowden raising concerns about privacy or the scope of NSA programs with any Agency authorities. The FOIA release does not contradict any aspect of the government’s account of the email.

 

Claim in Vanity Fair—April 2014

In April of 2014, Snowden made the following claim in a Vanity Fair interview:

The N.S.A. at this point not only knows I raised complaints, but that there is evidence that I made my concerns known to the N.S.A.’s lawyers, because I did some of it through e-mail. I directly challenge the N.S.A. to deny that I contacted N.S.A. oversight and compliance bodies directly via e-mail and that I specifically expressed concerns about their suspect interpretation of the law

The FOIA documents reveal NSA’s internal discussions regarding responding to the specific charge. One option was to simply restate relatively mild prior statements that NSA had “not found any evidence to support” Snowden’s contention. The alternative was to more aggressively counter Snowden’s claims as factually false—either by referencing the specific email or making a broader general claim that he never raised the issues. DOJ objected to releasing the actual email out of apparent concern that the release might compromise the criminal prosecution it was preparing.

Admiral Rogers wanted to take the issue head on. “If his claims are factually incorrect and we do not have security concerns with the subject matter we should be very forthright in stating the claims are wrong and factually incorrect.” NSA leadership believed that in order to take this position they needed to be exceedingly confident, if not positive, that no other correspondence existed. The documents demonstrate remarkable commitment to discovering the truth, to making fair and accurate representations within the government and to the public, and to due diligence in investigating the factual basis of all claims. An unnamed NSA official wrote that “one of the key issues in any response will be the degree of certainty we express on the specific issue of outreach by Snowden to express concerns.” No one wanted to stake the NSA’s reputation on something that might turn out to be wrong, further harming already precarious public trust.

There is evidence of this diligence and care throughout. The Media Leaks Task Force “triple check[ed]” that Snowden never called the attorney who answer his query because a staffer wanted “to be as sure as possible we’ve asked the right people and checked the right places for any potential surprises.” The lawyers were nervous too. Despite having been searched in the initial investigation, they ordered a formal search of all “official email, web-based contacts, and correspondence for any evidence that he contacted [those offices] for any reason” in OGC, Compliance and the IG’s office.

VICE spins this care into evidence that prior and future statements by NSA officials that no documents had been found and that Snowden had made no formal complaints were false or unreliable. But that simply misrepresents the evidence.

Certainly, the NSA should be embarrassed to not have full control and insight over Agency systems. It is hardly alone in that among federal agencies. The reality is that because of fragmented networks and workforces, security controls, and gaps in legacy knowledge, no one could verify that a “complete data set” had been searched.

But when VICE writes that “no one could confidently say there weren’t other emails that had been overlooked,” it is an example of technically true facts deployed in service of a false narrative. Reading the documents, these exchanges actually demonstrate that NSA sought a degree of certainty that well-exceeded any ordinary metric of confidence.

The anxieties expressed reflected not only the high-stakes but also the sensibilities of a signals intelligence agency. Largely a world of mathematicians, NSA officers are accustomed to speaking in terms of degrees of confidence and probabilities—opinions are separated from facts and incomplete data sets are noted. Consumers of signals intelligence products—primarily the US military—only ask “Are you positive?” when they require certainty in the strictest sense of the term. And now, everyone was being asked to be positive that no email, message, or communication has been missed.

The honest answer—the NSA answer—was that we really, really don’t think so but we cannot give you more than high confidence.

Following the deliberations, the Agency informed Vanity Fair of the factual inaccuracy and notified the congressional intelligence committees of the article, attaching a copy of the email seeking “generic clarification.” The congressional notification is one of numerous examples of NSA’s commitment to keeping its overseers fully informed—not only did they note the existence of the non-responsive email but provided Congress a copy so they could make an independent determination.

Throughout, agency officials make clear the importance of being careful to note that they only deny the existence of correspondence containing complaints and not of any correspondence at all.

 

 The NBC Interview—May 2014

Six weeks following the Vanity Fair article, Snowden made a similar claim in a television interview with NBC.

Agency officials reignited discussions over how to respond, and the White House took more direct involvement. The debate is fundamentally the same as before—should the email be released in order to refute the claim and what degree of confidence can the NSA claim in saying there are no other communications? The documents do reveal interesting tensions within NSA and the interagency over the wisdom of releasing the email, and which organizations are tasked with making which decisions.

On the question of certainty, NSA General Counsel Raj De requested “very senior confirmation [] that all possible steps have been taken to ensure there are no other emails from S to OGC.” As before, the FOIA documents evince the emphasis on getting it right, on double- and triple-checking and then checking again. The employee’s response:

Raj, if you are looking for 100% assurances there isn’t possibly any correspondence that may have been overlooked I can’t give you that. If you asked me if I think we’ve done responsible, reasonable and thoughtful searches I would say ‘yes’ and put my name behind sharing the e-mail as ‘the only thing we’ve found that has any relationship to his allegation.

According to VICE, this shows that “[t]he confidence that the NSA would soon display publicly that it discovered only one email was not reflective of what was taking place behind the scenes.” But the language of the response is, in essence, an intelligence assessment—exceedingly low probability anything relevant has been overlooked, but not impossible.

With regard the releasing the email, as before, Admiral Rogers wanted to be “proactive and transparent.” Likewise, the SSCI indicated it wanted NSA to issue a forceful response to Snowden’s allegations. Though DOJ agreed to the release, the White House demonstrated more trepidation. Prior to deciding about the email, the government began to craft a Q&A to prepare senior leadership to engage the media on the specific allegations. The document, as with all documents which leave the NSA, was subject to a series of edits by which various stakeholders ensured statements were fully accurate and clear.

The VICE article points to these revisions as examples of the Agency’s ambivalence or uncertainty, as opposed to an ordinary process of achieving maximum clarity. Among the revisions to the Q&A which VICE claims are noteworthy, is an attorney’s suggestion that the word “ethics” be replaced by “policies,” because ethics is a legal term of art in the context of the federal government. The VICE authors appear to conflate “ethics” as used here, with “ethical issues” as a general concept. They likewise mischaracterize a public affairs officer’s request that a reporter specify the scope of his inquiry about the existence on an email as “coy” despite numerous correspondences directing such precision and evidence of reporters allowing Snowden to misuse her quotes on the subject. Earlier the VICE article claims that a Media Leaks Task Force email noting that the shift towards taking ”more proactive actions to undermine future and recurring false narrative” was the “direction in which we want to take the work of the MLTF” meant that would be the MLTF’s “main mission” “henceforth.”

VICE’s numerous mischaracterizations are subtle, perhaps most would even withstand a fact check. But cumulatively, the resulting narrative is both technically accurate and the story simultaneously untrue. 

Ultimately, the OGC email was released. In response to the email disclosure, Snowden alleged that the release was “incomplete” and that it

does not include my correspondence with the Signal Intelligence Directorate’s Office of Compliance, which believed that a classified executive order could take precedence over and act of Congress, contradicting what was just published. It also did not include concerns about how indefensible collection activities—such as breaking into the back-haul communications of major US internet companies—are sometimes concealed under E.O. 12333 to avoid Congressional reporting requirements and regulations.

VICE does not bother assessing the merit of that statement against the evidence present in the FOIA release. But that is the central issues of all of this: what does the evidence indicate is the truth? The documents show officials who are obsessed with finding all possible communications and with making accurate representations. The FOIA material directly contradicts Snowden’s allegations that this was an “incomplete” release; rather, it was the full extent of all information known in which Snowden could, by any interpretation, be considered to be raising concerns.

Here, Snowden claims there is a “correspondence” from the Office of Compliance in which the office claims an executive order supersedes a statute. Yet, despite multiple rigorous searches, there is zero evidence of any such correspondence. Instead, the actual documents reveal that Compliance, despite being aware of the proper order of authorities, returned the question to a lawyer out of an abundance of caution.

As to Snowden’s vaguely worded allegations that the release did not include his “concerns” about collection activities—he fails to state what form those took. The only remotely plausible evidence is a finding that "[s]ome coworkers reported discussing the Constitution with Snowden, specifically his interpretation of the Constitution as black and white, and others reported discussing general privacy issues as it relates to the Internet." Notably, this bears approximately the same relationship to Snowden’s claims of having raised issues of “legal authorities” to OGC does to the actual correspondence—there is some tangential connection but no rational person would conclude it constituted what Snowden claims it does.

Snowden declined, through his attorney Ben Wizner, to respond to VICE’s questions. According to Wizner, "[Snowden] believes the NSA is still playing games with selective releases, and [he] therefore chooses not to participate in this effort.” Snowden "doesn't trust that the intelligence community will operate in good faith."

But these documents are an outright demonstration of good faith—at least when it comes to due diligence in attempting to locate any and all communications. To believe otherwise is to believe that this entire set of email exchanges was designed for later FOIA release.

In short, the actual evidence runs contrary to the VICE headline: the documents reveal that Snowden in all likelihood did not try to tell NSA about surveillance concerns.

 

Additional Contacts with Compliance—June 2014

Despite the obvious diligence with which senior officials had directed the search for any correspondence, following the release of the email, senior leadership at NSA was notified of two additional points of contact with Compliance.

One point of contact was entirely in relation to Snowden’s work as a Systems Administrator, wherein he assisted a compliance officer in accessing a file. The second contact occurred in person. During a training course conducted at NSA headquarters, Snowden failed an open book test. Snowden seemed “upset” at having failed and insisted that there were “trick questions throughout the course content that made him fail.” The “interaction did not involve concerns about NSA programs and activities.”

As a smoking gun, VICE points to an apology letter addressed to the Director and sent to NSA senior leadership for overlooking this contact. In the letter, an individual takes “responsibility for the representation that “the email to OGC was the sole engagement, and for failing to keep leadership “sufficiently informed.” Notably, the interactions were not newly discovered, but had been first reported in June 2013. They were apparently overlooked when the question of contact with Compliance was put in issue in the interviews. The apology is, as VICE calls it, a “remarkable example of accountability,” but it is also entirely in keeping with the routine culture of personal and leadership responsibility. The mistaken representation was to leadership, not to the public.

But yes, failing to note these communications to leadership was a big screw up. The Director was making representations to the White House and to Congress, and those bodies needed to be fully informed of all information, including those communications which were deemed to not raise concerns. Considering the leadership emphasis on obtaining confidence that everything has been found, this struck an unnecessary blow to that confidence.

The response to the discovery shows the same degree of care and good faith. The agency reviewed the contacts and confirmed they did not represent an “actual complaint about the law or authorities” and therefore did not amend previous statements. As one unnamed official writes “That’s a relief, we’re still good[.]” The NSA did not publically disclose the contacts but renewed the commitment to being “crystal clear that we denied having correspondence containing any complaints, not that we denied having correspondence period.”

 

Who’s probably lying?

As for actual information—and not wild speculation—contained in the release, that’s pretty much all of it. There’s plenty worth saying about the exchanges and what they reveal, but VICE certainly didn’t cover it. My takeaway is admittedly biased, but I’d be surprised if even NSA-skeptics who reviewed the documents reached a dramatically different conclusion.

In short, the NSA has done everything conceivably possible to locate documents showing Snowden raised concerns. At every step of the way, agency officials have been careful to note that absolute certainty had not been—and could not be—obtained. Public statements were rigorously constrained to only state the truth regarding what was presently known. Perhaps the Agency would be better served by releasing all of Snowden’s internal communications and records, to allow the public to decide for themselves. Of course, the Privacy Act and a few DOJ lawyers itching for their day in court may stand in the way.

The fact that NSA missed locating its own records of two contacts previously deemed immaterial certainly means there might be something else out there. Maybe lodged in some files in the basement of Fort Meade are the dozens of overlooked communications in which Snowden actually, genuinely raised concerns with the many authorities he claims. But the documents show the government executed a diligent, good-faith search—many in fact—always beginning with the premise that they might be wrong.

We now know the NSA turned its intelligence apparatus and sensibilities on themselves and came up empty. We now know they aren’t lying. So, Ed, if you aren’t lying either, why not help the government out? Rather than vague and shifting statements, tell us who you talked to, and when, and where, and in what form. Perhaps they can never prove the negative, but we now have proof that NSA is willing to try its best.

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