Snowden and Manning, While Correct About Civil Liberties, Injure US Interests

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Overview

The US Intelligence Community has made recent headlines in the Long War with information leaks coming from individuals such as Edward Snowden, Chelsey Manning, and the expulsion of the station chief in Germany (Greenwald 2013; Poulsen and Zetter 2010; A. Thomas 2014). Stories of US Intelligence agencies collaborating with British intelligence, while monitoring Signals Intelligence of Americans have raised concerns over government protections of due process and probable cause (Wells Bennett 2014; Eddlem 2014; Bolton 2014). Snowden and Manning have been trumpeted by civil libertarians as whistle blowers and have been disavowed by the state and its supporters as traitors (Keck 2013; Kirchik 2014; Biddle 2014; Clifton 2013; Pilkington 2013; McGinty 2013).  There is a significant history of competitive political and social interests behind the intelligence collection methods and processes of the United States that is consistent with the latest allegations by these controversial figures. The allegations by Snowden and Manning cover a period of time going back decades and continue to this day. Both the Obama Administration and Congress have offered suggestions to improve the process while simultaneously failing to hold those accountable who have broken the current laws. At the heart of these controversies remains the elusive balance between security and freedom which remain the focus of this report.

Background

The US Intelligence Community and its allies, known as “five-eyes,” in the United Kingdom, Australia, New Zealand and Canada function under a treaty negotiated initially at the beginning of the Cold War between the United States and United Kingdom (Norton-Taylor 2010). The US/UK Security Agreement is one of those treaties. This treaty was negotiated as a sole-executive treaty with out a Congressional advice and consent constitutional requirement but remains Constitutionally constrained (Nelson 2009). In 1957, the Supreme Court ruled as a result of an executive-only decision that the US Government was required to protect the rights of its citizens, even if crimes were committed on foreign soil with these agreements in place (“Reid v. Covert, 354 U.S. 1” 1957).

In the 1970’s following the allegations by author, Seymour Hersh, that the US Central Intelligence Agency was spying on peaceful protesters of the Vietnam War, Congress, lead by the Church Committee, established a secret court that provided over-site via warrants (“Foreign Intelligence Surveillance Act” 1978). Prior to the institution of these laws programs like MINARET and SHAMROCK were operated by the National Security Agency (Ponder 2006).  Projects MINARET and SHAMROCK were also operated by the National Security Agency (Ponder 2006; Schneier 2005) and its predecessor. These programs targeted specific citizens and their communications traffic. Allegedly, there was no judicial oversight, and the project required no warrants for interception. Operating between 1967 and 1973, over 5,925 foreigners and 1,690 organizations and US citizens were included on the Project MINARET watch lists (Hastedt and Guerrier 2010). National Security Agency Director, Lew Allen, testified before the Senate Intelligence Committee in 1975 (Schneier 2005). Allen noted the National Security Agency had issued over 3,900 reports on the watch-listed Americans (“Project Minaret 2.0: Now, with 58% More Illegal Targeting!” 2013). The program was terminated by the Attorney General, Elliot Richardson (Fitsanakis 2013). Project SHAMROCK focused on all traffic leaving the United States (Randle 2013). The National Security Agency was given daily microfiche of all outgoing telephonic calls from the United States and then passed the information along to other members of the Intelligence Community (Schneier 2005). Another database was designed to track case management of the legal system. PROMIS allowed prosecutors to determine what attorney’s would plea-bargain a case out or who would take specific kinds of cases (Fricker 2013). The leverage this provided prosecutors over judges and defendant’s counsel could inhibit the rights of the accused by gambling with probability on if an attorney would settle or not (Encho 2009). Converted to intelligence management it can track assets in various countries and be used for case management of operations around the globe (Fricker 2004).

With the implementation of the Foreign Intelligence Surveillance Act, a secret court assists the Intelligence Community in granting warrants for wiretapping persons in the national interest. The implementation of this court was designed to protect the civil liberties of American citizens. These liberties include probable cause where the government cannot target a citizen with out a reasonable expectation the law is being broken. There were also reporting requirements in the law for Congress.

Abuses of Power

The alleged Signals and Electronic Intelligence acquired by the National Security Agency with out probable cause is massive. Snowden revealed that the National Security Agency had a blanket wire-tap signed by the Foreign Intelligence Surveillance Act Court for Verizon, a wireless telecommunications courier in the United States, to turn over millions of phone records (Snowden 2013). Following the allegations of Edward Snowden, the National Security Agency conducted an investigation and found the US National Security Agency had broken the law thousands of times between April of 2011 and March of 2012 (Mick 2013). National Security Agency Whistle-blower, William Binney, alleged the National Security Agency read most Americans’ emails (“Whistleblower: The NSA Is Lying–U.S. Government Has Copies of Most of Your Emails” 2012). Wire Magazine reported that the Obama Administration illegally obtained e-mail records of Associated Press journalists (Zetter 2013). When asked about this by Congress, the US Justice Department allegedly lied to Congress by denying this happened (Rove 2013). The National Journal On-line reported, that the US National Security Agency was using Facebook to hack into American’s computers (Volz 2014). Elizabeth Brown reported that the National Security Agency was passing around people’s nude selfies’ and that Edward Snowden editorialized this was a fringe benefit of a surveillance position (Brown 2014). In a June 2014 response to a lawsuit filed by Electronic Frontier Foundation, regarding warrant-less wiretaps, the National Security Agency filed a brief to the court saying it was too big to comply noting, “Spying operations are too massive and technically complex to comply with an order to preserve evidence,” (Patrick C. Toomey 2014). This is important because a jury and judge in a legal preceding can view this failure to preserve in a negative and incriminating light (David Zachary Kaufman 2006; Browski 2014; H.K. 1941).

Suggestions for Reform

Efforts to address these issues have focused on reforming the Foreign Intelligence Surveillance Act court. The activities of the National Security agency are illegal and unconstitutional and should be provided a day in court. If charges were to be brought before any of the officials of the National Security Agency, their constitutional rights would be respected. Their side of the story would be heard in court and they would get to face their accused while having due process. The Foreign Intelligence Surveillance Act court in comparison operates in near-total secrecy and only hears from the side of the US Government (Mears and Abdullah 2014). Since its inception, the court has completely gutted the fourth amendment (Nimmo 2013).     One of the problems with issues of National Security and secrecy are that it can be used to cover up evidence of impropriety and mitigate critique of policy or procedure (Lynch 2010; Shiffman and Cooke 2013). The strongest example of this is the el-Marisi v. Tennant case where the state used its powers of secrecy to cover up a extraordinary rendition program that remained inconsistent with the US observation of human rights (“El-Marisi v. Tennant” 2010; Glaser 2013). Allowing declassification of documents to create transparency and accountability in the US Government, notably with the advice and consent of the Senate, is one suggestion for improving the current Foreign Intelligence Surveillance Act Court.

Another suggestion to reform the court involves an advocate of the people to be placed on the court. Senator Richard Blumenthal’s bill recommends that a special advocate be placed on the court to represent the interests of the individual so that both sides can be heard by a judge instead of just the government’s (Blumenthal 2013). Advocating and arguing the position of the Constitution for interpretation by a judge sitting on the Foreign Intelligence Surveillance Act court would further help the state protect the constitutional rights of its citizens. Blumenthal has also suggested that in order to have better representation on the court by a multiplicity of judges from circuit courts instead of those heavily slated towards the Eastern United States, another bill would change the way in which judges are selected to this court (Blumenthal 2013).

President Obama empowered a commission which came up with 46 recommendations to improve the process by which intelligence information can be gathered but civil liberties protected (Obama 2013). Of those proposals President Obama chose not to implement them all while acknowledging the potential for abuse in the massive data gathering (Kaplan 2014). These recommendations however did take the meta-data out of the hands of the National Security Agency and require telecommunications companies to retain the information instead (Kaplan 2014).

 

Missing Pieces

It is important to note that outside the collection of intelligence the Congress has oversight on the administration of justice in collaborating these efforts with the US Attorney General’s Office. When examining the Congressional response to these allegations it is important to note the US Justice Department is allegedly lied to Congress and that no charges of impeachment have been brought against the Attorney General (Crouere 2014; Adams 2012). Representative Paul Gosar has led the charge in the US House of Representatives to impeach Attorney General Eric Holder over these matters (Riddell 2014). Rep. Gosar accused, “We can’t sit idly by here as we see the Constitution and justice being defamed right and left at the whim of the attorney general,”(Riddell 2014).

Besides Congressional action, the machinations of the Intelligence community are missing an opportunity for reflection in a discussion about targeting. Each member of the Intelligence Community takes an oath to defend the Constitution of the United States against all enemies foreign and domestic as a primary responsibility of their job and then to faithfully discharge their official duties. A major aspect of the intelligence cycle is targeting and it remains unspoken in the public debate regarding accountability over who was targeting US Citizens and for what purpose. The Deputy Director of the National Security Agency reported that noon had been fired over the allegations of Edward Snowden (Zengerle and Wilson 2013). When the National Security Agency Director, Kieth Alexander, offered to resign, President Obama asked him to stay because, and arguably inappropriately, it wasn’t viewed as a National Security issue but a political one (“Keith Alexander Offered To Resign, But White House Said No Because It Didn’t Want Snowden To Win” 2013). This is critical because the intelligence community as pervasive as some of these resources suggests still has limited focus and assets. When time, money and energy are spent using this technology to target innocent Americans with out due process, it is no wonder how critical information and targeting is missed. An example of this is the Director of the US Central Intelligence Agency had knowledge of several of the 9-11 hijackers who entered the US and failed to inform the FBI, the US Department of State, or the Counter-Intelligence Chief about it, with whom he met regularly (Ross 2014; Nowosielski and Duffy 2011). The terrorists were using their names and credit cards and had this data been appropriately shared, the chances of the Federal Bureau of Investigation and National Counter-Terrorism Center being able to track these guys would have significantly increased (Nowosielski and Duffy 2011). Another example is the information that was shared by the Federal Bureau of Investigation, Russian intelligence services, and the Police Chief of Boston over the Tszarnev brothers activities (Rafferty and Williams 2013; Memmot 2013; Bender and Bierman 2013). Also, two field agents in the Federal Bureau of Investigation had knowledge of the 9-11 hijackers taking flight lessons and not wanting to learn how to land the planes and the information was not appropriately processed (Henneberg and Herridge 2002; P. Thomas et al. 2013; “September 11 Warnings: Who Knew What, and When?” 2002; “Agent: Moussaoui ‘Could Fly … into the WTC’” 2002). These efforts demonstrate that a realignment of focus on priorities and targeting could better use those intelligence gathering apparatus of the US Government. In the case of the Boston Marathon Bombing, instead of spying on peace activists, in Boston the brother’s Tsarnev may have  received more attention (Policing Dissent:Police Surveillance of Lawful Political Activity in Boston 2012).

While the scandal over maligned Constitutional priorities hovers over the Congress and the President, the intelligence interests of the United States are harmed. While Snowden can be viewed as a whistle-blower in defense of American civil liberties which are the very reason the US Government exists to protect, these efforts also undermine the government’s ability to collect viable intelligence toward enemies of the state that aren’t citizens. Legitimate targets of intelligence are harder to penetrate because of these revelations and the underinvestment in HUMINT. Telabras, a Brazilian telecommunications company, recently negotiated a deal to run cable under the ocean independent of the US interests in the wake of Snowden’s allegations (“Brazil to Build Undersea Cables to Europe, Angola” 2014). Watson reported that Brazil was also going to build undersea cables that would build an Internet independent of the US spying via South Africa, China, India and Russia (Watson 2013). It is not clear if this technology will evade the intelligence gathering measures of the USS Jimmy Carter (Noah Max 2005; “Electric Boat Is Awarded $887 Million Contract Modification for Third Seawolf” 1999).

Snowden’s and Manning’s revelations have harmed the economic interests of the United States and relationships with our allies and trading partners around the globe. Forbes magazine reported that many US based technology companies, Like Cisco and IBM were losing bids to Chinese technology companies because of Snowden’s revelations–making the US economic recovery, the worst since the great depression, even more difficult (Eoyang and Horwitz 2013). Furthermore, CNN reported that fewer companies were using cloud computing services because of concerns over data and privacy which was costing the US economy billions (Bankston and Kehl 2014). The chief executive of Germany’s government was outraged the US was listening to her cell phone calls and kicked the station chief out of her country (A. Thomas 2014). With out economic interests of the citizens and corporations, the Federal Government has no one to defend.

Conclusions

While there is significant legal oversight regarding Signals Intelligence, the evident problem presented is the disregard of the law by the executive branch of government. Violators are not prosecuted in the face of protecting political secrets. While some of these challenges may be perceived as oversight or erroneous efforts, the responsibility of the US Congress remains ineffective in implementing policy changes. Also, being charged with oversight, the US Congress has chosen not to impeach or insist on the appointment of independent counsel to investigate these matters.
For the Intelligence Community of the United States, its job has become immanently harder in both collection and clandestine efforts. After spending a decade in Iraq and Afghanistan intelligence efforts are hindered with the rise of ISIS (Dan 2014; Vinograd, Miklaszewski, and Kube 2014; Warren and Siemaszko 2014). In the Ukraine by the political instability involving old cold war rivalries fuels controversy over a simple investigation of a plane fuselage to determine what happened(“MH17 Plane Crash: Ukraine Rebels ‘Limit Investigation’” 2014). Foreign state-sponsored investors from China and Saudi Arabia have inflated their currencies and capital to invest in domestic markets which drive up the price and create massive debt bubbles in their economies while making times difficult for the average business owner and citizen of the United States (Rugaber 2014; “China Is Crashing. Credit Bubble, Financial and Industrial Bankruptcies, Debt and Bond Busts” 2014; Pesek 2014). Intelligence experts from the US Department of Treasury, Financial Crimes Enforcement Network, the Intelligence Collection division of the US Treasury,  have a difficult time tracking these investments run through shell corporations in the US amidst a sea of cash and budget cutbacks (Advisory to Financial Institutions on Filing Suspicious Activity Reports Regarding Trade-Based Money Laundering 2010; Draz 2011). A lawsuit filed in Los Angeles Superior Court asserted that one of China’s largest financial institutions moved millions of dollars for terrorist organizations bent on attacking Israel (Areddy 2008). Following the money as Financial Intelligence or acquired electronically through other means can protect Americans, however, these assets are maligned if reports are true to misappropriate the targeting of intelligence in the US.

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Howard L. Salter lives in Ocean Springs, Mississippi with his wife and four children. He enjoys recording music and writing and has a Bachelor’s of Science in Information Technology Management, a Mast of Arts in Intelligence Studies with a Focus on Antiterrorism and is working towards a PhD in Health Care Administration with a focus on economics and regulatory compliance

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