That moral decision to tell the public about spying that affects all of us has been costly, but it was the right thing to do and I have no regrets.
—EDWARD SNOWDEN, Moscow, 2013
IN THE TWELVE-MINUTE VIDEO on The Guardian’s website, Snowden correctly identified himself as an infrastructure analyst at a regional base of the National Security Agency in Oahu, Hawaii. He also revealed in a calm, unemotional voice that he had been the source for the stories in both The Guardian and The Washington Post. He said that he had supplied the secret, classified documents that the two newspapers had used in their scoops about domestic surveillance being conducted by the NSA, America’s enormous electronic surveillance agency. These sensational revelations had been, literally, the talk of the world, and now, in another major news event, the boyish-looking Snowden took responsibility for what would turn out to be the largest theft of top secret documents in the history of U.S. intelligence.
In the video, it will be recalled, Glenn Greenwald, who had broken the NSA story in The Guardian, questioned Snowden. What was his motive? Greenwald asked. Why did he do it? Snowden replied that he had become horrified by the NSA’s secret operations, which, to him, represented a kind of distillation of the excesses of the American national security state, and he had therefore made it his mission to blow the whistle. He believed that the public needed to be informed of the existence of a vast, secret surveillance operation directed against tens of millions of Americans that flagrantly violated U.S. laws and was a grave threat to their privacy and their freedoms. Within hours of the release of that video on the Guardian website, Snowden was known throughout the world as a courageous whistle-blower.
In Laura Poitras’s remarks in accepting her Academy Award for Citizenfour on February 22, 2015, she said that Snowden acted as a whistle-blower not only to “expose a threat to our privacy but to our democracy itself.” She received a standing ovation.
A large part of the public who viewed this powerful film, including many of my colleagues in journalism whose writing I greatly respect, came to accept Snowden’s whistle-blowing narrative. The film so convincingly depicted Snowden as an altruistic young man willing to risk his own personal freedom and face years of imprisonment for the sake of others that editorial writers asked that he be given clemency from prosecution.
“Sitting on his unmade bed—white sheets and covers, white headboard, white bathrobe, white skin—Snowden seems like a figure in some obscure ritual, being readied for sacrifice,” George Packer wrote about the film in a widely read article in The New Yorker.
This powerful narrative, as lucidly articulated by Poitras, Greenwald, and other Snowden supporters, described the NSA activities exposed by Snowden as part of a vast criminal conspiracy involving, among others, President Obama, James Clapper, the director of national intelligence, and both Democratic and Republican members of the congressional oversight committees. It further derided any claims that there was evidence that Snowden’s theft of NSA secrets went beyond simply exposing government misdeeds. For example, this narrative asserted, as if it were established fact, that U.S. government officials had deliberately “trapped” Snowden in Russia. According to Snowden, the purpose of this government ploy was to “demonize” him. “There was no question that I was going to be subject to a demonization campaign,” Snowden said in an interview from Moscow, “They [Greenwald and Poitras] actually recorded me on camera saying this before I revealed my identity.” The purpose of this demonization was to divert attention from the government’s own crimes.
To be sure, it is not unprecedented for the government to release defamatory information about individuals who have embarrassed U.S. intelligence by defecting. When two NSA analysts, William Martin and Bernon Mitchell, defected to Russia in the 1960s and accused the NSA of violating international law after arriving in Moscow, U.S. government officials responded by putting out the story that they were homosexual lovers, which was both untrue and irrelevant to the intelligence secrets that they had compromised. It is certainly possible that the government put out information to intentionally defame Snowden. Secretary of State John Kerry characterized him as a coward who should “man up” by returning to the United States.
While one can discount such characterizations against Snowden by government officials as demonization, as I do, one cannot as easily dismiss the independent evidence that undermines Snowden’s assertion that his sole motive was blowing the whistle on illicit surveillance in the United States. For example, in 2014, the Lawfare Institute, a nonprofit organization that publishes a blog on national security concerns, in cooperation with the Brookings Institution, did an independent analysis of all the published documents that Snowden provided to the media. It concluded that with some notable exceptions, such as the two documents initially published by The Guardian and the Post, the now-famous FISA Verizon warrant and the PRISM slides, few of the other documents that Snowden had given Poitras and Greenwald for publication had anything to do with either domestic surveillance or infringements on the privacy of Americans. By the Lawfare Institute’s count, 32 of Snowden’s leaks to these journalists concerned the NSA’s overseas sources and methods, 9 identified overseas locations of the NSA’s intelligence bases, 25 revealed the identities of foreign officials of interest to U.S. intelligence agencies, 14 disclosed information about Internet companies legally cooperating with the NSA, and 19 concerned technology products that the NSA had been using or researching.
Some secret methods that Snowden made public compromised the NSA’s state-of-the-art technology of which adversaries had been unaware. For example, the NSA had devised an ingenious technology in 2008 for tapping into computers abroad that had been “air-gapped,” or intentionally isolated from any network to protect highly sensitive information, such as missile telemetry, nuclear bomb development, and cyber-warfare capabilities. The secret method that the NSA used involved surreptitiously implanting speck-sized circuit boards into air-gapped computers. These devices then covertly transmitted the data back in bursts of radio waves. Once Snowden exposed this technology, and the radio frequency transmission it used, America lost this intelligence capability.
In addition, a considerable number of the published documents did not even belong to the NSA but were copies of reports sent to the NSA by its allies, including the British, Australian, Canadian, French, Norwegian, and Israeli intelligence services. Snowden provided journalists with secret documents from the British cyber service GCHQ, describing its plans to obtain a legal warrant to penetrate the Russian computer security firm Kaspersky to expand its “computer network exploitation capability.” What the GCHQ was revealing in this secret document was its own capabilities to monitor a Russian target of interest to British intelligence. While the release of these foreign documents might have embarrassed allies of the United States, they exposed no violations of U.S. law by the NSA. It was a legitimate part of the NSA’s job to share information with its allies. This raises the question: What constitutes whistle-blowing?
To the general public no doubt, a whistle-blower is simply a person who exposes government misdeeds from inside that government. But in the eyes of the law, someone who discloses classified information to an unauthorized person, even as an act of personal conscience, is not exempt from the punitive consequences of this act. Indeed, if a person deliberately reveals secret U.S. operations, especially ones that compromise the sources and methods of U.S. intelligence services, he or she may run afoul of American espionage laws.
In the past, when government employees have disclosed highly classified information to journalists to redress perceived government misconduct, they were almost always prosecuted. During Barack Obama’s presidency, there were six government employees who, as a matter of personal conscience, shared classified information they obtained from the FBI, the CIA, the State Department, and the U.S. Army with journalists. They were all convicted: Shamai Leibowitz in 2010, Chelsea Manning in 2013, John Kiriakou in 2013, Donald Sachtleben in 2013, Stephen Kim in 2014, and Jeffrey Sterling in 2014. Like Snowden, they claimed to be whistle-blowers informing the public of government abuses. But because they disclosed classified documents, they were dealt with as lawbreakers. All six were indicted, tried, convicted, and sentenced to prison. Sterling, a CIA officer who allegedly turned over a document to James Risen, a Pulitzer Prize–winning reporter for the Times, was sentenced to forty-two months. The most severe sentence was meted out to Private Manning, whom an army court sentenced to thirty-five years in a military stockade, as noted earlier.
The prison time that others received did not go unnoticed by Snowden. He had been following the Manning case since 2012. In fact, he posted about it shortly before he began stealing far more damaging documents than Manning had. He would therefore likely have been aware that by revealing state secrets he had sworn to protect, he would be risking imprisonment unless, unlike Manning, he fled the country. His motives, no matter how noble they might be, would not spare him—any more than they spared the other six—from determined federal prosecution.
The view of those on the Snowden side of the divide is grounded not in legal definitions but in a broader notion of morality. Snowden’s supporters do not accept that the law should be applied to Snowden in this fashion. A writer for The New Yorker termed it “an act of civil disobedience.” His supporters argue that Snowden had a moral imperative to act, even if it meant breaking the law. They fully accept his view that he had a higher duty to protect citizens of all countries in the world from, as he put it, “secret pervasive surveillance.” That higher duty transcended any narrower legal definitions of lawbreaking. Ben Wizner, a lawyer from the American Civil Liberties Union who has represented Snowden since October 2013, argues that Snowden’s taking of classified documents was an “act of conscience” that overrode any legal constraints because it “revitalized democratic oversight in the U.S.” and, without question, caused a much-needed debate on government surveillance.
In this ends-justify-the-means view, any person with access to government secrets can authorize him- or herself to reveal those secrets to the world if she or he believes it serves the public good. Further, because doing so would be an “act of conscience,” he or she should be immune from legal prosecution.
For Snowden’s supporters, his “act of conscience” justifies his claim to being a whistle-blower, even though the preponderance of the secrets he disclosed had to do with the NSA’s authorized activity of using its multibillion-dollar global arrays of sensors to intercept data in foreign countries. For example, one of the thirty allied intelligence services that the NSA cooperated with in 2013 was the cyber service of Israel. Because Snowden deemed this cooperation to infringe on privacy rights, he revealed documents bearing on the NSA’s data exchange with Israel. He subsequently told James Bamford, in an interview in Wired magazine in August 2014, that supplying such intelligence to Israel was “one of the biggest abuses we’ve seen.” Snowden therefore believed he was justified in revealing information concerning Arab communications in Gaza, the West Bank, and Lebanon that the NSA had provided the Israeli cyber service, known as Unit 8200. In doing so, he compromised an Israeli source. But how could this act qualify as whistle-blowing? Providing Israel with such data was not some NSA rogue operation. It was part of a policy that had been approved by every American president—and every Congress—since 1948. Snowden had every right to personally disagree with this established U.S. policy of aiding Israel with intelligence, but it is another matter to release secret documents to support his view. If the concept of whistle-blowing were expanded to cover intelligence workers who steal secrets because they disagree with their government’s foreign policy, it would also have to include many notorious spies, such as Kim Philby.
Snowden’s concept of whistle-blowing also applied to the NSA’s spying on adversary nations. “We’ve crossed lines,” Snowden said in regard to China. “We’re hacking universities and hospitals and wholly civilian infrastructure.” The NSA’s operations against China were such “a real concern” for Snowden that he targeted lists of the NSA’s penetrations in China. Putin echoed this expansion of the whistle-blowing concept to adversaries. He complimented Snowden for having “uncovered illegal acts by the United States around the globe.” Putin’s defense of Snowden not only implied a global concept of whistle-blowing that justifies breaking U.S. laws but also pointed to America’s double standard in publicly complaining about Russian and Chinese cyber espionage.
Snowden’s whistle-blower interpretation gained immense public resonance. Even after President Obama and leaders of both houses of Congress roundly denounced Snowden for betraying American secrets, the majority of the public, according to a Quinnipiac poll taken in July 2013, still considered “Snowden a whistleblower who did a service revealing government domestic spying programs.” Moreover, Snowden’s revelations helped stoke a growing distrust of the American government itself. According to polls conducted by the Pew Research Center after Snowden came forward, just 19 percent of the public said that “they can trust the government always or most of the time.” The support for Snowden was not limited to America. On October 29, 2015, a majority of the European Parliament voted to award Snowden the official status of a “human rights defender.”
The former congressman Ron Paul went even further. He organized a clemency petition in February 2014 for Snowden, stating, “Thanks to one man’s courageous actions, Americans know about the truly egregious ways their government is spying on them,” and his son Senator Rand Paul, who was a candidate for the Republican presidential nomination in 2016, called for a pardon for Snowden.
Senator Paul’s concern fitted with the growing public apprehension over increasing intrusion on privacy. Snowden was correct, in my opinion, in describing the threat of a surveillance state and the loss of privacy as a legitimate public concern. “We actually buy cell phones that are the equivalent of a network microphone that we carry around in our pockets voluntarily,” he pointed out from Moscow.
The very technology involved in the electronic equipment we all use in the twenty-first century has made mass surveillance part of our daily life. There can be little doubt that our privacy has been largely eroded, if not entirely negated, by the widespread use of cell phones, credit cards, social media, and the search engines of the Internet. When we use smart phones, our location is relayed to our telephone service provider every three seconds. The phone companies collect and archive our phone usage “metadata,” which includes whom we called and how long we spoke. When we use Google to search for anyone or anything on the Internet, that activity is captured by Google, a company whose profits mainly come from making available to advertisers the results of its surveillance and collection of its users’ searches. When we use Gmail, Google’s e-mail service, used by nearly one billion senders and recipients, we agree to allow Google to read the actual contents of our correspondence to find keywords of interest to advertisers.
When we use a credit card, the credit card company also retains data about what we buy and where we go. When we travel in automobiles equipped with GPS, every turn and stop is tracked and recorded. And when we are in public places with CCTV (closed-circuit television) cameras, our image is recorded and archived. When we use Facebook, Twitter, and other so-called social media, as over two billion people do today, we allow these companies to collect, retain, and exploit their surveillance of our movements, associations with other people, and stated preferences. When we use Amazon and other online stores, we allow them to track and archive a great deal of our commercial activity. For Internet companies such as Facebook, Twitter, and Yahoo!, like Google, collecting private data on hundreds of millions of their members provides them with vast searchable databases that are easily marketable. The exploitation of these databases is a fundamental aspect of their business plans. Without such surveillance of their users, social media companies would not be able to turn a profit. Indeed, they may be more aptly called surveillance media than social media. For those of us who use them to post pictures and communicate, any notion of personal privacy is largely illusory.
To be sure, there is a distinction to be made between the surveillance of our activities to which we voluntarily agree in exchange for the benefits and conveniences that we gain from social media, search engines, and other Internet companies and the surveillance done by the government, which we do not voluntarily invite—or want. We willingly waive our privacy for corporations but not for governments.
What the public might not fully realize, however, is that the government can access all the personal information in the databases of private companies if it issues a subpoena or search warrant, which it does often. As Snowden himself pointed out, “If Facebook is going to hand over all of your messages, all of your wall posts, all of your private photos, all of your private details from their server, the government has no need to intercept all of the communications that constitute those private records.” These Internet companies, even if they are only interested in exploiting the data for their own profit, cannot refuse to share this information with the NSA, the FBI, and other government agencies if they have a subpoena or search warrant.
That reality became evident to me in my investigation of the rape charges brought (and subsequently dropped) against Dominique Strauss-Kahn, the managing director of the International Monetary Fund, in 2011. Immediately after his arrest, Cyrus Vance Jr., the district attorney of New York County, issued a subpoena for Strauss-Kahn’s cell phone records, credit card records, hotel room electronic key records, e-mails, room service bills, and the CCTV videos of his activities (some of which I published in my article about the case in The New York Review of Books). Nor is this access uncommon. According to Vance in 2016, his office issues thousands of such subpoenas every year. Even though Apple made headlines by refusing to comply with a court order to help the FBI unlock the iPhone of a dead mass murderer in 2016, it had complied with many previous subpoenas. In fact, in 2015 alone, it quietly provided the backed-up data of some seventy-one hundred iPhone customers to government authorities.
If anyone doubts the pervasiveness of government data collection, consider a little-known government agency called the Consumer Financial Protection Bureau. Created in 2010 by Congress, it mines data on a monthly basis from some 600 million personal credit card accounts, targeting about 95 percent of the credit card users in the United States. In addition, through eleven other data-mining programs, it gathers data on everything from private home mortgages and student loans to credit scores and overdrafts in personal bank accounts. This ubiquitous surveillance of virtually every non-cash transaction came about because of advances in computer technology that made it economically feasible to mine such data.
Snowden’s concern about NSA domestic surveillance is certainly not misplaced. Ever since the 9/11 attacks, the NSA has increasingly played a role in this surveillance state, not by its own choice, but because Congress mandated it. In 2001, it empowered the NSA to obtain and archive data on American citizens. Accordingly, the NSA obtained the billing records of customers from phone and Internet companies and archived these records. The bulk collection of these billing records was intended to build a searchable database for the government that could be used to trace the history of the telephone and Internet activities in the United States of FBI-designated foreign terrorists and spies abroad. The government’s rationale for keeping these anti-terrorist programs secret from the public was that it did not want the foreign suspects to realize their communications in America were being monitored.
The public only learned that the phone company was routinely turning over its billing records on June 6, 2013, when Snowden disclosed it to The Guardian and The Washington Post. The documents he provided the journalists showed that the NSA had been obtaining phone records collected by Verizon every three months. While this revelation might have shocked the American public, the NSA had not acted on its own. It had acted under a warrant issued by a secret court established by Congress in 1978 as part of the Foreign Intelligence Surveillance Act for each request for records. Congress empowered the FISA court, whose judges are appointed by the president, to hear cases and authorize search warrants in secret in cases involving national security.
As its name implies, the FISA court was meant to deal with matters bearing on foreign intelligence activities in the United States. That restriction changed after the terrorist attacks of September 11, 2001. A month after the attacks, Congress expanded the purview of the FISA court by passing the USA Patriot Act (an acronym that stands for Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). Part of the act, Section 215, euphemistically referred to as the “library records” provision, permitted the FISA court to issue warrants authorizing searches of records by the NSA and other federal agencies to investigate international terrorism or clandestine intelligence activities. Through these FISA authorizations, the NSA could obtain “tangible things” such as “books, records, papers, documents, and other items.” Under the interpretation of this section of the law by both the Bush and the Obama administrations, the FISA court was enabled by Congress to issue warrants to telephone companies demanding that they turn over to the NSA the bulk billing records of all calls made in America. The FISA court need only deem these records to be “relevant” to the FBI’s investigations of terrorists and spies.
Essentially, the NSA, to create a searchable database of telephone billing records, used the FISA court’s controversial interpretation of the word “relevant” in Section 215. Such a “haystack,” as the NSA called the national collection of billing records, could allow the FBI to instantly find missing “needles,” as this tracking was supposed to work, even if the connections were made years earlier. For example, if the FBI had a lead on a foreign suspect, it could search the database for any telephone calls made by the foreign suspect to telephone numbers in America and then who those people called. The FBI always had this power, if it obtained a warrant, but it did not previously have the “haystack” of records in a single database. General Keith Alexander, who headed the NSA between 2005 and 2014, believed that maintaining such a haystack database made sense. “His approach was, ‘Let’s collect the whole haystack,’ ” according to one former senior U.S. intelligence official quoted by The Washington Post.
According to critics of NSA domestic surveillance, including the ACLU, the results provided by this vast database did not justify its immense potential for abuse. In early May 2015, just three weeks before this part of the Patriot Act was set to expire, a three-judge panel of the Second U.S. Circuit Court of Appeals in New York agreed with the ACLU position, overturning a lower court decision that said it was legal. The panel found that the word “relevant” in the act was not intended by Congress to justify the acquisition and storing of the bulk records of telephone companies for possible future use. Soon afterward, Congress replaced the Patriot Act with the USA Freedom Act, which effectively transferred bulk storage of billing records from the NSA to the phone companies themselves. Despite the change in venue, the records of individuals were still not completely private. Under the new law, the FBI via a FISA warrant could still search the phone company’s databases.
The core of Snowden’s charge in the media was that the FISA court overreached its authority by issuing sweeping warrants that allowed the NSA to obtain data collected by private phone and Internet companies. In the initial story published in The Guardian on June 6, Snowden disclosed one such FISA warrant to support his charge. It was issued by Judge Roger Vinson of the FISA court on April 25, 2013, and ordered Verizon to turn over to the FBI all its billing records of landline customers for the next ninety days. The FBI presented this FISA authorization to the NSA, which acts as a service organization for the FBI and the CIA in collecting communications data. The NSA, with the FISA warrant in hand, then obtained the Verizon billing records.
Snowden also provided the Post and The Guardian with another secret document: a PowerPoint presentation on twenty slides, sent by the NSA to other intelligence agencies. It described a program it was using for monitoring the Internet. Its code name was the aforementioned PRISM. It was authorized under Section 702 of the Foreign Intelligence Surveillance Act and was designed to collect messages sent over the Internet from foreigners. Such information was in fact obtained with the knowledge of the service providers. It also required a written directive from both the attorney general and the director of national intelligence and a review by the Department of Justice every three months for each and every case. After obtaining this data, the NSA ran programs, as required by law, to filter out all domestic Internet communications, but, as Snowden pointed out, domestic information was also accidently picked up. Whenever the Justice Department actually opened an investigation against Americans in contact with foreign suspects, as it did in 170 cases in 2013, it could obtain warrants from the FISA court to search these Americans’ Internet activities.
These two documents raised legitimate questions for many Americans, including members of Congress, about the proper role of the FISA court, including whether it should conduct its business in secret. If Snowden had released only these two documents that related to unwarranted domestic surveillance and other possible violations of the law by the NSA, it would be difficult for any reasonable person not to see his actions as a potentially valuable public service. Indeed, additional safeguards were necessary in an age in which new technologies enabled mass surveillance of the public. As the three-judge panel of the Second U.S. Circuit Court of Appeals would later find, Congress had not intended Section 215 of the Patriot Act to be used to justify the bulk collection of American records. If he had limited his illegal downloading to the few documents about bulk collection, it would be more difficult to argue that he was not a whistle-blower in the spirit if not the letter of the law, and even a hero in the struggle to preserve our civil liberties. But in fact, Snowden took a great many other secret documents that did not bear on the civil liberties of Americans. He claimed he was acting on behalf of citizens in foreign countries by exposing the NSA’s and the CIA’s spying operations abroad, but that same claim could also be made by any espionage agent stealing U.S. secrets to benefit the people of another country.
As a result, the Snowden case produced a great divide in the American appreciation of him. On one hand, he has been almost universally lauded and lionized by what might be seen as the mainstream media, by numerous academics, and even, as we have seen, by members of Congress. The journalists who assisted him, Greenwald, Poitras, and Gellman, have been celebrated for the roles they played in bringing Snowden’s revelations to the public and received the 2014 Polk Award for national security reporting. The Post and The Guardian, the newspapers that initially published the purloined documents, won the 2014 Pulitzer Prize for public service.
In other circles, the reaction has been very different. American and British intelligence officials, senior members of the Obama administration, and members of the oversight committees of Congress do not view Snowden as a hero or even an authentic whistle-blower. Instead, they see him as a betrayer of secrets who willfully brought damage to the United States and benefits to its adversaries. The holders of this darker view of Snowden base it on classified reports of the full extent of the theft of classified data. Those officials believe that only a handful of the tens of thousands of documents he stole involved domestic surveillance and that those few documents served as a cover for a much larger theft.
Admiral Michael Rogers, who replaced General Alexander as head of the NSA in March 2014, said at a public forum at Princeton University, “Edward Snowden is not the ‘whistleblower’ some have labeled him to be.” He further explained to Congress, “Snowden stole from the United States government a large amount of classified information, a small portion of which is germane to his apparent central argument regarding NSA and privacy issues.”
General Martin Dempsey, the chairman of the Joint Chiefs of Staff, went even further. In testifying before the House Armed Services Committee on March 6, 2014, after estimating that the Snowden breach could cost the military “billions” to repair, he added, “The vast majority of the electronic documents that Snowden exfiltrated from our highest levels of security had nothing to do with exposing government oversight of domestic activities.” Dempsey based this assessment on a then still-secret Defense Intelligence Agency report on the breach. The classified DIA report showed that Snowden took “over 900,000” military files from the Department of Defense in addition to the NSA files he had taken. The Defense Department loss in terms of the number of files stolen actually exceeded the loss—in sheer numbers—of NSA documents. Lieutenant General Mike Flynn, the DIA director who directed the study, testified to the Senate Select Committee on Intelligence that the breach “has caused grave damage to our national security.”
To be sure, this was not the first time that the cryptological branches of the military had been compromised. The spy ring of John Walker had provided thousands of the navy’s reports on breaking Russian ciphers to the KGB during the Cold War. But the Snowden breach exposing military sources was an order of magnitude greater than any past breach.
The CIA’s assessment was no less grim. Morell, the deputy director of the CIA in 2013, wrote that Snowden’s action went beyond taking the handful of documents, such as the FISA order, “that addressed the privacy issue.” Instead, as Morell put it, “he backed up a virtual tractor trailer and emptied a warehouse full of documents—the vast majority of which he could not possibly have read and few of which he would likely understand—[and] he delivered the documents to a variety of news organizations and God knows who else.” As a result, Morell concluded, “Snowden’s disclosures will go down in history as the greatest compromise of classified information ever.” General Alexander, the head of the NSA at the time of the theft, asserted that Snowden did “the greatest damage to our combined nations’ intelligence systems that we have ever suffered.” Obviously, military intelligence officers would not be on Snowden’s side of the divide (and the Snowden breach ended the careers of many of them, including Alexander). But political leaders in both parties could also be found on the anti-Snowden side of the divide. “I don’t look at this as being a whistle-blower,” the Democratic senator Dianne Feinstein of California, the head of the Senate Intelligence Committee, said after she was briefed on Snowden’s theft. “I think it’s an act of treason.” The Republican representative Mike Rogers of Michigan, her counterpart on the House Intelligence Committee, said on the NBC program Meet the Press that Snowden might be working for a foreign intelligence service. And a former prominent member of President Obama’s cabinet went even further, suggesting to me off the record in March 2016 that there are only three possible explanations for the Snowden heist: (1) it was a Russian espionage operation; (2) it was a Chinese espionage operation; (3) it was a joint Sino-Russian operation. These severe accusations generated much heat but little light. They were not accompanied by any evidence showing that Snowden had acted in concert with any foreign power in stealing the files or, for that matter, that he was not acting out of his own personal convictions, no matter how misguided they might have been.
On this side of the divide, Snowden’s critics regard the whistle-blowing narrative as at best incomplete and at worst fodder for the naive. They point out that the FISA document that gave him credentials as a whistle-blower was only issued in the last week of April 2013, which was four months after he first contacted Greenwald and almost nine months after he began illegally copying secret documents. They further believe that the evidence contradicts Snowden’s claims that he stole only documents that exposed NSA transgressions into domestic surveillance, that he turned over all the stolen documents to journalists, and that he was forced to remain in Moscow by the actions of the U.S. government. They also find that the unprecedented size and complexity of the penetration of NSA files, compromising hundreds of thousands of secret documents pertaining to U.S. operations against adversary nations, according to the NSA’s and the Pentagon’s estimates, is not easily explained given Snowden’s avowed purpose for his theft.
The deep split in how Snowden is perceived brings to mind the famous drawing of a duck-rabbit cartoon first published in 1900 in the book Fact and Fable in Psychology. The figure is perceived either as a duck or as a rabbit, but it cannot be seen as both simultaneously. Whether a person sees a rabbit or a duck in this test may depend on the information available to that person. Similarly, what may account for the sharp divide between the pro-Snowden and the anti-Snowden camps is a disparity in their available information.
The pro-Snowden camp’s view is largely informed by Snowden himself. Snowden supporters prefer to believe his words rather than his actions. In the anti-Snowden camp are administration officials and the members of the House and Senate intelligence oversight committees who have been at least partially briefed on the continuing investigations of the Snowden affair. The members of the Senate Intelligence Committee, for example, were told by David Leatherwood, the director of operations for the Defense Intelligence Agency, that the military files compromised by Snowden included documents bearing on military plans and weapons systems; foreign governments’ intelligence activities (including special activities), intelligence sources, or methods of cryptology; scientific and technological matters relating to national security; and vulnerable systems, installations, infrastructures, projects, plans, and protection services related to national security and the development, production, or use of weapons of mass destruction. The members of the House and Senate Intelligence Committees, but not the public, have also been privy to an NSA investigation that established the chronology of Snowden’s actions, including changing jobs, copying more than one million classified documents at the Signals Intelligence Center in Hawaii, and flying to Russia.
Additional information does not necessarily change the minds of people who already have a firm view. In the field of social psychology, the testing of “confirmation theory” consistently shows that people tend to more readily reject new information that contradicts their pre-existing beliefs. For example, when Lee Harvey Oswald was arrested in the Texas Theater on November 22, 1963, he said famously, “I haven’t shot anybody.” Ten months later, the Warren Commission presented evidence, including ballistic tests, that it claimed showed that Oswald had shot three people, including President John F. Kennedy, less than an hour before making his statement. Yet many of those who believed Oswald’s public proclamation of his innocence chose to believe that the government had falsified all the incriminating evidence to tarnish Oswald (who had been killed on November 24, 1963) rather than accept that they had been wrong in believing Oswald.
The charges, countercharges, and defamatory name-calling in the Snowden case therefore only deepened the great divide. Those who saw Snowden as a democratic hero exposing the abuses of power of an out-of-control national security state tended to dismiss anything that depicted Snowden in a negative light as a fabrication, while those who saw Snowden as a “traitor” tended to dismiss anything that depicted him in a more positive light.
When it comes to the murky universe of spy agencies, the problem in deciding where the truth lies is further heightened by the possibility of deliberate deception. Spy masters are, after all, in the business of concealing their most sensitive operations. It is often considered essential that important secrets be protected by what Winston Churchill famously termed “a bodyguard of lies.” Top intelligence officials are not exempt from this practice. Consider, for example, the response to a question concerning the NSA’s operations made by James Clapper, the director of national intelligence, to the Senate Intelligence Committee on March 12, 2013. The Democratic senator Ron Wyden of Oregon, who was on the committee, asked the spymaster if the NSA collected data on Americans. Clapper answered that the NSA did not knowingly “collect any type of data” on millions of Americans. Clapper’s answer was clearly untrue, but it did not mislead Senator Wyden or any other members of the Senate Intelligence Committee; Clapper had truthfully testified in a classified session of the committee earlier that week that the NSA did collect Americans’ telephone records. It was the American people who were being misled. Yet none of the senators on the committee corrected this obviously false answer. When Clapper realized he had misspoken, he could not publicly correct the record of the public session, because to do so would be revealing classified information he had sworn to protect. No doubt other intelligence officers find themselves in a similar bind in discussing secret matters. This suggests that there is a risk in accepting statements made by the intelligence chiefs at face value.
But Snowden also has a credibility problem. He has told numerous untruths, including some calculated to help him insinuate himself into the key positions from which he stole secrets and some calculated to cover up the nature of his theft. For example, Snowden got access in the spring of 2013 to the NSA’s super-secret computers that stored these electronic files by working at Booz Allen Hamilton. On his application to Booz Allen in March 2013, as we’ve seen, Snowden claimed to be in the process of completing a master’s degree at the University of Liverpool in computer security sciences. Snowden had not completed a single course there and purposely lied to get access to classified documents and then to get safely away with them.
He was also not entirely truthful with the journalists whose trust he sought when it suited his purpose of protecting himself. For example, as we have seen, in contacting Laura Poitras under the alias Citizen Four in January 2013, he told her that he was currently a “government employee,” although in fact he was working for a private contractor at the time.
Snowden had little concern about misleading journalists when it suited his purpose. For example, he told Alan Rusbridger of The Guardian, Brian Williams of NBC News, James Bamford of Wired, Katrina vanden Heuvel of The Nation, Barton Gellman, and Jane Mayer of The New Yorker that the U.S. government intentionally acted to “trap” him in Moscow by revoking his passport while he was already on a plane to Moscow on the afternoon of June 23. None of these journalists asked Snowden what the basis for his oft-repeated allegation was. If they had, they would have discovered that he had no independent basis for his assertion. When asked about it during the Q&A following his July 12 press conference in Moscow, he indeed said that the only knowledge he had about the suspension of his passport was what he had “read” in the news reports. But all the news stories prior to his statement reported that his passport had been revoked on June 22, while he was still in Hong Kong. ABC News, for example, reported that the U.S. “Consul General–Hong Kong confirmed Hong Kong authorities were notified that Mr. Snowden’s passport was revoked June 22.” By advancing that date to when his plane was in “midair” on June 23, Snowden provided to unsuspecting journalists an untrue alibi for his presence in Russia.
The credibility problem with Snowden assumed a more sinister dimension once he put himself and his fate in the hands of the Russian authorities in Moscow. Even though the Obama administration decided against revealing the extent of the Russian intelligence service’s participation in Snowden’s move from Hong Kong to Moscow, or what intelligence services call an “exfiltration,” I was told by a presidential national security staff adviser that the government acted to protect the intelligence sources used by the CIA, the NSA, and the FBI to track Snowden’s movements in the latter part of June in Hong Kong. The CIA’s deputy director, Morell, would go no further than to state that during that period he had no doubt that the intelligence services of Russia and China “had an enormous interest in him and the information he [Snowden] had stolen.” Presumably, the last thing these adversary services would want would be to make this “interest” transparent to the United States.
The role of concealment must be taken into account when assessing information bearing on the work of espionage services. When I was interviewing James Jesus Angleton—the CIA’s legendary ex-counterintelligence chief, active in the 1970s—for a book on deception, I learned that intelligence services play by a different set of rules from historians when it comes to their espionage successes. Angleton, a famously baroque thinker himself, impressed on me the complexity of espionage. He said, “It’s not enough just to steal a secret. It must be done in a way that the theft remains undetected.”
Deception is employed to obscure the nature and the extent of the espionage theft. One of the most famous examples of this principle was the deception used by British intelligence in World War II to conceal its success in breaking the German ciphers generated by the Enigma machines. If German naval intelligence had discovered Britain was able to read the ciphers it used to communicate with its U-boats, it would have stopped using them. So British intelligence hid its coup by supplying false information to known German spies to account for the sinking of U-boats, including the canard that British aerial cameras could detect one ingredient in the paint used to camouflage the U-boats.
That same hoary principle of deception applies to modern-day communications intelligence. If the Russian, Chinese, or any other adversary intelligence service got its hands on the documents stolen by Snowden from the NSA’s repositories in Hawaii in 2013, it would likely employ deception, including well-crafted lies, to create as much ambiguity as possible as to the missing documents. From this counterintelligence perspective, the intelligence issue that spawned the great divide cannot be resolved by accepting the uncorroborated statements made by a source, such as Snowden, who may be in the hands of the Russian security services in Moscow.
By the same token, the calculations made by NSA officials about the extent of the theft are also suspect. After all, the NSA is an intelligence service that often engages in secret machinations. We know that its top officials reported to the House and Senate Intelligence Committees, as well as the president’s national security adviser, that Snowden compromised over one million documents. But if this was disinformation, it is difficult to see its purpose. Inflating the extent of the damage of the Snowden breach to the president, Congress, and the secretary of defense obviously reflected poorly on their own management of the NSA, and their own careers. Yet such a possibility cannot be precluded in the arcane world of intelligence.
As in any case involving the loss of state secrets, uncontested facts remain in extremely short supply. The opinion-laden appellatives such as “patriot” and “traitor” that have tended to fill the gap in the great divide do little to address the important mystery of how many thousands of state secrets were taken from the United States. How did Snowden breach the supposedly formidable defenses of the NSA? Did he have any assistance? How did he escape to Moscow? And what was the final destination of the stolen documents? How Snowden succeeded in this coup cannot simply be pieced together from his own statements and interviews. The story also requires a visit into the wilderness of mirrors of a counterintelligence investigation. For this endeavor, it is necessary to return to the crime scene: the NSA’s base in Hawaii.