The Snowden Operation: Inside the West's Greatest Intelligence Disaster

Chapter Two: Selective Outrage

The intelligence agencies’ capabilities are astonishing. They have the ability to plant malware on their targets’ computers: either remotely, or by intercepting them before they are delivered to the customer. They can approach targets when they are playing computer games, monitor their web browsing habits, turn on webcams and microphones remotely and invisibly, use a mobile phone to bug a room, or a computer, and far more besides. They can read text messages and listen to phone calls. They have extraordinary access to the fibre-optic cables which carry data between countries and continents. The NSA and allies scamper through the plumbing of the internet like mice through the nooks and crannies of an old house. Huge slices of electronic traffic can be warehoused for days or even weeks. Powerful computers and ingenious algorithms can search for patterns and connections in a way that only recently would have seemed unimaginable.[37]

The outline of these efforts was already known before the Snowden leaks, even if the code-names and techniques were not. The best-known programme, PRISM, stems from the Bush-administration Protect America Act. It collects data from companies under Section 702 of the Foreign Intelligence Surveillance Act (FISA) Amendments Act 2008. The physical and digital monitoring of individuals is supervised both by congressional committees and by the Foreign Intelligence Surveillance Court (also known as the FISA court).[38] The NSA must seek a warrant from this court if it believes that there is a greater than 50% chance of an American ‘person’—ie citizen or resident—having their privacy breached.

The greater the secrecy of these programmes and capabilities, the better chance they have of tackling terrorists, criminals, enemy spies or other targets. From a taxpayer’s and citizen’s point of view, they represent good value for money (or at least they did until exposed and rendered useless by Snowden and his friends). The agencies can deal with complex plots hatched by well-organised outfits, and, in terrorism, with lone-wolf threats from obscure individuals who may have only the most tangential connections to known plotters. If the American administration decides that it urgently needs more information about adversaries with connections in Panama, or Papua New Guinea, or Paraguay, or Peru, or Poland, the NSA should not start from scratch. It should have capabilities which it can use immediately.

Unless you believe that the United States, Britain and other countries are inherently evil, it is hard to argue that their intelligence agencies should not develop the maximum capabilities available to them—especially as adversary countries are doing exactly the same. Whether they use those capabilities is a matter for political decision-makers and subject to judicial and legislative oversight.

Revelations about the size and scope of collection programmes may seem shocking. But they should not really be surprising. Elected governments of all political stripes in all big Western countries have given these agencies many billions of dollars or euros or pounds of their taxpayers’ money. The rough size of their budgets is as well known as their huge buildings. Anyone with more than a passing interest in intelligence or security knows that the capabilities are vast too. If they were not, it would be a scandalous waste of public money.

The vulnerability of the NSA’s actions was not that they were illegal, but that they were secret. Experts and specialists had a rough idea of what was going on. The general public (and even some lawmakers and officials) did not. As David Cole, a law professor, wrote in a recent New York Review of Books article,

Imagine the following questions being posed in early June 2013: ‘Does the NSA have the ability to read an e-mail if it really wants to? Does it have means to get round commercially available encryption? Does it cooperate with other intelligence agencies? Does it have the means to tap into international fibre-optic cables? Does it store electronic information in order to search it later if necessary? Were these capabilities envisaged at the time the relevant laws were drafted?’ To all these questions the honest answer would have been ‘yes’.[40]

What Snowden has done is give a level of detail confirming these suppositions, coupled with, from his allies, a level of spin that verges on the hysterical, and doses of accidental or deliberate misinterpretation (as in the case of allegations that millions of telephone calls in Norway had been intercepted by the NSA).[41]

A more sensible question concerns not the capabilities but how they are exercised. Is it really worth spying on Angela Merkel’s phone? Is the risk of the collection proportionate to the gain? These are hard questions for spy chiefs and their political masters. (The administration has now indicated that it will stop snooping on friendly foreign leaders’ communications.) But to portray the NSA and its partner services, as Greenwald does, as akin to East Germany’s Stasi, or to the KGB, and claiming that they have the ‘literal’ goal to ‘eliminate privacy globally’[42] is an extraordinary claim, which requires extraordinary evidence. So far, nothing of the kind has been forthcoming.

As Snowden’s ‘Christmas message’ broadcast on Britain’s Channel Four television stated:

But this is a huge exaggeration. What the Snowden documents do appear to show is that the NSA and allied agencies have, unsurprisingly, colossal abilities when it comes to collecting and storing meta-data. They are also able to crack or sidestep a lot of commercially available cryptography. Moreover, if they have you in their sights, they have in principle the ability (though not necessarily the time, or the authority) to find out anything about you that you store or communicate online. Those are impressive capabilities. But they do not mean that they can target everyone (nor, their defenders would argue, do they want to). Being able to see who has communicated with whom is not useful in itself. It is a good way of finding suspects to target. Such targeting may in turn need political approval or a court order. And it is does not mean that everyone is targeted. As the American blogger Bob Cesca argued:

The Snowdenistas’ exaggeration stems from a conflation of self-criticism with self-hatred. In their eyes, democracy, the rule of law and constitutional government have been so eroded that the West carries no moral weight at all. The authorities are capable of anything, so it is sensible to assume that they do what they are capable of. Why would they stop? Greenwald dismisses judicial and congressional oversight of the NSA as a stooges’ pantomime. The Obama review commission was designed to ‘prettify’ the ‘surveillance state’ but not to reform it.[45] If you think that America, Britain and their allies are hypocritical, sleazy oppressors, then it becomes much easier to justify overstating your case and maximising the damage you do.

Recklessness is one explanation. Sabotage would be another. The pattern of disclosures so far does not support the idea that the Snowden camp is chiefly worried about the moral standing of America or the civil liberties of Americans, either now or as they might be threatened by a putative authoritarian government. Even leaving aside the leaks that seem deliberately designed to damage American diplomacy, others include disclosures of capabilities and programmes that clearly affect national security. One such leak was of secret parts of the intelligence budget, showing how much is spent where. The same leak in the Washington Post included secret self-assessments in 50 aspects of counter-terrorism. It noted: ‘blank spots include questions about the security of Pakistan’s nuclear components when they are being transported, the capabilities of China’s next-generation fighter aircraft, and how Russia’s government leaders are likely to respond to “potentially destabilizing events in Moscow, such as large protests and terrorist attacks”.’ As Paul Rosenzweig dryly pointed out on the excellent Lawfare blog, ‘The Pakistani, Chinese, and Russian intelligence agencies surely appreciate the status report.’[46]

Another category of leak revealed American offensive cyber-warfare capabilities.[47] To be sure, digital weapons are controversial. But other countries have them too. Campaigning for unilateral digital disarmament is a respectable if idealistic approach. But there is no sign that the American people support it. And the issue is a long way from the purported abuse of privacy that Snowden wanted to expose. So too is the revelation that America launched 231 cyber attacks against ‘top-priority targets’.

Some of the leaks include exactly the sort of thing that intelligence agencies are paid to do. Why is it scandalous or improper that Britain’s GCHQ spied on foreign diplomats at a summit in London?[48] If the NSA is able to intercept the communications of a top Russian politician, surely it deserves praise (in private), not censure and exposure (in public). Providing the full list of Snowden’s damaging disclosures would be tedious. But even the highlights are shocking. They include: how the NSA intercepts e-mails, phone calls, and radio transmissions of Taliban fighters in Pakistan, and that it is keeping a closer eye on the security of that country’s nuclear weapons; an operation to gauge the loyalties of CIA recruits in Pakistan; e-mail intercepts regarding Iran; and global tracking of cell-phone calls to (as the Washington Post naively put it) ‘look for unknown associates of known intelligence targets by tracking people whose movements intersect’. To the South China Morning Post Snowden revealed details of how the NSA hacks into computers and mobile phones in China and Hong Kong.[49]

The obvious result of this is to damage America and its allies. Most of the criticism of the Snowdenistas has so far focused on this point. But much less attention has gone to a deeper question: in whose interest would this damage be? One candidate leaps to mind. A long-term intelligence adversary with a stellar record of penetrating and disrupting American agencies, it has a record of highly effective ‘active measures’ (in the parlance of its intelligence service) to sow dissension between America and its European allies. This country regards the Atlantic alliance as out-dated and ripe for demolition. It knows that NATO’s credibility is waning, that the Pentagon is cash-strapped and that many European countries have lost interest in defence. It knows that in theory, the West is more than a match for it—economically, diplomatically and militarily. But in practice, division in the West levels the playing field.

That country is Russia. The uncannily good fit between the damage done by Snowden, and the Kremlin’s geopolitical and intelligence interests, is in my view more than a coincidence. As Russia grapples with its own problems, the need to rely on covert measures grows (these problems include: failure to modernise, its undiversified economy’s dependence on oil and gas revenues, crumbling infrastructure and a shrinking demographic base). Russia’s symbolic counterweights to the European Union and NATO, respectively the Eurasian Economic Union and the Collective Security Treaty Organisation, aim to restore Kremlin influence in the former Soviet empire. That plan is succeeding. The main obstacle to its success would be determined Western resistance, which Snowden’s leaks make less likely.

Russia also wants to block attempts to reboot the Atlantic alliance on the basis of economic security, through the planned Transatlantic Trade and Investment Partnership (TTIP). Stoking anti-American fury in countries such as Germany harms that deal’s prospects. The Kremlin also is determined, along with China, to wrest control of the internet from the American-based committees which run it now. It wants the internet to be under governmental control, with an entrenched right for national authorities to promote ‘information security’—a concept which sounds anodyne or even reassuring to Western ears, but in practice would allow authoritarian governments to censor and control their subjects’ diet of information. In both Russia and China misuse of social media, for example, is perceived as a significant national security issue requiring extensive active and passive efforts by the authorities.[50] Assumptions about who should control the internet are shifting as it moves away from its Anglosphere roots.[51] The perception fostered by the Snowden revelations, that America is abusing internet freedom and undermining commercial cryptographic security, allows authoritarian countries to lay criticisms against the West which would have seemed laughable only a few months earlier.[52]

These are big and important tussles. They will determine the shape of the world in coming decades. The overwhelming interest of the public in democratic, law-governed countries is that we come out on top. If we want to stay rich, safe and free, we need to win multiple battles with those who want us to be poor, vulnerable and constrained. Snowden has weakened our chances, and helped our enemies.

A further level of damage is to America’s commercial interests. Big US technology companies and service providers have to varying degrees collaborated with the NSA, either voluntarily or in response to judicial warrants. Sometimes these warrants were so secret that the companies were unable to tell their customers or shareholders even in outline what they had been forced to do. Any attempt to contest the rulings had to be in secret too. They were unable to respond truthfully to requests for comment from the media or elsewhere. So long as nothing leaked, this was perhaps a defensible tactic from the NSA’s point of view. If you have developed a secret and effective means of collecting electronic information, it is important that the target does not find out. Terrorists, criminals and enemy spies read English and use the internet. They will pick up clues about hardware and software which may have been compromised, and use alternatives.

Yet in retrospect, this approach taken by the NSA looks reckless. It depended on these arrangements staying completely secret. In June 2013, the Washington Post said that Microsoft, Google, Facebook, Apple, YouTube, Skype, AOL and Yahoo cooperated with the NSA’s PRISM programme. The companies said that they provided data only when legally obliged to do so.[53]

It is worth noting that the initial coverage of PRISM was accompanied by some serious inaccuracies and misrepresentations.[54] It does not give the NSA the claimed ‘direct access’ to these companies’ servers. It is a way of transferring data collected under a court order. The Washington Post also backed away from its initial claim that the companies concerned ‘participate knowingly’.

Nonetheless, the business models and brands of these companies are dented. They are furious with the administration, both for what they were made to do, and because it has been made public. Microsoft, for example, has issued a statement decrying the interception of customer data on its networks as an ‘advanced persistent threat’—the term normally used for Chinese and other cyber attacks.[55] Microsoft says it will expand the use of encryption, challenge gag orders in court and make its software more transparent (to allay fears that it may contain accidental or deliberate flaws which enable snooping).

But the distorted lens through which the Snowden cheerleaders view the world magnifies failings close to home, and obscures those abroad. The shortcomings of the West become its defining characteristics. Greenwald, with his extensive experience as a trial lawyer specialising in corporate wrongdoing, provides a caustic if glib account of America’s misdeeds. He cites the Bush administration’s foreign policy, the rendition (kidnapping) and torture of terrorist suspects, past incidents of warrantless wiretapping, and much more besides. These are real problems and should indeed provoke soul-searching among those who wish the West to occupy the moral high ground, and for democracies to maintain their political and economic pre-eminence. But they are no excuse for nihilism.

As the journalist Brendan O’Neill points out:[56]

The Snowdenistas’ extremism and hyperbole reflect a mind-set which the blogger Catherine A Fitzpatrick has outlined well in her essay ‘When Thinking Styles Collide’.[57] She was actually writing about the geek world’s attitude to anti-piracy legislation, but the points she makes also highlight the weakness of other self-described crusaders for digital freedom, who scorn the law-making process, and judicial and parliamentary oversight, as out-of-date or irrelevant in the digital age. Geeks, she says, do not ‘get’ governance.

The problem, she argues, is that tech-savvy people tend to look at laws as if they are computer code. In the software world, even a tiny flaw negates a hugely strong premise. Once a bad law is on the books, they believe, it will operate like bad software: mechanically, like a guillotine. So: ‘unless every single edge-case, hypothetical, problem is identified, spelled out, and remedied, nothing can stand.’

That is not the way that a modern law-governed society works. Imperfections and hard cases abound. The art of politics and administration is balancing constraints and anomalies in a way that produces the least unfair or dangerous outcomes, now and in the future. That world is messy and sometimes murky. To the self-righteous and impatient it may seem impossible to change. But for all its faults, it is capable of correction. America recovered from the McCarthy era. The Church committee reined in an out-of-control FBI after the abuses discovered in the 1970s. The same is true in other Western countries.

Zealots such as Snowden prefer their own judgment to the outcomes that this flawed, slow, muddled system provides. It is their right to believe this and to act on it—within the law. But their form of protest takes the form of stealing and publishing state secrets, in a way that causes irreversible damage (impact, as they would put it). This is not an approach that would be tolerated in other forms of protest. Anti-nuclear activists may blockade power stations or weapons facilities. Even they would regard it as irresponsible to try to sabotage them, aiming to cause maximum damage, in the expectation that the resulting debate will outweigh the harm done.

Arbitrary power is the great grievance of the Snowden camp. Who gave the NSA and GCHQ the power to bug and snoop? The real answer to that is simple: the elected governments and leaders of those countries, the judges and lawmakers who have the constitutional authority to supervise intelligence services, and the directors of the agencies in the exercise of their lawful powers. You may not like the system. You may think it needs improving (I do). But never in the history of intelligence has supervision been stronger. America in particular stands out as a country that has taken the most elusive and lawless part of government and crammed it into a system of legislative and judicial oversight. Greenwald simply dismisses such arrangements. For those in search of reform, he argues, ‘the answer definitely does not lie in the typical processes of democratic accountability that we are all taught to respect’.[58] Instead, he thinks the answer lies in international pressure on America. Shame and destruction, not votes, laws and institutions, bring about reform.

The question about arbitrary power actually deserves to be posed in the other direction. What constitutional authority do the Guardian, Der Spiegel or the New York Times have? What gives them the right to leak their countries’ most closely guarded secrets, obtained at vast expense, and with the sacrifice of tens of thousands of man-hours? Even the most passionate defenders of press freedom would hesitate to say that editors are the supreme guardians of the national interest. And even the most self-important editor would hesitate to claim omniscience. What expertise do editors and journalists have in handling these stolen secrets? How can they judge that a particular programme is worthy of exposure (rendering it useless overnight and perhaps endangering those who have worked on it) and that another can be spared the glare of publicity, at least for now and possibly ever?

The publication of secret documents, without context or challenge, has a pernicious effect on the debate that follows. As Inkster, the former British spymaster now at the International Institute for Strategic Studies in London, points out:

As far as can be inferred from Greenwald’s public statements (he declined to respond to my requests for comment), his main aim is to make a splash. Asked how he chooses which material to release, and which to withhold, he answered:

That is a striking claim. Who is Greenwald to decide who is ‘innocent’ and who is not? Are all employees of the NSA to be counted as ‘guilty’ of engaging in ‘dirty work’? And everyone who cooperates with them? Or only some? And guilty of what? Is Greenwald the judge, jury and executioner of the careers of public servants who have operated within the law, at the behest of elected governments, and under the oversight of courts and lawmakers?

It is only a mild caricature to say that the presumption behind the leaks is that the intelligence agencies in the West are the greatest threat to freedom on the planet. As Inkster argues, ‘for those who regard intelligence services as inherently illegitimate or take the view that the US is the world’s number-one rogue actor, no counter-narrative will ever be convincing’. Such fears may be the basis for a thrilling screenplay in a Hollywood movie, where vast sinister forces are marshalled against a lone hero. But they are a poor guide to real life.

One of the overwhelming impressions left by the leaked documents is, in fact, of a painstaking approach to legality. The spies did not believe that what they wrote would ever become public. Like other bureaucrats, they trumpeted their achievements in the hope of scoring points and winning favour. That comes across sometimes as chirpy or crass. But nothing revealed shows contempt for judicial oversight or a wilful desire to evade it.[61]

The NSA and other agencies do try to work out what the maximum is that they can do within the limits of the law. In some cases, they overstep the mark and get slapped down, sometimes crossly, by the FISC or Congress; moreover, individual officers of the agencies may knowingly break the rules. But the fact that these breaches were recorded in internal agency documents (and in the case of individual wrongdoing, disciplined) bespeaks adherence to procedure, not a cover-up.

Moreover, to err is human: bureaucratic self-aggrandisement is common in other branches of government too. Police officers sometimes intimidate suspects, fake evidence or beat up protestors. Soldiers haze new recruits or commit war crimes. Teachers and social workers abuse their power. (Even journalists can be crooked, deceitful or brutal.) Intelligence officers make mistakes too. It is true that the powers that the agencies enjoy mean that they must be particularly vigilant against abuse. But the really striking thing about the revelations to date (which are presumably cherry-picked to portray the NSA and its allies in the worst possible light) is the conscientious, tame and bureaucratic approach they reveal. It is true that the FISA court turned down few requests from the NSA. But this does not prove that the court is toothless. It reflects the fact that the NSA itself vets its own requests to weed out those that are unlikely to gain approval.

The recklessness, damage, narcissism, and self-righteousness of the Snowden camp do not invalidate all their aims. A debate on the collection and warehousing of meta-data was overdue. Collected and scrutinised, meta-data can breach privacy: if you know who called a suicide prevention helpline, or an HIV testing service, or a phone-sex line, and from where and when, the content of the calls matter less than the circumstances. These collections of meta-data, it should be noted, are not only vulnerable to abuse by nosy spooks: they are available in colossal amounts to private sector internet companies, some of whom may protect them only lightly and use them with far greater freedom than a bureaucrat.

More importantly in my view, the Obama administration has treated whistleblowers with scandalous harshness, especially those from inside the intelligence community. The hardest point for critics of Snowden is to explain what he should have done with his worries had he chosen to stay within the system. Genuine whistleblowers such as Thomas Drake, a senior NSA analyst, who believed (rightly or wrongly) that they were exposing abuses within the agency, were hounded and prosecuted under laws which would be rightly applied to spies and traitors. They are now strong supporters of Snowden’s chosen course of action.

The Snowden revelations have also exposed the fact that senior officials, particularly America’s Director of National Intelligence, James Clapper, have not been fully frank with Congress. He was asked in an open Senate Intelligence Committee hearing in March: ‘Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?’ A correct response would have been to give a boilerplate answer: data and meta-data are collected within the law and further information would be available in a closed session. Instead he answered ‘No Sir’; when that response was queried, he continued: ‘Not wittingly … there are cases where they could inadvertently perhaps collect, but not wittingly.’[62] In a strict sense that was true: phone records are not exactly ‘data’, and storing them for future scrutiny is not exactly ‘collecting’. The members of the committee were aware of the programmes concerned, having been briefed on them in classified sessions. The question was, in a sense, a trap, aimed at bouncing Clapper into revealing more than he wanted. But for all that, as a member of the executive branch, he is under a solemn duty not to mislead the legislature—or to mislead citizens who are observing its questioning of their government officials. For whatever mixture of motives or confusion, he breached that duty. He apologised later, pleading confusion not deliberate deceit. Though charges that he ‘perjured’ himself or deliberately lied to Congress are an exaggeration, in his place I think I would have resigned.

Lawyerly definitions of terms such as ‘data’, ‘collect’ and ‘abuse’ have allowed the NSA to stretch its remit in a way that some may now regard in retrospect as excessive. But it has done so within the system, not outside it. NSA officials (like their counterparts in GCHQ and allied agencies) are not cowboys, brutes or madmen. They signed up to defend their country’s freedoms, not to undermine them. They tend to be sober, law-abiding types with a punctilious regard for procedures. The dire state of their morale now is a result of Snowden’s disclosures. The consequences remain to be seen. The dangers of abuse in a woe-struck agency may be greater than in one where morale and corporate culture are healthy.

One can argue (and I would agree) that the NSA needs reform, that it has become too big, too dependent on private contractors, too sloppy in its security procedures, too hard to oversee and too slippery in its definitions of what it may and may not do. All these shortcomings are cause for concern (though not for panic) and are worthy subjects for discussion. As General Clapper himself has admitted: ‘As loath as I am to give any credit for what’s happened, which is egregious, I think it’s clear that some of the conversations that this has generated, some of the debate, actually probably needed to happen.’[63]

It is hard to dispute that the public should be aware that the NSA has stretched the definition of material ‘relevant’ to terrorism to include warehousing the phone records of every call made or e-mail sent in America, and that the agency has had serious rows with the FISA court. Thanks to Snowden, the public now knows this. The modest reforms announced by President Obama on January 17th are also a direct result of the Snowden leaks. But such benefits need to be weighed against the costs. Nothing evinced so far justifies the catastrophic damage that the Snowden leaks have done to national security—the worst disaster in the history of American and British intelligence.