Wheeler, WaPo, Snowden Demolish Feeble Attempt By Gov’t and NYT to Discredit His NBC Interview

(2 pm. – promoted by ek hornbeck)

If you want to be a firsthand witness to a truly brilliant, textbook example of how to cut U.S. government propaganda off at its knees before it even begins to take its first breath in the MSM (somewhat surprisingly, by New York Times’ government stenographer David Sanger, no less), look no further than Edward Snowden’s powerful response in tonight’s Washington Post, and Marcy Wheeler’s double-dose of commentary and analysis over at her Emptywheel blog for some serious and beautifully executed lessons! (John Podesta, are you taking copious notes?)

As many will realize after reading these incredibly disparate NYT and WaPo reports, even open-minded Snowden-haters (I know, that’s an oxymoron) would have to admit their home team was completely schooled in tonight’s news cycle.

First, the government’s stenography courtesy of the NYT…

N.S.A. Releases Email That It Says Undercuts Snowden’s Whistle-Blower Claim

By DAVID E. SANGER

NEW YORK TIMES

MAY 29, 2014

WASHINGTON – The National Security Agency on Thursday released what it said was the sole internal email from Edward J. Snowden before he fled with a trove of agency secrets, and officials asserted that the message undercut his argument that he protested the legality of surveillance programs before he released any of the documents he stole to journalists.

The email to the N.S.A. general counsel’s office, dated April 8, 2013, makes no reference to the government’s bulk collection of telephone data or other surveillance or cyberprograms. Nor does it raise concerns about violations of privacy.

Instead, Mr. Snowden was seeking clarification about the hierarchy of laws governing the N.S.A., based on what he had learned in an agency training course about privacy protection rules for handling intercepted information.

By the time the email was sent, Mr. Snowden, who was a private contractor and not an agency employee, had already implanted software in the N.S.A. system that was copying its files automatically. Two months later, the first of those files were made public by journalists who had received them from Mr. Snowden.

The N.S.A. released the email in response to Mr. Snowden’s assertion in an interview with Brian Williams of NBC News that was broadcast on Wednesday night. In the interview, Mr. Snowden said he had raised complaints both in Hawaii and at the N.S.A. headquarters at Fort Meade, Md., about “real problems with the way the N.S.A. was interpreting its legal authorities…”

Then, there’s the firsthand report on the reality (you know, those little facts that the MSM has a tendency to ignore when they’re making an effort to kiss their overlords’ asses) from Snowden, himself, along with able assists from the WaPo’s Ellen Nakashima, Barton Gellman and other staffers…

U.S. officials, Snowden clash over e-mail records

By Ellen Nakashima and Barton Gellman

Washington Post

Published: May 29, 2014

The Obama administration and former intelligence contractor Edward Snowden offered divergent accounts Thursday of his efforts to raise concerns about National Security Agency activity more than a year ago, as each side tried to shape the debate over whether the massive leak of classified information was avoidable.

Intelligence officials released a brief e-mail that Snowden wrote in April 2013 inquiring about legal authorities but raising no concerns about any particular NSA program or law. The suggestion was that the e-mail did not make Snowden a whistleblower. U.S. officials said the NSA had found no other evidence that he had expressed concerns to anyone in a position of authority or oversight.

But in an e-mail to The Washington Post, Snowden, who last year leaked large quantities of classified documents to journalists and who is living in Russia under temporary asylum, called the official release “incomplete.”

He said it did not include his correspondence with NSA compliance officials and concerns he had raised about “indefensible collection activities.” He repeated claims that he had shown colleagues “direct evidence” of programs that they agreed were unconstitutional…

More from the WaPo staff…

Edward Snowden responds to release of e-mail by U.S. officials

By The Washington Post

Thursday, May 29, 4:56 PM

###

[LINK TO STORY ABOVE FOR BARTON GELLMAN] Video [2:10]: The Washington Post’s Barton Gellman, who interviewed Edward Snowden in December in Moscow, decodes the NBC News exclusive interview with the former NSA contractor.

###

Former intelligence contractor Edward Snowden responded to questions from The Washington Post following the release of an e-mail he had sent while working for the National Security Agency.

Q: How do you respond to today’s NSA statement and the release of your email with the Office of General Counsel?

The NSA’s new discovery of written contact between me and its lawyers – after more than a year of denying any such contact existed – raises serious concerns. It reveals as false the NSA’s claim to Barton Gellman of the Washington Post in December of last year, that “after extensive investigation, including interviews with his former NSA supervisors and co-workers, we have not found any evidence to support Mr. Snowden’s contention that he brought these matters to anyone’s attention.”

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

…

Q: Were there others?

Yes, and not just on this topic. I’m glad they’ve shown they have access to records they claimed just a few months ago did not exist, and I hope we’ll see the rest of them very soon.

Q: Were you wrong to say that you reached out to multiple peers and supervisors to express your legal and policy concerns?

No, not at all. The bottom line is that even though I knew the system was designed to reject concerns raised, I showed numerous colleagues direct evidence of programs that those colleagues considered unconstitutional or otherwise concerning. Today’s strangely tailored and incomplete leak only shows the NSA feels it has something to hide…

(You really should read this entire WaPo Q & A piece. It’s just plain powerful!)

And, there’s the always insightful, play-by-play commentary and analysis by renowned topic expert Marcy Wheeler (in two parts)…

Snowden’s Emailed Question Addresses One Abuse Revealed by His Leaks

Published May 29, 2014 | By emptywheel

…[Snowden’s] email is really suggestive, particularly as it took place when Snowden had already started downloading a slew of information.

That’s because Snowden’s documents (and documents released in response to his leaks) reveal NSA has repeatedly used EO 12333 to push the limits of laws passed by Congress, if not to evade the law altogether.

Here are just two of numerous examples:

NSA Avoids Stricter Minimization Procedures Under the Phone Dragnet: The NSA has fairly strict minimization procedures under the Section 215-authorized phone dragnet, but only NSA’s internal rules (USSID 18) for the EO 12333-authorized phone dragnet. Nevertheless, for the first 3 years of the FISA-authorized program, NSA didn’t follow their Section 215 rules, instead applying the less stringent rules of USSID 18 (effectively letting a DOD Directive supersede the PATRIOT Act). In one of their most egregious violations discovered in 2009, they watch listed 3,000 US persons without giving those people the required First Amendment review, as required by minimization procedures written to fulfill the law. But instead of purging those records upon discovery (or even stopping the watchlisting), they just moved them into the EO 12333-only category. They just kept spying on the US persons using only data collected under EO 12333.

And these 2009 violations are not isolated. At least as recently as 2011, the NSA was still engaging in this authority arbitrage; a training program from that year makes it clear NSA trained analysts to re-run queries under EO 12333, if possible, to get around the dissemination requirements of Section 215. (Update: I’m not saying this particular arbitrage is illegal; it’s not. But it does show how NSA games these authorities.)

NSA Collects US Person Content by Getting It Overseas: Because of the structure of the Internet, a great deal of US person data exists overseas. We’ve seen discussion of this US person data overseas including at least email content, address books, videocam images, and location. But because NSA collects this via dragnet, not targeted collection, it claims it is not targeting any American, even though it permits the searching of EO 12333 data for US person content, apparently without even Reasonable Articulable Suspicion. And because it is not targeting Americans under their dragnet and back door loopholes, it does not apply FISA Amendment Act restrictions on collecting US person data overseas under Sections 703, 704, and 705. Effectively, it has the ability to avoid those restrictions entirely by using EO 12333 as a dodge.

I’m not the only one concerned about this: at a hearing in February, both Dianne Feinstein and (at more length) Mark Udall raised concerns with National Security Division Assistant Attorney General John Carlin, suggesting some of this EO 12333 data should be treated according to FISA. Carlin – who is supposed to be a key player in overseeing NSA – showed no interest in doing so.

In both these questions, NSA did not allow laws to take precedence over EO 12333. On the contrary, NSA just created ways that it could apply EO 12333 and ignore the law that should have or might have applied.

Not only does Snowden’s question make it clear that the NSA doesn’t make the precedence of law over EO 12333 clear in training, but the lawyer’s response was rather ambiguous on this point as well.

One thing we’ve learned from Snowden’s leaks is that the Executive is (at a minimum) evading the intent of Congress on some of its treatment of US person data…

Here’s Marcy’s second post on today’s story, a rather brutal takedown of the NSA’s training programs…

NSA’s Training Programs Are a Mess

Published May 29, 2014 | By emptywheel

In addition to the way NSA claims to be operating under EO 12333 at times when it might be operating under some law passed by Congress, there’s another reason why Snowden’s question to NSA’s Office of General Counsel is worthwhile (though I doubt it’s why he asked).

NSA’s training programs – at least as released to ACLU and EFF under FOIA – are a horrible contradictory mess.

Two training programs closely related to the one he emailed in response to got released last year (though neither appears to be the training program in question): A “Core Intelligence Oversight Training Materials.pdf Core Intelligence Oversight Training” dating to sometime in 2009 or later, and this Office of General Counsel Powerpoint that is referred to as a Cryptological School Course, from which the image above was taken. (Side note: I repeat what I have said in the past: from a training methodology standpoint, these “training programs” are unbelievably shitty, which is particularly notable given that DOD does pay for a lot of state-of-the-art training programs on other topics.)

The Core Intelligence Oversight Training isn’t really training at all. It’s just a reproduction of the regulations in question. It includes:

• The 2008 update of EO 12333, but with the original 1981 date attached

• DOD 5240 1-R, dated 1982

• NSA/CSS Policy 1-23, issued on March 11, 2004 (interesting date to update such a policy!), and revised twice, most recently May 29, 2009; it includes an Annex that serves as a classified annex to EO 12333 that is dated April 26, 1988

• DTM 08-052, dated Jun 17, 2009; it cites EO 12333 “as amended” but doesn’t provide any amendment date

Several of these documents purport to implement or refer to FISA, but only the NSA/CSS Policy post-dates the detailed implementation of FISA Amendments Act (and it precedes key changes to the current minimization procedures tied to FISA).

And read together, these documents are utterly confusing.

My favorite is this part of DOD 5240, which would seem to contradict James “Too Cute by Half” Clapper’s definition of collection…

Tonight’s class in “How Not To Do Government Propaganda” is over.

In the words of Rodney Dangerfield, “Please call me when you have no class…”