The Snowden Reader Read online

  THE

  SNOWDEN

  READER

  THE

  SNOWDEN

  READER

  EDITED BY

  DAVID P. FIDLER

  FOREWORD BY SUMIT GANGULY

  This book is a publication of

  Indiana University Press

  Office of Scholarly Publishing

  Herman B Wells Library 350

  1320 East 10th Street

  Bloomington, Indiana 47405 USA

  www.iupress.indiana.edu

  © 2015 by Indiana University Press

  All rights reserved

  No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying and recording, or by any information storage and retrieval system, without permission in writing from the publisher. The Association of American University Presses’ Resolution on Permissions constitutes the only exception to this prohibition.

  The paper used in this publication meets the minimum requirements of the American National Standard for Information Sciences—Permanence of Paper for Printed Library Materials, ANSI Z39.48–1992.

  Manufactured in the United States of America

  Cataloging is available from the Library of Congress.

  ISBN 978-0-253-01731-4 (cloth)

  ISBN 978-0-253-01737-6 (paperback)

  ISBN 978-0-253-01738-3 (ebook)

  1 2 3 4 5 20 19 18 17 16 15

  To my students, whose generation has so much at stake

  when national security dangers, innovative technologies,

  and commitment to civil liberties converge.

  When the people of America reflect that they are now called upon to decide a question, which, in its consequences, must prove one of the most important that ever engaged their attention, the propriety of their taking a very comprehensive, as well as serious, view of it, will be evident.

  The Federalist Papers, No. 2

  CONTENTS

  Foreword / Sumit Ganguly

  Acknowledgments

  Editor’s Note

  Abbreviations

  Introduction / David P. Fidler

  PART I · PERSPECTIVES ON THE SNOWDEN DISCLOSURES

  1

  Security and Liberty: The Imaginary Balance / Nick Cullather

  2

  Edward Snowden and the NSA: Law, Policy, and Politics / Fred H. Cate

  3

  From Passivity to Eternal Vigilance: NSA Surveillance and Effective Oversight of Government Power / Lee H. Hamilton

  4

  U.S. Foreign Policy and the Snowden Leaks / David P. Fidler

  5

  Taking Snowden Seriously: Civil Disobedience for an Age of Total Surveillance / William E. Scheuerman

  PART II · THE SNOWDEN AFFAIR THROUGH PRIMARY DOCUMENTS

  A. Revelations and Reactions

  Unconstitutional Abuse of Power or Legitimate and Necessary Security Measures? NSA Programs under the Foreign Intelligence Surveillance Act

  1

  The Verizon Order

  2

  NSA PRISM and UPSTREAM Briefing Slides

  3

  Robert S. Litt, General Counsel, Office of the Director of National Intelligence, Speech at Brookings Institution

  4

  U.S. House of Representatives, Amash-Conyers Amendment Debate

  Hero or Villain?

  Persecuting a Defender of Human Rights v. Prosecuting a Criminal Suspect

  5

  Edward Snowden, Statement at the Moscow Airport

  6

  Attorney General Eric Holder, Letter to the Russian Minister of Justice

  Rubber Stamp or Robust Tribunal?

  The Foreign Intelligence Surveillance Court

  7

  FISC Order on the Telephone Metadata Program, 2009

  Made in the USA?

  NSA Surveillance and U.S. Technology Companies

  8

  NSA MUSCULAR Program Briefing Slide

  9

  Marissa Mayer, Yahoo CEO, Statement on Protecting Customer Information

  10

  Reform Government Surveillance, Surveillance Reform Principles and Open Letter from U.S. Technology Companies

  Friend and Foe?

  U.S. Espionage against Other Countries

  11

  NSA Briefing Slides on Brazilian President Dilma Rousseff and Petrobas Oil Company

  12

  James R. Clapper, Director of National Intelligence, Statement on Allegations of Economic Espionage

  13

  Dilma Rousseff, President of Brazil, Statement to United Nations General Assembly

  14

  NSA Document on Cell Phone Surveillance of German Chancellor Angela Merkel

  15

  Wanted by the FBI

  16

  Chinese National Ministry of Defense, Statement on U.S. Indictment of Chinese Military Officers

  A Secure and Reliable Cyberspace?

  The NSA, Encryption, and Exploits

  17

  NSA’s Project BULLRUN on Defeating Encryption

  18

  NSA’s SIGINT Strategy, 2012–2016

  19

  Office of the Director of National Intelligence and James R. Clapper, Director of National Intelligence, Statements on NSA Cryptological Capabilities

  20

  NSA Briefing Slides on the QUANTUM Project

  21

  NSA Public Affairs Office, Statement in Response to Press Allegations

  Norms of Responsible Behavior in Cyberspace?

  U.S. Cyber Operations

  22

  Presidential Policy Directive 20 on U.S. Cyber Operations Policy

  “Worse than the U.S.”?

  Surveillance by the UK’s Government Communications Headquarters

  23

  GCHQ’s TEMPORA Program

  24

  NSA Memo on the TEMPORA Program

  25

  British Parliament’s Intelligence and Security Committee, Statement on the U.S. PRISM Program

  26

  European Court of Human Rights, Big Brother Watch and Others v. United Kingdom

  B. Reviews and Recommendations

  U.S. Federal Court Decisions on NSA Programs

  27

  Klayman v. Obama: Issuing a Preliminary Injunction against the Telephone Metadata Program

  28

  ACLU v. Clapper: Upholding the Legality of the Telephone Metadata Program

  29

  United States v. Mohamud: Upholding the Legality of Section 702 of FISA

  Reports from U.S. Advisory and Oversight Bodies

  30

  Report of the President’s Review Group on Intelligence and Communications Technologies, Executive Summary

  31

  Privacy and Civil Liberties Oversight Board, Report on the Telephone Metadata Program and FISC, Executive Summary

  32

  Privacy and Civil Liberties Oversight Board, Report on Section 702 of FISA, Executive Summary

  International Institutions

  33

  Edward Snowden, Testimony to the European Parliament

  34

  European Parliament, Resolution on U.S. NSA Surveillance Program

  35

  United Nations Resolution on the Right to Privacy in the Digital Age

  C. Reforms and a Reflection

  36

  President Barack Obama, Remarks on Review of Signals Intelligence

  37

  U.S. House of Representatives, USA FREEDOM Act

  38

  Edward Snowden, One Year Later

  Contributors

  Index

  Foreword

  Public disclosures of classified i
nformation have long played a role in U.S. national security politics, raising questions about secrecy in a democracy, the propriety of government actions, and the protection of civil rights. Until recent events, perhaps the most famous episode involved Daniel Ellsberg, a civilian Pentagon analyst, who released in April 1971 nearly seven thousand pages of a classified study called “History of U.S. Decision-Making Process on Viet Nam Policy” to the New York Times and the Washington Post. After the Times began publishing excerpts from what became known as the “Pentagon Papers,” the Nixon administration attempted to prevent the newspapers from publishing more classified information. The Supreme Court, in a striking decision, held that the U.S. government failed to satisfy the First Amendment’s requirements for imposing a prior restraint on freedom of speech. The government’s prosecution of Ellsberg for violating the Espionage Act also failed because evidence emerged of the government’s clandestine efforts to discredit him with documents obtained from burgling his psychiatrist’s safe.

  In June 2013, another historic episode involving disclosure of classified information began when the Guardian, a British newspaper, began publishing stories about secret documents provided to it by Edward J. Snowden, who had worked as a private contractor for the National Security Agency (NSA). To much consternation in national security circles, these stories revealed that Snowden had made available to journalists a vast trove of material pertaining to the NSA’s surveillance and espionage activities. Snowden’s actions embarrassed the U.S. government, raised fears about damage to U.S. national security, sparked controversies about the possible abuse of civil liberties in the United States, and angered citizens and leaders of foreign countries, including U.S. allies, who discovered the NSA had access to their communications.

  Snowden’s release of classified documents was of momentous significance because of the political, legal, and ethical issues it raised in the United States and around the world. Given the magnitude of the disclosures and their impact, on September 6, 2013, the Center on American and Global Security at Indiana University organized a panel of leading IU faculty to examine the historical, legal, policy, and ethical dimensions of Snowden’s actions. At the suggestion of Rebecca Tolen of Indiana University Press and under the editorship of David P. Fidler, the panel presentations were revised, expanded, and updated as essays reflecting on Snowden’s disclosures and their aftermath. These essays form part I of this book. To supplement these contributions, The Snowden Reader includes, in part II, a selection of primary documents disclosed by Snowden, released by the U.S. government or other affected actors, or produced in the wake of the controversies during the first year of this affair. The Snowden Reader combines critical analysis of major issues Snowden’s disclosures generated with primary sources at the heart of the controversies. It provides expert perspectives and access to documents that have become, in various ways, historic.

  The contributions in part I range across the spectrum of political, legal, and ethical matters affected by Snowden’s actions. In the introduction, David P. Fidler sets the stage by reviewing the Snowden disclosures and analyzing how the disclosures generated pressure on “fault lines” in U.S. national security politics, precipitating a potential historic shift in U.S. policy and law on foreign intelligence.

  In “Security and Liberty: The Imaginary Balance,” Nick Cullather focuses on the frequent use of the metaphor of “balance” between liberty and security in Snowden-related debates and provides a historical perspective on the idea of striking a balance between these objectives. What many people believe is a concept rooted in the republic’s founding is actually of more recent vintage, dating from the crafting of new U.S. national security architecture, including the NSA, in the early Cold War period. Cullather observes that the “balance” metaphor arose in the development of a system of classified information and security clearances. According to Cullather, this system has produced “a country divided between those who know and cannot speak, and those who can speak but do not know”—a division at the heart of the politics stirred up by Snowden. This division produced oversight failures within the community of people with security clearances, making leakers “an indispensable but criminalized link, mediating a vexed relationship between the public and the cleared.”

  Fred H. Cate analyzes five issues in “Edward Snowden and the NSA: Law, Policy, and Politics”—the scope of the NSA’s legal authority for collecting telephone metadata in the United States, problems with the trustworthiness of U.S. officials, the hypocrisy of the U.S. government concerning cyber espionage, the weakening of cyber security by U.S. activities, and the impact on privacy of U.S. surveillance programs. His critique of the U.S. government’s interpretation of applicable law, surveillance policies, and responses to Snowden is withering. He roots his criticisms in principles he believes are central to the nation’s politics, including the Fourth Amendment and the importance of ensuring that interpretations of law not remain secret from the American people.

  Former congressman and vice chair of the 9/11 Commission, Lee H. Hamilton, concentrates on the failure of oversight concerning the government power revealed in Snowden’s disclosures. In “From Passivity to Eternal Vigilance: NSA Surveillance and Effective Oversight of Government Power,” Hamilton discusses the expansion of government power apparent in NSA surveillance programs, criticizes the government’s record in exercising this power, and warns about potential abuse of this power. He predicts NSA surveillance programs will not undergo radical reforms, which necessitates, in his opinion, much stronger and more sustained oversight within the legislative and judicial branches as the most effective way to address “an unprecedented challenge to hold the government accountable and to constrain its reach into our lives.”

  David P. Fidler addresses “U.S. Foreign Policy and the Snowden Leaks.” He lays out U.S. foreign policy approaches to cyberspace and cyber security before Snowden, especially U.S. support for “Internet freedom,” and analyzes how these leaks have adversely affected them. The damage arises from revelations about the NSA’s surveillance activities within the United States, the NSA’s electronic surveillance targeting foreign nationals outside the United States, U.S. cyber espionage against other governments, U.S. offensive cyber operations, and NSA activities perceived to threaten global cyber security. Fidler argues the Snowden disclosures have diminished U.S. credibility in cyberspace affairs, an outcome that coincides, worryingly, with an erosion of U.S. influence in geopolitical matters in Europe, Asia, and the Middle East.

  William E. Scheuerman explores Snowden’s contributions to political thinking about civil disobedience in “Taking Snowden Seriously: Civil Disobedience for an Age of Total Surveillance.” Grounding his analysis in the theory and practice of civil disobedience, Scheuerman unpacks how “Snowden has articulated a powerful defense of why he was morally obligated to engage in politically motivated lawbreaking.” He assesses Snowden’s actions against the tradition of civil disobedience and argues that his actions hold up well under scrutiny. Scheuerman also believes Snowden has contributed to this tradition in how he linked his disobedience with matters of global concern, expressed in principles of international law.

  Part II provides a selection of primary documents associated with the Snowden disclosures. The documents are organized in three categories: Revelations and Reactions, covering documents Snowden released and responses to such disclosures from various sources, including the U.S. and foreign governments; Reviews and Recommendations, including documents that contain legal analysis, policy evaluation, and recommendations for reforms concerning issues raised by the Snowden disclosures and the reactions to them; and Reforms and a Reflection, providing documents from the executive and legislative branches proposing policy and legal reforms and Snowden’s reflection on the first anniversary of the publication of his initial disclosures.

  The purpose of part II is not to provide a comprehensive archive but to make accessible documents that reflect issues, problems, controversies, and positio
ns that arose during the first year of Snowden’s disclosures. To achieve this objective, part II includes a diversity of documents, including classified documents and briefing slides leaked by Snowden, responses from the U.S. government, opinions of federal courts, reactions of foreign leaders and governments, and activities in the United Nations. Each document is preceded by a brief note introducing it, putting it into context, and explaining its significance.

  The Snowden Reader captures the historic importance of Snowden’s actions. But everyone involved in this project has been acutely aware that the story is not finished. More disclosures from Snowden continue to be made, debates about reform continue, and what the post-Snowden landscape for surveillance, espionage, secrecy, and individual rights will look like remains uncertain. Nevertheless, The Snowden Reader makes an important contribution to our understanding of what transpired in the United States and globally after June 2013 and the enduring significance of how governments and citizens respond to the challenges now apparent.