Edward Snowden personally addresses “direct access”, why he went to Hong Kong, and other questions in live Q&A

pic_giant_061313_SM_Edward-Snowden.jpgEdward Snowden took part in a live question and answer session this afternoon on The Guardian‘s website, with questioning opened by several of the journalists that broke the NSA spying news.

Many of the issues that have been used to change the conversation from the government’s controversial and possibly unconstitutional surveillance programs to quibbles over minor details or entertainment narratives (Snowden lied about his salary; what did his girlfriend know and when did she know it?) were addressed by Snowden himself. Not to mention the petty, pointless personal attacks that Snowden and journalists at The Guardian have had to put up with.

Many questions could only be answered by Edward Snowden himself, such as why he left the United States and how he ended up Hong Kong when his ultimate destination was Iceland.

I’ll provide the full text of the Q&A for anyone that would prefer to make up their own minds on what all of this means, without any analysis. I will not cover every single question and answer. You can see the full transcript by visiting this link.

Much debate has taken place over why Edward Snowden left the United States to begin with, and how he ended up in Hong Kong, a country with a complex socio-political system which finds itself officially a part of China, but which maintains an independent government and legal system under a “one country, two governments” policy.

Initial reports focused on a legal blackhole that’s developed in Hong Kong after the country’s courts required the government to have a system of its own to deal with claims of persecution in extradition cases. The government doesn’t have any such system in place and it could take years to create one, if it ever does. A claim by Snowden of persecution could prevent the United States from successfully seeking his extradition for the foreseeable future, a delaying tactic not available to him practically anywhere else in the world that isn’t a third world country.

When asked about all of that, Snowden referred to the heightened surveillance that NSA employees themselves are subjected to, as an impediment to him simply hopping on a plane for Iceland, and hinted that timing was not entirely under his control.

New recent disclosures that the United States has been hacking Hong Kong private sector computer systems revealed for the first time that Snowden hadn’t simply dumped his documents on The Guardian and then went into hiding. He traveled to Hong Kong to take advantage of delays in extradition proceedings there so that he could continue his work of disclosing what he believes are illegal (globally) and unconstitutional programs to the public at large. Immediately entering Iceland might have also meant losing an extradition case before being granted asylum, if that happens at all.

We previously learned that the NSA was searching for Snowden before before The Guardian and the Washington Post published their first stories, due to Snowden’s absence from Booz Allen, the massive and powerful defense contractor where he last worked.

As for why Snowden left to begin with, I’ll let him speak for himself:

“The US Government, just as they did with other whistleblowers, immediately and predictably destroyed any possibility of a fair trial at home, openly declaring me guilty of treason and that the disclosure of secret, criminal, and even unconstitutional acts is an unforgivable crime. That’s not justice, and it would be foolish to volunteer yourself to it if you can do more good outside of prison than in it.”

Here are a few statements made by some of the most powerful lawmakers in the United States, to give you some small idea of how impartial and dedicated to due process and ‘innocent until proven guilty’ these people are:

I hope we follow Mr. Snowden to the ends of the earth to bring him to justice.” — Senator Lindsey Graham, member of House Committee on the Judiciary (97-02), current member on Senate Committee on Homeland Security.

I think he’s a traitor,” “I think he has committed crimes,” “I think it’s one of the worst occasions in my memory of somebody with access to classified information doing enormous damage to the national security interests of the United States.” — Dick Cheney, former Vice President of the United States.

What he did was an act of treason.” — Senator Dianne Feinstein, Chairwoman of the Senate Select Committee on Intelligence, member of Committee on the Judiciary, Subcommittee on Terrorist and Homeland Security.

He’s a traitor.” — John Boehner, Speaker of the House.

I hope that he will be prosecuted to the fullest extent of the law.” — Mitch McConnell, Senate Minority Leader

I think that he should be prosecuted.” — Nancy Pelosi, House Minority Leader.

I think he’s a traitor. He has leaked classified information about intelligence gathering techniques that the United States government has been involved in which have been authorized and overseen by the US government. I don’t know any other word to describe Mr. Snowden.” — John Cornyn, Senate Minority Whip.

We’re a nation of laws“, so prosecute Edward Snowden for revealing possibly unconstitutional and illegal spying programs. — John Thune, Senate Republican Conference Chair

Many other Senators have supported the whistle blower, but most are powerless rank-and-file members, while those powerful politicians proclaiming Edward Snowden’s guilt without so much as a trial or being charged with any crime were privy to the existence of these controversial programs through classified briefings from the executive branch.

Ed Snowden went out of his way to comment on the accusation that his telling the South China Morning News (a Hong Kong paper, not Chinese, which has has been repeatedly and purposefully misreported — this paper is independent and not state owned) that the United States has been hacking private sector networks in Hong Kong was done to intentionally harm the US:

“I did not reveal any US operations against legitimate military targets. I pointed out where the NSA has hacked civilian infrastructure such as universities, hospitals, and private businesses because it is dangerous. … when NSA makes a technical mistake during an exploitation operation, critical systems crash.”

Already the mainstream media has ignored the larger story — that the United States is hacking into private networks in foreign countries without informing foreign governments, and allegedly causing significant damage to critical systems — in favor of refocusing the narrative back on Snowden himself.

Before I even began this story, CNN pundits were debating what right Snowden has to decide for the government what is and is not a legitimate military target, while ignoring the real story about US cyber-attacks that likely violate international law and the sovereignty of foreign nations, which is an act of war.

It isn’t wrong to ask who Snowden is to put himself in such a position, but it’s both stupid and craven not to ask the same question about the government itself. Who is the United States to unilaterally attack the computer networks of foreign businesses and governments of neutral and even allied nations? Under what laws does the American government claim to have such power? What criteria does the United States use to determine what is and is not a legitimate military target? What safeguards are there to protect the privacy of foreigners and citizens living aboard in these hacking attacks and spying?

All good questions, and the only answers the public seems to be getting are coming from whistle blowers like Thomas Drake, Bradley Manning, and Edward Snowden.

Another question, utterly irrelevant to the global debate on government secrecy and surveillance, involved how much money Snowden made while working for defense contractor Booz Allen. Snowden’s critics have spent countless hours searching for small misstatements by Snowden or errors in reporting by The Guardian and the Washington Post in order to discredit Snowden and/or defend the surveillance state, while spending very little time discussing and analyzing the legality or even efficacy of the programs that he revealed.

The government has yet to cite a single example of these programs, some of them nearly a decade old, having stopped or contributed to the prevention of a terrorist attack anywhere in the world.

It’s good that someone asked about this to get it out of the way, but why does it matter? Even if Snowden lied about how much money he made at his last job, does that mean that the NSA’s dragnet collecting data on every phone call made in the United States since 2006 is magically constitutional and not an excessive invasion of privacy? Or if he told the truth, does that mean the PRISM Google/Facebook spying program is magically illegal?

For what it’s worth, Snowden’s answer is that not every answer he gave during interviews was recorded, and that the $200,000 figure was a high point for what he’s made working in the defense industry; he never claimed that he made $200,000/year from Booz Allen.

* * *

A subject of lengthy debate has been what the precise meaning of “direct access” means for the PRISM program. Some people interpreted it to mean that the NSA had direct access to the networks and servers of Google, Facebook, Microsoft, and other companies, a claim immediately denied by those same companies. A meta-debate sprung up when other people noticed how those denials didn’t preclude involvement in the PRISM program (“we’ve never heard that name”, versus “we’re not involved in it”) or nearly-direct access to user data.

I believe it was Marc Ambinder who quickly speculated that the NSA was likely to have a system in place whereby they could request data from a company like Google without court review, and have that data “pushed” to NSA-controlled servers for immediate analysis and storage for an undetermined length of time. Glenn Greenwald also noted in his own defense that the leaked PRISM slides themselves had the words “direct access” in them.

A slide released after the initial stories says under the headline “PRISM”: “Collection directly from the servers of these U.S. Service Providers: Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple” in addition to “Collection of communications on fiber cables and infrastructure as data flows past”.

The latter fiber optic taps were revealed as being run by the NSA in 2005 by the New York Times, a program so widely understood to be illegal that Congress had to pass multiple laws in order to retroactively make them legal and immunize AT&T and the nation’s largest telecommunications companies from civil liability for violating federal privacy laws.

The Washington Post also reported that the NSA had “direct access” to service providers and has not retracted that claim as of this day.

Snowden’s answer about the precise meaning of “direct access” was a little hedged, saying that there’s more coming (presumably from The Guardian) on this topic, and that the restrictions on accessing information is “policy based, not technically based, and can change at any time.”

That’s not much to go on, but it does fill in a few more blanks. Members of Congress who are troubled by how far these surveillance programs have gone have repeatedly said after receiving classified briefings that what the public knows is only the tip of the iceberg. If the NSA has already accessed and stored the date and phone number of every phone call in the United States since 2006, and that’s allegedly about 1% of what’s going on, it’s not impossible (but still just speculation) that the government may be getting closed to intercepting virtually every piece of private information in the country.

If there’s even a small chance that this is true, it makes leaks such as this even more valuable.

Another question was asked about “direct access” and the ability (or rather the activity) of NSA listening to the contents of phone calls without warrants. One of the reasons that the Protect America Act of 2007 was so controversial (to civil liberties advocates, not so much with the press) were loopholes that it created allowing the US government to spy on its own citizens.

FAA actually removed the requirement for a warrant from a court and replaced it with a system of ” internal controls” in certain circumstances. Meaning the NSA essentially decides for itself if it has the legal justification to conduct surveillance, with no oversight whatsoever. FAA also removed the previous warrant requirement for any American who is communicating with virtually any other person outside the country.

Both provisions are almost certainly unconstitutional, but haven’t been challenged in court precisely because the government wraps these programs in claims of state secrets and national security, and screams “terrorists!’ anytime they are challenged publicly, and then viciously prosecutes anyone who attempts to inform the public about them from the inside.

Even when the NSA decides to go to the ultra-secret Foreign Intelligence Surveillance Court (FISC) for a warrant, FISC didn’t turn down a single application in 2010 and reportedly approves over 99% of applications. It was designed by Congress to have such low standards that it’s been rigged from the very beginning to say yes to everything that the government wants.

FISA judges don’t even go through the normal confirmation process as required by the Constitution. They are appointed unilaterally by the Chief Justice of the Supreme Court, which in recent decades meant conservative Justice William Rehnquist and conservative justice John Roberts. While I don’t mean to make this partisan, it’s no big secret that conservative judges tend to be pro-government when it comes to law enforcement, ensuring that judges appointed to the FISC are already leaning towards giving the national security state everything it wants before even hearing an argument. And because proceedings are so secret, arguments are always one-sided. The government asks for what it wants and no one is allowed to argue against it because allowing anyone to know about the application would damage national security.

These are just some of the things that Snowden is talking about when he says the NSA has direct access to anything it wants. We live in a time when National Security Letters still exist, a government administrative order with the power of a warrant that doesn’t come from a court or a judge, which compels the surrender of telephone, credit card, library, Internet, and bank records in such a secret manner than until recently, telling your lawyer that you got one was a crime unto itself.

NSLs have become one of the least controversial facets of the law and what the government has done in the past 12 years.

* * *

Glenn Greenwald asked a followup to the question about NSA access to the content of communications. Snowden answered, “If I target for example an email address, for example under FAA 702, and that email address sent something to you, Joe America, the analyst gets it. All of it. IPs, raw data, content, headers, attachments, everything. And it gets saved for a very long time – and can be extended further with waivers rather than warrants.”

This is the area I was just talking about, where the FISA Amendments Act of 2008 loosened rules involving surveillance of American citizens who have in some way been connected to a foreign suspect. It’s up to the NSA to make these determinations, no matter how strong or flimsy that connection might be. The FAA and PAA took that decision out of the hands of the FISA court which approves everything anyway because apparently a 99% approval rate just wasn’t enough for the government.

It used to be that any surveillance involving an American (even overseas) had to go through the FISC at the very least. That was watered down after 9/11 to any surveillance involving an American in the United States, which was watered down again in 2007 and 2008 so that the NSA doesn’t have seek permission from any court anyone so long as at least one target is not an American.

Whether you think this scenario is likely or not, all the NSA has to do under current law to read your email and listen to your telephone calls is link those communications to a foreigner, and then accuse that foreigner of wrong-doing. Because the NSA oversees itself in this area thanks to the PAA, that link can be ridiculous and an obvious lie — it doesn’t matter. No courts have the authority to check and balance that power anymore.

* * *

Much has been made about denials from Facebook and Google that the NSA has direct access to their networks (which seems redundant given that the NSA had direct access to Internet backbones via AT&T in 2005) and that is a legitimate and healthy debate to have, so long as it’s not to the exclusion of everything else.

What has gone unsaid, mostly, is that these programs are so secret that these companies would be prosecuted just as Edward Snowden has for acknowledging their existence, which is a prerequisite to admitting compliance. If PRISM exists, is functioning as Edward Snowden says it does and the NSA slides indicate that they do, would anyone expect corporate giants like Microsoft and Google to out a classified program — opening themselves to criminal prosecution — just to take consumer heat off themselves? Why yes, we are in fact helping the government spy on you with possibly illegal programs!

Is that at all likely, given that these companies “are legally compelled to comply and maintain their silence in regard to specifics of the program”? Remember, for most of the past 12 years it has been a felony to reveal that you even received a National Security Letter request for data, even to your own lawyer. And NSLs don’t go through any court. The government can and does still issue them at-will.

* * *

When asked if Snowden stands by his claim that he could wiretap anyone in the country from his desk, as an IT specialist and not even an intelligence analyst, he did just that. A bit of it is technical and I don’t understand all of it, but my interpretation (please, feel free to come to your own conclusions) is the repeated claim that most of NSAs limitations on accessing purely domestic communications are policy-based.

That means it’s not a court that stops the NSA from spying on you, or technological restraints like special wiretapping systems with privileged physical access. Instead, it appears that the NSA simply trawls as much information as it possibly can from all the sources it can manage no matter where, no matter who, no matter why, and collects all of it including content not just metadata, into massive databases. And the only barrier stopping any NSA employee — or private contractor — from searching through it all are internal policies.

If Snowden’s bosses at Booz Allen wanted to search through these databases for information on one of their defense contractor competitors, or wiretap a judge hearing a case involving Booz Allen, their employees could do it. The barriers that exist if my understanding is right, are akin to corporate policies. All the data is already there and the NSA has already confirmed some of that when they argued that collecting billions of phone records en masse is completely legal because they need a court order to search the records, not to take them from the telecommunications companies and store them in aggregate.

The NSA is collecting massive amounts of content in addition to metadata, which it believes is perfectly legal, and then using extremely loose surveillance laws passed in the last several years to search all of that data with virtually no oversight from judges or even Congress.

Another less discussed point made by Snowden in his answer is that just because people outside the United States being surveilled by the National Security Agency aren’t Americans, doesn’t mean that they don’t have privacy rights of their own. Nor does it magically make what the US government is doing be legal, which is why Germany’s Chancellor has pledged to press President Obama for answers about how it is spying on her citizens when they meet face-to-face this week in Washington.

* * *

Fear mongering over what sensitive information might be shared with China — which is not the same thing as sharing information with Hong Kong or its press — has been overwhelming. I’ll let Edward Snowden speak for himself on what he has done and plans to do in this area:

“This is a predictable smear that I anticipated before going public, as the US media has a knee-jerk “RED CHINA!” reaction to anything involving HK or the PRC, and is intended to distract from the issue of US government misconduct. Ask yourself: if I were a Chinese spy, why wouldn’t I have flown directly into Beijing? I could be living in a palace petting a phoenix by now.”

You can decide for yourself if that answer satisfies your concerns.

Snowden later answered this question more directly: “I have had no contact with the Chinese government. Just like with the Guardian and the Washington Post, I only work with journalists.”

* * *

One reader asked Snowden to respond to US government accusations that publicly revealing these NSA programs has made The Terrorists better able to avoid surveillance. You can read Snowden’s answer to that here, or read my own story that debunked an anonymous government claim that PRISM helped to stop terrorists attacks planned by Najibullah Zazi. That claim turned out to be a lie, and thus far, not one single terrorist plot of any kind has been revealed by the Obama administration that was stopped entirely or even in part by any of these controversial programs, some of which have been running since 2006.

* * *

Because motive is such a uniquely personal thing, I’m going to reprint without edits what Edward Snowden thinks of NSA whistle blower Thomas Drake, Bradley Manning, and Wikileaks:

Binney, Drake, Kiriakou, and Manning are all examples of how overly-harsh responses to public-interest whistle-blowing only escalate the scale, scope, and skill involved in future disclosures. Citizens with a conscience are not going to ignore wrong-doing simply because they’ll be destroyed for it: the conscience forbids it. Instead, these draconian responses simply build better whistleblowers. If the Obama administration responds with an even harsher hand against me, they can be assured that they’ll soon find themselves facing an equally harsh public response.

This disclosure provides Obama an opportunity to appeal for a return to sanity, constitutional policy, and the rule of law rather than men. He still has plenty of time to go down in history as the President who looked into the abyss and stepped back, rather than leaping forward into it. I would advise he personally call for a special committee to review these interception programs, repudiate the dangerous “State Secrets” privilege, and, upon preparing to leave office, begin a tradition for all Presidents forthwith to demonstrate their respect for the law by appointing a special investigator to review the policies of their years in office for any wrongdoing. There can be no faith in government if our highest offices are excused from scrutiny – they should be setting the example of transparency.”

John Kiriakou was prosecuted for revealing that the United States had waterboarded suspected terrorists, a torture method that the US had previously argued was a war crime when committed by Japanese soldiers during the last world war.

Thomas Drake witnessed what he believed were crimes committed by the NSA worse than Watergate and tried to bring them to light through the inspector general’s office, the Chairman of the House Permanent Select Committee on Intelligence, the Chief Justice of the Supreme Court, and eventually Vice President Dick Cheney.

Drake only went to the press after being ignored by all of those people, which directly addresses the nonsense argument that Ed Snowden should have “gone through official channels” to reveal government wrong-doing. Thomas Drake did that and was ignored at every possible level and then prosecuted as a criminal when he went public. Many of the same people that Snowden might have approached, including many high-level officials in Congress, have already called for him to be prosecuted for treason — a crime still punishable by execution — while strongly defending the programs that he sought to reveal as wrong-doing.

* * *

There were more questions and answers and I encourage you to read the full transcript, and with the information I’ve given you and the arguments I’ve made, to consider what is the true and what is important for yourself.

Before wrapping up, I’d like to quote this passage that I wrote a few days ago about the real consequences of these leaks. Many people who don’t care about what the NSA is doing — it is certainly their right not to care — have argued that all of this will blow over and be forgotten within a week or two.

They should consider all the things that have already happened because of what Edward Snowden did, and what might happen in the future as more cracks appear in the wall of secrecy surrounding the United States government that is designed by its very nature to allow little to no privacy for its citizens while preserving total secrecy for itself under the threat of prison and even death for those who dare challenge it:

The Obama administration almost immediately began briefing members of Congress on these programs and allegedly many others run by the National Security Agency, rank-and-file members that aren’t normally privy to intelligence briefings like these that are normally reserved for party leaders.

Member states of the European Union, which has much stronger privacy laws than the United States does, demanded written assurance from President Obama that their citizens were not being spied on by the NSA and even demanded that EU citizens be given a way to know if they had been spied on. German Chancellor Angela Merkel plans to question Obama in person next week.

Senator Rand Paul promised to file a class action lawsuit against the government on behalf of citizens who he believes have been unconstitutionally spied on, and the American Civil Liberties Union has already filed a similar lawsuit which experts say could break new legal ground because these programs being public knowledge will prevent the government from getting the lawsuit dismissed out of hand based on claims of state secrets.

A bipartisan group of senators have proposed new legislation that would force the government to declassify a huge number of opinions from the ultra-secret Foreign Intelligence Surveillance Court, which has been repeatedly and consistently decried as a rubber stamp court for virtually never denying a government spying request.

Major Internet companies like Google and Facebook have pledged to begin fighting the government to allow them to release more information on the secret requests they receive, and several have simply done so with or without government permission.

Perhaps most consequential of all these things, second only to the possibility of a court finally deciding of these programs are legal, is the accusation from members of Congress that Director of National Intelligence, James Clapper, may have perjured himself while testifying to Congress.

Does that sound like nothing consequential? Does it sound like everybody is going to forget what happened in a couple of weeks? None of those things would have happened without these intelligence leaks.

For the first time in 12 years, there is a good chance that at least one of the NSA’s secret domestic spying programs will have its constitutionality be questioned in a court of law. The Bush and Obama administrations have had every lawsuit against such programs thrown out merely on the word of the administration that trying to defend the legality of such programs would mean acknowledging their existence, which itself would breach national security. That argument will almost certainly make an appearance again, but it may not be accepted precisely because existence of these programs is a public fact made possible by the leaks of Edward Snowden.

Foreign governments whose citizens may have been spied on by the NSA are outraged, forcing our government to answer tough questions and possibly make privacy reforms in order to maintain good relations with what are supposed to be our allies.

Several new pieces of legislation have been proposed in response to these leaks, which includes a hilarious bill proposed by national security state defender Senator Dianne Feinstein that would limit private contractor access to classified information which would unintentionally do more to curtail the surveillance state than anything proposed by civil liberties defenders.

And does anyone honestly believe that Google, Facebook, and Microsoft would have out of the goodness of their hearts, released information about secret government requests for personal information on American citizens — including email, photos, and chat conversations — had their hand not been forced by these leaks?

Everything I’ve just described was set in motion within the past week by the whistle blowing efforts of Edward Snowden.

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