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:
Not even the NSA knows for certain how much information Snowden actually stole. It is clear, however, that he could not possibly have read more than a fraction of this material. It is equally clear that he did not understand the significance of much of the material he did read and that the same was true for the newspapers that published it. The resulting confusion and misapprehensions that have taken hold within the media and shaped the public debate about the NSA’s bulk collection activities have not been effectively challenged or rebutted by the US and UK governments for various reasons, chief among which has been a desire not to create a damaging precedent by responding to specific allegations regarding the activities of their intelligence agencies.[59]
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:
We chose certain information we wouldn’t disclose, eg what would help other states improve their surveillance, or anything that NSA has gathered about people (that would do the NSA’s dirty work) or anything that would endanger the lives of innocent human beings. We want to publish in a way that will create the most powerful debate and greatest level of recognition.[60]
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.
61
This training slide exemplifies the law-governed approach, showing exactly what NSA officials should do if and when they come across Americans’ data: http://apps.washingtonpost.com/g/page/national/whats-a-violation/391