BYCHIP GIBBONS – https://jacobin.com/
This week 10 years ago, Edward Snowden exposed the National Security Agency’s mass surveillance of Americans. The US government responded with ruthless persecution — just one egregious example in the NSA’s long, sordid history of fiercely guarding its secrecy.
Whistleblower Edward Snowden addresses an audience at a conference in Lisbon, Portugal, 2019. (Henrique Casinhas / SOPA Images / LightRocket via Getty Images)
Ten years ago today, twenty-nine-year-old Booz Allen contractor Edward Snowden identified himself as the source of a series of bombshell revelations about the National Security Agency’s (NSA) domestic surveillance. Those revelations were the source of stories published by the Guardian and Washington Post about how the NSA obtained US persons’ telephone records directly from a major telecoms company and worked with tech companies to access online communications.
In coming forward as the whistleblower, Snowden put a tremendous target on his back, though arguably it was just a matter of time before the US government discovered his identity. Snowden left the United States before any of his disclosures were public. A decade later, he remains in exile, as the United States continues to hold out hopes of prosecuting him under the draconian, antidemocratic Espionage Act.
The US government’s relentless pursuit of Snowden is indicative of how far the national security state is willing to go to keep its secrets, and it is therefore essential to understanding the historic nature of the revelations.
The NSA is responsible for signals intelligence, interception of communications, and code-breaking. Throughout its history, it has assisted the FBI in domestic surveillance, provided intelligence used to select targets for extrajudicial executions by the US drone program, spied on US aid workers and journalists in Iraq, and spied on foreign officials in order to help the US government push the Iraq War.
Even by the daunting standards of the US national security state, the NSA is particularly zealous about its secrecy. A running joke is that the agency’s initials stand for “No Such Agency.” This secretiveness has been enabled by the Espionage Act, a ruthless willingness to destroy whistleblowers, and an utter contempt for press freedom. This thick veil of secrecy, maintained over decades, has allowed the surveillance programs Snowden exposed to function free of democratic checks — and made his revelations all the more significant.
The Snowden Revelations
Snowden’s disclosures prompted a series of journalistic revelations over the following years, with new reporting based on documents in the Snowden archive coming out as recently as October 2021. The Snowden disclosures encompassed everything from domestic surveillance to spying on allies and troubling information-sharing with foreign partners, including the abuse-ridden Israeli military organization Unit 8200.
The revelations from Snowden that made the most waves in the United States concerned domestic surveillance. The very first revelation was a classified court order from the secret Foreign Intelligence Surveillance Court granting an FBI request that Verizon be forced to turn over all US persons’ call records to the NSA. Such data did not include the contents of communications, but it did include who the calls were from, to whom they were made, and at what time and for how long. According to the court order, Verizon was to turn over this data daily, and the company was gagged by law from ever telling its customers or the public writ large about it.
The order was stunning for a number of reasons. Surveillance, including foreign surveillance, generally required an individual target. Yet here the FBI had demanded, and the NSA had received, a legal mandate that Verizon turn over bulk information on millions of people with no identifiable target. The Foreign Intelligence Surveillance Court, like the NSA, is supposed to be focused on foreign intelligence. The order included purely domestic calls, however, and excluded foreign ones.
Finally, the order was based on a secret interpretation of a since expired provision of the USA Patriot Act. The provision had garnered significant controversy when the act was proposed, as civil libertarians believed it would be used to track library book checkouts. Despite this fierce opposition, no one believed it would be used for the bulk collection of US metadata. Even some of the original proponents of the Patriot Act were stunned.
Almost immediately after the metadata collection program was brought to light, another NSA program, called PRISM, was revealed. Unlike the metadata collection program, which did not involve the collection of the contents of communications, under PRISM, the NSA worked with private companies like Microsoft, Google, Yahoo, and AOL to access online communications. Although the NSA stored the communications, it was the FBI that made the request to the provider.
PRISM is an example of what has been called “downstream” collection. This occurs when the NSA goes directly to a provider like Google and requests information. In addition to PRISM, the NSA engages in so-called upstream surveillance. Under this surveillance, the NSA taps directly into the backbone of the internet and copies all communications that pass through.
Both PRISM and upstream collection are possible thanks to §702 of the FISA Amendments Act of 2008, which is due to expire at the end of this year. In theory, under §702, the NSA is not permitted to intentionally intercept the communications of US persons. Yet while in the past the NSA was supposed to destroy such communications “incidentally” collected, it now stores them. And while the FBI and other law enforcement agencies would normally need a warrant to intentionally gain access to such information, they claimed that a “backdoor search” exception to the Fourth Amendment allowed them to examine the information.
FBI backdoor searchers have been the subject of perennial controversy. The FBI has used the foreign intelligence database to search for information on subjects of background searches, victims of crime, Black Lives Matter protesters, January 6 participants, and even a sitting member of Congress. Despite these controversies, Congress has repeatedly failed to enact a warrant requirement for searches.
“No Such Agency”
An understanding of the NSA’s history is required to fully appreciate the significance of Snowden’s revelations. While the NSA was created in 1952, its existence wasn’t formally acknowledged until 1975. Its unveiling to the American public was part of a landmark Senate investigation, known as the Church Committee, into the abuses of US intelligence agencies.
Even as the NSA has become more well known, it has fiercely guarded its secrecy, aided by a tremendous weapon: the Espionage Act.
After the Church Committee’s inquiry, the Federal Communications Commission would attempt its own investigation of the NSA’s interception of US communications. Executives of communications carriers who had participated in the program refused to testify, claiming their participation in the investigation would violate the Espionage Act.
The NSA also used the Espionage Act to try to prevent the 1982 publishing of The Puzzle Palace by James Bamford. There is perhaps no greater expert on the NSA than Bamford, who between 1982 and 2008 wrote a trilogy of books on the agency. In 2014, Bamford revealed that he had secretly testified before an executive session of the Church Committee. As a naval reservist, he had worked at an NSA interception post and realized the agency was lying to the Church Committee.
When writing the Puzzle Palace, the first book on the NSA, Bamford obtained a Department of Justice (DOJ) report on NSA criminality through a Freedom of Information Act (FOIA) request. Although the report was lawfully given to Bamford by the DOJ, the NSA insisted the DOJ had erred in doing so, making Bamford’s possession of it illegal. It wanted Bamford to give the documents back or be indicted under the Espionage Act.
Its grievances got it nowhere until Ronald Reagan was elected on a platform calling for the evisceration of FOIA and the rollback of checks on the national security state. The NSA again insisted it was illegal for Bamford to possess or write about the information in question. Under an executive order of Jimmy Carter, declassified information could not be reclassified; Reagan reversed course, but the new rules could not be retroactively applied to Bamford.
Even by the standards of the Reagan era, the NSA’s desire to see Bamford prosecuted was absurd. But the Espionage Act would remain a powerful tool in silencing reporting on the NSA. At least five government insiders indicted under the Espionage Act for giving information to the media were indicted, at least in part, for sharing documents that originated (or likely originated) with the NSA.
Even when the agency doesn’t win criminal charges against whistleblowers, it finds other ways to terrorize them. In 2004, New York Times reporters James Risen and Eric Lichtblau, thanks to a tip-off from Justice Department attorney Thomas Thamm, learned about a secret George W. Bush–era spy program. But the Bush administration met with the New York Times and convinced them to suppress Risen’s story. When the Times learned Risen was going to publish the story in a book, they reversed course due to fear of being scooped by their own reporter. The story won a Pulitzer. The Bush administration was livid and threatened Risen with the Espionage Act. Allegedly, Dick Cheney personally wanted to see him in jail.
The administration did not go after the reporter, but it did begin a hunt for his source. The FBI raided the homes of numerous NSA whistleblowers and a former congressional staffer, all of whom had raised serious concerns about the NSA’s conduct. They began to hone in on Thomas Drake, who had repeatedly raised concerns about the NSA’s conduct through internal channels, making him a perfect scapegoat for the witch hunt.
Although Drake was not the source for the New York Times story, he had shared unclassified information about waste, fraud, and abuse with a Baltimore Sun reporter. Half a decade later, the Obama administration indicted Drake under the Espionage Act for unauthorized retention of national defense information. One of the documents Drake was charged with retaining was marked unclassified, but the government argued that this was a mistake and that Drake should have known it. Barack Obama personally defended the government’s persecution of Drake to transparency groups, but the government’s Espionage Act case against Drake completely fell apart before it could go to trial. Nonetheless, Drake went bankrupt paying his legal defense.
Under this cloak of secrecy, the NSA has built a powerful spying apparatus. The programs revealed by Snowden were just particularly egregious examples of the spying that the agency had been carrying out on Americans for decades.
A Disgraceful Record
In 1952, President Harry S. Truman created the NSA via a top-secret presidential directive. The purpose of the NSA was to carry out signals intelligence, which includes the interception of communications. This mission has led to the creation of powerful electronic eavesdropping capability that is incredibly dangerous if left unchecked. As a foreign intelligence agency, NSA internal policy initially limited the agency to only collecting foreign communications. While this meant the NSA could not intercept a purely domestic communication, it did not apply this prohibition to communications between a US citizen and an overseas party.
Whereas the CIA and the FBI had a combative bureaucratic rivalry, the FBI enjoyed a very different relationship with the NSA. J. Edgar Hoover and the FBI would also be instrumental in the creation of the first NSA watch list of US citizens. After the Cuban Revolution but before the US embargo, Hoover demanded information about Cuba’s economy. He turned to the NSA to intercept communications of those US companies still doing business in Cuba. After an even greater rupture between the United States and Cuba, such surveillance lost its original purpose. But the FBI began forwarding the NSA the names of US citizens who traveled to Cuba, US citizens living in Cuba, and suspected Cuban espionage agents, whose communications the FBI wanted the NSA to intercept.
This watch list did not remain confined to the US obsession with Cuba. In 1967, the FBI, the US Attorney General, and the Department of the Army jointly formed a new unit on “civil disorder.” A key goal of this unit was proving that civil rights and antiwar protests were not the outgrowth of US citizens’ abhorrence at racism or the Vietnam War but the product of foreign influence.
That year, US Army assistant chief of staff for intelligence General William Yarborough requested the NSA turn over any information that it had obtained showing foreign influence on Black Power groups and “peace groups.” Yarborough was not the only one making requests of the NSA. As part of this program, Hoover supplied the NSA with the names of US citizens and organizations to put on the watch list. In a 1971 letter to the NSA director, Hoover asked for help proving foreign influence of “Racial Extremists.” Subsequent letters, in which Hoover turned over the names of specific black activists and organizations to be put on the watch list, bore subject names like “Black Nationalist-Racial Matters.” A separate NSA program intercepted the communications of those believed to be in narcotics trafficking.
The most shocking NSA program during this time was Project SHAMROCK. Beginning in 1945, the NSA struck an agreement with the three major telegram companies at the time. Two of these companies provided the NSA with copies of nearly every international telegram. A third company provided the NSA only with select telegrams. By the 1970s, NSA analysts were reading 150,000 telegrams every month. A Senate investigation dubbed SHAMROCK “the largest governmental interception program affecting Americans ever undertaken.”
Attempts at Reform
The post-Watergate fallout and exposure of the national security state meant new restrictions to safeguard civil liberties were put in place. Whereas “national security” surveillance, wiretaps, and break-ins had previously taken place without court orders, Congress enacted the Foreign Intelligence Surveillance Act to create a secret court to issue wiretaps for foreign intelligence. (In 1995, the court would be granted the right to authorize physical searches as well, although such physical searches had already been resumed sans warrants under a Reagan-era executive order.) A wall was put up between domestic law enforcement and foreign intelligence.
The legacy of these reforms is mixed. There is some evidence that, with the NSA, the reforms made some difference. For example, when the FBI was investigating Reverend Jesse Jackson under the Foreign Agents Registration Act, it asked the NSA for information on Jackson. The issue escalated to the point where the attorney general personally tried to intercede on the FBI’s behalf. Yet the NSA’s general counsel insisted it was prohibited from cooperating, and the agency stood firm; the counsel’s reasoning was that the information sought by the FBI was for a criminal investigation and not a foreign intelligence investigation.
A 1995 article in the Baltimore Sun covered a number of situations in which US citizens had been caught in the NSA’s net. The article detailed how NSA operatives trained in wiretapping by eavesdropping on calls in the Baltimore-Washington area. One unnamed former NSA employee described how, during training, “we’d listen to senators, representatives, government agencies, housewives talking to their lovers.”
Still, the worst was yet to come.
As soon as the reforms of the ’70s were put in place, the Right was arguing for them to be rolled back in the name of fighting terrorism. Although it had managed to take shots at the reforms over the next couple decades, the terrorist attacks of September 11, 2001, created a political climate in which it could extract maximum concessions.
The most infamous counterreforms came with the passage of the USA Patriot Act, which expanded the scope of surveillance authorizable under FISA and other foreign surveillance laws. Yet weeks before the Patriot Act passed, George W. Bush authorized a secret surveillance program. As part of this program, the NSA was authorized to spy on US citizens’ phone conversations without a warrant. The program was based on an expansive read of the president’s inherent executive authority. While Congress likely would have rubber-stamped any spying the Bush administration wanted, the assertion of executive authority was often an end in itself for hard-liners ready to avenge post-Watergate restrictions.
Polling showed a solid percentage of Americans supported impeaching Bush if he illegally wiretapped US citizens, which he did. But when the Democrats took control of both chambers of Congress in 2006, they took impeaching one of the most unpopular and criminal presidents in US history off the table. Instead, they passed the FISA Amendments Act of 2008, which expanded surveillance without judicial oversight and provided immunity to telecoms companies that participated in Bush’s illegal surveillance. In doing so, they set the stage for the surveillance Snowden would end up exposing.
After the Revelations
Snowden has escaped prosecution under the Espionage Act by seeking refuge outside the United States. He was acutely aware of the fate suffered by Thomas Drake, which influenced his decision to go abroad. After coming forward as the whistleblower behind some of the most significant revelations about domestic surveillance in this century, WikiLeaks came to Snowden’s aid in helping him seek asylum.
Although Snowden ended up in Russia, that was not his intent. Former deputy NSA director Chris Inglis stated that Snowden’s intention was to go to Latin America, noting that “he worked very hard, and his lawyers worked very hard,” to get him there. “I can’t imagine his plan was to arrive in Moscow and be in virtual isolation,” Inglis has said.
There are no direct flights from Hong Kong to Latin America; during a layover in Moscow, the United States canceled his passport and put pressure on Cuba not to allow Snowden to travel through Havana. (A number of journalists, believing Cuba was his next destination, boarded a plane to Havana.) Then vice president Joe Biden personally called the Ecuadorian president, Rafael Correa, who had granted asylum to Julian Assange, to pressure him against doing the same for Snowden. Although Ecuador had granted Snowden a safe passage document, they then revoked it, saying it was a mistake.
Assange believed the US government was listening to his communications, so he falsely stated on open lines to lawyers in the United States that Snowden would be traveling to Bolivia with then president Evo Morales. Proving Assange right, the United States and its European vassals, in a dramatic act of imperialism, forced Morales’s plane from the air.
Snowden had escaped from the clutches of the US national security state, but it had successfully trapped him in Russia.
The dramatic and vindictive reaction to Snowden is indicative of how far the US government will go to keep the public in the dark about the machinations of the national security state. This secrecy is designed to protect an illegal and far-reaching program of surveillance — one that the NSA has been nurturing for decades.