The Damage Done to NSA’s Global SIGINT Capabilities Resulting From Snowden Disclosures

January 12, 2014

Snowden: the case for prosecution: Treachery and its consequences

The Economist, January 10, 2014

I MUST respectfully disagree with my colleague W.W.; Edward Snowden deserves neither applause nor clemency. As Josh Barro rightly argues in Business Insider:

For America’s intelligence and diplomatic apparatus to work, it needs to be able to do secret things whose disclosure would be damaging to American interests. And it needs to be able to bind government employees and contractors to not to make those disclosures. Snowden broke his commitment to safeguard a wide variety of secrets, many of whose disclosure was in no apparent public interest.

Mr Snowden has done some good. He has highlighted the NSA’s sloppy security procedures and the danger of “contractorisation”. He has stoked a necessary debate about the nature of meta-data and has shown that using legal means to arm-twist American internet and technology companies into cooperating with the NSA can backfire.

But these benefits are far outweighed by the harm. Here are a few examples of such disclosures:

how the NSA intercepts e-mails, phone calls and radio transmissions of Taliban fighters in Pakistan; an operation to gauge the loyalties of CIA recruits in Pakistan;

e-mail intercepts regarding Iran;

global tracking of cell-phone calls to (as the Washington Post naively put it) “look for unknown associates of known intelligence targets by tracking people whose movements intersect.”

To the South China Morning Post Snowden revealed details of how the NSA hacks into computers and mobile phones in China and Hong Kong.

Indeed, many of the disclosures seem directly aimed at damaging American diplomacy, or harming American allies. One bunch of leaks concerned Swedish intelligence co-operation with America against Russia. Another concerned similar operations involving Norway. Nobody has explained the public interest in revealing how democracies spy on dictatorships. The answer—as far as can be discerned from Glenn Greenwald, the American lawyer in Brazil who is the custodian of at least some of the cache of stolen material, and the most articulate public defender of their release—is that it is inherently shameful and scandalous for any country to have security, defence or intelligence links with Britain and America.

That reflects a nihilistic anti-Western view which Mr Greenwald and others are entitled to hold. But it is not one which attracts much support in Britain or America—the countries whose secrets have been stolen. Political parties which demand the dismantling of all security and intelligence agencies do not fare well at the polls.

W.W. asks this: “Who decided that the NSA and a secret court should be trusted to interpret the meaning of the fourth amendment in a context shielded from either public scrutiny or congressional or judicial oversight?”

The answer is Congress. The NSA is established and governed by law. It is subject to congressional oversight and judicial scrutiny, and receives instructions from an elected government. Much of that happens in secret. That is because the NSA’s operations are secret. Some people may well feel that this system of oversight could be tougher (though others might think it would work better if it were less cumbersome and restrictive). Congress could decide to have a less effective NSA and more open scrutiny. So far it has not. That is the way democracies work. The leaked documents show no sign within the NSA of a contempt for the constitutional process and the rule of law: on the contrary, they show an organisation which takes its legal constraints with commendable seriousness.

The real question in the Snowden affair is indeed authority. But it is not the one that the Snowdenistas like to pose. Who gives Snowden and his media allies the right to decide which secrets to leak, which careers to end, which costly intelligence programmes to ruin, and which clues to give to terrorists, gangsters and foreign spies about the way governments try to monitor them? 

It is a useful question to ask what Mr Snowden should have done to have been judged a genuine whistle-blower. One condition is that he should have come across activity that was actually illegal (he didn’t: he saw stuff he didn’t like, and worried about where it was heading). He should have exhausted all available legal and constitutional options (he didn’t). The information he published should have been collected and distributed in a way that did the least damage for the desired effect (it wasn’t; he stole a colossal number of documents, mostly quite unrelated to the points he wanted to make, and their release is accompanied by colossal spin and considerable inaccuracy). His fugitive status in Russia (via Hong Kong) could hardly be designed to cause more alarm among those who care about American and allied secrets.

In short, neither the problems he has uncovered, nor the means he has chosen, give Mr Snowden or his defenders any reason to expect that their law-breaking should be treated mildly.