Don't Blame Edward Snowden for the Paris Attacks

By Amy Davidson, The New Yorker

21 November 15

oon after John Brennan, the director of the Central Intelligence Agency, took the stage on Wednesday, at the annual conference of the Overseas Security Advisory Council, in Washington, D.C., he suggested that members of the audience might be aware of certain remarks he’d made in the aftermath of ISIS’s assault on Paris last Friday. But he also thought that they might have figured him wrong: “I invite you to look at what I said as opposed to what has been unfortunately misrepresented in some quarters, by my friends in the fourth estate.”

What had been reported was that Brennan had blamed Edward Snowden, at least in part, for the terrorist attack in Paris. What he said came in response to Josh Rogin, of Bloomberg View, who, on Monday, at a forum held by the Center for Strategic and International Studies, had asked about the blame for the attack. It was, of course, “primarily at the feet of the terrorists,” but nonetheless Rogin asked, “How was this allowed to happen? . . . What went wrong?” Brennan replied, “In the past several years, because of a number of unauthorized disclosures and a lot of hand-wringing over the government’s role in the effort to try to uncover these terrorists, there have been some policy and legal and other actions that are taken that make our ability collectively, internationally, to find these terrorists much more challenging.” It is hard to tell the difference between that sentiment and the headline assessment that he had blamed Snowden—Brennan was not being particularly coy in his reference to “unauthorized disclosures.” As the Times wrote in an editorial, on Wednesday, “What he calls ‘hand-wringing’ was the sustained national outrage following the 2013 revelations by Edward Snowden, a former National Security Agency contractor, that the agency was using provisions of the Patriot Act to secretly collect information on millions of Americans’ phone records.” James Woolsey, Brennan’s predecessor, was even more intemperate after the Paris attacks, saying that Snowden had “blood on his hands.” On Thursday, Woolsey added that Snowden should be “hanged.”

And, at the OSAC conference, Brennan was just as ready to point to Paris in order to attack Snowden. He used, as an opening, the plight of Syrian refugees. When the moderator asked him about the debate over whether it would be safe for America to let in refugees—in the context of the shameful statements that Ted Cruz and others have made in recent days—Brennan noted that “we are a country that prides itself on its tradition of welcoming people from around the world,” and that we have “to make sure that we are able to look at individuals who are coming into this country.” (Of course, we do: Syrian refugees currently undergo a vetting process that can take two years, which is one reason that we’ve admitted fewer than two thousand of them since their country’s civil war began.) But, as Brennan went on, it became harder to tell whether he was talking about the vetting of refugees or the monitoring of communities and private communications in this country. There has to be a “balance between individual rights and civil liberties and what is the appropriate role for government in that domain”—digital communications—“to protect its citizenry.” Otherwise, “we’re going to face a world of hurt in the future.”

A reporter from the Guardian then asked Brennan, “What impact do you think Edward Snowden’s revelations had on everything you just talked about and that debate on privacy?” Brennan’s answer was, again, unmistakable. “I think any unauthorized disclosures that are made by individuals who have dishonored the oath of office, that they raised their hand and attested to, undermines this nation’s security,” Brennan said. He was interrupted by applause, then added, “And heroizing such individuals I find to be unfathomable as far as what it is that this country needs to be able to do, again in order to keep itself safe.”

Perhaps it would help Brennan to fathom the unfathomable if he remembers that, before the Snowden revelations, James Clapper, the director of National Intelligence, raised his hand and, in a Senate hearing, gave false testimony about whether the N.S.A. collected information on Americans. (The Times also pointed to false statements that Brennan made in connection with the Senate Report on Torture and civilian deaths from drone strikes.) Or he might read the opinion by the Second Circuit Court of Appeals declaring the phone-records program illegal, or the opinion from the D.C. Circuit, issued just two weeks ago, that it also likely violated the Constitution. He might try to explain why intelligence agencies chose broad searches that could, as one judge noted, drag in and mark as suspicious anyone who had called someone who called someone who called to order from the same pizza place as someone who had caught the N.S.A.’s eye, when it had legal options, like individualized warrants, available to it. In terms of the mass collection of phone records, in particular, the Privacy and Civil Liberties Oversight Board, which was convened by the Administration after the revelations, found that the program wasn’t even effective, writing in its report, “We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counterterrorism investigation.” It also found that the program broke the law. This assessment makes it a particularly “disgraceful low,” as the Times put it, for Brennan to connect Snowden to the deaths of more than a hundred and twenty people in Paris. Since Snowden, the program has been modified, but only slightly, and in ways that may actually increase its efficiency by making it more targeted and excluding more of the noise of ordinary communications—large bureaucracies, which the N.S.A. has become, do not tend to make judicious choices in the absence of scrutiny.

Brennan didn’t mention a particular leak that would have made a difference in Paris, beyond implying that there were things the public did not know or was not expert enough to remark upon. The argument, insofar as he and others have articulated it, seems to be that terrorists are becoming more cautious and more interested in encryption—something that was already true—and that Americans regard their own intelligence agencies as less trustworthy. But Snowden’s revelations would not have had that effect if he hadn’t also revealed breaches of trust. One of his most important discoveries was that the N.S.A. had crafted a body of classified legal findings to justify broader surveillance, often by interpreting words in real laws—like “target,” “incidental,” “relevant,” “minimize,” and even “terrorist”—in ways that were far from their dictionary meanings and at times, frankly, absurd. In other words, Snowden revealed the existence of secret laws, which are something a free country is not supposed to have.

Brennan’s rhetoric was also clearly directed at an ongoing fight between the government and the tech companies, about whether there should be a limit on private encryption capabilities. The government wants to be able to read everything if it needs to; private companies point out that being asked to make systems more vulnerable creates its own security risks, quite apart from the civil-liberties hazards: if the government can get in more easily, so can hackers who want to steal the private passwords of, say, a power-plant manager, or a C.I.A. director. This is an important debate. The problem that Snowden exposed is that the government took the authority it had to do one thing and then used it to do much broader things. That has a cost in trust that comes due the next time the government asks for more powers. The way to address that distrust is to recognize that the behavior was bad, and that the public, Congress, and the courts do have something to say—and that the intelligence community will listen. There has to be good faith on both sides, and there has to be informed consent.

Intelligence agencies have an extraordinarily difficult job, and in some ways it is unfair that, as Josh Rogin’s question to Brennan suggests, the impulse, when some terrorists shoot up a concert hall, is to ask why those agencies failed. But the claim that everything would have been better if only the public had never learned that the N.S.A. was breaking the law, and if it had been allowed to keep doing so, is not a serious argument worthy of a mature democracy. The rush to blame Snowden suggests that Brennan and his colleagues have not learned the correct lesson from his revelations. If they have been in any way disempowered, the responsibility lies with them, for breaking the rules, not with the person who caught them doing it—who saw something and said something.