How 'Snowden' the Movie Could Help Win a Pardon for Snowden the Man

By James Bamford, Reuters

20 September 16

 

he days leading up to last Friday’s release of director Oliver Stone’s Snowden looked like one long movie trailer.

The American Civil Liberties Union and other human-right groups on Wednesday announced a campaign to win a presidential pardon for Edward Snowden, the former National Security Agency contract employee who leaked hundreds of thousands of its highly classified documents to journalists. The next day, the House Intelligence Committee released a bipartisan letter to the president that advised him against any pardon and claimed Snowden “caused tremendous damage to national security.” 

The week before, Stone had invited me to a private screening of his movie in Washington. I once worked in an NSA facility, and I’ve written about the agency for decades, so I was surprised and pleased by how successful Stone was in creating an accurate picture of life in the NSA.

He did a remarkable job of capturing the sense of how rare, difficult and risky it is for anyone in the agency to challenge the ethics and legality of its operations. I was astounded by Joseph Gordon-Levitt’s doppelganger-like portrayal of Snowden. At one point in the film, when the real Snowden appeared, it took me a moment or two to realize the switch. 

Among others at the screening was a small group of former government employees who were whistleblowers before Snowden  – and paid a high price for it.

The reason they had been persecuted is that U.S. law makes no distinction between revealing illegal government activity to the press about eavesdropping on Americans or engaging in torture, and betraying the country by passing secrets for money or ideology to foreign governments.

The Espionage Act was enacted nearly a century ago following World War One, and has already been amended several times. One key issue confronting the next president and the new Congress is whether the law needs to be amended again – this time to separate the whistleblowers from the spies.  

The Snowden screening audience included William Binney, a 40-year veteran of the NSA. After the 9/11 attacks, Binney quit the agency because he objected to its illegal secret targeting of Americans.

He was later suspected of violating the Espionage Act by leaking information to the press about the agency’s illegal wiretapping. FBI agents showed up at his house with a search warrant. One agent pointed a gun at Binney as he was taking a shower. No charges, however, were ever brought.

Another former senior NSA official, Thomas Drake, was in the audience. He was also suspected of leaking information to the press and, as with Binney, the FBI raided his house. But Drake was later charged under the Espionage Act with five counts of unlawful retention of classified documents, among other charges.

Years of legal battles drove Drake into near-bankruptcy. His defense was able to show, however, that all the information Drake was charged with leaking was actually available in the public domain – and placed there by the government itself. (I was a member of the defense team.)  As a result, the espionage charges were dropped and Drake pleaded guilty to a misdemeanor – “exceeding authorized use of a government computer.”

John Kiriakou was also at the movie screening. He was the first former official to confirm that al Qaeda prisoners were subjected to waterboarding, a practice the Obama administration considers torture. Kiriakou was later charged with three counts of violating the Espionage Act for leaking information to the press, among other charges. On Oct. 22, 2012, he pleaded guilty to one count of passing classified information to the media and was sentenced to 30 months in prison. 

Stone came to my house for a drink after the screening that night. He asked about my own small experiences in whistleblowing. 

I had spent three years in the Navy during the Vietnam War, I told him, assigned to an NSA unit at Pacific Fleet Headquarters in Hawaii. I was still in the Navy Reserve when I went to law school. During my two weeks of active duty I was assigned to an NSA listening post in Puerto Rico. 

While there, I discovered that the agency was conducting warrantless eavesdropping on American phone calls. I later blew the whistle on this to a congressional investigation committee, led by Senator Frank Church, who conducted the Church Committee investigations into U.S. intelligence operations. 

Years later, while I was writing The Puzzle Palace: Inside the National Security Agency, America’s Most Secret Intelligence Organization, the agency threatened me with prosecution under the Espionage Act for refusing to return declassified Justice Department documents that had later been reclassified as “top secret.” The documents outlined numerous illegal actions by the agency. 

I never returned the documents. No charges were ever brought against me, however, even though I eventually published details from them in my book. 

Today, perhaps more than at any time in history, the battle lines have been drawn between those in government – both the executive branch and Congress – who view the theft of government secrets as espionage, regardless of the motive, and those in civil-liberties groups and the media who see motive as a critical distinction. 

Since Snowden first revealed that he had taken the NSA documents, he has said he is willing to admit what he did was illegal and accept punishment – including time in prison. In the summer of 2014, I spent three days with him in Moscow for a cover story in Wired magazine and a PBS documentary. 

“I told the government I’d volunteer for prison, as long as it served the right purpose,” Snowden told me as we sat eating pizza in a Moscow hotel room. “I care more about the country than what happens to me. But we can’t allow the law to become a political weapon or agree to scare people away from standing up for their rights, no matter how good the deal. I’m not going to be part of that.”

But the key question is: What is fair if the Espionage Act does not recognize acting in the public interest as a defense?

How fair is it if Snowden were not allowed to present as a mitigating circumstance the fact that because of his actions, Congress changed the law, to stop the government from secretly collecting billions of telephone records on every American all the time?  How fair is it if he were not allowed to call as a witness, former Attorney General Eric H. Holder Jr., who has publicly acknowledged that Snowden “actually performed a public service.” 

At the same time, how fair is it if Snowden’s actions, which caused positive change, were viewed as comparable to those of CIA officer Aldrich Ames or FBI agent Robert Hansson, who both sold secrets to Russia’s intelligence agency for cash, information that resulted in the death of Russians working covertly for the United States?

These Justice Department actions are odd and counterproductive. Particularly because the United States has no extradition treaty with Russia, which means Snowden is beyond the reach of U.S. law enforcement. Yet the administration does not respond when Snowden says that he is willing to discuss turning himself in. 

Meanwhile, many in the intelligence community likely fear the kinds of documents that could emerge during the discovery phases of a trial or during witness testimony.

Snowden’s last best hope to return to the United States is probably a pardon from President Barack Obama, because both party nominees in the presidential election have expressed little sympathy for his situation. 

“I don’t think he should be brought home without facing the music,” Hillary Clinton told CNN’s Anderson Cooper. Donald Trump, meanwhile, has said he would like to see Snowden executed.

“I think Snowden is a terrible threat,” Trump said on Fox & Friends in 2013, “I think he’s a terrible traitor, and you know what we used to do in the good old days when we were a strong country? You know what we used to do to traitors, right?”

One host interjected, “Well, you killed them, Donald.” Trump agreed.

These were the risks Snowden knew he was taking when he released the NSA documents. “It’s really hard to take that step,” he told me in Moscow, “not only do I believe in something, I believe in it enough that I’m willing to set my own life on fire and burn it to the ground.”

But Stone’s sympathetic portrayal of Snowden in his film may shift public opinion to a more positive view. The movie shows how Snowden evolves from a supporter of President George W. Bush and the war in Iraq into an NSA whistleblower as he gradually uncovers the agency’s massive illegal spying on Americans. So the picture might translate into more support for a pardon.

Only time – and strong box-office results – will tell.   

The House Intelligence Committee's Terrible, Horrible, Very Bad Snowden Report

By Barton Gellman, The Century Foundation

20 September 16

 

ate yesterday afternoon the House Permanent Select Committee on Intelligence released a three-page executive summary (four, if we count the splendid cover photo) of its two-year inquiry into Edward Snowden’s National Security Agency (NSA) disclosures. On first reading, I described it as an “aggressively dishonest” piece of work.

Well, I think I may have to write something up. The HPSCI report on Snowden is aggressively dishonest. https://t.co/Ec5EuD0fBS

— Barton Gellman (@bartongellman) September 15, 2016

With a day or so to reflect on it, I believe it’s worse than that. The report is not only one-sided, not only incurious, not only contemptuous of fact.

It is trifling.

After twenty-five months of labor, the committee’s “comprehensive review” of an immensely complex subject weighs in at thirty-six pages. (None of which we may read, because it “must remain classified.”) I have graded college term papers that long. It is one more dispiriting commentary on the state of legislative oversight that the committee’s twenty-two members, Republican and Democratic, were unanimous in signing their names.

A reminder at the outset. I am one of four journalists (with Laura Poitras, Glenn Greenwald, and Ewen MacAskill) who received classified archives of NSA documents from Snowden. I am writing a book on the subject for Penguin Press. Feel free to consider, as you read this, that my stories in The Washington Post played a role in the disclosures that the committee is at pains to denounce.

The real burden of this report, released on the eve of the premiere of Oliver Stone’s Snowden film, is to offer a counter-narrative. An accompanying press release quotes committee members describing Snowden as “no hero,” “not a patriot,” and “a traitor.”

Since I’m on record claiming the report is dishonest, let’s skip straight to the fourth section. That’s the one that describes Snowden as “a serial exaggerator and fabricator,” with “a pattern of intentional lying.” Here is the evidence adduced for that finding, in its entirety.

“He claimed to have left Army basic training because of broken legs when in fact he washed out because of shin splints.”

This is verifiably false for anyone who, as the committee asserts it did, performs a “close review of Snowden’s official employment records.” Snowden’s Army paperwork, some of which I have examined, says he met the demanding standards of an 18X Special Forces recruit and mustered into the Army on June 3, 2004. The diagnosis that led to his discharge, on crutches, was bilateral tibial stress fractures.

“He claimed to have obtained a high school degree equivalent when in fact he never did.”

I do not know how the committee could get this one wrong in good faith. According to the official Maryland State Department of Education test report, which I have reviewed, Snowden sat for the high school equivalency test on May 4, 2004. He needed a score of 2250 to pass. He scored 3550. His Diploma No. 269403 was dated June 2, 2004, the same month he would have graduated had he returned to Arundel High School after losing his sophomore year to mononucleosis. In the interim, he took courses at Anne Arundel Community College.

“He claimed to have worked for the CIA as a ‘senior advisor,’ which was a gross exaggeration of his entry-level duties as a computer technician.”

Judge for yourself. Here are the three main roles Snowden played at the Central Intelligence Agency (CIA). (1) His entry level position, as a contractor, was system administrator (one among several) of the agency’s Washington metropolitan area network. (2) After that he was selected for and spent six months in training as a telecommunications information security officer, responsible for all classified technology in U.S. embassies overseas. The CIA deployed him to Geneva under diplomatic cover, complete with an alias identity and a badge describing him as a State Department attache. (3) In his third CIA job, the title on his Dell business card was “solutions consultant / cyber referent” for the intelligence community writ large—the company’s principal point of contact for cyber contracts and proposals. In that role, Snowden met regularly with the chiefs and deputy chiefs of the CIA’s technical branches to talk through their cutting edge computer needs.

“He also doctored his performance evaluations…”

Truly deceptive, this. I will tell the story in my book. Suffice to say that Snowden discovered and reported a security hole in the CIA’s human resources intranet page. With his supervisor’s permission, he made a benign demonstration of how a hostile actor could take control. He did not change the content of his performance evaluation. He changed the way it displayed on screen.

“… and obtained new positions at NSA by exaggerating his resume and stealing the answers to an employment test.”

The first clause is too vague to check. The second seems to be based on an unsubstantiated public statement from Booz Allen vice chairman Mike McConnell. I cannot purport to know for sure, but I do know this. The exam in question is routinely given to freshly enlisted Navy and Air Force recruits to determine their aptitude for entry level “computer network operations.” Snowden was a Microsoft Certified Systems Engineer with years of experience under his belt by then. I can’t explain why anyone thinks he would have to steal the answers.

“In May 2013, Snowden informed his supervisor that he would be out of the office to receive treatment for worsening epilepsy. In reality, he was on his way to Hong Kong with stolen secrets.”

True! When Snowden decided to leave the NSA with a cache of documents for public release, he gave a false cover story for his absence.

That’s it. That’s the committee’s whole case for Snowden as big fat liar. I won’t belabor the irony, but let’s note in passing that four of the six claims are egregiously false, and a fifth is hard to credit. We can only hope the classified report, which boasts 230 footnotes, has better evidence. If you know whether or not that’s the case, feel free to let me know.

The report’s executive summary also has plenty of misleading claims on other subjects—a remarkable number, really, for just three pages. Most have been the stuff of tub-thumping denunciations for years. Snowden “fled to Russia.” Well, no. He tried to fly to Ecuador, and the U.S. government trapped him in the Moscow transit lounge by revoking his passport. Or … Snowden could have relied on whistleblower protections. The Washington Post examined that proposition and found it largely incorrect. Or … Snowden stole 1.5 million classified documents. In fact, the nation’s most senior intelligence officers, no admirers of Snowden, have repeatedly said they can only surmise the number. Then-Defense Intelligence Agency (DIA) Director Michael T. Flynn, who is now advising Donald Trump, said “we assume that he took” every document he could reach. Then-NSA Director Keith Alexander said the agency could only count “what he touched, what he may have downloaded.”

Consider, next, the question of damage. I believe Snowden’s disclosures did a lot more good than harm, but I do not share the view of some of his fans that he did no damage at all. Even so, what are we to make of Subcommittee Chairman Lynn Westmoreland? In language largely echoed by the official report, Westmoreland said Snowden “did more damage to U.S. national security than any other individual in our nation’s history.” How about FBI agent Robert Hanssen, who helped the former Soviet Union roll up a whole U.S. espionage network and kill our agents? Or Julius Rosenberg, maybe, who only handed over plans for the atomic bomb? Or, as some would have it, George W. Bush, for the catastrophic choices he made in Iraq?

Another way to think on this is to ask, what counts as damage? Google, Microsoft, Yahoo, and others decided to encrypt the links between their data centers after my colleague Ashkan Soltani and I disclosed that the NSA was breaking into their private clouds. Now the NSA probably can’t do that any more, or not as easily. It has to use legal process and approach the companies through the front door. Is that damage? Is that disconnected, as the committee implies, from any legitimate question of “privacy or civil liberties”? Or are the new restrictions on surveillance a policy response to intelligence overreach?

Let me close with a dog that doesn’t bark at all. The committee states, in its press release, that this report is aimed at examining “post-Snowden reforms.” There is no discussion at all of reform when it comes to the powers, policies, and practices of surveillance. Only one reform is deemed worth mentioning, and here the committee judges the NSA harshly. There is “more work” to do, the committee says, to make sure its secrets are locked down tighter from now on.

Editor’s Note: Commentary has been updated as of September 18, 2016 changing “Or the Rosenbergs, maybe, who only handed over plans for the thermonuclear bomb?” to “Or Julius Rosenberg, maybe, who only handed over plans for the atomic bomb?”.