Jun 06

Despite White House Denials, FOIA Documents Prove Snowden Did Try To Voice Concerns With The NSA:

Edward Snowden’s story is one that most know by now – the NSA contractor who went rogue and instead of going through available channels to voice his concerns, leaked sensitive government documents that revealed how the US surveillance state operates for all the world to see.

Or at least, that’s what the government’s version of the story is.

In a Vice News exclusive, based on over 800 pages of newly released documents from the NSA and countless interviews, Vice News finds that there is much more to the story that the public isn’t being told. Snowden, according to Vice News, did have both email and face-to-face contact with compliance over concerns, and the available options for Snowden may not have been adequate during the time Snowden was actually working as a contractor at the NSA.

At a bare minimum, Vice News provides valuable insight into the fact that while the NSA and other government agencies put on a public face that they were “sure” only a single email sent by Snowden, the investigation missed a lot of correspondence over time, and even a critical face-to-face interaction that wasn’t documented until much later.

The following helps walk through what Vice News found, however we encourage readers to read the full piece at Vice News.

We’ll start by pointing out a quick aside, and that is that Vice News also found as it received the FOIA documents, that the NSA admitted that it altered emails related to its discussions about Snowden – “unavoidably” of course.

In a letter disclosed to VICE News Friday morning, Justice Department attorney Brigham Bowen said, “Due to a technical flaw in an operating system, some timestamps in email headers were unavoidably altered. Another artifact from this technical flaw is that the organizational designators for records from that system have been unavoidably altered to show the current organizations for the individuals in the To/From/CC lines of the header for the overall email, instead of the organizational designators correct at the time the email was sent.”

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The single email theory that the government trotted out is a bit more complex, as it involved multiple people from different departments as an answer was formulated. Everything was set in motion when Snowden clicked the “email us” link on the internal website of the NSA’s Office of General Counsel (OGC) to ask his question on April 5, 2013.

Snowden clicked the “email us” link on the internal website of the NSA’s Office of General Counsel (OGC) and wrote, “I have a question regarding the mandatory USSID 18 training.

United States Signals Intelligence Directive 18 (USSID 18) encompasses rules by which the NSA is supposed to abide in order to protect the privacy of the communications of people in the United States. Snowden was taking this and other training courses in Maryland while working to transition from a Sysadmin to an analyst position. Referring to a slide from the training program that seemed to indicate federal statutes and presidential Executive Orders (EOs) carry equal legal weight, Snowden wrote, “this does not seem correct, as it seems to imply Executive Orders have the same precedence as law. My understanding is that EOs may be superseded by federal statute, but EOs may not override statute.

On the morning of May 29, 2014, after Snowden had gone public, the general counsel of the Office of the Director of National Intelligence (ODNI) Robert Litt, wrote an email to high level officials with a topic saying “What to do about Edward Snowden.” In it the back and forth, NSA’s general counsel Rajesh De, advocated for the public release of the Snowden email because De believed it was weak enough to call Snowden’s credibility into question. However, Litt disagreed – for the time being… “I’m not sure that releasing the email will necessarily prove him a liar. It is, I could argue, technically true that Snowden’s email raised concerns about the NSA’s interpretation of its legal authorities. As I recall, the email essentially questions a document that Snowden interpreted as claiming that Executive Orders were on par with statutes. While that is surely not raising the kind of questions that Snowden is trying to suggest he raised, neither does it seem to me that email is a home run refutation.

Of course, Litt had his mind changed, as in a recent interview with Vice News Litt said “To the extent Snowden was saying he raised his concerns internally within the NSA, no rational person could read this as being anything other than a question about an unclear single page of training.”

The NSA formulated a plan early on to get ahead of an interview Snowden had conducted with Vanity Fair  by acting proactively and with certainty that Snowden’s facts were’t correct. However they would need absolute certainty that Snowden had not communicated his concerns, and approval from the DOJ to release the email – neither of which the NSA had at the moment Vice writes. So the NSA decided to dig further…

We need great certainty about whether or not there is/was additional correspondence before we stake the reputation of the Agency on a counter narrative,” a person from the task force replied in an email addressed to counterintelligence, the legislative affairs office, and the office of general counsel on April 9. “I am going to trigger an action for the appropriate organizations to do an e-mail search [redacted] to affirm that there is no further correspondence that could substantiate Snowden’s claim.”

Later, while preparing to respond to an NBC news interview fact checking inquiry, the NSA still couldn’t confirm that there was 100% assurance that no further correspondence had been had by Snowden and the NSA about his questions.

“Raj, if you are looking for 100% assurance there isn’t possibly any correspondence that may have been overlooked I can’t give you that,” an NSA official, whose name was redacted, wrote in response to De. “If you asked me if I think we’ve done responsible, reasonable and thoughtful searches I would say ‘yes’ and would put my name behind sharing the e-mail as ‘the only thing we’ve found that has any relationship to [Snowden’s] allegation. Give [sic] Snowden’s track record for truth telling we should be prepared that he could produce falsified e-mails and claim he sent them. The burden then falls to us to prove he didn’t (you know how that will end).”

Continued infighting between the NSA, DOJ, AND ODNI took place on whether or not to release that Snowden email, and the pressure only grew to make a decision as now Reuters was onto the single email issue.

“Reuters is now pounding the pavement over the email issue,” she wrote. “[Brian] Williams clearly said multiple sources confirmed at least 1 email” that Snowden had sent raising his concerns.

However, about three hours before the NSA was to release the “single email”, a special agent assigned to the NSA’s counterintelligence division sent an email to other counterintelligence officials about additional Snowden emails found within divisions at the NSA Snowden had said he had contacted with his concerns. Roughly thirty emails were discovered from the security office that Snowden either sent or received, and although none were related to Snowden’s concerns at the time, the fact that the NSA truly hadn’t found any more emails was troubling. Especially since they had decided to go with the “one sole email” theory.

The confidence that the NSA would soon display publicly that it discovered only one email was not reflective of what was taking place behind the scenes. De was still looking for assurances that it was the only communication from Snowden — but no one could confidently say there weren’t other emails that had been overlooked.

I would encourage you to work with your staff to give yourself confidence that requests of your folks to check for records are/were sufficiently robust to underpin your personal level of confidence,” someone at the NSA said in an email to De hours before Snowden’s email was released. “l am not in any way suggesting that people did not take the requests seriously — they did, but they did so under time pressure.”

Rogers was informed via email by someone at the NSA whose name was redacted that the plan, which was based on “dialog with the White House,” called for White House press secretary Jay Carney to read a prepared statement and indicate that the one email Snowden wrote, “the same benign email that you and I discussed,” would be released later in the day.

As Vice News reports, it turns out that more communications were located, but a person or people at the agency withheld these details, which contained important context about Snowden’s correspondence, from the media and even from director Rogers.

About an hour after the Snowden email was finally released, and after the White House said only one piece of correspondence from Snowden had been located, other emails were found, one indicating that Snowden had a verbal communication with compliance that the NSA’s counterintelligence investigation wasn’t aware of. The NSA continued on the path of saying there was no further correspondence found about any concerns, although they did admit more and more information was starting to come to light that could have been missed. Senator Feinstein also piled on to that plan.

Snowden responded to the release of the email saying that it was “incomplete”

It “does not include my correspondence with the Signals Intelligence Directorate’s Office of Compliance, which believed that a classified executive order could take precedence over an act of Congress, contradicting what was just published. It also did not include concerns about how indefensible collection activities — such as breaking into the back-haul communications of major US internet companies — are sometimes concealed under E.O. 12333 to avoid Congressional reporting requirements and regulations,” Snowden said.

Snowden’s statement resulted in a barrage of media inquiries to the Office of Public Affairs and dozens of FOIA requests seeking any additional material showing that he raised concerns. However, the NSA refused to entertain any additional questions, instead providing reporters with a copy of their prepared statement and the sole email.

What was further revealed, is that there were in fact other communications by Snowden. There was an in-person contact with an oversight and compliance training person that was uncovered, and although the compliance person brushed it off as complaints about trick questions on a test, however as Vice News states, it coincides with the timeframe where Snowden would have sent the email, and it was doubtful Snowden was agonizing over failing an open book test.

Then there was the in-person contact with Snowden. As the Oversight and Compliance training woman described in an email written a year later, he “appeared at the side of my desk in the Oversight and Compliance training area… shortly after lunch time.” Snowden did not introduce himself, but “seemed upset and proceeded to say that he had tried to take” the basic course introducing Section 702 “and that he had failed. He then commented that he felt we had trick questions throughout the course content that made him fail.” Once she gave him “canned answers” to his questions, “he seemed to have calmed down” but said “he still thought the questions tricked the students.”

That may well have been what the exchange seemed like to the woman, though it is unlikely Snowden, who six weeks later would walk out of the NSA with thumb drives full of NSA secrets, was agonizing over failing an open-book test.

NSA records show that the OGC received complaints from Snowden about at least two different training programs within days, and that he knew they were speaking to each other about his question. However in its internal assessment of Snowden’s communications, the NSA treated them as two separate incidents.

Vice makes the case that the email to the OGC and face-to-face communication could have happened the same day, however it has been difficult to confirm due to the timestamp issues in the FOIA request.

The NSA tried to make the case that Snowden should have known where to voice his concerns, due to sometimes mandatory training. However, the NSA stops short of saying that Snowden ever did complete the training.

Vice also makes the observation that the path Snowden should have followed according to the NSA may have been put in place in response to Snowden, so the available resources to Snowden may have been inadequate. And also, at the end of the day, it’s not clear that the policies apply to contractors.

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We’ll leave it up to readers to decide what they believe, but there sure is a lot more unanswered questions than answers in this case – here is the full article at Vice News.

However, Edward Snowden, for one, feels better about the unveiling, although he remains adamant that there is much more to the story.

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