One of the major points of contention during this debate over the National Security Agency is whether analysts are allowed to read anyone’s email and listen to anyone’s phone calls as a matter of legally-sanctioned policy, or if they’re simply capable of doing it, regardless of rules preventing it. Former Booz Allen Hamilton IT analyst Edward Snowden famously said to The Guardian‘s Glenn Greenwald, “I, sitting at my desk, certainly had the authorities to wiretap anyone, from you, or your accountant, to a federal judge, to even the President if I had a personal email.”
Scary. But only if Snowden or his former colleagues decided to break the law and risk serious punishment.
During an interview on MSNBC’s Last Word with Lawrence O’Donnell, and during numerous interviews since then, Glenn Greenwald clarified that analysts technically aren’t allowed to do what Snowden described. However, they could very easily abuse these “authorities” to wiretap the president or your accountant anyway. The fear factor remains, even though Snowden and Greenwald have yet to reveal evidence of any actual illegal activity by analysts.
I suspect that Snowden, reportedly a skilled hacker, might’ve abused his position by sneaking through loopholes in the system or order to determine what was possible, but there’s no solid evidence that he actually wiretapped anyone in the manner he described via NSA’s XKEYSCORE interface. (XKEYSCORE is the software Greenwald described in his latest article in which he essentially writes that NSA analysts can analyse signal intelligence using the XKEYSCORE interface. Shocking, I know.) Snowden still might potentially “out” himself as having exploited these loopholes, which would give us a solid idea as to how someone might abuse XKEYSCORE for sinister purposes, but that hasn’t happened yet. Did he ever do it? Who knows. Another question that remains frustratingly unanswered.
When challenged on the absence of any wrongdoing in his reporting, Greenwald has repeatedly cited a pair of pre-Snowden abuses.
The first of Greenwald’s examples is one I’ve covered before: an early-2009 New York Times article in which the Obama Justice Department, exercising routine oversight, reined-in NSA overcollection and imposed safeguards to prevent it from happening again. Additionally, during that initial Lawrence O’Donnell interview back in June and again in a recent appearance on This Week with George Stephanopoulos, Greenwald pointed to a 2008 story by ABC News reporter Brian Ross about, in Greenwald’s words, “NSA analysts, low level ones, who got caught eavesdropping on the telephone conversations between soldiers and their girlfriends who were stationed in Iraq.”
I’m glad that Greenwald dropped this ABC News story because it’s a fantastic example of what legitimate whistleblowers look like.
The former analysts are Adrienne Kinne and David Murfee Faulk, and they didn’t get “caught.” In fact, they initially spoke publicly about post-9/11 orders to eavesdrop on Americans without warrants to a blogger named David Swanson. They also spoke with author James Bamford for his 2008 book The Shadow Factory. The ABC News article was largely based upon Bamford’s reporting and coincided with the release of the book. As you recall, revelations about unfettered post-9/11 warrantless wiretapping were kind of a big deal at the time.
Kinne, while assigned to NSA’s Back Hall at Fort Gordon, Georgia throughout the months immediately following 9/11 described how a likely presidential (or, perhaps, vice presidential) order waived restrictions placed upon NSA wiretaps of Americans by the United States Signals Intelligence Directive 18 (USSID 18). In other words, USSID 18 expressly forbids spying on Americans without a warrant or probable cause. Evidently, according to Kinne, this barrier was secretly waived after 9/11 and ostensibly remained waived until the passage of the FISA Amendments Act (FAA) in 2008.
Meanwhile, Faulk, a linguist for the U.S. Navy also assigned to Fort Gordon, told ABC News that he and several other analysts would swap particularly steamy phone sex calls they had intercepted from soldiers stationed inside the Green Zone in Baghdad. During breaks, Faulk and other analysts would gossip about the saucy sex talk they had overheard. Bamford claims he was told about the phone sex eavesdropping but didn’t publish the details.
Greenwald hasn’t mentioned that these abuses took place more than ten years ago during the comparatively lawless days following 9/11 and prior to the passage of the FAA, not to mention the creation of the Privacy and Civil Liberties Oversight Board (PCLOB) in 2004. I’m old enough to remember how the entire nation lost its collective shpadoinkle for a good long time. No one knew what was going to happen next, and new laws like the USA PATRIOT Act, along with new-fangled naked body scanners and other security measures were hustled into place. Thankfully, we don’t exist in that era anymore.
But that’s almost a sidebar to the elephant in the room.
This pair of former analysts were real-life whistleblowers. They witnessed serious abuses within the system and came forward to Swanson, Bamford and ABC News, respectively. They didn’t barf up volumes of top secret documents onto the internet. They didn’t flee the country. They didn’t speak to overseas reporters about secret operations against China and the EU having zero to do with spying on Americans. Their claims were restricted solely to the abuses they witnessed firsthand. Surely they embarrassed the government and NSA, but if President Obama was truly fighting a “war on whistleblowers” (he’s not), he could’ve prosecuted them upon taking office several months later. But he didn’t. To date Faulk and Kinne are living their lives, free from prosecution because the information they revealed was direct and narrowly confined.
A relatively similar whistleblower case that’s worth mentioning here was described by former NSA analyst and current professor at the U.S. Naval War College, Dr. John Schindler. His late father, also an NSA analyst and a self-identified progressive, protested to his superiors about NSA’s highly unconstitutional MINARET and SHAMROCK eavesdropping operations in the 1970s, and finally succeeded in helping to eliminate the programs. Once again, no massive document dumps and no wacky manhunts across Asia. Richard W. Schindler blew the whistle on these programs through proper channels and achieved significant results — quietly, without all of the hoopla or petitions or Guardian media flacks that we’ve observed this Summer with Mr. Snowden and Pfc. Manning.
So, yeah. Thanks, Glenn, for bringing up the ABC News report. It’s afforded us the opportunity to further distinguish between irresponsible mass-leakers and actual whistleblowers — the deliberate conflation of which only serves to confuse the public while disrespecting the nobility and legitimacy of men and women who did the right thing and in the right way.