After last year’s Edward Snowden leaks, governments went into damage control, peddling out narratives to undermine his personal motivations, and his tactical decision to copy and release the documents to the press. One of the most common false narratives is that there was a proper channel whereby Snowden could have reported problems and made changes - as if the NSA is open to criticism. When Snowden was working at the CIA, he was brushed off by a superior when he tried to report an issue.
It also presumes that oversight receives adequate information to understand and make policy decisions about one of the most secretive groups in the world. Such oversight doesn’t really exist, given Rep. Mike Rogers’s refusal to share information about NSA programs with Congress, and National Intelligence Director James Clapper making misleading statements under oath.
The most damning narrative accuses Snowden of being a traitor and violating “his oath to keep the NSA’s secrets" (as opposed to what some would believe to be a greater oath to uphold the constitution as the supreme law of the land). Snowden was forced to take the actions he did because there seems to be no consistent legal process by which intelligence organizations like the NSA can actually be made to reveal information to the public about potentially law-breaking practices. These agencies undermine the Freedom of Information Act (FOIA) - one of the few tools we have regarding the release of information to the public, to the point that many feel it is practically useless.
I launched what would become Project SpyLighter last year to gain information through FOIA requests on products and services provided to the NSA by their contractors. Since then, around sixty FOIA requests have been submitted to the NSA and other agencies. Since the project began, very few requests have been fulfilled, and none to satisfactory completion. The NSA has delayed its response and denied fee waivers, and is seemingly unable to find information in their own files that we know exists. It’s also become apparent that the NSA doesn’t organize their files in a manner which makes it easy for FOIA officers to retrieve information. This is a rejection letter in response to a FOIA request for information on contracts regarding keywords related to exploits:
Information pertaining to contract and acquisition data is not typically stored or retrievable using keywords or “technology and related services” information. A search for overly broad keywords such as "CNO" and "computer network attack" would be tantamount to conducting a manual search through thousands of folders and then reading each document in order to determine whether the document pertains to a contract.
In any reasonable large-scale electronic document management system designed for the quick retrieval of information, documents will be indexed and searchable by keyword, and search results will contain a title, date, description of the document type and the name of the author. In a paper file, contracts will be separated from other documents. (I make these assertions as someone who has worked both as a paralegal and a file clerk dealing with large, complex filing systems containing tens of thousands of documents.) It is unthinkable that an organization with the NSA’s significant resources and technological capabilities would not be able to find information about their own contracts related to exploits.
Jason Leopold has also filed many recent requests to the NSA. Earlier this month he received a response from the NSA denying the expedited release of documents related to a program called DISHFIRE because the NSA had already publicly discussed the program and did not consider it urgent enough to make the requested documents public. The same day he received this response, he received another letter saying that the NSA could neither confirm nor deny the existence of this program it had acknowledged in the media and in its previous letter to Leopold. He intends to appeal, and may add this to his growing list of lawsuits against agencies that balk at releasing documents.
In the contest for epic FOIA appeals the Electronic Frontier Foundation surely wins the prize for taking lawsuits to the next level. Among many other suits resulting from unfulfilled FOIA requests, in August 2012 they sued the Department of Justice for copies of opinions and orders from the Foreign Intelligence Surveillance Court (FISC). They then filed a motion directly with FISC which ultimately led to the release of a decision declaring that some parts of the NSA’s surveillance activities were illegal.
If it’s assumed that the NSA and DOJ are the only agencies pulling stunts to avoid releasing documents by FOIA, an article came out February 10 from the AP showing that the Department of Defense actually destroyed photographs of Osama Bin Laden’s corpse after receiving a FOIA request for them. This is the kind of behavior that creates conspiracy theories.
The practice of obfuscating or delaying the release of information is rampant across all levels of government, but particularly in defense and intelligence agencies. Journalists and public interest groups frequently spend years fighting for documents. Lawsuits take time, effort and money. It’s likely the average citizen FOIA requester will get discouraged by such obstacles and abandon their quest.
It is in this environment of extreme secrecy and withholding information that is in the public interest that Snowden made his decision to copy the NSA documents and release them to journalists. While we do have tools such as FOIA, they are frequently ineffective in obtaining information from agencies bent on keeping their activities secret. We absolutely need whistleblowers such as Snowden, with inside access and fewer barriers, in order to better understand the activities of our own government. We need to protect them and the journalists who bravely take up the cause of shedding light in dark places.