The Guardian reports: The American whistleblower Edward Snowden has accused the US of waging a campaign of “historically disproportionate aggression” against him during an extraordinary meeting with human rights activists and Russian officials at the Moscow airport where he has been trapped since 23 June.

In his first appearance since disclosing his identity in the Guardian last month, Snowden insisted he had no regrets and had made a “moral decision” to leak dozens of secret documents outlining US surveillance programmes. He also announced that he would apply for political asylum from the Kremlin and appealed to those present for help in leaving the airport.

The US has lobbied governments around the world to refuse entry to Snowden and has invalidated his US passport.

Last week, a plane carrying the Bolivian president, Evo Morales, was grounded in Vienna after several European countries blocked their airspace amid suspicions that Snowden was on board.

“The government and intelligence services of the United States of America have attempted to make an example of me, a warning to all others who might speak out as I have,” Snowden said. “I have been made stateless and hounded for my act of political expression.” [Continue reading…]

The Associated Press reports: As the director of national intelligence, James Clapper has told Congress that the regime of Moammar Gadhafi would likely prevail in Libya, that Egypt’s Muslim Brotherhood party was “largely secular” and that the National Security Agency doesn’t collect data on millions of Americans.

Not quite.

Gadhafi ended up killed by Libyan rebel forces, and the Brotherhood’s Mohammed Morsi quickly moved to install conservative Islamists into top positions when he became Egypt’s president. And Clapper’s latest misstep may have dented trust in the chief intelligence officer despite public assurances of support from the White House and key members of Congress.

Clapper acknowledged he misspoke when he told the Senate Intelligence Committee in March that U.S. spies do not gather data on Americans – something NSA leaker Edward Snowden revealed as false by releasing documents showing the NSA collects millions of Americans’ phone records showing who they called and for how long, as well as some Internet traffic.

“Clapper is probably job secure for now because (Capitol) Hill is not calling for his removal,” said Bruce Riedel, a former CIA officer and adviser to the Obama White House who heads the Brookings Intelligence Project research group. “But he now has an unfortunate record. Another misstatement, and he will be a liability.” [Continue reading…]

At Wikileaks, Edward Snowden writes: A little over one month ago, I had family, a home in paradise, and I lived in great comfort. I also had the capability without any warrant to search for, seize, and read your communications. Anyone’s communications at any time. That is the power to change people’s fates.

It is also a serious violation of the law. The 4th and 5th Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance. While the US Constitution marks these programs as illegal, my government argues that secret court rulings, which the world is not permitted to see, somehow legitimize an illegal affair. These rulings simply corrupt the most basic notion of justice – that it must be seen to be done. The immoral cannot be made moral through the use of secret law.

I believe in the principle declared at Nuremberg in 1945: “Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.”

Accordingly, I did what I believed right and began a campaign to correct this wrongdoing. I did not seek to enrich myself. I did not seek to sell US secrets. I did not partner with any foreign government to guarantee my safety. Instead, I took what I knew to the public, so what affects all of us can be discussed by all of us in the light of day, and I asked the world for justice. [Continue reading…]

Ben O’Neill writes: Provisions of the Espionage Act are now being brought to bear against [Edward] Snowden to try to put him in prison. But what is more interesting than consideration of the provisions of an Act of the US Congress is to appeal to the science of jurisprudence to determine the normative question of when whistleblowing should and should not be regarded as a criminal action. This is an important jurisprudential question, since it is common for people to assent to the view that whistleblowing should be a protected activity, even when it “breaks the law” in the sense of violating contractual obligations or secrecy legislation.

Whistleblowing involves the revelation of misconduct or illegality occurring in an organization. This necessarily involves disclosing secret information beyond the bounds intended by those trying to keep it secret, and often this involves publication and disclosure to the general public. By virtue of the fact that whistleblowers exist within the organizations they are exposing, they are almost always under some contractual or statutory requirement not to disclose the information they are disclosing. If one takes these obligations at face value then it would appear that whistleblowing must always be regarded as a breach of law, and possibly also a breach of ethics, at least insofar as it involves a breach of contract with the organization where the whistleblower is employed. Under such a view, whistleblowing can never be legally justified, and it is only through an ethical imperative to break the law that it could be justified ethically.

Confidentiality contracts are a legitimate part of the management of many kinds of organizations, and in many cases they are indispensible to the successful operation of the organization. This is true in most legitimate professions, and of course, all illegitimate ones. It is certainly true that people and organizations can enter into confidentiality contracts of this kind, and in the ordinary course of business these contracts create justifiable legal and ethical obligations for the parties involved. If a person agrees to confidentiality in dealings with an employer or client, and agrees to keep sensitive material a secret, then ordinarily this would be a legitimate and binding contract that would bind the person to make good on their promise. Failure to do so would be a breach of contract, and might also involve breaches of other legal duties (e.g., fiduciary duties).

However, one exception to this ordinary contractual case is crucial: confidentiality contracts are not legitimate and should not be regarded to be ethically or legally operative when the confidentiality is designed to protect secret unlawful actions that are being taken by one of the parties. This is part of a wider objection in law to what are sometimes called “unlawful agreements”. Broadly speaking, contracts cannot be regarded as legitimate if they involve agreement to perform an unlawful action, or an action designed to further an unlawful purpose. This is the basis on which one can regard whistleblowing as a lawful activity, notwithstanding that it often proceeds in breach of an agreement of confidentiality. In cases of unlawful action occurring in an organization, the action of keeping information confidential will not usually be illegal in its own right, since people are rarely under a positive legal obligation to report breaches of law (with some exceptions). Regardless, this is no bar to the invalidity of a contract obliging a party to do this. A contract can be considered unlawful even if the acts agreed to be taken are perfectly legal, “… by reason of the wrongful purpose of one or both parties in making it.” Hence, a confidentiality contract which protects an underlying unlawful activity is not generally legitimate. [Continue reading…]

This extract comes from part one of a two-part article. Part two can be read here.

Mashable reports: At last year’s DefCon, the world’s largest hacker conference, NSA chief Gen. Keith Alexander showed up in blue jeans and a tucked-in T-shirt to give the keynote speech, asking hackers to join forces with the NSA.

“We can protect the networks and have civil liberties and privacy, and you can help us get there,” he said.

The hacker conference and the NSA were on such good terms last year that the spy agency even had a recruitment booth — next to that of the digital rights advocacy group Electronic Frontier Foundation. Wired‘s security reporter Kim Zetter went as far as describing the conference as “a lackey for the NSA.”

This year, however, after revelations of top secret, far reaching NSA surveillance programs, DefCon’s founder Jeff Moss asked the feds to stay away.

“When it comes to sharing and socializing with feds, recent revelations have made many in the community uncomfortable about this relationship. Therefore, I think it would be best for everyone involved if the feds call a ‘time-out’ and not attend DEF CON this year,” he wrote in a short blog post on the conference’s website titled “Feds, We Need Some Time Apart.”

Moss, also known as The Dark Tangent, told Reuters that “a little bit of time and distance can be a healthy thing, especially when emotions are running high.”

Moss’s request came as a surprise to many, and reactions have been mixed. Hacker and security researcher Shane MacDougall, who has been attending DefCon for years, explained that while in the past the conference felt more like “us against the Feds,” now things are different.

“Over the years, and especially after 9/11, that anti-Fed mindset changed,” he wrote in an email to Mashable. “A lot of new kids to the field are completely ignorant of the history of hackers vs. the FBI and others, and there seems to be a massive crush of them who want to become ‘feds.'”

The Guardian reports: Microsoft has collaborated closely with US intelligence services to allow users’ communications to be intercepted, including helping the National Security Agency to circumvent the company’s own encryption, according to top-secret documents obtained by the Guardian.

The files provided by Edward Snowden illustrate the scale of co-operation between Silicon Valley and the intelligence agencies over the last three years. They also shed new light on the workings of the top-secret Prism program, which was disclosed by the Guardian and the Washington Post last month.

The documents show that:

• Microsoft helped the NSA to circumvent its encryption to address concerns that the agency would be unable to intercept web chats on the new Outlook.com portal;

• The agency already had pre-encryption stage access to email on Outlook.com, including Hotmail;

• The company worked with the FBI this year to allow the NSA easier access via Prism to its cloud storage service SkyDrive, which now has more than 250 million users worldwide;

• Microsoft also worked with the FBI’s Data Intercept Unit to “understand” potential issues with a feature in Outlook.com that allows users to create email aliases;

• In July last year, nine months after Microsoft bought Skype, the NSA boasted that a new capability had tripled the amount of Skype video calls being collected through Prism;

• Material collected through Prism is routinely shared with the FBI and CIA, with one NSA document describing the program as a “team sport”. [Continue reading…]

Glenn Greenwald writes: NSA whistleblower Edward Snowden, in an interview on Saturday and then again Tuesday afternoon, vehemently denied media claims that he gave classified information to the governments of China or Russia. He also denied assertions that one or both governments had succeeded in “draining the contents of his laptops”. “I never gave any information to either government, and they never took anything from my laptops,” he said.

The extraordinary claim that China had drained the contents of Snowden’s laptops first appeared in the New York Times in a June 24 article. The paper published the claim with no evidence and without any attribution to any identified sources.

In lieu of any evidence, the NYT circulated this obviously significant assertion by quoting what it called “two Western intelligence experts” who “worked for major government spy agencies”. Those “experts” were not identified. The article then stated that these experts “said they believed that the Chinese government had managed to drain the contents of the four laptops that Mr. Snowden said he brought to Hong Kong” (emphasis added).

So that’s how this “China-drained-his-laptops” claim was created: by the New York Times citing two anonymous sources saying they “believed” this happened. From there, it predictably spread everywhere as truth. [Continue reading…]

The Washington Post reports: Lawmakers tasked with overseeing national security policy say a pattern of misleading testimony by senior Obama administration officials has weakened Congress’s ability to rein in government surveillance.

Members of Congress say officials have either denied the existence of a broad program that collects data on millions of Americans or, more commonly, made statements that left some lawmakers with the impression that the government was conducting only narrow, targeted surveillance operations.

The most recent example came on March 12, when James R. Clapper, director of national intelligence, told the Senate Intelligence Committee that the government was not collecting information about millions of Americans. He later acknowledged that the statement was “erroneous” and apologized, citing a misunderstanding.

On three occasions since 2009, top Justice Department officials said the government’s ability to collect business records in terrorism cases is generally similar to that of law enforcement officials during a grand jury investigation. That comparison, some lawmakers now say, signaled to them that data was being gathered on a case-by-case basis, rather than the records of millions of Americans’ daily communications being vacuumed up in bulk.

In addition, two Democratic members of the Senate Intelligence Committee say that even in top-secret briefings, officials “significantly exaggerated” the effectiveness of at least one program that collected data on Americans’ e-mail usage.

The administration’s claims are being reexamined in light of disclosures by National Security Agency contractor Edward Snowden, reported by The Washington Post and Britain’s Guardian newspaper, of broad government surveillance of Americans’ Internet and phone use authorized under secret interpretations of law.

At least two Republican lawmakers have called for the removal of Clapper, who denied the widespread surveillance of Americans while under questioning by Sen. Ron Wyden (D-Ore.) and issued his apology after the surveillance programs became public two months later.

A letter to Clapper sent two weeks ago from 26 senators from both parties complained about a series of statements from senior officials that “had the effect of misleading the public” and that will “undermine trust in government more broadly.” [Continue reading…]

Richard Falk writes: I would have thought that there was a clear set of principles that make the American diplomatic pursuit of Edward Snowden as a fugitive from justice a rather empty and futile gesture. As far as I can tell, there is not even a need for asylum as governments should have been prepared to grant Snowden residence status because his alleged criminal acts in the United States were without question political crimes , without violence or monetary motivation.

I had thought it was as clear as law can be that any person who has committed a political crime should be exempted from mandatory extradition even if a treaty existed imposed a duty on its parties to hand over individuals accused of serious criminal activity. To be sure, from the perspective of the United States government, Snowden’s exposure of the PRISM surveillance program was a flagrant violation of the Espionage Act. But it was also as clearly a political crime as almost any undertaking can be. There was no violence involved or threatened, and no person can be harmed by the disclosures.

What puzzles me is why the refusal to hand Snowden over by expelling him to the United States, which is what Washington has asked Russia to do, raises any kind of serious question beyond wondering how the US government officials arrogantly made the request in the first place. As it was put to Moscow by the US government: “We expect the Russian government to look at all options available to expel Snowden to the United States to face justice for the crimes with which he is charged.”

It is also puzzling is why foreign governments do not make this simple point in response that international criminal law enforcement does not extend to political crimes even in the relation of governments friendly with one another, and there are good public policy and humanitarian reasons why such “criminals” should not be treated internationally as fugitives from justice. [Continue reading…]

Business Insider reports: National Security Agency leak source Edward Snowden is viewed as a “whistleblower” by most Americans, and his leaks have caused a “massive shift” in public opinion against government surveillance, according to a new Quinnipiac University poll.

Snowden — who is currently seeking political asylum while holed up in Russia — is viewed as a “whistleblower” by 55% of poll respondents. Only 34% view him as a “traitor.”

But the most significant change came in the public’s view of the NSA’s surveillance programs, which Snowden exposed in a series of leaks to the Washington Post and The Guardian’s Glenn Greenwald.

By a 45-40 margin, voters now say that the government goes too far in restricting civil liberties in the name of anti-terrorism efforts. That’s a huge reversal from January 2010, when the public said by a 63-25 margin that the government didn’t go far enough.

“The massive swing in public opinion about civil liberties and governmental anti-terrorism efforts, and the public view that Edward Snowden is more whistle-blower than traitor are the public reaction and apparent shock at the extent to which the government has gone in trying to prevent future terrorist incidents,” said Peter Brown, assistant director of the Quinnipiac polling institute. [Continue reading…]

The Washington Post calls it “The NSA slide you haven’t seen” when it should have simply said “Another NSA slide you haven’t seen.”

At the current rate, the thirty-some remaining slides that Edward Snowden leaked to the Post and The Guardian will all have been published sometime towards the end of this decade.

The new report says, “A classified NSA slide obtained by The Washington Post and published here for the first time,” insinuating that this might not have come from Snowden, but if it wasn’t part of the 41-slide collection he leaked, then I would surmise this was an authorized leak. The only difference from a similar slide previously published by The Guardian is in the background image. It earlier showed the world, but now shows North America.

Perhaps the NSA feels that the revised slide will better evoke a sense that its surveillance operations target foreign communications entering the U.S. rather than functioning as a global drag net. Perhaps the NSA’s concern is that circles on each slide which could be taken to identify data collection points, should not point to locations in South America, East Africa, and the Indian Ocean, but instead to the Eastern and Western United States.

Either way, I suspect the Post published this slide at the behest of the NSA.

Ever since the Edward Snowden story slipped out of Barton Gellman’s grasp and The Guardian started running with it for every dollar its worth, the Washington Post has struggled to contain its rage.

Last week under the churlish headline, “The Guardian: Small British paper makes big impact with NSA stories,” Paul Farhi set the tone by referring to the Post’s competitor as “a newspaper that’s small and underweight even by British standards”.

Now, veteran reporter Walter Pincus joins the fray in a column that presents a string of supposedly challenging questions directed at The Guardian and more specifically at Glenn Greenwald.

The only question Pincus fails to ask is: “Are you now or have you ever been a member of the Communist Party of the United States?”

What both Pincus’ and Farhi’s pieces seem to reveal is ferment inside the newsroom — as though in each case reporters and editors fooled each other into believing that their unrestrained contempt for The Guardian would shine light on the dubious nature of their British counterpart. Instead, all they reveal is the American newspaper’s desperate and unseemly effort to reclaim lost status.

For a paper that views itself as a pillar of the Washington political establishment, its reporters need to compose themselves a bit better and perhaps do a few breathing exercises before they write.

Glenn Greenwald, on the other hand, can be relied on to continue with his breathing exercises as he writes:

On Monday night – roughly 36 hours ago from this moment – the Washington Post published an article by its long-time reporter Walter Pincus. The article concocted a frenzied and inane conspiracy theory: that it was WikiLeaks and Julian Assange, working in secret with myself and Laura Poitras, who masterminded the Snowden leaks ahead of time and directed Snowden’s behavior, and then Assange, rather than have WikiLeaks publish the documents itself, generously directed them to the Guardian.

To peddle this tale, Pincus, in lieu of any evidence, spouted all sorts of accusatory innuendo masquerading as questions (“Did Edward Snowden decide on his own to seek out journalists and then a job at Booz Allen Hamilton’s Hawaii facility?” – “Did Assange and WikiLeaks personnel help or direct Snowden to those journalists?” – “Was he encouraged or directed by WikiLeaks personnel or others to take the job as part of a broader plan to expose NSA operations to selected journalists?”) and invoked classic guilt-by association techniques (“Poitras and Greenwald are well-known free-speech activists, with many prior connections, including as founding members in December of the nonprofit Freedom of the Press Foundation” – “Poitras and Greenwald have had close connections with Assange and WikiLeaks”).

Apparently, the Washington Post has decided to weigh in on the ongoing debate over “what is journalism?” with this answer: you fill up articles on topics you don’t know the first thing about with nothing but idle speculation, rank innuendo, and evidence-free accusations, all under the guise of “just asking questions”. You then strongly imply that other journalists who have actually broken a big story are involved in a rampant criminal conspiracy without bothering even to ask them about it first, all while hiding from your readers the fact that they have repeatedly and in great detail addressed the very “questions” you’re posing.

But shoddy journalism from the Washington Post is far too common to be worth noting. What was far worse was that Pincus’ wild conspiracy theorizing was accomplished only by asserting blatant, easily demonstrated falsehoods. [Continue reading…]

John McMurtrie: In “The Shadow Factory,” you wrote that the NSA’s watch list — “of people, both American and foreign, thought to pose a danger to the country” — once had only 20 names on it, then rose to “an astonishing half a million.” Do you know what the figure is now?

James Bamford: The Terrorist Identities Datamart Environment list, known as TIDE, now contains about 875,000 names.

Q: PRISM has reportedly given the NSA access to exabytes of confidential data. To give readers some perspective, roughly how much information is contained in an exabyte? How many books could fit in one?

A: An exabyte is about 960,767,920,505,705 pages of text or about 4,803,839,602,528 books containing 200 pages.

Q: Privacy concerns aside, one of the problems with collecting all this data, you have written, is that “the NSA is akin to Jorge Luis Borges’s “Library of Babel,” a place where the collection of information is both infinite and at the same time monstrous, where the entire world’s knowledge is stored, but not a single word understood.” What does the NSA need to do to make practical use of this data?

A: The problem is the bigger you build the haystack, the harder it is to find the needle. Thus, despite all this collection, the NSA missed the Boston bombing, the underwear bomber and the Times Square bomber. And most, if not all, of the “successes” they point to could have been discovered using much less invasive surveillance. [Continue reading…]

USA Today reports: WikiLeaks says NSA leaker Edward Snowden has not yet formally accepted asylum in Venezuela, quashing a brief but tantalizing tip from a Russian lawmaker that Snowden had decided where he plans to go from Moscow.

WikiLeaks, which has provided logistical help for Snowden since he fled the United States, issued its statement in a tweet.

It was responding to an earlier tweet in Russian sent — then quickly deleted — by Alexei Pushkov, the head of the Russian parliament’s foreign affairs committee.

Later Tuesday, WikiLeaks issued a cryptic tweet stating that on Wednesday “the first phase of Edward Snowden’s ‘Flight of Liberty’ campaign will be launched. Follow for further details.”

The Associated Press reports: A former federal judge who served on a secret court overseeing the National Security Agency’s secret surveillance programs denied Tuesday that the judges act as “rubber stamps.” But James Robertson said the system is flawed because of its failure to allow legal adversaries to question the government’s actions.

“Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” Robertson, a former federal district judge based in Washington who served on the secret Foreign Intelligence Surveillance Court, said during a hearing of the federal oversight board directed by President Barack Obama to scrutinize government spying.

Robertson questioned whether the secret FISA court should play the role of providing legal approval for the surveillance programs, saying the court “has turned into something like an administrative agency.”

Much of the NSA’s surveillance is overseen by the FISA court, which meets in secret and renders rulings that are classified. Some of these rulings also likely been disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the spying program. After Snowden began exposing the NSA’s operations in June, Obama instructed the board to lead a “national conversation” about the secret programs. The board has been given several secret briefings by national security officials and it plans a comprehensive inquiry and a public report on the matter.

The board’s chairman, David Medine, had told The Associated Press in advance of Tuesday’s hearing that “our primary focus will be on the programs themselves. Based on what we’ve learned so far, further questions are warranted.”

Robertson, who said he asked to join the FISA court “to see what it was up to,” had previously played a central role in national security law. Robertson was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006. [Continue reading…]

Part One of the interview can be viewed here.

The following interview via encrypted email, published by Der Spiegel, in which Jacob Appelbaum, a developer of encryption and security software, communicated with Edward Snowden, took place before Snowden’s identity became public.

Interviewer: What is the mission of America’s National Security Agency (NSA) — and how is the job it does compatible with the rule of law?

Snowden: They’re tasked to know everything of importance that happens outside of the United States. That’s a significant challenge. When it is made to appear as though not knowing everything about everyone is an existential crisis, then you feel that bending the rules is okay. Once people hate you for bending those rules, breaking them becomes a matter of survival.

Interviewer: Are German authorities or German politicians involved in the NSA surveillance system?

Snowden: Yes, of course. We’re in bed together with the Germans the same as with most other Western countries. For example, we tip them off when someone we want is flying through their airports (that we for example, have learned from the cell phone of a suspected hacker’s girlfriend in a totally unrelated third country — and they hand them over to us. They don’t ask to justify how we know something, and vice versa, to insulate their political leaders from the backlash of knowing how grievously they’re violating global privacy.

Interviewer: But if details about this system are now exposed, who will be charged?

Snowden: In front of US courts? I’m not sure if you’re serious. An investigation found the specific people who authorized the warrantless wiretapping of millions and millions of communications, which per count would have resulted in the longest sentences in world history, and our highest official simply demanded the investigation be halted. Who “can” be brought up on charges is immaterial when the rule of law is not respected. Laws are meant for you, not for them.

Interviewer: Does the NSA partner with other nations, like Israel?

Snowden: Yes. All the time. The NSA has a massive body responsible for this: FAD, the Foreign Affairs Directorate. [Continue reading…]

Daniel Ellsberg writes: Many people compare Edward Snowden to me unfavorably for leaving the country and seeking asylum, rather than facing trial as I did. I don’t agree. The country I stayed in was a different America, a long time ago.

After the New York Times had been enjoined from publishing the Pentagon Papers — on June 15, 1971, the first prior restraint on a newspaper in U.S. history — and I had given another copy to The Post (which would also be enjoined), I went underground with my wife, Patricia, for 13 days. My purpose (quite like Snowden’s in flying to Hong Kong) was to elude surveillance while I was arranging — with the crucial help of a number of others, still unknown to the FBI — to distribute the Pentagon Papers sequentially to 17 other newspapers, in the face of two more injunctions. The last three days of that period was in defiance of an arrest order: I was, like Snowden now, a “fugitive from justice.”

Yet when I surrendered to arrest in Boston, having given out my last copies of the papers the night before, I was released on personal recognizance bond the same day. Later, when my charges were increased from the original three counts to 12, carrying a possible 115-year sentence, my bond was increased to $50,000. But for the whole two years I was under indictment, I was free to speak to the media and at rallies and public lectures. I was, after all, part of a movement against an ongoing war. Helping to end that war was my preeminent concern. I couldn’t have done that abroad, and leaving the country never entered my mind. [Continue reading…]