John Cassidy writes: As the repercussions of Edward Snowden’s leaks about domestic surveillance continue to be debated, law professors and lawyers for the Bush and Obama Administrations are out in force, claiming that the spying agencies have done nothing wrong and it’s all much ado about nothing.

In the Financial Times, Philip Bobbitt, a law professor at Columbia who has worked in Democratic and Republican administrations, argued that the National Security Agency, in sweeping up a big part of the nation’s phone records, was upholding the law rather than subverting it. At the influential Lawfare blog, Joel F. Brenner, a legal consultant who between 2006 and 2009 was the head of counterintelligence at the White House, trotted out similar arguments and claimed that the United States “has the most expensive, elaborate, and multi-tiered intelligence oversight apparatus of any nation on Earth.” On the op-ed page of the Wall Street Journal, Michael Mukasey, who served as Attorney General in the Bush Administration, questioned whether there has even been a meaningful infringement of privacy, writing, “The claims of pervasive spying, even if sincere, appear not merely exaggerated, but downright irrational.”

To which, my reply is: Lord save us from lawyers, especially the big shots who graduate from élite law schools and advise administrations. (Brenner is a Harvard man; Bobbitt and Mukasey are Yalies.) With some honorable exceptions, their primary function is protecting the interests of the political and corporate establishments, often by finding some novel and tendentious way to legitimate their self-interested actions. When lesser mortals object, they turn around and accuse them of being ignorant of the law. [Continue reading…]

Matthew M. Aid writes: This weekend, U.S. President Barack Obama sat down for a series of meetings with China’s newly appointed leader, Xi Jinping. We know that the two leaders spoke at length about the topic du jour — cyber-espionage — a subject that has long frustrated officials in Washington and is now front and center with the revelations of sweeping U.S. data mining. The media has focused at length on China’s aggressive attempts to electronically steal U.S. military and commercial secrets, but Xi pushed back at the “shirt-sleeves” summit, noting that China, too, was the recipient of cyber-espionage. But what Obama probably neglected to mention is that he has his own hacker army, and it has burrowed its way deep, deep into China’s networks.

When the agenda for the meeting at the Sunnylands estate outside Palm Springs, California, was agreed to several months ago, both parties agreed that it would be a nice opportunity for President Xi, who assumed his post in March, to discuss a wide range of security and economic issues of concern to both countries. According to diplomatic sources, the issue of cybersecurity was not one of the key topics to be discussed at the summit. Sino-American economic relations, climate change, and the growing threat posed by North Korea were supposed to dominate the discussions.

Then, two weeks ago, White House officials leaked to the press that Obama intended to raise privately with Xi the highly contentious issue of China’s widespread use of computer hacking to steal U.S. government, military, and commercial secrets. According to a Chinese diplomat in Washington who spoke in confidence, Beijing was furious about the sudden elevation of cybersecurity and Chinese espionage on the meeting’s agenda. According to a diplomatic source in Washington, the Chinese government was even angrier that the White House leaked the new agenda item to the press before Washington bothered to tell Beijing about it.

So the Chinese began to hit back. Senior Chinese officials have publicly accused the U.S. government of hypocrisy and have alleged that Washington is also actively engaged in cyber-espionage. When the latest allegation of Chinese cyber-espionage was leveled in late May in a front-page Washington Post article, which alleged that hackers employed by the Chinese military had stolen the blueprints of over three dozen American weapons systems, the Chinese government’s top Internet official, Huang Chengqing, shot back that Beijing possessed “mountains of data” showing that the United States has engaged in widespread hacking designed to steal Chinese government secrets. This weekend’s revelations about the National Security Agency’s PRISM and Verizon metadata collection from a 29-year-old former CIA undercover operative named Edward J. Snowden, who is now living in Hong Kong, only add fuel to Beijing’s position.

But Washington never publicly responded to Huang’s allegation, and nobody in the U.S. media seems to have bothered to ask the White House if there is a modicum of truth to the Chinese charges. [Continue reading…]

The South China Morning Post interviewed Snowden yesterday: Snowden believed there had been more than 61,000 NSA hacking operations globally, with hundreds of targets in Hong Kong and on the mainland.

“We hack network backbones – like huge internet routers, basically – that give us access to the communications of hundreds of thousands of computers without having to hack every single one,” he said.

“Last week the American government happily operated in the shadows with no respect for the consent of the governed, but no longer. Every level of society is demanding accountability and oversight.”

Snowden said he was releasing the information to demonstrate “the hypocrisy of the US government when it claims that it does not target civilian infrastructure, unlike its adversaries”.

“Not only does it do so, but it is so afraid of this being known that it is willing to use any means, such as diplomatic intimidation, to prevent this information from becoming public.”

The South China Morning Post reports: Edward Snowden says he wants to ask the people of Hong Kong to decide his fate after choosing the city because of his faith in its rule of law.

The 29-year-old former CIA employee behind what might be the biggest intelligence leak in US history revealed his identity to the world in Hong Kong on Sunday. His decision to use a city under Chinese sovereignty as his haven has been widely questioned – including by some rights activists in Hong Kong.

Snowden said last night that he had no doubts about his choice of Hong Kong.

“People who think I made a mistake in picking Hong Kong as a location misunderstand my intentions. I am not here to hide from justice; I am here to reveal criminality,” Snowden said in an exclusive interview with the South China Morning Post.

“I have had many opportunities to flee HK, but I would rather stay and fight the United States government in the courts, because I have faith in Hong Kong’s rule of law,” he added.

The Guardian reports: European Union officials have demanded “swift and concrete answers” to their requests for assurances from the US that its mass data surveillance programmes do not breach the fundamental privacy rights of European citizens.

The European commission’s vice-president, Viviane Reding, has sent a letter with seven detailed questions to the US attorney general, Eric Holder Jr, demanding explanations about Prism and other American data snooping programmes.

Reding warns him that “given the gravity of the situation and the serious concerns expressed in public opinion on this side of the Atlantic” she expects detailed answers before they meet at an EU-US justice ministers’ meeting in Dublin on Friday.

She also warns Holder that people’s trust that the rule of law will be respected – including a high level of privacy protection for both US and EU citizens – is essential to the growth of the digital economy, including transatlantic business and the nature of the US response could affect the whole transatlantic relationship. [Continue reading…]

Thomas Drake writes: What Edward Snowden has done is an amazingly brave and courageous act of civil disobedience.

Like me, he became discomforted by what he was exposed to and what he saw: the industrial-scale systematic surveillance that is scooping up vast amounts of information not only around the world but in the United States, in direct violation of the fourth amendment of the US constitution.

The NSA programs that Snowden has revealed are nothing new: they date back to the days and weeks after 9/11. I had direct exposure to similar programs, such as Stellar Wind, in 2001. In the first week of October, I had an extraordinary conversation with NSA’s lead attorney. When I pressed hard about the unconstitutionality of Stellar Wind, he said:

“The White House has approved the program; it’s all legal. NSA is the executive agent.”

It was made clear to me that the original intent of government was to gain access to all the information it could without regard for constitutional safeguards. “You don’t understand,” I was told. “We just need the data.”

In the first week of October 2001, President Bush had signed an extraordinary order authorizing blanket dragnet electronic surveillance: Stellar Wind was a highly secret program that, without warrant or any approval from the Fisa court, gave the NSA access to all phone records from the major telephone companies, including US-to-US calls. It correlates precisely with the Verizon order revealed by Snowden; and based on what we know, you have to assume that there are standing orders for the other major telephone companies.

It is technically true that the order applies only to meta-data. The problem is that in the digital space, metadata becomes the index for content. And content is gold for determining intent. [Continue reading…]

The Los Angeles Times reports: [A]nalysts said that Snowden seems to have greatly exaggerated the amount of information available to him and people like him.

Any NSA analyst “at any time can target anyone, any selector, anywhere,” Snowden told the Guardian. “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.”

Robert Deitz, a former top lawyer at the NSA and CIA, called the claim a “complete and utter” falsehood.

“First of all it’s illegal,” he said. “There is enormous oversight. They have keystroke auditing. There are, from time to time, cases in which some analyst is [angry] at his ex-wife and looks at the wrong thing and he is caught and fired,” he said.

NSA analysts who have the authority to query databases of metadata such as phone records — or Internet content, such as emails, videos or chat logs — are subject to stringent internal supervision and also the external oversight of the foreign surveillance court, former NSA officials said.

“It’s actually very difficult to do your job,” said a former senior NSA operator, who also declined be quoted by name because of the sensitive nature of the case. “There are all these checks that don’t allow you to move agilely enough.”

For example, the former operator said, he had go through an arduous process to obtain FISA court permission to gather Internet data on a foreign nuclear weapons proliferator living abroad because some of the data was passing through U.S. wires.

“When he’s saying he could just put any phone number in and look at phone calls, it just doesn’t work that way,” he said. ” It’s absurd. There are technical limits, and then there are people who review these sorts of queries.”

He added, “Let’s say I have your email address. In order to get that approved, you would have to go through a number of wickets. Some technical, some human. An individual analyst can’t just say, ‘Oh, I found this email address or phone number.’ It’s not simple to do it on any level, even for purely foreign purposes.”

The former senior government official said that as a computer expert, Snowden could have gained access on the NSA computer network to some of the documents he purportedly leaked. But other documents he claims that he provided to the Guardian and the Washington Post, such as the FISA order, are in theory supposed to be kept more tightly held, he said.

One of the issues investigators will be examining is “what access was he granted and what access did he gain” himself in order to obtain the documents, the former official said.

The Los Angeles Times reports: Google is asking the Obama administration for permission to disclose more information about requests it gets from national intelligence agencies for its users’ emails and other online communications.

The technology giant made the request in a letter to Atty. Gen. Eric H. Holder Jr. and FBI Director Robert S. Mueller III on Tuesday.

Google is trying to counteract damaging media reports that the company allows the National Security Agency access to users’ online communications.

“Assertions in the press that our compliance with these requests gives the U.S. government unfettered access to our users’ data are simply untrue,” Google’s chief legal officer, David Drummond, said in a blog post. “However, government nondisclosure obligations regarding the number of FISA (Foreign Intelligence Surveillance Act) national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation.”

Google and other technology companies came under scrutiny last week after a government contractor leaked confidential documents revealing that the NSA has been receiving information from Google and other services, including data from U.S. phone call records and online communications to and from foreign targets.

Google and other companies insist that they only give up user communications when required by law, and they dispute certain details in reports in the Guardian and Washington Post newspapers that detailed their roles in an NSA data collection program called PRISM.

Presentations, by their very nature, just as often portray goals as they do actualities and PowerPoint is perhaps the tool par excellence in conjuring up the simplistic outlines of a make-believe world.

It’s possible that Google is now engaged in some PR theatrics — making a request that it knows will be turned down — but my hunch is that they would in fact be vindicated by full disclosure of the facts.

And if that’s the case, then the publication of all 41 slides from the NSA PRISM PowerPoint presentation might not result in the revelation of secrets that would be particularly damaging to national security per se. The damage might derive as much from American citizens becoming aware of what the NSA would like to do as it does from awareness of what it is actually doing. In other words, a need for the continued secrecy of the contents of these slides, might be more important for protecting the reputation of the NSA rather than protecting the operations of the agency.

The American Civil Liberties Union and the New York Civil Liberties Union today filed a constitutional challenge to a surveillance program under which the National Security Agency vacuums up information about every phone call placed within, from, or to the United States. The lawsuit argues that the program violates the First Amendment rights of free speech and association as well as the right of privacy protected by the Fourth Amendment. The complaint also charges that the dragnet program exceeds the authority that Congress provided through the Patriot Act.

“This dragnet program is surely one of the largest surveillance efforts ever launched by a democratic government against its own citizens,” said Jameel Jaffer, ACLU deputy legal director. “It is the equivalent of requiring every American to file a daily report with the government of every location they visited, every person they talked to on the phone, the time of each call, and the length of every conversation. The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy.”

Click the “read more” link to see an interactive graphic examining the secret FISA Court order revealed last week. Continue reading →

FBI Director J. Edgar Hoover confering with then President-elect Richard M. Nixon, 1968.

Beverly Gage writes: Since last week’s revelations about the NSA, skeptics have questioned whether expansive intelligence powers might really lead to civil liberties abuses. From a historical perspective, there’s no need to ask: Such abuses have occurred many, many times.

Over the past century, American intelligence agencies have performed some amazing feats, outing Soviet infiltrators, hunting down terrorists, and keeping the homeland reasonably safe from its enemies. They have also used their powers to spy on millions of people engaged in legitimate political activity, and to go after critics in Congress, the media, and the public at large. Given this track record, it’s worth asking not whether such abuses might again occur, but whether we have sufficient reason to believe that they are not going to happen this time around.

To say that the expansion of surveillance powers comes with a high — and historically well-documented — risk of abuse is not to say that the NSA is interested in your cat photos. If you’ve never expressed an edgy political idea, you’re probably not at great personal risk. The people swept into the net at moments of expanded intelligence powers have almost always been outspoken political dissenters or critics of the intelligence establishment. The basic premise of the civil libertarian stance is that what happens to those people matters to all of us — not only because “we might be next” but because the free exchange of political ideas and criticism is the heart of American democracy. [Continue reading…]

Tim Shorrock writes: Amid the torrent of stories about the shocking new revelations about the National Security Agency, few have bothered to ask a central question. Who’s actually doing the work of analyzing all the data, metadata and personal information pouring into the agency from Verizon and nine key Internet service providers for its ever-expanding surveillance of American citizens?

Well, on Sunday we got part of the answer: Booz Allen Hamilton. In a stunning development in the NSA saga, Guardian reporter Glenn Greenwald revealed that the source for his blockbuster stories on the NSA is Edward Snowden, “a 29-year-old former technical assistant for the CIA and current employee of the defense contractor Booz Allen Hamilton.” Snowden, it turns out, has been working at NSA for the last four years as a contract employee, including stints for Booz and the computer-services firm Dell.

The revelation is not that surprising. With about 70 percent of our national intelligence budgets being spent on the private sector – a discovery I made in 2007 and first reported in Salon – contractors have become essential to the spying and surveillance operations of the NSA.

From Narus, the Israeli-born Boeing subsidiary that makes NSA’s high-speed interception software, to CSC, the “systems integrator” that runs NSA’s internal IT system, defense and intelligence, contractors are making millions of dollars selling technology and services that help the world’s largest surveillance system spy on you. If the 70 percent figure is applied to the NSA’s estimated budget of $8 billion a year (the largest in the intelligence community), NSA contracting could reach as high as $6 billion every year. [Continue reading…]

#Snowden demanded all 41 pages of #PRISM document be published but neither WaPo nor Guardian had the courage washingtonpost.com/world/national…

— WikiLeaks (@wikileaks) June 10, 2013

Kevin Poulsen writes: What’s in Edward Snowden’s 41-slide PowerPoint deck that’s so hot that nobody dare publish it?

Now that Snowden has revealed himself to the world as the NSA whistleblower, details about his interaction with the press are surfacing. And at the center of the drama is a still mostly unpublished 41-slide presentation, classified top secret, that Snowden gave to the Washington Post and the Guardian to expose the NSA’s internet spying operation “PRISM.”

Only five slides from the presentation have been published. The other 36 remain a mystery. Both the Guardian’s Glenn Greenwald and the Post’s Barton Gellman have made it clear that the rest of the PowerPoint is dynamite stuff … which we’re not going to be seeing any time soon. “If you saw all the slides you wouldn’t publish them,” wrote Gellman on Twitter, adding in a second tweet: “I know a few absolutists, but most people would want to defer judgment if they didn’t know the full contents.”

But as Gellman himself has reported, Edward Snowden urgently wanted all the slides to be published while also saying: “I don’t desire to enable the Bradley Manning argument that these were released recklessly and unreviewed.”

So, we’re in the curious position where the two journalists the whistleblower is relying on to deliver his message seem to have taken it upon themselves to serve as both messengers and gatekeepers.

If you could see these secret slides you’d know why they must remain secret — that’s exactly the argument the government makes. The Guardian and the Washington Post seem to be casting their source as both responsible and irresponsible.

And let’s not forget: we’re talking about PowerPoint slides and information whose continued secrecy is vital to national security could surely be redacted.

On the other hand, as Edward Tufte duly notes, the NSA itself in its list of useful information sources didn’t bother including PowerPoint presentations.

So, maybe that’s the reason we haven’t seen the remaining 36 slides. When Gellman said, “If you saw all the slides you wouldn’t publish them,” perhaps what he actually meant was that the other 36 slides contain nothing of interest whatsoever.

List of spy-PRISM collected information includes nearly everything, except PPT decks. No useful information at all? twitter.com/EdwardTufte/st…

— Edward Tufte (@EdwardTufte) June 7, 2013

Daniel Ellsberg writes: In my estimation, there has not been in American history a more important leak than Edward Snowden’s release of NSA material – and that definitely includes the Pentagon Papers 40 years ago. Snowden’s whistleblowing gives us the possibility to roll back a key part of what has amounted to an “executive coup” against the US constitution.

Since 9/11, there has been, at first secretly but increasingly openly, a revocation of the bill of rights for which this country fought over 200 years ago. In particular, the fourth and fifth amendments of the US constitution, which safeguard citizens from unwarranted intrusion by the government into their private lives, have been virtually suspended.

The government claims it has a court warrant under Fisa – but that unconstitutionally sweeping warrant is from a secret court, shielded from effective oversight, almost totally deferential to executive requests. As Russell Tice, a former National Security Agency analyst, put it: “It is a kangaroo court with a rubber stamp.”

For the president then to say that there is judicial oversight is nonsense – as is the alleged oversight function of the intelligence committees in Congress. Not for the first time – as with issues of torture, kidnapping, detention, assassination by drones and death squads –they have shown themselves to be thoroughly co-opted by the agencies they supposedly monitor. They are also black holes for information that the public needs to know.

The fact that congressional leaders were “briefed” on this and went along with it, without any open debate, hearings, staff analysis, or any real chance for effective dissent, only shows how broken the system of checks and balances is in this country.

Obviously, the United States is not now a police state. But given the extent of this invasion of people’s privacy, we do have the full electronic and legislative infrastructure of such a state. If, for instance, there was now a war that led to a large-scale anti-war movement – like the one we had against the war in Vietnam – or, more likely, if we suffered one more attack on the scale of 9/11, I fear for our democracy. These powers are extremely dangerous. [Continue reading…]

The New York Times reports: Edward J. Snowden’s employer, Booz Allen Hamilton, has become one of the largest and most profitable corporations in the United States almost exclusively by serving a single client: the government of the United States.

Over the last decade, much of the company’s growth has come from selling expertise, technology and manpower to the National Security Agency and other federal intelligence agencies. Booz Allen earned $1.3 billion, 23 percent of the company’s total revenue, from intelligence work during its most recent fiscal year.

The government has sharply increased spending on high-tech intelligence gathering since 2001, and both the Bush and Obama administrations have chosen to rely on private contractors like Booz Allen for much of the resulting work.

Thousands of people formerly employed by the government, and still approved to deal with classified information, now do essentially the same work for private companies. Mr. Snowden, who revealed on Sunday that he provided the recent leak of national security documents, is among them.

As evidence of the company’s close relationship with government, the Obama administration’s chief intelligence official, James R. Clapper Jr., is a former Booz Allen executive. The official who held that post in the Bush administration, John M. McConnell, now works for Booz Allen.

“The national security apparatus has been more and more privatized and turned over to contractors,” said Danielle Brian, the executive director of the Project on Government Oversight, a nonprofit group that studies federal government contracting. “This is something the public is largely unaware of, how more than a million private contractors are cleared to handle highly sensitive matters.”

It has gone so far, Ms. Brian said, that even the process of granting security clearances is often handled by contractors, allowing companies to grant government security clearances to private sector employees. [Continue reading…]

The Guardian has a video “presenting two expert views on Edward Snowden’s decision to seek refuge in Hong Kong and the likelihood or not of his finding such refuge there.”

Timothy B. Lee notes: If Snowden had chosen to stay in the United States, he would have faced a stark choice: accept a multi-year prison sentence for actions he believed to be in the public interest or go to trial and risk decades in prison if the courts were not persuaded by his legal and constitutional arguments. The American activist Aaron Swartz was facing exactly that choice when he committed suicide in January.

Because of the government’s misconduct in the Ellsberg case, the courts never reached the legal and constitutional merits of prosecuting a whistleblower under the Espionage Act. But as he was going to trial, he would have had reason to be optimistic that the courts would see things his way. The Supreme Court had declared warrantless wiretapping unconstitutional in 1967 and refused to block publication of the Pentagon Papers in 1971.

The current Supreme Court is less sympathetic to civil liberties. For example, earlier this year, the justices threw out a constitutional challenge to the FISA Amendments Act because the plaintiffs could not prove that they had personally been targets of surveillance. Because of the documents Snowden released, we now know that the FISA Amendments Act is the basis for the NSA’s PRISM program.

Julian Borger reports: Just before sovereignty over Hong Kong passed from Britain to China in 1997, the US signed a new extradition treaty with the semi-autonomous territory. Under that treaty, both parties agree to hand over fugitives from each other’s criminal justice systems, but either side has the right of refusal in the case of political offences.

Beijing, which gave its consent for Hong Kong to sign the agreement, also has a right of veto if it believes the surrender of a fugitive would harm the “defence, foreign affairs or essential public interest or policy” of the People’s Republic of China. In short, the treaty makes Snowden’s fate a matter of political expediency not just in Hong Kong but in Beijing.

In his Guardian interview, Snowden denied that his decision to fly to Hong Kong to make his allegations on NSA intrusion and infringement of American civil liberties was intended as a vote of confidence in Chinese human rights. But he noted that the people of Hong Kong have “a spirited commitment to free speech and the right of political dissent”.

Certainly in comparison with mainland China, Hong Kong is an island of press freedom and political tolerance. When the UK ended 156 years of colonial rule and Hong Kong became China’s first ‘special administrative region’, it was given special status under the principle of “one country, two systems”. Most importantly, Hong Kong passed its own constitution, its Basic Law, giving it a “high degree of autonomy” on all issues except foreign relations and defence.

The Washington Post reports: Sen. Rand Paul (R-Ky.) said Sunday that he plans to file a class action lawsuit against the Obama administration for its “unconstitutional” surveillance programs.

On “Fox News Sunday,” Paul said he wants to get the support of 10 million Americans.

“I’m going to be seeing if I can challenge this at the Supreme Court level,” Paul said, according to a rush transcript. “I’m going to be asking all the Internet providers and all of the phone companies, ask your customers to join me in a class action lawsuit. If we get 10 million Americans saying we don’t want our phone records looked at, then somebody will wake up and say things will change in Washington.”

Paul noted that public outcry over two pieces of legislation that raised Internet privacy concerns — known as SOPA and PIPA — proved very successful.

Rory Carroll reports: The campaign on Crowdtilt, an alternative to Kickstarter, has raised over $4,700 and is aiming for $15,000, urging would-be donors: “We should set a precedent by rewarding this type of extremely courageous behavior.”

Dwight Crow, a Facebook employee from San Francisco’s bay area, said he launched the initiative to reward and encourage whistleblowing and because he heard Snowden’s accounts had been frozen.

The Guardian reports: [T]he former foreign secretary Sir Malcolm Rifkind said Britain’s electronic eavesdropping centre would have been in breach of the law if it asked for data about UK citizens without the approval of ministers

As the shadow foreign secretary, Douglas Alexander, said he would challenge Hague to explain the legal basis on which GCHQ operated, Rifkind indicated that he would ask the US National Security Agency (NSA) about the matter this week.

Rifkind, the chairman of parliament’s security and intelligence committee, was speaking after Edward Snowden confirmed he leaked sensitive NSA documents to the Guardian. Snowden said these showed that US agencies had embarked on blanket monitoring of personal data from websites.

The documents suggested that GCHQ had generated 197 intelligence reports from the NSA-run Prism last year. The system would appear to allow GCHQ to bypass formal legal processes to access personal material, such as emails and photographs, from the world’s biggest internet companies.

Rifkind, who was responsible for overseeing GCHQ as foreign secretary between 1995 and 1997, said Snowden had broken the law. He told the Today programme on BBC Radio 4: “If you work for an intelligence agency you are required, as are the rest of us, to obey the law of the land. Revealing classified information is normally a criminal offence and leads to various consequences.”

But he indicated that GCHQ might have also fallen foul of the law if it accepted information from the NSA on British citizens. “One of the big questions that is being asked is if British intelligence agencies want to seek to know the content of emails can they get round the normal law in the UK by simply asking an American agency to provide that information?” he said.