David Corn

David Corn

Washington Bureau Chief

Corn has broken stories on presidents, politicians, and other Washington players. He's written for numerous publications and is a talk show regular. His best-selling books include Hubris: The Inside Story of Spin, Scandal, and the Selling of the Iraq War.

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Snowden's Odd Email to the NSA Deepens the Mystery

| Thu May 29, 2014 4:21 PM EDT

So you're in the middle of the biggest secrets-blowing caper in the history of the known universe. You're one of a small number of people who have access to the most classified information about the most classified spying programs of the most powerful superpower—and you're swiping tens of thousands of pages of these secrets and preparing to hand them over to journalists. You've already made contact with your recipients—and it was harder than you thought to do so. You've switched jobs, moving from one contractor to another, in order to snatch more of the documents you want revealed to the unknowing public. You're scraping NSA servers. You're watching your back. Oh damn, you are certainly watching your back. You know the people you work for can monitor who gets in and out of the system, and though you are one of the few with the keys to the crypt, you have to be worried—scratch that, paranoid, and rightfully so—that someone's going to wise up. You make a slip—they might be watching right now—and the alarms go off. And it's no more Hawaiian paradise. It's federal prison. But you're committed. You have your plan. You're about to send a security kit to an American reporter who lives in Brazil and works for a British outlet so you can communicate via a safe and encrypted mechanism. You're keeping all of this secret from your live-in girlfriend. You're thinking about your getaway. Iceland, maybe Iceland. You know that you are engaged in risky business. You could end up changing the world. You could end up dead. Yes, dead. On the run, some times things happens. It's possible. Oh, what was that sound? Did something weird just happen with your laptop? Did a strange car drive past the house not once but twice? Man, this is intense.

And in the middle of this adrenalin-laced stretch—on April 5, 2013, a mere weeks before you start slipping that journalist top-secret docs exposing the USG's biggest secrets and then head to Hong Kong to meet him and his compatriots—you send an email to the NSA's general counsel's office, posing a rather prosaic query. One question: Why?

Today the NSA released an email Edward Snowden sent its general counsel on that date. The spy agency was responding to NBC News reporting that it had confirmed that the NSA had received an email from Snowden before he leaked all those documents expressing "policy and legal" concerns. This report seemed to bolster Snowden's claim that he had alerted intelligence officials of his profound concerns about the NSA's extensive surveillance programs before taking matters into his own hand and becoming a whistleblower. But when the NSA put out the email—claiming it was the only communication of this sort it had received from Snowden—there was a surprise: Snowden had not contacted the NSA's top lawyers about possible abuses within the NSA. He had asked questions regarding information in a training course. The course had covered the "Hierarchy of Governing Authorities" for federal action. At the top of the chain was the US Constitution. Right below were federal statutes and presidential executive orders. Snowden wanted to know which of the two ranked higher. "My understanding is that EOs may be superseded by federal statutes, but EOs may not override statute," he wrote. " Am I incorrect in this?" And he had a similar question about Pentagon regulations and Office of Director of National Intelligence (ODNI) rules. 

That was it. A simple query about training material.

Someone in the general counsel's office—the person's name is redacted—replied quickly and informed Snowden that EOs cannot override a statute and that Defense Department and ODNI regs "are afforded similar precedence." This NSA official helpfully added, "Please give me a call if you would like to discuss further." Apparently, if the NSA is to be believed, Snowden was satisfied and did not follow up. 

Why would a fellow currently mounting a significant penetration of an intelligence agency choose on his own to contact the lawyers for that agency and ask these questions? Why did he care about this? Why would he want to be on their radar screen at all at this time? Was he trying to establish some sort of paper trail? Was he worried that he had left a clue somewhere about his ongoing operation and thought such a note would divert attention?

This is a puzzler. Snowden comes across as a smart and thorough fellow who sure knows how to plan well. But how does this email fit into the plan? Marcy Wheeler suggests that Snowden was trying to get the NSA lawyers to admit that the agency saw EOs as top dogs (to prove, in a way, that the NSA was using one particular EO to trump laws that might limit its surveillance activities). Until Snowden explains this email himself, it's hard to know if this is correct. If so, Snowden would be even a cooler cucumber. It's hard to imagine a fellow who's about to sabotage an entire intelligence community deciding that this is a good time to play mind games with the lawyers at the NSA and possibly draw notice. In all his interviews, Snowden hasn't mentioned that he sought to squeeze this kind of secret out of the NSA as he was filling up disk drives with its most sensitive documents. 

So here is a new question about Snowden. And the question remains: whether (and how) Snowden tried to go through channels before going to Greenwald and the Washington Post. 

The ACLU, which represents Snowden, says of this email controversy, "This whole issue is a red herring. The problem was not some unknown and isolated instance of misconduct. The problem was that an entire system of mass surveillance had been deployed—and deemed legal—without the knowledge or consent of the public. Snowden raised many complaints over many channels. The NSA is releasing a single part of a single exchange after previously claiming that no evidence existed." (Mother Jones asked the ACLU if it could share more of this email exchange, and it said it didn't "have any other info.")

Yes, the big picture is still there: How far over the line did the NSA go with its surveillance programs, and what ought to be done about that? But Snowden's tale is also captivating, and the release of this email today adds to the mystery.

UPDATE: Several hours after the NSA released the Snowden email, Snowden told the Washington Post, "Today’s release is incomplete, and 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 EO 12333 to avoid Congressional reporting requirements and regulations."

Snowden insisted that he had tried to work within the system: "If the White House is interested in the whole truth, rather than the NSA’s clearly tailored and incomplete leak today for a political advantage, it will require the NSA to ask my former colleagues, management, and the senior leadership team about whether I, at any time, raised concerns about the NSA’s improper and at times unconstitutional surveillance activities. It will not take long to receive an answer."

Snowden said there were other relevant emails (presumably sent to the NSA) "not just on this topic. I’m glad they’ve shown they have access to records they claimed just a few months ago did not exist, and I hope we’ll see the rest of them very soon." He maintained, "I showed numerous colleagues direct evidence of programs that those colleagues considered unconstitutional or otherwise concerning. Today’s strangely tailored and incomplete leak only shows the NSA feels it has something to hide."

If Snowden did have more extensive correspondence with the NSA, he and/or the agency should be able to resolve the question of what he sought to do before revealing the NSA's most important secrets..

Is Obama a Realist, Isolationist, Humanitarian Interventionist, or Drone-Dropping Hawk?

| Wed May 28, 2014 10:39 AM EDT

Since the end of the Cold War, foreign policy has become much more challenging. In a post-bipolar world where nonstate actors pose real threats and disrupters (good and bad) are everywhere, the issues are knottier and unforeseen developments often yield difficult options. In the aftermath of 9/11, George W. Bush chose not to come to terms with this fundamental change. Instead, he opted for a blunderbuss policy dominated by a misguided invasion of Iraq. President Barack Obama inherited a helluva cleanup job. And as he had handled the details—such as winding down the wars in Iraq and Afghanistan—he has had tried to articulate an overall strategy. His latest stab at this was the speech he delivered to West Point graduates this morning.

Early in the address, Obama noted, "you are the first class to graduate since 9/11 who may not be sent into combat in Iraq or Afghanistan." The young men and women before him cheered. It was a poignant moment. Then Obama proceeded to outline a larger vision. He summed up his stance in these lines:

[S]ince George Washington served as commander in chief, there have been those who warned against foreign entanglements that do not touch directly on our security or economic well-being. Today, according to self-described realists, conflicts in Syria or Ukraine or the Central African Republic are not ours to solve. Not surprisingly, after costly wars and continuing challenges at home, that view is shared by many Americans.

A different view, from interventionists on the left and right, says we ignore these conflicts at our own peril; that America's willingness to apply force around the world is the ultimate safeguard against chaos, and America's failure to act in the face of Syrian brutality or Russian provocations not only violates our conscience, but invites escalating aggression in the future.

Each side can point to history to support its claims. But I believe neither view fully speaks to the demands of this moment. It is absolutely true that in the 21st century, American isolationism is not an option. If nuclear materials are not secure, that could pose a danger in American cities. As the Syrian civil war spills across borders, the capacity of battle-hardened groups to come after us increases. Regional aggression that goes unchecked—in southern Ukraine, the South China Sea, or anywhere else in the world—will ultimately impact our allies, and could draw in our military.

Beyond these narrow rationales, I believe we have a real stake—an abiding self-interest—in making sure our children grow up in a world where schoolgirls are not kidnapped, where individuals aren't slaughtered because of tribe or faith or political beliefs. I believe that a world of greater freedom and tolerance is not only a moral imperative—it also helps keep us safe.

But to say that we have an interest in pursuing peace and freedom beyond our borders is not to say that every problem has a military solution. Since World War II, some of our most costly mistakes came not from our restraint, but from our willingness to rush into military adventures—without thinking through the consequences, without building international support and legitimacy for our action, or leveling with the American people about the sacrifice required. Tough talk draws headlines, but war rarely conforms to slogans. As General Eisenhower, someone with hard-earned knowledge on this subject, said at this ceremony in 1947: "War is mankind's most tragic and stupid folly; to seek or advise its deliberate provocation is a black crime against all men."

This is not new. Obama chooses no specific camp. He does not truck with so-called realists and isolationists who do not want the United States to be involved with overseas conflicts that do not directly and immediately threaten the United States. Nor does he side with interventionists who call for US military engagement in trouble spots around the world. Cognizant of the costs of war (money, lives, and more), he does not want to overcommit the United States. Citing the costs of nonaction and the interconnectedness of today's world, he does not want to remain on the global sidelines. He's certainly no neocon eager to deploy US military resources overseas to intervene in Syria or to up the ante with Russia regarding Ukraine. (Obama announced he would boost efforts to help Jordan, Lebanon, Turkey, and Iraq, deal with refugees and cross-border terrorists from Syria, and "ramp up" support for elements of the Syrian opposition "who offer the best alternative to terrorists and a brutal dictator." He said he would keep working with the IMF and allies to bolster Ukraine and its economy and isolate Russia.) But Obama did defend his use of drone strikes. He noted, "In taking direct action, we must uphold standards that reflect our values. That means taking strikes only when we face a continuing, imminent threat, and only where there is near certainty of no civilian casualties. For our actions should meet a simple test: We must not create more enemies than we take off the battlefield." (Yet his administration has not always met this standard.)

For years, Obama has been trying to form and sell a balanced approach that justifies certain military interventions and limits others—while redefining national security interests to include climate change and other matters. That's a tough task. The world is not a balanced place. It's likely that Obama's handling of foreign policy will continue to be judged on a case-by-case basis and less on the establishment of an integrated doctrine. Given the global challenges of this era, a grand plan may not be realistic.

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