Passport-less Edward Snowden remains in the transfer area of Moscow’s Sheremetyevo International Airport seeking asylum—to land somewhere else, eventually. This transient location is not the best place from which to help force an overdue debate on clandestine activities of the National Security Agency (NSA). His self-made predicament coincides with a new poll that reveals that more Americans have begun to question the appropriateness of electronic eavesdropping conducted within the shadowy corners of the U.S. government.
Snowden’s conscientious “leaks” prompted me to wonder how many of my own email messages and phone calls with Iraqis and Afghans and other foreigners might have been intercepted and then archived, somewhere, under whatever secret government fiat or rationale. American citizenship guarantees certain privileges and, supposedly, protections—including not being snooped on by one’s own government.
Or does it?
As a former U.S. government official for over a decade with a top-secret-level security clearance, I remain in regular contact with many foreigners. They reside in countries as diverse as Norway, Jordan, Honduras, Singapore, Denmark, and Brazil. Consecutive State Department tours in Iraq and Afghanistan also required me to collaborate closely with a tough cast of warzone characters—in Fallujah, Baghdad, Sadr City, Khost, Helmand. I also befriended numerous international diplomats while representing U.S. interests in New York City at the U.S. Mission to the United Nations. I email and speak to many of them frequently—and none, needless to say, are terrorists. To this day my emails and phone calls weekly cross at least a dozen borders.
Curious and motivated by Snowden’s case, on June 24 I sent a straightforward Freedom of Information Act (FOIA) request to the NSA. The online submission form allows requesters “up to 5000 characters” to make a case.
The agency’s website has a modern-day Orwellian look, pixelated and colored in shades of a soothing sky blue. Alongside eagle and star insignias, the top-of-the-page banner reads, NATIONAL SECURITY AGENCY, CENTRAL SECURITY SERVICE: Defending Our Nation. Securing The Future.
The site flashes scrolling headlines: “America’s Codebreakers and Codemakers”; “NSA History”; and “The Cyber World.” Graphics include thick bundled orange wires, spaghetti-like, and a translucent globe, covered with zigzagging lines that resemble an electronic spiderweb—and just as sticky, I assume.
Below is my FOIA request:
Hello, I am a former State Department official. I spent seven years in Iraq and Afghanistan (Fallujah, Khost, Sadr City and Helmand) from 2003-2010, mostly advising U.S. Marine generals. I have left government service but remain in touch with Iraqis and Afghans. They email and have phoned me on occasion, including to the present.
Requests:
1) What intercepts (email, phone calls) have NSA/other USG intel services conducted in my communications with Iraqis or Afghans?
2) Under what procedures were these communications “captured” and then recorded or archived?
Did my status as an AmCit [American Citizen] figure into your "rules"—what are they?
(NOTE: I held a TS/SCI clearance during my time as a political officer in the State Department.)
Thank you for your assistance. I would appreciate hearing how long you think it will take to consider this request and provide a formal response.
Best regards, John Kael Weston
***
The official denial letter from Fort George G. Meade (named after the Gettysburg Union general) got to me quickly, too quickly. It hit my mailbox a mere week after I submitted the FOIA request. Mr. McFeely could hardly have delivered it any faster. The review seemed perfunctory, a pro forma rejection. Ironically, within a day of the NSA’s reply, I received the following message from an Afghan medical student outside Kabul:
very happy to hear from you. and i have just succisfully finished my examination(10th semester) the most difficult &boring and now i'm at home (summer vocation) & tow more semesters are need to finish ensha allah . At the current time jalalabad's most warm with a peacefull city .but at districts the nomber of taliban are getting rise... especially at night the disturb people and stop cars ... My hometown is near the Bagram if it is possible we may visit at september. Best regards
I can only assume the NSA intercepted the email, swept up unintentionally (or not?) as another swirl of electrons transmitted across cyberspace … but who really knows? Well, let me rephrase that: the NSA knows.
I do not, nor does my Afghan friend who sent a harmless update via Hotmail. The digital wizards in Maryland term it capturing “upstream” and “downstream” data, raw intelligence to be vacuumed up in the NSA dragnet.
Written in impenetrable prose, the “Initial Denial Authority” letter cited the various reasons why my FOIA request had been turned down. Does the NSA house an “Initial Approval Authority” as well? Here’s the full text:
The bureaucratic legalese spread across three single-spaced pages only reinforced my misgivings, lawyers issuing lawyerly explanations that read as obfuscations: “Under Sec. 215 of the USA PATRIOT Act, as authorized by the Foreign Intelligence Surveillance Court (“FISC”); “Executive Order 13526, as set fort in Subparagraph (c) of Section 1.4”; and, my favorite, “The specific statutes applicable in this case are: Title 18 U.S. Code 798; Title 50 U.S. Code 3024(i) (formerly Title 50 U.S. Code 403-l(i)); and Section 6, Public Law 86-36 (50 U.S. Code 3605, formerly 50 U.S. Code 402 note).
Well, the State Department taught us how to communicate in readable prose, not legalese—one of the advantages for Wikileaks. The public and reporters realized diplomats more often than not could write. I would have been fired if I’d submitted obtuse diplomatic cables like this wordage.
Perhaps I should not have been surprised and disappointed with the NSA’s response, but I was. Too many parts of their missive echoed of George Orwell, with an updated “Ministry of Truth” of sorts located in a Washington, D.C., suburb. There, those officious with Juris Doctorates and anonymous computer programmers with comp-sci degrees from brainiac institutions like MIT and Cal Tech, I bet, have the final say, when they should not. Our elected leaders, including the president, seem mostly MIA on the NSA. I hear silence or a few murmurs at most, not shouts.
Translation please? I thought after rereading the letter a third time.
***
President Lyndon Baines Johnson signed into law the Freedom of Information Act on July 4, 1966. At its core is the notion of the people’s “right to know” with the FOIA applying only to the Executive branch. Legislated caveats include provisions that might put at risk national defense or foreign policy. In my own request, I do not see how the equivalent of an admission of “yes, we snooped on you” or “no, we did not” would undercut U.S. national security—an area I know well having spent my professional career advancing U.S. foreign policy and national security. A yes? A no? That’s all I seek. Instead I’m left with a glaring maybe.
What is more disconcerting is the black hole into which these FOIA requests to the NSA disappear. Little has been offered on the record. Director of National Intelligence James Clapper, for example, had to clarify as “erroneous” his prior comments about government surveillance programs. Other than these limited recent statements in Capitol Hill testimony, no rules or procedures have been spelled out regarding safeguards for American citizens’ communications.
Why not? Gray areas made grayer invariably lead to overreach and abuse. Snowden has stated as much, and he would know. I wonder whether any FOIA requests similar to my own have been greenlighted. Doubtful. I hope I’m wrong.
Trust but verify, I am reminded—the mantra of the most famous Republican Cold War president, Ronald Reagan.
Verify, and then trust, I say.
The part of the denial letter that disturbed me most was the use of “our adversaries”—an über-Orwellian construct to my ears given the potential domestic frame. The NSA might define “them” as foreign governments and their own intelligences services, such as the Chinese or Iranians—and Europeans, who spy too. But what came to my mind were those well-trained, well-armed adversaries in both Iraq and Afghanistan who shot bullets at me, launched RPGs overhead, and mortared the forward operating bases I shared with Marines.
Across ten years, I defended and explained my beloved country to foreigners, whether they wore dishdashas or suits, once carried an AK-47 or were educated at Moscow State Institute of International Relations. My goal? Bridge differences, reduce the number of U.S. enemies, and overcome diplomatic opposition. It was an honor to represent the United States of America. It was hard and sometimes dangerous work. In Iraq, Afghanistan, and in the U.N. Security Council’s Al Qaida and Taliban Sanctions Committee, I spoke to our freedoms, not our naval fleets and air armadas. These safeguards are enshrined in the Constitution—the ultimate “sources and methods” document—and exercised in a democratic form of government.
America’s story, one of immigrants, a Bill of Rights, “a decent respect to the opinions of mankind,” even a Supreme Court case titled United States v. Richard Milhous Nixon, President of the United States, et al., resonated. Our history and resilience spoke to a shared present and possibly better future for the people I encountered.
Khost University and Baghdad University students told me in 2007 and 2008 they still looked to our tradition of rule of law, protected liberties, and transparency as a model, despite the stains of Abu Ghraib, Guantánamo Bay, and the unnecessary “preemptive” war in Iraq. Our government’s covert gaze inward feels wrong, un-American if not illegal, a conflation of legitimate counter-terrorism vigilance directed at true foreign enemies with an abuse of unchecked and bureaucratized power. Verizon (I’m a customer). Microsoft. Google. Yahoo. Fort Meade, Inc. Subsidiaries?
This situation is indeed different, less Tom Clancy cloak-and-dagger and more an all-seeing digital omnipresence by way of tapped fiber optics and intercepted airwaves absent sufficient oversight. The FISA judicial panel has approved virtually all surveillance requests across both the Bush and Obama administrations. According to a recent New York Times story, the FISA judges have granted a significant expansion of intelligence gathering. Most of their rulings have come after 9/11. The court only hears one side of any case: the government’s. That’s a perfectly scary batting average, leaving us to wonder about the exact adjudication process followed by select judges clad in black robes meeting in secret.
A top U.S. Marine general emailed me regarding my FOIA request (not from overseas, so our communication might have remained private), noting, “Wow, that is really an amazing response. You now have a case number. I have lots of Iraq and Afg e-mails as well.”
Wea culpa.
An open question hangs heavily: Does the NSA and administration consider North Carolina–born U.S. citizen Edward Snowden to be one of “our adversaries” or something else? An updated type of “enemy combatant” perhaps or “traitor” on a digital battlefield?
I do not believe he is any of these: adversary, enemy, or traitor. But I also do not consider him to be a hero—a nuanced view seemingly shared by other Americans, maybe even a majority. Snowden followed his conscience, albeit all the way to the Russian capital rather than to any number of surely welcoming American cities, megaphone rightly in hand. His limited geographic options for asylum are not bastions of freedom of speech. Russia. Cuba. Venezuela. Snowden’s case would be more persuasive if voiced back home in person—even (especially?) if from behind bars.
***
I will be appealing the NSA’s denial. While I am not sure who or how they will review my FOIA Case number 71538, I can only hope it’s in line with the long democratic traditions of my country. A FOIA request taken seriously—yes, the public’s “right to know.” The deciders within the “NSA/CSS FOIA Appeal Authority” declare they “will endeavor to respond to the appeal within 20 working days after receipt, absent any unusual circumstances.”
Stay tuned. The NSA’s Freedom of Information Act website warrants more attention from American citizens. Each of us has been allotted 5,000 characters, after all, to make our case to the government that represents us.
Will we get answers from good old Uncle Sam? Or remain in the dark compliments of Big Brother?
Visit the NSA website, submit a FOIA request, and join others like me in finding out.
It’s the American thing to do, especially when 2013 is starting to look a bit too much like 1984.
