Thursday, 6 October 2016

Don't pardon Snowden

As expected, a nasty nails-on-chalkboard chorus of Edward Snowden supporters are building hoping US President Barack Obama will pardon the man during the last few months of his final term.

Edward Snowden’s 2013 leaks from the National Security Agency (NSA), the equivalent signals intelligence to New Zealand’s Government Communications Security Bureau (GCSB), were the greatest haemorrhaging of legitimate American secrets in the history of the republic.

Mr Snowden’s job, as a contractor at NSA Hawaii, was as a sharepoint manager – a traffic cop for the sharing of information. His having access to something on the order of 500,000 documents was about as suspicious as a librarian being seen with books. Still, the question immediately after his leak was how did it happen again?

When Bradley Manning, a US Army private sitting in a tent in Kuwait, downloaded 250,000 State Department cables in 2010, we now know the US intelligence community began a programme to enact real-time monitoring of its secured internet.

NSA was systematically putting this system into place across its global enterprise. And the last place to be updated was NSA Hawaii. And Snowden knew that. This is why he fought for the Booz Allen contractor job, leaving a good role with Dell. He had the malice of forethought and a goal to steal as much as possible.

Yet whatever he did to accelerate a national debate about privacy, 98% of the material he shoved out the door told the world how the US collects intelligence to keep the country and its allies safe. The community probably should have been more open earlier and it must be transparent to gain sanction from the American people. But as necessary as this is, transparency comes at a cost. It shaves points off the effectiveness of intelligence gathering, but it has to be done otherwise the American people won’t let the community do its task anyway.

What did Mr Snowden actually achieve on this front? Well, the only documented change in US intelligence judicially or legislatively – other than some voluntary restraints – is that the metadata programme he revealed, rather than being kept at NSA, is now kept by US telecommunications providers. After three years, that’s it.

Under President Bush, NSA had access to American metadata. Under President Obama, NSA had access to American metadata. Today, NSA has access to American metadata. There have been some changes between the presidents and pre and post-Snowden, but fundamentally the American political system agrees NSA needs access to US metadata.

His supporters say he acted in the public interest as a whistleblower. But whistleblowing requires the person to outline a violation of law. None of what NSA did was illegal. It was signed off by all three branches of government, multiple times, and by two presidents who couldn’t be more different politically.

The best that could be said about Mr Snowden is that he committed an act of civil disobedience. The American classic for civil disobedience was written by Henry David Thoreau. The author says civil disobedience gets its moral authority by the willingness for the person to stand trial and accept accountability for the consequences of their action. Mr Snowden failed to do this.

And yet his leaks hit a responsive chord. Many Americans, and not just those wearing tinfoil, think government power should be carefully watched. There are only two things an intelligence community needs to be successful: power and secrecy. But inside American political culture the dynamics most distrusted are power and secrecy. That’s a tension the US system will always have to deal with.

The NSA and its allies are slowly getting past the breach, but there’s still an awful lot to be done. Firstly, many foreign intelligence relationships must be repaired. How the agency may or may not have spied is peripheral. The real worry is whether the US can keep anything secret. That’s terribly corrosive to intelligence relationships.

Secondly, the leaks had a major impact on US business which was unfairly singled out. US technology companies don’t do anything less for NSA than Deutschebank does for BND. And French telecommunications companies do a lot more for DGSE with far less oversight. US companies lost business based on the incomplete and false accusations made against them.

Thirdly, NSA's raw operational capacity was deeply hurt. Don’t believe the stories about zero concrete examples of US assets being harmed by the leaks. The heads of both intelligence committees, the directors of NSA, the DNI, the DIA and the president have all said concrete shortfalls in collection based upon Mr Snowden’s exposure of sources and methods are a palpable reality.

Mr Snowden’s secrets didn’t expose some US covert action in Iran. That would have been a leak, filling perhaps a barrel or a cup. His secrets exposed the plumbing. He revealed how NSA collects its intelligence, and, as a result, the US didn’t simply lose data, it lost the capacity to gain data.

Finally, employees at NSA and Five Eyes countries have been slapped around for three years. They read daily indictments about how terrible and disgusting they are for doing a necessary job. That will have a long-term negative effect on morale.

If the president is to issue a pardon, their morale will further decline. It will signal to the community that regardless of legal protection and oversight, of which the NSA and its partners are subject to the most rigorous in the world, the whims and feelings of a lone troubled young man can overrule everything if he uses the amorphous excuse of public interest.

There are stories of married intelligence workers each taking their job so seriously they only discover the other works in the same building when the agency holds an unexpected family open-day. So advisors to Mr Obama should ask him: does he like getting intelligence? Because pardoning Mr Snowden will remove it – entirely. No intelligence professional would ever again risk their life if political consumers are not willing to defend them.

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