House Intel Committee Says Snowden's Not A Whistleblower, 'Cause He Once Emailed His Boss's Boss

A very interesting indictment of the House Intelligence Committee Snowden Report.


from Techdirt



House Intel Committee Says Snowden's Not A Whistleblower, 'Cause He Once Emailed His Boss's Boss: As you probably heard, the ACLU and other have launched a massive campaign asking President Obama to pardon Ed Snowden. You can check it out here and sign the petition. There have also been a bunch of high profile op-eds and endorsements from a wide variety of people -- from former intelligence officials to human rights groups and more. The campaign was obviously timed to coincide with the release of Oliver Stone's new movie, Snowden.





Apparently also timed with the release of the movie, the House Intelligence Committee has released a "report" that they claim they spent two years writing, detailing why they believe Snowden is no whistleblower. They've released an unclassified three page "executive summary" that is, at best, laughable. Honestly, if this is the best that the House Intel Committee can put together to smear Snowden, they must have found nothing bad. I mean, it's the stupidest stuff: like that he once got into a dispute with his boss over some software updates at work and (*gasp*) emailed someone higher up the chain, for which he got reprimanded:

If you can't read that, it says:

Third, two weeks before Snowden began mass downloads of classified documents, he was reprimanded after engaging in a workplace spat with NSA managers. Snowden was

repeatedly counseled by his managers regarding his behavior at work. For example, in June

2012, Snowden became involved in a fiery e-mail argument With a Supervisor about how

computer updates should be managed. Snowden added an NSA senior executive several levels

above the supervisor to the e-mail thread, an action that earned him a swift reprimand from his

contracting officer for failing to follow the proper protocol for raising grievances through the

chain of command. Two weeks later, Snowden began his mass downloads of classified

information from NSA networks. Despite Snowden's later claim that the March 2013

congressional testimony of Director of National Intelligence James Clapper was a "breaking

point" for him, these mass downloads predated Director Clapper's testimony by eight months.

First of all, the inclusion of the email dispute is just... weird. I mean, people have email disputes with co-workers all the time. Is that really a sign that you're not a whistleblower, or that you're just "disgruntled?" If that's really the "dirt" that they dug up on Snowden after two years of research, they really must have nothing that actually sticks.





Oh, and also, as Snowden himself notes, this all kinda works against their point, because it shows that trying to blow the whistle up the chain is... met with reprimands.

@Snowden That doesn't say good things about going through "proper channels" at NSA. Not sure they understand how this hurts their case.

— Edward Snowden (@Snowden) September 15, 2016

Of course, the point that they're really getting at is the second half of that paragraph -- where they claim that he began the downloads way before James Clapper's infamous lie to Senator Ron Wyden. But, again, Snowden points out that they're being totally misleading here (and it must upset the House Intelligence Committee to no end that Snowden is free and able to use Twitter to debunk their claims), because, as has been previously reported in great detail, Snowden was assigned to move a bunch of documents between systems. The "downloading" they're talking about was his job.

@Snowden HEARTBEAT, which seems to be the source of their 1.5m number, was explicited authorized by two levels of my management. I built it.

— Edward Snowden (@Snowden) September 15, 2016

In other words, yes, he touched 1.5 million documents. Because he was told to as a part of his job. It's been more than two years since James Clapper himself admitted that Snowden didn't actually take all of those. That's just the number he "touched" because his job was to move those documents to a different system. Snowden took a much smaller subset, and now they're claiming that him doing his job was him taking the docs.





The report also trots out the usual "harm to national security." We've been hearing this ever since the first leak... and yet no one ever has any evidence to support this. It's the bogeyman argument. And yet, here it is again:

If you can't read that, it says:

First, Snowden caused tremendous damage to national security, and the vast

majority of the documents he stole have nothing to do with programs impacting individual

privacy interests-they instead pertain to military, defense, and intelligence programs of

great interest to America's adversaries. A review of the materials Snowden compromised

makes clear that he handed over secrets that protect American troops overseas and secrets that

provide vital defenses against terrorists and nation-states. Some of Snowden's disclosures

exacerbated and accelerated existing trends that diminished the IC's capabilities to collect

against legitimate foreign intelligence targets, while others resulted in the loss of intelligence

streams that had saved American lives. Snowden insists he has not shared the full cache of 1.5

million classified documents with anyone; however, in June 2016, the deputy chairman of the

Russian parliament's defense and security committee publicly conceded that "Snowden did share

intelligence" with his government. Additionally, although Snowden's professed objective may

have been to inform the general public, the information he released is also available to Russian,

Chinese, Iranian, and North Korean government intelligence services; any terrorist with Internet

access; and many others who wish to do harm to the United States.





The full scope of the damage inflicted by Snowden remains unknown. Over the past

three years, the IC and the Department of Defense (DOD) have carried out separate reviews--with differing methodologies--of the damage Snowden caused. Out of an abundance of caution, DOD reviewed all 1.5 million documents Snowden removed. The IC, by contrast, has carried

out a damage assessment for only a small subset of the documents. The Committee is concerned

that the IC does not plan to assess the damage of the vast majority of documents Snowden

removed. Nevertheless, even by a conservative estimate, the U.S. Government has spent

hundreds of millions of dollars, and will eventually spend billions, to attempt to mitigate the

damage Snowden caused. These dollars would have been better spent on combating America's

adversaries in an increasingly dangerous world.

Note that after a lot of hand-waving, the only actual damage they can even come close to quantifying is the amount of money the US government spent trying to close the barn doors -- i.e., investigate what Snowden had taken and make sure that others couldn't do the same. That's not Snowden's fault. That's very much blaming the messenger. Also, if the US government wasn't illegally spying on Americans, it wouldn't have been an issue. It seems worth noting that key point.





And, again, the report continues to point to the 1.5 million number, despite the fact that it's already been debunked. Again, the reason Snowden moved 1.5 million docs was because that was part of his job -- that wasn't the amount taken. The reason that the Intelligence Community isn't investigating all of those docs is because it has said that Snowden didn't take all of them. Why is the House Intelligence Committee bitching about that?





As for the Russian Parliament member claiming that Snowden shared secrets with Russia, Snowden himself notes that they're misquoting what was said, and that the guy had prefaced his statement by nothing that it was speculation on his part, rather than confirmed fact. You'd think that the House Intel Committee wouldn't go around trading in mere speculation.





As for the claims that "the information he released is also available to Russian, Chinese, Iranian, and North Korean government intelligence services" is also pretty ridiculous. I mean, the documents that have been released (not all of them, and the ones that have been have included redactions) have been placed on the internet, where anyone can read them. The statement about the Russians, Chinese, Iranians, North Koreans and terrorists having access to them is basically the equivalent of "these people have the internet." Yeah, so?





Next on the docket, the House Intel Committee claims that Snowden's not a whistleblower because he (1) didn't go through proper channels (2) he left the country and (3) the NSA surveillance program was all perfectly legal.

If you can't read that, it says:

Second, Snowden was not a whistleblower. Under the law, publicly revealing

classified information does not qualify someone as a whistleblower. However, disclosing

classified information that shows fraud, waste, abuse, or other illegal activity to the appropriate

law enforcement or oversight personnel--including to Congress--does make someone a

whistleblower and affords them with critical protections. Contrary to his public claims that he

notified numerous NSA officials about what he believed to be illegal intelligence collection, the

Committee found no evidence that Snowden took any official effort to express concerns about

U.S. intelligence activities--legal, moral, or otherwise--to any oversight officials within the

U.S. Government, despite numerous avenues for him to do so. Snowden was aware of these

avenues. His only attempt to contact an NSA attorney revolved around a question about the

legal precedence of executive orders, and his only contact to the Central Intelligence Agency

(CIA) Inspector General (IG) revolved around his disagreements with his managers about

Let's stop right there to respond to this load of nonsense. First of all, hiding behind the very technical, narrow legal definition of whistleblower is pretty ridiculous compared to the actual definition that most people use. Snowden revealed a program that involved mass surveillance on nearly all Americans, a program that the intelligence community had directly and officially denied existed. It was, in fact, a program that, from a plain reading of the law, should not exist, and the only way in which it did and could exist was if the government reinterpreted the law, in secret, to mean something completely different. That's pretty clearly whistleblowing. And the fact that the public has spoken out in support of him so much suggests that many people believe this as well.





And that doesn't even mention the fact that after this Congress changed the law to further clarify what the NSA could actually do. In other words, Congress seems to agree that what Snowden did was in the public interest. Even former Attorney General Eric Holder has admitted as much.





And, of course, the claims about "the proper channels" is ridiculous as well. We've written many, many times on what happens to individuals who go through the "proper channels." It often ends with them being put in jail on trumped up charges. Oh, and Snowden, as a contractor rather than gov't employee, had no whistleblower protections under the law anyway. Going through the "proper channels" gets you marked as a troublemaker, and that often leads to more scrutiny and questionable raids... and jail time. And, as if to confirm all this, the guy that Snowden could have reached out to as the "proper channel" had already mocked Snowden and attacked him, so it's not as if that would have been a useful route.





The Committee tries to brush off this concern with the "proper channels" but fails in doing so:

Despite Snowden's later public claim that he would have faced retribution for voicing

concerns about intelligence activities, the Committee found that laws and regulations in effect at

the time of Snowden,s actions afforded him protection. The Committee routinely receives

disclosures from IC contractors pursuant to the Intelligence Community Whistleblower

Protection Act of 1998 (IC WPA). If Snowden had been worried about possible retaliation for

voicing concerns about NSA activities, he could have made a disclosure to the Committee. He

did not. Nor did Snowden remain in the United States to face the legal consequences of his

actions, contrary to the tradition of civil disobedience he professes to embrace. Instead, he fled to

China and Russia, two countries whose governments place scant value on their citizens' privacy

or civil liberties-and whose intelligence services aggressively collect information on both the

United States and their own citizens.

Again, this is wrong. The Whistleblower Act does not actually extend its protections to contractors, and given how the Committee is reacting to Snowden to this day, does anyone actually think they would have done anything if he had approached them -- other than maybe alerting top intel community officials that they had a troublemaker in their midst? As for the claim that Snowden didn't stay in the US to face the "legal consequences," again, is it any wonder why? He knew what had happened to people like Thomas Drake, who the feds tried to put in jail for 35 years because he had a (mistakenly) classified meeting agenda at his home -- a home that was only raided because Drake had blown the whistle on another program. He'd seen what happened to Chelsea Manning, held in solitary confinement for leaking documents to Wikileaks. He'd seen what happened to countless others.





The very fact that Snowden is free today and able to tweet responses to this ridiculous smear campaign shows exactly why he didn't choose to stay in the US where they would have locked him up and thrown away the key.

To gather the files he took with him when he left the country for Hong Kong, Snowden

infringed on the privacy of thousands of govemment employees and contractors. He obtained

his colleagues, security credentials through misleading means, abused his access as a systems

administrator to search his co-workers, personal drives, and removed the personally identifiable

information of thousands of IC employees and contractors. From Hong Kong he went to Russia,

where he remains a guest of the Kremlin to this day.

And yet, magically, none of that has ever become public. So, uh, it seems like maybe the major worries here were overblown.

It is also not clear Snowden understood the numerous privacy protections that govern the

activities of the IC. He failed basic annual training for NSA employees on Section 702 of the

Foreign Intelligence Surveillance Act (FISA) and complained the training was rigged to be

overly difficult. This training included explanations of the privacy protections related to the

PRISM program that Snowden would later disclose.

Now this seems to just be the Intelligence Committee scraping the bottom of the barrel again for anything to make Snowden look bad. Oooh, he failed the training program on PRISM. And, yet, that doesn't respond to the fact that there were all sorts of legitimate privacy concerns about PRISM and how it operates, and the program was kept entirely secret.





From there, the Committee goes into full scale playground taunting of Snowden, saying he's a "serial fabricator" because he may have exaggerated a few points:

If you can't read that, it says:

Fourth, Snowden was, and remains, a serial exaggerator and fabricator. A close

review of Snowden's official employment records and submissions reveals a pattem of

intentional lying. He claimed to have left Army basic training because of broken legs when in

fact he washed out because of shin splints. He claimed to have obtained a high school degree

equivalent when in fact he never did. He claimed to have worked for the CIA as a "senior

advisor," which was a gross exaggeration of his entry-level duties as a computer technician. He

also doctored his performance evaluations and obtained new positions at NSA by exaggerating

his resume and stealing the answers to an employment test. In May 2013, Snowden informed his

supervisor that he would be out of the office to receive treatment for worsening epilepsy. In

reality, he was on his way to Hong Kong with stolen secrets.

So, yeah. I mean, considering how much "fabricating" and "exaggerating" the House Intel Committee does in this whole report, it's a bit weak to argue that him exaggerating his leg problems is somehow proof of being a "serial fabricator." And, I'm sure that none of the members of the House Intel Committee has ever been caught "exaggerating" or "fabricating" information in their quest to get elected, right?





And, of course, Snowden claims they're mostly wrong about all of this anyway. The claim that he doctored a performance evaluation? Snowden notes that he actually reported a vulnerability.

The claim I "doctored performance evaluations?" This one is amazing: I reported an XSS (hacking) vulnerability in CIA annual review system.

— Edward Snowden (@Snowden) September 15, 2016

The shin splints v. broken legs?

Army held me for weeks in a special unit for convalescence before separation. I left on crutches. They don't do that for "shin splints."

— Edward Snowden (@Snowden) September 15, 2016

The claim that he never got his GED? Snowden hints that if that's what the Intel Committee is really saying, they should get ready to be embarrassed:

@astepanovich That would be extremely unwise.

— Edward Snowden (@Snowden) September 15, 2016

The fact that he lied about why he was taking time off? I mean, come on. They must really be stretching for something to include that as a "lie." It was a deliberate move as part of his already determined plan to blow the whistle on these programs, not evidence of a pattern of lying.





In the end, the only proper way to read this report is in the context that Glenn Greenwald pointed out: if the House Intelligence Committee had done its oversight job of preventing mass surveillance on Americans, rather than acting as an enabler for the NSA, Snowden wouldn't have been a problem. The Committee's anger seems driven more by Snowden showing how complicit they were in failing to actually oversee the NSA:

If you don't want leaks, don't build a secret, illegal system of mass surveillance and then hide it and lie about it to the public.

— Glenn Greenwald (@ggreenwald) September 15, 2016

Of course, along with this report, the Intel Committee has also sent the White House a letter saying that it should not pardon Snowden, saying "Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal." It goes on to repeat many of the false claims from the report.





I get the feeling that history will treat Ed Snowden much more kindly than it will treat the cowardly members of the House Intel Committee who are now trying (and failing) to cover up their own failures as overseers.



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