Screen shot from Benjamin Wittes’ personal website

Over at Lawfare blog, which is a bastion on the Internet for United States national security establishment thinking, editor-in-chief Benjamin Wittes is pushing this argument that National Security Agency whistleblower Edward Snowden is to blame for a massive civil liberties violation. That violation involves providing 160,000 emails collected by the NSA to the Washington Post for the purpose of publishing a major piece of journalism that would be in the public interest.

Wittes may not be as well-known to the larger American public, but to the elites in Washington, his views seem to be taken seriously. Former NSA director Gen. Keith Alexander quoted him during an October 2013 hearing:

“Our mission is defend the nation and to protect our civil liberties and privacy,” Alexander stated. “Ben Wittes from the Brookings Institution said about the media leaks and specifically about these two FISA programs: ‘shameful as it is that these documents were leaked, they actually should give the public great confidence in both NSA’s internal oversight mechanisms and in the executive and judicial oversight mechanisms outside the Agency. They show no evidence of any intentional spying on Americans or abuse of civil liberties. They show a low rate of the sort of errors any complex system of technical collection will inevitably yield. They show robust compliance procedures on the part of the NSA. And they show an earnest, ongoing dialogue with the FISA court over the parameters of the Agency’s legal authority and a commitment both to keeping the court informed of activities and to complying with its judgments on their legality.'”

Hillary Clinton also highlighted Wittes’ work when discussing the NSA during a “Fresh Air” interview on NPR that aired in June.

All of which is to say that this post is written to call attention to how this argument about Snowden is one that is very popular amongst those within the national security state and that there is nothing unique about what Wittes is expressing. Wittes just happens to be one of the more eager people interested in expressing this message. Even Michael Cohen, a liberal columnist for The Guardian, appears to hold a similar view. Therefore, it deserves to be challenged.

Reacting to the Post’s story on data collected under the FISA Amendments Act far outnumbering data collected from “legitimate” targets, Wittes argues:

If the contractor in question were anyone other than Edward Snowden, we would immediately recognize this disclosure for what it is: a massive civil liberties violation of precisely the type we put intelligence under the rule of law to try to prevent. This is an individual using sensitive material collected under what is supposed to be a strict legal regime to advance a personal agenda.

As Wittes sees it, this is more analogous to the Target data breach than journalism. He cannot accept that the contents of what was collected by the NSA may have had the potential to provoke a critical debate about government surveillance.

In fact, the argument he advances includes a narrative of Snowden’s whistleblowing that displays grandiose contempt for national security journalism as he labels the Post a “third party” His argument indicates that he does not think the Post should have been trusted to responsibly report on this material. He notes that the Post published passages from a private individual, “written to a boyfriend about their apparent affair—a private individual who has been accused of no wrongdoing.” (It does not appear that he thinks any of this was in the public interest at all.)

But the contractor is Edward Snowden, and the third party is the Washington Post. And for some reason, that changes everything. Many civil libertarians don’t seem to mind this particularly gross abuse of signals intelligence content in pursuit of Snowden’s individual politics…

It actually changes everything that the “third party” is the Post and not an espionage actor in Russia or China or that it is not some hacker group interested in mining the personal data for personal profit. The Post is reporting on this material as an organization protected by freedom of the press. It is responsibly handling the material with great attention to the risks that could occur if certain personal identifying information the NSA collected was ever made public.

Wittes further argues that Snowden violated the Privacy Act and cites this passage from the law:

“Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.”

I don’t know if Snowden, as a contractor, counts as an “officer or employee” of the NSA for purposes of the Privacy Act. But I have no doubt that Congress in this law specifically sought to prohibit precisely what Snowden did—and that it did so as a civil liberties protection. NSA has an elaborate set of procedures and compliance mechanisms designed to ensure that the data it collects are not misused by its personnel—procedures which clearly failed in this case. These are some of the most important civil liberties protections in the intelligence system.

By this rationale, an intelligence agency employee or contractor may never blow the whistle on privacy violations to the press because doing so would reveal “individually identifiable information” to a person or agency unauthorized to receive it. Agencies may develop their own legal interpretations for surveillance, stretch the boundaries of what is constitutionally acceptable and even redefine the contours of privacy protections. Any person who exposes this development will face certain punishment.

Wittes continues by explaining that his argument is premised on the fact that everything NSA did is “legal” and all data was properly protected to avoid abuse and, therefore, he is not blaming Snowden for civil liberties violations committed by the NSA:

The law regulates the circumstances in which collection is legal and it also has a variety of protections designed to prevent abuse of data once that data have been collected. In many places, the law assumes that the government will collect highly-sensitive material about individuals but regulates—sometimes generally, sometimes precisely—what it can and cannot do with that material. In the criminal context, think of Rule 6(e) of the Federal Rules of Criminal Procedure, which prohibits disclosure of proceedings taking place before a grand jury, which hears all sorts of raw allegations and impressions. Similarly, there is a raft of data that is perfectly legal and proper for NSA to collect and use and horridly improper for it—or its employees—to dump in the lap of Barton Gellman. NSA’s employees and contractors just aren’t permitted to use that material for their own purposes—even if you happen to agree with those purposes. And they’re not permitted to disclose it either. One reason is national security. Another reason is fairness to people like the woman who wrote those anguished notes.

The Post found nearly 900 email addresses, “unmasked in the files,” that “could be strongly linked to US citizens or US residents,” which strongly suggests the privacy of hundreds of Americans were violated.

It is unknown if the woman did not want the world to see the contents of those “anguished notes.” She apparently told the Post she did not understand “why after all this time, with the case long closed and her own job with the Australian government secure, the NSA does not discard what it no longer needs.” So, she seemed willing to constructively engage in the issue so in the future others like her would not have their privacy so violated by the NSA.

Interestingly, he mentions a rule that applies to grand juries. Grand juries are largely one-sided affairs, like FISA court proceedings.

And, again, he advances the belief that a person going to the press to blow the whistle—a source going to a journalist or a media organization—is one using information for their own personal purposes or solely about advancing a personal agenda. Like all people, he has a personal agenda, however, it has not been what you would expect who had the capacity to take millions of secret surveillance records with the knowledge that NSA would not ever know exactly what he took.

Wittes concludes:

Ultimately, if you’re not outraged by what Snowden did here, it’s because you’re applying a certain situational ethics. It’s because the privacy of that woman in Australia—and though Gellman delicately kept her name out of the story, her whole social world will know who she is—just doesn’t matter very much compared to the need to expose NSA activities. If you’re okay with dumping in the lap of a journalist 160,000 of the most personal conversations a signals intelligence agency can collect, then stop whining to me about “bulk” or “mass” collection. And if you’re okay with Snowden—in the unfettered exercise of his unlimited discretion—choosing Gellman as the sole check and balance on the disclosure of personal data—Gellman who, unlike NSA, has no statutory standard to live up to and no oversight from Congress or the courts—then stop telling me this is about the rule of law. Because you don’t really mean it.

Unfortunately for Wittes, journalists do not have as rich a history of abusing records collected through the extreme and radical expansion of surveillance powers. Intelligence agency managers, analysts and other officials tasked with maintaining the surveillance apparatus do. It led to the Church Committee investigation and still haunts national security officials today (though that doesn’t mean they have stopped abusing power).

Furthermore, it is rather incredible that Wittes wants the public to be concerned about the abuse of discretion by Gellman, an award-winning journalist whose work earned the Post a Pulitzer Prize. There are countless examples in the past year of all three branches of government either being derelict or outright abusing their discretion and yet what is clear is that individuals like Wittes do not care because they fervently believe in the national security state.

This belief produces a feedback loop. People like Wittes identify with this fervent belief among elites who have held and still hold power in making “national security” decisions. Alexander and Clinton see their own ideology reflected in Wittes’ writing, and it confirms and further convinces them of the righteousness of their worldview. All of which contributes to a culture of elite-minded thought that can be deployed to coerce others into accepting them as the sole influencers of decision-making on “national security.”

Snowden disrupted this loop with his whistleblowing and for that we should all be grateful. But that disruption ensures that the public will be subjected to propagandistic arguments like Snowden is a “civil liberties violator” for many years to come.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."