What Snowden Could Have Done Differently

There were plenty of ways to express his concerns responsibly within intelligence organizations.

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Censorship may rise for the Chinese as its government unblocks Twitter and Facebook in parts of Shanghai, Sept. 24, 2013.

In many countries, the telephone company or access to the Internet is owned or run by the government. For example, you can be sure that all of NSA leaker Edward Snowden's communications are being monitored in Russia, and that he is subject to physical and electronic surveillance, 24/7.

And so, while I'm surprised that Snowden was offended to learn this fact of life when he worked for a NSA contractor, I'm offended that he saw the need to talk about NSA operations, in violation of law and the agreements he signed to have access to sensitive information. As such, he's not a hero of any kind – to the contrary, he's a guy who is not near as smart as he thinks he is. It's also clear he didn't understand many of the operations he compromised, all to the detriment of our collective security.

Most important,  perhaps, is that Snowden's apparent motive – to show that NSA was acting irresponsibly – was likewise poorly informed and ill conceived. The question now is what to do about it?

More specifically, does anything that Snowden revealed require changes in our laws or regulatory practice? These are the basic questions our congressional intelligence committees – and other committees with jurisdiction – are now struggling with. And, for what it's worth, here are the views from someone with 20 plus years in the intelligence oversight business.

[See a collection of editorial cartoons on the NSA.]

First, we already have in place an excellent structure for dealing with the natural stresses between national security and our requirements for privacy. In fact, there is nothing like it anywhere in the world, and many free world intelligence services look to us as a model system that provides maximum oversight and accountability for the most sensitive intelligence operations and activities.

It was Watergate in the 70's, and to some extent Iran-Contra in the 80's, that served as the political motivation for creating the basic systems of intelligence oversight we have in place today. The Foreign Intelligence Surveillance Act, or FISA, which was passed in 1978 by a bi-partisan Congress and a Democratic administration, interjects federal judges appointed by the chief justice of the Supreme Court into the approval process for both electronic and physical searches conducted for intelligence purposes. After Iran-Contra, we added additional requirements for the president to notify the intelligence committees and Congressional leaderships about covert actions done overseas.

In addition, there are comprehensive executive orders and internal or departmental regulations that apply to both the substance and procedural aspects of intelligence operations and activities. Finally, the attorney general plays a central and active role in the approval process of various intelligence activities, as well as the approval of the operating rules for our intelligence operations that involve so-called  "U.S. Persons".

[See a collection of political cartoons on defense spending.]

The operative and central concept in all of this oversight is that there must be some foreign intelligence or terrorism nexus for NSA to actually look at a specific bit of information to which it may have access.

So, in this context, a basic question to be answered is whether the existing rules, structures, thresholds and procedures were being complied with. So far, it looks as if they were; not only that, whenever new authorities were needed, the NSA and intelligence community sought them out responsibly, either from the Congress, the president or both.

Second: Do the existing rules and authorities that NSA operates by go too far? This is probably the meat of the Snowden disclosures and their spin by the media. Their intended message was that the NSA is somehow intentionally violating our privacy or justifying its behavior on misapplied or illegal authorities.

This argument, in turn, has two essential components: That the basic authorities themselves – e.g., FISA – are illegal or unconstitutional, or that they are bad policy and should be changed or revoked. This is what the Senate and House Committees that look at these issues will likely focus on. They will hear from experts on what the law is and what the law should be, and from those who agree with the current rules and from those who don't.

[See a collection of political cartoons on Congress.]

Most likely, after all of this, they will determine that the existing laws, rules and procedures under which NSA operates are constitutional insofar as they affect "U.S.  Persons," and that they were complied with. However, and most unfortunately, this conclusion will be reached only after Snowden and the complicit media have compromised the integrity of the respective operations involved – and our collective national security gets severely damaged, perhaps beyond repair.

This will be a hollow victory indeed, even for the most zealous privacy advocate.

Bottom line: Could Snowden have raised all of his concerns responsibly? Sure, and there are established procedures for whistle blowers in the intelligence community to complain about even the most highly classified matters. Instead, he chose to become a media star and put us all in jeopardy for years to come.

Daniel Gallington is the senior policy and program adviser at the George C. Marshall Institute in Arlington, Va. He served in senior national security policy positions in the Office of the Secretary of Defense, the Department of Justice, and as bipartisan general counsel for the U.S. Senate Select Committee on Intelligence.

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