If Wanting to Reveal that All Americans’ Metadata Gets Swept Up Is Treason, Edward Snowden Is in Distinguished Company

Earlier this evening, Dianne Feinstein called Edward Snowden’s decision to leak NSA documents an act of treason.

“I don’t look at this as being a whistleblower. I think it’s an act of treason,” the chairwoman of the Senate Intelligence Committee told reporters.

The California lawmaker went on to say that Snowden had violated his oath to defend the Constitution.

“He violated the oath, he violated the law. It’s treason.”

Perhaps DiFi can be excused for her harsh judgment. After all, in addition to exposing the sheer range of surveillance our government is doing, Snowden made it very clear that DiFi allowed Director of National Intelligence James Clapper to lie to her committee.

And continues to allow Clapper’s lie to go unreported, much less punished.

But I thought it worthwhile to point out the many people who have committed to make the FISA Court Opinions describing, among other things, how the government’s abuse of Section 215 violated the Constitution.

In 2010, DOJ promised to try to declassify important rulings of law.

In 2010, as part of the same effort, Clapper’s office promised to try to declassify important rulings of law.

In 2011, prior to be confirmed as Assistant Attorney General, now White House Homeland Security Advisor Lisa Monaco promised, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible.”

All these people claimed they wanted to make FISC’s opinion, among other things, on the secret use of Section 215 public.

What Snowden released on Section 215 — just a single 215 order to Verizon, without details on how this information is used — is far, far less than what DOJ and ODNI and Lisa Monaco pledged to try to release. Given that the collection is targeted on every single American indiscriminately, it won’t tell the bad guys anything (except that they’ve been sucked into the same dragnet the rest of us have). And while it shows that FBI submits the order but the data gets delivered to NSA (which has some interesting implications), that’s a source and method to game the law, not the source or method used to identify terrorists.

So if Snowden committed treason, he did so doing far less than top members of our National Security establishment promised to do.

Wait.

There’s one more member of this gang of — according to DiFi — traitors committed to tell Americans how their government spies on them. There’s the Senator who said this on December 27, 2012.

I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions. If the letter does not work, we will do another intelligence authorization bill next year, and we can discuss what can be added to that bill on this issue.

Oh, wait! That was Senator Dianne Feinstein, arguing that they didn’t have time to pass an actual amendment, attached to the actual FISA Amendments Act renewal, forcing the government to turn over this secret law.

But she promised to write a letter!

And even, DiFi claimed (though similar promises to John Cornyn to obtain the OLC memo authorizing Anwar al-Awlaki’s killing went undelivered), to include a requirement in this year’s intelligence authorization requiring the government to turn over far more information on the government’s use of Section 215 than Snowden did.

I get that DiFi doesn’t agree with his method — that he leaked this rather than (!) write a letter. I get that Snowden has exposed DiFi for allowing Clapper lie to her committee, in part to hide precisely this information.

But in debates in the Senate, at least, DiFi has claimed to support releasing just this kind of information.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

30 replies
  1. TarheelDem says:

    What oath did Snowden violate? He was a contractor.

    OTOH, DiFi and all of the members of Congress who are now quiet as churchmice have patently violated their oaths to uphold the Constitution of the United States.

    What does that make them?

  2. orionATL says:

    The thing that impresses and deeply distresses me about senator feinstein is

    That she has long assumed the role of the obama administration’s senatorial-status public protector on questionable-judgement to illegal-behavior administration policies.

    What is she being given or promised for the protection she has repeatedly given the administration?

    The obama boys and girls are strickly pay-to-play politicos.

    So what are they paying feinstein for her patently absurd loyalty?

    Military related? Silicon valley related? Ag related? water related? other? :).

  3. BeccaM says:

    @TarheelDem: That was my very first takeaway reaction: What oath? The guy was just a hired contractor.

    I know how security clearances work, too, and there’s no sworn oath involved, no promise to protect and uphold the constitution. Usually just a big pile of papers that says one understands there are legal ramifications if confidentiality is broken.

    Now Feinstein on the other hand — I’m seeing her own solemn oath to uphold and protect the Constitution as being violated every day that she’s allowed these travesties and crimes to continue.

  4. der says:

    @orionATL: and it’s they believe every freakin’ word that comes out of their mouths. And think that we also believe it as truth. We need better politicians, and I don’t know how we can have that.

  5. Cornelius says:

    @orionATL: Well there is this guy named Richard Blum, aka Feinstein’s husband:

    “Blum may raise a potential conflict-of-interest issue with the voting and policy activities of his wife. URS Corp, which Blum had a substantial stake in, bought EG&G, a leading provider of technical services and management to the U.S. military, from The Carlyle Group in 2002; EG&G subsequently won a $600m defense contract.” (http://en.wikipedia.org/wiki/Richard_C._Blum#Controversy)

    The Carlyle Group should ring a bell, but you should really look into EG&G (majorly involved in DoD black projects).

  6. pdaly says:

    Reading this post brings a smile to my face. I wish I could make DiFi read it aloud.

    Hooray for Edward Snowden.

  7. P J Evans says:

    @BeccaM:
    Yes – no oath (I once had a secret clearance). My father had rather higher level clearance than I did, and his included serious background checks (they checked his siblings, too). I don’t think there were any oaths, but he certainly didn’t talk about what he did on those projects.

  8. P J Evans says:

    DiFi might as well join the GOP. That’s about how useful she is as a senator. She doesn’t listen to 99 percent of her constituents.

  9. sd says:

    What is [Senator Dianne Feinstein] being given or promised for the protection she has repeatedly given the administration?

    Investment tips for her investment banker husband, Richard Blum.

  10. marc says:

    The damage Snowden did to DIFI’s hubby’s business interests is what’s really getting her panties in a knot.

  11. Haley Carter says:

    All I know is I didn’t vote for Dianne Feinstein. I couldn’t. I don’t live in CA. As far as I know I didn’t vote for anyone else in that committee.

    But here’s the thing. This is all ok according to the Administration because there is oversight. Yeah. Well where is my oversight? I have one, it’s called my vote. Even if I could vote for or against these people, their committee is secret. How could I know how to vote on this issue?

    The best part of this “oversight” though is the idea of a secret court. Seriously. How far back in time would we have to go to find the very idea of a secret court to be anathema? 100 years? 50?

    Yeah, this is the 21 first century and any concept of privacy is a hippie’s pipe dream from the sixties. So who says the government has any more of a right to privacy than the rest of us.

    Secrecy. That’s the big issue for me.

  12. eh says:

    Man, if the rest of the defenders of these practices do as terribly as Dennis Blair and Jane Harman did tonight on NewsHour, Obama is going to have to start calling Snowden a terrorist directly. Blair seemed like he was having multiple strokes as he struggled to form sentences, and Harman, well, when asked how often she got briefed on programs when she was on oversight, she said “regularly.” They got nothin’.

  13. Frank33 says:

    The Intelligence Community has their ways of persuasion, carrot and stick. Feinstein definitely got the war proft carrots from her sock puppetry. Feinstein is a classic dee cee fail. She lied about the Zazi case. And she lied about the Headley case. And Headley was working for Pakistan and ISI and Feinstein still believes it was Al Qaeda. And the VOIP used for Mumbai should have gone through the NSA servers.

    The Bankster fraud of 2008 including Hank Paulsens phone chats should be avaialble. And the MERS fraud by Eric Holder, probably left a trail of evidence. Or was PRISM used to protect all this fraud and corruption and war profiteering?

  14. klynn says:

    Really find it amazing that a wire service (AP) publishes an article about GG being”opinion driven” in an effort to discredit his work at the Guardian. Absolutely sad that they essentially run an opinion piece on GG about being “an opinion piece.”

    Really? Amazing that writing about violations of Constitution is being couched by a news wire service as “opinion” and “one sided.” And Glenn’s legal insight on Constitutional law and privacy is being describe as “distaste for intrusions to privacy.” Perhaps I can help AP…How about language such as “laying out the rationale and legal principles about how Constitutional law applies to individual rights and how government practices violate individual rights.”

    http://news.yahoo.com/no-mistaking-nsa-story-reporter-feels-063929464.html;_ylt=AufvITrfjvLqAAbIAOyK6PkJVux_;_ylu=X3oDMTI5bGc3NzBsBG1pdANBVFQgMyBTdG9yeSBKdW1ib3Ryb24gSG9tZSBDYWNoZWQEcG9zAzMEc2VjA01lZGlhQXR0V2lkZ2V0cm9uQXNzZW1ibHk-;_ylg=X3oDMTFkcW51ZGliBGludGwDdXMEbGFuZwNlbi11cwRwc3RhaWQDBHBzdGNhdANob21lBHB0A3BtaA–;_ylv=3

  15. translation says:

    Whenever you hear “traitor” in authoritarian states, it’s a tip that they’re talking about a person that is, in the legal term of art, a rights defender. In the international space, NGOs and the EU are thinking hard about how to support rights defenders, because they’re crucial in reforming underdeveloped states with defective rule of law such as the USA.

    Snowden is a rights defender, and the right he’s defending is our binding right to privacy, with which all US law must accord. The right to privacy is an integral part of federal statute law and federal and state common law. It is supreme law of the land, and no PATRIOT Act or secret law can revoke it. The US Government is breaking this law and derogating this universal right, and everyone in the world has a legal right to remedy. This will come up in October, when US compliance with the ICCPR is reviewed.

  16. phred says:

    EW, great post, but just a quick drive by to ask… In the title, did you mean “distinguished company”? I read Snowden and custody in the same sentence and had a minor seizure…

    I think it is obvious that all of Feinstein’s bluster is motivated by her own desperate CYA flailing about. She is every bit as culpable as the Presidents (note the plural as she has been around longer than both) and the executives running the intelligence agencies.

    Feinstein should at the very least lose her chair, since she knowingly allowed Clapper and others to lie not just to every member of the Senate (via the public hearings), but those lies were directed at the public as well. Personally, I think she should be removed from office altogether, along with every single member of the Gang of 8.

    Ok, not just a quick drive by ; )

  17. 1970cs says:

    The 3 watt bulb finally lit up this morning here concerning why security state contractors classify everything top secret. Fraud. If they classify everything from lunch menus down to the invoices for a car service, it requires someone with a security clearance and a higher rate of pay to handle it.

    It also ensures their own exclusivity, that only they can handle any of this information, thus creating their own monopoly. How many staffers at the GAO have these clearances, and even if they do, because any wrongdoing done under the guise of the security umbrella can never see daylight because it would be treason.

    This was probably figured out years ago by most, but it was my d’oh moment this morning reading this

  18. Joe Citizen says:

    As to the “oaths” – the objections here are rather ridiculous.

    First off, swearing an oath is a symbolic act. When working for the government in any capacity, one must follow the law – whether or not one actually swore an oath to do so. The oath-swearing adds nothing legally to one’s responsibilities. “I didn’t swear to obey the law” is NOT a defense for law-breaking.

    Secondly, as a federal contractor myself (in a field that has nothing whatsoever to do with national security) I can assure you that one must sign (physically or digitally) several documents promising to abide by the rules in place governing access to documents, or the dissemination of information. Once again – the promises are there to focus one’s mind on the actual responsibilities you are taking on – somehow evading signing the promises does not give you a license to violate the law.

  19. LM Lewis says:

    The political tools have been busy, sowing lies like this the canard, “He should have gone through channels.”

    In most cases, the channels for national security whistleblowing no not work and Congress KNOWS this but refuses to change it. It is IMMORAL to alleged that conscientious people have a lawful way to get dangerous problems addressed when they KNOW that “official channels,” by design, entrap whistleblowers, giving agencies time to investigate and smear the whistleblower while directing the disclosures into the equivalent of File 13. If Sen. Wyden, knowing the horrors, nevertheless was unable to change anything, what good would it have done for Snowden to go to Congress? The first thing Congress does is to forward a whistleblower’s concerns back to the agency, putting the whistleblower in peril. That’s how the system “works.”

  20. LM Lewis says:

    Bill Harlow, CIA, was just on MSNBC telling Chuck Todd that the security clearance process is the same for contractor and federal employees. It certainly is not!

    The adjudication process is very different. Contractor employees are favored because “business.” Feds have almost no due process in the suspension/revocation process; agencies can revoke their clearances on a whim.

  21. orionATL says:

    @klynn:

    Very nicely said.

    I have noted the practised effort to diminish greenwald, beginning with the contemptible nytimes afew days ago.

  22. P J Evans says:

    Hagel is saying he’s going to review the DoD’s contracting practices for budgetary reasons.
    It’s about ten years late, but it is a start on fixing their department budget. I hope it doesn’t result in even more problems down the road.

  23. wussy riot says:

    Whenever you hear “traitor” in authoritarian states, it’s a tip that they’re talking about a person that is, in the legal term of art, a rights defender. In the international space, NGOs and the EU are thinking hard about how to support rights defenders, because they’re crucial in reforming underdeveloped states with defective rule of law such as the USA.

    Snowden is a rights defender, and the right he’s defending is our binding right to privacy, with which all US law must accord. The right to privacy is an integral part of federal statute law and federal and state common law. It is supreme law of the land, and no PATRIOT Act or secret law can revoke it. The US Government is breaking this law and derogating this universal right, and everyone in the world has a legal right to remedy. This will come up in October, when US compliance with the ICCPR is reviewed.

  24. thatvisionthing says:

    @orionATL: Dianne Feinstein is the kindest, bravest, warmest, most wonderful human being I’ve ever known in my life.

    I pledge allegiance to the Queen of Diamonds and to the Republic for which she stands.

  25. ess emm says:

    If an intelligence security contractor entrusted with the nation’s secrets isnt required to take an oath to defend the Constitution, then We The People are being poorly served—or not served at all.

  26. thatvisionthing says:

    @ess emm: You sure? Bradley Manning took a oath to protect and defend the Constitution, he did it, and now he’s getting prosecuted by a government that can’t tell when it’s sick and horribly off course and headless. It cannot admit error, cannot correct itself. Can not. And has wrapped itself untouchably in the flag so we all have to salute it and go along presuming it is constitutional and the correct arbiter of constitutionality. Which turns constitutional and oaths into sick nonsense. Being required to take an oath to the Constitution by such a government just confuses the issue, hopelessly so in court.

    Snowden said he was “neither a traitor nor hero. I’m an American.” That’s plain.

    http://news.firedoglake.com/2013/06/12/snowden-i-am-neither-a-traitor-nor-hero-im-an-american/

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