Snowden’s Emailed Question Addresses One Abuse Revealed by His Leaks

In an effort to rebut Edward Snowden’s claims that he raised concerns via proper channels, NSA just released an email Snowden sent to NSA’s Office of General Counsel. The email reveals their own training is not clear about something central to Snowden’s leaks: whether laws passed by Congress take precedence over EO 12333.

In the email, Snowden describes a training program on USSID 18, NSA’s internal guidelines on protecting US person data. Snowden’s email reads, in part,

Hello, I have a question regarding the mandatory USSID 18 training.

The training states the following:


(U) The Hierarchy of Governing Authorities and Documents is displayed from the highest authority to the lowest authority as follows:

U.S. Constitution

Federal Statutes/Presidential Executive Orders (EO)



I’m not entirely certain, but this does not seem correct, as it seems to imply Executive Orders have the same precedence as law. My understanding is that EOs may be superseded by federal statute, but EOs may not override statute.

An NSA lawyer wrote back (in part),

Executive Orders (E.O.s) have the “force and effect of law.” That said, you are correct that E.O.s cannot override a statute.

The NSA has not revealed whether Snowden called the lawyer with further questions, as he invited Snowden to do. Nor have they said this email to Office of General Counsel is the only email Snowden sent (only that it’s the only one he sent to OGC).

Nevertheless, the email is really suggestive, particularly as it took place when Snowden had already started downloading a slew of information.

That’s because Snowden’s documents (and documents released in response to his leaks) reveal NSA has repeatedly used EO 12333 to push the limits of laws passed by Congress, if not to evade the law altogether.

Here are just two of numerous examples:

NSA Avoids Stricter Minimization Procedures Under the Phone Dragnet: The NSA has fairly strict minimization procedures under the Section 215-authorized phone dragnet, but only NSA’s internal rules (USSID 18) for the EO 12333-authorized phone dragnet. Nevertheless, for the first 3 years of the FISA-authorized program, NSA didn’t follow their Section 215 rules, instead applying the less stringent rules of USSID 18 (effectively letting a DOD Directive supersede the PATRIOT Act). In one of their most egregious violations discovered in 2009, they watch listed 3,000 US persons without giving those people the required First Amendment review, as required by minimization procedures written to fulfill the law. But instead of purging those records upon discovery (or even stopping the watchlisting), they just moved them into the EO 12333-only category. They just kept spying on the US persons using only data collected under EO 12333.

And these 2009 violations are not isolated. At least as recently as 2011, the NSA was still engaging in this authority arbitrage; a training program from that year makes it clear NSA trained analysts to re-run queries under EO 12333, if possible, to get around the dissemination requirements of Section 215. (Update: I’m not saying this particular arbitrage is illegal; it’s not. But it does show how NSA games these authorities.)

NSA Collects US Person Content by Getting It Overseas: Because of the structure of the Internet, a great deal of US person data exists overseas. We’ve seen discussion of this US person data overseas including at least email content, address books, videocam images, and location. But because NSA collects this via dragnet, not targeted collection, it claims it is not targeting any American, even though it permits the searching of EO 12333 data for US person content, apparently without even Reasonable Articulable Suspicion. And because it is not targeting Americans under their dragnet and back door loopholes, it does not apply FISA Amendment Act restrictions on collecting US person data overseas under Sections 703, 704, and 705. Effectively, it has the ability to avoid those restrictions entirely by using EO 12333 as a dodge.

I’m not the only one concerned about this: at a hearing in February, both Dianne Feinstein and (at more length) Mark Udall raised concerns with National Security Division Assistant Attorney General John Carlin, suggesting some of this EO 12333 data should be treated according to FISA. Carlin — who is supposed to be a key player in overseeing NSA — showed no interest in doing so.

In both these questions, NSA did not allow laws to take precedence over EO 12333. On the contrary, NSA just created ways that it could apply EO 12333 and ignore the law that should have or might have applied.

Not only does Snowden’s question make it clear that the NSA doesn’t make the precedence of law over EO 12333 clear in training, but the lawyer’s response was rather ambiguous on this point as well.

One thing we’ve learned from Snowden’s leaks is that the Executive is (at a minimum) evading the intent of Congress on some of its treatment of US person data. And by releasing this email as part of a pissing contest with Snowden, NSA has made it clear that’s by design, even in their most core training program.

NSA is not telling its analysts that laws passed by Congress — even those offering protection to US person data — must take precedence over the looser protections under EO 12333. Which may be why they’re comfortable collecting so much US person data under EO 12333.

Update: According to Snowden, I’m absolutely right.

Today’s release is incomplete, and does not include my correspondence with the Signals Intelligence Directorate’s Office of Compliance, which believed that a classified executive order could take precedence over an act of Congress, contradicting what was just published. It also did not include concerns about how indefensible collection activities – such as breaking into the back-haul communications of major US internet companies – are sometimes concealed under E.O. 12333 to avoid Congressional reporting requirements and regulations.

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.

34 replies
  1. Heliopause says:

    I see that has already called Snowden a liar twice today, once based on this e-mail. They’re on a roll.

  2. Rayne says:

    I hear an echo: “When the President does it, that means it is not illegal.”


    Good gravy, will we never get out from under the shadow of Nixon? And now Cheney as well, who ensured a unitary as well as unilateral executive acting above and beyond reach of the other two branches of federal government through executive orders.

    • emptywheel says:

      This parallel structure — Article II = Article I — is what they’ve done with drones too.

      It’s growing familiar.

  3. bloopie2 says:

    Good points, thank you for making clear the import of the question/document. Everything I’ve seen from Snowden tells me that he is, in fact, as Brian Williams noted, “blindingly smart”. I’m betting that he already knew the answer to his question, and just wanted to get their little white lie in writing to be used against them later. And, if this is the one internal communication they are choosing to disclose, the other ones must really reflect horribly on them.

  4. Don Bacon says:

    This goes to the “executive privilege” and the false meme of the legislative and executive being “coequal branches of government” which are poppycock.
    executive: A person or group having administrative or managerial authority in an organization.
    Clearly, reading the Constitution, the Congress runs the show, but the fact is that the “commander-in-chief” has taken on more and more power which apparently can’t be curbed by weak and corrupt congress-critters, which is why their popularity hovers at about five per cent.

  5. Ben Franklin says:

    Backpeddling to deflect with all these neutered docs, especially this one. As GG prepares to release names of victims, I wonder if they will publish an alternate as another side-dish. BTW, that list of names is GG’s blockbuster? Meh.

  6. Cujo359 says:

    But instead of purging those records upon discovery (or even stopping the watchlisting), they just moved them into the EO 12333-only category. They just kept spying on the US persons using only data collected under EO 12333.

    Good catch there. it certainly implies they’re trying to assert that EOs and laws are on equal footing. in all the time I worked with DoD, I don’t remember that concept coming up in official briefings. In retrospect, it seems a shame it didn’t..

  7. fritos says:

    There’s a typo in your quote. “I have a questions” should be “question”. According to the reproduced email on, there’s no typo in the original.

  8. anonymous says:

    I look forward to Snowden’s continued public and technical comments from Moscow on legal and legislative issues moving forward in the USA. All he needs to do is ask the right question, or focus attention in a specific direction . . . for instance his previous testimony on ‘correlations’ . . . it would be great to see a journalistic collaboration between #emptywheel and #Snowden focusing on matters in the public record!

    • Bill Michtom says:

      What anonymous said: a journalistic collaboration between #emptywheel and #Snowden focusing on matters in the public record!

  9. der says:

    The NSA’s point is? From the beginning Snowden has said they’re violating the Constitution and there it is in the NSA’s words: “the highest authority.”

  10. coin operated says:

    Maybe it’s just me, but if I was about to steal 1000s of classified documents, and making the claim that I alerted my superiors to potential wrongdoing before taking the documents, I sure as hell wouldn’t let my superiors have the upper hand like this in the media. A copy of every email I’d ever sent on the topic would be ready for distribution on day one.

    Snowden does not strike me as all that bright, and unless I see him produce more emails on his own, that opinion won’t change. The question in that email looks to me like a legal mind at work, and I noticed that the email was dated after Snowden and Greenwald started working together.

  11. ArizonaBumblebee says:

    The fallout from the NSA revelations is just another example of a dysfunctional government operation functioning without adequate oversight or management controls. The emerging VA scandals are another example. In both cases, the President is disengaged and playing a passive role while the administrators/managers down the line act as if they can do what they damn well please without fear of retribution. In such an environment, accountability goes out the window, and employees frequently engage in rogue activities to meet their bosses expectations or demands. President Obama does not strike me as a take-charge type of guy who can, as the saying goes, kick ass and take names to clean up these messes, assuming he wanted to. I suspect in the Snowden email in question, the receiver probably treated it as pesky inquiry from an unimportant contractor at the NSA; so essentially he blew it off.

    • Don Bacon says:

      Yes, Obama (like most pols, but especially Obama) is not kind of manager.
      Obama was brought aboard the good ship USA primarily to funnel trillions of dollars to Wall Street and the banks, which he has done. He has failed at everything, except that.

  12. What Constitution? says:

    Great typo in that last paragraph: “the ‘loser’ protections under EO12333”, which probably might have been meant to read “looser” protections. Then again, as intended by the NSA, an interpretation of EO12333 which provided protection to “losers” who invoke it trump congressionally-enacted legislation is really what is going on….. So I guess this really is what you meant for it to say, nice turn of phrase….

  13. orionATL says:

    this post places a spotlight on the what whitehouse/doj/nsa lawyers seem to consider the nsa’s “constitution” – EO12333. that executive order dating from the reagan presidency the extraordinary reach of the spying nsa undertook beginning in 2001.

    it is clear from the structure of his question to ogc, that snowden, preternaturally wise as he is, recognized that the nsa, an executive branch agency, was violating the seperation of powers

    thus the nsa’s use of eo12333 provided snowden his moral and legal rationale for revealing the extraordinary reach of nsa’s spying programs.

    as part of his “the presidency unbound” philosophy, cheney unleashed the hounds of electronic spying, bush and obama puppied along behind for a dozen + years, and our nation moved to the precipice of political suppression and authoritarian rule.

    a phalanx of military and natsec bureaucrats began to implement the cheney initiative, and in brief time, a cornucopia of highly sophisticated electronic spying programs was adopted, financed, protected from the courts, and steadily expanded to include our many domestic federal police agencies – doj/fbi/dea/dhs.

  14. wallace says:

    The mere fact that this virtual comment section exists to express human cognizance of the freefall speed we are falling into the abyss, should give expedient warning to that which Senator Church predicted. Failure to use your god given gifts of COMMON FUCKING SENSE will come back to haunt your grave site when your grandchildren and their grandchildren ask..WHAT THE FUCK WERE YOU THINKING.

    • Ben Franklin says:

      Common sense has been an oxymoron, of late. Frank Church is so 70’s and the Constitution is 18th century. Too late for humans to process.

  15. Catherine Fitzpatrick says:

    Gosh, the NSA gaming things? But that’s what hackers do. You know, like Snowden, asking a law-faring literalist question like this attempting to create a “smoking gun paper trail” based on a law-faring, activist notion. Like Micah Lee writing a script to jump the queue at the Brazilian consulate. Like that.

    So I’m not surprised to see you law-fare with this, i.e. to take your activist notions and try to wrap laws up with them. Your claims here are not actual findings, not court rulings, not adjudicated by law, they’re just what you think. Just your activist opinion. No one has successfully litigated on EO 12333, unless I’ve missed something.

    The training isn’t ambigious — it just feels that way to you. The lawyer answered clearly — you’re just trying to trap him in literalisms — like Ron Wyden did in asking Clapper if the NSA spied on Americans. The NSA doesn’t put Americans under mass surveillance; it targets suspects.

    You’ve also failed to show that there is somehow really something wrong or illegal about capturing American communications when they communicate with terrorist suspects abroad. That’s more than fine to do. Indeed, if the NSA didn’t do this, it couldn’t do things like arrest Jamshid Muhtorov at the airport — which was a good thing. No one has proven yet that he was wrongfully arrested.

    If, somehow, you and the adversarial media are able to influence the courts to rule against such practices, there would likely be a significant number of Americans and their elected representatives who would challenge it in the end and change the law or instruction if they have to. There is nothing sacred about being an American, if you chose to collaborate with a terrorist abroad, you can’t expect to endlessly shield behind your country’s freedoms and laws forever.

    • Ben Franklin says:

      From your blog;

      “Possibly not, but given how, over the years, I have seen people like this, seemingly such innocent church ladies, helping the murderous Communist Party of El Salvador through its front groups, or the murderous Soviet regime even directly, or given how I’ve seen them gloss over and dismiss some of the very real problems of terrorists let out from Gitmo who commit terrorism — I’d have to say, sorry, but live by the sword, die by the sword, so to speak. Justify violence and help those who are violent because of some other goal (liberation theology or revolutionary or socialism or whatever), then face the fact that you will be under surveillance. Whining doesn’t cut it for me.”

      You have no problem with Salvadoran death squads murdering Nuns because they emulate liberation theology because they pander to the peasants? Clearly you are a statist or an EU trollop selling your wares on the internet. No STDs there.

      • Catherine Fitzpatrick says:

        @Ben Franklin So wait. You’re going to actually try to distract from my valid point about thuggish, murderous communist parties, and notably the one in El Salvador and its front groups, which in our day has morphed into the worst kind of amalgam of state violence and drug lord violence, and somehow accuse me of justifying the nuns’ murders. Wow, that’s rich.

        I was at Human Rights Watch when the nuns were murdered, and they had enormous support and everyone campaigned for justice. Murdering nuns isn’t right for anybody, even if they themselves support a murderous ideology.

        But you’ve side-stepped the problem of communist violence in Latin America, which made it possible for right-wing governments to justify death squads. Why can’t you be against *both*? *Why is that so hard for people like you?!*

    • orionATL says:

      fools abound in defense of american government spying; judging by your confused rhetoric above, you are one of the more notable of those fools.

      an astounding instance of your foolery, so at odds with fact that only a fool could blythly repeat it publicly:

      “..The NSA doesn’t put Americans under mass surveillance; it targets suspects…”

      it is well established that the nsa spying machinery, while in the process of “targeting suspects, pulls into its filing system millions of americans who have no connection to terrorism.

    • Joanne Leon says:

      LOL! “you’re just trying to trap him in literalisms”

      It must be interesting to live in your world.

  16. earlofhuntingdon says:

    Mr. Snowden may also have observed what happens to those who take their concerns “through proper channels”. Inside the Beltway, that has long been a career limiting move. It is not only in China that nothing is hammered so hard and so often as the nail that sticks up.

  17. earlofhuntingdon says:

    Whistleblower “protections” are a sham, whether in Washington, academia or in corporations. Hoover’s Bureau routinely investigated the foibles of his slightest critics, let alone Cleveland housewives who idly exchanged gossip over bridge that he might be gay, the consequences of which were often rapid visits by a team of agents to investigate the gossiper’s loyalty. Corporate executives frequently attempt to find out the identities of those who too openly submit complaints via 1-800 numbers. Bill Black reportedly was told to pull back on his criticism of establishment economics in his dissertation, lest he put the award of Ph.D. in jeopardy. Mr. Snowden was just reading the ten-foot-high letters on the wall.

    • P J Evans says:

      And there there are the examples of the trials and tribulations of Risen, Rosen, Kiriakou, and so on.

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