Carrie Cordero’s Counterintelligence Complaints

I wasn’t going to respond to Carrie Cordero’s Lawfare piece on my and Jason Leopold’s story on NSA’s response to Edward Snowden’s claims he raised concerns at the agency, largely because I think her stance is fairly reasonable, particularly as compared to other Snowden critics who assume his leaks were, from start to finish, an FSB plot. But a number of people have asked me to do so, so here goes.

Let’s start with this:

As far as we know – even after this new reporting – Snowden didn’t lodge a complaint with the NSA Inspector General. Or the Department of Defense Inspector General. Or the Intelligence Community Inspector General. He didn’t follow up with the NSA Office of General Counsel. He didn’t make phone calls.  He didn’t write letters. He didn’t complain to Members of Congress who would have been willing to listen to his concerns.

Now here’s the rub: do I think that had he done all these things, the programs he questioned would have been shut down and there would have been the same effect as his unauthorized disclosures? No. He probably would have been told that more knowledgeable lawyers, leadership officials, congressmen and dozens of federal judges all assessed that the activities he questioned were legal.

Without noting the parts of the article that show that, nine months into the Snowden leaks and multiple hearings on the subject, Keith Alexander still didn’t know how contractors might raise complaints, and that the NSA editing of its Q&A on Snowden show real questions about the publicity and viability of reporting even to the IG, especially for legal violations, Cordero complains that he did not do so. Then she asserts that had Snowden gone to NSA’s IG (ignoring the record of what happened to Thomas Drake when he did the same), the programs would not have changed.

And yet, having taken a different approach, some of them have changed. Some of the programs — notably Section 215, but also tech companies’ relationship with the government, when exposed to democratic and non-FISA court review, and FISA court process itself — did get changed. I think all but the tech company changes have largely been cosmetic, Cordero has tended to think reforms would go too far. But the record shows that Snowden’s leaks, along with whatever else damage critics want to claim they caused, also led to a democratic decision to shift the US approach on surveillance somewhat. Cordero accuses Snowden of doing what he did because of ego — again, that’s her prerogative; I’m not going to persuade people who’ve already decided to think differently of Snowden — but she also argues that had Snowden followed the already problematic methods to officially report concerns, he would have had less effect raising concerns than he had in fact. Some of what he exposed may have been legally (when argued in secret) sustainable before Snowden, but they turned out not to be democratically sustainable.

Now let’s go back to how Cordero characterizes what the story showed:

Instead, the report reveals:

  • An NSA workforce conducting a huge after-action search for documents seeking to affirm or refute Snowden’s claim that he had raised red flags internally before resorting to leaking classified documents;
  • Numerous officials terrified that they would miss something in the search, knowing full-well how easily that could happen in NSA’s giant and complex enterprise; and
  • The NSA and ODNI General Counsels, and others in the interagency process –doing their job.

The emails in the report do reveal that government officials debated whether to release the one document that was evidence that Snowden did, in fact, communicate with the NSA Office of General Counsel. It’s hard to be surprised by this. On one hand, the one email in and of itself does not support Snowden’s public claim that he lodged numerous complaints; on the other hand, experienced senior government officials have been around the block enough times to know that as soon as you make a public statement that “there’s only one,” there is a very high likelihood that your door will soon be darkened by a staff member telling you, “wait, there’s more.” So it is no wonder that there was some interagency disagreement about what to do.

For what it’s worth, I think the emails show a mixed story about how well various participants did their job. They make Admiral Rogers look great (which probably would have been more prominently noted had the NSA not decided to screw us Friday night, leading to a very rushed edit job). They make Raj De, who appears to have started the push to release the email either during or just as Snowden’s interview with Brian Williams finished airing (it aired at 10:00 PM on May 28; though note the time stamps on this string of De emails are particularly suspect), look pretty crummy, and not only for that reactive response. (I emailed De for comment but got no response.)

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Later on, Cordero admits that, in addition to the OGC email, the story reported for the first time that there had also been a face-to-face conversation with one of the people involved in responding to that email.

The Vice report reveals that Snowden did do at least these things related to his interest in legal authorities and surveillance activities: (i) he clicked on a link to send a question to NSA OGC regarding USSID 18 training, which resulted in an emailed response from an NSA attorney; and (ii) he had a personal interaction (perhaps a short conversation) with a compliance official regarding questions in a training module. But according to the report, in his public statements, “Snowden insisted that he repeatedly raised concerns while at the NSA, and that his concerns were repeatedly ignored.”

(Note Cordero entirely ignores that interviews with Snowden’s colleagues — the same people whom she characterized as terrified they’d miss something in the media response but doesn’t consider whether they would be even more terrified conversations about privacy with Snowden might be deemed evidence of support for him — found a number of them having had conversations about privacy and the Constitution).

She doesn’t get into the chronology of the NSA’s treatment of the face-to-face conversation, though. What the story lays out is this:

  • Released emails show NSA now asserts that Snowden complained about two training programs within the span of a week, possibly even on the same day, with Compliance being involved in both complaints (Snowden would have known they were involved in the OGC response from forwarded emails)
  • Given the record thus far, it appears that there is no contemporaneous written record of the face-to-face complaint (we asked the NSA for any and that’s when they decided to just release the emails in the middle of the night instead of responding, though I assume there is an FBI 302 from an interview with the training woman)
  • Given the record thus far, NSA only wrote up that face-to-face complaint the day after and because NSA first saw teasers from the April 2014 Vanity Fair article revealing Snowden’s claim to have talked to “oversight and compliance”
  • In spite of what I agree was a very extensive (albeit frantic and limited in terms of the definition of “concern”) search, NSA did not — and had not, until our story — revealed that second contact, even though it was written up specifically in response to claims made in the press and well before the May 29 release of Snowden’s email
  • In the wake of NSA not having acknowledged that second contact, a senior NSA official wrote Admiral Rogers a fairly remarkable apology and (as I’ll show in a follow-up post) the NSA is now moving the goal posts on whom they claim Snowden may have talked to

Now, I actually don’t know what happened in that face-to-face contact. We asked both sides of the exchange very specific questions about it, and both sides then declined to do anything but release a canned statement (the NSA had said they would cooperate before they saw the questions). Some would say, so what? Snowden was complaining about training programs! Training programs, admittedly, that related to other documents Snowden leaked. And at least one training program, as it turns out, that the NSA IG had been pushing Compliance to fix for months, which might explain why they don’t want to answer any questions. But nevertheless “just” training programs.

I happen to care about the fact that NSA seems to have a pattern of providing, at best, very vague information about how seriously NSA has to take FISA (or, in the one program we have in its entirety, perfectly legal tips about how to bypass FISA rules), but I get that people see this as just a training issue.

I also happen to care about the fact that when Snowden asked what NSA would like to portray as a very simple question — does what would be FISA take precedence over what would be EO 12333 — it took 7 people who had been developing that training program to decide who and how to answer him. That question should be easier to answer than that (and the emailed discussion(s) about who and how to answer were among the things conspicuously withheld from this FOIA).

But yes, this is just two questions about training raised at a time (we noted in the story) when he was already on his way out the door with NSA’s secrets.

Which is, I guess, why the balance of Cordero’s post takes what I find a really curious turn.

If this is all there is – a conversation and a question  – then to believe that somehow NSA attorneys and compliance officials were supposed to divine that he was so distraught by his NSA training modules that he was going to steal the largest collection of classified documents in NSA history and facilitate their worldwide public release, is to live in a fantasy land.

No, what this new report reveals is that NSA lawyers and compliance personnel take questions, and answer them. Did they provide a simple bureaucratic response when they could or should have dug deeper? Maybe. Maybe not.

Because what they apparently do not do is go on a witch hunt of every employee who asks a couple legal questions. How effective do we think compliance and training would be, if every person who asks a question or two is then subject to intense follow-up and scrutiny? Would an atmosphere like that support a training environment, or chill it?

[snip]

NSA is an organization, and a workforce, doggedly devoted to mission, and to process. In the case of Snowden, there is an argument (one I’ve made before) that its technical security and counterintelligence function failed. But to allude – as today’s report does – that a couple questions from a low level staffer should have rung all sorts of warning bells in the compliance and legal offices, is to suggest that an organization like NSA can no longer place trust in its workforce. I’d wager that the reason the NSA lawyers and compliance officials didn’t respond more vigorously to his whispered inquiries, is because they never, in their wildest dreams, believed that a coworker would violate that trust.

Cordero turns a question about whether Snowden ever complained into a question about why the NSA didn’t notice he was about to walk off with the family jewels because he complained about two training programs.

There are two reasons I find this utterly bizarre. First, NSA’s training programs suck. It’s not just me, based on review of the few released training documents, saying it (though I did work for a number of years in training), it’s also NSA’s IG saying the 702 courses, and related materials, are factually wrong or don’t address critical concepts. Even the person who was most negative towards Snowden in all the emails, the Chief of SID Strategic Communications Team, revealed that lots of people complain about the 702 test (as is also evident from the training woman’s assertion they have canned answers for such complaints).

Complaints about fairness/trick questions are something that I saw junior analysts in NTOC … would pose — these were all his age and positional peers: young enlisted Troops, interns, and new hires. Nobody that has taken this test several times, or worked on things [redacted] for more than a couple of years would make such complaints. It is not a gentleman’s course. *I* failed it once, the first time I had to renew.

I’m all for rigorous testing, but all the anecdotes about complaints about this test may suggest the problem is in the test, not the test-takers. It’s not just that — as Cordero suggested — going on a witch hunt every time someone complains about training courses would chill the training environment (of a whole bunch of people, from the sounds of things). It’s that at precisely the moment Snowden took this training it was clear someone needed to fix NSA’s training, and Cordero’s response to learning that is to wonder why someone didn’t launch a CI investigation.

Which leads me to the other point. As Cordero notes, this is not the first time she has treated the Snowden story as one primarily about bad security. I happen to agree with her about NSA’s embarrassing security: the fact that Snowden could walk away with so much utterly damns NSA’s security practices (and with this article we learn that, contrary to repeated assertions by the government, he was in an analytical role, though we’ve already learned that techs are actually the ones with unaudited access to raw data).

But here’s the thing: you cannot, as Cordero does, say that the “foreign intelligence collection activities [are] done with detailed oversight and lots of accountability” if it is, at the same time, possible for a SysAdmin to walk away with the family jewels, including raw data on targets. If Snowden could take all this data, then so can someone maliciously spying on Americans — it’s just that that person wouldn’t go to the press to report on it and so it can continue unabated. In fact, in addition to rolling out more whistleblower protections in the wake of Snowden, NSA has made some necessary changes (such as not permitting individual techs to have unaudited access to raw data anymore, which appears to have been used, at times, as a workaround for data access limits under FISA), even while ratcheting up the insider threat program that will, as Cordero suggested, chill certain useful activities. One might ask why the IC moved so quickly to insider threat programs rather than just implementing sound technical controls.

Carrie Cordero’s lesson, aside from grading the participants in this email scrum with across-the-board As, is that Snowden complaining about the same training programs the IG was also complaining about should have been a counterintelligence issue but wasn’t because of the great trust at NSA. That argument, taken in tandem with Cordero’s vouching for NSA’s employees, should not, itself, inspire trust.

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.

10 replies
  1. P J Evans says:

    Some of the classes I took at work were like that: they were on legal concepts that are hard to follow for those of us who aren’t dealing with them every day (an overview of anti-trust law, or legal records and their retention; or, the one that’s really difficult, FERC compliance (the who-you-can-talk-to course). And we had to pass to keep our jobs.

    • emptywheel says:

      Yeah, but these shouldn’t be like that. They are used every day.

      I think the problem is that NSA really can bypass FISA in a variety of ways (as the training program I’ve linked makes clear). That’s hard to put in a training program w/o it looking like you’re breaking the law.

  2. Denis says:

    Seems to me the whole issue of to whom, or whether, Snowden revealed his concerns is eclipsed by two words in the 3rd paragraph of this post: Thomas Drake.

    The whole freaking point of Snowden’s story is that he didn’t climb the chain of command the way Drake did precisely because of the way Obama destroyed Drake, who did go through all the proper channels. The lesson Snowden learned from Drake’s experience was that the Intelligence Community Whistleblower Protection Act is bullshit in the hands of Obama, who has turned out to be the darkest prince of truth-repression ever to occupy the WH, and by “darkest,” I ain’t talkin’ (just) about the color of his skin.

    As for Cordero, one cannot meaningfully assess – or even discuss – what Snowden did or didn’t do without the back-story/context of 1) what Drake did, 2) what subsequently happened to Drake, and 3) how Drake’s story both inspired Snowden and motivated Snowden to protect himself. The primary reason I see Cordero’s rant as specious, disingenuous, and dishonest is that Cordero is trying to rewrite history by focusing on internal communications and whistle-blower procedures that are irrelevant in the post-Drake world.

    Forget the internal communications, vel non; Snowden’s course of action would have been justified even if he took no measures whatever to follow “proper channels.” That is the direct, immediate, and justifiable consequence of Obama’s persecution of Drake. Throw Sterling, Assange, and Manning into this mix and any government employee with a conscience, courage, an intellect, and access to the government’s filthy secrets would go directly to the media/internet rather than up the chain of command and into the maw of Obama’s retro-Stasi machine. Given that there must be hundreds of thousands of government employees with intellects and access to the filthy secrets, it is incredibly disappointing that such a minuscule sub-population of them have the conscience and courage of Drake and Snowden.

    BTW, Jane Mayer’s 2011 New Yorker piece on Drake is still about the best single-article assessment of the NSA’s assault on FISA and the whistle-blower’s conundrum in the Obama era.

    http://www.newyorker.com/magazine/2011/05/23/the-secret-sharer

    • martin says:

      Seems to me the whole issue of to whom, or whether, Snowden revealed his concerns is eclipsed by two words in the 3rd paragraph of this post: Thomas Drake.

      quote”The whole freaking point of Snowden’s story is that he didn’t climb the chain of command the way Drake did precisely because of the way Obama destroyed Drake, who did go through all the proper channels. ”
      Maybe in NSA’s parallel universe. Back here in mine, the whole freaking point is ..the NSA has burned the 4th Amendment to goddamned ashes..REGARDLESS of Snowden. In FACT.. who fucking cares about Snowden …when, as der says above.. “while the world burns”. The ONLY reason Snowden has become “the STORY”, is because the USG/NSA is trying to cover up the fact a legal coup d’etat has occurred within our government, that notwithstanding the insidious “collect it all” surveillance of the entire fucking planet, but because of NSA’s sharing data with other agencies from it’s world wide capabilitys, the equally insidious programs such as torture, Drone delivered death from above, parallel construction etc have now created a world which even Orwell would shudder. So no..Snowden ISN’T the story. He’s only the messenger. HIS story is simply living testimony to the US Stazi mentality gone fucking insane.

      quote”The lesson Snowden learned from Drake’s experience was that the Intelligence Community Whistleblower Protection Act is bullshit in the hands of Obama, who has turned out to be the darkest prince of truth-repression ever to occupy the WH, and by “darkest,” I ain’t talkin’ (just) about the color of his skin.”unquote

      Indeed, and while I agree, I also think the “lesson learned”, is the “rule of law” is a fucking myth, as it has been replaced by cadre of legal imperialist perogatives and agenda’s that are motivated by 1% capitalist Lords of War profits, while using “national security” as a pretense to hide it’s war crime abominations perpetrated in the name of. In reality, they mock the very term, while turning whistleblowers such as Drake and Snowden into national news fodder to distract from the crimes they help expose, perpetrated by high officials in the USG. However, the REAL story here is.. how half of the citizens of this country have become bloodthirsty, racist, government war crime worshiping pond scum. Cue Trump. Yes, the real story is this country is fucking doomed to become simply another failed evil Empire.

  3. der says:

    “NSA is an organization, and a workforce, doggedly devoted to mission, and to process. In the case of Snowden, there is an argument (one I’ve made before) that its technical security and counterintelligence function failed. But to allude – as today’s report does – that a couple questions from a low level staffer should have rung all sorts of warning bells in the compliance and legal offices, is to suggest that an organization like NSA can no longer place trust in its workforce.”
    .
    After all these years and all the words that have been written this should be posted without comment, anyways here it goes: “Support the troops.” “Team USA!””Get on board, traitor.”
    .
    Was it Gen. Washington who said: “The enlisted are extremely cunning and sly and bear considerable watching.” Or: the uneducated who fight for “my” country are selfish and will stab you in the back, or frag you and take your hard earned wealth given 1/2 a chance.
    .
    Then this today: “A 17-month U.S. effort to retrain and reunify Iraq’s regular army has failed to create a large number of effective Iraqi combat units or limit the power of sectarian militias, according to current and former U.S. military and civilian officials.”
    http://www.businessinsider.com/r-exclusive-us-falters-in-campaign-to-revive-iraqi-army-officials-say-2016-6?yptr=yahoo?r=UK&IR=T
    .
    Our Best and Brightest have effed it all up and blame “the troops.” Clinton wonders, Trump exploits, Bernie hopes for change. While the planet burns.
    .
    Christ.

  4. martin says:

    damn. I’d kill for an edit button. I mistakenly misplaced my “quote” above. It should have been the very first word. Sorry.

  5. Will Harper says:

    It is extremely difficult to judge whether a response to a critique like Cordero’s is warranted. If, as Cordero’s argument demonstrates, the line of the critique is contradictory and the rationale keeps shifting. It doesn’t matter how you respond, the critic will simply do the same again.

  6. earlofhuntingdon says:

    Cordero protests too much, a sure sign of hidden intent. When it takes seven middle managers to respond to a CEO’s demand to know what correct process is in making a serious complaint to senior management, senior management has created a system designed to protect itself from ever hearing such complaints. That can mean senior management is just manipulative and domineering. It can often mean senior management is operating outside its remit, with tacit approval from its patrons, but doesn’t want to embarrass itself or its patrons by getting caught.

    Getting caught in public in a place like Washington leads to several conclusions. Among them, it is taken as a sign of incompetence and it is taken as ignorance of how to use power correctly. The first is manageable; the second is a career ender.

    The treatment of whistleblowers prior to Snowden makes clear that Team Obama, at least as much as its predecessor, dislikes anyone blowing whistles on serious government wrongdoing. For Snowden to go further out on a limb to express views the system did not want expressed would have only led to the burying of his concerns. That begins the labeling of him as the ever useful, “disgruntled former employee”. Being labeled a troublemaker, not a team player, would have been like a woman staffer wearing a burqa to an assignment at the DIA. Inevitably, it would lead to trouble getting assignments, promotions and most damagingly, keeping one’s security clearance. That’s a career ender in a government obsessed with security clearances.

    The BushCheney regime made an art out of silencing troublemakers by playing with their security clearances, sometimes for years. It forces out of government service even the most loyal longtime employee. Team Obama would have had no problem in rolling out that playbook and using it on the likes of Snowden.

    If Mr. Snowden wanted his complaints aired, and the public to know about wrongful, possibly criminal behavior by government, he had no option but to blow the whistle and hope that a thankful public would come to his defense. His government most assuredly would not.

    • emptywheel says:

      To be fair, I don’t think they were 7 managers. One was the training woman. One was probably the General Counsel Chief of Staff. Two were lawyers who had put together the training hierarchies table. And two were the training woman’s supervisors. So maybe 3 managers.

      My guess as to why they got so buggy is that 1) NSA training has to train to the law (FISA), but also 2) train analysts to use the 12333 workarounds that get you to easier compliance. That’s what the BRFISA/PRTT training did: lay out the law, and then explain how to get around it by running redundant queries under 12333.

      I also think leaving the Protect America Act SOPs on the web 4 years after the fact was not a mistake or indolence. I’ve seen enough things to make it clear NSA believes it could grandfather collection from PAA and enough other documents that still say PAA to believe they still operate under PAA in some sense. Note that there were two certificates under PAA that were not generally known at NSA, so that may be one reason why.

      I also think the NSA effectively accomplishes the one thing PAA allowed that FAA did not — wiretapping based solely on AG approval — via back door searches on 12333 data (which as I understand it only requires AG approval). If you are bulk collecting, then it is child’s play to get to the US person content off “back door” access (in many cases, even without doing a formal back door search).

      Mind you, all that’s (except the roles of the people who responded to Snowden) speculation. But it is consistent with a great deal of evidence I’ve seen from the NSA.

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