As part of a European parliamentary committee’s inquiry into electronic massive surveillance on the citizens of European Union member states, former NSA contractor and whistleblower Edward Snowden provided testimony to the committee.
Snowden described to the committee how spy services in the EU cooperate with the NSA to monitor citizens in countries without ever having to admit that this surveillance is happening.
“The nature of the NSA’s “NOFORN,” or NO FOREIGN NATIONALS classification, when combined with the fact that the memorandum agreements between NSA and its foreign partners have a standard disclaimer stating they provide no enforceable rights, provides both the NSA with a means of monitoring its partner’s citizens without informing the partner, and the partner with a means of plausible deniability,” Snowden testified.
According to him, this creates a kind of “European bazaar.” Any EU member state can give NSA access to a “tapping center” on the condition that the NSA does not spy on that state’s citizens.
…[A]n EU member state like Denmark may give the NSA access to a tapping center on the (unenforceable) condition that NSA doesn’t search it for Danes, and Germany may give the NSA access to another on the condition that it doesn’t search for Germans. Yet the two tapping sites may be two points on the same cable, so the NSA simply captures the communications of the German citizens as they transit Denmark, and the Danish citizens as they transit Germany, all the while considering it entirely in accordance with their agreements. Ultimately, each EU national government’s spy services are independently hawking domestic accesses to the NSA, GCHQ, FRA [Swedish National Defence Radio Establishment], and the like without having any awareness of how their individual contribution is enabling the greater patchwork of mass surveillance against ordinary citizens as a whole…
What makes the “patchwork of mass surveillance” possible, Snowden also highlights, is how the NSA’s Foreign Affairs Division pressures or incentivizes EU member states to “change their laws to enable mass surveillance.
“Lawyers from the NSA, as well as the UK’s GCHQ, work very hard to search for loopholes in laws and constitutional protections that they can use to justify indiscriminate, dragnet surveillance operations that were at best unwittingly authorized by lawmakers,” he stated. “These efforts to interpret new powers out of vague laws is an intentional strategy to avoid public opposition and lawmakers’ insistence that legal limits be respected, effects the GCHQ internally described in its own documents as ‘damaging public debate.’”
Specifically, Snowden recounts recent developments:
[W]e have seen these FAD “legal guidance” operations occur in both Sweden and the Netherlands, and also faraway New Zealand. Germany was pressured to modify its G-10 law to appease the NSA, and it eroded the rights of German citizens under their constitution. Each of these countries received instruction from the NSA, sometimes under the guise of the US Department of Defense and other bodies, on how to degrade the legal protections of their countries’ communications. The ultimate result of the NSA’s guidance is that the right of ordinary citizens to be free from unwarranted interference is degraded, and systems of intrusive mass surveillance are being constructed in secret within otherwise liberal states, often without the full awareness of the public.
The dismantling or systematic undermining of legal protections through pressure on EU member states then makes it possible for “access operations” so that the NSA and other agencies can gain access “bulk communications” of the major telecommunications providers. It makes it “very difficult” for any citizen to protect their communications from being subjected to mass surveillance.
Snowden was asked to “comment on the activities of EU Member States intelligence agencies” in operations and “how advanced their capabilities have become in comparison with the NSA.” He was also asked to “confirm cyber-attacks by the NSA or other intelligence agencies on EU institutions, telecommunications providers such as Belgacom and SWIFT, or any other EU-based companies.” He confirmed that the documents on cyber-attacks were authentic and unmodified but could not provide further information because journalists are working on stories that will reveal more information.
He could not share much about how advanced EU member states’ capabilities have become because journalists are working on stories related to this as well.
Another critical question involved whether there were many other programs yet to be disclosed that “impact on EU citizens rights.” He said there were many programs that could be revealed, which impact their rights. Journalists will determine which programs can be “safely disclosed.”
Additionally, members of the committees questioned him on why he decided to become a whistleblower and, essentially, though it was not asked in this way, whether there were “proper channels” he could have gone through to expose wrongdoing.
The culture within the US Intelligence Community is such that reporting serious concerns about the legality or propriety of programs is much more likely to result in your being flagged as a troublemaker than to result in substantive reform,” Snowden stated.
“We should remember that many of these programs were well known to be problematic to the legal offices of agencies such as the GCHQ and other oversight officials. According to their own documents, the priority of the overseers is not to assure strict compliance with the law and accountability for violations of law, but rather to avoid, and I quote, ‘damaging public debate,’ to conceal the fact that for-profit companies have gone ‘well beyond’ what is legally required of them, and to avoid legal review of questionable programs by open courts.”
Agencies are more concerned with protecting secrecy and so concerned that, in fact, there are “two kinds of responses” an NSA employee could probably expect if they raised concerns with management.
One response involved advice not to “rock the boat.” If one did, they could receive the kind of treatment that previous whistleblowers—William Binney, Thomas Drake and Kirk Wiebe—experienced, who were investigated by the government and had their homes raided by armed FBI agents. (Drake was actually charged under the Espionage Act for retaining classified information.)
The other response was that the issue should be “someone else’s problem.”
“Even among the most senior individuals to whom I reported my concerns, no one at NSA could ever recall an instance
where an official complaint had resulted in an unlawful program being ended, but there was a unanimous desire to avoid being associated with such a complaint in any form,” Snowden recalled.
Snowden remains convinced that he did all he could internally before making the ultimate decision to provide documents to journalists.
“I had reported these clearly problematic programs to more than ten distinct officials, none of whom took any action to address them,” he claimed. Also, “As an employee of a private company rather than a direct employee of the US government, I was not protected by US whistleblower laws, and I would not have been protected from retaliation and legal sanction for revealing classified information about lawbreaking in accordance with the recommended process.”
Intentionally, President Barack Obama’s administration has not extended protections to intelligence agency whistleblowers in the same way that whistleblowers from other government agencies are afforded protections. This has put individuals in the position of Snowden, where they feel their only option to get the truth out is to take a huge risk and attempt to go to the press without having their identity revealed. (*Of course, in Snowden’s case, he decided it would be better to take responsibility for his disclosures so the NSA would not pursue suspects in the NSA, who were innocent.)
It is worth noting the NSA Inspector General George Ellard, who Snowden supposedly was supposed to trust, said publicly he would have tried to show Snowden that he was wrong to be concerned. How could that ever have given Snowden any hope that the agency would take him seriously and investigate allegations of improper/illegal activity or wrongdoing?
Finally, Snowden was asked if he would seek asylum in an EU member state.
“I do seek EU asylum, but I have yet to receive a positive response to the requests I sent to various EU member states. Parliamentarians in the national governments have told me that the US, and I quote, ‘will not allow’ EU partners to offer political asylum to me, which is why the previous resolution on asylum ran into such mysterious opposition,” he answered.
“I would welcome any offer of safe passage or permanent asylum, but I recognize that would require an act of extraordinary political courage.”
Snowden remains in Russia and has temporary asylum until the end of July. In the meantime, he must either secure an extension of his asylum, secure permanent asylum or find another country that will give him permanent asylum. Otherwise, he will be without a level of protection and possibly face the possibility of having to go back to the United States, where he is unlikely to receive a fair trial because he is charged with Espionage Act violations. Such charges do not permit the accused to argue that their disclosures were in the “public interest,” making it mostly impossible for a whistleblower to mount a defense.
Read his full testimony submitted to the EU parliamentary committee here.