(update below)

The Office of Director for National Intelligence has published an email between National Security Agency whistleblower Edward Snowden and the NSA’s Office of General Counsel. The email exchange was reported by NBC News last night during the network’s exclusive interview with Snowden.

The email indicates that Snowden had a question about a training course he was taking. He questioned the “hierarchy of governing authorities and documents” that applied to government surveillance.

“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 My understanding is that [Executive Orders (EOs)] may be superseded by federal statute, but EOs may not override statute. Am I incorrect in this? Between EOs and laws, which have precedence?”

Snowden further asked, “Similarly, between [the Defense Department (DOD)] and ODNI regulations, which has greater precedence? Could you please clarify?”

An official at the Office of General Counsel, whose name is redacted, replied, “Executive Orders (EOs) have the ‘force and effect of law.’ That said, you are correct that EOs cannot override a statute. In general, DOD and ODNI regulations are afforded similar precedence though subject matter or date could result in one having precedence over another.” And Snowden was informed he could call if he wanted to discuss this further.

It is a fairly innocuous email exchange. ODNI indicated this does not “raise allegations or concerns about wrongdoing or abuse.” ODNI also declared, “There are numerous avenues that Mr. Snowden could have used to raise other concerns or whistleblower allegations. We have searched for additional indications of outreach from him in those areas and to date have not discovered any engagements related to his claims.”

ODNI’s view is semantic. NBC News spoke with two unnamed US officials, who had seen the email sent on April 5, 2013.

The email was sent while he was on “temporary assignment at NSA headquarters at Ft. Meade, Maryland. The officials told NBC News the message “questioned agency policies and practices.” A US official also said the questions had to do with how the NSA was “interpreting its legal justifications for domestic surveillance, and wrote out a hierarchy of U.S. law, with the Constitution at the top. Beneath the Constitution he placed federal statutes, and under them, Defense Department regulations, Office of the Director of National Intelligence regulations, and NSA policy.”

“Three days later, the NSA’s lawyers responded that he was correct in his analysis of how the NSA justified its collection of domestic data, and said the collection was legal,” according to NBC News.

Snowden claimed in the exclusive interview, “The NSA has records, they have copies of emails right now to their Office of General Counsel, to their oversight and compliance folks, from me raising concerns about the NSA’s interpretations of its legal authorities.

“Now, I had raised these complaints not just officially in writing through email to these offices and these individuals but to my supervisors, to my colleagues in more than one office,” Snowden said. He added, “The response more or less, in bureaucratic language, was, ‘You should stop asking questions.’”

What is going on here? Does this show that Snowden is deliberately misleading the public about the nature of his complaints? Did emails to superiors and various offices at NSA really have nothing to do with the information he took?

Remarkably, Snowden had made claims about going through channels prior to this exclusive interview. The NSA had denied that any paper trail showing communications existed.

Because a few US officials with knowledge of the email exchange spoke to NBC News, NSA was forced to respond by releasing the email to make it appear that Snowden was being disingenuous. But is the email exchange Snowden was referring to in the interview?

Snowden stated in testimony submitted to a European Union parliamentary committee, “I had reported these clearly problematic programs to more than ten distinct officials, none of whom took any action to address them.”

He told Vanity Fair, just as he said during the NBC News interview, “I made my concerns known to the NSA.’s lawyers, because I did some of it through email. I directly challenge the NSA to deny that I contacted NSA oversight and compliance bodies directly via email and that I specifically expressed concerns about their suspect interpretation of the law, and I welcome members of Congress to request a written answer to this question [from the NSA].”

According to Vanity Fair, “NSA Deputy Director Rick Ledgett, who led the internal investigation of Snowden, claimed Snowden made no formal complaints.” Ledgett said if he had complained to anyone no person had acknowledged it.

This is semantic language. NSA is using terms of art in the same way they use terms of art to collect the communications of US citizens when engaged in mass surveillance. “Formal complaints” would involve going to, for example,  an inspector general’s office with allegations of waste, fraud, abuse or illegality that likely involved classified information.

“As an employee of a private company rather than a direct employee of the US government,” Snowden believes he “was not protected by US whistleblower laws.”  He “would not have been protected from retaliation and legal sanction for revealing classified information about lawbreaking in accordance with the recommended process” because he was a contractor.

There probably are no “formal complaints” to any offices that include classified information. All “problematic programs” would be classified so he would not have felt he would be safe from retaliation if he referenced them in “formal complaints.”

Snowden is likely referring to emails he sent to people asking about programs, which would for the most part probably not be considered “formal complaints.” They would be like the email ODNI released, but, perhaps, include classified information, which he would have been cleared to discuss with superiors.

The Washington Post’s Barton Gellman was told by Snowden in December 2013 that “beginning in October 2012″ he “brought his misgivings to two superiors in the NSA’s Technology Directorate and two more in the NSA Threat Operations Center’s regional base in Hawaii.” But, despite Snowden’s specifics, NSA spokeswoman Vanee Vines claimed, “After extensive investigation, including interviews with his former NSA supervisors and co-workers, we have not found any evidence to support Mr. Snowden’s contention that he brought these matters to anyone’s attention.”

Months later, this email was uncovered by NBC News and then released to undermine the significance NBC News attributed to it.

What this looks like is a clear attempt at misdirection. US intelligence agencies are hoping the public believes this is the extent of what Snowden really did when complaining to superiors through channels. The public should listen to US intelligence officials, not Snowden, and accept that he is a dangerous criminal, who betrayed his country by spilling secrets that exposed sensitive operations to terrorists, and then fled to Russia.

But either these records Snowden is specifically talking about with officials exist—and they will become public soon (perhaps, through a Freedom of Information Act lawsuit)—or the communications have been destroyed to cover up the fact that Snowden did express concerns and the public will never see emails that could be potentially embarrassing to the NSA.

Eventually, the truth will come out.

Update

The Washington Post has published a response from Snowden to NSA’s release of this email. He says, “Today’s strangely tailored and incomplete leak only shows the NSA feels it has something to hide,” and, “I’m glad they’ve shown they have access to records they claimed just a few months ago did not exist, and I hope we’ll see the rest of them very soon.”

More specifically, “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.”

“Now that they have finally begun producing emails, I am confident that truth will become clear rather sooner than later.”

For more on Snowden going through channels at the NSA, see this previous post.