“We’re still investigating, but we think that a lot of what he looked at, he couldn’t pull down.” James Clapper

A critical way United States government officials have sought to undermine National Security Agency whistleblower Edward Snowden is by focusing attention on the vast amount of information he took with him. The NSA has not figured out exactly what Snowden took, however, claims of millions of documents being taken that would expose the US military to danger. However, now Director for National Intelligence appears to concede that they have been claiming was incorrect.

Clapper told Washington Post columnist David Ignatius, “We’re still investigating, but we think that a lot of what he looked at, he couldn’t pull down,” and, “Some things we thought he got he apparently didn’t.” But Clapper still said the damage is “profound.”

Ignatius apparently was able to view a classified damage evaluation. He wrote:

In the damage evaluation, the intelligence community has established three tiers of material: The first tier is the 300 or so documents that a senior intelligence official said news organizations in the United States or overseas have already published, often with redactions. The second is an additional 200,000 documents the United States believes Snowden or his associates gave to the media.

It’s a third tier of documents, which Snowden is assumed to have taken but whose current status isn’t known, for which officials have lowered the threat assessment. This batch of probably downloaded material is about 1.5 million documents, the senior official said. That’s below an earlier estimate of 1.77 million documents.

But this estimate may not be any more accurate than the previous estimate, which was first pushed on “60 Minutes,” because the NSA will probably never really know what Snowden took and they will always be making up some number that suits the agency’s interests.

Former NSA chief Gen. Keith Alexander stated in an interview with the Australia Financial Review in May, “I don’t think anybody really knows what he actually took with him, because the way he did it, we don’t have an accurate way of counting. What we do have an accurate way of counting is what he touched, what he may have downloaded and that was more than a million documents.”

The claims made about what Snowden took are based on the access he had while working as a contractor for the NSA, not what he actually took. Yet, this number of 1.7 million documents has repeatedly been used by government officials and the most strident critics to argue he is not a whistleblower.

Ignatius wrote in his column, “It’s impossible to assess independently the accuracy of what Clapper said, either about the damage Snowden allegedly caused or its mitigation. That’s one reason why a legal resolution of the case would be so valuable: It would establish the facts.”

Ignatius promotes a misunderstanding of the legal process. For example, if Snowden stood trial, it would be a national security leaks prosecution. The courtroom would often be closed to the press and public for the discussion of classified information. There would be a limited amount of evidence on actual damage that Snowden’s defense could get into the public record.

A sizable portion of the trial would, in fact, be conducted in secret without Snowden and his lawyers being able to ever discuss government claims about the released information. (This is what happened in the military trial of Chelsea Manning.)

Moreover, since the criminal complaint against Snowden alleges Espionage Act violations, there is no requirement on the part of the government to prove damage. Military prosecutors in Manning’s case successfully stopped the defense from making them prove Manning’s disclosures had caused damage to convict. Damage was an issue at sentencing that influenced how much time Manning was sentenced to prison, but it had no bearing on guilt or innocence.

But why is all of this subject to so much speculation by people like Clapper and other anonymous unnamed government officials?

NSA whistleblower Bill Binney has said, based on his experience at the agency, that the NSA never developed and implemented technology in order to have the capabilities to track activities by employees on the agency’s systems because the analysts and management opposed this technology.

Analysts “realized” the technology would be “monitoring everything they did and assessing what they were doing. They object. They didn’t want to be monitored.” They did not want all their actions being spied upon.

Management, according to Binney, resisted because such a system would have made it possible to “assess returns on all the programs” used around the world.” The agency would have been able to “assess returns” on programs” and “lay out all the programs in the world and map [them] against the spending and return on investment.” This would have exposed the NSA to “auditing” by Congress and management was opposed.

Photo by Medill DC under Creative Commons license