Last year, NSA whistleblower Edward Snowden said in interviews with Vanity Fair and NBC News that before he leaked highly classified documents about the agency's vast surveillance programs to journalists, he first emailed several NSA offices and "raised concerns" about the "interpretations of its legal authorities" related to those programs.
Snowden said the emails he wrote about "indefensible [NSA] collection activities" were sent to the NSA's Signals Intelligence (SIGNIT) Directorate Office of Oversight and Compliance, as well as to the Office of General Counsel and the Office of the Comptroller.
But the NSA said it could not locate those emails. The only email that came close to what Snowden described, according to the NSA, was one he sent to the Office of General Counsel in which the whistleblower asked a question about NSA legal authorities in training materials. The NSA declassified that email last year.
Last week, however, during a hearing in US District Court in Washington, DC, a government attorney revealed for the first time that it found three emails Snowden said he sent to the NSA's Oversight and Compliance office, one of the offices that would have handled his complaints.
However, those emails did not raise any questions or concerns about NSA surveillance, according to Justice Department attorney Steve Bressler.
"They concerned him doing his job of providing tech support to them, not raising concerns about NSA programs," Bressler told US District Court Judge Ketanji Brown Jackson.
The court hearing was held in response to an ongoing Freedom of Information Act (FOIA) lawsuit against the NSA that VICE News filed a year ago in which we sought all of the emails Snowden said he sent to agency officials that "raised concerns" about NSA surveillance.
The NSA is seeking dismissal of the FOIA lawsuit because the agency has not found any emails in which Snowden "raised concerns." But attorney Jeffrey Light, who is representing VICE News in the lawsuit, argued that the agency was construing too narrowly the phrase "raised concerns" when it conducted its search of the emails.
"The government understood these words, 'raised concerns,' to require some sort of state of anxiety or worry," Light said. "And the problem with that is that that is not the only definition the phrase is susceptible to. What [Snowden] meant by 'raising concerns,' he gave as an example, he showed co-workers information about an [NSA] program… and said, 'What would the public think if they saw this on the front page of the newspaper?' That does not express anxiety necessarily. It's a question. And under the NSA's interpretation, we believe they would not have determined that to be responsive."
Snowden also disclosed in a December 2013 interview with the Washington Post that he communicated verbally to his co-workers about a tool to track global surveillance data called BOUNDLESSINFORMANT and said, "What do you think the public would do if this was on the front page?"
Snowden asked during the interview how asking such questions does not rise to the level of raising concerns. Bressler said it would have.
"That would have been considered raising concerns to suggest there would be a negative reaction if something, you know, became public," Bressler said. But NSA "didn't find such email about Boundless Informant or anything else."
In a declaration NSA Director for Policy and Records David Sherman filed with the court on Monday, he said, "Had NSA located an email in which, for example, Mr. Snowden asked 'How do you think the American people would feel if this was on the front page of the newspaper tomorrow?' or any similar statement ... we would have considered it responsive and processed it. Our comprehensive searches located no such email."
The NSA maintains that it collected and searched every email Snowden sent after he leaked classified NSA documents to journalists as part of the government's criminal case against him.
"There were many searches very carefully conducted by human beings," Bressler told the judge. "These were manual 'eyeball on every email' searches conducted by people."
Sherman said at least one member of his staff "reviewed every single email" Snowden sent.
"My staff searched for any records expressing concern about NSA programs by reviewing each individual email in context to see if it was responsive," Sherman said.
Yet the NSA's FOIA officers were unable to find emails in which Snowden raised concerns that were responsive to VICE News' requests or to similar FOIA requests filed by other journalists for the same documents.
"People on the FOIA staff reviewed individually every email, every word of every email," Bressler told Judge Jackson "The agency interpreted the phrase 'raised concerns' in the sense of creating or bringing to light a worried feeling or state of anxiety about NSA programs rather than bringing up for discussion or consideration matter of interest or importance."
Jackson, however, said that despite the NSA's claims that not a single email Snowden said he sent to a handful of NSA offices "raised concerns" about the legality of NSA surveillance programs, the question about how the NSA interpreted the phrase "raised concerns" is still left unresolved. Light proposed that Jackson review the emails Snowden sent to the NSA's Office of General Counsel and the offices of Oversight and Comptroller.
Bressler told the judge that would be pointless because during the course of Snowden's career at the NSA, he only sent one email to the general counsel's office, which the NSA had already declassified and released; only three emails were sent to the oversight office, and they were about "tech support"; and Snowden did not send any emails to the other offices.
"So looking at those likely candidates for the receipt of a quote/unquote 'whistleblower,' there was nothing," Bressler said. "If you expand this to talk about any emails sent to the threat operations center where [Snowden] was working in Hawaii, then the number of total emails increases to the hundreds or thousands of emails because they are the sorts of emails that one would expect being sent about work and non-work subjects to colleagues. None of them raised concerns. None of them were even officials raising concerns about NSA programs…. There is no reason for the court to waste its time repeating the task of trolling through those emails."
Sherman's declaration further noted that the three emails Snowden sent to the SIGNIT Oversight and Compliance office "concerned technical support provided by Mr. Snowden in his job as a system administrator" and a "large number of email sent by Mr. Snowden to members of the NSA/CSS [Central Security Service] Threat Operations Center. None of those were responsive" to VICE News's FOIA request.
Light said he would continue to argue for the release of the three Snowden emails the NSA has characterized as being about tech support.
The NSA did turn over an internal email to VICE News that the agency's director of legislative affairs sent to staffers at the Senate Intelligence Committee last year alerting them to both a Vanity Fair story in which Snowden said he went through internal channels and tried to raise concerns about NSA surveillance programs, and the NSA's attempts to locate emails that fit that description.
"Against the backdrop of extensive searches, supported by investigative interviews, there was one brief email exchange between Mr. Snowden and the NSA Office of General Counsel in April 2013 seeking generic clarification about the hierarchy of certain legal and policy documents governing NSA's mission activities," wrote Ethan Bauman, director of the NSA's office of legislative affairs, on April 10, 2014. The email was sent to David Grannis and Darren Dick, the staff director and deputy staff director of the Senate Intelligence Committee, and Martha Scott Poindexter, the Intelligence Committee's minority staff director. "Investigations by NSA and FBI have not yielded any evidence that Mr. Snowden expressed concerns or complaints, in email or any other form, about NSA's intelligence activities to anyone in a position of authority or oversight."
The NSA declassified and publicly released that single email more than a month later, after Snowden gave an interview to Brian Williams of NBC News in which he reiterated what he told Vanity Fair: that he had sent emails raising concerns about NSA's surveillance activities. The Washington Post reported that the email Snowden sent to the Office of General Counsel "presaged his concern about broad surveillance undertaken overseas by the NSA outside of laws regulating domestic collection. Such collection of e-mails, phone calls, and other digital data takes place under executive authority with less stringent privacy protections for US persons."
Snowden issued a statement after the NSA released that email, calling into question the integrity of the agency's search and disclosing what offices he sent emails. The NSA now says, other than the three emails allegedly pertaining to tech support, those emails do not exist.
Snowden's attorney, Ben Wizner of the ACLU, was out of the office Wednesday and unavailable for comment. He previously told VICE News that he did not have in-depth discussions with Snowden about the emails and therefore could not respond to the government's claims that none existed.
Wizner said the issue of Snowden's emails is "somewhat of a red herring [since] Snowden witnessed an entire regime of surveillance, and what was needed was not for higher-ups to be aware of his concerns, but for the public to be brought into the conversation."
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