On the heels of Edward Snowden's prime-time effort to bolster his case as a conscientious defender of civil liberties, the U.S. government is pushing back on a central aspect of the whistleblower's story: that he attempted to alert his superiors to what he viewed as excessive intelligence gathering techniques and that those efforts to blow the whistle were ignored.
On Thursday, the Office of the Director of National Intelligence released what it says is the only email it has been able to find in which Snowden raises any kind of concern with NSA bosses. In the email, Snowden inquires about NSA training materials that describe the hierarchy of U.S. laws. According to the email, Snowden questioned whether that material placed federal laws and executive orders on the same level. A federal law can override an executive order but not the other way around.
Snowden inquired with the NSA's general counsel's office whether the agency meant to imply that agency employees should consider laws and executive orders as equal to one another. "My understanding is that EOs may be superseded by federal statute, but EOs may not override statute. Am I incorrect in this?" Snowden wrote in the email, dated April 5, 2013.
Three days later, a member of the general counsel's office wrote back to tell Snowden that, yes, "Executive Orders (E.O.s) have the 'force and effect of law.' That said, you are correct that E.O.s. cannot override a statute."
In releasing the email, the National Intelligence Director's Office noted that the communication between Snowden and NSA higher-ups did not address allegations of surveillance overreach, a rejection of Snowden's claim that he attempted to air his concerns internally before disclosing classified information to journalists. "NSA has now explained that they have found one email inquiry by Edward Snowden to the Office of General Counsel asking for an explanation of some material that was in a training course he had just completed," the National Intelligence Director's Office said in a statement. "The email did not raise allegations or concerns about wrongdoing or abuse, but posed a legal question that the Office of General Counsel addressed."
Snowden's legal counsel, Ben Wizner, called the email "a red herring," and said that it was a "selective release" by the government that doesn't reflect the totality of conversations Snowden had with government officials. If government officials are claiming that this email is the only communication that shows Snowden raised concerns or asked questions about NSA's legal authorities, they are incorrect, Wizner said.
In the email released Thursday, Snowden doesn't mention any particular NSA programs, nor does he challenge the legality of surveillance. The email appears to have been prompted by training Snowden said he received on a U.S. intelligence directive, known as USSID 18, which lays out the rules for how the NSA is supposed to handle Americans' communications when the agency intercepts them.
Wizner said the email shows Snowden "raising concerns on the way they're [NSA employees] being instructed on their legal authorities." Snowden asks the general counsel whether executive orders have the same "precedence" as law. He's told in a reply that executive orders have the "force and effect of law," but that they cannot supersede statutes. Snowden goes on to ask a more arcane question about whether a particular department's internal regulations should be given more weight than others but he never mentions collection programs or sections of law that are at the heart of the NSA's surveillance programs.
Contrary to the ODNI's claims, Snowden said he expressed misgivings about NSA activities to several officials. In testimony to the European Parliament in March, Snowden said that he spoke "to more than 10 distinct officials, none of whom took any action to address them." Snowden went on to say that as a contractor who worked for a company and not directly for the U.S. government, "I was not protected by U.S. whistleblower laws, and I would not have been protected from retaliation and legal sanction for revealing classified information about law-breaking in accordance with the recommended process."
Wizner said that Snowden had no productive avenues for airing his opinion that the NSA programs were unconstitutional. Determining the constitutionality of a program isn't within the purview of the agency's inspector general and other oversight officials at the NSA, Wizner said.
Moreover, the programs in question were already known to the agency's overseers in Congress and the Foreign Intelligence Surveillance Court, which authorizes NSA's activities, Wizner said, noting that Snowden would have been alerting them to programs that they already knew about, as opposed to other instances in which whistleblowers exposed wrongdoing or mismanagement that wasn't previously known to lawmakers. Had Snowden raised concerns, Wizner said, he would have been told the programs were legal and then likely punished or retaliated against by government officials.
Snowden's claims that he had no effective way to alert Americans to surveillance controversies by sticking to internal channels lie at the heart of his justification of going public with highly classified NSA documents, a claim he repeated in an NBC interview that aired Wednesday night. "I actually did go through channels, and that is documented," he said. "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.... The response more or less, in bureaucratic language, was, 'You should stop asking questions.'"
The competing claims from Snowden and the federal government place the two parties in a dispute over each other's credibility. "There were and there are numerous avenues that Mr. Snowden could have used to raise other concerns or whistleblower allegations," White House Press Secretary Jay Carney told reporters Thursday. "The appropriate authorities have searched for additional indications of outreach from Mr. Snowden in those areas and to date have not found any engagements related to his claims."
Read the full email exchange here.