Spy Agencies Counter Snowden's Whistleblower Claim

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 "My understanding is that EOs may be superseded by federal statute, but EOs may not override statute.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.



The Self-Censorship Shuffle: Why One Australian Media Mogul Chose to Kowtow to Myanmar's Generals

In March, Ross Dunkley -- the blustering, chain-smoking, Australian expat who heads the Myanmar Times -- issued an internal memo, ordering his staff not to publish articles related to politically sensitive topics without his prior approval. At the top of that list: the ongoing oppression of the Rohingya ethnic group in the north, and rising tensions between Buddhists and Muslims throughout the country.

"Right now I am fielding a considerable amount of pressure from different quarters over this sensitive issue," Dunkley wrote in the memo, which was obtained by Foreign Policy. "I am surrounded by a number of forces from the president's office downwards and from my own directors and editorial consultants.... There are plenty of people out there that would like to see us go down or be pegged back."

Coming from Dunkley, whose reputation over the years has vacillated between government stooge and government headache, the directive is a reflection of the fraught state of journalism in Myanmar two years into the country's democratic opening. While the country's media is freer than it has been in decades, that progress has been sullied by periodic backslides and pre-emptive newsroom censorship, like that displayed by Dunkley's memo. Despite new freedoms, editors who started their careers under military rule still feel pressure to toe the government line -- particularly as the regime struggles to manage its own image amid mounting international criticism over its handling of sectarian conflict.

When Dunkley launched the Myanmar Times in 2000, it was in collusion with the country's repressive military leaders. After starting and then selling newspapers in Vietnam and Cambodia, Dunkley established a cozy, profitable relationship with Myanmar's Military Intelligence department, which enabled him to more or less bypass the country's onerous press censorship board.

Hugh Piper, who produced a 2011 documentary about Dunkley, Dancing with Dictators, characterizes the editor's relationship with the junta as a necessary evil. "It's reasonable to say that he introduced the first real newspaper that attempted to reflect Burmese society," Piper told FP. "And to do that had to be in cahoots with people who were part of the same regime that jailed Aung San Suu Kyi."

It wasn't long before Dunkley found himself on the wrong side of that regime. In 2004, the junta purged the military leadership and threw Dunkley's then-business partner, Sonny Swe, in jail. In his place, the junta installed a government crony, Tin Tun Oo.

In 2011, the country's transition from dictatorship to burgeoning democracy strained relations between Dunkley and his new partner, who reportedly wanted Dunkley to exercise a tad less editorial independence. The tension between the two coincided with Dunkley's arrest on charges of drugging and assaulting a local woman. The woman eventually recanted, but Dunkley spent 47 days in jail.

Now Dunkley has a new partner: business tycoon Thein Tun, whom the memo describes as "representing substantial investment and powerful protection" for the newspaper. Incidentally, Thein Tun came on board just weeks before the directive went out.

Observers of Myanmar's newly free press say that the memo reflects the unfortunate reality of many of the country's newsrooms. "I am not surprised to see that memo," said Aung Zaw, the founder and editor of the Irrawaddy magazine, as well as one of Dunkley's staunchest critics. "He has never been a champion for human rights and democracy in Burma," he said, noting Dunkley's once cozy relationship with junta officials.

Despite Dunkley's questionable record on press freedom, Aung Zaw noted that he isn't the only editor in Yangon under pressure to censor coverage. "A lot of local editors, Burmese editors, even if they do not issue such a memo, would still definitely tell their reporters to be careful with their reporting, or to ignore these issues completely," he said. "There is a profound fear [of backlash]. There is a lot of self-censorship, especially on the issue of the Rohingya."

Press censorship in Myanmar, once frighteningly Orwellian, has eased considerably since 2011, when the new government assumed power. In 2012, the regime took the pivotal step of abolishing the repressive censorship board. In 2013, the Ministry of Information began issuing licenses for independent daily newspapers, which had previously been illegal. But in March 2014, President Thein Sein enacted two new laws that undercut some of the newfound press freedoms, and reporters are still sometimes jailed for reporting on topics the government would rather keep under wraps.

Of the myriad volatile issues in Myanmar that deserve coverage but that the government is unlikely to look kindly upon, the plight of the Rohingya remains one of the most sensitive. An ethnic group that historically hails from Bangladesh, the Rohingya are viewed by many residents of Rakhine state, where they live, as illegal immigrants and squatters whose religion (many are Muslim) threatens the Buddhist way of life. They've been the target of vicious attacks that human rights groups and the U.N. special envoy to Myanmar have characterized as crimes against humanity.

It doesn't help that Myanmar's government refuses to recognize the Rohingya as an ethnic group of Myanmar; official documents exclusively refer to them as "Bengalis." Even Aung San Suu Kyi displays a startling lack of empathy for the beleaguered minority.

"The story of the Rohingya is very complex," explained Aung Zaw. "I find that it is the most difficult story to report, even for very experienced journalists."

Part of the problem is how difficult it is to report on events in Rakhine state. A lack of security, poor transport infrastructure throughout the country, and language barriers create logistical challenges for reporters.

Another issue is training and experience. One expat journalist in Yangon, who asked to remain anonymous due to the political sensitivity of the issue, told FP that many local media organizations are incapable of objectively covering sectarian conflicts involving Muslims or Rohingya because their reporters share with the public an intense prejudice against those groups. "An irony is that journalists loathe the previous military government, partly because of its censorship of the media, and yet they uncritically accept the government propaganda that the Rohingya are 'Bengalis' who are illegal immigrants from Bangladesh," he said.

A January report by the United States Institute of Peace supports that point: "One dubious legacy of the former military regime and its complete control of the flow of information is the lack of media professionals trained to conduct high-quality, ethical news reporting," the report said. "Even the big outlets like Weekly Eleven don't go against public opinion," it said, referring to a local newspaper that, in 2011, earned a Press Freedom Prize from media watchdog group Reporters Without Borders.

Having gained the support of the country's political elites only to experience a falling out with them, it's not surprising Dunkley may consider reporting on the politically heated and culturally complicated conflict both pointless and profitless. "Our coverage of the issue is unlikely to matter substantively in the scheme of things and there appears little sense in placing our heads on the block right at this time," he wrote in the memo.

According to sources inside the Myanmar Times, most staffers have ignored the directive to stay away from coverage of the country's embattled ethnic groups. Since Dunkley issued the memo in March, the newspaper's staff has reported frequently -- and responsibly -- on myriad issues relating to the Rohingya, including on the pullout of aid groups in Rohingya communities and U.N. criticism of the state's handling of the crisis there. The Myanmar Times has also published op-eds giving voice to actors from both sides of the debate. Though this has not gone without some public criticism, a source at the Myanmar Times told FP that there has been relatively little backlash.

Perhaps Dunkley should have more faith in the reporters he hired and reared. Or maybe he's just covering his bases. It's hard to say for sure, as Dunkley declined to comment -- stating in an email that the memo "is an internal matter" and not up for "dissection."

Piper, Dunkley's sympathetic documentarian, gives him the benefit of the doubt: "He wants a dynamic paper that he can attract readers to by telling important and serious stories," Piper said. "His attitude is that you can either be in the game, or be screaming pointlessly from the sidelines. He'd rather be in the game."