Playing to the Edge: American Intelligence in the Age of Terror (48 page)

I then recounted an American episode. In 2008, when President Obama was elected, he had a BlackBerry. We thought, Oh, God, he’s got to get rid of that. But he refused, so we did some things to make it a little more secure.

“But what’s the backstory on that?” I asked my German audience. “We were telling the guy who was soon going to be the most powerful man in the most powerful country on earth that if in his national capital he used his smartphone, a countless number of foreign intelligence services were going to listen to his phone calls and read his e-mails. We didn’t feign outrage or claim some moral high ground. We simply explained, ‘That’s just the way it is.’”

I did learn something at Munich, though. Even if I thought that the German reaction to Snowden was unwarranted, it was clear to me that it was genuine, not the faux outrage that we often saw elsewhere. We underestimated the depth of feelings that the German people—not just the chancellor—felt about the question of privacy given their historical circumstances. At Munich it was clear to me that Germans regarded privacy the way we Americans might regard freedom of speech or religion. We didn’t appreciate that enough.

And that had costs beyond hurt feelings. I worked hard at NSA to support the strategic relationship with Germany. An impediment to that was Bad Aibling Station in Bavaria. BAS wasn’t just an overhang from the Cold War, it was an overhang from the occupation. No Germans
allowed. It didn’t target Germany, but its mere existence on German soil complicated the relationship.

There was always an American argument for keeping BAS open, and when one aged off, the army, which ran the facility, excelled at thinking up new ones. The local community was incredibly supportive, and everyone loved being assigned within sight of the Bavarian Alps. Letting go would be hard.

I closed BAS in 2004 to clear the political decks in Germany for deeper and more sustained cooperation. I was trying to buy long-term capital. The German political reaction to Snowden put all of that at risk.

The Germans were friends, and the interaction at Munich was more dialogue than confrontation, but I got to look the devil in the eye a few months later when I debated advocacy journalist Glenn Greenwald in Toronto on the whole Snowden episode. It was actually a team affair, and I was paired with famous trial lawyer Alan Dershowitz (yet another of the odd alignments on this issue), while Greenwald was accompanied by young Internet entrepreneur and Reddit cofounder Alexis Ohanian.

On the morning of the debate, Greenwald was quoted in the
Toronto Globe and Mail
with this characterization of us: “I consider [Hayden] and Dershowitz two of the most pernicious human beings on the planet. I find them morally offensive. There’s an element of hypocrisy to being in the same room with them, treating them as if I have outward respect, because I don’t.”

Even allowing for a little pregame taunting to get into the head of the opposition, it occurred to me that the evening’s debate might not be a respectful give-and-take between people of broadly shared values on the difficult balance a free people have to make between their liberty and their security. And I was right.

I lost count of the number of times that Greenwald and Ohanian just declared as a given the existence of an all-knowing, all-pervasive, oppressive “surveillance state.” Certainly far more often than Dershowitz and I referred to what Greenwald called our “pretext” of fighting terrorism.

Dershowitz hammered the pretext argument and was relentless in not
allowing the presumption of ill intent to stand unchallenged. Motives matter, he declared, even when people might be wrong—a rebuttal to Greenwald’s dismissal of our moral worth and the worth of any of our arguments.

Ohanian argued passionately for the survival of the global, ubiquitous, unitary Internet that we know today.

I agreed that perhaps the worst result of the truths, half truths, and untruths in circulation would be to put wind in the sails of those who would destroy the Net, not because of espionage concerns, but because they feared the free movement of ideas and commerce. It would be an easy matter for the Russians, Chinese, Iranians, and a host of other autocrats to now claim that American arguments for an open and free Internet were merely covers for enabling American espionage.

The debate organizers “helpfully,” and with almost no advance notice, parachuted in Edward Snowden in a specially taped commentary that reinforced the surveillance-state meme. “It covers your e-mail, it covers your text messages, your Web history, every Google search you’ve ever made and every plane ticket you’ve ever bought, the books you buy.” The list went on.

Alan and I were pissed at the prerecorded intervention, not the least because it made us look like chum to attract Snowden’s commentary. And then there was the question of no advance notice.

But I mishandled it. As soon as the new Muscovite was finished, the moderator turned to me for comment, which I dutifully provided. I shouldn’t have. I should have leaped up, turned to the massive fading image, and shouted, “Wait! Don’t go! Wait! I’ve got questions. Now that you’re here (he wasn’t, of course) can you clear up a few things for me?” And then I would have asked:

You’ve cited Jim Clapper’s response to Ron Wyden on NSA surveillance as motivating your actions. That was March 2013 but you began offering documents to Greenwald in December 2012 and to Laura Poitras in January 2013. Weren’t you already committed?

While you were in Hong Kong fighting extradition, you told the press that NSA was hacking into Chinese computers. On the surface that looks like you were trying to buy safe passage. Were you?

The week before you fled Hong Kong, the London
Guardian
(based on your documents) claimed that the United States had intercepted Russian president Medvedev’s satellite phone while he was at a G20 summit in England. What’s the civil liberties issue there or is this just trading secrets for passage again?

You said that you raised your concerns within the system and that you were told not to rock the boat. NSA can’t find any evidence. You took hundreds of thousands of documents. Do
any
of them show your raising concerns? A single e-mail, perhaps?

You sound pretty authoritative, but the first PRISM stories were wrong, claiming NSA had free access to the server farms of Google, Hotmail, Yahoo, and the like. The
Washington Post
later walked that back. Did you misread the slides too?

Le Monde
and
El País
, based on your documents, claimed that NSA was collecting tens of millions of metadata events on French and Spanish citizens each month. It turns out those events were collected
by
the French and Spanish in war zones and provided to NSA to help military force protection. Did you get that wrong too?

God, I still feel bad at letting the opportunity pass. To date, Snowden has been interviewed by adoring acolytes like his ACLU lawyer or perennial NSA critic Jim Bamford. Even Brian Williams’s NBC session felt more like hagiography. Damn.

Alan and I held our own in the debate. There were several thousand in the audience, mostly young and almost all Canadian. It was truly a road game for us. Going in, the audience split 40–60 against us, with a little less than a quarter undecided. At the end of the evening, when everyone was forced to vote, the split remained 40–60. Afterward I exchanged cards with Ohanian. I didn’t even exchange glances with Greenwald.

 • • • 

T
HE
S
NOWDEN REVELATIONS WERE COSTLY.
I have characterized them as the greatest hemorrhaging of legitimate American secrets in the history of the republic. I know that all intelligence advantage is transient, particularly in signals intelligence. A casual business decision to upgrade a network that has been successfully penetrated can mean loss of access that was years in the making. Snowden’s revelations—across the board—cost the United States dearly in the accesses it had already gained. And, with targets now alerted to American tactics and techniques, recovering those accesses will be more time-consuming and more costly.

I am no doubt betraying my own background when I say that I think Snowden is an incredibly naive, hopelessly narcissistic, and insufferably self-important defector. In early October 2013 at a Washington panel, moderator David Ignatius began by pointing out that Snowden had been nominated and was on the short list for the European Parliament’s Sakharov Prize for Freedom of Thought. (It eventually went to Pakistani teenager Malala Yousafzai.) I couldn’t help commenting that “I must admit in my darker moments over the past several months, I’d also thought of nominating Mr. Snowden, but it was for a different list.”

That comment lit up the blogosphere as Snowdenistas accused me of wanting to put him on a kill list, a thought as ludicrous in my mind as suggesting he should join previous Sakharov awardees like Kofi Annan, Nelson Mandela, and Aung San Suu Kyi.

Not that I—or almost anyone else in the American intelligence community—wasn’t viscerally angry with him and what he had done. They tell a story in England of a young man who was condemned by his family for shirking military service during World War II by filling some civilian position in Bletchley, a small, nondescript town safely north of London. Rather than violate his oath of secrecy, the young man allowed his parents to go to their graves ignorant of the contribution he had made to breaking the Germans’ Enigma code. That’s what people in the intelligence community mean by “keeping the secrets.”

Despite that, though, there is one narrow way in which Snowden has been, in his own peculiar manner, a gift. Although I didn’t actually wish him the fate of a canary in a coal mine, he has performed like one—he is the visible effect (not the cause) of a broad cultural shift that is redefining legitimate secrecy, necessary transparency, and what constitutes consent of the governed.

Long before Snowden, I was asking CIA’s civilian advisory board, “Will America be able to conduct espionage in the future inside a broader political culture that every day demands more transparency and more public accountability from every aspect of national life?” The board studied it for a while and then reported back that they had their doubts. Really important answer.

American intelligence routinely assumes that it is operating with at least the implied sanction of the American people. Its practitioners believe that if the American people knew everything they were doing, they would broadly have their support. We have always believed that we worked with some manner of consent of the governed.

Now the governed are reconsidering how they want to grant that consent. And many are saying that fully and currently informing the intelligence committees in Congress is no longer enough. “That’s consent of the governors,” they seem to be saying, “not of the governed. You may have told them, but you didn’t tell me.”

Snowden’s “gift” was to make that dilemma clear to everyone. If we are going to conduct espionage in the future, we are going to have to make some changes in the relationship between the intelligence community and the public it serves.

That will be difficult. Espionage thrives in the shadows, and secrecy is an essential component of its success. Despite a latent plus side (legitimacy, support, understanding), American intelligence has traditionally judged the minus side of going public (decreased effectiveness) to be determinative.

It’s a noble calculus and one the community rarely gets credit for. Dutifully, the IC responds to leaks by hunkering down, neither confirming
nor denying, and hoping for the best. Even when there might be a plus side to a more accurate story being out there, traditional thinking has held that this is outweighed by the operational cost of
anything
being out there at all.

But that is (or should be) changing, and American intelligence is going to have to say and show more and especially do that
before
someone is accusing the intelligence community of wrongdoing. If we continue this debate with one side muted, the outcome will not be in doubt: intelligence will be mismanaged or misdirected or crippled, and in the end neither liberty nor security will be served.

To be sure, the intelligence community doesn’t control the “openness” agenda. Things that are better kept hidden now routinely enter the public domain beyond the control of the IC. Often they enter via political masters who see gain in a supportive press story. Other, less official leaks enter the public consciousness, usually via someone who is disgruntled, in a slanted and piecemeal fashion.

Put another way, American intelligence is already paying a lot of the operational cost of this stuff being out there, but is still denying itself any potential upside to a cogent, (more) complete description of what is actually going on. The result is that American intelligence is losing both effectiveness (through leaks)
and
legitimacy (through its own reticence).

Before any of my former colleagues hyperventilate, let me admit that there are limits to openness. Some things have to be secret. And there are other things that should not be confirmed by the government even though they are “known.”

Even when justified, transparency has its dangers.

For one thing, this could be a slippery slope. Once started, where or when do you stop? Specifically, once having put some facts out there, the “
Glomar
defense”
*
becomes problematic. We could also see a weakening
of state-secrets claims, even in frivolous lawsuits. A coherent public story line also creates a baseline for aggressive reporters to start pressing their sources for additional information. Voluntary disclosures could also seem to legitimize claims that this or that leak really doesn’t harm national security.

We also need to explain to those with whom we intend to be more open that with that will come some increased risk. It can be no other way. You can’t expand the window of 300 million–plus Americans into US espionage without simultaneously informing those on whom we intend to spy.