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The Nation: Explain the technical reform you mentioned. Snowden: We already see this happening. The issue I brought forward most clearly was that of mass surveillance, not of surveillance in general. It’s OK if we wiretap Osama bin Laden. I want to know what he’s planning—obviously not him nowadays, but that kind of thing. I don’t care if it’s a pope or a bin Laden. As long as investigators must go to a judge—an independent judge, a real judge, not a secret judge—and make a showing that there’s probable cause to issue a warrant, then they can do that. And that’s how it should be done. The problem is when they monitor all of us, en masse, all of the time, without any specific justification for intercepting in the first place, without any specific judicial showing that there’s a probable cause for that infringement of our rights.

Since the revelations, we have seen a massive sea change in the technological basis and makeup of the Internet. One story revealed that the NSA was unlawfully collecting data from the data centers of Google and Yahoo. They were intercepting the transactions of data centers of American companies, which should not be allowed in the first place because American companies are considered US persons, sort of, under our surveillance authorities. They say, “Well, we were doing it overseas,” but that falls under a different Reagan-era authority: EO 12333, an executive order for foreign-intelligence collection, as opposed to the ones we now use domestically. So this one isn’t even authorized by law. It’s just an old-ass piece of paper with Reagan’s signature on it, which has been updated a couple times since then. So what happened was that all of a sudden these massive, behemoth companies realized their data centers—sending hundreds of millions of people’s communications back and forth every day—were completely unprotected, electronically naked. GCHQ, the British spy agency, was listening in, and the NSA was getting the data and everything like that, because they could dodge the encryption that was typically used. Basically, the way it worked technically, you go from your phone to Facebook.com, let’s say—that link is encrypted. So if the NSA is trying to watch it here, they can’t understand it. But what these agencies discovered was, the Facebook site that your phone is connected to is just the front end of a larger corporate network—that’s not actually where the data comes from. When you ask for your Facebook page, you hit this part and it’s protected, but it has to go on this long bounce around the world to actually get what you’re asking for and go back. So what they did was just get out of the protected part and they went onto the back network. They went into the private network of these companies.

The Nation: The companies knew this? Snowden: Companies did not know it. They said, “Well, we gave the NSA the front door; we gave you the PRISM program. You could get anything you wanted from our companies anyway—all you had to do was ask us and we’re gonna give it to you.” So the companies couldn’t have imagined that the intelligence communities would break in the back door, too—but they did, because they didn’t have to deal with the same legal process as when they went through the front door. When this was published by Barton Gellman in The Washington Post and the companies were exposed, Gellman printed a great anecdote: he showed two Google engineers a slide that showed how the NSA was doing this, and the engineers “exploded in profanity.” Another example—one document I revealed was the classified inspector general’s report on a Bush surveillance operation, Stellar Wind, which basically showed that the authorities knew it was unlawful at the time. There was no statutory basis; it was happening basically on the president’s say-so and a secret authorization that no one was allowed to see. When the DOJ said, “We’re not gonna reauthorize this because it is not lawful,” Cheney—or one of Cheney’s advisers—went to Michael Hayden, director of the NSA, and said, “There is no lawful basis for this program. DOJ is not going to reauthorize it, and we don’t know what we’re going to do. Will you continue it anyway on the president’s say-so?” Hayden said yes, even though he knew it was unlawful and the DOJ was against it. Nobody has read this document because it’s like twenty-eight pages long, even though it’s incredibly important.

The big tech companies understood that the government had not only damaged American principles, it had hurt their businesses. They thought, “No one trusts our products anymore.” So they decided to fix these security flaws to secure their phones. The new iPhone has encryption that protects the contents of the phone. This means if someone steals your phone—if a hacker or something images your phone—they can’t read what’s on the phone itself, they can’t look at your pictures, they can’t see the text messages you send, and so forth. But it does not stop law enforcement from tracking your movements via geolocation on the phone if they think you are involved in a kidnapping case, for example. It does not stop law enforcement from requesting copies of your texts from the providers via warrant. It does not stop them from accessing copies of your pictures or whatever that are uploaded to, for example, Apple’s cloud service, which are still legally accessible because those are not encrypted. It only protects what’s physically on the phone. This is purely a security feature that protects against the kind of abuse that can happen with all these things being out there undetected. In response, the attorney general and the FBI director jumped on a soap box and said, “You are putting our children at risk.”

The Nation: Is there a potential conflict between massive encryption and the lawful investigation of crimes? Snowden: This is the controversy that the attorney general and the FBI director were trying to create. They were suggesting, “We have to be able to have lawful access to these devices with a warrant, but that is technically not possible on a secure device. The only way that is possible is if you compromise the security of the device by leaving a back door.” We’ve known that these back doors are not secure. I talk to cryptographers, some of the leading technologists in the world, all the time about how we can deal with these issues. It is not possible to create a back door that is only accessible, for example, to the FBI. And even if it were, you run into the same problem with international commerce: if you create a device that is famous for compromised security and it has an American back door, nobody is gonna buy it. Anyway, it’s not true that the authorities cannot access the content of the phone even if there is no back door. When I was at the NSA, we did this every single day, even on Sundays. I believe that encryption is a civic responsibility, a civic duty.

The Nation: Some years ago, The Nation did a special issue on patriotism. We asked about a hundred people how they define it. How do you define patriotism? And related to that, you’re probably the world’s most famous whistleblower, though you don’t like that term. What characterization of your role do you prefer? Snowden: What defines patriotism, for me, is the idea that one rises to act on behalf of one’s country. As I said before, that’s distinct from acting to benefit the government—a distinction that’s increasingly lost today. You’re not patriotic just because you back whoever’s in power today or their policies. You’re patriotic when you work to improve the lives of the people of your country, your community and your family. Sometimes that means making hard choices, choices that go against your personal interest. People sometimes say I broke an oath of secrecy—one of the early charges leveled against me. But it’s a fundamental misunderstanding, because there is no oath of secrecy for people who work in the intelligence community. You are asked to sign a civil agreement, called a Standard Form 312, which basically says if you disclose classified information, they can sue you; they can do this, that and the other. And you risk going to jail. But you are also asked to take an oath, and that’s the oath of service. The oath of service is not to secrecy, but to the Constitution—to protect it against all enemies, foreign and domestic. That’s the oath that I kept, that James Clapper and former NSA director Keith Alexander did not. You raise your hand and you take the oath in your class when you are on board. All government officials are made to do it who work for the intelligence agencies—at least, that’s where I took the oath.

The Nation: Creating a new system may be your transition, but it’s also a political act. Snowden: In case you haven’t noticed, I have a somewhat sneaky way of effecting political change. I don’t want to directly confront great powers, which we cannot defeat on their terms. They have more money, more clout, more airtime. We cannot be effective without a mass movement, and the American people today are too comfortable to adapt to a mass movement. But as inequality grows, the basic bonds of social fraternity are fraying—as we discussed in regard to Occupy Wall Street. As tensions increase, people will become more willing to engage in protest. But that moment is not now.

The Nation: You really think that if you could go home tomorrow with complete immunity, there wouldn’t be irresistible pressure on you to become a spokesperson, even an activist, on behalf of our rights and liberties? Indeed, wouldn’t that now be your duty? Snowden: But the idea for me now—because I’m not a politician, and I do not think I am as effective in this way as people who actually prepare for it—is to focus on technical reform, because I speak the language of technology. I spoke with Tim Berners-Lee, the guy who invented the World Wide Web. We agree on the necessity for this generation to create what he calls the Magna Carta for the Internet. We want to say what “digital rights” should be. What values should we be protecting, and how do we assert them? What I can do—because I am a technologist, and because I actually understand how this stuff works under the hood—is to help create the new systems that reflect our values. Of course I want to see political reform in the United States. But we could pass the best surveillance reforms, the best privacy protections in the history of the world, in the United States, and it would have zero impact internationally. Zero impact in China and in every other country, because of their national laws—they won’t recognize our reforms; they’ll continue doing their own thing. But if someone creates a reformed technical system today—technical standards must be identical around the world for them to function together.

As for labeling someone a whistleblower, I think it does them—it does all of us—a disservice, because it “otherizes” us. Using the language of heroism, calling Daniel Ellsberg a hero, and calling the other people who made great sacrifices heroes—even though what they have done is heroic—is to distinguish them from the civic duty they performed, and excuses the rest of us from the same civic duty to speak out when we see something wrong, when we witness our government engaging in serious crimes, abusing power, engaging in massive historic violations of the Constitution of the United States. We have to speak out or we are party to that bad action.

The Nation: Considering your personal experience—the risks you took, and now your fate here in Moscow—do you think other young men or women will be inspired or discouraged from doing what you did? Snowden: Chelsea Manning got thirty-five years in prison, while I’m still free. I talk to people in the ACLU office in New York all the time. I’m able to participate in the debate and to campaign for reform. I’m just the first to come forward in the manner that I did and succeed. When governments go too far to punish people for actions that are dissent rather than a real threat to the nation, they risk delegitimizing not just their systems of justice, but the legitimacy of the government itself. Because when they bring political charges against people for acts that were clearly at least intended to work in the public interest, they deny them the opportunity to mount a public-interest defense. The charges they brought against me, for example, explicitly denied my ability to make a public-interest defense. There were no whistleblower protections that would’ve protected me—and that’s known to everybody in the intelligence community. There are no proper channels for making this information available when the system fails comprehensively.

The government would assert that individuals who are aware of serious wrongdoing in the intelligence community should bring their concerns to the people most responsible for that wrongdoing, and rely on those people to correct the problems that those people themselves authorized. Going all the way back to Daniel Ellsberg, it is clear that the government is not concerned with damage to national security, because in none of these cases was there damage. At the trial of Chelsea Manning, the government could point to no case of specific damage that had been caused by the massive revelation of classified information. The charges are a reaction to the government’s embarrassment more than genuine concern about these activities, or they would substantiate what harms were done. We’re now more than a year since my NSA revelations, and despite numerous hours of testimony before Congress, despite tons of off-the-record quotes from anonymous officials who have an ax to grind, not a single US official, not a single representative of the United States government, has ever pointed to a single case of individualized harm caused by these revelations. This, despite the fact that former NSA director Keith Alexander said this would cause grave and irrevocable harm to the nation. Some months after he made that statement, the new director of the NSA, Michael Rogers, said that, in fact, he doesn’t see the sky falling. It’s not so serious after all.

The Nation: You also remind us of [Manhattan Project physicist] Robert Oppenheimer—what he created and then worried about. Snowden: Someone recently talked about mass surveillance and the NSA revelations as being the atomic moment for computer scientists. The atomic bomb was the moral moment for physicists. Mass surveillance is the same moment for computer scientists, when they realize that the things they produce can be used to harm a tremendous number of people. It is interesting that so many people who become disenchanted, who protest against their own organizations, are people who contributed something to them and then saw how it was misused. When I was working in Japan, I created a system for ensuring that intelligence data was globally recoverable in the event of a disaster. I was not aware of the scope of mass surveillance. I came across some legal questions when I was creating it. My superiors pushed back and were like, “Well, how are we going to deal with this data?” And I was like, “I didn’t even know it existed.” Later, when I found out that we were collecting more information on American communications than we were on Russian communications, for example, I was like, “Holy shit.” Being confronted with the realization that work you intended to benefit people is being used against them has a radicalizing effect.

The Nation: We have a sense, or certainly the hope, we’ll be seeing you in America soon—perhaps sometime after this Ukrainian crisis ends. Snowden: I would love to think that, but we’ve gone all the way up the chain at all the levels, and things like that. A political decision has been made not to irritate the intelligence community. The spy agencies are really embarrassed, they’re really sore—the revelations really hurt their mystique. The last ten years, they were getting the Zero Dark Thirty treatment—they’re the heroes. The surveillance revelations bring them back to Big Brother kind of narratives, and they don’t like that at all. The Obama administration almost appears as though it is afraid of the intelligence community. They’re afraid of death by a thousand cuts—you know, leaks and things like that.

The Nation: You’ve given us a lot of time, and we are very grateful, as will be The Nation’s and other readers. But before we end, any more thoughts about your future? Snowden: If I had to guess what the future’s going to look like for me—assuming it’s not an orange jumpsuit in a hole—I think I’m going to alternate between tech and policy. I think we need that. I think that’s actually what’s missing from government, for the most part. We’ve got a lot of policy people, but we have no technologists, even though technology is such a big part of our lives. It’s just amazing, because even these big Silicon Valley companies, the masters of the universe or whatever, haven’t engaged with Washington until recently. They’re still playing catch-up. As for my personal politics, some people seem to think I’m some kind of archlibertarian, a hyper-conservative. But when it comes to social policies, I believe women have the right to make their own choices, and inequality is a really important issue. As a technologist, I see the trends, and I see that automation inevitably is going to mean fewer and fewer jobs. And if we do not find a way to provide a basic income for people who have no work, or no meaningful work, we’re going to have social unrest that could get people killed. When we have increasing production—year after year after year—some of that needs to be reinvested in society. It doesn’t need to be consistently concentrated in these venture-capital funds and things like that. I’m not a communist, a socialist or a radical. But these issues have to be 
addressed.

Following his meeting with government representatives on Wednesday, Shannon convened with members of the Venezuelan opposition coalition the “Roundtable of Democratic Unity” (MUD) at the U.S. embassy headquarters before flying back to Washington on Thursday. The MUD has confirmed that the purpose of the meeting was to talk to Shannon about “the release of political prisoners,” Venezuela’s human rights situation and the country’s upcoming legislative elections. “Following the summit (of the Americas), there will be a more active U.S. presence along with UNASUR foreign ministers and other actors, with a view to bringing about an electoral and peaceful way out of the Venezuelan crisis,” stated MUD secretary, Jesus Torrealba, who added that Shannon had confirmed that Washington would be “more emphatic” about addressing alleged “human rights abuses” in Venezuela following this week’s summit. According to the secretary, Washington is currently concerned that “a critical situation in Venezuela would not just affect Venezuelans, but that it would have an impact on the whole region”. The MUD also handed over an “updated human rights report” to Shannon before the closed meeting came to an end by 11am.

Despite his warm welcome from the Venezuelan opposition, U.S. diplomat Shannon was greeted with a cool reception by the country’s alternative media, which were reticent about the envoy’s speckled diplomatic history. Over the past few days, various articles have been circulating on the internet noting the diplomat’s links to Latin American and Caribbean countries which have experienced U.S. backed coups during the last fifteen years. According to reports and Wikileak cables, Shannon was present in Honduras in the months following the coup which ousted Manuel Zelaya in 2009, and played an extensive role in US- Haiti relations following the second ousting of elected leftist president, Jean Bertrand Aristide in 2004. The diplomat worked at the U.S. embassy in Caracas for three years between 1996-1999.

Back of the Envelope Gymnastics Another troubling aspect of the court’s decision was its attack on the probabilities Wikimedia assigned to the likelihood of its communications being intercepted. Given that Wikimedia engages in a large volume of Internet communications, Wikimedia alleged that—even assuming a .00000001% chance that any one particular communication is intercepted—it would still have a 99.9999999999% of having one of its communications intercepted. The statistic was used to illustrate that, even assuming very low probabilities for interception, there was still a near-certainty that Wikipedia’s traffic was collected. But the court attacked Wikimedia’s simple statistical analysis (and the attack tracked, to a great degree, arguments made in the government’s declarations that the court purportedly did not consider). The court seemed to believe it had seized upon a great flaw in Wikimedia’s case by observing that, if the probability of any given communication being intercepted were decreased 100% or 1000%, the probability of one of Wikimedia’s communications being intercepted would similarly drop. The “mathematical gymnastics” the court believed it had unearthed were nothing more than Wikimedia using an intentionally small (and admittedly arbitrary) probability to illustrate the high likelihood that its communications had been swept up. But even if the court disagreed with the probabilities Wikimedia relied on, it’s not at all clear why that would justify dismissing the case at the outset. If it turned out, after development of the record, that the probabilities were off, then dismissal might be appropriate. But the court cut the case off before Wikimedia had the opportunity to introduce evidence or other facts that might support the probability they assigned.

Someone Else Probably Has Standing, Right? Perhaps most troubling was the court’s mistaken belief that the legality of upstream surveillance could be challenged in other ways, beyond civil cases like Wikimedia or our ongoing case, Jewel v. NSA. The court asserted its decision would not insulate upstream from judicial review, which—according to the court—could still receive judicial scrutiny through (1) review from the Foreign Intelligence Surveillance Court (FISC), (2) a challenge by a criminal defendant, or (3) a challenge from an electronic service provider. None of these options is truly a viable alternative, however. First, the FISC (until very recently) did not have adversarial proceedings—it only heard from the government, and its proceedings remain both far more limited and more secretive than a regular court’s. Second, a challenge from a criminal defendant won’t work either, because, to date, the government has explicitly refused to disclose—even where defendants are notified of the use of FISA surveillance—whether their communications were obtained using upstream surveillance. And, finally, in the nearly 15 years (or more) the government has conducted upstream surveillance, we’re not aware of any service provider that has challenged the legality of the practice. Indeed, given that upstream is done with the cooperation of telecoms like AT&T and Verizon—the same telcos that did not challenge the NSA’s bulk collection of Americans’ call records for over a decade—we're not holding our breath for a challenge anytime soon. Instead, we need the courts to tackle these cases. Upstream surveillance presents unique constitutional issues that no federal court has seriously addressed. It's time the federal courts stepped up to the challenge.

Clinton partisans — being Clinton partisans — would, if they ever did deign to address Israel/Palestine, undoubtedly justify Clinton’s hawkishness on the ground of political necessity: that she could never win if she did not demonstrate steadfast devotion to the Israeli government. But for all his foreign policy excesses, including on Israel, Obama has proven that a national politician can be at least mildly more adversarial to Israeli leaders and still retain support. And notably, there is at least one politician who rejects the view that one must cling to standard pro-Israel orthodoxy in order to win; just yesterday, Donald Trump vowed “neutrality” on Israel/Palestine. As I noted a couple of weeks ago, Clinton advocates are understandably desperate to manufacture the most trivial controversies because the alternative is to defend her candidacy based on her prior actions and current beliefs (that tactic was actually pioneered by then-Clinton operative Dick Morris, who had his client turn the 1996 election into a discussion of profound topics such as school uniforms). If you were a pro-Clinton progressive, would you want to defend her continuous vows to “strengthen” U.S. support for the Netanyahu government and ensure that every year “we must tie the bonds tighter”?

That’s why I find the Third Circuit’s analysis in Hassan so significant — not because it allows this particular civil suit to go forward, but because it does so based upon an explicit (and conscious) rejection of Korematsu — style legal reasoning. As Judge Ambro explains, “No matter how tempting it might be to do otherwise, we must apply the same rigorous standards even where national security is at stake. We have learned from experience that it is often where the asserted interest appears most compelling that we must be most vigilant in protecting constitutional rights.” And applying the strict judicial scrutiny that is triggered by government action deemed to be intentionally discriminatory on the basis of religious affiliation, the court proceeds to hold that the NYPD lacked a sufficiently compelling justification for such discriminatory treatment, because even if abstract claims of security necessity could be a compelling government interest, the NYPD’s alleged policy was far too overbroad to survive the narrow tailoring required by strict scrutiny. Thus, quoting directly from Justice Jackson’s Korematsu dissent, Judge Ambro closed his opinion by noting that “Our job is judicial. We ‘can apply only law, and must abide by the Constitution, or [we] cease to be civil courts and become instruments of [police] policy.'”

Faiza’s post provides far more detail on the specifics of the Third Circuit’s analysis, and the opinion itself is worth a read. For present purposes, though, it’s this mentality that I find so refreshing — that even when the government invokes the specter of September 11 and the need to prevent future acts of terrorism, courts will not abdicate their responsibility to scrutinize the government’s justifications with care, and to be especially wary of overbroad government programs carried out under the broad guise of “necessity.” Hassan certainly isn’t the first example of this kind of principled judicial decisionmaking in a post-September 11 counterterrorism suit, but it is the one that, at least in my view, most directly confronts — and rejects — the kind of deferential judicial review that was responsible for the second constitutional failure in Korematsu, and all of the pain that followed.

“We will pursue a new foreign policy that finally learns from the mistakes of the past…We will stop looking to topple regimes and overthrow governments…. Our goal is stability not chaos, because we want to rebuild our country [the United States] …In our dealings with other countries, we will seek shared interests wherever possible and pursue a new era of peace, understanding, and good will.” There won’t be any peace under Mattis or McMaster, that’s for sure. Both men are anti-Moscow hardliners who think Russia is an emerging rival that must be confronted and defeated. Even more worrisome is the fact that uber-hawk John McCain recently stated that he talks with both men “almost daily” (even though he has avoided talking to Trump since he was elected in November.) According to German Marshall Fund’s Derek Chollet, a former Obama Pentagon official. “(McCain) is trying to run U.S. defense policy through Mattis and effectively ignore Trump.” (Kimberly Dozier, Daily Beast contributing editor)  Chollet’s comments square with our belief that Trump has relinquished his control over foreign policy to placate his critics.

In response to Mattis’s comments, Syrian President Bashar al Assad said: “Any military operation in Syria without the approval of the Syrian government is illegal, and  any troops on the Syrian soil,  is an invasion, whether to liberate Raqqa or any other place. …The (US-led) coalition has never been serious about fighting ISIS or the terrorists.” Clearly, Washington is using the fight against ISIS as a pretext for capturing and holding territory in a critical, energy-rich area of the world. The plan to seize parts of East Syria for military bases and pipeline corridors fits neatly within this same basic strategy.   But it also throws a wrench in Moscow’s plan to restore the country’s borders and put an end to the six year-long conflict. And what does Tillerson mean when he talks about “interim zones of stability” a moniker that the Trump administration carefully crafted to avoid the more portentous-sounding “safe zones”. (Readers will recall that Hillary Clinton was the biggest proponent of safe zones in Syria, even though they would require a huge commitment of US troops as well as the costly imposition of a no-fly zone.) Tillerson’s comments suggest that the Trump administration is deepening its involvement in Syria despite the risks of a catastrophic clash with Moscow. Ever since General Michael Flynn was forced to step down from his position as National Security Advisor, (Flynn wanted to “normalize” relations with Russia), Trump has filled his foreign policy team with Russophobic hawks who see Moscow as “hostile revisionist power” that “annex(es) territory, intimidates our allies, develops nuclear weapons, and uses proxies under the cover of modernized conventional militaries.” Those are the words of  the man who replaced Flynn as NSA,  Lt. General HR McMaster. While the media applauded the McMaster appointment as an “outstanding choice”, his critics think it signals a departure from Trump’s campaign promise:

Washington’s Syria policy is now in the hands of a small group of right-wing extremists who think Russia is the biggest threat the nation has faced since WW2. That’s why there’s been a sharp uptick in the number of troops deployed to the region.