Monday, June 10, 2013

Betrayal of Public Trust: Snowden versus Manning

There are two prominent cases of intentional compromise of classified intelligence information currently in the news. The first is the court martial of Bradley Manning, who intentionally leaked thousands of classified documents to Julian Assange. Assange is an Australian Citizen and the owner of "Wikileaks".

The second is Mr. Edward Snowden, a former CIA techie who, until recently, was a civilian contractor from Booze-Allen-Hamilton working at the NSA's complex in Hawaii. He leaked information regarding Operation Prism to a British reporter from the UK-based The Guardian.

There are several similarities between the two cases. There are also a few key differences.

In both cases, the so-called "whistle blower" leaked information classified at Secret of higher levels to a foreign national.

In both cases, the "whistle blower" worked in a position of "public trust", had TS/SCI security clearance, and had access to highly sensitive information.

Both men leaked information the government alleges to pertain to national security and the Global War on Terror.

Both men broke the law. Did Snowden break any laws? Yes, he did. He violated his NDA, a breach of contract with the US Government. Manning admitted to breaking similar laws (and military regulations). He plead guilty and is already sentenced to 20 years for those violations.

Both men also claim they violated their positions of public trust and the Non-Disclosure Agreements (NDA) due to a striking moral conflict they both claim culminated in a moral and ethical need.

However, one of them may have done the right thing. The other did not.

As far as we know, Snowden did not give classified documentation to a publisher he knew intended to make the documents themselves public. Manning gave Assange the classified documents for the sole intention of revealing them to the public. The public that gained access includes Al Q'aeda and several of their affiliate terrorist groups. The United States has a declared war against Al Q'aeda (or did at the time of the disclosure).

The United States is not currently at war with its own citizens. Glancing at the headlines over the past four years may lead US Citizens to question that. The IRS's targeting NPO applications based upon conservative and constitutional ideologies for one example. The EPA targeting conservative-leaning energy and fuel companies, including "green" ones, while giving those that display "progressive" ideologies a "pass", is another example. The administration's targeting of conservative-leaning states over Election Laws (such as voter ID and other laws meant to mitigate election fraud) while refusing to investigate or prosecute allegations of blatant voter fraud is yet another such example. However, per the US Constitution, no such war has been, legally, declared.

The NSA is part of the Department of Defense. Within certain very strict parameters, the Department of Justice or the Department of Homeland Security may request their assets and capabilities. To do so requires requests signed by the respective department heads (AG and/or SecHS, and The SecDef). The SecDef then forwards the request along with his guidance to the DirNSA. Other law enforcement and military intelligence leaders/officials are also involved in the request process. Those requests must be accompanied by a few other things. The NSA is not allowed to collect (directly) on any US citizen. Even with the expansion allowed under the Patriot Act, it is very clear. The request must contain justification along with a targeted federal warrant. That warrant must include parameters such as duration, key information sought, etc. Any NSA, DIA, NRO, or other DoD intelligence activity (or individual)caught doing so without a warrant and those memorandums of agreement is violating both military and civilian law (to include the US Constitution).

For years, some have joked about the NSA listening to every phone call and reading every email looking for key words. Technically, this is against the law, even under the Patriot Act. Senator Obama openly opposed such activity. Ironically, this expanded collection of metadata on US Citizens without a specified and targeted warrant occurred under the executive branch while he is the seated chief executive and overall responsible party.

Based upon what Mr. Snowden revealed about Project Prism, the warrant sent to the DirNSA by the DOJ violated this basic simple law. Doing so violates the 4th Amendment to the US Constitution. The NSA, being manned by US Military as well as Department of Defense Civilians and Civilian Contractors, is made up of people in positions of "public trust". That means they pledged their loyalty to the US Constitution and the citizens of the United States. Any violation of the US Constitution is a violation of the public trust.

Manning was not upholding the US Constitution when he leaked classified information to Assange. Snowden, however, was upholding the supreme law of the land. His chosen means of disclosure may have broken the public trust, to a degree, in that he did so through a foreign news outlet. Arguably, he did so due to a perception of media bias. Snowden, after all, probably knew that the US DOJ issued illegal warrants to spy on Associated Press reporters. Could he have trusted a US-based media outlet to protect him and reveal only the necessary proof? We'll likely not know.

Currently, there is not enough information available to label Snowden a hero. He might be. He may not be. He may be some amalgamation of hero and scoundrel. What we do know, however, is that Manning is already a convicted criminal.