Snowden email fell short of NSA criticism

In an email sent to top lawyers at the National Security Agency a month before leaving the agency, former contractor Edward Snowden questioned the agency’s legal rationale but did not formally denounce its operations.

The April 5, 2013, email released by the spy agency on Thursday showed Snowden merely asking for clarification about a recent training course he had taken.

The message falls short of an objection to the agency’s procedures and operations, however, and may not satisfy Snowden’s supporters looking for proof that he had no other option but to go to the press.

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After a mandatory training course about an agency directive that prohibits collecting information about Americans, Snowden asked NSA lawyers to clarify the hierarchy of government legal documents. At the top he listed the U.S. Constitution, followed by federal statutes and presidential executive orders, then Pentagon and Office of the Director of National Intelligence (ODNI) regulations and, at the bottom, directives and policies from the NSA.

“I’m not entirely certain, but this does not seem correct,” Snowden wrote, “as it seems to imply Executive Orders have the same precedence as law."

“My understanding is that [executive orders] may be superseded by federal statute, but [executive orders] may not override statute. Am I incorrect in this? Between [executive orders] and laws, which have precedence?”

He also asked whether regulations from the Defense Department or the ODNI had greater precedence.

“Could you please clarify?” he asked.

In response, an NSA lawyer said Snowden was “correct” that executive orders cannot override a federal law, but that they nonetheless have the “force and effect of law.” The lawyer added that Pentagon and ODNI regulations “are afforded similar precedence,” though either could take precedence, depending on the subject or date.

Snowden’s critics have condemned his leaks, which they say may have damaged the country’s national security by exposing secrets to terrorists and enemies of the United States. If he truly had objections to the programs, they say, he should have raised them internally instead of going straight to the press.

Ben Wizner, Snowden’s legal advisor and head of the American Civil Liberties Union’s speech, privacy and technology project dismissed the email flap as “a red herring.”

“The problem was not some unknown and isolated instance of misconduct. The problem was that an entire system of mass surveillance had been deployed – and deemed legal – without the knowledge or consent of the public,” he said in a statement.

“Snowden,” Wizner added, “raised many complaints over many channels.”

In an interview with NBC that aired on Wednesday evening, Snowden countered that he had sent multiple emails to the NSA’s Office of General Counsel “raising concerns about the NSA’s interpretations of its legal authorities.”

According to the NSA, agents have looked for additional emails but “have not discovered any engagements related to his claims” beyond the clarifying question released on Thursday.

In a statement, Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) said that her panel had received Snowden's email in April but that the NSA had not found any other relevant messages from Snowden questioning or complaining about his work.

“In the months since the first leaks of classified information, the government has declassified and released significant information about NSA programs in an effort to be more transparent with the public, both in the United States and internationally,” she said in a statement. “I believe this transparency is important and should also be applied to the communication that Snowden referenced in his recent interview.” 

This post was updated at 5:13 p.m.