Edward Snowden and the STELLARWIND report
Last September, Edward Snowden published his memoir titled Permanent Record (see Part I and Part II of my extensive review). According to this book, he had one of his "atomic moments" when he read a highly classified report about the controversial NSA program codenamed STELLARWIND, somewhere in 2009 or 2010.
But one month after the book release, during a podcast interview in October 2019, Snowden said that he found that particular report only somewhere in 2012. This discrepancy makes it worth to take a close look at the STELLARWIND program: what it was about, how it was revealed, which conspiracy theories it evoked and how it's misrepresented in Snowden's book.
STELLARWIND is the cover name and the classification compartment for what was officially called the President's Surveillance Program (PSP), which was authorized by president George W. Bush on October 4, 2001 as a response to the 9/11 Attacks.
The NSA had noticed that al-Qaeda terrorists used American networks and providers for their e-mail communications, but because this was cable-bound, the Foreign Intelligence Surveillance Act (FISA) from 1978 required a warrant from the FISA Court to intercept them. Had these communications been wireless, like previously over a satellite link, the NSA would not have been required to get a warrant.
Requesting a FISA warrant took four to six weeks, so terrorists could have changed their phone numbers and e-mail addresses well before the NSA received court approval.* To "fix" this, Bush unilaterally allowed the NSA to also track down the cable-bound communications of foreign terrorists without having to obtain a warrant. Therefore, this became also known as the Warrantless Wiretapping.
In a very controversial legal opinion by Justice Department lawyer John Yoo, the PSP was justified by the president's wartime powers according to Article Two of the US Constitution.* In practice, the program encompassed four components for collecting the following types of data ("internet" actually means e-mail communications):
- Telephony content
- Internet content
- Telephony metadata
- Internet metadata
It should be noted that although these data were intercepted at internet backbone cables and switching facilities inside the United States, the targets were some clearly defined groups of foreign enemies: Al-Qaeda terrorists and other targets related to Afghanistan as well as the Iraqi Intelligence services.
The first revelations about STELLARWIND
Parts of the President's Surveillance Program were first revealed by The New York Times on December 16, 2005, saying that the NSA "has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda."
In a radio address the next day, president Bush admitted that the NSA was collecting the content of one-end foreign telephone and internet communications. He called this publicly acknowledged part of STELLARWIND the Terrorist Surveillance Program (TSP), but stayed silent about the other components of the PSP, which involved the bulk collection of domestic metadata.
One of the sources for The New York Times story was former NSA employee Russell Tice, who had his security clearance revoked in May 2005 based on what the NSA called psychological concerns. In January 2006, Tice claimed that "the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used."
Three years later, in December 2008, Newsweek revealed that Thomas Tamm, a former lawyer at the Justice Department, had also been one of the sources for The New York Times. Because Tamm wasn't "read into" the PSP he wasn't able to explain its full scope and the exact details. It seems that Newsweek was also the first to disclose the code name of this program: "Stellar Wind".
Two less-known revelations
On May 10, 2006, USA Today revealed that the NSA "has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon and BellSouth", which the NSA used "to analyze calling patterns in an effort to detect terrorist activity". This was one of the STELLARWIND components that president Bush had kept secret, so a big scoop, which nonetheless got very little public attention.*
Also largely unnoticed was the surprisingly frank interview that Director of National Intelligence John McConnell gave to the El Paso Times in August 2007. He provided numbers about the targeted content collection under the PSP: "On the U.S. persons side it's 100 or less. And then the foreign side, it's in the thousands. Now there's a sense that we're doing massive data mining. In fact, what we're doing is surgical."
In his book Permanent Record, Snowden writes about the initial revelation by The New York Times, which angered him because the paper delayed it more than a year because of pressure from the White House. (p. 245)
Snowden's book doesn't mention the USA Today article, nor the McConnell interview, probably because they didn't fit his narrative: USA Today had revealed the bulk collection of domestic phone records seven years before The Guardian did based upon Snowden's documents, while McConnell made it clear that the PSP was limited and targeted instead of the alleged domestic mass surveillance.
New legal authorities
In the beginning of 2004, two newly appointed officials at the Justice Department, Jack Goldsmith and James Comey, had become worried that the bulk collection of internet metadata might be illegal. This led to a dramatic fight with the White House, after which the various components of STELLARWIND were transferred from the president's authority to that of the FISA Court (FISC). The final presidential authorization expired on February 1, 2007.
The first transfer was of the bulk collection of internet metadata, which was henceforth based on Section 402 FISA (the Pen Register/Trap & Trace (PR/TT) provision) and first authorized as such by the FISC on July 14, 2004.
The new legal basis for the bulk collection of domestic telephone records was found in Section 215 of the Patriot Act, which was approved by the FISC on May 24, 2006. Because these two components of the STELLARWIND program were not publicly acknowledged, this happened in secret.
The parts of the program that had already been disclosed by the press and admitted by president Bush, the targeted collection of content, got a temporary authorization under FISC orders as of January 2007 and were then legalized by the Protect America Act (PAA) from August 2007, which was replaced by Section 702 of the FISA Amendments Act (FAA) in July 2008.
The Inspectors General report
The FAA required the inspectors general (IG) of all five agencies that participated in the President's Surveillance Program (NSA, CIA, Defense Department, Justice Department and the Office of the Director of National Intelligence) to conduct a comprehensive review of the program.
The original and highly classified joint report of these five inspectors general is almost 750 pages long and was finished on July 10, 2009. It was eventually declassified (but with significant sections redacted) in September 2015. A short unclassified summary of this report had already been published in July 2009:
At that time, Edward Snowden worked as a systems administrator at the NSA's Pacific Technical Center (PTC) in Japan and in Permanent Record he says that he read the unclassified report about the President's Surveillance Program in the Summer of 2009, so shortly after it came out. (p. 173)
He concluded that the new FAA extended the NSA's powers: "In addition to collecting inbound communications coming from foreign countries, the NSA now also had policy approval for the warrantless collection of outbound telephone and internet communications originating within American borders." (p. 173)
It seems that Snowden, at least at the time, didn't really understand this subject, because the expansion provided by the FAA wasn't from inbound to outbound communications, but from a few specific foreign enemies (like al-Qaeda) to a wider variety of foreign intelligence targets. As such, Section 702 FAA became the legal basis for Upstream collection and the PRISM program.
> See also: NSA's Legal Authorities
Searching for the classified Stellarwind report
Snowden read the unclassified PSP report very closely because he noticed that the program also encompassed "Other Intelligence Activities" that remained classified. This gave him the impression that graver things had been going on than just targeted interception and so he went searching for the original, classified version of the report. To his surprise he couldn't find it and so after a while he dropped the issue. (p. 174)
In Permanent Record, Snowden says that "It was only later, long after I'd forgotten about the missing IG report, that the classified version came skimming across my desktop". He doesn't share how much later, but apparently it was before he left Japan in September 2010: "After reading this classified report, I spent the next weeks, even months, in a daze. [...] that's what was going on in my head, toward the end of my stint in Japan." (p. 175 & 180)
An unexpected discrepancy
But on October 23, 2019, one month after Permanent Record was published, Snowden was interviewed in the Joe Rogan Experience podcast. There, he revealed that he found the classified report only somewhere in 2012. It turned up when he ran some "dirty word searches" to help out the Windows network systems administration team that sat next to him when he was the sole employee of the Office of Information Sharing at NSA Hawaii.
Another new detail that Snowden provided during the podcast interview is that the draft report was from someone from the office of the NSA's Inspector General who had come to Hawaii. This person then left the document on a lower-security system where its classification marking STLW popped up during the dirty word search as something that shouldn't be there.
A decisive moment?
The moment when Snowden found the classified Stellarwind report is of some importance because it could have incited him to download and eventually leak the NSA files to the press. On October 18, 2013, The New York Times wrote:
"Mr. Snowden said he finally decided to act when he discovered a copy of a classified 2009 inspector general's report on the N.S.A.'s warrantless wiretapping program during the Bush administration."
Many people, however, will remember another moment that Snowden claimed as a "breaking point", namely when Director of National Intelligence James Clapper was forced to lie during a Senate committee hearing on March 12, 2013, which Snowden recalled in an interview from January 23, 2014 with the German broadcaster ARD:
"I would say sort of the breaking point was seeing the Director of National Intelligence, James Clapper, directly lie on oath to Congress. There’s no saving an intelligence community that believes it can lie to the public and the legislators who need to be able to trust it and regulate its actions.
Seeing that really meant for me that there was no going back. Beyond that, it was the creeping realisation that noone else was going to do this. The public had a right to know about these programmes."
Clappers testimony is also described in Snowden's book Permanent Record, but only as an example of how the legislative branch of government fails to exercise effective oversight of the Intelligence Community. It says nothing about whether the hearing had any special impact on himself. (p. 231)
All this seems contradictory, but the memoir suggests there actually was no single decisive moment: "The most important decisions in life are never made that way [at an instant]. They're made subconsciously and only express themselves consciously once fully formed". (p. 214)
So, if discovering the STELLARWIND report, nor Clapper's testimony were the single decisive moments and it apparently was a more gradual process, then there may have been other moments or events that influenced Snowden - like the following ones:
Bill Binney and the Utah Data Center
On March 15, 2012, Wired published a piece about the Utah Data Center (UDC), written by James Bamford, a well-known author of three books about the NSA. This article includes a number of speculations and accusations which are almost identical to those expressed later on by Snowden, who presents this data center as the "corpus delicti" for his claim that the NSA wants to store all our data forever. (p. 246-247)
Bamford's article says that "the NSA has turned its surveillance apparatus on the US and its citizens" and now wants to "collect and sift through billions of email messages and phone calls, whether they originate within the country or overseas" - hence the need for the huge new data center near Bluffdale, Utah.
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