THIS IS HOW it ended for Jeffrey Sterling.
A former covert officer for the Central Intelligence Agency, Sterling sat down in a federal courtroom with a lawyer on either side, looking up at a judge who would announce in a few moments whether he would go to prison for the next 20 years. A few feet away, three prosecutors waited expectantly, hoping that more than a decade of investigation by the FBI would conclude with a severe sentence for a man who committed an “unconscionable” crime, as one of them told the judge.
In Sterling’s blind spot, behind his left shoulder, his wife tried not to sob so loudly that the judge would hear. A social worker, she had been interrogated by FBI agents, her modest home was searched, she had been made to testify before a grand jury, and she had given up her hopes for an ordinary life — a child or two rather than the miscarriages she had, a husband who could hold a job, a life that was not under surveillance, and friends who were free of harassment from government agents asking for information about her and her husband.
One of Sterling’s lawyers stood up to ask for leniency. Sterling was a good person, the lawyer said, not a traitor. He was the first in his family to graduate from college. After leaving the CIA, he worked as a healthcare investigator and won awards for uncovering millions of dollars in fraud. He loved his wife. He did not cause any harm and did not deserve to be locked up until he was an old man for talking to a New York Times reporter about a classified program that he believed had gone awry. Please let the sentence be fair, the lawyer said.
It was time for Sterling to say a few words. His lawyers followed him to the lectern, standing a half step behind, as though to steady him if he wavered. A tall man with a low voice, Sterling thanked the court for its efforts to conduct the trial and thanked the judge for delaying its start so he could attend the funeral of one of his brothers. He did not say whether, as the jury had decided, he was guilty of what they had convicted him for — violating the Espionage Act and other laws related to disclosing classified information.
Sterling’s battle against the government had begun more than 15 years earlier, when he was still at the CIA. After he lodged a racial discrimination complaint, he was fired by the agency and filed two federal lawsuits against it, one for retaliation and discrimination, another for obstructing the publication of his autobiography. He also spoke as a whistleblower to Congress. Soon, his savings ran out and he became all but homeless, driving around the country, lost in despair. He eventually returned to his hometown near St. Louis and rebuilt his life, finding the woman who became his wife and landing a job he thrived at.
His new life was torn apart when FBI agents came to his workplace in 2011, placing him in handcuffs and parading him past his colleagues. A few days later, still in jail, he was fired because he had not shown up for work. The drama ended in a wood-paneled courtroom in Alexandria, Virginia on a warm afternoon in May, after Sterling finished his brief statement to the judge.
Sterling’s case has drawn attention primarily for two reasons: it was part of the Obama Administration’s controversial crackdown on leakers and whistleblowers, and prosecutors had tried to force the Times reporter, James Risen, to divulge the name of his source, whom the government believed was Sterling. The case, known as United States of America v. Jeffrey Alexander Sterling, was treated mainly as a freedom-of-the-press issue, with Risen as the heroic centerpiece. Lost in the judicial briefs about the First Amendment was the black man in the middle.
This is Sterling’s story.
DURING HIS LAST year of law school in St. Louis, Sterling was reading a newspaper between classes. He noticed an advertisement that showed a man standing at the edge of a body of water and looking at the horizon in an inspirational way. See the world, the ad said. Serve your country. Join the CIA.
It got him.
As a teenager, Sterling had become fascinated with the rest of the world. When he arrived home from high school, he would watch the MacNeil/Lehrer report on PBS. Attending a racially mixed high school, he didn’t fit in. He remembers being called an Oreo, black on the outside and white on the inside, because his interests didn’t coincide with some people’s concept of what a black kid should do or think or say. Within hours of reading the CIA ad he began working on his application.
His first day at Langley — what people at the agency call their “EOD,” or Entrance On Duty — was May 13, 1993. He was told to park behind the main building and enter through the back doors used by most employees. But Sterling made a detour around the long sides of the building to walk through the grand entrance — the one with the shiny CIA emblem on the marble floor, where you walk by a wall that has stars for each CIA officer killed in the line of duty.
“That was a thrill,” he told me. “I actually did that for the first few days. It meant that much to me, to be able to walk in that front door knowing that I was part of something special. I was so proud of it.”
I met Sterling in April, at his home in O’Fallon, on the outskirts of St. Louis. It had been three months since the jury convicted him, and he was waiting for the hearing at which he would find out whether he would receive the term recommended under federal sentencing guidelines — between 19 to 24 years in prison. He was surprisingly tranquil, occasionally stroking his gray-flecked goatee as he talked about his long fight with the government. Other than discussing his case in a short documentary directed by Judith Ehrlich and produced by Norman Solomon, Sterling has not talked publicly about it. The Justice Department, asked to respond to his account, refused to provide any comment.
IT DID NOT take long, apparently, for the color of Sterling’s skin to set him apart at the CIA.
Once he had completed the agency’s version of basic spy training, Sterling was assigned to the Iran Task Force and dispatched to language school to learn Farsi. In 1997, just before he was to leave for his first overseas post in Germany, he was told that somebody else was going instead.
“We’re concerned that you would stick out as a big black guy speaking Farsi,” Sterling recalls his supervisor saying.
Shocked, he responded, “Well, when did you figure out I was black?”
The agency did not have a good record on diversity. At the time, all of its directors, deputy directors and chiefs of espionage operations had been white men. In 1995, the agency had agreed to pay $990,000 to settle a class-action lawsuit filed by female case officers who accused the agency of sex discrimination. The agency promised to do better on both racial and gender diversity — but it wasn’t, as far as Sterling could tell.
“I seriously considered leaving the agency,” he told me. “But I believed in what I would be able to do. I believed in the career I could have there.”
A few months later, he accepted a different overseas assignment. Shortly before he was to leave, a supervisor said he would instead go to the position in Germany that he had previously been turned down for, because the officer they were planning to send had pulled out. Sterling, a proud man, said he didn’t want to take a position for which he had been deemed second-best.
“You either go where we want or you’re going nowhere,” Sterling says he was told.
“I was like, OK, I can deal with this, I at least have an assignment,” Sterling told me. “I’ll prove to them how I’m a great case officer.”
Sterling recalls being the only black officer at the agency’s station in Bonn. His cover was as an Army logistics officer rather than a State Department officer, and he says this made it more difficult to gain entry to the social and political circles where foreign spies are recruited; doors that open for diplomats are closed to logistics officers. He believes his bosses thought the color of his skin meant he wouldn’t do as well as other officers, so they didn’t bother giving him a good cover.
“I couldn’t get into a janitor’s convention,” he said.
Sterling returned to the U.S. and was assigned to the counter-proliferation division at the agency’s headquarters before being dispatched to the New York station, where he says that once again he was the only black officer. Things did not go smoothly. He was given an unusual ultimatum — start recruiting three new spies, hold three meetings with each of them, or leave New York. He felt singled out, asked to do more than other officers while lacking the cover they had.
“That was the last I could take of it,” Sterling recalled. “I just said ‘No, I don’t accept this and I’m going to file a complaint.’”
He was transferred back to Langley, where he was given a closet-sized office that he and the co-worker he shared it with jokingly called “the penalty box.” He filed an internal racial discrimination complaint that didn’t succeed, and soon he was fired. John Brennan, who at the time was the agency’s deputy executive director and is currently its director, told the New York Times that “it was an unfortunate situation because Jeffrey was a talented officer and had a lot of skills we are looking for, and we wanted him to succeed. We were quite pleased with Jeffrey’s performance in a number of areas. Unfortunately, there were some areas of his work and development that needed some improvement.”
In O’Fallon, Sterling and I met at the single-story home he shares with his wife and two cats in a community of nearly identical red-and-white houses. “We’re really outside the beltway here,” he joked at one point. He has a voice that’s made for radio — deep and fluid, a bass that usually stays in the same comfortable register. He was dressed in jeans and a short-sleeved shirt, with sandals on his feet. On the wall, there was a print by Salvador Dali of two butterflies dancing in the air. His tone varied only once or twice, when his steady voice sharpened into a knife.
“I had dedicated myself to that agency,” he said, when I asked why he chose to confront the CIA rather than, as many people might have done, carry on quietly or resign without filing a lawsuit. “I couldn’t just walk away from something that was so vital to me and that I knew I was good at, proved I was good at. That was it for me … No, you are not going to treat me that way.”
IN 1972, JIM CROCE came out with a hit song, “You Don’t Mess Around with Jim,” that had several lines about the things a sensible person never does, such as spitting into the wind, pulling off the mask of the Lone Ranger, and tugging on Superman’s cape. Sterling pointed to that last bit of advice — not tugging on Superman’s cape — to describe the path he took. He challenged the CIA, and it probably wasn’t a sensible choice.
In 2001, as he was leaving the agency, he filed a federal lawsuit that said the CIA retaliated against him for making an internal discrimination complaint, and that he had indeed faced a pattern of discrimination there. The suit was dismissed by a judge after the CIA successfully argued in pre-trial motions that a trial would expose state secrets by disclosing sources and methods of intelligence-gathering. An appeals court upheld that ruling, though it noted that the dismissal “places, on behalf of the entire country, a burden on Sterling that he alone must bear” by being deprived of his right to a trial. The dismissal spared Sterling’s supervisors from testifying about their interactions with him. The government has not provided specific responses, in court or to the media, about his accusations of racial discrimination, other than to generally state that he faced none.
He tugged on the CIA’s cape in other ways. He wrote a memoir, tentatively titled Spook: An American Journey Through Black and White, and submitted chapters for pre-publication review. According to a lawsuit Sterling filed in 2003, the CIA determined that his manuscript contained classified information that should not be published, and demanded that he add information that, his suit said, was “blatantly false.” Facing a tough legal battle with a presiding judge who seemed sympathetic to the CIA, Sterling eventually agreed to drop the suit. His manuscript has not been published.
Also in 2003, Sterling met staffers from the Senate Select Committee on Intelligence to let them know his concerns about the mismanagement of a classified program he worked on at the agency. Merlin, as the program was called, involved the CIA giving Iran faulty nuclear blueprints. If the blueprints were used, Iran’s nuclear program would be delayed. The blueprints were given to the Iranians by a Russian scientist who lived in the United States, and Sterling was his CIA handler. The CIA has said the program worked well, but Sterling told the committee staffers it was botched and that the Iranians learned the blueprints were flawed; the Iranians might have gained nuclear insights from the accurate parts.
By the time he talked to the Senate staffers, Sterling had become radioactive by Washington standards. This is the usual whistleblower’s fate. He applied for jobs with the private-sector contractors that tend to eagerly recruit experts like him, and they initially seemed quite interested, Sterling recalls, but their attention vanished suddenly, presumably when they learned about his disputes with the CIA. His descent began in full. Running out of money, he sold his belongings on Craigslist, gave his cats to a woman who had a farm, and packed a few things into his car and took off.
The idea was to drive to his mother’s house in Missouri, but he wandered, parking at truck stops at night and sleeping in his car. “I had nowhere to go,” he recalled. “I had worked hard and it all fell apart.” He eventually visited friends in St. Louis who had a newborn and they made a deal — Sterling cared for their baby and lived rent-free in their house. “It was very humbling to go from being a case officer with the Central Intelligence Agency to now I’m a manny,” Sterling noted.
Then, as things do, his life turned around. In 2004 he landed a job as a healthcare investigator at WellPoint, and he also met a woman, Holly Brooke, and after a few months moved into her house. He now had a job, a life partner, a home. Everything was great until, on the morning of New Year’s Eve in 2005, the CIA’s top lawyer, John Rizzo, was woken up at home by a phone call on his secure line.
RIZZO GROGGILY ANSWERED the phone and was told by an official at the National Security Council that a book was about to be published that disclosed one of the CIA’s most sensitive intelligence programs. The book, by James Risen, was called State of War, and it described the Merlin program as perhaps “one of the most reckless operations in the modern history of the CIA.” Risen’s book did not identify who his source, or sources, were.
Rizzo, who described the day’s events in his memoir, threw on his clothes and drove into town to get the book from the NSC official, then drove to Langley to share it with senior officials who had been dragged from their homes to figure out what to do. The White House wanted to take the extraordinary step of stopping the book from being published. President Bush’s top lawyer, Harriet Miers, asked Rizzo to call Sumner Redstone, the chairman of Viacom, which owned Simon & Schuster, the book’s publisher. In the end, Rizzo didn’t call Redstone, but he made a mental note to file a crimes report with the Department of Justice; the leaker had to be found.
Within a month, two FBI agents were at Sterling’s house outside St. Louis. They claimed they were concerned that an Iranian was on the loose who might do harm to him. Sterling sensed it was a ruse; he told the FBI agents he’d be able to spot someone following him, particularly an Iranian because there were no Iranians where he lived. The agents then asked if they could come inside and Sterling refused. They had a copy of Risen’s book and asked if he knew about it.
“I was like, ‘I don’t know anything about that book. That was the first I had ever seen of that,’” Sterling told me.
This wasn’t the first time Sterling was questioned by the FBI. Risen had interviewed Sterling in 2002 and published a story about his discrimination lawsuit. The next year, Risen reported a story about the Merlin program, but it wasn’t published. Risen asked the CIA for pre-publication comment on the story and was soon summoned to the White House, along with his editor. They were told by then-National Security Adviser Condoleeza Rice that the story, if published, would reveal a valuable covert program and could cost lives. The Times decided to kill it.
The Justice Department launched a criminal investigation in 2003 and FBI agents questioned Sterling that year. However, until the agents showed up at his doorstep in 2006 with Risen’s book, Sterling thought his struggles with the government were behind him.
After that visit, Holly was subpoenaed to testify before a grand jury. She was questioned for seven hours at FBI headquarters in Washington and, she told me, the next day she spent three hours before the grand jury in Alexandria, Virginia. When she returned to St. Louis, she got a call from her lawyer, who said the FBI was coming to search her home. More than a dozen agents soon showed up to confiscate some of the couple’s belongings.
“They left and I had a meltdown,” Holly said during lunch at a pub near her home, as easy-listening rock music played in the background. “I was sobbing and crying and couldn’t understand this. I attempted to go to work the next day and I just lost it. My boss came to me and she said, ‘You need to leave. I think you are suffering from post-traumatic stress disorder.’”
Then, as mysteriously as it had intruded into their lives, the FBI’s investigation seemed to dissipate. In the fall of 2010, Sterling’s lawyer called him to say the case appeared to be winding down.
ON JANUARY 6, 2011, Sterling was asked to attend a meeting at his office. He was on medical leave after a knee-replacement operation, so he hobbled into work with a cane, and after checking on the mail that had piled up on his desk, a colleague told him the security staff needed to see him because there was a problem with his badge. It was urgent, Sterling was told. When he visited the security staff he was confronted, he says, by several FBI agents and police officers who placed him under arrest. His cane was taken away, his arms were handcuffed behind his back, and he was marched out of the building, limping, as his co-workers gaped. The indictment accused him of leaking to Risen out of “anger and resentment” at the CIA.
The timing of his arrest was unusual. The exchanges between Sterling and Risen began in 2001 and finished in 2005, according to records of their phone calls and emails that were listed in the indictment. Why was Sterling arrested six years after he last communicated with Risen and five years after his home was searched by the FBI? If, as the government claimed, he had caused so much harm, why did prosecutors wait so long to press charges?
The answers appear to be political. Until Barack Obama was elected president, the Department of Justice rarely prosecuted leakers. Obama promised, as a candidate, to create the most transparent administration ever, but he has presided over more leak prosecutions under the Espionage Act than all previous administrations combined. Dennis Blair, the director of national intelligence during Obama’s first term, told the Times that a decision was made in 2009 to “hang an admiral once in a while,” as Blair put it, to show would-be leakers they should not talk to the press. The Justice Department did not charge high-level officials, however; mid-level officials were the principal targets, and it appears that Sterling’s all-but-shut case was brought back to life as part of the crackdown.
Sterling, detained for weeks, became despondent.
“All of it came crashing down on me, sitting in that jail cell,” he said. “So many years, so many struggles, and I had gotten to a point where I had picked myself up and was just moving on. But this behemoth of anger, of retaliation, was having its way. It was an extremely low feeling that I was going through, disbelief, shock.”
He stopped eating until Holly was allowed to visit.
“Just seeing her face shocked me back into knowing that here’s this woman who loves me and she’s been with me through thick and thin,” he said. “I made a promise to her that I would stay alive, I won’t try to hurt myself.”
RELEASED FROM JAIL, Sterling no longer had a job and could not find a new one, due to the taint of an Espionage Act indictment, and he had to wait four years for his trial to begin. A large part of the delay was due to a legal battle between the prosecution and Risen — the prosecution wanted Risen to name his source, whom the government believed was Sterling, but Risen refused to cooperate, raising the prospect of a journalist going to jail for defying the government. The Obama administration, criticized for violating First Amendment protections, backed off just before the trial began.
On January 13, the trial opened with the lead prosecutor, James Trump, telling the jury that Sterling was a traitor.
“The defendant betrayed his country,” Trump said. “He betrayed his colleagues. He betrayed the CIA and compromised its mission. And most importantly, he betrayed the Russian asset, a man who literally placed his trust and his life into the defendant’s hands.”
Trump addressed the question of motive.
“And why?” he asked. “Anger, bitterness, selfishness. The defendant struck back at the CIA because he thought he had been treated unfairly. He had sued the agency for discrimination and demanded that they pay him $200,000 to settle his claim. When the agency refused, he struck back with the only weapon he had: secrets, the agency’s secrets.”
The government’s case consisted mostly of records of emails and phone calls between Sterling and Risen that began in 2001 and continued into 2005. The emails were very short, just a line or so, and did not reference any CIA programs. The phone calls were mostly short too, some just a few seconds, and the government did not introduce recordings or transcripts of any of them.
Sterling was represented by two lawyers, Edward MacMahon Jr. and Barry Pollack. In his opening statement, MacMahon pointed to the lack of hard evidence against his client.
“Mr. Trump is a fine lawyer,” MacMahon said. “If he had an email with details of these programs or a phone call, you would have heard it, and you’re not going to hear it in this case .… Mr. Trump told you that [Sterling] spoke to Risen. Did you hear where, when, or anything about what happened? No. That’s because there isn’t any such evidence of it whatsoever .… You don’t see a written communication to Mr. Risen from Mr. Sterling about the program at all, no evidence they even met in person.”
After a two-week trial that included some CIA witnesses testifying from behind a screen, so that their identities would not be revealed, the jury convicted Sterling, based on what the judge, Leonie Brinkema, described at the sentencing as “very powerful circumstantial evidence.” She added, “In a perfect world, you’d only have direct evidence, but many times that’s not the case in a criminal case.”
Sterling sat motionless as she explained the reasoning behind the sentence that she was about to announce. I had asked Sterling, when we met in St. Louis, what he expected would happen.
“This process has destroyed a lot of me,” he began, his voice shifting in the halting way that means anguish has broken loose. “The thought that I’m going to be sent to prison, I can’t and haven’t been able to deal with that. I don’t know where to put it or how to deal with it because it doesn’t make any sense. I’m dreading going to jail. Maybe some miracle will happen and I won’t. But I still have to be realistic and prepare for the worst.”
A few minutes before three in the afternoon, Judge Brinkema said that Sterling would go to prison for three and a half years. This was far below the sentencing guidelines — and was seen as a rebuke of the prosecution’s portrayal of Sterling as a traitor who had to be locked away for a long time. But that wasn’t much comfort for Sterling or his wife, because he would nonetheless be locked away. After the hearing ended, Sterling walked to the front row of seats to console his sobbing wife. You could hear her wails in the courtroom.
His lawyers requested that he be allowed to serve his sentence in his home state of Missouri, so that his wife and other family members could easily visit him. Earlier this week, Sterling reported to the prison that was selected for him. It is in Colorado.
AS MEMBERS OF CONGRESS struggle to agree on which surveillance programs to re-authorize before the Patriot Act expires, they might consider the unusual advice of an intelligence analyst at the National Security Agency who warned about the danger of collecting too much data. Imagine, the analyst wrote in a leaked document, that you are standing in a shopping aisle trying to decide between jam, jelly or fruit spread, which size, sugar-free or not, generic or Smucker’s. It can be paralyzing.
“We in the agency are at risk of a similar, collective paralysis in the face of a dizzying array of choices every single day,” the analyst wrote in 2011. “’Analysis paralysis’ isn’t only a cute rhyme. It’s the term for what happens when you spend so much time analyzing a situation that you ultimately stymie any outcome …. It’s what happens in SIGINT [signals intelligence] when we have access to endless possibilities, but we struggle to prioritize, narrow, and exploit the best ones.”
The document is one of about a dozen in which NSA intelligence experts express concerns usually heard from the agency’s critics: that the U.S. government’s “collect it all” strategy can undermine the effort to fight terrorism. The documents, provided to The Intercept by NSA whistleblower Edward Snowden, appear to contradict years of statements from senior officials who have claimed that pervasive surveillance of global communications helps the government identify terrorists before they strike or quickly find them after an attack.
The Patriot Act, portions of which expire on Sunday, has been used since 2001 to conduct a number of dragnet surveillance programs, including the bulk collection of phone metadata from American companies. But the documents suggest that analysts at the NSA have drowned in data since 9/11, making it more difficult for them to find the real threats. The titles of the documents capture their overall message: “Data Is Not Intelligence,” “The Fallacies Behind the Scenes,” “Cognitive Overflow?” “Summit Fever” and “In Praise of Not Knowing.” Other titles include “Dealing With a ‘Tsunami’ of Intercept” and “Overcome by Overload?”
The documents are not uniform in their positions. Some acknowledge the overload problem but say the agency is adjusting well. They do not specifically mention the Patriot Act, just the larger dilemma of cutting through a flood of incoming data. But in an apparent sign of the scale of the problem, the documents confirm that the NSA even has a special category of programs that is called “Coping With Information Overload.”
The jam vs. jelly document, titled “Too Many Choices,” started off in a colorful way but ended with a fairly stark warning: “The SIGINT mission is far too vital to unnecessarily expand the haystacks while we search for the needles. Prioritization is key.”
These doubts are infrequently heard from officials inside the NSA. These documents are a window into the private thinking of mid-level officials who are almost never permitted to discuss their concerns in public.
AN AMUSING PARABLE circulated at the NSA a few years ago. Two people go to a farm and purchase a truckload of melons for a dollar each. They then sell the melons along a busy road for the same price, a dollar. As they drive back to the farm for another load, they realize they aren’t making a profit, so one of them suggests, “Do you think we need a bigger truck?”
The parable was written by an intelligence analyst in a document dated Jan. 23, 2012 that was titled, “Do We Need a Bigger SIGINT Truck?” It expresses, in a lively fashion, a critique of the agency’s effort to collect what former NSA Director Keith Alexander referred to as “the whole haystack.” The critique goes to the heart of the agency’s drive to gather as much of the world’s communications as possible: because it may not find what it needs in a partial haystack of data, the haystack is expanded as much as possible, on the assumption that more data will eventually yield useful information.
The Snowden files show that in practice, it doesn’t turn out that way: more is not necessarily better, and in fact, extreme volume creates its own challenges.
“Recently I tried to answer what seemed like a relatively straightforward question about which telephony metadata collection capabilities are the most important in case we need to shut something off when the metadata coffers get full,” wrote the intelligence analyst. “By the end of the day, I felt like capitulating with the white flag of, ‘We need COLOSSAL data storage so we don’t have to worry about it,’ (aka we need a bigger SIGINT truck).” The analyst added, “Without metrics, how do we know that we have improved something or made it worse? There’s a running joke … that we’ll only know if collection is important by shutting it off and seeing if someone screams.”
Another document, while not mentioning the dangers of collecting too much data, expressed concerns about pursuing entrenched but unproductive programs.
“How many times have you been watching a terrible movie, only to convince yourself to stick it out to the end and find out what happens, since you’ve already invested too much time or money to simply walk away?” the document asked. “This ‘gone too far to stop now’ mentality is our built-in mechanism to help us allocate and ration resources. However, it can work to our detriment in prioritizing and deciding which projects or efforts are worth further expenditure of resources, regardless of how much has already been ‘sunk.’ As has been said before, insanity is doing the same thing over and over and expecting different results.”
Many of these documents were written by intelligence analysts who had regular columns distributed on NSANet, the agency’s intranet. One of the columns was called “Signal v. Noise,” another was called “The SIGINT Philosopher.” Two of the documents cite the academic work of Herbert Simon, who won a Nobel Prize for his pioneering research on what’s become known as the attention economy. Simon wrote that consumers and managers have trouble making smart choices because their exposure to more information decreases their ability to understand the information. Both documents mention the same passage from Simon’s essay, Designing Organizations for an Information-Rich World:
“In an information-rich world, the wealth of information means a dearth of something else: a scarcity of whatever it is that information consumes. What information consumes is rather obvious: it consumes the attention of its recipients. Hence a wealth of information creates a poverty of attention and a need to allocate that attention efficiently among the overabundance of information sources that might consume it.”
In addition to consulting Nobel-prize winning work, NSA analysts have turned to easier literature, such as Malcolm Gladwell’s best-selling Blink: The Power of Thinking Without Thinking. The author of a 2011 document referenced Blink and stated, “The key to good decision making is not knowledge. It is understanding. We are swimming in the former. We are desperately lacking in the latter.” The author added, “Gladwell has captured one of the biggest challenges facing SID today. Our costs associated with this information overload are not only financial, such as the need to build data warehouses large enough to store the mountain of data that arrives at our doorstep each day, but also include the more intangible costs of too much data to review, process, translate and report.”
Alexander, the NSA director from 2005 to 2014 and chief proponent of the agency’s “collect it all” strategy, vigorously defended the bulk collection programs. “What we have, from my perspective, is a reasonable approach on how we can defend our nation and protect our civil liberties and privacy,” he said at a security conference in Aspen in 2013. He added, “You need the haystack to find the needle.” The same point has been made by other officials, including James Cole, the former deputy attorney general who told a congressional committee in 2013, “If you’re looking for the needle in the haystack, you have to have the entire haystack to look through.”
THE OPPOSING VIEWPOINT was voiced earlier this month by Snowden, who noted in an interview with the Guardian that the men who committed recent terrorist attacks in France, Canada and Australia were under surveillance—their data was in the haystack yet they weren’t singled out. “It wasn’t the fact that we weren’t watching people or not,” Snowden said. “It was the fact that we were watching people so much that we did not understand what we had. The problem is that when you collect it all, when you monitor everyone, you understand nothing.”
In a 2011 interview with SIDtoday, a deputy director in the Signals Intelligence Directorate was asked about “analytic modernization” at the agency. His response, while positive on the NSA’s ability to surmount obstacles, noted that it faced difficulties, including the fact that some targets use encryption and switch phone numbers to avoid detection. He pointed to volume as a particular problem.
“We live in an Information Age when we have massive reserves of information and don’t have the capability to exploit it,” he stated. “I was told that there are 2 petabytes of data in the SIGINT System at any given time. How much is that? That’s equal to 20 million 4-drawer filing cabinets. How many cabinets per analyst is that? By the end of this year, we’ll have 1 terabyte of data per second coming in. You can’t crank that through the existing processes and be effective.”
The documents noted the difficulty of sifting through the ever-growing haystack of data. For instance, a 2011 document titled “ELINT Analysts – Overcome by Overload? Help is Here with IM&S” outlined a half dozen computer tools that “are designed to invert the paradigm where an analyst spends more time searching for data than analyzing it.” Another document, written by an intelligence analyst in 2010, bluntly stated that “we are drowning in information. And yet we know nothing. For sure.” The analyst went on to ask, “Anyone know just how many tools are available at the Agency, alone? Would you know where to go to find out? Anyone ever start a new target…without the first clue where to begin? Did you ever start a project wondering if you were the sole person in the Intelligence Community to work this project? How would you find out?” The analyst, trying to encourage more sharing of tips about the best ways to find data in the haystack, concluded by writing, in boldface, “Don’t let those coming behind you suffer the way you have.”
The agency appears to be spending significant sums of money to solve the haystack problem. The document headlined “Dealing With a ‘Tsunami’ of Intercept,” written in 2006 by three NSA officials and previously published by The Intercept, outlined a series of programs to prepare for a near future in which the speed and volume of signals intelligence would explode “almost beyond imagination.” The document referred to a mysterious NSA entity–the “Coping With Information Overload Office.” This appears to be related to an item in the Intelligence Community’s 2013 Budget Justification to Congress, known as the “black budget”—$48.6 million for projects related to “Coping with Information Overload.”
The data glut is felt in the NSA’s partner agency in Britain, too. A slideshow entitled “A Short Introduction to SIGINT,” from GCHQ, the British intelligence agency, posed the following question: “How are people supposed to keep on top of all their targets and the new ones when they have far more than [they] could do in a day? How are they supposed to find the needle in the haystack and prioritise what is most important to look at?” The slideshow continued, “Give an analyst three leads, one of which is interesting: they may have time to follow that up. Give them three hundred leads, ten of which are interesting: that’s probably not much use.”
These documents tend to shy away from confrontation—they express concern with the status quo but do not blame senior officials or demand an abrupt change of course. They were written by agency staffers who appear to believe in the general mission of the NSA. For instance, the author of a “SIGINT Philosopher” column wrote that if the NSA was a corporation, it could have the following mission statement: “building informed decision makers — so that targets do not suffer our nation’s wrath unless they really deserve it — by exercising deity-like monitoring of the target.”
On occasion, however, the veil of bureaucratic deference is lowered. In another “SIGINT Philosopher” column, “Cognitive Overflow?,” the author offered a forthright assessment of the haystack problem and the weakness of proposed solutions:
“If an individual brain has finite ‘channel capacity,’ does the vast collective of SID, comprised of thousands of brilliant, yet limited, brains also have a definite ‘channel capacity’? If so, what is it? How do we know when we’ve reached it? What if we’ve already exceeded it? In essence, could SID’s reach exceed its grasp? Can the combined cognitive power of SID connect all the necessary dots to avoid, predict, or advise when the improbable, complex, or unthinkable happens?”
The column did not offer an optimistic view.
“Take for example the number of tools, clearances, systems, compliances, and administrative requirements we encounter before we even begin to engage in the work of the mission itself,” the column continued. “The mission then involves an ever-expanding set of complex issues, targets, accesses, and capabilities. The ‘cognitive burden,’ so to speak, must at times feel overwhelming to some of us.”
The analyst who wrote the column dismissed, politely but firmly, the typical response of senior officials when they are asked in public about their ability to find needles in their expanding haystack.
“Surely someone will point out that the burgeoning amalgam of technological advances will aid us in shouldering the burden,” he noted. “However, historically, this scenario doesn’t seem to completely bear out. The onslaught of more computer power—often intended to automate some processes—has in many respects demanded an expansion of our combined ‘channel capacity’ rather than curbing the flow of the information.”
Documents published with this article:
• Too Many Choices
• Cognitive Overflow?
• Summit Fever
• Do We Need a Bigger SIGINT Truck?
• Overcome With Overload? Help is Here with IM&S
• In Praise of Not Knowing
• The Fallacies Behind the Scenes
• Leave Bright Pebbles, Not Breadcrumbs, for Those Coming After You
• ‘Data Is Not Intelligence’
• Is There a Sustainable Ops Tempo in S2? How Can Analysts Deal with the Flood of Collection?
• Dealing With a ‘Tsunami’ of Intercept
• SIGINT Mission Thread 3
If you read the sketchy New York Times article on the Delta Force raid into Syria a few days ago — how an ISIS leader was killed when he “tried to engage” American commandos while his fighters used women and children as shields, and an 18-year-old slave was freed with no civilian casualties thanks to “very precise fire”—you can be forgiven for thinking, “Haven’t I seen this movie before?”
You probably have, and it was called Zero Dark Thirty, the film directed by Kathryn Bigelow, written by Mark Boal and backed with gusto by the Central Intelligence Agency. The CIA provided Bigelow and Boal with privileged access to officials and operators behind the hunt for Osama bin Laden—and not coincidently, their movie portrayed the CIA’s torture program as essential to the effort to find and kill the leader of al Qaeda. It grossed more than $132 million worldwide.
Zero Dark Thirty was criticized by a number of writers (including me) when it came out in 2012, and now it is being treated as a political farce in a new Frontline documentary scheduled to be broadcast by PBS on Tuesday, May 19. Titled “Secrets, Politics and Torture,” the show explores the CIA’s effort to persuade Congress, the White House and the American public that its “enhanced interrogation methods” were responsible for extracting from unwilling prisoners the clues that led to bin Laden and other enemy targets.
Jane Mayer, the New Yorker writer whose work on CIA torture has been exemplary, explains that the team behind Zero Dark Thirty was conned by the CIA.
“The CIA’s business is seduction, basically,” she says in the documentary. “And to seduce Hollywood producers, I mean they are easy marks compared to some of the people that the CIA has to go after.”
Another journalist, Michael Isikoff, connects the final dots by pointing out the harm caused by political lies that find their way into blockbuster films.
“Movies like Zero Dark Thirty have a huge impact,” he says. “More people see them, and more people get their impressions about what happened from a movie like that than they do from countless news stories or TV spots.”
The Frontline documentary could not come at a better moment. Just last week, investigative journalist Seymour Hersh published a 10,000-word story in the London Review of Books that challenged much of the official narrative about the hunt for bin Laden. You don’t have to believe everything Hersh wrote — and I don’t, including the reference to SEAL team members throwing some of bin Laden’s corpse over the Hindu Kush — to appreciate the debate he has re-opened over the considerable holes in the government’s story.
There is a saying in the military that first reports are always wrong. We need to remember this lesson when we get first reports of the latest military or intelligence successes — and the second reports and the movies, too. Much that the Pentagon said about the rescue of Private Jessica Lynch during the invasion of Iraq turned out to be fictitious. The media’s portrayal of the toppling of a statue of Saddam Hussein in Firdos Square was pretty much the opposite of what really happened as Marines stormed into Baghdad on April 9, 2003. Similar problems of fact probably exist in this week’s accounts of a flawless killing of an ISIS leader (or at least a man whom the military tells us is an ISIS leader).
The Frontline documentary includes a clip from Zero Dark Thirty in which a CIA torturer yells at an al Qaeda prisoner, “When you lie to me, I hurt you!” A repurposing of that line would hold true for the government and the American public—when it lies to us, it hurts us.
Nearly a decade ago, at a federal courthouse in northern Virginia, Judge Leonie Brinkema set a new standard for taking a tough stance against people who inflict harm on America.
Brinkema presided over the lengthy trial of Zacarias Moussaoui, who was convicted as a co-conspirator in the 9/11 attacks against America. The jury decided he would spend the rest of his life in prison, and when the sentence was formally issued, Brinkema told Moussaoui, “You will die with a whimper.” He tried to interrupt, but she would have none of it. “You will never get the chance to speak again, and that’s an appropriate ending,” she said sternly.
In the same courthouse this week, Brinkema listened intently as a government lawyer argued that Jeffrey Sterling, a former CIA agent convicted of leaking classified information to a New York Times reporter, had caused grave damage to national security and should be sentenced to a long term in prison, saying his actions were “unconscionable” and constituted a “substantial and costly blow to our intelligence efforts.” In its legal briefs, the prosecution had asked for a “severe” sentence that many observers regarded as being in line with federal guidelines for at least 19 years behind bars.
In a surprising turn, Brinkema sentenced Sterling to just three and a half years in prison, which is a long time to be deprived of liberty but nothing like two decades. She told the courtroom that Sterling had done what no intelligence officer should do, disclosing the identity of a covert asset. But she made no mention of the prosecution’s claim that he caused significant harm to national security. That omission, combined with a sentence far below the prosecution’s request, strongly indicate she didn’t believe the government’s dire warnings.
“The Sterling sentence certainly contained an implicit rebuke to the prosecution,” said Steven Aftergood, who directs the Project on Government Secrecy at the Federation of American Scientists. “By ordering the sentences for each of the nine felony counts against Sterling to run concurrently, Judge Brinkema was declaring in effect that Sterling had been overcharged.”
One of Sterling’s lawyers, Barry Pollack, agreed.
“I do think that the court largely rejected the government’s view of the harm that was caused by the leak in this case,” he told The Intercept. “By claiming that this was one of the greatest leaks and threats to national security, the government simply overplayed its hand and I think the judge did not agree with that assessment.”
The sentence appears to be a blow to Obama’s broader crackdown on leakers and whistleblowers, solidifying a trend in which the government has failed, with the notable exception of Chelsea Manning, to get lengthy prison terms against people who are portrayed in prosecution filings as severely damaging national security. The sentences handed out recently — 13 months to Stephen Kim, a former State Department official, and 30 months to John Kiriakou, a former CIA officer — have been widely criticized as unjust and have been disastrous for the men involved, but they are not the sort of lengthy sentences handed out to major criminals.
One of the much-criticized characteristics of the crackdown — its selectivity — is showing signs of coming back to haunt the government, too. Primarily mid-level officials whose leaks embarrass the government have been targeted with prison terms while senior officials who are friendly to the administration are untouched or slapped on the wrist. The plea deal with former general and former CIA director David Petraeus is a recent example — Petraeus admitted to sharing classified information with his biographer and then-girlfriend, Paula Broadwell, but was allowed to plead guilty to just a misdemeanor and avoided any time in jail.
Judge Brinkema did not mention Petraeus by name on Monday, but she hinted at his case in a remark that the justice system has to be fair. Aftergood, in an email to The Intercept, noted that “every case and every ruling perturbs the environment in which later cases are brought,” adding that “the Petraeus outcome may have worked subterraneously to Sterling’s benefit.”
Sterling’s sentence has begun to draw attention. In an editorial today, The New York Times described Brinkema’s decision as a “significant rebuke to the Obama administration’s dogged-yet-selective crusade against leaks.” That view was echoed by national security journalist Marcy Wheeler, who wrote of Sterling’s sentence, “The government’s insistence that whistleblowing and accountability equate to spying is coming under increasing scrutiny, even mockery.”
The criticism is coming from all sides. Jack Goldsmith, a Harvard Law School professor and former assistant attorney general and special counsel to the Department of Defense, last week chided the government for hyping the damage caused by leaks. In a speech that focused on how the intelligence community should react to the disclosure of secrets, he noted that officials had been “jeopardizing vital credibility through exaggerated claims about the national security harms of disclosure.” He also called for the intelligence community to “rethink, really rethink, the pervasive resistance to public disclosure of any aspect of any intelligence operation.”
When the Obama administration began its war on leakers and whistleblowers in 2009, there was little precedent for trying to put leakers into prison. The series of leak cases brought by the administration under the draconian Espionage Act — more than all previous administrations combined — gave the impression of a crackdown to end all crackdowns. Instead, if Brinkema’s rebuke is an indication, it risks becoming the crackdown without clothes — an effort to imprison officials who have done no harm, and perhaps some good, because leaks often put into the public domain information that the public should know.
Of course the government has gotten a lengthy sentence for one leaker — Manning, formerly known as Bradley Manning, was sentenced to 35 years for sharing a trove of military and diplomatic cables with Wikileaks. And Espionage Act charges have been filed against Edward Snowden, who leaked thousands of NSA documents. But Brinkema’s decision could give the government cause to reconsider the scope of its crackdown.
“I hope it makes them more reluctant to file these cases,” Pollack said. “An inordinate amount of resources went into this case. At the end of the day, what the government had was a circumstantial case that it ultimately was able to sell to the jury, but they did not get the type of sentence that they thought that they might get. As a taxpayer, I would certainly question whether the needs of national security really required the government throwing these kinds of resources at Jeffrey Sterling over a leak that occurred years ago, on a program that I think was of questionable value.”
The Department of Justice, contacted by The Intercept, did not provide any comment.
What punishment should Sgt. Bowe Bergdahl receive for allegedly deserting his post in Afghanistan? The answer comes by asking another question: What punishment has been handed out to American generals and politicians whose incompetence caused far more bloodshed and grief than anything Bergdahl did?
A key thing about justice is that it should be fair — people should be punished no matter their rank or title. The problem with the bloodlust for more action against Bergdahl — beyond his five years of horrific suffering as a Taliban prisoner — is that inept generals, rather than being court-martialed or demoted or reprimanded, have been rewarded and celebrated despite their dereliction in Iraq and Afghanistan.
This duality is crystallized in a now-famous article written by Lt. Col. Paul Yingling in 2007 for Armed Forces Journal. After describing the failures of general officers after 9/11 as well as in the Vietnam war, Yingling, who served three tours in Iraq and is now a teacher in Colorado, wrote a stinging sentence about justice and responsibility in the military: “A private who loses a rifle suffers far greater consequences than a general who loses a war.”
Let’s be clear about what it means to lose a war in the context of Iraq. It does not only mean that America failed to achieve its political or military goals. It means that more Americans and Iraqis lost their lives than needed to, and it means that war crimes were committed for which general officers bear command responsibility. Due to failures that Yingling and many others have noted — not anticipating the aftermath of the 2003 invasion, not recognizing the emergence of an insurgency, not figuring out the right strategy to respond to it — the war in Iraq ground on and the bloodshed has been enormous on all sides. Afghanistan is yet another graveyard of failures by general officers.
Two generals, in particular, have been criticized but not punished for serious mistakes that they and their subordinates made — Tommy Franks, who commanded U.S. forces in both Afghanistan and Iraq, and Ricardo Sanchez, who led U.S. forces in Iraq after the 2003 invasion. The military writer Tom Ricks has done the best job so far of exposing their battlefield failures and the failure of our political and military leaders to do anything about it. Sanchez oversaw, among other disasters, the Abu Ghraib torture scandal, for which low-ranking soldiers were sternly punished, such as Specialist Lynndie England, who served a year and a half in prison for her role in abusing Iraqi detainees. Ricks has noted, in a startling case of military chutzpah, that Sanchez was indignant he didn’t receive an extra star for his Iraq service.
“As far as I can tell, no general has been fired for incompetence in combat since Maj. Gen. James Baldwin was fired as commander of the Americal Division in 1971,” Ricks has said. “Since then, others have been relieved for moral and ethical lapses that are embarrassing to the Army, but not, to my knowledge, for combat ineffectiveness.”
If firing generals for incompetence is too much to ask for, how about retiring them at a lower rank? As Yingling noted, “A general who presides over a massive human rights scandal or a substantial deterioration in security ought to be retired at a lower rank than one who serves with distinction. A general who fails to provide Congress with an accurate and candid assessment of strategic probabilities ought to suffer the same penalty.” Yet even that modest level of reprimand has almost never occurred. Holding generals to account for war crimes committed on their watch is like waiting for Halley’s Comet — it happens with excruciating rarity.
Instead, dereliction is rewarded. In Oklahoma, for instance, there is the General Tommy Franks Leadership Institute and Museum. Franks is a frequent public speaker (here’s his bio at the speakers bureau that represents him) and was tapped as an adviser to presidential candidate Mitt Romney. In Texas, Sanchez was sufficiently celebrated and popular to mount a primary run for an open Senate seat (he pulled out before the election), he has a school named after him, and like so many other retired generals, he gives a lot of speeches to admiring audiences.
So we circle back to Bowe Bergdahl, who could spend the rest of his life in prison for desertion and misbehaving before the enemy, unless there is a plea deal. If he is guilty, he should be convicted. But punishment beyond his torment at the hands of the Taliban would be unfair, even if it is true, as some allege, that G.I.s were killed while searching for him. Whatever blood he might have on his hands — and it’s far from clear there’s any — is minor compared to the generals and politicians who made far graver errors. It would be particularly unfortunate if Bergdahl became another sort of pawn, this time in the partisan polemics over President Obama’s decision to exchange five Taliban prisoners for him.
I reported on the wars in Iraq and Afghanistan, as well as the conflicts in Bosnia, Somalia and Sudan, so I understand the sense of betrayal among soldiers who served with Bergdahl, even if my understanding is that of a civilian who watched rather than fought. Their anger and desire for justice are not unreasonable. I share it, but my anger is directed upwards at the unpunished and unapologetic, rather than downwards at men and women who have suffered enough.
Investigative reporter James Gordon Meek broke an important story this week: he revealed that U.S.-backed forces in Iraq are committing the same type of horrific war crimes — wanton killings of prisoners, beheadings, torture — as the Islamic State fighters on the other side of the frontline.
Meek’s report, broadcast by ABC News and based on photos and cellphone videos that Iraqi fighters had proudly shared on social media, shows the Humvees and M4A1 assault rifles that the U.S. government has supplied in abundance to Iraq’s armed forces. In its effort to push the Islamic State out of Iraq, the U.S. is providing Baghdad with nearly $1 billion a year in weapons, in addition to training by several thousand American advisers.
U.S. and Iraqi officials professed surprise at what is happening, and told ABC that investigations would be launched to get to the bottom of it. If this sounds familiar in a “Casablanca” way — gambling in the casino, stop the presses — it should. Back in 2005, when Facebook was a curiousity used by just a few thousand students and Instagram was years away from being invented, the sorts of abuses that Meek recently found on social media sites were well underway.
Back then, I visited Samarra, a contested town in the heart of what was known as the Sunni Triangle, and wrote about the abuses I saw while accompanying Iraqi and U.S. forces on joint raids. I saw beatings, witnessed a mock execution, and heard, inside an Iraqi detention center, the terrible screams of a man being tortured. I received the same sorts of reactions that greeted Meek’s story: U.S. and Iraqi officials expressed surprise and promised to punish any wrongdoers.
That’s because torture, rather than being an aberration, was embedded in a strategy that was described, at the time, as the Salvadorization of Iraq—the use of dirty-war tactics to defeat an insurgency. It is more than a footnote of history that the origins of this policy appear to date to 2004, when the effort to train and equip Iraqi forces got underway in earnest under the leadership of Gen. David Petraeus, who went on to command all U.S. forces in Iraq, then in Afghanistan, then became director of the CIA, then resigned and pleaded guilty to disclosing a trove of highly-classified information to his lover and biographer, Paula Broadwell, and lying to the FBI about it.
I was hardly the first to witness the abuses and hypocrisy that were the hammer and anvil of the American program to build up Iraqi forces. In 2004, Oregon National Guard troops in Baghdad observed officers inside a Ministry of Interior compound beating and torturing prisoners; they entered the compound and found dozens of abused detainees, including one who had just been shot. The Oregon soldiers reported what they had found and received an incredible order from their commanders—leave the compound now.
In 2010, the deluge of military and diplomatic files that were released by Wikileaks included a document that explained why the Oregon soldiers had been told to forget about what they had seen—FRAGO 242, as the order was called, required U.S. troops to not investigate any abuses committed by Iraqi forces unless U.S. troops were involved. In other words, so long as Iraqis were doing the torturing rather than Americans, it was none of our business. Move along, nothing to see here.
Then, as now, the reason these abuses were tolerated was a battlefield version of expediency—this is the way insurgencies are confronted, they all tend to be dirty, there’s nothing we can do about it because angels don’t win wars. The problem with this thinking is not just moral—we shouldn’t support forces that we fully know are committing war crimes—it is also practical. What has turning a blind eye gotten us since the effort to equip Iraqi forces got underway in the aftermath of the toppling of the statue of Saddam Hussein in Firdos Square in 2003?
Expediency is not our friend. It is our enemy.
David Petraeus, the former Army general and CIA director, admitted today that he gave highly-classified journals to his onetime lover and that he lied to the FBI about it. But he only has to plead guilty to a single misdemeanor that will not involve a jail sentence, thanks to a deal with federal prosecutors. The deal is yet another example of a senior official treated leniently for the sorts of violations that lower-level officials are punished severely for.
According to the plea deal, Petraeus, while leading American forces in Afghanistan, maintained eight notebooks that he filled with highly-sensitive information about the identities of covert officers, military strategy, intelligence capabilities and his discussions with senior government officials, including President Obama. Rather than handing over these “Black Books,” as the plea agreement calls them, to the Department of Defense when he retired from the military in 2011 to head the CIA, Petraeus retained them at his home and lent them, for several days, to Paula Broadwell, his authorized biographer and girlfriend.
In October 2012, FBI agents interviewed Petraeus as part of an investigation into his affair with Broadwell — Petraeus would resign from the CIA the next month — and Petraeus told them he had not shared classified material with Broadwell. The plea deal notes that “these statements were false” and that Petraeus “then and there knew that he previously shared the Black Books with his biographer.” Lying to FBI agents is a federal crime for which people have received sentences of months or more than a year in jail.
Under his deal with prosecutors, Petraeus pleaded guilty to just one count of unauthorized removal and retention of classified information, a misdemeanor that can be punishable by a year in jail, though the deal calls only for probation and a $40,000 fine. As The New York Times noted today, the deal “allows Mr. Petraeus to focus on his lucrative post-government career as a partner in a private equity firm and a worldwide speaker on national security issues.”
The deal has another effect: it all but confirms a two-tier justice system in which senior officials are slapped on the wrist for serious violations while lesser officials are harshly prosecuted for relatively minor infractions.
For instance, last year, after a five-year standoff with federal prosecutors, Stephen Kim, a former State Department official, pleaded guilty to one count of violating the Espionage Act when he discussed a classified report about North Korea with Fox News reporter James Rosen in 2009. Kim did not hand over a copy of the report — he just discussed it, and nothing else — and the report was subsequently described in court documents as a “nothing burger” in terms of its sensitivity. Kim is currently in prison on a 13-month sentence.
“The issue is not whether General Petraeus was dealt with too leniently, because the pleadings indicate good reason for that result,” said Abbe Lowell, who is Kim’s lawyer. “The issue is whether others are dealt with far too severely for conduct that is no different. This underscores the random, disparate and often unfair application of the national security laws where higher-ups are treated better than lower-downs.”
In 2013, former CIA agent John Kiriakou pleaded guilty to violating the Intelligence Identities Protection Act by disclosing the name of a covert CIA officer to a freelance reporter; he was sentenced to 30 months in jail. Kiriakou’s felony conviction and considerable jail sentence — for leaking one name that was not published — stands in contrast to Petraeus pleading guilty to a misdemeanor without jail time for leaking multiple names as well as a range of other highly-sensitive information.
Kiriakou, released from prison earlier this year, told The Intercept in an emailed statement, “I don’t think General Petraeus should have been prosecuted under the Espionage Act, just as I don’t think I should have been prosecuted under the Espionage Act. Yet only one of us was. Both Petraeus and I disclosed undercover identities (or confirmed one, in my case) that were never published. I spent two years in prison; he gets two years probation.”
The prosecution of Kiriakou, Kim and other leakers and whistleblowers has been particularly intense under the Obama Administration, which has filed more than twice as many leak cases under the Espionage Act as all previous administrations combined. In 2013, Army Private Chelsea Manning, formerly known as Bradley Manning, pleaded guilty to violating the Espionage Act by leaking thousands of documents to Wikileaks, and she was sentenced to 35 years in prison. Manning received a harsh sentence even though then-Defense Secretary Robert Gates said in 2010 that the leaks had only “modest” consequences.
“I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think those descriptions are fairly significantly overwrought,” Gates said. “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”
Senior officials tend to get far kinder treatment. As The Times noted today, former Attorney General Alberto Gonzales was “admonished but not charged” for keeping classified information at his house; John Deutch, the former CIA director, resigned and lost his security clearance but was not charged for storing classified documents on a home computer; and former National Security Adviser Sandy Berger was allowed to plead guilty to a misdemeanor after he surreptitiously removed classified documents from the National Archives.
ON THE MORNING of June 11, 2009, James Rosen stepped inside the State Department, scanned his building badge and made his way to the Fox News office in the busy press room on the second floor. It was going to be a hectic day. Like other reporters working the phones that morning, Rosen was looking for fresh news about the latest crisis with North Korea.
Two weeks earlier, North Korea had conducted a nuclear detonation that showed the rest of the world it possessed a functioning bomb. The United Nations was on the verge of a formal condemnation, but no one at the U.N. or inside the U.S. government knew how North Korea’s unpredictable regime would respond and whether things might escalate toward war.
Rosen called Stephen Kim, a State Department expert on rogue nations and weapons of mass destruction. Kim, a U.S. citizen who was born in South Korea, spoke fluent Korean and had worked at one of America’s nuclear-weapons labs. He probably knew more about what was going on in Pyongyang than almost anyone else in the building.
The call, according to metadata collected by the FBI, lasted just half a minute, but soon afterward Kim called Rosen and they talked for nearly a dozen minutes. After that conversation, they left the building at roughly the same time, then spoke once more on the phone after they both returned.
A classified report on North Korea had just begun circulating, and Kim was among the restricted number of officials with clearance to read it. He logged onto a secure computer, called up the report at 11:27 a.m., and phoned Rosen 10 minutes later. A few minutes past noon, he left the building again, and a minute later Rosen followed. The destruction of Kim’s life would center on the question of what the two men discussed during that brief encounter outside the State Department.
Kim returned to the building at 12:26 p.m., but Rosen lingered outside to make calls to colleagues at Fox News — to lines for the network’s Washington bureau chief, as well as a vice president and assignment editor. Back inside, Rosen called the bureau chief’s line again, and then an official at the National Security Council. Around 3:00 in the afternoon, with typos that suggest it was written in haste, Rosen posted a story on the Fox News website under the headline, “North Korea Intends to Match U.N. Resolution With New Nuclear Test.” It said the U.S. government, in its latest intelligence assessment, believed U.N. sanctions would trigger retaliatory actions from North Korea, including another detonation.
As news goes, Rosen’s story wasn’t, in fact, much of a scoop. It merely confirmed the conventional wisdom of the day. According to court documents, one State Department official described the intelligence assessment as “a nothing burger,” while another official said Rosen’s story had disclosed “nothing extraordinary.” But the article had a seismic impact in another way. It occurred just as the Obama administration was intensifying its effort to crack down on leakers and whistleblowers; the FBI soon launched an investigation. Because Rosen used phones that were easy to trace and twice left the building at the same time as Kim, it was simple for the FBI to zero in on whom he talked with that day. Before long, Kim, who had worked as a civil servant since 2000, was being threatened with decades in prison for betraying his country.
Five years later, on April 2, 2014, I sat in a half-empty courtroom in Washington, D.C., and watched as Kim pleaded guilty to one count of violating the Espionage Act. He was the latest victim in an unprecedented crackdown on leaks; so far, the Obama administration has prosecuted more than twice as many leak cases under the Espionage Act as all previous administrations combined. Kim was dressed in a dark suit, white shirt and blue tie. His manner that day revealed nothing, at least on the surface, of how his life had unravelled in the past five years — the broken marriage, the young son who lived far away, the life savings that were now depleted, and the profound struggles with depression and thoughts of suicide.
I first spoke with Kim at the end of 2013. Until the summer of 2014, when we said goodbye at the entrance to a federal prison in Cumberland, Maryland, we met from time to time, mostly at the small apartment where he lived in northern Virginia, until his lease expired and he moved into a spare room in an apartment that belonged to a friend of a friend. He told me as much of his story as he was able to tell, with a caveat set by his lawyer: he could not discuss the details of his decision to accept the plea deal or the specifics of his conversations with Rosen on that June day in 2009.
UNTIL THE FBI knocked on his door in the fall of 2009, a little more than three months after Rosen’s story was published, Kim was a rising star in the intelligence community and a remarkable immigrant success story. After earning a Ph.D. in history from Yale University, he started his career at the Center for Naval Analyses, followed by four years at Lawrence Livermore National Laboratory, which designs and analyzes nuclear weapons. It didn’t take long for him to attract attention. The intelligence community has a lot of experts on nuclear programs and a lot of experts on North Korea, but few who had Kim’s expertise in both. Kim was even summoned to Washington to give a classified briefing to Vice President Dick Cheney and National Security Adviser Stephen Hadley.
He then landed a job at the Pentagon’s Office of Net Assessment, a legendary internal think tank for incubating new ideas about military policy, and in 2008, he was tapped as the senior intelligence adviser in the State Department’s Bureau of Verification, Compliance and Implementation (VCI). His work there was complex: essentially, he needed to know as much as it was possible to know about programs to develop weapons of mass destruction that threatened the United States. His first performance evaluation described him as “an invaluable asset” and praised him for possessing a “unique nexus of expertise.” It concluded by saying he was making “outstanding contributions to the development of U.S. national security policy.” He was slated for promotion to the Policy Planning Staff, which provides advice directly to the secretary of state.
Yet as he rose through the government’s ranks, Kim was troubled by U.S. policy toward North Korea. Though born in Seoul in 1967, long after the Korean War, he had lost a grandfather in the conflict and was acutely aware of the pain North Korea inflicted on his family and on South Korea as a whole. He felt that the moderate policies pursued by both the Bush and Obama administrations — the endless negotiations and sanctions — only served to embolden the North Koreans. In one of his few public talks, in 2006, Kim laid out his hard-line view, saying, “I know I am going to be accused of being a warmonger … but diplomacy, if not backed by the possibility of force, is very, very empty.”
In February 2009, Kim sent a blunt email to a government colleague about his concerns: “I am SERIOUSLY considering resigning from this entire USG business,” he wrote. “I cannot seemingly affect change from within … and so perhaps it is best to do it from the outside. Call me idealistic or radical but I refuse to play this game that deeply undermines our national security. I am confident enough to call these people out as idiots who know nothing about Korea or Asia. If there is an opportunity, I will leave …”
Two months later, he wrote another colleague about his assessments of Stephen Bosworth and Sung Kim, the top State Department officials dealing with North Korea. Both were well known in policy circles and had worked on North Korea for years; Sung Kim was born in Seoul and moved to the U.S. as a teenager. Stephen Kim’s opinion of them was scathing, however. “Wasn’t too impressed,” he wrote. “Knew it already but confirmed beyond certainty after the meeting. They just don’t know North Korea or the North Koreans.”
There is a time-honored way in government for mid-level experts to convey their worries that high-level officials are misguided — they talk to reporters to raise an alarm outside the walls of whichever department they work for. This is why confidential conversations in Washington seem to take place in parks and restaurants and store aisles as much as they do in actual offices. These conversations can serve as a check on the official statements that portray prevailing policies as wise and successful, even when they are not.
Unlike many government officials, Kim had very little experience interacting with journalists. He didn’t know whom to talk to until John Herzberg, who was in charge of public affairs at the VCI, arranged for him to meet Rosen.
Like the Obama administration in general, the State Department is not especially friendly with Fox News. But the VCI was, at the time, something of a miniature fortress of hard-liners within State, and Rosen was popular there. He had been on particularly good terms with Paula DeSutter, a conservative Republican who headed the bureau during the Bush administration. DeSutter talked with Rosen from time to time and even went as his guest to the White House Correspondents’ Dinner.
Rosen also had a good relationship with Herzberg. Public affairs officials tend to keep their views to themselves, but Herzberg had donated to the Bush-Cheney campaign, and had signed a letter of support for John Bolton, the neoconservative who became ambassador to the U.N. during the Bush administration. Over just a few months in 2009, Herzberg and Rosen exchanged more than 100 emails.
Herzberg was one of the State Department’s designated traffic cops for organizing (or quashing) meetings between officials and journalists, so his involvement gave an official blessing to Kim’s relationship with Rosen. This would later make the FBI’s pursuit of Kim seem a bit odd — one arm of the government was prosecuting an official for speaking with a reporter whom another arm had arranged for him to meet. Herzberg had also decided that the introductory meeting with Rosen would take place outside the State Department — the type of encounter that the FBI later portrayed as suspicious.
HERZBERG KNEW THAT Rosen couldn’t casually drop by to say hello to Kim at his office; it was located in a secure area to which outsiders were a noticeable imposition, because secret material had to be stored safely and classified discussions had to cease. And so on a March day, Herzberg and Kim left the State Department and headed toward an adjacent park, where Rosen was waiting for them. They made small talk for the next 10 minutes or so. Rosen has a “wicked sense of humor,” Kim told me, and the tenor of their initial encounter was friendly and non-political. “It’s not like I started describing my ideas on the future of Asia,” he recalled. “We didn’t talk about fissile material.”
After that introduction, Kim and Rosen talked on their own. They discussed a variety of topics, Kim said, including Pakistan and its nuclear program. “He wanted to know about the basics of nuclear weapons design. I said, ‘Don’t ask me, I’m not a physicist.’ But he just wanted the basics, so I told him.”
Rosen, a Watergate aficionado who worked for 17 years on a book about John Mitchell, Nixon’s attorney general (his first draft was 500,000 words long), seemed to enjoy playing the role of stealthy reporter. In an email he sent on May 20, Rosen instructed Kim to use a special code to manage their meetings. The code was simple: one asterisk in a blank email meant they should meet or talk on the phone, two meant they should cancel a scheduled encounter. The problem, of course, was that by explaining the code in an email, Rosen disclosed it to anyone who might obtain the email, as the FBI did.
Rosen’s behavior was often careless. As a Reuters columnist would later write, teenagers practice better tradecraft when deceiving their parents. His antics made the FBI all the more suspicious of his relationship with Kim. In its filings with the court, the prosecution used the asterisk email as evidence that Kim engaged in a secretive relationship with Rosen, though the prosecution did not offer any evidence Kim ever used the code.
When contacting Kim, Rosen mostly used a Gmail address apparently named after Alexander Butterfield, an obscure White House official who was the first to tell Congress about the Nixon-era taping system. He sent emails to a Yahoo account Kim had established under the name Leo Grace. This, too, was a detail prosecutors portrayed as sinister, though it’s not unusual for government officials to use private email accounts, and Kim’s had been created long before, when he was corresponding with a woman whose Zodiac sign was Leo and who had described him as graceful — hence, Leo Grace.
Rosen made no secret of his desire for sensitive information. He ended the May 20 email by saying, “With all this established, and presuming you have read/seen enough about me to know that I am trustworthy … let’s get about our work! What do you want to accomplish together? As I told you when we met, I can always go on television and say: ‘Sources tell Fox News.’ But I am in a much better position to advance the interests of all concerned if I can say: ‘Fox News has obtained …’”
Here, Kim revealed his lack of sophistication in dealing with the media.
“I am new to this,” he replied. “Do you have any good suggestions on things you might be interested in doing?”
Two days later, on May 22, Rosen asked for an array of sensitive information that would likely be classified. His wish list was no different from what many journalists would want from a source, but most would know better than to ask in writing, since soliciting classified information can be illegal and can get sources in trouble even if no information is provided. In the government’s view, Rosen’s email on May 22 constituted “instructions” for Kim to “gather intelligence” and supply it to Fox.
“Thanks Leo,” Rosen began on May 22, using his codename for Kim. “What I am interested in, as you might expect, is breaking news ahead of my competitors. I want to report authoritatively, and ahead of my competitors, on new initiatives or shifts in U.S. policy, events on the ground in North Korea, what intelligence is picking up, etc. As possible examples: I’d love to report that the IC [Intelligence Community] sees activity inside DPRK [Democratic People’s Republic of Korea] suggesting preparations for another nuclear test. I’d love to report on what the hell Bosworth is doing, maybe on the basis of internal memos detailing how the U.S. plans to revive the six-party talks (if that is really our goal) [the six parties he refers to were North Korea, South Korea, the U.S., China, Russia and Japan]. I’d love to see some internal State Department analyses about the state of the DPRK HEU [Highly Enriched Uranium] program, and Kim’s health or his palace intrigues … In short: Let’s break some news, and expose muddle-headed policy when we see it — or force the administration’s hand to go in the right direction, if possible. The only way to do this is to EXPOSE the policy, or what the North is up to, and the only way to do that authoritatively is with EVIDENCE.
Yours faithfully, Alex.”
Rosen’s email helps explain the part of the case that has received the most media attention: in 2013, the court unsealed a prosecution document that described Rosen as a potential “co-conspirator.” The document, an affidavit in support of a search warrant to Google demanding access to Rosen’s Gmail account, revealed that the government had tracked Rosen’s movements on June 11 and had obtained records of his phone calls and some emails. There was widespread condemnation from the media about what seemed to be a profound violation of First Amendment protections for a free press. This came as the Department of Justice was continuing to threaten the New York Times reporter James Risen with a jail sentence if he refused to identify one of his sources (last month, the Justice Department announced it would not prosecute Risen), and it came just a few days after news broke that the government secretly had obtained the records of more than 20 Associated Press phone lines as part of an investigation into the source of an AP terrorism story. The government responded to the outcry by promising that Rosen would not be prosecuted, and that the seizure of reporters’ emails and phone records would be done with greater care in the future.
“I could have been a little more careful looking at the language that was contained in the filing that we made with the court — that he was labeled as a co-conspirator,” Attorney General Eric Holder said.
The government made no suggestion in its key filings that Kim responded to Rosen’s May 22 email — and the Department of Justice refused to answer any queries from The Intercept about the case. These were particularly busy days for Kim — the global crisis was intensifying every day, culminating on May 25 with North Korea conducting an underground nuclear test, just the second in its history. The White House was gravely weighing what could or should be done to punish North Korea and stop its weapons program. The next day, May 26, Rosen frantically tried to contact Kim, placing seven calls in a few hours. Getting no reply, he sent a plaintive email.
“Is the honeymoon over already?” he asked. “Thought we would have much to discuss today.”
As the crisis intensified, Kim’s frustration also heated up. He emailed a State Department colleague to complain about the reaction to a note he had written promoting the value of intelligence gleaned from North Korean defectors. None of the officials who received his note had responded to it. Forwarding it to his colleague, Kim wrote, “I am giving this to you … to underscore my point that 99% of the people don’t care and don’t know … That is why I say it’s not worth it. They [the officials] really don’t know anything.”
Others in the State Department might have been wary of venting to Rosen, whose eagerness and carelessness were a perilous combination. But Kim didn’t sense this. According to phone records, the two men had a 20-minute conversation an hour after Rosen’s pleading email. And when Rosen called on June 11, Kim called back.
AS A PRESIDENTIAL candidate, Barack Obama promised that his administration, in contrast to that of George W. Bush, would be the most transparent in U.S. history. Once in office, however, he veered in the opposite direction. Rosen’s story had the misfortune of being published just as the administration was nearing its breaking point on leaks.
Jeffrey Bader, who was the senior director for East Asian affairs at the National Security Council, recalled that the day Rosen’s story was published, he and other senior officials at the White House discussed it. “I was annoyed, and I remember others were annoyed,” Bader told me. There were two problems: first, that Rosen’s story contained information that was also contained in a classified intelligence report; and second, that the story was published within hours of the report being circulated. “It was regarded as a serious breach,” Bader said.
Around that time, Dennis Blair, the president’s director of national intelligence, reassessed the government’s approach toward leaks. Blair asked the Justice Department for a list of officials who had been prosecuted for leaking. He was surprised by the result — of 153 referrals to the Justice Department in the previous four years, not a single person had been indicted. That scorecard, Blair later told The New York Times, “was pretty shocking to all of us.” A decision was made to start going after indictments. “My background is in the Navy, and it is good to hang an admiral once in a while as an example to the others,” Blair told The Times. “We were hoping to get somebody and make people realize that there are consequences to this and it needed to stop.”
On September 24, two FBI agents were escorted into Kim’s office, three-and-a-half months after his fateful conversations with Rosen. He apparently hadn’t thought those June 11 conversations were problematic — next to the phone on his desk he had put a handwritten note with the numbers for Rosen’s BlackBerry and office phone.
The men sat closely together in Kim’s office. It had no windows and no couch, and was crowded with three computers (for unclassified, secret and top secret material), as well as a refrigerator-sized safe for storage of computer drives and documents.
The agents were friendly, Kim recalled. They asked him to sign a document stating he was aware they were conducting an investigation — though Kim told me that neither the form nor the agents mentioned that he was the target. They asked about his background, about his family, about his colleagues. They asked about the Rosen story, and whether he had met Rosen, but their questions were polite and sprinkled in a conversation about a number of things, none of them adversarial.
“It wasn’t like suddenly they came in and, boom, laid it on me,” Kim said. “They did not say, ‘We are investigating a leak.’ They did not say, ‘We are investigating you.’ … I didn’t know why they were there.”
Kim had fallen into a trap the FBI uses to squeeze information out of unwitting suspects. It is called “non-custodial questioning,” which can involve law enforcement agents visiting suspects at their home or workplace and disguising, through friendly questions, the fact that they are under investigation. The suspects are not read their Miranda rights, warning that anything they say can be used against them in a court of law.
Kim, in particular, was predisposed to trust the agents. He was a conservative, straight-laced government employee, raised in an immigrant family. “To automatically give trust to the police or to government authority is not a conscious thing, it’s almost ingrained in me,” he told me in March, at his lawyer’s office in downtown Washington. It was raining outside, and the grim weather matched his mood. “Maybe you’d call that naïve, but that’s the environment in which I grew up … If a policeman stops me on the street for no reason, my natural instinct is to give them what they want.”
In addition to yielding more testimony than might be offered after a suspect has been read his or her rights, non-custodial interrogations can serve another purpose — they encourage lies. When FBI agents don’t let on that you are a suspect, you may be more inclined to tell a fib. After all, why admit to an indiscretion that the agents don’t seem aware of? The problem is that lying to an FBI agent is a crime — another charge added to an indictment you are not aware is being prepared against you.
According to notes written by one of the FBI agents, Kim said he met Rosen in March, but that he hadn’t met him again and wasn’t a source for the June 11 story. According to the agent’s account, Kim also said, “I wouldn’t pick up a phone and call Rosen or Fox News.”
Of course, the FBI knew Kim had talked with Rosen on June 11 — that’s why they were interviewing him. It is one of the ironies of the case that an expert on one of the most devious regimes in the world was a naïf when it came to recognizing the trap his government was setting for him. Kim had no idea that in the month leading up to the cordial FBI visit, his office had already been searched.
By the time the FBI agents left his office, Kim apparently realized something was afoot. According to a document the FBI submitted to the court, after the meeting Kim logged onto his Yahoo account and called up emails he had exchanged with Rosen. The next day, he told the FBI that his Yahoo account was full and that they should email him at a Gmail account.
If Kim’s intent was to make it less likely that the FBI would learn about his contact with Rosen, it was too late. What took place during the FBI’s announced visit is a source of exasperation for the lawyer Kim eventually hired, Abbe Lowell.
“He was asked questions that were, for all intents and purposes, a setup,” Lowell told me. “The government already knew that Stephen had had a conversation with the media. They already knew that he had had access to the information that they believed to have been classified. They were basically setting him up, to see if they couldn’t get him on another charge.”
Lowell mentioned an old adage about criminal defense lawyers.
“Many of them have a fish that they mount on the wall,” he said. “These lawyers put a plaque under the fish, and in words or effect that plaque will say, ‘If I hadn’t opened my mouth, I wouldn’t be hanging here today.’”
IN THAT SAME month of September 2009, Kim was called into the office of his new boss, Rose Gottemoeller, who had replaced DeSutter after Obama’s election. Kim had spent the morning chasing after some intelligence for her, and he assumed she wanted an update. But the moment he walked into her office and saw that her chief of staff was also there, he knew something was off. As Kim recalled, Gottemoeller didn’t look him in the eye as she told him he was being let go due to a budget shortfall.
Kim recalled that he asked her if he had done something wrong, and she told him no. After a few awkward minutes, Kim left the office. His promotion to the Policy Planning Staff was gone, too. He was still an employee of Livermore — his job at the State Department was technically a second appointment — so he moved to the lab’s satellite office at L’Enfant Plaza while he looked for a new position in Washington.
He didn’t know it, but he was becoming more of a marked man with each passing day. In December 2009, the Justice Department came under new pressure to crack down after a closed-door hearing in which leaks were criticized by members of the Senate Select Committee on Intelligence, chaired by Sen. Dianne Feinstein. As Dennis Blair told The Times, “We had to do 50 push-ups and promise to do better.”
Despite the sustained crisis around North Korea and Kim’s unique expertise, he was turned down everywhere he applied. After a few months, he finally landed a position at the Defense Threat Reduction Agency, a little-known Pentagon think tank. It was not the center of the action, but it was something.
He was living a booby-trapped life, however. Relieved to have found a job, he went to South Korea on vacation with his new wife (at the time, his ex-wife lived in California with their son). When he returned home, he was pulled over by a customs agent at the airport and grilled about his trip.
“I’ve never been called aside for inspection in all my travels,” Kim told me. “The customs officer who pulls me over doesn’t check my bag or my wife’s bag. He asks me all these questions. When did you leave? Why were you there? Did you speak to South Korean officials? What did you talk about? At a certain point, I started getting a little bit upset.”
Two days later, on March 29, 2010, Kim got a call from an FBI agent, who asked to talk again. Kim agreed, but said his new office in L’Enfant Plaza did not have a secure room. The agent told him to meet at the Department of Energy building around the corner.
“They were all friendly,” Kim recalled. “They were like, ‘We just want to ask you some questions, follow up on this and that.’”
They went to the basement of the building, to what’s known as a Sensitive Compartmented Information Facility (SCIF), where classified information can be discussed without fear of eavesdropping. The windowless room where he was questioned had a table and a few chairs.
Shortly after they sat down, Kim said, the smiles disappeared. The agents accused him of leaking classified information to Rosen. It wasn’t just one leak, though; according to Kim, they said he had leaked “a body of work” and had intentionally divulged classified information on multiple occasions.
Kim became visibly agitated as he described the scene of this interrogation. He got restless in his chair. He leaned forward, his voice became louder, and he thumped the table in front of him as he skipped from one part of the interrogation to another.
The agents demanded to search his condo in McLean, Virginia. Kim said they told him that if he refused, they would get a search warrant.
“It was surreal,” Kim told me. “What are you supposed to feel? You don’t feel anything. You’re dumbfounded.”
We had been talking for more than three hours at his lawyer’s office. Outside, the sky was turning dark. Kim paused for a while, struggling to find the right words to describe his shock over the FBI’s accusations.
“Have you ever been hit really hard, like playing sports, or you ran into a pole, or somebody hit you?” he finally asked. “At first you don’t know what hit you. You’re kind of stunned. It doesn’t even hurt in the beginning … When somebody gets shot, unless you have had the experience of being shot, you don’t know that you’ve been shot. It’s not like in the movies. That’s the closest analogy I can come up with. I didn’t know what was happening.”
When the interrogation inside the SCIF was over, Kim left and got into his car. He didn’t want his wife to be around for the search, so he called and asked if she would run some errands. When he arrived home, he noticed a man loitering in the hallway, apparently a federal agent; his home was already staked out. The agents who had interrogated him soon arrived, along with four more men in casual clothes. They scoured his home for several hours, confiscating computers, opening books to see if anything was hidden inside, going through drawers and kitchen cupboards. According to Kim, the agents repeatedly challenged him with the same question: “Where is the document? You stole a document. It’s in your possession.” One of the agents, apparently frustrated that they weren’t discovering anything, used a phrase that Kim interpreted as a racial slur, referring to him and other Asian-Americans as “you people.” (The government denied this exchange took place.)
Kim’s wife showed up in the middle of the search.
“She doesn’t know what’s going on and she’s offering them drinks,” Kim recalled, shaking his head. “This is how stupid we were.”
Even at this stage, with the FBI turning over his house, Kim didn’t comprehend the full scope of what he was facing. He asked the FBI agents whether he needed a lawyer, and when they said they could not provide advice on that, he let them continue. It wasn’t until a few days later, in another secure room, that he finally understood the calamity that was upon him. Along with a lawyer he belatedly contacted, he met a team of prosecutors from the U.S. Attorney’s Office who told him that the government planned to charge him with multiple counts of violating the Espionage Act. He faced decades in prison.
IN THE 1970s, when Kim was bullied at grammar school for being a skinny Asian kid named Jin-Woo who knew only a few words of English, the same person always came to his rescue — his older sister, Yuri. She would run down the hallways of their Bronx school, shouting at the boys ganging up on her brother and beating them off if necessary. Unschooled in the language or culture of their newly adopted country, Stephen and Yuri were inseparable. They read the same books that Yuri brought home from the library, they skipped together to McDonald’s when they had spending money, they passed summer days at the pool in their apartment complex.
Both children excelled academically. Stephen earned a spot at Fordham Prep, an elite private school, and Yuri attended Bronx Science, one of the most competitive public schools in the city. Yuri went on to earn a law degree from Georgetown University and became a corporate lawyer. Stephen got his undergraduate degree from Georgetown and a master’s degree from Harvard before heading to Yale for his Ph.D.
Yuri is more openly emotional than her brother. When we spoke last April at Stephen’s apartment about the early days of the case, she clasped her hands on her chest and occasionally closed her eyes, as though reliving the ordeal. She spoke quietly and intensely. She was at her job in Zurich, where she lived with her husband and two children, when she heard her brother was in trouble.
“My brother tried to explain, saying, ‘The government came to me and said I did something. I’m meeting with Ruth, the only lawyer I know in town … But I don’t know what’s going on. They want to send me to jail for 30 years. They said I did something back in 2009. And the FBI guys were here last weekend.’ ”
“Are you a spy?” she asked her brother. “What did you do? What’s happening?”
She immediately booked a flight to Washington, then she went on a Googling binge, searching “Espionage Act,” “Valerie Plame,” “Judith Miller” — anything that might be related to Stephen’s predicament. Before she got on the plane, she had read every case study she could find on espionage.
Kim had noticed that men in unmarked cars had been trailing him to work and parking outside his building at night. (He didn’t know at the time that the government had a code name for him — Lemon Shark.) He warned Yuri that she would likely be followed once she landed at Dulles.
“That was my first taste of, ‘Oh, my God, whatever is happening, it’s involving the U.S. government,’ the most powerful, most tenacious, most resourceful government,” Yuri said. “And if they’re after my brother, then this is really, really bad news.”
Kim, who’d been sitting silently next to Yuri as she recounted those early days, finally spoke up. “I didn’t have the wherewithal to Google anything,” he said. “Everything was just a blur … I compare it to losing all five senses at the same time. You don’t see anything, you don’t smell anything, you don’t hear anything. Nothing. That’s the only way I can describe it.”
Yuri said Stephen was a shell of a man in those early days after he’d been accused. Before dinner one night, she found him sobbing, crying out that his life was destroyed. She worried that her brother might harm himself. At one point, she tried to make light of it as they stood on the terrace of his 19th-floor condo.
“It’s going to be a really painful fall,” she told him. “Call me before you do it. I’ll talk you out of it.”
“It’s got to hurt when you land,” he replied.
After devoting more than a decade of his life to preventing North Korea from building a nuclear arsenal, he was now accused of helping Pyongyang. How could he live with the stain of what his government accused him of doing? Espionage. What could he say to his young son? To his elderly parents?
“Every single day, I thought about killing myself,” Kim said.
He went online to find out how many sleeping pills or Tylenol he would need to swallow to end his life. He considered jumping in front of a train, because that would be quick. He made plans for letting people know he had committed suicide, deciding that he would send a note to a friend and explain that it should be opened on a certain day; inside he would place his house and car keys.
“It’s a ruthless calculus — you don’t think like a normal person,” Kim told me. “I’m not proud of it, but I’m not ashamed of it, either. Why should I be? Have you gone through what I have? If not, then don’t judge, don’t cast a stone.”
Looking back, Kim felt a kind of dark kinship with Aaron Swartz, the brilliant computer programmer who committed suicide after prosecutors threatened a lengthy prison term for his unauthorized downloads of papers from an academic database. The Justice Department doesn’t just react harshly to unauthorized releases of government data. These priorities are controversial, of course, because young computer hackers and dissenting government officials have received much harsher treatment than corrupt bankers or tax-evading corporations.
Kim talked for a while about Swartz, and about the particular psychic strain that has to be endured when you feel the government’s fist brought down on you. “I know exactly what happened to him,” Kim said. “They threw the kitchen sink at the boy.” He talked about his own struggle: “The only thing I had to think about was how to survive day to day. What do I have to do every single day to be sane.”
We were sitting in the living room of his rented apartment in northern Virginia. “I do believe that nothing meaningful is really ever learned in the absence of suffering,” he said. “But, boy, to gain that meaning — ”
Kim is well-versed in theology, and he mentioned the intellectual history of suffering and the idea that a person can become purified through struggle and pain. “But for the person going through the suffering, it doesn’t seem that pure,” he added.
AFTER THE SEARCH of his McLean home, prosecutors offered Kim a quick deal in which he would accept a sentence of about seven years. If he refused, he could face a 30-year sentence at trial. For a defendant facing indictment, the decision to fight is not just moral or legal. It is also largely financial. Private attorneys are expensive, especially if a case is complicated and long, and as with this one, the government is prepared to invest a lot of resources in it. When Kim was indicted, the opposing bench included three prosecutors from the Department of Justice’s National Security Division.
Kim turned to Abbe Lowell, who had recently defended a lobbyist against an Espionage Act charge and who had a string of other high-profile cases. Lowell had argued on behalf of President Clinton during his impeachment hearing in the House of Representatives, and had defended John Edwards in his corruption trial, Gary Condit in the Chandra Levy case, and even Sean Combs in a voting rights case.
Even when sitting in the quiet of his office, Lowell gives the impression of a taut spring that may uncoil at any moment. He understood that Kim’s case could go on for years and that Kim would not be able to pay for it, but he took it on because he believed it involved a decent American fighting an indecent crackdown. It was, he said, a case of “a person who needed a lawyer and an issue that needed a defense.”
But the legal bills would be substantial. Kim depleted his bank accounts. His parents sold their retirement house in South Korea. Yuri drained her savings. Every time the government refused to provide classified material that might exonerate Kim, the matter had to be argued before the judge. Brief after brief had to be filed. The case would cost millions before it concluded.
Stephen and Yuri set up a defense fund and solicited contributions from friends and supporters. They sold personal belongings — furniture, watches, jewelry. Not even a year into it, they were running out of money. Lowell agreed that once the funds were gone, further costs would be covered by his firm, Chadbourne & Parke. In the end, the firm absorbed more than $1 million in unpaid legal fees.
“I told Abbe, ‘This is everything we’ve got,’” Yuri said. “So I want your moral promise that you will defend my brother to the fullest of your abilities … You’re part of our lives. My brother holds onto your legs for his life, and so do I.”
When Kim’s parents visited Washington and met Lowell, Kim’s mother broke into tears, clasping the lawyer’s hands in supplication.
“Please save my son,” she pleaded.
ON APRIL 5, 2010, WikiLeaks released a cockpit video taken from an American helicopter gunship in Iraq that showed the killing of at least 12 people. The video had been provided to the whistleblowing group by an Army private, Bradley Manning (who later switched gender and became Chelsea Manning), and was part of a trove of Pentagon and State Department files that WikiLeaks would publish about the Iraq and Afghan wars.
The Obama administration, facing what it feared might become a hemorrhage of secrets by anyone with access to a government database — not an unfounded fear, as the 2013 purloining of National Security Agency documents by Edward Snowden would later demonstrate — moved swiftly against leakers in its path. Manning was charged under the Espionage Act; a grand jury was convened to consider charges against WikiLeaks founder Julian Assange; and Snowden, too, of course, would later be charged under the law. The administration instituted an aggressive “Insider Threat Program” to find leakers before they leaked. And it decreed last March that members of the intelligence community needed authorization to talk with reporters even if their conversations were not about sensitive matters. If an intelligence official bumps into a reporter at the gym, it apparently must be reported to her superiors.
“For many years, we had achieved what seemed like a state of equilibrium, in which a certain type of leaking was understood and tolerated,” said Steven Aftergood, who directs the Project on Government Secrecy at the Federation of American Scientists. “I date the collapse of that equilibrium to WikiLeaks, because it was such a departure in magnitude and consequence from the norm. It triggered a response of unusual severity.”
Kim was among the first victims, and his prosecution revealed that the technologies that enable large-scale leaks are also the government’s most formidable weapon for striking back. With a few clicks by a systems administrator, or a subpoena to a phone company or web firm, the government can figure out who talks to whom and when, who emails whom and what they write, or who enters and leaves a building and when they do it. When there is metadata, there is no need for informers or tape recordings or confessions.
The FBI was able to acquire Kim’s phone records, Rosen’s phone records, their emails, security badge records for the State Department building, even records of the precise moments Kim accessed the North Korea intelligence report on his office computer. The assemblage of electronic data showed when and where and for how long Kim and Rosen talked, though not what they talked about. This attests to the power of metadata — to indict a suspect under the Espionage Act, the government doesn’t need to prove what he said in a particular conversation on a particular day, just that he talked or met or left the building at a particular time. Kim’s lawyer highlighted this in a brief to the court: “The government has not produced any email, text message, or recorded conversation documenting the contents of any communication [on June 11] between Mr. Kim and Mr. Rosen.”
It didn’t matter.
In the summer of 2010, after the FBI searched his home in McLean — finding no classified documents or incriminating evidence on his computers — Kim was in California working on unclassified projects at Livermore (the job he had lined up at the Pentagon think tank was gone). As the WikiLeaks disclosures played out on the front pages of The New York Times and the Guardian, the government moved swiftly ahead with its prosecution. Lowell called Kim near the end of August to say the government was going to charge him unless he agreed to plead guilty.
Kim made hasty farewells to his son, who was 10 years old at the time and living nearby with Kim’s ex-wife. They didn’t tell him why Kim was leaving so suddenly. Though a press blitz was inevitable once the indictment was announced, Kim hoped his son could be shielded from it.
The next days in Washington were a flurry of meetings and phone calls with prosecutors. To avoid a trial that could be unpredictable for both sides, they tried to hammer out a plea deal, haggling over the length of Kim’s sentence and what he would plead guilty to. Two counts or one count? Disclosing sources and methods? Less than a year or more than a year?
“I felt like chattel,” Kim told me. “Like in The Merchant of Venice, how much for the pound of flesh?”
The calculus on taking a plea often has little to do with guilt or innocence. One consideration is the judge. Kim was not lucky on this — the judge he had drawn, Colleen Kollar-Kotelly, had served for seven years as the head of the secretive Foreign Intelligence Surveillance Court, which in her tenure had rarely denied or limited government requests for surveillance by the NSA.
The prosecution was not going to back down, but neither would Kim. On Aug. 27, while eating lunch at the Tysons Corner mall, his phone rang. The negotiations had deadlocked, Lowell told him. Lowell’s instructions were blunt: “Shower, shave, put on your best suit and come down to the court by four, because they’ve decided to indict you.”
The next hours were a montage of humiliation. Walking up the courtroom steps as photographers jostled to take his picture, going before the judge to be charged with one count of violating the Espionage Act and one count of lying to the FBI, being led out of the building in handcuffs, put into the back of an FBI vehicle, fingerprinted at a nearby station, having his shoelaces removed, and being locked up until bail was posted. In his solitary holding cell, Kim was less than 2 miles from the office where he had briefed Vice President Cheney.
Kim’s wife had gone to South Korea to stay with her family. His marriage had fallen apart, too.
LOWELL’S LEGAL STRATEGY had many prongs, the most important of which was simple: Was it possible that other officials had talked to Rosen about the classified information in the story? He made a series of discovery requests to find out how many officials had access to the report (the number turned out to be at least 168) and whether any of them spoke with Rosen. Just as the FBI had used email and phone records to connect Kim to Rosen, Lowell asked for the phone and email records of the 167 other officials.
As it turned out, on the day Rosen’s story was published, a Fox correspondent, Major Garrett, emailed then-Deputy National Security Adviser for Strategic Communications Denis McDonough to say he would receive “a call or an e-mail from a trustworthy colleague, James Rosen,” who had “some very good stuff on North Korea and would like some NSC guidance.” Two minutes later, McDonough replied via email, “Got it.” About 10 minutes after that, Rosen called an NSC number used by McDonough and several other senior officials, including John Brennan, a counterterrorism adviser at the time (and now director of the CIA). Phone records show that someone called back from the NSC and talked to Rosen for several minutes. Mysteriously, the prosecution said that neither McDonough, nor any of the NSC officials interviewed by the FBI, recalled talking to Rosen.
The defense learned that in the time leading up to the story, Rosen exchanged dozens of emails with Herzberg, the public affairs officer who had introduced Rosen to Kim. Some of the emails covered “sensitive but unclassified” information, according to a court filing. Herzberg denied in his first interviews with the FBI that he had discussed sensitive information with Rosen. The prosecution also disclosed that Herzberg had sometimes used a private email account to communicate with Rosen.
Though not conclusive, this was tantalizing evidence to support Lowell’s argument that Kim was not the only official to talk with Rosen about the North Korea report, nor the only one to tell the FBI less than the entire truth at the outset of an interrogation, nor the only one to use a private email account to correspond with the Fox reporter. But Kim was the only one being prosecuted.
“There were a number of other people in the government that were talking that day about this subject matter,” Lowell told me. “The reason (Kim) got picked out of what I call the lineup is because once the leak occurred and the intelligence community decided to say this was a terrible, outrageous thing, and they demanded that somebody be found, it was possible to find Stephen and it wasn’t as easy to find others. The government could have found others, but having already vested their target to be Stephen, they never bothered.”
Kim had the particular misfortune of being a mid-level official. Senior officials tend to have powerful allies who can push back against the Department of Justice. This doesn’t always protect them — Scooter Libby, who was Vice President Cheney’s chief of staff, was convicted in 2007 of obstructing an investigation into the leak of a CIA agent’s name (though his sentence was later commuted by President Bush). But usually it helps. Top officials who have not been prosecuted for leaking include Leon Panetta, the former CIA director who, according to a report by the Defense Department’s inspector general, leaked the name of the SEAL commando who led the raid that killed Osama bin Laden. Another example is Gen. James Cartwright, who reportedly has been investigated as the source for a Times story on Stuxnet, but has not been charged.
And of course there is David Petraeus, the former CIA director and four-star general who is being investigated for leaking classified information to Paula Broadwell, his former lover and authorized biographer. According to recent press reports, lawyers in the Department of Justice have recommended that Petraeus be indicted, but there’s significant resistance because he is a popular figure with influential friends who have taken his side, including Sens. Dianne Feinstein and John McCain. While Kim sits in prison for talking to a reporter about a single classified document, Petraeus has not been charged for allegedly handing over multiple classified documents.
The problem was that Kim was an off-the-rack analyst on loan from one government entity to another, and the VCI, where he worked, was filled with hard-liners who were unloved by the rest of the State Department.
“He’s an easy target,” said Jim McNally, a verification expert who worked with Kim at the State Department. “A guy who doesn’t have a strong constituency behind him, and that can lead to problems.”
Still worse, Kim could no longer count on the support of the VCI, because DeSutter, who had hired him when she headed it, had left by the time the leak investigation began. Kim barely knew his new boss, the one who abruptly laid him off.
“If I had still been there, I would have protected him,” DeSutter told me. “I feel bad as an American, because I believe this is an injustice … I was interviewed by the FBI two separate times. I told them, ‘You have the wrong guy.’”
KIM’S EX-WIFE AND SON eventually moved overseas, and though it wasn’t because of Kim’s troubles, the move insulated them from the American news cycle. For a while, their son was kept unaware of exactly what was going on (even though the FBI had called him in 2011), but his mother later told him about it.
Kim’s son, whose name and location we are withholding because he is a minor, seems to have handled the fact of the accusations against his father as well as could be expected. He was visiting Kim during one of my trips to northern Virginia, and spent most of the time while I was there happily playing video games on a computer. The two of them talked easily and playfully.
A sense of their rapport emerges in the text messages they exchanged when Kim’s guilty plea was announced last year. Before the trial was scheduled to start, the prosecution offered a relatively lenient deal — just 13 months in prison for an Espionage Act violation, with the dropping of the charge that Kim had lied to the FBI. Rather than risk more than a decade in prison if he lost at trial, Kim accepted the deal.
“As you know I faced charges that I did something wrong,” he texted his son. “I fought for 4 years. At this juncture I faced a harsh choice to continue to fight and go to trial or to compromise. If I won at trial would be best. But if I lost I would have faced 15 years in jail.”
His son replied that his father was making the best choice, and in other exchanges told him that he was proud of him and that he wasn’t ashamed. Their exchanges have been reassuring, Kim told me, but he realizes kids can hide their true feelings from their parents.
“I don’t know how well he took it,” Kim said. “All I know is what I see in his text messages. I can’t see the emotions behind the words … I don’t know whether he’s masking his pain.”
It was not as simple to break the news to his father, who is 79 and lives in Seoul. So you are saying you are spy! he replied when Kim told him about the plea. If you pleaded guilty, that means you did it! Kim tried to explain the risk of losing at trial, but his father, who had sold his house to help pay the legal costs, was incensed. In response, Kim told his father that they were no longer father and son, and only after Yuri intervened to make peace between them did the two men talk again.
SO WHAT DID Kim tell Rosen? Was he guilty as charged?
He couldn’t give me any answers. Anything he said about his conversations with Rosen could get him into more trouble — a claim of innocence, for instance, would conflict with his plea agreement. Rosen refused to talk to me; he has only made a few comments about the case. “As a reporter, I will always honor the confidentiality of my dealings with all of my sources,” he said on “The O’Reilly Factor” in 2013.
I interviewed four people who worked with Kim in the VCI, and they all described him as a stickler when it came to handling classified data. Livermore, the lab where he worked earlier in his career, holds the most closely guarded secrets about the making of nuclear weapons. He did not have a reputation for indiscretion.
“That’s not how he ever was,” one of his co-workers told me, requesting anonymity because of ongoing work for the government. “He was very careful and thoughtful and followed procedures.”
One possible scenario is that Kim discussed information that was both in the intelligence report and in the public domain. The government puts a surplus of information behind its secrecy firewall; in 2012, the executive branch made 95 million “classification decisions,” according to the agency that tracks these things, and even President Obama has said that over-classification is a problem. The upshot is that it can be difficult for government officials to have useful discussions about policy without talking about something that is both banal and classified.
Kim suggested to the FBI that Rosen might have heard about the report from other sources, and that he, Kim, might have confirmed it or talked about it without intending to step over any lines. This scenario was sketched out in the prosecution’s own filings, one of which, recounting Kim’s second interrogation by the FBI, notes, “To be clear, the defendant denied that he was a source for Mr. Rosen or had knowingly provided Mr. Rosen with classified documents or information. Nevertheless, the defendant also told the FBI agents that he may have ‘inadvertently’ confirmed information that he believed Mr. Rosen had already received from other individuals.”
The article that Rosen ended up writing suggests why Kim might have discussed those intelligence issues with him. By predicting that North Korea would lash out against new sanctions, the report confirmed his hawkish view that modest punishments are insufficient to make North Korea more pliant.
Rosen may have worsened Kim’s plight by framing the assessment in a sensational way. His story described “prized data” that the CIA had just learned and was urgently providing to the White House. The story neglected to mention that nearly everything in the assessment had already been discussed in the media. In an April dispatch from its official news agency, North Korea itself had said that it would take the actions that, two months later, the CIA breathlessly warned it would take. Rosen’s story also said the intelligence was based on “sources inside” North Korea — this could have angered the intelligence community, because sources and methods are particularly sensitive issues — but there was no detail.
Indeed, the banality of Rosen’s story prompted dumbfounded articles with such headlines as, “How the World’s Dullest Story Became the Target of a Massive Leak Investigation.” Jon Stewart, host of “The Daily Show,” mocked the government’s case. “That’s it?” he said. “That’s the leak they needed to quash? North Korea to answer sanctions with more nuclear tests? North Korea answers everything with more nuclear! They have a nuclear-test-based economy!”
AFTER HE WAS SENTENCED in April, Kim had to wait three months for the Bureau of Prisons to tell him where to report. It was an odd purgatory — a government that had threatened to put him in prison for decades didn’t seem to care about him serving time once it had reaped the publicity of a guilty plea on an Espionage Act charge. And Kim, after years of fighting to stay out of jail, wanted to go to prison as soon as possible, so that he could get on with his life.
When I visited him in April and May, there were surprisingly few things in the small apartment he was renting in Reston, Virginia. Clothes, dishes, sheets, books — everything was being sold, given away or put into storage as his incarceration neared. He mentioned that he had a picture from the day he briefed Cheney. I asked if I could see it, and he brought it up from the basement. I looked at it for a while, Kim and the vice president going over documents about North Korea. When I asked whether I could make a copy, he waved at the picture abruptly.
“Take it,” he said. “Take whatever you want.”
Kim’s pain emerged in flashes like this. Most of the time he was adept at hiding behind a self-protective dry humor. At lunch with a few of his supporters after he was sentenced , he joked that he could write a memoir entitled, “From Yale to Jail.” When someone asked what he would do after getting out, he wisecracked, “Welcome to McDonald’s. Would you like to supersize your order?” This wasn’t too far from the truth. To improve his odds for early release, he lined up two job commitments once he got out of prison — one was working in a Catholic church, the other was a job in a women’s beauty shop.
From the moment he arrived in New York City as Jin-Woo Kim, he had set to work on constructing a new self, becoming Stephen J. Kim, a successful immigrant with Ivy League degrees who advised the White House and was privy to some of the nation’s most sensitive secrets. Now, he told me, he had to deconstruct that identity.
“My reputation is gone,” he said over dinner at a Japanese restaurant in Reston. “I don’t have any power. I am not a human being. I am the property of the state.”
He picked up a plate and held it aloft. “I am like this,” he said. “I don’t have rights. There’s no Stephen Kim. It’s erased. I am prisoner number whatever.”
When the lease on his Reston apartment came to an end, he moved into a spare room in a friend-of-a-friend’s apartment. Then he had to move again, into another apartment — this one with a mattress on the floor and a lamp — belonging to another friend of a friend. Finally he received a call from an official in the corrections system. “We have your designation,” the official said. “You got the Cumberland camp.”
Cumberland, in western Maryland, had its share of famous inmates, including Bernard Kerik, the former New York Police Department commissioner, and the lobbyist Jack Abramoff. Kim’s lawyer had represented Abramoff, so they talked on the phone before he went in; among other things, Abramoff gave him advice on how to stay out of trouble.
A handful of Kim’s friends quickly arranged a farewell party at one of their homes. As Kim dined on what would be his last big Korean meal for a while — marinated beef, known as bulgogi, and kimchi, a spicy side dish — the dozen or so guests drank generous quantities of beer and whisky and watched fireworks explode overhead. Kim’s going-to-prison party coincided with the Fourth of July.
His last hours of freedom were restless, much of the time spent exchanging text messages with his son.
“Today is Sunday here,” he wrote. “It will be my last day and then I sleep and wake up real early around 4:30 and get ready to leave here at 6 am so that I can report to Cumberland by 10 am.”
His son responded with emoticons that showed tears streaming from an emoji’s face.
Kim texted a list of things to keep in mind.
“First, don’t ever get down,” he began.
Write lots of letters. Study hard and joyfully. Make good friends. Don’t lose hope.
He continued to text through the night.
“Don’t be sad.”
“Be a good man.”
His friends arrived at 5:30 in the morning. Kim dressed in a white shirt and beige trousers. One of his friends jokingly offered to swap shoes, because Kim’s loafers were nicer and he couldn’t wear them in prison.
The drive took about three hours, a journey through rolling farmland along stretches of two-lane roads. Kim barely talked. In Cumberland, they stopped at a café for breakfast. One of the friends, a Catholic priest, recited Psalm 31 before the omelets and pancakes arrived. A few more jokes were told — someone said they would all be glad to frequently visit the prison because there was a good public golf course nearby.
The prison camp, a few miles outside the town, has no barbed wire. It resembles, from the outside, a well-kept recreation center. Getting his first glimpse of his new home, Kim saw an inmate mowing a lawn on a small tractor. “I wish they’d give me that job,” he smiled.
The intake for new inmates was located in an adjacent medium security facility ringed with concertina wire. Pulling into its parking lot, the car stereo was playing classical music. Nobody spoke. Kim’s friends walked him to the entrance and said goodbye. There were no tears, no drama, just as he’d requested. Inside, a guard told Kim to take a seat. He waited to begin his new life as prisoner 33315-016.
When the Academy Awards are handed out, history will be made.
I’m not referring to the Oscars that particular films might win, but our embrace of their narratives of history. If “American Sniper” gathers a fistful of statues, even more people will see a film that presents a skewed view of the Iraq war. If the “Imitation Game” gets lucky, a lot more people will watch a movie that erroneously portrays Alan Turing as a social idiot. If “Selma” catches some of the limelight, more people may believe that Lyndon Johnson wasn’t entirely supportive of Martin Luther King.
This year’s controversy over films and history has led to a dismissive shrug from cultural critics who wearily tell us that movies are just movies, you shouldn’t take their versions of truth to heart, just enjoy the show. “Going to a Hollywood movie for a history lesson is like going to a brothel for a lecture in philosophy,” wrote Esquire’s Stephen Marche. “You’re in the wrong place.” A.O. Scott, the New York Times film critic, tweeted for the hard of understanding, “FEATURE FILMS ARE NOT HISTORY. THEY ARE HISTORICAL FICTION.”
They are right — Hollywood is not a classroom. The problem, however, is that movies, despite the bonfires of distortion in many of them, can shape our understanding of political events just as much as think tank reports or Pulitzer-winning books. For instance, a lot of major movies are taught in schools. It is disingenuous for the screening room cognoscenti to pretend that films are of no political consequence and shouldn’t be critiqued for historical accuracy — and that’s particularly true for war films.
As Don Gomez, a soldier and blogger, wrote about “Zero Dark Thirty,” which portrayed torture as playing a crucial role in finding Osama bin Laden, “Filmmakers can always deflect criticism by saying ‘It’s a movie, not a documentary,’ which is true. But that ignores the reality of how it will be consumed — how they know it will be marketed and consumed.” And guess what — opinion polls show a majority of Americans think torture worked, just as ZDT said it did, even though an exhaustive Senate report concluded it did not.
A recent study conducted by Notre Dame researchers Todd Adkins and Jeremiah J. Castle indicated that movies are more effective in shaping political opinion than cable news or political ads. In the study, different audiences were exposed to different films and the evolution of their political beliefs was tested before and afterwards; there were statistically significant shifts. “Viewers come expecting to be entertained and are not prepared to encounter and evaluate political messages as they would during campaign advertisements or network news programs,” the authors wrote — meaning that viewers are not aware they are being targeted with political messages, so they are more likely to be persuaded by what they see on the screen.
I’m not really concerned about “The Imitation Game” or “Selma” or for that matter, “Argo” or “The King’s Speech,” because nobody is going to die from the wrong lessons they might impart (and it’s not clear that “Selma” was wrong). It’s probably true, as The Guardian said of “Braveheart,” that it’s a “great big steaming haggis of lies” — but the present-day costs of its liberties with the truth are negligible. However, when it comes to blockbuster tales about our ongoing wars in the Middle East and Central Asia, the wrong lessons are deadly. If, as “American Sniper” suggests, people believe that Iraq was filled with crazed savages who had no reason to attack the foreign army in their midst, we risk engaging in more warfare in the region, because fighting sub-human Muslim fanatics is far easier to justify than killing and maiming innocent civilians, which is a lot of what actually happened.
There is another problem with the “calm down it’s just a movie” attitude — it is chiefly used to protect narratives that confirm our prejudices. When Oliver Stone’s “J.F.K.” came out in 1991, it received coast-to-coast jeers for suggesting a conspiracy behind President John F. Kennedy’s assassination. “What is fact and what isn’t is not always easy to tell,” Vincent Canby wrote in the Times, calling out the movie’s “unsubstantiated data.” Director Oliver Stone, deeply at odds with conventional wisdom, was eviscerated for his “paranoid fantasy,” as Charles Krauthammer wrote at the time. Yet Clint Eastwood, whose “American Sniper” conforms with traditional notions of patriotism and heroism, gets a pass from historical scrutiny because, as his defenders say, it’s only a film.
Rutgers historian Richard Heffner noted that the furor over “J.F.K.” showed that filmmakers like Stone had hit a sensitive nerve — they were becoming “our nation’s leading storytellers,” and the Academy Awards rather than the Pulitzer Prizes were becoming the go-to accolades for our new historians (Heffner wasn’t entirely happy about this). By all means, let movies engage history — this is a wonderful thing — but their narratives of violence should not be spared a confrontation with the truth.
Just a few pages into “American Sniper,” Chris Kyle used an epithet to describe the Arabs on the wrong side of his gun scope. “A lot of people, myself included, called the enemy ‘savages,’” he wrote. “I only wish I had killed more. Not for bragging rights, but because I believe the world is a better place without savages out there taking American lives.” A decorated Navy SEAL, Kyle killed more than 150 “savages” in Iraq, becoming the deadliest sniper in the annals of American warfare.
Kyle’s memoir has been turned into a film starring Bradley Cooper and it’s an Oscar contender even before its national release on January 16. The Los Angeles Times hails its action scenes as “impeccably crafted,” while The New Yorker salutes Clint Eastwood for making other directors “look like beginners.” Unfortunately, Hollywood’s producing class, taking a break from exchanging catty emails about A-list stars, has created another war film that ignores history, and reviewers who spend too much time in screening rooms are falling over themselves in praise of it.
They should know better. In 2012, “Zero Dark Thirty,” about the hunt for Osama bin Laden, was lavishly praised by most reviewers, and it wasn’t until criticism emerged from political reporters like Jane Mayer and others (I wrote about it too) that the tide turned against the pro-torture fantasy at its core. The backlash, coming after the film made “best of the year” lists, was probably responsible for it (fortunately) being all but shut out of the Academy Awards. Hopefully the praise-and-reconsider scenario will recur with “American Sniper.”
Just as ZDT director Kathryn Bigelow insisted her movie took no position on the use of torture, the makers of “American Sniper” tell us the film takes no position on the war in Iraq. Cooper, who in addition to having the lead role was one of the producers, has said “it’s not a movie about the Iraq war; it’s about the horror of what a soldier like Chris has to go through. It’s not a political movie at all. It’s a movie about a man—a character study.” I talked to the movie’s screenwriter, Jason Hall, and he said, “For me, this is not a war movie.”
The film faithfully recycles Kyle’s crude language, and while shocking to some viewers, his slurs are the least surprising or objectionable part. Dehumanizing the enemy is common in almost any conflict, particularly for snipers, who see their foes up close. If you regard your target as a savage or an infidel, it’s easier to squeeze the trigger. Kyle’s blinkered attitude was not unusual among the fighters I spent time with in Iraq. It’s the truest part of the movie and belongs in it.
The problem is that the film makes no attempt to tell us anything beyond Kyle’s limited comprehension of what was happening. More than a decade after America invaded and occupied Iraq, and long after we realized the war’s false pretense and its horrific toll, we deserve better. There’s a dilemma at work: a war movie that is true of one American’s experience can be utterly false to the experience of millions of Iraqis and to the historical record. Further, it’s no act of patriotism to celebrate, without context or discussion, a grunt’s view that the people killed in Iraq were animals deserving their six-feet-under fate. When the movie’s villain, an enemy sniper named Mustafa, was killed by Kyle, the crowd at the theater where I was watching broke into applause.
If Cooper, the film’s star, means what he said about its lack of politics, he fails to understand how war movies operate in popular culture. When a film venerates an American sniper but portrays as sub-human the Iraqis whose country we were occupying—the film has one Iraqi who seems sympathetic but turns out to be hiding a cache of insurgent weapons—it conveys a political message that is flat wrong. Among other things, it ignores and dishonors the scores of thousands of Iraqis who fought alongside American forces and the hundreds of thousands of innocent civilians who were killed or injured in the crossfire.
While it is about a certain type of bravery, the film itself is not brave. One of the things it does well is highlight Kyle’s post-traumatic stress disorder. But there is no mention of the problems returning soldiers often encounter when they try to get treatment at military hospitals–even though the disturbed veteran who killed Kyle in real life, at a Texas shooting range in 2013, had been denied the care he desperately needed. Why ignore an issue of national importance that is also the reason Kyle is no longer with us? I asked Hall, the screenwriter, and he said that while the government’s inadequate care of veterans is worthy of criticism, this was a movie about Kyle’s experience, and he didn’t have problems with the Department of Veterans Affairs. “I think that without the time to adequately explore that, and just take a swing at the VA—that’s ill-mannered and ineffective,” Hall said.
I’m not so surprised about Hollywood—the making of great and true movies is not a feature built into its strange operating system amid the palm trees—but I am dismayed with the reviewers who should know better. As Alissa Quart wrote for Reuters during the backlash to ZDT (full disclosure: Quart is my wife), today’s critics tend to avoid cinematic politics, in contrast to their predecessors, like Mary McCarthy and Pauline Kael. If a movie is well acted and nicely shot and carries the viewer along, that is enough to earn five stars in their reviews, because history does not matter to them. They are ideology-agnostic formalists, and this hurts us.
We got Iraq wrong in the real world. It would be nice to get it right at the multiplex.
Have you heard the screams of a prisoner who is being tortured in America’s war on terror? I can’t forget them.
They pierced the walls of a detention center I visited in Samarra during an offensive by American and Iraqi forces in 2005. In a small room, I was interviewing a frightened detainee whose head was bandaged from an injury he unconvincingly attributed to a car accident during his capture. Bloodstains dripped down the side of a desk, and there was an American military adviser with us, as well as a portly officer of Iraq’s special police commandos.
Suddenly there was a chilling scream.
“Allah,” someone wailed. “Allah! Allah!”
As I wrote at the time, this wasn’t a cry of religious ecstasy. It was the sound of deep pain, coming from elsewhere in the town library, which had been turned into a detention center by Iraqi security forces who were advised by American soldiers and contractors. I was embedded with the Americans for a week, and I had already heard two of them, from the Wisconsin National Guard, talk about seeing their Iraqi partners trussing up prisoners like animals at a slaughter. During raids, I had seen these Iraqis beat their detainees — muggings as a form of questioning — while their American advisers watched.
The CIA’s violations of its detainees are the tip of the torture iceberg. We run the risk, in the necessary debate sparked by the Senate’s release of 500 pages on CIA interrogation abuses, of focusing too narrowly on what happened to 119 detainees held at the agency’s black sites from 2002-2006. The problem of American torture — how much occurred, what impact it had, who bears responsibility — is much larger. Across Iraq and Afghanistan, American soldiers and the indigenous forces they fought alongside committed a large number of abuses against a considerable number of people. It didn’t begin at Abu Ghraib and it didn’t end there. The evidence, which has emerged in a drip-drip way over the years, is abundant though less dramatic than the aforementioned 500-page executive summary of the Senate’s still-classified report on the CIA.
Matt Aikins, whose reporting on human-rights abuses in Afghanistan has been path-breaking, made this point the other day in a series of concise tweets:
Just as the CIA opposed release of the Senate torture report, the Pentagon and White House continue to do their best to suppress the evidence. The Daily Beast noted the other day that the Obama Administration, responding to pressure from the Pentagon, continues to fight in court to prevent the publication of thousands of photos of detainee abuse. The argument against release is nearly identical to the argument used by the CIA to repress the Senate’s report—it could put American lives in danger. To her credit, Sen. Dianne Feinstein pushed back and published an executive summary of her committee’s 6,000-page report (which has caused practically no protest or violence overseas).
Repression is the gut instinct of institutions that have something to hide, and I came across that in Samarra, too. Shortly after I witnessed the threatened execution of a detainee (an Iraqi soldier pointed his AK-47 at a prisoner who was against a wall with his hands up), an order came down from the American command to get me out of Samarra. I was told to pack my backpack for the next convoy out of town. After I made a flurry of calls on my satellite phone, the order was rescinded. Someone wanted the truth to come out.
This just happened — while trying to figure out a colorful way to begin the story you’re reading, I toggled to Twitter and saw a link to a short film by two Brooklyn directors who used a drone to film actors having sex. Their project, somewhere between art and porn, hovers on the R-rated margins of a thriving cultural movement in which artists of all stripes are exploring what it means to live in a state of surveillance.
You can’t throw a rock these days without hitting a surveillance art project, and the remarkable thing is that so much of it is so good. Some of the Snowden era’s sharpest interrogations of collect-it-all tracking by corporations and the government are to be found in galleries and other art spaces. They are the opposite of the acronym-laden news stories we read: NSA, FISA, PGP, PRISM, ACLU, EFF, SIGINT, GCHQ, TOR, FOIA, HTTPS, are you still awake? They are playful, invasive and eerie, and best of all they are graphically visual. With a transgressive edge that journalism struggles to match, they creatively challenge what it means to be human in a time of data.
The latest example is an exhibit called Watching You, Watching Me, organized by the Open Society Foundations in New York City and featuring ten artists and photographers. Rather than tell us about program X or problem Y in the word-based vernacular we’re numbed by, they offer new ways of seeing and understanding surveillance. The stunner in this show is an object created by Hasan Elahi that from a distance looks like a lovely tapestry draped on a wall.
As Elahi has explained, in 2002 he was stopped at the Detroit airport because his name appeared on a terrorism watchlist, and he was subsequently interrogated by FBI agents. Born in Bangladesh and raised in the United States, Elahi, an art professor at the University of Maryland, chose an unusual response to clear his name and make a statement—he began a self-surveillance project in which he took pictures of nearly everything he did and sent them to the FBI. He also posted them to a website he created. He’s taken about 70,000 pictures of the buildings he’s visited, the beds he’s slept in, the food he’s eaten, the toilets he’s used, the roads he’s travelled on, and he’s also published receipts for the things he’s bought; he even tracks his location using GPS.
“By disclosing mundane details about my daily life, I am simultaneously telling everything and nothing about my life,” he writes in the exhibit brochure. “I am flooding the market with banal information, and questioning its inherent meaning and value for intelligence purposes.”
For the exhibit, Elahi created a giant tapestry made of tiny reproductions of 32,000 of those photos. It works on several levels. Aesthetically and from afar, it is a gorgeous, softly-colored flag, something Jasper Johns might have created with fabric. Up close, you see each photo and comprehend the audacity of Elahi’s monitoring project as well as the invasive banality of surveillance (though the photos were shot by Elahi, they are the sorts of things spy agencies might collect on their targets). You can also read the photos as a visual story of a man’s life in America, or more broadly as life in America, with its fast-food restaurants, its parking lots and planes and strip malls. His artwork is the analog turned digital turned material.
Surveillance art — or as one academic has called it, artveillance — fits into a creative continuum that stretches back to at least the 1930s, when the introduction of “miniature” cameras, such as the Leica, made it relatively easy for photographers to secretly take pictures. Walker Evans led the way with undercover pictures taken on the New York City subway with a Leica hidden behind his coat. State surveillance wasn’t the subtext of Evans’ work—he was the surveiller, after all—but as the art professor Stephanie Schwartz pointed out to me, the issue was being evoked in the creative realm at the time. One of the scenes in Modern Times shows Charlie Chaplin’s character, the tramp, going into a bathroom to get away from the factory floor, only to find a monitor from which the factory manager sees him and orders him back to work.
The latest wave of surveillance art has been evident for a number of years, especially since 9/11, which increased the powers and budgets of intelligence agencies in the United States and elsewhere. The wave seems to have grown larger in the wake of the leaks from NSA whistleblower Edward Snowden, and this is fortunate. Pervasive surveillance is oddly paralyzing—it is the digital equivalent of the aphorism about genocide, “The death of one man is a tragedy and the death of a million is a statistic.” The more we learn of its vast scope, the more we seem dulled to it. We need to see it anew.
Josh Begley, a data editor at The Intercept, tries to bring that kind of utility to the New York Police Department’s invasive surveillance of Muslims. After 9/11, the NYPD established a secret “Demographics Unit” that mapped Muslim neighborhoods, dispatching plainclothes officers to collect photographs and information about Muslim businesses and gathering places. The program was revealed in a 2011 news story by the Associated Press that also published the NYPD’s surveillance photos and notes.
Begley’s project in the Watching You exhibit reassembles the original documents, arranging the NYPD photos of hundreds of Muslim-owned establishments in a jaggedly circular collage, surrounded by notes from the undercover cops involved in the surveillance (“Medium sized store that sells stationary, lotto, newspapers and American party supplies…Location sells live poultry…A male Pakistani was working behind the counter”). The project engages you far more deeply than a stack of original documents or news stories about them ever could.
The exhibit offers much more—photojournalist Tomas van Houtryve displays his beautiful and disturbing pictures taken with a small drone that he flew over American settings to replicate the locations of drone strikes in Pakistan and Afghanistan—weddings, playgrounds, people praying or exercising. There is also the turn-the-tables work of Simon Menner, a German who combed through the Stasi archives for pictures the East German spy agency took of its own agents (mainly in training situations, but also at parties).
It’s just a microcosm of today’s vibrant surveillance art scene. Travel a few dozen blocks from the Open Society and you’ll reach the latest work by Trevor Paglen, who has collected more than 4,000 code names from the archive of NSA documents leaked by Snowden. Paglen’s video installation, in a darkened room at the Metro Pictures gallery, projects the code names into slowly-rising columns of white type that crawl up the walls around you. The effect is literally destabilizing—with the code names rising as you stand still, you feel as though you are falling in a shaft of infinite surveillance. Paglen materializes our political vertigo.
As a writer, it’s hard to say this but there’s more variety and excitement in surveillance art than in surveillance writing. For instance, artist Heather Dewey-Hagborg has collected DNA samples from cigarette butts, chewing gum and stray hair, and has used these to create portraits of whomever the DNA belongs to. It’s an aggressive act — appropriating someone’s genetic property to show the ease with which our identities can be constructed and exposed. Two artists, Brian House and Kyle McDonald, even created an eavesdropping device that looks like a light bulb or lamp, and after infiltrating them into public places like a restaurant, bank lobby and library, they tweeted snippets of overheard conversations; the project is called “Conversnitch.”
Fair game? I don’t know, but these projects engage us with the problems of surveillance in ways that news stories and congressional hearings do not. There’s a freshness to each one, and the list lengthens every day. As I was finishing this story, I received an email from a group of 14 artists who have released a CD called “NSA Listening Party” — songs against surveillance. The first track is called “Dossier.”
“So what have you been doing?”
The question was barked out by Ben Bradlee, and the young reporter who had to come up with a quick answer was me. I had been freelancing for The Washington Post from South Korea for three years, I had scored a half dozen or so front-page stories, and I was meeting the legendary editor at the end of a day of interviews for a staff job as a metro reporter. Within the first minute or two, he sensed that I was not only a liar but a bad liar.
I mentioned that I had arrived from Seoul via an improbable route. As a vacation, I had flown to Beijing, gotten on the trans-Mongolia train to Moscow, and from there I had taken another train to Berlin, arriving in time to chisel a few stones from the wall that had been breached by East Germans a few days earlier. It was November 1989, communism was collapsing in Eastern Europe, and I had sipped a thrilling bit of it.
All of that was true. The rest was not — that what I really wanted at this point in my life was to work in one of the paper’s local bureaus. I had been coached by the foreign editor and my friends at the paper to tell this fib, so that I would get a staff job and, after a few of what would be the dullest years of my life, earn my way back overseas as a full-fledged foreign correspondent, rather than a $150-per-story freelancer. I tried my best to sound enthusiastic about Montgomery County.
“Why would you want to work here?” Bradlee replied in the growly register he was famous for. “What’s happening in Eastern Europe is the best fucking story since World War II.”
Smart editors have a knack for calling bullshit on bullshit, and Bradlee was a pro at that. He had called bullshit on Richard Nixon several times, and he had even called bullshit on himself after the paper published a series of prize-winning stories that had been fabricated by its reporter, Janet Cooke; the Post’s apology was complete, and its internal investigation, which criticized Bradlee, was blunt. On this late November afternoon, Bradlee was calling bullshit on me.
I folded, telling the truth. I had studied Russian in college and I would love to cover the aftermath of the fall of the Berlin Wall but the foreign desk didn’t have a position for me in the region. The next best thing would be a metro job followed, hopefully as soon as possible, by an overseas post. Bradlee laughed. He started telling stories about the great times he had living in Paris after World War II, and then he dismissed me with a friendly wave.
Bradlee died yesterday at the age of 93, and you’ve probably read about it already. He was the Watergate editor, the editor in “All the President’s Men,” a great editor of the 20th century. All of that is true. What’s also true is that he had a compulsion to do whatever he felt like doing, and he made the right choice more often than editors who were more cautious. He didn’t have a political edge — the man lived in Georgetown — but he did have an attitude.
When I left his office I had no idea what would happen. The foreign editor, Michael Getler, the kindest person in the newsroom, would hear of my treason and shake his head in despair; I had failed him. The metro editor, Milton Coleman, would hear of it and say, You can never trust those overseas hotshots, I’m not going to hire another of them. The end was near for me.
A few minutes later, I saw Bradlee heading to Getler’s office. I don’t know what was said, but not long afterwards I was told that Getler wanted to talk to me immediately. This wasn’t part of the plan. I walked into his office and he didn’t look up to say hello. He was angry, and I was the reason.
“Okay,” he said. “I’ll send you to Budapest.”
I don’t recall him saying anything else. No smile, no handshake. This hadn’t been his call. Bradlee had apparently ordered him to send the kid to Eastern Europe, and now he had to scrounge around his freelance budget to pay me for stories he didn’t want or need. Kind as he was, at that moment I think he wanted to fire me for insubordination.
Instead of a local school board I got Eastern Europe and the dreadful thing that reporters of a young age wish for, a war to cover; mine would be in the Balkans. I have no idea what I would have become, or who I would have been, if Bradlee had done as most editors would have done, listening to my polite lies and shuffling me along toward a by-the-numbers career that would kill my soul.
I am sure my cause was helped by the fact that I was young and white and male, the kind of object that older editors who are white and male tend to have a biased soft spot for. This is why it’s good we don’t have as many Ben Bradlees these days; the mirroring and replication of a dominant culture is weaker now. Which doesn’t mean we’re in a universally better place; we have a lot of editors who are more cautious than they should be (patriarchy replaced by management culture), and a large number of top slots are still filled with guys (yes, including at The Intercept). It’s hard to believe that gender played no role in the firing of Jill Abramson at The New York Times.
This little story has reached the point where I am supposed to say something charming and sweet. That’s the way appreciations tend to go in the literary equivalent of the bottom of the ninth. In honor of Bradlee, whose language was famously not a model of restraint, I’d like to say, fuck that. The point of this little story, the point that Bradlee conveyed when he let me loose in Eastern Europe, is don’t hold back, find a great story or a great cause and don’t fucking let go.
This article was co-authored with Laura Poitras.
The National Security Agency has had agents in China, Germany, and South Korea working on programs that use “physical subversion” to infiltrate and compromise networks and devices, according to documents obtained by The Intercept.
The documents, leaked by NSA whistleblower Edward Snowden, also indicate that the agency has used “under cover” operatives to gain access to sensitive data and systems in the global communications industry, and that these secret agents may have even dealt with American firms. The documents describe a range of clandestine field activities that are among the agency’s “core secrets” when it comes to computer network attacks, details of which are apparently shared with only a small number of officials outside the NSA.
“It’s something that many people have been wondering about for a long time,” said Chris Soghoian, principal technologist for the American Civil Liberties Union, after reviewing the documents. “I’ve had conversations with executives at tech companies about this precise thing. How do you know the NSA is not sending people into your data centers?”
Previous disclosures about the NSA’s corporate partnerships have focused largely on U.S. companies providing the agency with vast amounts of customer data, including phone records and email traffic. But documents published today by The Intercept suggest that even as the agency uses secret operatives to penetrate them, companies have also cooperated more broadly to undermine the physical infrastructure of the internet than has been previously confirmed.
In addition to so-called “close access” operations, the NSA’s “core secrets” include the fact that the agency works with U.S. and foreign companies to weaken their encryption systems; the fact that the NSA spends “hundreds of millions of dollars” on technology to defeat commercial encryption; and the fact that the agency works with U.S. and foreign companies to penetrate computer networks, possibly without the knowledge of the host countries. Many of the NSA’s core secrets concern its relationships to domestic and foreign corporations.
Some of the documents in this article appear in a new documentary, CITIZENFOUR, which tells the story of the Snowden disclosures and is directed by Intercept co-founder Laura Poitras. The documents describe a panoply of programs classified with the rare designation of “Exceptionally Compartmented Information,” or ECI, which are only disclosed to a “very select” number of government officials.
The agency’s core secrets are outlined in a 13-page “brief sheet” about Sentry Eagle, an umbrella term that the NSA used to encompass its most sensitive programs “to protect America’s cyberspace.”
“You are being indoctrinated on Sentry Eagle,” the 2004 document begins, before going on to list the most highly classified aspects of its various programs. It warns that the details of the Sentry Eagle programs are to be shared with only a “limited number” of people, and even then only with the approval of one of a handful of senior intelligence officials, including the NSA director.
“The facts contained in this program constitute a combination of the greatest number of highly sensitive facts related to NSA/CSS’s overall cryptologic mission,” the briefing document states. “Unauthorized disclosure…will cause exceptionally grave damage to U.S. national security. The loss of this information could critically compromise highly sensitive cryptologic U.S. and foreign relationships, multi-year past and future NSA investments, and the ability to exploit foreign adversary cyberspace while protecting U.S. cyberspace.”
The document does not provide any details on the identity or number of government officials who were supposed to know about these highly classified programs. Nor is it clear what sort of congressional or judicial oversight, if any, was applied to them. The NSA refused to comment beyond a statement saying, “It should come as no surprise that NSA conducts targeted operations to counter increasingly agile adversaries.” The agency cited Presidential Policy Directive 28, which it claimed “requires signals intelligence policies and practices to take into account the globalization of trade, investment and information flows, and the commitment to an open, interoperable, and secure global Internet.” The NSA, the statement concluded, “values these principles and honors them in the performance of its mission.”
Sentry Eagle includes six programs: Sentry Hawk (for activities involving computer network exploitation, or spying), Sentry Falcon (computer network defense), Sentry Osprey (cooperation with the CIA and other intelligence agencies), Sentry Raven (breaking encryption systems), Sentry Condor (computer network operations and attacks), and Sentry Owl (collaborations with private companies). Though marked as a draft from 2004, it refers to the various programs in language indicating that they were ongoing at the time, and later documents in the Snowden archive confirm that some of the activities were going on as recently as 2012.
One of the most interesting components of the “core secrets” involves an array of clandestine activities in the real world by NSA agents working with their colleagues at the CIA, FBI, and Pentagon. The NSA is generally thought of as a spying agency that conducts its espionage from afar—via remote commands, cable taps, and malware implants that are overseen by analysts working at computer terminals. But the agency also participates in a variety of “human intelligence” programs that are grouped under the codename Sentry Osprey. According to the briefing document’s description of Sentry Osprey, the NSA “employs its own HUMINT assets (Target Exploitation—TAREX) to support SIGINT operations.”
According to a 2012 classification guide describing the program, TAREX “conducts worldwide clandestine Signals Intelligence (SIGINT) close-access operations and overt and clandestine Human Intelligence (HUMINT) operations.” The NSA directs and funds the operations and shares authority over them with the Army’s Intelligence and Security Command. The guide states that TAREX personnel are “integrated” into operations conducted by the CIA, FBI, and Defense Intelligence Agency. It adds that TAREX operations include “off net-enabling,” “supply chain-enabling,” and “hardware implant-enabling.”
According to another NSA document, off-net operations are “covert or clandestine field activities,” while supply-chain operations are “interdiction activities that focus on modifying equipment in a target’s supply chain.”
The NSA’s involvement in supply-chain interdiction was previously revealed in No Place to Hide, written by Intercept co-founder Glenn Greenwald. The book included a photograph of intercepted packages being opened by NSA agents, and an accompanying NSA document explained the packages were “redirected to a secret location” where the agents implanted surveillance beacons that secretly communicated with NSA computers. The document did not say how the packages were intercepted and did not suggest, as the new documents do, that interception and implants might be done by clandestine agents in the field.
The TAREX guide lists South Korea, Germany, and Beijing, China as sites where the NSA has deployed a “forward-based TAREX presence;” TAREX personnel also operate at domestic NSA centers in Hawaii, Texas, and Georgia. It also states that TAREX personnel are assigned to U.S. embassies and other “overseas locations,” but does not specify where. The document does not say what the “forward-based” personnel are doing, or how extensive TAREX operations are. But China, South Korea, and Germany are all home to large telecommunications equipment manufacturers, and China is known to be a key target of U.S. intelligence activities.
Although TAREX has existed for decades, until now there has been little information in the public domain about its current scope. A 2010 book by a former Defense Intelligence Agency officer, Lt. Col. Anthony Shaffer, described TAREX operations in Afghanistan as consisting of “small-unit, up-close, intelligence-gathering operatives. Usually two-to-three man units.”
“Under Cover” Agents
The most controversial revelation in Sentry Eagle might be a fleeting reference to the NSA infiltrating clandestine agents into “commercial entities.” The briefing document states that among Sentry Eagle’s most closely guarded components are “facts related to NSA personnel (under cover), operational meetings, specific operations, specific technology, specific locations and covert communications related to SIGINT enabling with specific commercial entities (A/B/C).”
It is not clear whether these “commercial entities” are American or foreign or both. Generally the placeholder “(A/B/C)” is used in the briefing document to refer to American companies, though on one occasion it refers to both American and foreign companies. Foreign companies are referred to with the placeholder “(M/N/O).” The NSA refused to provide any clarification to The Intercept.
The document makes no other reference to NSA agents working under cover. It is not clear whether they might be working as full-time employees at the “commercial entities,” or whether they are visiting commercial facilities under false pretenses. The CIA is known to use agents masquerading as businessmen, and it has used shell companies in the U.S. to disguise its activities.
There is a long history of overt NSA involvement with American companies, especially telecommunications and technology firms. Such firms often have employees with security clearances who openly communicate with intelligence agencies as part of their duties, so that the government receives information from the companies that it is legally entitled to receive, and so that the companies can be alerted to classified cyber threats. Often, such employees have previously worked at the NSA, FBI, or the military.
But the briefing document suggests another category of employees—ones who are secretly working for the NSA without anyone else being aware. This kind of double game, in which the NSA works with and against its corporate partners, already characterizes some of the agency’s work, in which information or concessions that it desires are surreptitiously acquired if corporations will not voluntarily comply. The reference to “under cover” agents jumped out at two security experts who reviewed the NSA documents for The Intercept.
“That one bullet point, it’s really strange,” said Matthew Green, a cryptographer at Johns Hopkins University. “I don’t know how to interpret it.” He added that the cryptography community in America would be surprised and upset if it were the case that “people are inside [an American] company covertly communicating with NSA and they are not known to the company or to their fellow employees.”
The ACLU’s Soghoian said technology executives are already deeply concerned about the prospect of clandestine agents on the payroll to gain access to highly sensitive data, including encryption keys, that could make the NSA’s work “a lot easier.”
“As more and more communications become encrypted, the attraction for intelligence agencies of stealing an encryption key becomes irresistible,” he said. “It’s such a juicy target.”
Of course the NSA is just one intelligence agency that would stand to benefit from these operations. China’s intelligence establishment is believed to be just as interested in penetrating American companies as the NSA is believed to be interested in penetrating Chinese firms.
“The NSA is a risk [but] I worry a lot more about the Chinese,” said Matthew Prince, chief executive of CloudFlare, a server company. “The insider threat is a huge challenge.” Prince thinks it is unlikely the NSA would place secret agents inside his or other American firms, due to political and legal issues. “I would be surprised if that were the case within any U.S. organization without at least a senior executive like the CEO knowing it was happening,” he said. But he assumes the NSA or CIA are doing precisely that in foreign companies. “I would be more surprised if they didn’t,” he said.
The briefing sheet’s description of Sentry Owl indicates the NSA has previously unknown relationships with foreign companies. According to the document, the agency “works with specific foreign partners (X/Y/Z) and foreign commercial industry entities” to make devices and products “exploitable for SIGINT”—a reference to signals intelligence, which is the heart of the NSA’s effort to collect digital communications, such as emails, texts, photos, chats, and phone records. This language clarifies a vague reference to foreign companies that appears in the secret 2013 budget for the intelligence community, key parts of which were published last year from the Snowden archive.
The document does not name any foreign companies or products, and gives no indication of the number or scale of the agency’s ties to them. Previous disclosures from the Snowden archive have exposed the agency’s close relationships with foreign intelligence agencies, but there has been relatively little revealed about the agency gaining the help of foreign companies.
The description of Sentry Hawk, which involves attacks on computer networks, also indicates close ties with foreign as well as American companies. The document states that the NSA “works with U.S. and foreign commercial entities…in the conduct of CNE [Computer Network Exploitation].” Although previous stories from the Snowden archive revealed a wide range of NSA attacks on computer networks, it has been unclear whether those attacks were conducted with the help of “commercial entities”—especially foreign ones. The document does not provide the names of any of these entities or the types of operations.
Green, the cryptography professor, said “it’s a big deal” if the NSA is working with foreign companies on a greater scale than currently understood. Until now, he noted, disclosures about the agency’s corporate relationships have focused on American companies. Those revelations have harmed their credibility, nudging customers to foreign alternatives that were thought to be untouched by the NSA. If foreign companies are also cooperating with the NSA and modifying their products, the options for purchasing truly secure telecommunications hardware are more limited than previously thought.
The briefing sheet does not say whether foreign governments are aware that the NSA may be working with their own companies. If they are not aware, says William Binney, a former NSA crypto-mathematician turned whistleblower, it would mean the NSA is cutting deals behind the backs of friendly and perhaps not-so-friendly governments.
“The idea of having foreign corporations involved without any hint of any foreign government involved is significant,” he said. “It will be an alert to all governments to go check with their companies. Bring them into parliament and put them under oath.”
The description of Sentry Raven, which focuses on encryption, provides additional confirmation that American companies have helped the NSA by secretly weakening encryption products to make them vulnerable to the agency. The briefing sheet states the NSA “works with specific U.S. commercial entities…to modify U.S manufactured encryption systems to make them exploitable for SIGINT.” It doesn’t name the commercial entities or the encryption tools they modified, but it appears to encompass a type of activity that Reuters revealed last year—that the NSA paid $10 million to the security firm RSA to use a weak random number generator in one of its encryption programs.
The avalanche of NSA disclosures since the Snowden leaks began in 2013 has shattered whatever confidence technologists once had about their networks. When asked for comment on the latest documents, Prince, the CEO of CloudFlare, began his response by saying, “We’re hyper-paranoid about everything.”
Documents mentioned in this story:
Sentry Eagle Brief Sheet (13 pages)
TAREX Classification Guide (7 pages)
Exceptionally Controlled Information Listing (6 pages)
ECI WHIPGENIE Classification Guide (7 pages)
ECI Pawleys Classification Guide (4 pages)
ECI Compartments (4 pages)
CNO Core Secrets Slide Slices (10 pages)
CNO Core Secrets Security Structure (3 pages)
Computer Network Exploitation Classification Guide (8 pages)
CNO Core Secrets (7 pages)
America’s forever war has come to this — the front lawn of the White House may become a kill zone. That’s crazier than whatever prompted Iraq war veteran Omar J. Gonzalez to jump the fence on Pennsylvania Avenue two weeks ago, running for the Oval Office.
The Secret Service has not announced what will happen to the next homeless person with PTSD who rushes the White House, but the Outrage Machine is demanding blood. Rep. Jason Chaffetz, the Republican who sits on a committee that is investigating the September breach, warned at a hearing this week, “You make a run and a dash at the White House, we’re going to take you down. I want overwhelming force.” In the same vein, Ronald Kessler wrote in Politico Magazine that the Secret Service should have tried to “take out” Gonzalez.
We shouldn’t be surprised by the over-reaction. There have been armored police vehicles and camo-clad officers with ballistic helmets and assault rifles on the streets of Ferguson and other places, so by the same logic, shouldn’t the guardians of the White House be visibly legion and have their fingers on the trigger, fully automatic? Welcome to the nation’s capital, hope you have a nice day, don’t make any quick movements, deadly force may be used, mental illness is no excuse. Invade, torture, drone, shoot — these are the four horsemen of the post-9/11 apocalypse.
Call me crazy, but I’m glad the Gonzalez saga ended with him being wrestled to the ground in the East Room rather than shot dead on the lawn outside it. Yes, there’s a happy medium we should strive toward — stopping intruders without deadly force before they get to the front door — and hopefully the Secret Service will find a way to make that happen, once it finds a new director. But there’s bloodlust in the air, it’s ugly, and the people who will suffer because of it include the weakest members of society—the mentally ill who do not get the medical attention they need from the government that should be their safety net, and who do stupid things like charging the White House, which gets them violent attention they don’t need.
When I reported in authoritarian states, including communist ones, I often saw the sort of hyper-vigilance over Dear Leader’s abode that our professional hotheads are asking for. If you lingered in front of one of Teodoro Obiang’s many mansions in Equatorial Guinea, you could be questioned or arrested; same goes for Vladimir Putin’s crib in Moscow. In other countries, just asking where a leader lives can get you in trouble (hello North Korea). And you can forget about strolling by 10 Downing Street — even it’s closed to the public. America has been different; our presidents did not live in fear, did not choose to surround themselves with hair-trigger force.
It shouldn’t be too much to ask for — let’s have a reasoned response to the Secret Service’s lapses. Nobody got killed. Remember, that’s a good thing.
Beheading is barbaric. The men of the Islamic State who executed James Foley and Steve Sotloff are monsters. Yet their monstrosity does not fully explain our fury over their beheading videos, or the exhortations we have heard to not share or distribute the harrowing images.
We are right to be repulsed. But I think part of our horror stems from the fact we rarely see images of American victims of war. It is the last taboo in our era of endlessly transgressive media — publishing photos or videos of injured, dying, or dead Americans in a war zone. How has this taboo been maintained? To a great degree, the reason is censorship on the part of the American government.
It is an oddity of all of the violence since 9/11: Despite constant warfare and the death of more than 5,000 American soldiers (a figure that does not include American contractors, aid workers, and journalists) — not to mention the more than 50,000 wounded — we have rarely seen photos or videos of Americans in their ultimate agony. Photographers embedded with American troops have been all but forbidden from taking pictures of dead or wounded soldiers; Michael Kamber’s Photojournalists on War is filled with tales of war photographers prevented from doing their necessary work. Until 2009, it was even forbidden to take photographs of flag-draped coffins as they returned home. I once had a minor encounter with the machinery of censorship: On a military flight out of Baghdad in 2005, a military police officer confiscated my camera after I took a few shots of the coffins on board. He returned the device after deleting the pictures.
It’s no secret why the government has repressed these sorts of images. Support for the wars since 9/11 could be undermined if Americans were to see the ghastly things that happen to their brothers and sisters in combat. This is generally attributed to a lesson supposedly learned by the generals in Vietnam: If you let photographers take pictures of American dead and injured, you will lose public support for the messy undertaking of mass violence. It’s fine to disseminate pictures and video of foreign dead and wounded, which can actually help the war effort.
It is a different thing when the victims are ours. When it comes to our own citizens, the consequences of war are preferably represented in elliptical ways that do not show torn flesh or faces of the newly dead. Instead, we see townspeople lining up and saluting as a hearse drives by, we hear the sound of taps at a funeral, we remember the flag as it was placed in a brave widow’s hands, or we see a wounded veteran with a handful of pills for PTSD. It demands a mournful response rather than an informed decision.
This censorship has spawned an odd blowback. By shielding us from disturbing imagery, our government (and editors who shy away from gore) may have made us all the more vulnerable when we finally see dead Americans. This is not an abstract theory. The two disastrous invasions of Falluja during the Iraq War were sparked by pictures of the bodies of four American contractors hanging from one of the town’s bridges in 2004. It wasn’t the event itself so much as the pictures that launched such destructive fury. Confronted with these stark but complicated images, we tend to respond with a primal scream, as The New York Post did with its identical headlines for both the Falluja desecrations in 2004 and the Islamic State beheadings a decade later: “Savages.”
In the case of the Islamic State, some of the outrage is explained by the perverse pride the killers take in distributing the evidence of their crimes. But we are on a slippery slope with this indignation, because we have our own macabre mechanism for broadcasting the deaths of our supposed enemies — Central Command recently began tweeting out links to videos of air strikes in Iraq. As human rights groups have amply documented, a large number of civilians have been killed by American drones. Many Americans look at those videos and think, Got the bad guys, job well done. How many Iraqis, Afghans, Pakistanis or Yemenis look at those same videos, remind themselves of the women and children killed, and say, What savages?
In the end, it is a strange twist: Instead of pushing us away from war, as the Vietnam generals feared, images of American casualties are now driving us into the vortex. Would seeing more of it really help? Instead of reasoned discussion, might there be more howls for revenge? Or might there be shrugs of seen-it-before indifference, as Susan Sontag warned in her 2002 New Yorker essay, “Looking at War?” I wish we didn’t have to ask these questions — that there were no loathsome images to flash on our screens — and I wish we didn’t have a responsibility to look and think deeply. But we do, if the depravity of war is to be understood and, hopefully, dealt with.
Original headline: Why More Americans Should See the Beheading Videos
In the 1970s and 1980s, Texaco extracted more than a billion barrels of oil from the Ecuadorean rainforest but spilled an estimated 400,000. In 1993, locals filed a class action against the company. That case is ongoing—it’s a legal version of the Amazon, serpentine and vast, with the company still fighting an Ecuadoran judge’s record-setting $19 billion verdict—and is the subject of Paul M. Barrett’s serious but uneven book Law of the Jungle: The $19 Billion Legal Battle Over Oil in the Rain Forest and the Lawyer Who’d Stop at Nothing to Win It.
Barrett, a senior writer at Bloomberg Businessweek and author of the bestselling book Glock, focuses on the activist lawyer, Steven Donziger, who turned the case into a no-holds-barred crusade against Chevron, which acquired Texaco in 2001. Donziger is an abrasive attorney (I wrote about him for Outside in 2007), and Barrett exhaustively describes his errors: coaching experts and cajoling judges and carrying on like a guerrilla with a law degree. Last March, a federal judge ruled that Donziger had used coercion and bribery in Ecuador, which would keep him from profiting from the Ecuadorean case if and when it’s resolved. (Donziger is appealing the decision.)
As a protagonist, Donziger is Shakespearean in his tragic dimensions and a natural magnet for a writer’s pen. But the odd thing about Barrett’s book is that Donziger is its nearly exclusive target. Barrett describes him as behaving like a “mob boss” with an ego on “an Olympian scale.” That may be true, but some of Barrett’s critiques are petty. Donziger is chided for being married to a woman who works for a glossy-magazine publisher and for living in a two-bedroom Manhattan apartment with “high-end appliances” while his clients in Ecuador live in shacks. But if that’s hypocrisy, every public-interest lawyer with an espresso machine or a successful spouse is a scoundrel.
Barrett does dip into Chevron’s chicanery—the firm paid private investigators to follow Donziger and tried to persuade a freelance journalist to collect information about his Ecuadoran clients on a phony reporting trip—but the oil company gets far less scrutiny than its adversary. This seems lopsided, because the worst culprit in this case isn’t a quixotic lawyer who misplayed the bad hand dealt to him but the company that almost everyone agrees acted in a reprehensible way for decades. Barrett traveled to Ecuador, as I did, saw the pits of years-old oil that still dot the landscape, and heard the stories of people dying from cancers that their survivors blame on oil. Even he concluded that the region is “no place I’d want to live.” But Barrett moves on too quickly from the environmental crime scene. Much can be said about Donziger, but despite his many flaws, he did not spill a drop of oil in the Amazon.
This article was co-written with Ryan Gallagher.
Across the world, people who work as system administrators keep computer networks in order – and this has turned them into unwitting targets of the National Security Agency for simply doing their jobs. According to a secret document provided by NSA whistleblower Edward Snowden, the agency tracks down the private email and Facebook accounts of system administrators (or sys admins, as they are often called), before hacking their computers to gain access to the networks they control.
The document consists of several posts – one of them is titled “I hunt sys admins” – that were published in 2012 on an internal discussion board hosted on the agency’s classified servers. They were written by an NSA official involved in the agency’s effort to break into foreign network routers, the devices that connect computer networks and transport data across the Internet. By infiltrating the computers of system administrators who work for foreign phone and Internet companies, the NSA can gain access to the calls and emails that flow over their networks.
The classified posts reveal how the NSA official aspired to create a database that would function as an international hit list of sys admins to potentially target. Yet the document makes clear that the admins are not suspected of any criminal activity – they are targeted only because they control access to networks the agency wants to infiltrate. “Who better to target than the person that already has the ‘keys to the kingdom’?” one of the posts says.
The NSA wants more than just passwords. The document includes a list of other data that can be harvested from computers belonging to sys admins, including network maps, customer lists, business correspondence and, the author jokes, “pictures of cats in funny poses with amusing captions.” The posts, boastful and casual in tone, contain hacker jargon (pwn, skillz, zomg, internetz) and are punctuated with expressions of mischief. “Current mood: devious,” reads one, while another signs off, “Current mood: scheming.”
The author of the posts, whose name is being withheld by The Intercept, is a network specialist in the agency’s Signals Intelligence Directorate, according to other NSA documents. The same author wrote secret presentations related to the NSA’s controversial program to identify users of the Tor browser – a privacy-enhancing tool that allows people to browse the Internet anonymously. The network specialist, who served as a private contractor prior to joining the NSA, shows little respect for hackers who do not work for the government. One post expresses disdain for the quality of presentations at Blackhat and Defcon, the computer world’s premier security and hacker conferences:
When I first went to Blackhat/Defcon, it was with the wide-eyed anticipation of, ‘I’m going to go listen to all of the talks that I can, soak up all of the information possible, and become a supar-1337-haxxor.’ What a let-down of an experience that was. You find the most interesting topics and briefings, wait in lines to get a seat, and find yourself straining your ears to listen to someone that has basically nothing new to say. Most of the talks get hyped up exponentially past any amount of substance they actually provide, most of the ‘interactive sessions’ end up in a ‘oh! woe is the state of the security industry!’ chant, and leave the audience no better off than before.
It is unclear how precise the NSA’s hacking attacks are or how the agency ensures that it excludes Americans from the intrusions. The author explains in one post that the NSA scours the Internet to find people it deems “probable” administrators, suggesting a lack of certainty in the process and implying that the wrong person could be targeted. It is illegal for the NSA to deliberately target Americans for surveillance without explicit prior authorization. But the employee’s posts make no mention of any measures that might be taken to prevent hacking the computers of Americans who work as sys admins for foreign networks. Without such measures, Americans who work on such networks could potentially fall victim to an NSA infiltration attempt.
The NSA declined to answer questions about its efforts to hack system administrators or explain how it ensures Americans are not mistakenly targeted. Agency spokeswoman Vanee’ Vines said in an email statement: “A key part of the protections that apply to both U.S. persons and citizens of other countries is the mandate that information be in support of a valid foreign intelligence requirement, and comply with U.S. Attorney General-approved procedures to protect privacy rights.”
As The Intercept revealed last week, clandestine hacking has become central to the NSA’s mission in the past decade. The agency is working to aggressively scale its ability to break into computers to perform what it calls “computer network exploitation,” or CNE: the collection of intelligence from covertly infiltrated computer systems. Hacking into the computers of sys admins is particularly controversial because unlike conventional targets – people who are regarded as threats – sys admins are not suspected of any wrongdoing.
In a post calling sys admins “a means to an end,” the NSA employee writes, “Up front, sys admins generally are not my end target. My end target is the extremist/terrorist or government official that happens to be using the network some admin takes care of.”
The first step, according to the posts, is to collect IP addresses that are believed to be linked to a network’s sys admin. An IP address is a series of numbers allocated to every computer that connects to the Internet. Using this identifier, the NSA can then run an IP address through the vast amount of signals intelligence data, or SIGINT, that it collects every day, trying to match the IP address to personal accounts.
“What we’d really like is a personal webmail or Facebook account to target,” one of the posts explains, presumably because, whereas IP addresses can be shared by multiple people, “alternative selectors” like a webmail or Facebook account can be linked to a particular target. You can “dumpster-dive for alternate selectors in the big SIGINT trash can” the author suggests. Or “pull out your wicked Google-fu” (slang for efficient Googling) to search for any “official and non-official e-mails” that the targets may have posted online.
Once the agency believes it has identified a sys admin’s personal accounts, according to the posts, it can target them with its so-called QUANTUM hacking techniques. The Snowden files reveal that the QUANTUM methods have been used to secretly inject surveillance malware into a Facebook page by sending malicious NSA data packets that appear to originate from a genuine Facebook server. This method tricks a target’s computer into accepting the malicious packets, allowing the NSA to infect the targeted computer with a malware “implant” and gain unfettered access to the data stored on its hard drive.
“Just pull those selectors, queue them up for QUANTUM, and proceed with the pwnage,” the author of the posts writes. (“Pwnage,” short for “pure ownage,” is gamer-speak for defeating opponents.) The author adds, triumphantly, “Yay! /throws confetti in the air.”
In one case, these tactics were used by the NSA’s British counterpart, Government Communications Headquarters, or GCHQ, to infiltrate the Belgian telecommunications company Belgacom. As Der Speigel revealed last year, Belgacom’s network engineers were targeted by GCHQ in a QUANTUM mission named “Operation Socialist” – with the British agency hacking into the company’s systems in an effort to monitor smartphones.
While targeting innocent sys admins may be surprising on its own, the “hunt sys admins” document reveals how the NSA network specialist secretly discussed building a “master list” of sys admins across the world, which would enable an attack to be initiated on one of them the moment their network was thought to be used by a person of interest. One post outlines how this process would make it easier for the NSA’s specialist hacking unit, Tailored Access Operations (TAO), to infiltrate networks and begin collecting, or “tasking,” data:
So, by combining all of that information, you end up with a list of public IP addresses that probably belong to sys admins as well as personal accounts that probably belong to those admins. All you have to do is put all this info in a database somewhere, and what you end up with is a list of networks as well as personal accounts of probable admins for those networks! Then, as soon as one of those networks becomes a target, all TAO has to do is query the database, see if we have any admins pre-identified for that network, and if we do, automatically queue up tasking and go-go- CNE!
Aside from offering up thoughts on covert hacking tactics, the author of these posts also provides a glimpse into internal employee complaints at the NSA. The posts describe how the agency’s spies gripe about having “dismal infrastructure” and a “Big Data Problem” because of the massive volume of information being collected by NSA surveillance systems. For the author, however, the vast data troves are actually something to be enthusiastic about.
“Our ability to pull bits out of random places of the Internet, bring them back to the mother-base to evaluate and build intelligence off of is just plain awesome!” the author writes. “One of the coolest things about it is how much data we have at our fingertips.”
Micah Lee contributed to this report.
What if the National Security Agency had its own advice columnist? What would the eavesdroppers ask about?
You don’t need to guess. An NSA official, writing under the pen name “Zelda,” has actually served at the agency as a Dear Abby for spies. Her “Ask Zelda!” columns, distributed on the agency’s intranet and accessible only to those with the proper security clearance, are among the documents leaked by NSA whistleblower Edward Snowden. The columns are often amusing – topics include co-workers falling asleep on the job, sodas being stolen from shared fridges, supervisors not responding to emails, and office-mates who smell bad. But one of the most intriguing involves a letter from an NSA staffer who complains that his (or her) boss is spying on employees.
In the letter, which Zelda published in a column on September 9, 2011, the employee calls himself “Silenced in SID” – referring to the Signals Intelligence Directorate, the heart of the NSA’s surveillance operations. Zelda’s column, headlined “Watching Every Word in Snitch City,” offers an ironic insight into a spy agency where the spies apparently resent being spied upon.
“Dear Zelda,” the letter of complaint begins:
Here’s the scenario: when the boss sees co-workers having a quiet conversation, he wants to know what is being said (it’s mostly work related). He has his designated “snitches” and expects them to keep him apprised of all the office gossip – even calling them at home and expecting a run-down! This puts the “designees” in a really awkward position; plus, we’re all afraid any offhand comment or anything said in confidence might be either repeated or misrepresented.
Needless to say, this creates a certain amount of tension between team members who normally would get along well, and adds stress in an already stressful atmosphere. There is also an unspoken belief that he will move people to different desks to break up what he perceives as people becoming too “chummy.” (It’s been done under the guise of “creating teams.”)
Surveillance tends to sow suspicion and unease among the people who are being surveilled. Is anyone listening? Who might be the spy among us? What trouble might I get into with the things I say? These questions can eat away at the core of human relations – trust. And this is true even at the agency that is conducting the surveillance.
The letter continues:
We used to be able to joke around a little or talk about our favorite “Idol” contestant to break the tension, but now we’re getting more and more skittish about even the most mundane general conversations (“Did you have a good weekend?”). This was once a very open, cooperative group who worked well together. Now we’re more suspicious of each other and teamwork is becoming harder. Do you think this was the goal?
Silenced in SID
Zelda is shocked.
Wow, that takes “intelligence collection” in a whole new – and inappropriate – direction. …. We work in an Agency of secrets, but this kind of secrecy begets more secrecy and it becomes a downward spiral that destroys teamwork. What if you put an end to all the secrecy by bringing it out in the open?
Her column reads like an unintended allegory – or a cleverly masked one. The NSA’s own advice columnist explores the ways in which pervasive surveillance can erode freedom of expression and social cohesion by making it difficult for people to have faith in the privacy of their communications.
You and your co-workers could ask [the supervisor] for a team meeting and lay out the issue as you see it: “We feel like you don’t trust us and we aren’t comfortable making small talk anymore for fear of having our desks moved if we’re seen as being too chummy.” (Leave out the part about the snitches.) Tell him how this is hampering collaboration and affecting the work, ask him if he has a problem with the team’s behavior, and see what he says. …. Stick to the facts and how you feel, rather than making it about him (“We’re uncomfortable” vs “You’re spying on us.”).
There is no indication that Zelda is trying to make a larger point, but some of what she goes on to propose would be useful for ordinary citizens outside the agency who worry about government and corporate surveillance.
If you are bothered by snitches in your office, whether of the unwilling or voluntary variety, the best solution is to keep your behavior above reproach. Be a good performer, watch what you say and do, lock your screen when you step away from your workstation, and keep fodder for wagging tongues (your Viagra stash, photos of your wild-and-crazy girls’ weekend in Atlantic City) at home or out of sight. If you are put in the “unwilling snitch” position, I would advise telling your boss that you’re not comfortable with the role and to please not ask that of you.
Who is Zelda? And who is “Silenced in SID”? The document provides no information about the identity of the letter’s author; he or she could be almost anybody at the agency. In a previous column, Zelda explains that Ask Zelda! was initially intended as a forum for supervisors in the Signals Intelligence Directorate, but that non-supervisory workers began submitting questions, too.
A bit more is known about Zelda. Her introductory column, in 2010, identifies her as serving for approximately 20 years as “a first-line and mid-level Agency supervisor.” At the time her column began, she was also an adjunct faculty member of the agency’s National Cryptologic School. Her column was part of a regular NSA bulletin called “SIDtoday” that is distributed on the agency’s classified NSAnet. According to traffic statistics, in fact, Ask Zelda! quickly proved to be among the bulletin’s most popular features.
“We usually end the calendar year by providing a suspenseful countdown of the top dozen most widely read SIDtoday articles of the year,” noted a SIDtoday bulletin on December 27, 2011, “but this time around it is not really a nail-biter, because Zelda articles occupied all of the top five slots!” Her most popular article that year, about swearing at the NSA, received 19,446 hits.
“Since SIDtoday is like an online newspaper, we decided to follow the tradition of newspaper write-in advice columnists (such as Dear Abby and Miss Manners) and give me a nom de plume,” Zelda writes in advance of the first anniversary of her column. “I like it because using a pen name creates a persona who’s more memorable and accessible than ‘Ask Mary Smith, Chief of S456.’ Plus it creates a certain mystique about Zelda… she’s bigger than life. It also prevents me from getting inundated with hate mail and requests for advice outside of the column.”
Zelda can be a church lady. Her first column addressed employee attire in summer months, and she was not pleased. “Somehow, shorts and flip-flops don’t exactly convey the image of a fierce SIGINT warrior,” she writes. “Not only is beach attire unprofessional in the workplace, but in certain cases it can be downright distracting to co-workers (if you get my drift).” She recommends that offenders, who might be just out of college and not know any better, should be told to dress “in a professional manner” even when it feels like a swamp outside. This column received 9,186 hits by the end of 2010 – placing it number four on the list of most-read SIDtoday articles for the year.
But on privacy, Zelda is surprisingly liberal, given that the agency where she works spies on vast numbers of private phone calls, emails, texts, chats, status updates, webcams and address books. In a column titled, “Guilty Until Proven Innocent?”, Zelda responds to an NSA worker who goes by the pen name “Innocent Bystander” and who explains that a colleague has filed an anonymous complaint about their bosses, calling them “abysmal” and “idiotic.” Unfortunately, everyone believes that Innocent Bystander has written the complaint, and as a result, “The chill I’m feeling is pretty severe!” Anonymous complaints should be discouraged, Innocent Bystander says, so that innocent parties do not come under suspicion.
“You make a good case against anonymous mailbags,” Zelda replies, “but a lot of people won’t give feedback at all if they know it will be attributed to them. I believe scathing comments such as your co-worker’s are the exception and not the rule.”
Her response to “Silenced in SID” does not acknowledge the irony – or hypocrisy – of an employee at a spy agency complaining about being spied on. But Zelda directly addresses the long-lasting effects of inappropriate surveillance. “Trust is hard to rebuild once it has been broken,” she observes. “Your work center may take time to heal after this deplorable practice is discontinued.”
This past January, Laura Poitras received a curious e-mail from an anonymous stranger requesting her public encryption key. For almost two years, Poitras had been working on a documentary about surveillance, and she occasionally received queries from strangers. She replied to this one and sent her public key — allowing him or her to send an encrypted e-mail that only Poitras could open, with her private key — but she didn’t think much would come of it.
The stranger responded with instructions for creating an even more secure system to protect their exchanges. Promising sensitive information, the stranger told Poitras to select long pass phrases that could withstand a brute-force attack by networked computers. “Assume that your adversary is capable of a trillion guesses per second,” the stranger wrote.
Before long, Poitras received an encrypted message that outlined a number of secret surveillance programs run by the government. She had heard of one of them but not the others. After describing each program, the stranger wrote some version of the phrase, “This I can prove.”
Seconds after she decrypted and read the e-mail, Poitras disconnected from the Internet and removed the message from her computer. “I thought, O.K., if this is true, my life just changed,” she told me last month. “It was staggering, what he claimed to know and be able to provide. I just knew that I had to change everything.”
Poitras remained wary of whoever it was she was communicating with. She worried especially that a government agent might be trying to trick her into disclosing information about the people she interviewed for her documentary, including Julian Assange, the editor of WikiLeaks. “I called him out,” Poitras recalled. “I said either you have this information and you are taking huge risks or you are trying to entrap me and the people I know, or you’re crazy.”
The answers were reassuring but not definitive. Poitras did not know the stranger’s name, sex, age or employer (C.I.A.? N.S.A.? Pentagon?). In early June, she finally got the answers. Along with her reporting partner, Glenn Greenwald, a former lawyer and a columnist for The Guardian, Poitras flew to Hong Kong and met the N.S.A. contractor Edward J. Snowden, who gave them thousands of classified documents, setting off a major controversy over the extent and legality of government surveillance. Poitras was right that, among other things, her life would never be the same.
Greenwald lives and works in a house surrounded by tropical foliage in a remote area of Rio de Janeiro. He shares the home with his Brazilian partner and their 10 dogs and one cat, and the place has the feel of a low-key fraternity that has been dropped down in the jungle. The kitchen clock is off by hours, but no one notices; dishes tend to pile up in the sink; the living room contains a table and a couch and a large TV, an Xbox console and a box of poker chips and not much else. The refrigerator is not always filled with fresh vegetables. A family of monkeys occasionally raids the banana trees in the backyard and engages in shrieking battles with the dogs.
Greenwald does most of his work on a shaded porch, usually dressed in a T-shirt, surfer shorts and flip-flops. Over the four days I spent there, he was in perpetual motion, speaking on the phone in Portuguese and English, rushing out the door to be interviewed in the city below, answering calls and e-mails from people seeking information about Snowden, tweeting to his 225,000 followers (and conducting intense arguments with a number of them), then sitting down to write more N.S.A. articles for The Guardian, all while pleading with his dogs to stay quiet. During one especially fever-pitched moment, he hollered, “Shut up, everyone,” but they didn’t seem to care.
Amid the chaos, Poitras, an intense-looking woman of 49, sat in a spare bedroom or at the table in the living room, working in concentrated silence in front of her multiple computers. Once in a while she would walk over to the porch to talk with Greenwald about the article he was working on, or he would sometimes stop what he was doing to look at the latest version of a new video she was editing about Snowden. They would talk intensely — Greenwald far louder and more rapid-fire than Poitras — and occasionally break out laughing at some shared joke or absurd memory. The Snowden story, they both said, was a battle they were waging together, a fight against powers of surveillance that they both believe are a threat to fundamental American liberties.
Two reporters for The Guardian were in town to assist Greenwald, so some of our time was spent in the hotel where they were staying along Copacabana Beach, the toned Brazilians playing volleyball in the sand below lending the whole thing an added layer of surreality. Poitras has shared the byline on some of Greenwald’s articles, but for the most part she has preferred to stay in the background, letting him do the writing and talking. As a result, Greenwald is the one hailed as either a fearless defender of individual rights or a nefarious traitor, depending on your perspective. “I keep calling her the Keyser Soze of the story, because she’s at once completely invisible and yet ubiquitous,” Greenwald said, referring to the character in “The Usual Suspects” played by Kevin Spacey, a mastermind masquerading as a nobody. “She’s been at the center of all of this, and yet no one knows anything about her.”
As dusk fell one evening, I followed Poitras and Greenwald to the newsroom of O Globo, one of the largest newspapers in Brazil. Greenwald had just published an article there detailing how the N.S.A. was spying on Brazilian phone calls and e-mails. The article caused a huge scandal in Brazil, as similar articles have done in other countries around the world, and Greenwald was a celebrity in the newsroom. The editor in chief pumped his hand and asked him to write a regular column; reporters took souvenir pictures with their cellphones. Poitras filmed some of this, then put her camera down and looked on. I noted that nobody was paying attention to her, that all eyes were on Greenwald, and she smiled. “That’s right,” she said. “That’s perfect.”
Poitras seems to work at blending in, a function more of strategy than of shyness. She can actually be remarkably forceful when it comes to managing information. During a conversation in which I began to ask her a few questions about her personal life, she remarked, “This is like visiting the dentist.” The thumbnail portrait is this: She was raised in a well-off family outside Boston, and after high school, she moved to San Francisco to work as a chef in upscale restaurants. She also took classes at the San Francisco Art Institute, where she studied under the experimental filmmaker Ernie Gehr. In 1992, she moved to New York and began to make her way in the film world, while also enrolling in graduate classes in social and political theory at the New School. Since then she has made five films, most recently “The Oath,” about the Guantánamo prisoner Salim Hamdan and his brother-in-law back in Yemen, and has been the recipient of a Peabody Award and a MacArthur award.
On Sept. 11, 2001, Poitras was on the Upper West Side of Manhattan when the towers were attacked. Like most New Yorkers, in the weeks that followed she was swept up in both mourning and a feeling of unity. It was a moment, she said, when “people could have done anything, in a positive sense.” When that moment led to the pre-emptive invasion of Iraq, she felt that her country had lost its way. “We always wonder how countries can veer off course,” she said. “How do people let it happen, how do people sit by during this slipping of boundaries?” Poitras had no experience in conflict zones, but in June 2004, she went to Iraq and began documenting the occupation.
Shortly after arriving in Baghdad, she received permission to go to Abu Ghraib prison to film a visit by members of Baghdad’s City Council. This was just a few months after photos were published of American soldiers abusing prisoners there. A prominent Sunni doctor was part of the visiting delegation, and Poitras shot a remarkable scene of his interaction with prisoners there, shouting that they were locked up for no good reason.
The doctor, Riyadh al-Adhadh, invited Poitras to his clinic and later allowed her to report on his life in Baghdad. Her documentary, “My Country, My Country,” is centered on his family’s travails — the shootings and blackouts in their neighborhood, the kidnapping of a nephew. The film premiered in early 2006 and received widespread acclaim, including an Oscar nomination for best documentary.
Attempting to tell the story of the war’s effect on Iraqi citizens made Poitras the target of serious — and apparently false — accusations. On Nov. 19, 2004, Iraqi troops, supported by American forces, raided a mosque in the doctor’s neighborhood of Adhamiya, killing several people inside. The next day, the neighborhood erupted in violence. Poitras was with the doctor’s family, and occasionally they would go to the roof of the home to get a sense of what was going on. On one of those rooftop visits, she was seen by soldiers from an Oregon National Guard battalion. Shortly after, a group of insurgents launched an attack that killed one of the Americans. Some soldiers speculated that Poitras was on the roof because she had advance notice of the attack and wanted to film it. Their battalion commander, Lt. Col. Daniel Hendrickson, retired, told me last month that he filed a report about her to brigade headquarters.
There is no evidence to support this claim. Fighting occurred throughout the neighborhood that day, so it would have been difficult for any journalist to not be near the site of an attack. The soldiers who made the allegation told me that they have no evidence to prove it. Hendrickson told me his brigade headquarters never got back to him.
For several months after the attack in Adhamiya, Poitras continued to live in the Green Zone and work as an embedded journalist with the U.S. military. She has screened her film to a number of military audiences, including at the U.S. Army War College. An officer who interacted with Poitras in Baghdad, Maj. Tom Mowle, retired, said Poitras was always filming and it “completely makes sense” she would film on a violent day. “I think it’s a pretty ridiculous allegation,” he said.
Although the allegations were without evidence, they may be related to Poitras’s many detentions and searches. Hendrickson and another soldier told me that in 2007 — months after she was first detained — investigators from the Department of Justice’s Joint Terrorism Task Force interviewed them, inquiring about Poitras’s activities in Baghdad that day. Poitras was never contacted by those or any other investigators, however. “Iraq forces and the U.S. military raided a mosque during Friday prayers and killed several people,” Poitras said. “Violence broke out the next day. I am a documentary filmmaker and was filming in the neighborhood. Any suggestion I knew about an attack is false. The U.S. government should investigate who ordered the raid, not journalists covering the war.”
In June 2006, her tickets on domestic flights were marked “SSSS” — Secondary Security Screening Selection — which means the bearer faces extra scrutiny beyond the usual measures. She was detained for the first time at Newark International Airport before boarding a flight to Israel, where she was showing her film. On her return flight, she was held for two hours before being allowed to re-enter the country. The next month, she traveled to Bosnia to show the film at a festival there. When she flew out of Sarajevo and landed in Vienna, she was paged on the airport loudspeaker and told to go to a security desk; from there she was led to a van and driven to another part of the airport, then taken into a room where luggage was examined.
“They took my bags and checked them,” Poitras said. “They asked me what I was doing, and I said I was showing a movie in Sarajevo about the Iraq war. And then I sort of befriended the security guy. I asked what was going on. He said: ‘You’re flagged. You have a threat score that is off the Richter scale. You are at 400 out of 400.’ I said, ‘Is this a scoring system that works throughout all of Europe, or is this an American scoring system?’ He said. ‘No, this is your government that has this and has told us to stop you.’ ”
After 9/11, the U.S. government began compiling a terrorist watch list that was at one point estimated to contain nearly a million names. There are at least two subsidiary lists that relate to air travel. The no-fly list contains the names of tens of thousands of people who are not allowed to fly into or out of the country. The selectee list, which is larger than the no-fly list, subjects people to extra airport inspections and questioning. These lists have been criticized by civil rights groups for being too broad and arbitrary and for violating the rights of Americans who are on them.
In Vienna, Poitras was eventually cleared to board her connecting flight to New York, but when she landed at J.F.K., she was met at the gate by two armed law-enforcement agents and taken to a room for questioning. It is a routine that has happened so many times since then — on more than 40 occasions — that she has lost precise count. Initially, she said, the authorities were interested in the paper she carried, copying her receipts and, once, her notebook. After she stopped carrying her notes, they focused on her electronics instead, telling her that if she didn’t answer their questions, they would confiscate her gear and get their answers that way. On one occasion, Poitras says, they did seize her computers and cellphones and kept them for weeks. She was also told that her refusal to answer questions was itself a suspicious act. Because the interrogations took place at international boarding crossings, where the government contends that ordinary constitutional rights do not apply, she was not permitted to have a lawyer present.
“It’s a total violation,” Poitras said. “That’s how it feels. They are interested in information that pertains to the work I am doing that’s clearly private and privileged. It’s an intimidating situation when people with guns meet you when you get off an airplane.”
Though she has written to members of Congress and has submitted Freedom of Information Act requests, Poitras has never received any explanation for why she was put on a watch list. “It’s infuriating that I have to speculate why,” she said. “When did that universe begin, that people are put on a list and are never told and are stopped for six years? I have no idea why they did it. It’s the complete suspension of due process.” She added: “I’ve been told nothing, I’ve been asked nothing, and I’ve done nothing. It’s like Kafka. Nobody ever tells you what the accusation is.”
After being detained repeatedly, Poitras began taking steps to protect her data, asking a traveling companion to carry her laptop, leaving her notebooks overseas with friends or in safe deposit boxes. She would wipe her computers and cellphones clean so that there would be nothing for the authorities to see. Or she encrypted her data, so that law enforcement could not read any files they might get hold of. These security preparations could take a day or more before her travels.
It wasn’t just border searches that she had to worry about. Poitras said she felt that if the government was suspicious enough to interrogate her at airports, it was also most likely surveilling her e-mail, phone calls and Web browsing. “I assume that there are National Security Letters on my e-mails,” she told me, referring to one of the secretive surveillance tools used by the Department of Justice. A National Security Letter requires its recipients — in most cases, Internet service providers and phone companies — to provide customer data without notifying the customers or any other parties. Poitras suspected (but could not confirm, because her phone company and I.S.P. would be prohibited from telling her) that the F.B.I. had issued National Security Letters for her electronic communications.
Once she began working on her surveillance film in 2011, she raised her digital security to an even higher level. She cut down her use of a cellphone, which betrays not only who you are calling and when, but your location at any given point in time. She was careful about e-mailing sensitive documents or having sensitive conversations on the phone. She began using software that masked the Web sites she visited. After she was contacted by Snowden in 2013, she tightened her security yet another notch. In addition to encrypting any sensitive e-mails, she began using different computers for editing film, for communicating and for reading sensitive documents (the one for sensitive documents is air-gapped, meaning it has never been connected to the Internet).
These precautions might seem paranoid — Poitras describes them as “pretty extreme” — but the people she has interviewed for her film were targets of the sort of surveillance and seizure that she fears. William Binney, a former top N.S.A. official who publicly accused the agency of illegal surveillance, was at home one morning in 2007 when F.B.I. agents burst in and aimed their weapons at his wife, his son and himself. Binney was, at the moment the agent entered his bathroom and pointed a gun at his head, naked in the shower. His computers, disks and personal records were confiscated and have not yet been returned. Binney has not been charged with any crime.
Jacob Appelbaum, a privacy activist who was a volunteer with WikiLeaks, has also been filmed by Poitras. The government issued a secret order to Twitter for access to Appelbaum’s account data, which became public when Twitter fought the order. Though the company was forced to hand over the data, it was allowed to tell Appelbaum. Google and a small I.S.P. that Appelbaum used were also served with secret orders and fought to alert him. Like Binney, Appelbaum has not been charged with any crime.
Poitras endured the airport searches for years with little public complaint, lest her protests generate more suspicion and hostility from the government, but last year she reached a breaking point. While being interrogated at Newark after a flight from Britain, she was told she could not take notes. On the advice of lawyers, Poitras always recorded the names of border agents and the questions they asked and the material they copied or seized. But at Newark, an agent threatened to handcuff her if she continued writing. She was told that she was being barred from writing anything down because she might use her pen as a weapon.
“Then I asked for crayons,” Poitras recalled, “and he said no to crayons.”
She was taken into another room and interrogated by three agents — one was behind her, another asked the questions, the third was a supervisor. “It went on for maybe an hour and a half,” she said. “I was taking notes of their questions, or trying to, and they yelled at me. I said, ‘Show me the law where it says I can’t take notes.’ We were in a sense debating what they were trying to forbid me from doing. They said, ‘We are the ones asking the questions.’ It was a pretty aggressive, antagonistic encounter.”
Poitras met Greenwald in 2010, when she became interested in his work on WikiLeaks. In 2011, she went to Rio to film him for her documentary. He was aware of the searches and asked several times for permission to write about them. After Newark, she gave him a green light.
“She said, ‘I’ve had it,’ ” Greenwald told me. “Her ability to take notes and document what was happening was her one sense of agency, to maintain some degree of control. Documenting is what she does. I think she was feeling that the one vestige of security and control in this situation had been taken away from her, without any explanation, just as an arbitrary exercise of power.”
At the time, Greenwald was a writer for Salon. His article, “U.S. Filmmaker Repeatedly Detained at Border,” was published in April 2012. Shortly after it was posted, the detentions ceased. Six years of surveillance and harassment, Poitras hoped, might be coming to an end.
Poitras was not Snowden’s first choice as the person to whom he wanted to leak thousands of N.S.A. documents. In fact, a month before contacting her, he reached out to Greenwald, who had written extensively and critically about the wars in Iraq and Afghanistan and the erosion of civil liberties in the wake of 9/11. Snowden anonymously sent him an e-mail saying he had documents he wanted to share, and followed that up with a step-by-step guide on how to encrypt communications, which Greenwald ignored. Snowden then sent a link to an encryption video, also to no avail.
“It’s really annoying and complicated, the encryption software,” Greenwald said as we sat on his porch during a tropical drizzle. “He kept harassing me, but at some point he just got frustrated, so he went to Laura.”
Snowden had read Greenwald’s article about Poitras’s troubles at U.S. airports and knew she was making a film about the government’s surveillance programs; he had also seen a short documentary about the N.S.A. that she made for The New York Times Op-Docs. He figured that she would understand the programs he wanted to leak about and would know how to communicate in a secure way.
By late winter, Poitras decided that the stranger with whom she was communicating was credible. There were none of the provocations that she would expect from a government agent — no requests for information about the people she was in touch with, no questions about what she was working on. Snowden told her early on that she would need to work with someone else, and that she should reach out to Greenwald. She was unaware that Snowden had already tried to contact Greenwald, and Greenwald would not realize until he met Snowden in Hong Kong that this was the person who had contacted him more than six months earlier.
There were surprises for everyone in these exchanges — including Snowden, who answered questions that I submitted to him through Poitras. In response to a question about when he realized he could trust Poitras, he wrote: “We came to a point in the verification and vetting process where I discovered Laura was more suspicious of me than I was of her, and I’m famously paranoid.” When I asked him about Greenwald’s initial silence in response to his requests and instructions for encrypted communications, Snowden replied: “I know journalists are busy and had assumed being taken seriously would be a challenge, especially given the paucity of detail I could initially offer. At the same time, this is 2013, and [he is] a journalist who regularly reported on the concentration and excess of state power. I was surprised to realize that there were people in news organizations who didn’t recognize any unencrypted message sent over the Internet is being delivered to every intelligence service in the world.”
In April, Poitras e-mailed Greenwald to say they needed to speak face to face. Greenwald happened to be in the United States, speaking at a conference in a suburb of New York City, and the two met in the lobby of his hotel. “She was very cautious,” Greenwald recalled. “She insisted that I not take my cellphone, because of this ability the government has to remotely listen to cellphones even when they are turned off. She had printed off the e-mails, and I remember reading the e-mails and felt intuitively that this was real. The passion and thought behind what Snowden — who we didn’t know was Snowden at the time — was saying was palpable.”
Greenwald installed encryption software and began communicating with the stranger. Their work was organized like an intelligence operation, with Poitras as the mastermind. “Operational security — she dictated all of that,” Greenwald said. “Which computers I used, how I communicated, how I safeguarded the information, where copies were kept, with whom they were kept, in which places. She has this complete expert level of understanding of how to do a story like this with total technical and operational safety. None of this would have happened with anything near the efficacy and impact it did, had she not been working with me in every sense and really taking the lead in coordinating most of it.”
Snowden began to provide documents to the two of them. Poitras wouldn’t tell me when he began sending her documents; she does not want to provide the government with information that could be used in a trial against Snowden or herself. He also said he would soon be ready to meet them. When Poitras asked if she should plan on driving to their meeting or taking a train, Snowden told her to be ready to get on a plane.
In May, he sent encrypted messages telling the two of them to go to Hong Kong. Greenwald flew to New York from Rio, and Poitras joined him for meetings with the editor of The Guardian’s American edition. With the paper’s reputation on the line, the editor asked them to bring along a veteran Guardian reporter, Ewen MacAskill, and on June 1, the trio boarded a 16-hour flight from J.F.K. to Hong Kong.
Snowden had sent a small number of documents to Greenwald, about 20 in all, but Poitras had received a larger trove, which she hadn’t yet had the opportunity to read closely. On the plane, Greenwald began going through its contents, eventually coming across a secret court order requiring Verizon to give its customer phone records to the N.S.A. The four-page order was from the Foreign Intelligence Surveillance Court, a panel whose decisions are highly classified. Although it was rumored that the N.S.A. was collecting large numbers of American phone records, the government always denied it.
Poitras, sitting 20 rows behind Greenwald, occasionally went forward to talk about what he was reading. As the man sitting next to him slept, Greenwald pointed to the FISA order on his screen and asked Poitras: “Have you seen this? Is this saying what I’m thinking it’s saying?”
At times, they talked so animatedly that they disturbed passengers who were trying to sleep; they quieted down. “We couldn’t believe just how momentous this occasion was,” Greenwald said. “When you read these documents, you get a sense of the breadth of them. It was a rush of adrenaline and ecstasy and elation. You feel you are empowered for the first time because there’s this mammoth system that you try and undermine and subvert and shine a light on — but you usually can’t make any headway, because you don’t have any instruments to do it — [and now] the instruments were suddenly in our lap.”
Snowden had instructed them that once they were in Hong Kong, they were to go at an appointed time to the Kowloon district and stand outside a restaurant that was in a mall connected to the Mira Hotel. There, they were to wait until they saw a man carrying a Rubik’s Cube, then ask him when the restaurant would open. The man would answer their question, but then warn that the food was bad. When the man with the Rubik’s Cube arrived, it was Edward Snowden, who was 29 at the time but looked even younger.
“Both of us almost fell over when we saw how young he was,” Poitras said, still sounding surprised. “I had no idea. I assumed I was dealing with somebody who was really high-level and therefore older. But I also knew from our back and forth that he was incredibly knowledgeable about computer systems, which put him younger in my mind. So I was thinking like 40s, somebody who really grew up on computers but who had to be at a higher level.”
In our encrypted chat, Snowden also remarked on this moment: “I think they were annoyed that I was younger than they expected, and I was annoyed that they had arrived too early, which complicated the initial verification. As soon as we were behind closed doors, however, I think everyone was reassured by the obsessive attention to precaution and bona fides.”
They followed Snowden to his room, where Poitras immediately shifted into documentarian mode, taking her camera out. “It was a little bit tense, a little uncomfortable,” Greenwald said of those initial minutes. “We sat down, and we just started chatting, and Laura was immediately unpacking her camera. The instant that she turned on the camera, I very vividly recall that both he and I completely stiffened up.”
Greenwald began the questioning. “I wanted to test the consistency of his claims, and I just wanted all the information I could get, given how much I knew this was going to be affecting my credibility and everything else. We weren’t really able to establish a human bond until after that five or six hours was over.”
For Poitras, the camera certainly alters the human dynamic, but not in a bad way. When someone consents to being filmed — even if the consent is indirectly gained when she turns on the camera — this is an act of trust that raises the emotional stakes of the moment. What Greenwald saw as stilted, Poitras saw as a kind of bonding, the sharing of an immense risk. “There is something really palpable and emotional in being trusted like that,” she said.
Snowden, though taken by surprise, got used to it. “As one might imagine, normally spies allergically avoid contact with reporters or media, so I was a virgin source — everything was a surprise. . . . But we all knew what was at stake. The weight of the situation actually made it easier to focus on what was in the public interest rather than our own. I think we all knew there was no going back once she turned the camera on.”
For the next week, their preparations followed a similar pattern — when they entered Snowden’s room, they would remove their cellphone batteries and place them in the refrigerator of Snowden’s minibar. They lined pillows against the door, to discourage eavesdropping from outside, then Poitras set up her camera and filmed. It was important to Snowden to explain to them how the government’s intelligence machinery worked because he feared that he could be arrested at any time.
Greenwald’s first articles — including the initial one detailing the Verizon order he read about on the flight to Hong Kong — appeared while they were still in the process of interviewing Snowden. It made for a strange experience, creating the news together, then watching it spread. “We could see it being covered,” Poitras said. “We were all surprised at how much attention it was getting. Our work was very focused, and we were paying attention to that, but we could see on TV that it was taking off. We were in this closed circle, and around us we knew that reverberations were happening, and they could be seen and they could be felt.”
Snowden told them before they arrived in Hong Kong that he wanted to go public. He wanted to take responsibility for what he was doing, Poitras said, and he didn’t want others to be unfairly targeted, and he assumed he would be identified at some point. She made a 12½-minute video of him that was posted online June 9, a few days after Greenwald’s first articles. It triggered a media circus in Hong Kong, as reporters scrambled to learn their whereabouts.
There were a number of subjects that Poitras declined to discuss with me on the record and others she wouldn’t discuss at all — some for security and legal reasons, others because she wants to be the first to tell crucial parts of her story in her own documentary. Of her parting with Snowden once the video was posted, she would only say, “We knew that once it went public, it was the end of that period of working.”
Snowden checked out of his hotel and went into hiding. Reporters found out where Poitras was staying — she and Greenwald were at different hotels — and phone calls started coming to her room. At one point, someone knocked on her door and asked for her by name. She knew by then that reporters had discovered Greenwald, so she called hotel security and arranged to be escorted out a back exit.
She tried to stay in Hong Kong, thinking Snowden might want to see her again, and because she wanted to film the Chinese reaction to his disclosures. But she had now become a figure of interest herself, not just a reporter behind the camera. On June 15, as she was filming a pro-Snowden rally outside the U.S. consulate, a CNN reporter spotted her and began asking questions. Poitras declined to answer and slipped away. That evening, she left Hong Kong.
Poitras flew directly to Berlin, where the previous fall she rented an apartment where she could edit her documentary without worrying that the F.B.I. would show up with a search warrant for her hard drives. “There is a filter constantly between the places where I feel I have privacy and don’t,” she said, “and that line is becoming increasingly narrow.” She added: “I’m not stopping what I’m doing, but I have left the country. I literally didn’t feel like I could protect my material in the United States, and this was before I was contacted by Snowden. If you promise someone you’re going to protect them as a source and you know the government is monitoring you or seizing your laptop, you can’t actually physically do it.”
After two weeks in Berlin, Poitras traveled to Rio, where I then met her and Greenwald a few days later. My first stop was the Copacabana hotel, where they were working that day with MacAskill and another visiting reporter from The Guardian, James Ball. Poitras was putting together a new video about Snowden that would be posted in a few days on The Guardian’s Web site. Greenwald, with several Guardian reporters, was working on yet another blockbuster article, this one about Microsoft’s close collaboration with the N.S.A. The room was crowded — there weren’t enough chairs for everyone, so someone was always sitting on the bed or floor. A number of thumb drives were passed back and forth, though I was not told what was on them.
Poitras and Greenwald were worried about Snowden. They hadn’t heard from him since Hong Kong. At the moment, he was stuck in diplomatic limbo in the transit area of Moscow’s Sheremetyevo airport, the most-wanted man on the planet, sought by the U.S. government for espionage. (He would later be granted temporary asylum in Russia.) The video that Poitras was working on, using footage she shot in Hong Kong, would be the first the world had seen of Snowden in a month.
“Now that he’s incommunicado, we don’t know if we’ll even hear from him again,” she said.
“Is he O.K.?” MacAskill asked.
“His lawyer said he’s O.K.,” Greenwald responded.
“But he’s not in direct contact with Snowden,” Poitras said
When Greenwald got home that evening, Snowden contacted him online. Two days later, while she was working at Greenwald’s house, Poitras also heard from him.
It was dusk, and there was loud cawing and hooting coming from the jungle all around. This was mixed with the yapping of five or six dogs as I let myself in the front gate. Through a window, I saw Poitras in the living room, intently working at one of her computers. I let myself in through a screen door, and she glanced up for just a second, then went back to work, completely unperturbed by the cacophony around her. After 10 minutes, she closed the lid of her computer and mumbled an apology about needing to take care of some things.
She showed no emotion and did not mention that she had been in the middle of an encrypted chat with Snowden. At the time, I didn’t press her, but a few days later, after I returned to New York and she returned to Berlin, I asked if that’s what she was doing that evening. She confirmed it, but said she didn’t want to talk about it at the time, because the more she talks about her interactions with Snowden, the more removed she feels from them.
“It’s an incredible emotional experience,” she said, “to be contacted by a complete stranger saying that he was going to risk his life to expose things the public should know. He was putting his life on the line and trusting me with that burden. My experience and relationship to that is something that I want to retain an emotional relation to.” Her connection to him and the material, she said, is what will guide her work. “I am sympathetic to what he sees as the horror of the world [and] what he imagines could come. I want to communicate that with as much resonance as possible. If I were to sit and do endless cable interviews — all those things alienate me from what I need to stay connected to. It’s not just a scoop. It’s someone’s life.”
Poitras and Greenwald are an especially dramatic example of what outsider reporting looks like in 2013. They do not work in a newsroom, and they personally want to be in control of what gets published and when. When The Guardian didn’t move as quickly as they wanted with the first article on Verizon, Greenwald discussed taking it elsewhere, sending an encrypted draft to a colleague at another publication. He also considered creating a Web site on which they would publish everything, which he planned to call NSADisclosures. In the end, The Guardian moved ahead with their articles. But Poitras and Greenwald have created their own publishing network as well, placing articles with other outlets in Germany and Brazil and planning more for the future. They have not shared the full set of documents with anyone.
“We are in partnership with news organizations, but we feel our primary responsibility is to the risk the source took and to the public interest of the information he has provided,” Poitras said. “Further down on the list would be any particular news organization.”
Unlike many reporters at major news outlets, they do not attempt to maintain a facade of political indifference. Greenwald has been outspoken for years; on Twitter, he recently replied to one critic by writing: “You are a complete idiot. You know that, right?” His left political views, combined with his cutting style, have made him unloved among many in the political establishment. His work with Poitras has been castigated as advocacy that harms national security. “I read intelligence carefully,” said Senator Dianne Feinstein, chairwoman of the Senate Intelligence Committee, shortly after the first Snowden articles appeared. “I know that people are trying to get us. . . . This is the reason the F.B.I. now has 10,000 people doing intelligence on counterterrorism. . . . It’s to ferret this out before it happens. It’s called protecting America.”
Poitras, while not nearly as confrontational as Greenwald, disagrees with the suggestion that their work amounts to advocacy by partisan reporters. “Yes, I have opinions,” she told me. “Do I think the surveillance state is out of control? Yes, I do. This is scary, and people should be scared. A shadow and secret government has grown and grown, all in the name of national security and without the oversight or national debate that one would think a democracy would have. It’s not advocacy. We have documents that substantiate it.”
Poitras possesses a new skill set that is particularly vital — and far from the journalistic norm — in an era of pervasive government spying: she knows, as well as any computer-security expert, how to protect against surveillance. As Snowden mentioned, “In the wake of this year’s disclosure, it should be clear that unencrypted journalist-source communication is unforgivably reckless.” A new generation of sources, like Snowden or Pfc. Bradley Manning, has access to not just a few secrets but thousands of them, because of their ability to scrape classified networks. They do not necessarily live in and operate through the established Washington networks — Snowden was in Hawaii, and Manning sent hundreds of thousands of documents to WikiLeaks from a base in Iraq. And they share their secrets not with the largest media outlets or reporters but with the ones who share their political outlook and have the know-how to receive the leaks undetected.
In our encrypted chat, Snowden explained why he went to Poitras with his secrets: “Laura and Glenn are among the few who reported fearlessly on controversial topics throughout this period, even in the face of withering personal criticism, [which] resulted in Laura specifically becoming targeted by the very programs involved in the recent disclosures. She had demonstrated the courage, personal experience and skill needed to handle what is probably the most dangerous assignment any journalist can be given — reporting on the secret misdeeds of the most powerful government in the world — making her an obvious choice.”
Snowden’s revelations are now the center of Poitras’s surveillance documentary, but Poitras also finds herself in a strange, looking-glass dynamic, because she cannot avoid being a character in her own film. She did not appear in or narrate her previous films, and she says that probably won’t change with this one, but she realizes that she has to be represented in some way, and is struggling with how to do that.
She is also assessing her legal vulnerability. Poitras and Greenwald are not facing any charges, at least not yet. They do not plan to stay away from America forever, but they have no immediate plans to return. One member of Congress has already likened what they’ve done to a form of treason, and they are well aware of the Obama administration’s unprecedented pursuit of not just leakers but of journalists who receive the leaks. While I was with them, they talked about the possibility of returning. Greenwald said that the government would be unwise to arrest them, because of the bad publicity it would create. It also wouldn’t stop the flow of information.
He mentioned this while we were in a taxi heading back to his house. It was dark outside, the end of a long day. Greenwald asked Poitras, “Since it all began, have you had a non-N.S.A. day?”
“What’s that?” she replied.
“I think we need one,” Greenwald said. “Not that we’re going to take one.”
Poitras talked about getting back to yoga again. Greenwald said he was going to resume playing tennis regularly. “I’m willing to get old for this thing,” he said, “but I’m not willing to get fat.”
Their discussion turned to the question of coming back to the United States. Greenwald said, half-jokingly, that if he was arrested, WikiLeaks would become the new traffic cop for publishing N.S.A. documents. “I would just say: ‘O.K., let me introduce you to my friend Julian Assange, who’s going to take my place. Have fun dealing with him.’ ”
Poitras prodded him: “So you’re going back to the States?”
He laughed and pointed out that unfortunately, the government does not always take the smartest course of action. “If they were smart,” he said, “I would do it.”
Poitras smiled, even though it’s a difficult subject for her. She is not as expansive or carefree as Greenwald, which adds to their odd-couple chemistry. She is concerned about their physical safety. She is also, of course, worried about surveillance. “Geolocation is the thing,” she said. “I want to keep as much off the grid as I can. I’m not going to make it easy for them. If they want to follow me, they are going to have to do that. I am not going to ping into any G.P.S. My location matters to me. It matters to me in a new way that I didn’t feel before.”
There are lots of people angry with them and lots of governments, as well as private entities, that would not mind taking possession of the thousands of N.S.A. documents they still control. They have published only a handful — a top-secret, headline-grabbing, Congressional-hearing-inciting handful — and seem unlikely to publish everything, in the style of WikiLeaks. They are holding onto more secrets than they are exposing, at least for now.
“We have this window into this world, and we’re still trying to understand it,” Poitras said in one of our last conversations. “We’re not trying to keep it a secret, but piece the puzzle together. That’s a project that is going to take time. Our intention is to release what’s in the public interest but also to try to get a handle on what this world is, and then try to communicate that.”
The deepest paradox, of course, is that their effort to understand and expose government surveillance may have condemned them to a lifetime of it.
“Our lives will never be the same,” Poitras said. “I don’t know if I’ll ever be able to live someplace and feel like I have my privacy. That might be just completely gone.”
Here’s a recipe for diluting the debate about our surveillance state: start talking about the foibles of the leakers and whistleblowers.
Consider the case of Edward Snowden, who worked as a contractor for the National Security Agency and leaked secret documents revealing that the NSA has a vast surveillance operation that collects phone and e-mail data on Americans as well as foreigners. The NSA dragnet is far more extensive than has been proven before. The documents raise a major question: Is the NSA undermining our democracy and violating our right to privacy? The character question—who is Edward Snowden, hero or traitor?—serves as a distraction from this urgent discussion. The legislators and journalists who focus on Snowden’s background (high school dropout? narcissistic millennial? pole-dancing girlfriend?) are either missing the point or trying to make us miss it.
Enter Alex Gibney’s new documentary, We Steal Secrets: The Story of WikiLeaks, which could not have come at a better moment—it opened in America just as the NSA scandal opened worldwide. The film focuses on two men: Julian Assange, who founded WikiLeaks, and Pfc. Bradley Manning, who leaked hundreds of thousands of government documents to it. Amid a torrent of stories, tweets and video clips about Snowden’s revelations, we need an intellectual frame to understand the morality and legality of our sprawling surveillance state and the secrecy on which it depends. Gibney would seem to be the man for the job. He is the Academy Award–winning director of two of the best political documentaries of recent time: Taxi to the Dark Side, about the torture and murder of Afghans and Iraqis in US custody, and Enron: The Smartest Guys in the Room, about the scandalous collapse of a house-of-cards energy company.
Unfortunately, just as today’s debate is already being diluted by focusing on Snowden’s psychology and motives, We Steal Secrets gets sidetracked by character issues. Although We Steal Secrets criticizes the Obama administration for excessive secrecy and its crackdown on leakers, a fair amount of the film’s fury is directed at Assange, who currently resides in a small room in the Ecuadorean embassy in London, where he is trying to avoid extradition to Sweden to answer sexual assault allegations. The debate that the film has stirred up consists mainly of an exchange of invective between Gibney and Assange, in which Gibney and his allies compare the WikiLeaks creator to a cult leader, while Assange and his allies accuse the director of mounting a smear campaign that benefits the US government. The upshot is that we have gotten neither the film nor the debate we need.
We Steal Secrets includes extensive footage of Assange shot by other filmmakers; Gibney met him for six hours to negotiate an interview, but they could not agree on the terms. What happened in that session is a bombshell. “Julian wanted money,” Gibney says in the film. “He said the market rate for an interview with him was $1 million. When I declined, he offered an alternative: perhaps I would spy in my other interviews and report back to him, but I couldn’t do that either.” WikiLeaks, which of course leaked an extensively annotated transcript of the film, replied that “Julian Assange did not say the market rate for an interview with him was $1 million”; as for the spying charge, the organization claims Assange suggested only that he would be interested in hearing whatever Gibney learned about government investigations against WikiLeaks.
Cue the character debate. Jesselyn Radack, a lawyer at the Government Accountability Project and a prominent supporter of WikiLeaks, has written that Gibney “perpetuates the usual smears that the government levels against whistleblowers and their allies: that they are vengeful, unstable, or out for fame and profit.” On Twitter, Radack attacked Gibney and former NSA director Michael Hayden, one of the film’s talking heads: “Hayden, you little fucker, you’re fooling no one by being Gibney’s transparency bitch….” WikiLeaks—which the film contends has been reduced to just Assange and a handful of followers—has pointedly criticized the film’s exploration of the gender identity crisis of Manning, now on trial in a military court. WikiLeaks stated in its annotated transcript, “This crude gay caricature is a version of a classic attack on whistleblowers, once used on Daniel Ellsberg: to distract from acts of conscience by focusing on sexuality, character, psychology and alleged ‘issues,’ rather than conscience, motive and morality.”
Gibney subsequently went defcon against Assange. In an interview with a journalist who had defended the film and received angry tweets and messages from Assange’s supporters, Gibney remarked: “I guess that is their way of trying to stamp out criticism…. It’s the tactics of Scientology.” The Scientology comparison—which might be a new iteration of Godwin’s Law, in which the first person in a debate who makes a comparison to the Nazis or Hitler is deemed the loser and the debate over—has also been made by one of the film’s executive producers, Jemima Khan, the glamorous British writer and campaigner. Khan was originally a supporter of Assange—to the point of helping to post a £200,000 bail for him in the United Kingdom after Swedish authorities tried to extradite him—but they have since fallen out. In a 2,500-word story published by the New Statesman earlier this year, Khan lamented that the supporters of WikiLeaks exude a “blinkered, cultish devotion” and that Assange might be turning into “an Australian L. Ron Hubbard.”
The Khan piece set off its own morality play within a morality play. It drew attention to the fact that Gibney’s documentary was backed by someone who suffered a financial loss when Assange jumped bail by fleeing to the Ecuadorean embassy, and who now accuses Assange of being the Colonel Kurtz of whistleblowing. Khan’s story prompted a 1,000-word response in the same publication from the writer John Pilger, who had also contributed to Assange’s bail but continues to support him. Pilger’s article sparked a 1,600-word retort from Gibney. And Pilger issued a reply to that. After more than 5,000 words of furious polemics, the fire finally burned out.
Key players in this drama have become Ahabs obsessed with their Moby-Dicks, losing sight of the government secrecy and surveillance that are the central issues to which attention must be paid. WikiLeaks and its embassy-confined leader are no longer the forces they used to be; they are diminished and tarnished, spending their time annotating a film they don’t like. The biggest leaks of the moment, courtesy of Edward Snowden—exposing a secret court order that compelled Verizon to give the phone records of millions of Americans to the NSA, as well as a highly classified program, PRISM, under which the NSA pulls data from major Internet companies like Google, Yahoo and Microsoft—were slipped to journalists writing for The Guardian and The Washington Post. These days, the question of whether Julian Assange is the new L. Ron Hubbard is a minor and distracting one.
* * *
Let’s think about our era. President Obama, a constitutional law professor who vowed to preside over the most transparent government ever, has overseen an unprecedented crackdown on leakers, whistleblowers, hackers and journalists. Manning is at Fort Meade on trial for his life—the rest of which could be spent in prison if he is found guilty. John Kiriakou, a former CIA agent who criticized the agency’s torture program, is serving a jail sentence. Aaron Swartz, a hacker who downloaded a trove of academic papers that were behind a private sector paywall, committed suicide after prosecutors filed charges that could have put him in prison for thirty-five years. Journalists for the Associated Press, The New York Times and Fox News have been subjected to startling levels of government surveillance, including the seizure of their phone records. And we have just learned that government surveillance of our phone and Internet activities is far broader than most of us suspected or had been led to believe. President Obama offers no apologies or regrets; it is all legal, he says.
The strength of We Steal Secrets—its focus on Assange and Manning—is also its weakness. Gibney tells us more about these men than many of us knew, particularly regarding Manning and his gender-conformity issues. But does this illuminate the bigger story of the surveillance state or muddy it? A soldier says Manning, small and effeminate, was bullied by drill sergeants. Once in Iraq, the film explains, Manning felt isolated and called a friend back home and cried like a child, saying, “I won’t make it, I can’t make it, I can’t do this.” He was talking to his army buddies about undergoing hormone replacement therapy. He even e-mailed a picture of himself dressed as a woman to his master sergeant. In a fit of frustration, he also punched another soldier in the face—a big mistake, because she was bigger than he was and put him in a headlock.
This is colorful in a BuzzFeed way, and it seems to support a theory that Manning leaked the documents in part because he needed to vent his sexual torment. Gibney said as much in an interview with the Daily Beast: “He was lonely and very needy. And I think he had an identity crisis. He had this idea that he was in the wrong body and wanted to become a woman, and these issues are not just prurient. I think it raises big issues about who whistleblowers are, because they are alienated people who don’t get along with people around them, which motivates them to do what they do.”
Really? I spent a lot of time in war zones and had a hard time finding a soldier who did not have an identity or alienation problem of some sort—a marriage breaking down, the agony of separation from children, the guilt of seeing a fellow soldier killed, a home being foreclosed on back in the States. Being gay in the military is extremely hard. Not being sure of your gender—that’s even harder, I suppose. Seeing your best friend killed in front of you during combat and blaming yourself for not preventing it, or killing an Afghan child by mistake and washing the blood from your hands afterward—that’s not easy to deal with, either. Crying and punching another soldier in anger—these things happen all the time on military bases, and far worse. It’s possible that Manning’s identity crisis was no more destabilizing or significant than the existential crises many soldiers go through at some point, especially if they undergo multiple deployments in active combat. I think it’s also possible that Manning’s personal struggle may have given him a clearer understanding of the plight of vulnerable people who are crushed or ignored by powerful institutions. But while the film does an artful job of using transcripts of Manning’s chats with the hacker Adrian Lamo to show how he was motivated by his outrage at the conduct of US forces, Gibney leads us to wonder whether less noble motivations were involved, too.
In the film, Assange is also put under a behavioral microscope, and what emerges is even less pretty. Assange, we learn, is arrogant, narcissistic, intolerant, secretive, hypocritical and perhaps a rapist. He created a pathbreaking portal for publishing government and corporate secrets but ruined it by, among other things, using it as a political shield to avoid answering investigators’ questions about sexual assault allegations from two women in Sweden. Much of this, and perhaps all of it, could be true. Yet it has been amply aired in other venues. Since the first major WikiLeaks scoop in 2010—its publication of a video, leaked by Manning, that showed a US helicopter gunship killing civilians—Assange has been on the front pages and gossip pages of news outlets across the globe. It makes for a colorful story, but Gibney hasn’t broken ground on the “who is Assange?” question as much as he has tended it in a way that, by the film’s end, makes us quite angry with the WikiLeaks founder.
There is nothing wrong with doing a deep dive on Assange or Manning; they have become public figures. And Gibney’s film tells us a lot about a surveillance state out of control. Yet it’s unfortunate that one of the most famous documentarians of our times has created a film that explores the alleged pathologies of these leakers and whistleblowers in a way that diverts our attention from the oppressive policies that turned them into outlaws. Though the film mentions on five occasions the condoms that Assange did or did not use while having intercourse with the Swedish women, Attorney General Eric Holder is referred to just once, with a banal video clip of him at a press briefing. The audience winds up knowing far more about Assange’s sexual practices than about the attorney general who oversees a vast apparatus of surveillance and prosecution. Which of these men should we know more about?
One of the greatest problems in our political discourse today is the dominant focus on personalities rather than systems. While Assange and Manning have colorful backstories, who they are and what they have done (or not done) in their private lives is not the most important thing. The system of secrecy that necessitates and criminalizes their actions should be the star and the villain of a film about these issues. Gibney has not made that film, but the good news is that we might not have to wait long to see it: documentarian Laura Poitras, one of the journalists Snowden confided in, is working on a film about the American surveillance state.
Guess what? The war in Iraq had a bright side. It created the Arab Spring.
That is the theory that proponents of the invasion are peddling on the tenth anniversary of the toppling of the statue of Saddam Hussein in Baghdad, on April 9, 2003. They are trying to persuade whoever will listen that the war was not such a bad idea after all, despite the bloodletting and wreckage. The latest push comes from Kanan Makiya, a Brandeis University professor who was one of the most prominent intellectuals behind the invasion. In an anniversary piece in the Times, “The Arab Spring Started in Iraq,” Makiya wrote that “the removal of Saddam Hussein and the toppling of a whole succession of other Arab dictators in 2011 were closely connected.” The invasion, he added, “paved the way for young Arabs to imagine” the removal of dictators elsewhere in the region.
While events in one country can impact other countries, this is a wish-based myth. It demonstrates a sad consequence of the Iraq war: its discredited backers are committing the same error they did in 2003, making dubious assertions without solid evidence. Back then, the myth was that Iraq had weapons of mass destruction. Today, it is a link between the American-led invasion of Iraq and popular uprisings in other countries. Makiya joins former Vice-President Cheney, who said, while promoting his memoir, “I think that what happened in Iraq, the fact that we brought democracy, if you will, and freedom to Iraq, has had a ripple effect on some of those other countries.” Condoleezza Rice, who was President Bush’s National Security Advisor, offered a similar idea while promoting her memoir: “The change in the conversation about the Middle East, where people now routinely talk about democratization, is something that I’m very grateful for and I think we had a role in that.”
Where’s the proof? The best Makiya can do is note that a number of years after the invasion, uprisings occurred elsewhere. The logical imperfection is audacious. He does not quote any leader of those uprisings as making a connection with Iraq—perhaps because they don’t. Wael Ghonim, one of the online leaders of the Egyptian uprising, has noted, “The war in Iraq killed so many innocent people, and it’s not something that any civilized nation should be proud of.” Makiya cannot drum up support from even Fouad Ajami, another backer of the invasion. “Having supported the Iraq war, I would love to make this connection,” he wrote last year. “But Iraq, contrary to the hopes and assertions of conservative proponents of the war, is not relevant to the Arab Spring.”
Iraq is a poster child for how you don’t want change to come to your homeland. Saddam was removed from power, but by a foreign army, not Iraqis. The country was consumed by an insurgency and civil war that continues to this day, though at lower levels of violence than in the worst years. The country’s leader, Nouri al-Maliki, is authoritarian, and presides over a nation divided along sectarian lines between the now dominant Shia and the no longer dominant Sunni. As Paul Pillar, a former C.I.A. officer and a Middle East expert has observed, “Rather than being inspired by what happened in Iraq after the invasion, Middle Easterners were repelled by it. If the violence, disorder, and breakdown of public services in Iraq were the birth pangs of a new Middle Eastern order, most people in the region wanted nothing of it.” If Iraq offered an example, in other words, it was as a model you don’t want to emulate.
The key problem in 2013, as in 2003, is not so much outright lying as the replacement of reality with fantasy. Makiya shifts the entire blame for Iraq’s descent into chaos onto the shoulders of the country’s post-invasion leaders. “There was hardly any war to speak of in 2003,” he writes in the Times. “Mr. Hussein’s whole terrible edifice just came crashing down under its own weight.” I was surprised to read this; I followed a Marine battalion to Baghdad in 2003 and found myself surrounded by violence and death—of Americans as well as Iraqis. The edifice didn’t collapse on its own accord; it was crushed by sixty-eight-ton Abrams tanks. While there was greater bloodshed during the occupation and civil war, the notion that “there was no war to speak of” in 2003 suggests a mind purged of memory or honesty.
It is the right of Cheney, Rice, Makiya, Dan Senor, Fred Kagan, Joe Lieberman, and other backers of the war to argue as they wish and make whatever connections they wish, no matter how preposterous. But the rest of us are not obliged to keep a straight face; a skewering by Jon Stewart would be a better response than a respectful interview by, say, Wolf Blitzer. On the tenth anniversary of a war that killed more than a hundred thousand Iraqis and Americans, the authors of the catastrophe should do us the small favor of offering their chastened silence rather than their half-baked theories.
The following story ran on the NYT’s At War blog.
With the invasion of Iraq just weeks away, Lt. Tim McLaughlin began a military ritual that dates back to Homer. He started a war diary. It was not a blog or e-mails sent from his waiting-to-invade base in the Kuwaiti desert, it was a plain notebook and pen with which he kept track of what was on his mind and what was in the crosshairs of his Abrams tank.
“Town car pops out on me, 200 meters,” he wrote of a battle near Baghdad. “Sgt. Wellons coaxed it, vehicle slowed down, swerved left off road + hit tree. Civilian shot 5 times in back and legs. Continued progress to Afaq.” He also penned a letter to a Victoria’s Secret model as well as a poem to his girlfriend, yet the heart of his diary, and the heart of warfare, is violence. After another battle he wrote, “My position is good to cut off back door exit. Kill dismounts in grove (3-7?) then 1 swimming across canal / 2 just about in canal…Covered canal w/.50 cal —killed 2 more.”
His journals are a raw reminder of what happens when young men, equipped with weapons that give them life-and-death powers, are dispatched on a mission to invade a foreign country. Lieutenant McLaughlin, who is now a lawyer in Boston, commanded a platoon of tanks that led the Marine advance on Baghdad, and his descriptions are brutal. That is why he shared the diaries with me and agreed, on the 10-year anniversary of the invasion, to have them displayed in an exhibition that opens Thursday at the Bronx Documentary Center. We are familiar with the polemics — Should we have gone to war? Why did we go to war? — but we are losing sight of what happens on the ground in the defining act of invasion. His journal is a jolt, a corrective.
Lieutenant McLaughlin is the perfect diarist. To begin with, he was a Russian language and poetry major at Holy Cross, he was raised in a big Irish-American family in the bedrock of New Hampshire and he emerged from the war with a diagnosis of post-traumatic stress disorder — which, he will tell you, should not be called a disorder, because he regards it as a normal reaction to the infliction and burden of extreme trauma. But Lieutenant McLaughlin was also at the Pentagon on 9/11, and his diary includes his recollection of what happened there — the thuds he heard when the plane hit the building, his effort to get through its smoke-filled corridors to find his brother, who also worked there, and the flashing emergency lights and emergency warning to evacuate the premises immediately.
That was the start of Lieutenant McLaughlin’s unique experience of our wartime. His battalion was the first Marine unit into the center of Baghdad and was responsible for the famous (or infamous, depending on your view) toppling of the statue of Saddam Hussein at Firdos Square. The flag that was controversially placed on the statue belonged to Lieutenant McLaughlin. He still has it, and it will be displayed in the exhibit on select days. His diary explains what happened to him at Firdos Square, too — the chaos of storming into the heart of an enemy capital, the antiwar protester who called him a child killer, the order to get his flag for a souvenir picture atop the statue.
I covered the invasion for the Times Magazine as a “unilateral” journalist driving into the war zone in a Hyundai sport-utility vehicle I had rented from Hertz in Kuwait City; for most of the time I was following Lieutenant McLaughlin’s unit, the Third Battalion Fourth Marines. Years later I began to work on a story for The New Yorker that reconstructed the toppling of the Saddam statue, and while reporting it I got in touch with Lieutenant McLaughlin and he showed me his diaries, which he hadn’t opened since Iraq. Sand spilled out when I opened the first pages.
Not long afterward, I showed the diaries to photographer Gary Knight, a friend who also covered Lieutenant McLaughlin’s battalion during the invasion; Mr. Knight suggested an exhibit that would feature diary pages blown up to poster size. It is one thing to read a soldier’s words on an anodyne computer screen, but quite another thing to read his handwriting; testimony does not get much purer. The nonprofit Bronx Documentary Center agreed to host our exhibit — which is titled “Invasion: Diaries and Memories of War in Iraq” — and we raised nearly $17,000 on Kickstarter. The exhibit, which also features Knight’s photographs and excerpts from my stories, begins Thursday with an opening reception at the center and the online publication of Lieutenant McLaughlin’s diaries by Foreign Policy.
(Excerpted from “Crude World: The Violent Twilight of Oil” by Peter Maass)
The addictions of Hugo Chávez, president of Venezuela, are regularly
in full view. On his television show, Aló Presidente, Chávez sips espresso
from a white porcelain cup, and because the program can last from
morning until night, with Chávez talking and singing and crying and
joking and taking phone calls from Fidel Castro, the nation watches
him drink cup after cup. Quite famously, the paratrooper-turnedpresident
is wired on caffeine. That’s not his only craving. In the halls
of American power, Chávez is known as a leftist who appeared at the
United Nations a day after President George W. Bush and proclaimed,
crossing himself and sniffing the air, “The devil came here yesterday,
and it still smells of sulfur.” In his disobedience of political etiquette,
Chávez acts with intended provocation. His defiance extends to the
realm of economic strategies, because he is trying to overturn the dismal
conventions of third-world resource management.
If, in the last century, you watched in dismay as oil profits were
stolen or wasted, you might have been hopeful when Chávez was
elected president and vowed to use resource wealth to help the needy.
Though Venezuela has the world’s seventh-largest reserves, most of its
26 million citizens are exceedingly poor. The enclaves of wealth in
Caracas are surrounded by coils of angry slums. It is a classic example
of what economist Joseph Stiglitz calls “rich countries with poor people.”
Chávez’s desire for a fairer economic order was not new, because
radical and well-meaning leaders across the globe had tried to make oil
a blessing. Nigeria had had one or two presidents who preferred
reform to looting, and even Huey Long tried to spread the oil wealth in
Louisiana. But Louisiana remains one of the poorest states in America,
and Nigeria is, well, Nigeria. I went to Venezuela to see whether
Chávez could perform the magic that had eluded so many others, and
my first stop was the barrio of Gramoven, where a new paradigm of
resource management was being built.
Gramoven, at first glance, seems a model for little more than worldclass
squalor. Its crowded streets are lined with bare-essentials shops
selling everything from sacks of flour to used shoelaces. Young men
linger on corners in the way of the unemployed, swapping rumors
about jobs that are hard to find. There is a wariness in their eyes, on the
lookout for not just work but danger, because on these unkind streets
even the jobless are mugged. Other hazards include manhole covers
that have been stolen, which means that if you do not watch your step,
you can disappear into a black hole. In a general sense, Gramoven is a
black hole of poverty from which few escape.
Gramoven was hosting a vision of the future that went by the awkward
name of Fabricio Ojeda Nucleus of Endogenous Development.
The “nucleus,” located on a side street near the barrio’s heart, consisted
of three main brick buildings the size of low-slung dance halls.
One building housed a medical clinic, while the others held cooperatives
that produced shoes and clothes. The well-tended complex covered
just sixteen acres and had, at its center, a small amphitheater for
meetings and performances; off to one side were an organic garden and
a sports field. This nucleus was a model for Chávez’s effort to plow oil
money into social development. There were plans for hundreds like it
across Venezuela, and not only did the funding come from oil, but the
state-owned oil company managed everything. At the time I visited in
2005, the nucleus had received more than $7 million from Petróleos de
Venezuela S.A., and a PDVSA manager, wearing a company badge,
helped run the place. It was a showcase of sorts, because Chávez had
broadcast an Aló Presidente episode from it, and its visitors included
Harry Belafonte, Danny Glover and Cornel West.
The shoe cooperative, suffused with the aromas of leather and
glue, was brightly lit and freshly painted. Its sewing and cutting
machines were not crammed together, as they might be in a typical
sweatshop. The pace of work was not hectic when I visited, and perhaps
because of that, the output was a modest six hundred pairs of
shoes a day. The measured rate of production did not translate into
high quality, unfortunately. The workers were new to shoemaking and
most of their output went to Cuba, which cannot afford to be picky, or
was distributed at discount prices to poor families in the barrio.
Oswaldo Quintero, one of the associates, as workers called themselves,
explained that the 140 members of the cooperative voted on their pay
(about $190 a month) and hours (two six-hour shifts a day). Quintero,
who was forty years old, a former taxi driver and the father of five children,
had an Everyman look, with a slight potbelly, a two-day stubble
and short legs. His blue overalls were smeared in shoe polish. He
savored his new life because he didn’t need to drive around the city for
twelve or fourteen hours a day, six days a week, risking robbery or carjacking
“PDVSA now belongs to all Venezuelans,” he said. “Before it was
just a small group who profited from it.”
He meant that PDVSA, though state-owned, had not served the
state well. In 1976, when a nationalization law went into effect,
PDVSA gained control of the country’s oil reserves. By the 1990s, most
of the firm’s gross revenues were plowed back into its operations; the
rest went to the government. Because oil revenues were the government’s
largest source of income, the company ended up with a larger
budget than the government, and this had the perverse effect of creating
a prosperous first-world company in an impoverished third-world
nation. The firm had a talented and well-paid cadre of engineers, its
facilities had up-to-date equipment and it smoothly pumped out large
amounts of oil—reaching a peak of nearly 3.5 million barrels a day. But
like the foreign companies with which it operated joint ventures,
PDVSA spent only a token amount of its considerable revenues on
social or economic programs.
When Chávez was elected, PDVSA was quasi-independent of the
government that owned it. This would not last. In 2002, after a series
of political conflicts that included an anti-Chávez coup, PDVSA workers
went on a two-month strike that ended with Chávez firing eighteen
thousand managers and engineers—most of the firm’s white-collar
workers. Chávez proceeded to turn the firm’s priorities upside down.
Instead of about 40 percent of its revenues going to the state, twothirds
did. But there was a twist: instead of the oil money being transferred
to the government and then to ministries that oversaw health,
education and welfare programs, PDVSA was put in charge of the blitz
of new programs. Chávez calculated that PDVSA’s revamped staff
would be more loyal and more capable than the civil servants whose
uninspired presence lent government ministries the aura of early
retirement homes for bureaucrats.
“Sowing the oil”—in Venezuela, this phrase is often used to
describe the spending of oil revenues on human development—had a
quick impact on the lives of people like Quintero. Thanks to his reasonable
work hours at the nucleus, he had enough time to attend an
adult-literacy course for which he received a “scholarship” of nearly
$100 a month; he was being paid to take the course, which was held at
a nearby school. PDVSA subsidized these courses—not only the
scholarships but teachers, textbooks, televisions and videocassettes.
PDVSA funded these adult schools across the country, as well as a network
of new universities and secondary schools named after Chávez’s
nineteenth-century hero, Simón Bolívar, who fought for Latin American
Because oil prices rose from almost the moment he was elected,
Chávez was able to pour tens of billions of dollars into these programs.
He had the same fortunate timing as another statesman who came to
power as oil prices took off—Vladimir Putin. Chávez called his reform
movement a Bolivarian revolution, and poor Venezuelans were its beneficiaries.
For the first time in his life, Quintero even had access to
decent medical care, thanks to the nucleus clinic, which had six pediatricians,
two gynecologists, a radiologist and three GPs, as well as
X-ray and ultrasound machines. Everything—the clinic building, the
medical equipment, the tongue depressors, the television and airconditioner
in the bright waiting room—was paid for by PDVSA. Oil revenues even fed Quintero,
who shopped at a subsidized grocery store, part of a chain called Mercal, adjacent
to the nucleus. This store sold sugar, rice, milk, cheese and other items for discounts
as high as 50 percent; the walls of the Gramoven Mercal were covered in murals that
showed a slave breaking his chains. The country had thousands of
these stores and, it seemed, a larger number of revolutionary murals.
It was stirring if you did not let your mind linger too long on economics
In the early 1980s, I’d visited Yugoslavia and toured a factory cooperative.
The Yugoslav economy revolved around workers’ cooperatives,
a proud achievement of the country’s longtime leader, Josip Broz
Tito, who claimed to have found a third way to prosperity that avoided
the brutishness of capitalist managers and the dimness of party apparatchiks.
At the cooperative I visited, the workers were the owners, or
so the pitch went, and all decisions were made democratically by the
workers or a council they elected. Shifts, pay and even disciplinary
measures were decided by them. Everything was done fairly, and everyone
It was splendid and unreal, because Yugoslavia’s economy was a
sort of Ponzi scheme. The cooperatives did not produce goods that
people wanted, and behind the scenes, dim-witted apparatchiks were
making the big decisions. The country’s showcase industrial product, a
compact car called the Yugo, was a punch line for late-night comics.
The economy held together because Western nations loaned about
$20 billion to the Yugoslav government so that it would not fall under
the sway of the Soviet Union. The loans were dispersed by Belgrade to
cooperatives like the one I visited, and they stayed afloat until the
decline of the Soviet Union meant the West no longer needed to subsidize
Yugoslavia. The subsequent contraction of the Yugoslav economy
helped trigger civil war in the 1990s.
Venezuela’s endogenous nuclei, adult-literacy programs and subsidized
Mercals were not being kept afloat by loans. They floated on oil.
Under Chávez, output was more than 2 million barrels a day, which
meant that when prices were $100 a barrel, Venezuela was producing
more than $200 million worth of oil every twenty-four hours. Even
after deducting the cost of getting the oil out of the ground and shipping
it to markets, it was a lot of money for a nation of 26 million
souls—not Kuwait levels of drowning-in-oil riches, but higher on a per
capita basis than Nigeria or Russia. You didn’t need to be a utopian or
Marxist to believe it might be possible to reach the goals enunciated by
Rafael Ramírez, who served as oil minister and PDVSA president: “To
rescue and redistribute petroleum rent to the benefit of the
people . . . to transform the terrible imbalances and social inequalities
which, paradoxically, are present in one of the countries with the
largest oil endowments on the planet.” Few governments had made this
happen, and by pouring oil money into programs that reminded me of
Yugoslavia, I suspected, Venezuela was galloping toward a mirage.
PDVSA’s fastest-growing subsidiary was Palmaven, which ran the
firm’s social programs and was located in an office tower adjacent to the
luxury Radisson hotel. It was unusual enough that an oil company had
an entire division devoted to good works, but even stranger that the
man in charge of the marquee program—the endogenous nuclei—was
a navy officer. Captain Rommel Rangel, whose handshake was military
strong and whose civilian clothes were pressed to perfection, was not a
typical naval or corporate man. He was a Chávez supporter who, like
the president, had been born into poverty and become disenchanted
with neoliberal policies that hollowed out his homeland in the 1980s.
Rangel didn’t mind that I arrived at his immaculate office on a Friday
afternoon, when the city was emptying out for the weekend; he happily
talked as it became dark outside, and his fervor was an evangelical’s.
When I mentioned the oddity of a navy officer running a social program
in a petroleum firm, he smiled and responded by turning globalization
on its head, Chávez-style. “Economic development is not as
important as social change,” he said, with the enthusiasm of a man who
has just solved a Rubik’s Cube. His optimism was admirable. His plans,
Chávez’s policies were born of the notion that because neoliberal
economics had failed, its opposite would succeed. His embrace of a
radical alternative brought to mind Ryszard Kapuscinski’s description
of oil as “the temptation of ease, wealth, strength, fortune, power.”
Kapuscinski meant that oil seduces rulers into believing it is possible to
build a new Rome with little difficulty, because money can do anything.
The shah of Iran, Kapuscinski noted, promised to create a second
America in a generation, but succeeded only in paving the way to an
oppressive religious regime that, among its many failures, cannot produce
enough gasoline for its drivers. Libya’s reserves spurred Muammar
Qaddafi to a particular brand of change-the-worldism, hinted at
by one of his titles, Brotherly Leader and Guide of the Revolution.
After taking power in a 1969 coup, Qaddafi aspired to lead the nonaligned
world, then scaled back his ambitions to the Arab world, then
to Africa only. He planned to develop nuclear weapons and attack
American targets. After three decades of failure, and with his country
an economic wreck and politically isolated, Qaddafi finally let go of his
Chávez’s visions of petrograndeur were geographically vast, too. In
addition to subsidizing the barrios of Caracas, he was distributing discounted
heating oil to poor families in New York, Philadelphia and
Boston. Because these donations were intended to embarrass President
George W. Bush, who treated Chávez as a grave menace, PDVSA paid
for a full-page advertisement in the New York Times that boasted,
“Venezuela is warming up the holidays in New York.” And not just
there—Venezuelan oil was distributed at deep discounts throughout
Latin America, with a generous portion going to Cuba. Chávez’s
regime provided financing for a Latin American TV network, Telesur;
bought Argentinean bonds when the government in Buenos Aires was
reeling; and sent engineers to Bolivia to run gas facilities that were
being nationalized. Venezuela’s hemispheric outlays were estimated at
nearly $9 billion in 2007, which were several times more than the nonmilitary
aid doled out by the United States south of its border. Chávez
made no secret of his desire to be this century’s Bolívar.
The problem was not, as the Bush administration fretted in those
days, that Chávez would turn South America into Cuba writ large.
That fear overlooked a geopolitical fact, which is that you can rent
political friends in this world but you cannot buy them. Chávez’s billions
in direct aid were no match for the cultural, corporate and political
influence Washington retained in the region; American dominion
would not be ended with a few years of subsidies from Caracas. The
problem was that Venezuela, believing its mirage, could not afford its
friends any more than the Soviet Union could afford its satellites in
Eastern Europe. The Gramoven nucleus was replicated throughout
Venezuela, but these cooperatives, created at great cost to PDVSA,
provided a fraction of what the country needed in the way of jobs.
Caracas was drowning in the usual mix of oil and unemployment. A
core feature of the resource curse, as we’ve seen, is that although the oil
industry dominates an economy, it creates few jobs. High-tech refineries
can cost billions of dollars to construct, but once they’re up and
running, perhaps a few hundred workers are needed to monitor them.
If you have as much oil per capita as Kuwait, you don’t need to worry
about real jobs—you can subsidize a life of indolence for everyone in
your kingdom. But Venezuela did not have enough oil for that, and the
upshot was that its unemployment rate was well into the double digits
even during the (relatively) good times. Caracas had a booming business
in luxury cars and the highest rate of gun violence in the world for
cities not at war. The capital’s infrastructure, ignored during decades of
economic doldrums, continued to be ignored during the boom. A
highway to the airport had to be rerouted for months due to a bridge
that was in danger of collapsing; what had been an hour-long commute
to the airport required three to four hours over a zigzag of back roads.
Chávez was not deterred. He was a true believer in a new economic
order that captivated, for a while at least, most Venezuelans. To understand
why, I turned on my television.
The day I watched Aló Presidente, Chávez was, as usual, a mix of Bill
Clinton and Oprah Winfrey. He sat at a desk under a large outdoor
tent, dressed in a short-sleeved shirt, talking and joking with an audience
of several hundred people who fanned themselves to stay cool in
the muggy shade. With a microphone in hand, he walked among the
crowd and asked people about their lives, hugging and kissing whoever
praised his government, as all did. When he encountered a Cuban doctor—
thousands of them provide free medical care in Venezuela in
exchange for free oil to Cuba—he waved at the camera and shouted,
The show went on for hours, with Chávez extolling his Bolivarian
revolution. Bolívar is something of a fetish object for Chávez, who has
said he often talks to the great liberator, who has been dead for more
than a century. Occasionally, Chávez leaves an empty seat at a table, so
that the liberator’s spirit has a place to sit. Chávez has changed the
country’s name to the Bolivarian Republic of Venezuela, and this
episode of Aló Presidente was broadcast from a PDVSA facility that had
been turned into a Bolivarian university, at which admission was open
to all who applied. Chávez has also set up Bolivarian circles, local
groups with millions of adherents working on behalf of his policies
and, crucially, his election campaigns.
“We are not going to rest our bodies or souls until we get rid of the
chains around our homeland,” he said during the show. “We offer an
alternative to those who want a better road, the Bolivarian path. We
don’t need money from Washington or the IMF. We are not subordinate
to their will. We can do it with oil money.”
A band played a tune with the refrain “Long live the revolution,”
and after singing along Chávez embraced the musicians like old friends.
His joviality was genuine; Chávez clearly was enjoying himself and
drew energy from these people, who were not wealthy and seemed to
love their down-to-earth president-host. Chávez eventually returned
to his desk, began to sip a fresh cup of espresso and noticed that the
time had flown by. “Okay,” he said. “It’s now three o’clock, which
means I’ve been talking for four hours already. I feel good!”
The program continued for three more hours, during which
Chávez warned of the evils of Halloween, took a call from the
Venezuelan manager of the Chicago White Sox and announced a raise
in doctors’ salaries. In certain ways, the show worked. A leader who
hopes to fundamentally alter a dysfunctional economy will certainly
benefit from personal charm and political popularity; a mild-mannered
technocrat would have a hard time imposing the radical changes that
would be the preconditions for prosperity in Venezuela or any blighted
country that had failed to benefit from its oil.
Yet Chávez’s performance had the feel of what Fernando Coronil, a
Venezuelan scholar, described as a state limited to “magic performances,
not miracles.” I understood this more fully when I went to see
Chávez in the flesh at Miraflores Palace, his office and residence.
The Miraflores ceremony was part of the great game of our times—
the superpower search for steady supplies of energy. China, which
didn’t import much petroleum until 2000 yet is now the third-largest
importer after the United States and Japan, was doing whatever it
could to win the friends and resources it needed. In the realm of
oil supplies, long-term relationships and contracts are vital. Modest
amounts of oil can be bought on the “spot market,” which is where
countries and companies buy and sell crude for short-term delivery.
For example, the cargo of a supertanker can change hands while on the
open seas. (In fact, it can change hands several times.) But the amounts
of oil that can be purchased in this way are relatively minor. Most of the
world’s oil is spoken for in long-term contracts that guarantee deliveries
from a supplier for several years at least; values are linked to “spot
prices,” which are market rates that prevail at the time of shipment.
Through its state-owned companies, Beijing hoped to negotiate
long-term contracts for Venezuela’s crude (as well as Sudan’s, Saudi
Arabia’s and Equatorial Guinea’s, among others’). This was a potential
threat to America, which was Venezuela’s largest oil customer
even under Chávez; despite the Bolivarian rhetoric, two-thirds of
Venezuela’s exports went to America. Altering this balance was a delicate
game. Chávez could shout and threaten as much as he wanted—he
could even deride America’s president as the devil—but actually stopping
oil shipments to his large neighbor up north could lead to serious
consequences; addicts do not react calmly when separated from their
fixes. China knew this and did not want to provoke America, yet everyone
understood that some supplies could be acquired without causing
World War III. To woo Caracas, China had even agreed to launch a
communications satellite on favorable terms. At Miraflores, Chávez
was getting ready to break this news to the world.
In a basement conference room the size of a high school theater,
the front rows were reserved for Chinese officers and businessmen. On
stage, several executives from the China GreatWall Industry Corporation
waited for Chávez, who arrived a half hour late, clad in a blue suit,
white shirt and red tie. He is built stoutly and has thick facial features
that give him the look of a retired yet still-energetic boxer who would
be glad to return to the ring. His skin is dark brown, reflecting his mestizo
lineage. He fills a room like warm water poured into a cup. Dressed
in a suit or uniform, smiling or scowling, he makes an impression.
After the Chinese and Venezuelan anthems were sung, Chávez,
standing in front of a portrait of Bolívar, in whose honor the satellite
was named, launched into a speech of the sort that was his trademark—
presidential streams of consciousness. He congratulated the Chinese
for being clever at math and saluted their women for being so beautiful.
He thanked the Chinese government for training Venezuelans in
satellite technology, saying they were teaching Venezuela “how to fly.”
As a visual aid, he flapped his arms like wings. He added that the Chinese
had learned to fly under “the great Mao Tse-tung,” and because
Chávez drew inspiration from Mao’s one-party, one-truth pedigree, he
smiled broadly and exhorted, “Long live the Chinese revolution!”
The Chinese businessmen, as rigorously mercantilist these days as
John Rockefeller was in his time, gazed at Chávez. They didn’t seem to
know whether the desired response was sardonic smiles or clenched
fists, but their expressions veered toward the safe harbor of nodding
approval. One of them adjusted the volume on his headset—the speech
was being translated into Chinese—as Chávez said, “We don’t want to
earn money out of this. We’re not capitalists. This is about the survival
of our country and the destruction of capitalism. Capitalists are generating
Yet capitalists were still buying oil from Venezuela, and lots of it.
The substance, like water from the glaciers, tends to flow according to
a variety of gravitational forces. There is geography (American ports
are far closer than China’s), technology (American refineries were
equipped to process Venezuela’s heavier crudes) and, of course, political
realities (a cutoff might put Washington into a regime-changing
frame of mind). A presidente can flap his arms in Caracas and hold his
nose at the United Nations and promise to remake his nation, but
these are performances. The political or economic miracles that
Chávez or any leader in his situation might wish for are, most likely,
beyond reach, and have always been so.
A pop quiz:
What is the name of the Venezuelan president who described the
backers of globalization at the World Bank as “genocide workers in the
pay of economic totalitarianism”?
Which Venezuelan leader, nationalizing the operations of Exxon
and other foreign companies, described their corporate activities as
Which populist presidente poured billions of dollars into social pro-
grams, vowing that the wave of oil money washing into the country
would be used to create a “Great Venezuela”?
If you answered “Hugo Chávez,” you are wrong. The correct
answer is Carlos Andrés Pérez, who was president from 1974 to 1979
and dominated Venezuela so thoroughly that he was known by just his
initials, CAP. Pérez came to power as Venezuela began gorging on
petrodollars in the wake of the 1973 OPEC embargo. For a hallucinatory
period, Venezuela had the per capita income of West Germany,
the supersonic Concorde flew to Caracas three times a week and in
Miami’s luxury stores Venezuelans were known as dame dos, for “give
me two” in Spanish. Pérez was not as virulently anti-American as
Chávez but was every bit the populist. He boasted of walking across the
entire country during his presidential campaign, visiting every village
on foot. Because he assumed the postembargo windfall would be permanent
and ever-growing, he authorized billions of dollars in foreign
loans to plow ever more money into his Gran Venezuela programs.
This was the economic equivalent of a binge destined to end with
the money running out or the bloated corpus of Venezuela being
ruined by the windfall. As things turned out, both happened. One of
the few people who foresaw this was Juan Pablo Pérez Alfonzo, the former
oil minister credited with coming up with the idea of a cartel of
producing nations in the 1960s. (Pérez Alfonzo is known as the father
of OPEC.) In semiretirement, Pérez Alfonzo told a visiting academic
researcher, when Venezuela was afloat on its first oil bonanza, “Don’t
study OPEC. Study what oil is doing to Venezuela. Ten years from
now, twenty years from now, you will see, oil will bring us ruin. . . . It’s
the devil’s excrement.”
To understand where Chávez was taking Venezuela, I looked not to
the future but to the past. When oil prices collapsed in the 1980s,
Venezuela came undone as public debt and national poverty soared.
There was no economic safety net, because the influx of oil money had
decimated the agricultural and industrial sectors by inflating their
costs. They had lost the competitive edge they’d had before the oil
boom. As in Saudi Arabia and other oil-exporting countries, more peo-
ple looked to the government for their sustenance rather than to their
own brawn or brains. Yet the government, at times of low oil prices,
had little to offer. The country went into a free fall.
Because oil can instigate any absurdity, CAP was brought out of
retirement and reelected president in 1988, with a desperate nation
hoping he could resummon the prosperity that had existed in his previous
reign. Yet he had no more magic tricks or even performances. He
bowed to global economic winds and imposed an austerity program
that had the short-term effect of making the poor even poorer. Widespread
rioting broke out, and as many as three thousand people were
killed in the Caracazo, as the 1989 disturbances were called. Among
the country’s impoverished—and this was now most of the country—
the perceived cause of their misery was not oil or debt but the capitalist
order. Army officers staged two coups against CAP, and though these
uprisings were quashed, the leader of the first one, a charismatic lieutenant
colonel, became a national hero for defending the interests of
the poor. After more than two years in jail, Lieutenant Colonel Hugo
Chávez was set free.
There is a saying that Venezuela does not have good or bad presidents,
just presidents who serve at times of high or low oil prices.
Chávez, running for president in 1998 as the main political parties all
but collapsed from decrepitude, had the great luck of being elected
when oil sold for just $12 a barrel. As his presidency got under way,
prices began climbing, and six years later, a barrel fetched more than
$65, on its way to more than $140. Under his caffeinated direction,
Venezuela began a radical spending spree that was similar to the Gran
Venezuela effort of a generation earlier, and for economists like José
Toro-Hardy, it was akin to watching a car speed toward a wall that it
had smacked into not so long ago.
If you don’t mind surveillance cameras and ten-foot walls topped with
shards of glass, or barking German shepherds and private security
guards who glare at all newcomers, the neighborhood of El Country
Club is delightful. It is one of the capital’s enclaves of wealth and is
noted for its namesake, a two-hundred-acre club built in the early
twentieth century for the benefit of American oilmen and their good
friends, the local oligarchy. El Country Club has horse stables, tennis
courts and an eighteen-hole golf course, and is such an untouchable
institution that when the mayor of Caracas proposed confiscating its
land to build low-income housing, Chávez’s federal government
advised that this would be an excessive act of Bolivarism.
For the fortunate Venezuelans who reside along the area’s spotless
and quiet streets—a universe apart from the chaos in the rest of Caracas—
these were wealth-enhancing times. Although Chávez was despised
by the upper class, some of whom had already decamped to
luxury condos in Miami, the flood of oil money did not bypass them.
When I visited in 2005, the monthly rent on a three or four bedroom
apartment near El Country Club was running at about $7,000. The
providers of luxury goods and services, from late-model BMWs to plastic
surgery, were doing a booming business in precincts around the club.
This was where José Toro-Hardy lived, and after I was buzzed
through a locked gate along his street, a maid opened the front door
and walked me through an open-air atrium. The quiet and the greenery
and the chirping of birds imparted an eco-resort vibe, but Toro-
Hardy, unlike his home, was not at peace. A former director of PDVSA
who was ousted after Chávez came to power, Toro-Hardy had become
a fierce critic of the president’s economic policies. His critique rose
above the entitled whinings heard on the shady verandas around El
Country, because Toro-Hardy was the author of scholarly books on oil
economics and considered himself a nationalist whose nation was yet
again being ruined by oil.
His demeanor was nervous, with his eyes darting and his voice
wavering, as if he were a fugitive from the illusion of reality Venezuela
was embracing. His warnings were issued in the manner of a man
imparting what he believed to be a vital yet ignored truth; his pulse and
blood pressure made him a candidate for immediate bed rest.
Venezuela, with the world’s highest proportion of beauty queens, was a
nation of obsessives, and Toro-Hardy was obsessed about oil. He led
me into his office and asked me to peruse economic charts as he
searched the Internet for up-to-the-second oil data. One chart told a
notable story. From 1920 to 1980, Venezuela had the strongest growth
of any country in South America. For much of that time, oil was not a
curse, largely because it was not a dominant force—with oil prices
quite low, Venezuela also maintained vigorous farming and industrial
sectors. Another chart showed how the petrodollar flood that began in
1973 had upset the country’s balance. This is a paradox of windfalls like
the one inundating Chávez-era Venezuela; they can distort rather than
strengthen national institutions. We’ve seen this before: as the oil sector
grows, farming and manufacturing may contract, unemployment
may expand, inflation may rise due to the influx of revenues from oil
sales, and the gap between rich and poor may widen. This began in the
1970s, and the latest boom was only papering over the structural problems—
it was the euphoria of the bubble.
“This is not something that can be sustained,” Toro-Hardy said.
“The whole economy depends on government expenditure, but that
depends on one factor: oil prices. The laws of economy cannot be violated
any more than the laws of gravity. Sooner or later we will have a
serious economic crisis.”
It was hard to imagine prices returning to the $12-a-barrel lows
that had prevailed when Chávez came to power, but even high prices
were not a guarantee of high revenues. Like almost every oil exporter,
Venezuela struggled to maintain its output. After the mass firing in
2002, PDVSA’s output plunged by nearly 50 percent, and not all of the
lost ground had been regained. Geology was not helping matters,
because Venezuela was running short of the light crude that is easiest to
refine. The country has vast deposits of tar sands near the Orinoco
River, but converting them into conventional oil is a complex process
that involves costly technologies, large volumes of water and natural
gas—and it causes severe environmental damage. To get the job done,
PDVSA needed the help of foreign firms that were now reluctant to
get involved because they had been forced to cede control of oil projects
they’d operated before Chávez came to power. Orinoco’s heavy oil
seemed unlikely to fund the Bolivarian revolution.
Toro-Hardy saw a landscape of problems that centered on dogmatic
economic programs implemented not by a government ministry
but by an oil company that was having a hard time just pumping oil. He
was ready to acknowledge that PDVSA, when Chávez came to power,
had needed to be reformed because it had indeed grown aloof from the
country. But Chávez’s method, firing half the workforce, was akin to
destroying a village in order to save it. Extracting oil requires immense
amounts of expertise, in the form of engineers who understand the
geological profiles of the reservoirs they are drilling into. These
experts cannot be replaced like waiters in a restaurant. When large
numbers of oil experts left Iran after the 1979 Islamic revolution, production
plummeted; Iran’s production has inched back, after three
decades of war and instability, to just 4 million barrels a day, which is a
third less than its prerevolution rate. A similar decline was taking place
in Venezuela, where the output was no more than 2.5 million barrels a
day when I visited—or a third less than its peak. PDVSA, shorn of its
best and brightest, could not do its job as well as it used to, and now it
had an additional task to perform.
Chávez did not just order PDVSA to boost its community spending
by a few percentage points; he turned the firm into the engine of revolutionary
change. PDVSA allotted more to its social projects in 2006—
nearly $10 billion—than to its operations ($5.9 billion). In a sense, it
became a development agency with oil wells. No other oil company,
whether publicly traded or state-owned, spent nearly as much on noncore
programs. In Saudi Arabia, Russia and other oil countries, stateowned
firms tend to have modest social programs. Their surpluses are
transferred to the Treasury and distributed to ministries that chase the
holy grail of sustainable development. Usually they fail. You can build
colleges, as Saudi Arabia did, but that doesn’t mean the degrees will
count for much or that jobs will await the graduates.
Chávez was betting, almost literally, that an oil company would
succeed where government ministries might not. PDVSA went from
one extreme—disassociated from the government it was supposed to
serve—to the opposite extreme of taking over the government’s duties.
I knew that villagers in the Niger Delta would be delighted if Shell or
its government-owned partner would provide the education, electricity,
medical care and jobs that the negligent and corrupt government
did not offer. But it was hard to imagine how oilmen might do better
development work than a government’s development experts. Oil companies
should certainly provide funding and support to official efforts,
as well as fight corruption and waste. But replacing a government
seemed a doomed concept. As Toro-Hardy said in his exasperated way,
“Oil companies should do more, but they should not change their mission.
Now, instead of investing in its own projects, PDVSA is investing
in housing and social programs. This is very nice, but it’s not for an oil
In Venezuela, it was as though a well-meaning doctor was using the
wrong instruments and wrong procedures to operate on a sick patient.
Even during the boom years, signs of failure were ample—price controls
on foodstuffs were leading to shortages, and the government was
spending so much on subsidies that it was running into deficit problems,
which is a striking achievement when large amounts of revenues
are being received from oil sales. Chávez’s policies, intended to break
the resource curse, seemed likely to prolong it. “I am not defending the
previous governments,” Toro-Hardy said as he walked me out of his
private sanctuary. “They did an awful job. But giving away money is
not going to solve people’s problems. We have a saying here: ‘Bread for
today and hunger for tomorrow.’”
When oil prices slid back to the double digits, Chávez’s popularity
began to slide, too. He didn’t have as much money to throw at the
country’s problems. An opposition candidate even won election as
mayor of Caracas in 2008. Magic shows can obscure reality but cannot
make it disappear.
Copyright Peter Maass
A few years ago, a former marine named Tim McLaughlin drove to New Hampshire in his red pickup to visit his parents’ farmhouse, which is where he stored his gear from Iraq, among which were his war diaries. A marine decal was on one of the covers, and below it, a haunting phrase he had written based on both a Johnny Cash song and the Book of Revelations: “His horse was named Death… and Hell followed them.” When he opened the first pages, sand fell out; the journals had not been touched since he returned from the invasion in 2003.
These days, we are drawn to digital methods of memory preservation — blogs and tweets and status updates — but handwritten diaries endure, especially in wartime. They do not need electricity or to be handled with care, and they carry a unique form of literary DNA. Each stroke of the pen is a highly individualised signature that reveals the writer’s emotional state. Diaries were kept by American and British soldiers in Iraq, as they were kept by Iraqis. McLaughlin was a 25-year-old Marine Corps first lieutenant when he started his journals in the Kuwaiti desert. As he waited for the invasion, he was filled with a combination of boredom and anxiety, a longing to be at war and no longer at war. His diary opens with a stunning remembrance of the day that marked the start of his journey to Kuwait and beyond.
On September 11, 2001, McLaughlin’s workday began at the Pentagon, where he was a general’s aide. He went to a basement gym around eight in the morning, and in the locker room he heard a radio report about a plane hitting the World Trade Center. Odd. Moments later, he saw live television reports of a second plane hitting the centre. He was shocked. He headed outside for his run. After a mile and a half, he heard two thuds behind him. A cloud was over the Pentagon. Emergency vehicles roared past. He sprinted back to the torn building and rushed inside to find his brother, also a marine, who worked there.
“It was like climbing a chimney with smoke filling in from top to bottom,” McLaughlin wrote in his diary’s first pages. “I stopped, finally realising that I was completely alone in the largest office building in the world. I could barely see my hand in front of me, the only light was from the refraction of the blinking emergency lights and the only sound was from a mechanical/computerised woman’s voice that repeated — There has been an emergency. Please exit the building immediately.”
Outside again, McLaughlin met a corporal who asked: “What do we do now, sir?”
McLaughlin’s experience makes for an ideal diarist.
He read Russian language and poetry at Holy Cross College in Massachusetts, he was at the Pentagon on 9/11, he commanded a tank at the tip of the invading force in 2003, and he played a key role in the invasion’s famous culmination — the toppling of the statue of Saddam Hussein at Firdos Square. It was McLaughlin’s American flag that was draped controversially on the statue. And when he left the marines, McLaughlin was diagnosed with post-traumatic stress disorder. Few people are connected so intimately to such essential matters of war and peace.
Back in New Hampshire, McLaughlin brought out the flag and described how it was given to him by a family acquaintance a few days after 9/11, how he packed it in his rucksack when his tank company was deployed to Kuwait two years later, and how he tried to raise it several times during the invasion, to get a souvenir snapshot. Once, he almost got hit by bullets while trying to raise it atop a building, another time a tank ran over the flagpole he was about to use. By the time his tank company stormed into Baghdad and surrounded the statue, his flag was semi-famous among his fellow marines. So the order went out: McLaughlin, get your flag, it’s time.
The core of the diary is an account of violence and death and regret. In McLaughlin’s tight script, there is this after-battle notation: “Killed 4 soldiers trying to run away… then 1 swimming across the canal.” And this one, about his tank turning its 7.62mm coaxial machinegun on a car that suddenly drove onto the road during a battle: “Civilian [driver] shot 5 times in back and legs. Continued progress to Afaq.” On another page, there is a careful list of vehicles his tank had destroyed. At the bottom is the tally in lives: “70 people dead.” The diaries are a visual experience. There are pictures and maps of the places he has been and things he saw — drawings of the Pentagon on the day it was attacked and of Firdos Square on the day of the toppling. The pages devoted to the toppling are a mad rush of impressions: “Swamped by mass of reporters — could not move/peace protester ‘How many children have you killed today’ ” — until he writes, “Capt Lewis sent me back to get flag… [Corporal Edward] Chin draped it over Saddam’s face… Got flag back — people tried to get it from me.”
Diaries reflect the mess of life, the incoherence of events as they trip over each other, tragedy followed by farce and absurdity and tragedy again. On the second-to-last page of one of the diaries, there is a picture of a kitten and the warning: “Every time you masturbate, God kills a kitten.” Funny. On the last page, facing the kitten, McLaughlin quotes from a country song by Tim McGraw: “So you do what you do and you pay for your sins and there’s no sense wondering what might have been that’s a waste of time, drive you outta your mind.” Not funny.
Ten years on from the Iraq invasion, McLaughlin is now a lawyer in Boston and heads a nonprofit organisation that provides free legal advice to veterans and the homeless. But it is in his diaries that we learn of the things he still carries with him.
One of the most dramatic scenes in Zero Dark Thirty, the new film by Kathryn Bigelow and Mark Boal, takes place in a conference room where the CIA team hunting Osama bin Laden is lambasted by its boss, played by Mark Strong. “There’s no working group coming to the rescue,” he says. “There’s nobody else, hidden away on some other floor. There is just us. And we are failing.” Voice filling with rage, he recounts the death toll from 9/11 and other al Qaeda attacks, shouting at his team, “I want targets! Do your fucking jobs, bring me people to kill!”
Much of the pre-release debate about the movie has focused on whether it portrays torture as effective, in the sense of prying information out of al Qaeda suspects. Yes, the movie conveys that view, and I think it’s inaccurate. Many experts, including key senators who oversaw an extensive congressional investigation, have concluded that torture did not play a significant role in finding bin Laden, and that torture in general is a counter-productive way to get information from prisoners. But the heated debate on torture misses what’s far more important and troubling about a film that seems destined for blockbuster and Academy Award status. Zero Dark Thirty represents a new genre of embedded filmmaking that is the problematic offspring of the worrisome endeavor known as embedded journalism.
Unlike Lincoln, about a man who was killed a century and a half ago, Zero Dark Thirty portrays recent events. We know pretty much everything there is to know about Lincoln—all that’s left is to interpret the historical record—but precious little about the hunt for bin Laden. That’s why I was not only riveted by the “Bring me people to kill” line, but curious. Did it really happen? Did the film’s heroine, who is called Maya, really tell the CIA director, during a meeting about bin Laden’s compound, “I am the motherfucker that found that place”?
I had fact-or-fiction questions about nearly every scene in the movie. Because the historical record is so slim, there was really only one person who could answer all my questions. A few days ago I talked with Boal, a former journalist who wrote the screenplay, basing it on exclusive interviews he conducted with, among others, people at the CIA.
“It’s a movie,” Boal reminded me. “It’s not a documentary.” He continued, “I’m not going to go scene by scene or line by line, because first of all I think I’ve got to have some authorial privilege ... My standard is not a journalistic standard of ‘Is this a word-for-word quote?’ I’m not asking to be held to that standard and I’m certainly not representing my film as that. The standard is more, ‘Is this more or less in the ballpark?’” I pressed for detail and he replied, “It gets very dicey for me if I start confirming specific lines from specific people, so I’m not going to do that.”
I am a journalist of the quotes-are-sacred sort, which means this is the point in the story where I should begin tearing into Boal and Bigelow. But I don’t think the problem rests with them. They set out to create a feature film based on real events, and they have done so, making very clear that the film’s heroine and other characters, while based on real people, are composites or complete inventions. I was hardly the only person who received the it’s-a-movie-not-a-documentary line; the web is filled with instances of that quote from Boal and Bigelow. They are quite literally telling us to not believe every word we hear.
The fundamental problem is that our government has again gotten away with offering privileged access to carefully selected individuals and getting a flattering story in return. Embeds, officially begun during the invasion of Iraq, are deeply troubling because not every journalist or filmmaker can get these coveted invitations (Seymour Hersh and Matt Taibbi are probably not on the CIA press office’s speed dial), and once you get one, you face the quandary of keeping a critical distance from sympathetic people whom you get to know and who are probably quite convincing. That’s the reason the embed or special invitation exists; the government does its best to keep journalists, even friendly ones, away from disgruntled officials who have unflattering stories to tell.
Don’t get me wrong—some good journalism has emerged from embedded or invitation-only reporting. I was embedded on two occasions in Iraq, and I would like to think my stories were critical and worthwhile. But the new and odd rub in the case of Zero Dark Thirty is that the product of this privileged access is not just-the-facts journalism but a feature film that merges fact and fiction. An already problematic practice—giving special access to vetted journalists—is now deployed for the larger goal of creating cinematic myths that are favorable to the sponsoring entity (in the case of Zero Dark Thirty, the CIA). If the access that Boal and Bigelow received was in addition to access that nonfiction writers and documentarians received, I would be a bit less troubled, because at least the quotes in history’s first draft would be reliable, and that means a lot. But as it stands, we’re getting the myth of history before getting the actual history.
Is this the fault of Boal and Bigelow? Not really. I can’t imagine any filmmaker or journalist saying “no” to the sort of access they apparently received (I say “apparently” because they haven’t provided details; much of the information about their access comes from news stories). And I can’t imagine many filmmakers or journalists, having gotten that access, writing a story or making a movie that would be less favorable to the CIA than Zero Dark Thirty. That is the nature of embedding: It primes its targets (I mean, journalists and filmmakers) to create stories that are skewed in the government’s favor. That is one reason, I think, the film presents torture as effective—the CIA is ground zero of that unholy belief. If Boal and Bigelow had embedded at the FBI, whose agents have been critical of torture, their film would probably have a different message about waterboarding, sleep deprivation, and cramming a prisoner into a sealed box that’s no bigger than an oven.
Yet I wonder about the ire the film arouses in its critics. I agree that the movie’s depiction of the CIA is regrettably uncritical; let’s remember, the CIA provided false evidence for going to war against Iraq, it tortured prisoners in secret jails and sent others to third countries where they would be tortured (and covered up as much of this as possible), and it is now engaged in a covert program using aerial drones to kill people who have not been convicted of any crime—and in these attacks women and children are often killed. The film fails to consider the notion that the CIA and the intelligence industry as a whole, rather than being solutions to what threatens us, might be part of the problem. These are big omissions, but let’s be honest—similar omissions are committed every day by journalists, pundits, politicians and filmmakers, and we don’t get terribly upset. At most, we change the channel.
Zero Dark Thirty will likely find a bigger, more captivated audience than any cable-news blatherer would. It’s a dazzling film. But what’s more dazzling—and frustrating—is the government’s skill, time and time again, in getting its story told so uncritically.
In 1987, when Judge Robert Bork was enmeshed in a partisan struggle over his Supreme Court nomination, a reporter for an alternative weekly in Washington, D.C., got a tip that the judge was a patron of a local video store. Michael Dolan went to Potomac Video, in the western corner of the capital, and asked the assistant manager for a list of videos the judge had checked out. “Cool,” the assistant manager said. “I’ll look.”
Dolan’s subsequent story, published in the Washington City Paper, caused a sensation, though not because of the judge’s taste in videos, which, it turned out, was unremarkable. There were a hundred and forty-six rentals in less than two years, including lots of Hitchcock and Bond, as well as movies featuring Meryl Streep and Bette Midler. As Dolan wrote, “Despite what all you pervs were hoping, there’s not an X in the bunch, and hardly an R.”
After a bitter fight, the Senate rejected Bork’s nomination. One thing everyone agreed on, however, was that Bork’s privacy had been invaded. In 1988, Congress passed the Video Privacy Protection Act, making it illegal to release video lists without the customer’s consent to anyone but law enforcement, and then only with an appropriate warrant. It is reasonable to note that the unusually rapid congressional action was perhaps aimed at protecting the privacy of Legislator X as much as Citizen Y. If a reporter could easily get the judge’s video list, a senator’s list would not be much harder to get, and would probably be a lot more lively.
Will the scandal surrounding David Petraeus, General John Allen, Paula Broadwell, Jill Kelley, and a shirtless F.B.I. agent turn into the same sort of eureka moment that Congress experienced when Bork was, as the saying now goes, “borked”? Although the lustful portion of the Petraeus scandal is hardly disappearing—who else will be drawn into it, and when will we read the e-mails?—attention is turning toward the apparent ease with which the F.B.I. accessed the electronic communication of Petraeus, Broadwell, Kelley, and Allen. The exact circumstances of how the F.B.I. got its hands on all this material remains to be revealed—for instance, whether search warrants were obtained for everything—but the bottom line appears to be that the F.B.I. accessed a vast array of private information and seriously harmed the careers of at least Petraeus and Broadwell without, as of yet, filing a criminal complaint against anybody. As the law professor and privacy expert James Grimmelmann tweeted the other day, “The scandal isn’t what’s illegal; the scandal is what’s legal (or what the FBI thinks is legal).”
In recent years, a handful of privacy activists—led by the A.C.L.U., the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the Center for Democracy & Technology—have filed lawsuits and requested official documents in an effort to reveal and challenge the government’s vast surveillance powers. For the most part, they have not succeeded in changing things; the Petraeus scandal appears to show just how much surveillance the F.B.I. and other law-enforcement agencies can conduct without a judge or a company telling them, “No, you can’t have that.”
For instance, in its semiannual transparency report, Google announced this week that it receives more requests for user data from the U.S. government than any other government in the world, and that those requests rose twenty-six per cent in the latest six-month reporting period, to nearly eight thousand; the company said that it complied with ninety per cent of the requests, either fully or partially. As Chris Soghoian, the A.C.L.U.’s principal technologist and senior policy analyst, wrote this week, “The guest lists from hotels, IP [computer] login records, as well as the creative request to email providers for ‘information about other accounts that have logged in from this IP address’ are all forms of data that the government can obtain with a subpoena. There is no independent review, no check against abuse, and further, the target of the subpoena will often never learn that the government obtained data.”
It’s not just e-mail. In July, Representative Edward Markey, a Democrat from Massachusetts, cajoled major cell-phone carriers into disclosing the number of requests for data that they receive from federal, state, and local law-enforcement agencies: in 2011, there were more than 1.3 million requests. As ProPublica reported at the time, “Police obtain court orders for basic subscriber information so frequently that some mobile phone companies have established websites—here’s one—with forms that police can fill out in minutes. The Obama Administration’s Department of Justice has said mobile phone users have ‘no reasonable expectation of privacy.’”
There’s a particularly cruel irony in all of this: if you contact your cell-phone carrier or Internet service provider or a data broker and ask to be given the information on you that they provide to the government and other companies, most of them will refuse or make you jump through Defcon levels of hops, skips, and clicks. Uncle Sam or Experian can easily access information that shows where you have been, whom you have called, what you have written, and what you have bought—but you do not have the same privileges.
The surveillance, which is being challenged in a number of suits, is conducted through an alphabet soup of laws, regulations, and loopholes, including the Wiretap Act, the Electronic Communications Privacy Act (which extended the Wiretap Act to e-mail, and added the Stored Communications Act for stored e-mail), the Foreign Intelligence Surveillance Act, and the Patriot Act (which amended all the others). One of the remedies that’s before Congress is a bill introduced by Senator Patrick Leahy, a Democrat from Vermont, to require that in most cases law-enforcement agents must obtain a search warrant from a judge before getting customer e-mails from an Internet company. It would also provide more guarantees that citizens be notified that their e-mail is being surveilled. It’s only a partial fix, of course; for instance, it does nothing about cell-phone surveillance.
Everyone has an opinion on what should be done, and one of the country’s most famous judges is of two minds on the subject. “It seems to me we often hamper enforcement agencies so that they can’t do their job, and when we aren’t doing that we are cutting them loose so they can abuse their power,” said Judge Bork, reached by phone at his home in northern Virginia. “Is there too much intrusion into private lives? I can’t answer that very well, because sometimes there is, sometimes there isn’t.”
Until now, Congress has not stood in the way of expanding surveillance, mainly because it was justified as part of the effort to prevent another 9/11. But the Petraeus case shows that among the people who have the most to lose from unchecked surveillance are the people who thought they would benefit from it—government élites who allocate the funding and make the laws and operate the bureaucracy of surveillance. Perhaps they will start worrying a bit more about becoming the next Petraeus or Bork. Our legislators, who are not all angels, now have real skin in the game, so to speak.
This story was co-authored with Megha Rajagopalan
Gen. Keith Alexander is the director of the National Security Agency and oversees U.S. Cyber Command, which means he leads the government’s effort to protect America from cyberattacks. Due to the secretive nature of his job, he maintains a relatively low profile, so when he does speak, people listen closely. On July 9, Alexander addressed a crowded room at the American Enterprise Institute in Washington, D.C., and though he started with a few jokes — his mother said he had a face for radio, behind every general is a stunned father-in-law — he soon got down to business.
Alexander warned that cyberattacks are causing “the greatest transfer of wealth in history,” and he cited statistics from, among other sources, Symantec Corp. and McAfee Inc., which both sell software to protect computers from hackers. Crediting Symantec, he said the theft of intellectual property costs American companies $250 billion a year. He also mentioned a McAfee estimate that the global cost of cybercrime is $1 trillion. “That’s our future disappearing in front of us,” he said, urging Congress to enact legislation to improve America’s cyberdefenses.
These estimates have been cited on many occasions by government officials, who portray them as evidence of the threat against America. They are hardly the only cyberstatistics used by officials, but they are recurring ones that get a lot of attention. In his first major cybersecurity speech in 2009, President Obama prominently referred to McAfee’s $1 trillion estimate. Sen. Joseph Lieberman, I-Conn., and Sen. Susan Collins, R-Maine, the main sponsors of the Cybersecurity Act of 2012 that is expected to be voted on this week, have also mentioned $1 trillion in cybercrime costs. Last week, arguing on the Senate floor in favor of putting their bill up for a vote, they both referenced the $250 billion estimate and repeated Alexander’s warning about the greatest transfer of wealth in history.
A handful of media stories, blog posts and academic studies have previously expressed skepticism about these attention-getting estimates, but this has not stopped an array of government officials and politicians from continuing to publicly cite them as authoritative. Now, an examination of their origins by ProPublica has found new grounds to question the data and methods used to generate these numbers, which McAfee and Symantec say they stand behind.
One of the figures Alexander attributed to Symantec — the $250 billion in annual losses from intellectual property theft — was indeed mentioned in a Symantec report, but it is not a Symantec number and its source remains a mystery.
McAfee’s trillion-dollar estimate is questioned even by the three independent researchers from Purdue University whom McAfee credits with analyzing the raw data from which the estimate was derived. “I was really kind of appalled when the number came out in news reports, the trillion dollars, because that was just way, way large,” said Eugene Spafford, a computer science professor at Purdue.
Spafford was a key contributor to McAfee’s 2009 report, “Unsecured Economies: Protecting Vital Information” . The trillion-dollar estimate was first published in a news release that McAfee issued to announce the report; the number does not appear in the report itself. A McAfee spokesman told ProPublica the estimate was an extrapolation by the company, based on data from the report. McAfee executives have mentioned the trillion-dollar figure on a number of occasions, and in 2011 McAfee published it once more in a new report, “Underground Economies: Intellectual Capital and Sensitive Corporate Data Now the Latest Cybercrime Currency”.
In addition to the three Purdue researchers who were the report’s key contributors, 17 other researchers and experts were listed as contributors to the original 2009 report, though at least some of them were only interviewed by the Purdue researchers. Among them was Ross Anderson, a security engineering professor at University of Cambridge, who told ProPublica that he did not know about the $1 trillion estimate before it was announced. “I would have objected at the time had I known about it,” he said. “The intellectual quality of this ($1 trillion number) is below abysmal.”
The use of these estimates comes amid increased debate about cyberattacks; warnings of a digital Pearl Harbor are becoming almost routine. “A cyberattack could stop our society in its tracks,” Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, said earlier this year. Bloomberg reported just last week that a group of Chinese hackers, whom U.S. intelligence agencies referred to as “Byzantine Candor,” have stolen sensitive or classified information from 20 organizations, including Halliburton Inc., and a prominent Washington law firm, Wiley Rein LLP.
There is little doubt that a lot of cybercrime, cyberespionage and even acts of cyberwar are occurring, but the exact scale is unclear and the financial costs are difficult to calculate because solid data is hard to get. Relying on inaccurate or unverifiable estimates is perilous, experts say, because it can tilt the country’s spending priorities and its relations with foreign nations. The costs could be worse than the most dire estimates — but they could be less, too.
Computer security companies like McAfee and Symantec have stepped into the data void. Both sell anti-virus software to consumers, and McAfee also sells a range of network security products for government agencies and private companies, including operators of critical infrastructure like power plants and pipelines. Both firms conduct and publish cybercrime research, too. “Symantec is doing outstanding work on threat analysis,” said Thomas Rid, a cybersecurity expert at Kings College London. “But still, of course they have a vested interest in portraying a more dangerous environment because they stand to gain for it.”
The companies disagree. Sal Viveros, a McAfee public relations official who oversaw the 2009 report, said in an email to ProPublica, “We work with think tanks and universities to make sure our reports are non-biased and as accurate as possible. The goal of our papers [is] to really educate on the issues and risks facing businesses. Our customers look to us to provide them with our expert knowledge.”
Symantec said its estimates are developed with standard methods used by governments and businesses to conduct consumer surveys and come from “one of the few, large, multi-country studies on cybercrime that asks consumers what forms of cybercrime they have actually experienced and what it cost them.”
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Cyberattacks come in many flavors. There are everyday crimes in which hackers access personal or financial information, such as credit card numbers. There are industrial crimes and espionage in which the attacker — perhaps a foreign country or company — breaks into a corporate or government network to obtain blueprints or classified information; sometimes the attacker gets inside a network and lurks there for months or years, scooping up whatever is of interest. One of the biggest categories of cybercrime is one of the least discussed — insider theft, by disgruntled or ex-employees. There’s also a category of attacks that do not have overt financial motives and that can constitute acts of war: Attempts to create havoc in computer systems that control nuclear power plants, dams and the electrical grid. This category is of the greatest concern to national security officials.
One reason it’s a challenge to measure the financial costs of cybercrimes is that the victims often don’t know they’ve been attacked. When intellectual property is stolen, the original can remain in place, seemingly untouched. Even when the breach is known, how do you put a dollar value on a Social Security number, a formula for a new drug, the blueprints for a new car, or the bidding strategy of an oil firm? It may be impossible to know whether an attacker uses intellectual property in a way that causes economic harm to the victim; maybe the data isn’t of much use to the attacker, or maybe the attacker, though using the data to quickly bring out a new product, is not successful in gaining market share.
There’s an added complication in some attacks: Companies can be reluctant to admit they have been hacked because they fear a loss in confidence from consumers or clients. This can lead to underreporting of the problem.
“How do you even start to measure the monetary damages?” asked Nick Akerman, a partner at the law firm of Dorsey & Whitney LLP who specializes in computer cases — and one of the contributors to the McAfee report. “I would argue it is impossible. Not to say the problem isn’t enormous. It is enormous. But I don’t see how you can adequately come up with dollar figures.”
Companies that sell security software are not bound by the same professional practices as academics, whose studies tend to refrain from sweeping estimates. Even when corporate reports involve academic researchers, the results can be suspect. Industry-sponsored studies — pharmaceuticals are an example, according to a 2003 study published by BMJ (formerly known as the British Medical Journal) — can have a bias toward the industry’s economic interests. Unlike academic journals, which use a peer review process, there’s no formal system of oversight for studies published by industry. The economic interest of security companies is clear: The greater the apparent threat, the greater the reason to buy their anti-intruder software. Norton, which is owned by Symantec and sells a popular suite of anti-virus software, advises in its latest cybercrime report: “Don’t get angry. Get Norton.”
Computer scientists Dinei Florencio and Cormac Herley, who work at Microsoft Research, the software giant’s computer science lab, recently wrote a paper, “Sex, Lies and Cyber-crime Surveys,” that sharply criticized these sorts of surveys. “Our assessment of the quality of cyber-crime surveys is harsh: they are so compromised and biased that no faith whatever can be placed in their findings,” their report said. “We are not alone in this judgement. Most research teams who have looked at the survey data on cyber-crime have reached similarly negative conclusions.”
Julie Ryan, a professor of engineering management and systems engineering at George Washington University, co-authored a paper, “The Use, Misuse, and Abuse of Statistics in Information Security Research” . In an interview with ProPublica, she said: “From what I’ve seen of the big commercial surveys, they all suffer from major weaknesses, which means the data is worthless, scientifically worthless. But it’s very valuable from a marketing perspective.”
Yet corporate cybersurveys are repeatedly invoked; the NSA’s Alexander is merely among the most prominent senior officials to do it. ProPublica provided the NSA’s media office with links to critical studies, stories and blog posts about the Symantec and McAfee numbers and asked whether Alexander or the agency was aware of them or, alternately, had other data to support the numbers he cited. The NSA media office responded: “The information is publicly available and was appropriately sourced.”
* * *
McAfee was founded by John McAfee, a software engineer who wrote some of the first anti-virus software in the 1980s. The company grew quickly, thanks in part to a novel marketing strategy in those days — McAfee gave away its software, charging only for tech support. The company went public in 1992 and remained a leader in its field; last year it was acquired by Intel Corp. for $7.68 billion. “We have had just one mission: to help our customers stay safe,” McAfee says on its website. “We achieve this by creating proactive security solutions for securing your digital world.”
In 2008, McAfee decided to commission a report that would look at how the global economic downturn was affecting data theft against companies. McAfee put one of its public relations officials, Viveros, in charge of the project. Viveros, in a phone interview, said a technology marketing company was hired to create and distribute a survey to about 1,000 information and technology executives across the globe. Purdue University’s Center for Education and Research in Information Assurance and Security, headed by Spafford, analyzed the survey results, conducted follow-up interviews and helped write the report. McAfee confirmed that it helped steer $30,000 from a foundation to Purdue for the work.
The 31-page report found that the companies surveyed had an average of $12 million worth of sensitive information stored in offshore computer systems in 2008, and that each lost an average $4.6 million worth of intellectual property in 2008. The report was released on Jan. 29, 2009, in Davos, Switzerland, during a meeting of the World Economic Forum. McAfee issued a news release to announce it, and the release included dramatic numbers that were not in the report.
“The companies surveyed estimated they lost a combined $4.6 billion worth of intellectual property last year alone, and spent approximately $600 million repairing damage from data breaches,” the release said. “Based on these numbers, McAfee projects that companies worldwide lost more than $1 trillion last year.” The release contained a quote from McAfee’s then-president and chief executive David DeWalt, in which he repeated the $1 trillion estimate. The headline of the news release was “Businesses Lose More than $1 Trillion in Intellectual Property Due to Data Theft and Cybercrime.”
The trillion-dollar estimate was picked up by the media, including Bloomberg and CNET, which expressed no skepticism. But at least one observer had immediate doubts. Amrit Williams, a security consultant, wrote on his blog a few days later, “$1 trillion a year? Seriously? Where the hell did the figure come from? To give you some perspective of size the total US GDP is about 14 trillion and that includes EVERYTHING.”
The news stories got the worried attention of some of the report’s contributors because McAfee was connecting their names to an estimate they had no previous knowledge of and were skeptical about. One of the contributors, Augusto Paes de Barros, a Brazilian security consultant, blogged a week after the news release that although he was glad to have been involved in the report, “I could not find any data in that report that could lead into that number. … I’d like to see how they found this number.”
When the number was announced in 2009, McAfee provided no public explanation of how it was derived. “Initially we were just going to do the report, but a lot of people were asking us what was the total number, so we worked on a model,” said McAfee’s Viveros. This week, in response to queries from ProPublica, he disclosed details about the methodology. He said the calculations were done by a group of technology, marketing and sales officials at McAfee and were based on the survey responses.
“McAfee extrapolated the $1 trillion … based on the average data loss per company, multiplied by the number of similar companies in the countries we studied,” Viveros said in an email.
The company’s method did not meet the standards of the Purdue researchers whom it had engaged to analyze the survey responses and help write the report. In phone interviews and emails to ProPublica, associate professor Jackie Rees Ulmer said she was disconcerted when, a few days before the report’s unveiling, she received a draft of the news release that contained the $1 trillion figure. “I expressed my concern with the number as we did not generate it,” Rees Ulmer said in an email. She added that although she couldn’t recall the particulars of the phone conversation in which she made her concerns known, “It is almost certainly the case that I would have told them the number was unsupportable.”
Viveros said McAfee was never told by Purdue that the number could not be supported by the survey data. The company moved ahead with the news release and, Viveros noted, the trillion-dollar estimate “got a life of its own.”
In February 2009, President Obama ordered a 60-day cybersecurity review to look into ways to better protect the country from cyberattacks, and he appointed Melissa Hathaway, who served as a cybersecurity adviser in the Bush administration, to oversee the effort. On May 29, Obama unveiled the review and delivered his first major cybersecurity speech. The second page of the 38-page review cited McAfee’s trillion-dollar figure, and the president used it in his speech, saying, “It’s been estimated that last year alone cybercriminals stole intellectual property from businesses worldwide worth up to $1 trillion.”
The administration’s Cyberspace Policy Review includes footnotes, and the one for the $1 trillion estimate directs readers to McAfee’s news release. It is not an ordinary occurrence that a president relies on the contents of a corporate news release to warn Americans of a major threat to the homeland’s economic and national security, but Hathaway, now a security consultant, told ProPublica that at the time of the president’s speech she was comfortable with McAfee’s estimate because it appeared to be associated with Purdue researchers. However, she became wary of it once she began making more inquiries after the speech. “I tend not to use that number anymore,” she said. “I was surprised that there wasn’t proved methodology behind the number.”
In March 2011, McAfee published its “Underground Economies” report, which repeated the $1 trillion estimate. Criticism of it continued, too. Robert Richardson, then director of the Computer Security Institute, skeptically wrote on the group’s website in the spring of 2011 that “The trillion dollar number is just too good to kill.” Later in 2011, Wired’s British edition reported that “if true, the figure amounts to a massive 1.6 percent of global GDP.” This year, Microsoft Research’s Florencio and Herley wrote an opinion piece in The New York Times that described widely circulated cybercrime estimates as “generated using absurdly bad statistical methods, making them wholly unreliable.”
These critiques have now taken on added importance because government officials are citing a variety of industry-generated numbers in their efforts to bolster support for major cybersecurity legislation. The House passed its version of a cybersecurity bill this spring; the pending Senate bill, known as the Cybersecurity Act of 2012, would enable the U.S. government and private companies to more easily share information about cyberthreats and create a set of voluntary cybersecurity standards for operators of critical infrastructure.
* * *
In his speech at the American Enterprise Institute, Gen. Alexander said Symantec placed the cost of intellectual property theft to the U.S. at $250 billion a year. Tracing the origins of this statistic — as both the U.S. Government Accountability Office and technology writer Julian Sanchez have attempted before — is not unlike pulling a piece of yarn to unravel an old sweater. Although Symantec mentioned the $250 billion estimate in a 2011 report, “Behavioral Risk Indicators of IP Theft,” the estimate is not Symantec’s.
The report mentions the figure in passing, sourcing it in a footnote to a legal paper, where, as it turns out, the $250 billion number is not mentioned at all. Eric Shaw, one of two forensic psychologists Symantec retained to research the “Behavioral Risk” report, told ProPublica the footnote was a mistake. Instead, it should have referred to a different paper that points to a 2003 speech by FBI Director Robert S. Mueller. The figure is also cited in old FBI news releases available via the Internet Archive.
An agency spokeswoman said that although she believed FBI officials used a reliable source for the number, the FBI had neither developed the number nor claimed to have done so. She pointed to another document , from the U.S. Department of Justice, attributing the $250 billion figure to the Office of the U.S. Trade Representative.
Then-Commerce Secretary Gary Locke used the $250 billion number in a 2010 speech. Like Locke, the trade representative is a member of the president’s cabinet; a spokeswoman for the office said the figure was not from them. “Your inquiry appears to refer to an industry-reported figure,” the spokeswoman told ProPublica, pointing to a U.S. Chamber of Commerce paper on intellectual property theft. Sure enough, there’s the $250 billion again — this time attributed to none other than the FBI.
There are other concerns about Symantec estimates cited by Alexander. Drawing from the 2011 Norton Cybercrime Report, Alexander put the direct cost of cybercrime at $114 billion and cybercrime’s total cost, factoring in time lost, at $388 billion. The report was not actually researched by Norton employees; it was outsourced to a market research firm, StrategyOne, which is owned by the public relations giant Edelman.
StrategyOne surveyed almost 20,000 people in 24 countries, asking them to report whether they had experienced cybercrime and how much it had cost them. The company said it used “standard research practice for online surveys” to obtain a representative sample of Internet users. To calculate a total cost, it multiplied the estimated number of victims by the average cost of cybercrime in each country.
But that still leaves room for uncertainty, several researchers told ProPublica. For example, if responses came mainly from those most concerned about cybercrime or from those who suffered the biggest losses, it could inflate the average cost. And one person’s estimate of the financial damage from a cybercrime might be completely different from the next person’s guess, even if both suffered the same crime and the same amount of lost time.
A StrategyOne spokesman, asked if the Symantec estimates could be called scientific, responded, “Yes, as much as any survey or poll that relies on consumers to estimate their losses based on recall.”
Some experts say that’s not good enough. “Nobody can really assess the true impact of cybercrime,” said Franz-Stefan Gady, an analyst at a security-focused think tank called the EastWest Institute. “It’s really the self-reporting — because we can’t verify it. It’s just as simple as that.”
In their 2011 paper, Florencio and Herley of Microsoft Research did not specifically mention the Symantec or McAfee numbers. But they observed, “Far from being broadly-based estimates of losses across the population, the cyber-crime estimates that we have appear to be largely the answers of a handful of people extrapolated to the whole population.”
Sen. Collins added another layer of confusion about the mysterious $250 billion figure when she spoke last week in support of the cybersecurity bill. In remarks on the Senate floor, she mentioned Gen. Alexander and said, “He believes American companies have lost about $250 billion a year through intellectual property theft.”
Collins’ office declined several requests for comment. A spokeswoman for Lieberman, who similarly cited Alexander and the $250 billion figure, replied, “Senator Lieberman and his staff believe that McAfee, Symantec, and General Alexander are reputable sources of information about cybersecurity.”
This article was co-authored with Megha Rajagopalan.
The device in your purse or jeans that you think is a cellphone — guess again. It is a tracking device that happens to make calls. Let’s stop calling them phones. They are trackers.
Most doubts about the principal function of these devices were erased when it was recently disclosed that cellphone carriers responded 1.3 million times last year to law enforcement requests for call data. That’s not even a complete count, because T-Mobile, one of the largest carriers, refused to reveal its numbers. It appears that millions of cellphone users have been swept up in government surveillance of their calls and where they made them from. Many police agencies don’t obtain search warrants when requesting location data from carriers.
Thanks to the explosion of GPS technology and smartphone apps, these devices are also taking note of what we buy, where and when we buy it, how much money we have in the bank, whom we text and e-mail, what Web sites we visit, how and where we travel, what time we go to sleep and wake up — and more. Much of that data is shared with companies that use it to offer us services they think we want.
We have all heard about the wonders of frictionless sharing, whereby social networks automatically let our friends know what we are reading or listening to, but what we hear less about is frictionless surveillance. Though we invite some tracking — think of our mapping requests as we try to find a restaurant in a strange part of town — much of it is done without our awareness.
“Every year, private companies spend millions of dollars developing new services that track, store and share the words, movements and even the thoughts of their customers,” writes Paul Ohm, a law professor at the University of Colorado. “These invasive services have proved irresistible to consumers, and millions now own sophisticated tracking devices (smartphones) studded with sensors and always connected to the Internet.”
Mr. Ohm labels them tracking devices. So does Jacob Appelbaum, a developer and spokesman for the Tor project, which allows users to browse the Web anonymously. Scholars have called them minicomputers and robots. Everyone is struggling to find the right tag, because “cellphone” and “smartphone” are inadequate. This is not a semantic game. Names matter, quite a bit. In politics and advertising, framing is regarded as essential because what you call something influences what you think about it. That’s why there are battles over the tags “Obamacare” and “death panels.”
In just the past few years, cellphone companies have honed their geographic technology, which has become almost pinpoint. The surveillance and privacy implications are quite simple. If someone knows exactly where you are, they probably know what you are doing. Cellular systems constantly check and record the location of all phones on their networks — and this data is particularly treasured by police departments and online advertisers. Cell companies typically retain your geographic information for a year or longer, according to data gathered by the Justice Department.
What’s the harm? The United States Court of Appeals for the District of Columbia Circuit, ruling about the use of tracking devices by the police, noted that GPS data can reveal whether a person “is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.” Even the most gregarious of sharers might not reveal all that on Facebook.
There is an even more fascinating and diabolical element to what can be done with location information. New research suggests that by cross-referencing your geographical data with that of your friends, it’s possible to predict your future whereabouts with a much higher degree of accuracy.
This is what’s known as predictive modeling, and it requires nothing more than your cellphone data.
If we are naïve to think of them as phones, what should we call them? Eben Moglen, a law professor at Columbia University, argues that they are robots for which we — the proud owners — are merely the hands and feet. “They see everything, they’re aware of our position, our relationship to other human beings and other robots, they mediate an information stream around us,” he has said. Over time, we’ve used these devices less for their original purpose. A recent survey by O2, a British cell carrier, showed that making calls is the fifth-most-popular activity for smartphones; more popular uses are Web browsing, checking social networks, playing games and listening to music. Smartphones are taking over the functions that laptops, cameras, credit cards and watches once performed for us.
If you want to avoid some surveillance, the best option is to use cash for prepaid cellphones that do not require identification. The phones transmit location information to the cell carrier and keep track of the numbers you call, but they are not connected to you by name. Destroy the phone or just drop it into a trash bin, and its data cannot be tied to you. These cellphones, known as burners, are the threads that connect privacy activists, Burmese dissidents and coke dealers.
Prepaids are a hassle, though. What can the rest of us do? Leaving your smartphone at home will help, but then what’s the point of having it? Turning it off when you’re not using it will also help, because it will cease pinging your location to the cell company, but are you really going to do that? Shutting it down does not even guarantee it’s off — malware can keep it on without your realizing it. The only way to be sure is to take out the battery. Guess what? If you have an iPhone, you will need a tiny screwdriver to remove the back cover. Doing that will void your warranty.
Matt Blaze, a professor of computer and information science at the University of Pennsylvania, has written extensively about these issues and believes we are confronted with two choices: “Don’t have a cellphone or just accept that you’re living in the Panopticon.”
There is another option. People could call them trackers. It’s a neutral term, because it covers positive activities — monitoring appointments, bank balances, friends — and problematic ones, like the government and advertisers watching us.
We can love or hate these devices — or love and hate them — but it would make sense to call them what they are so we can fully understand what they do.
Jonathan Mayer had a hunch.
A gifted computer scientist, Mayer suspected that online advertisers might be getting around browser settings that are designed to block tracking devices known as cookies. If his instinct was right, advertisers were following people as they moved from one website to another even though their browsers were configured to prevent this sort of digital shadowing. Working long hours at his office, Mayer ran a series of clever tests in which he purchased ads that acted as sniffers for the sort of unauthorized cookies he was looking for. He hit the jackpot, unearthing one of the biggest privacy scandals of the past year: Google was secretly planting cookies on a vast number of iPhone browsers. Mayer thinks millions of iPhones were targeted by Google.
This is precisely the type of privacy violation the Federal Trade Commission aims to protect consumers from, and Google, which claims the cookies were not planted in an unethical way, now reportedly faces a fine of more than $10 million. But the FTC didn’t discover the violation. Mayer is a 25-year-old student working on law and computer science degrees at Stanford University. He shoehorned his sleuthing between classes and homework, working from an office he shares in the Gates Computer Science Building with students from New Zealand and Hong Kong. He doesn’t get paid for his work and he doesn’t get much rest.
If it seems odd that a federal regulator was scooped by a sleep-deprived student, get used to it, because the federal government is often the last to know about digital invasions of your privacy. The largest privacy scandal of the past year, also involving Google, wasn’t discovered by federal regulators, either. A privacy official in Germany forced Google to hand over the hard drives of cars equipped with 360-degree digital cameras that were taking pictures for its Street View program. The Germans discovered that Google wasn’t just shooting photos: The cars downloaded a panoply of sensitive data, including emails and passwords, from open Wi-Fi networks. Google had secretly done the same in the United States, but the FTC, as well as the Federal Communications Commission, which oversees broadcast issues, had no idea until the Germans figured it out.
Nearly every day, and often several times a day, there is fresh news of privacy invasions as companies hone their ability to imperceptibly assemble a vast amount of data about anyone with a smartphone, laptop or credit card. Retailers, search engines, social media sites, news organizations — all want to know as much as they can about their visitors and users so that ads can be targeted as precisely as possible. But data mining, which has become central to the corporate bottom line, can be downright creepy, with companies knowing what you search for, what you buy, which websites you visit, how long you browse — and more. Earlier this year, it was revealed that Target realized a teenage customer was pregnant before her father knew; the firm identifies first-term pregnancies through, among other things, purchases of scent-free products. It’s akin to someone rifling through your wallet, closet or medicine cabinet, but in the digital sphere no one picks your pocket or breaks into your house. The tracking is done mostly without your knowledge and, in many cases, despite your attempts to stop it, as Mayer discovered.
The FTC is the lead agency in the government’s effort to ensure that companies do not cross the still-hazy border between acceptable and unacceptable data collection. But the agency’s ambitions are clipped by a lack of both funding and legal authority, reflecting a broader uncertainty about the role government should play in what is arguably America’s most promising new industry. Companies like Facebook and Google are global brands for which data mining is at the core of present and future profits. How far should they go? Current laws provide few limits, mainly banning data collection from children under 13 and prohibiting the sale of personal medical data. Beyond that, it’s a digital mosh pit, and it’s likely to remain that way because more regulation tends to be regarded by politicians in both parties as meaning fewer jobs. Students will probably continue to beat the FTC to the punch: The agency just has one privacy technologist working in its Division of Privacy and Identity Protection and one in the Division of Financial Practices. “I don’t think it’s controversial to note that they seem to be understaffed,” Mayer said in a phone interview between classes. “I think that’s pretty clear.”
This isn’t the usual sort of story about regulation watered down by intimate ties between government officials and the industry they oversee. Unlike the U.S. Minerals Management Service, where not long ago a number of officials were found to have shared drugs and had sex with representatives of the oil and gas industry, key FTC officials hired by the Obama administration are privacy hawks who worked previously for consumer-rights groups like Public Citizen and the Electronic Frontier Foundation. Under Chairman Jon Leibowitz, a Democrat appointed to the FTC in 2004 and tapped as chairman by President Obama in 2009, the FTC has pushed boundaries; its first privacy technologist, hired shortly after Liebowitz became chairman, was a semifamous activist who made a name for himself by printing fake boarding passes to draw attention to airline security lapses (the FBI, which raided his house, was not pleased). The agency is working with the tech industry to create and voluntarily adopt a Do Not Track option, so that consumers can avoid some intrusive web tracking by advertising firms. And it issued a report this year that called for new legislation to define what data miners can and cannot do.
Yet the FTC is ill-equipped to find out, on its own, what companies like Google and Facebook are doing behind the scenes. For instance, ProPublica discovered that the FTC’s Privacy and Identity Protection technologist has a digital hand tied behind his back because the computer in his office has security filters that restrict access to key websites. While Mayer has an ultrafast Internet connection, top-of-the-line computer, an office chair he loves and tasty lunches for free (“Stanford students do not want in any way,” he notes), the FTC technologist uses his personal laptop and, because there is no Wi-Fi at the agency, connects to the Internet by tethering it to his iPhone. He browses the Web at cellphone speed. There are no free lunches.
The FTC is headquartered in a landmarked building on Pennsylvania Avenue flanked by two sculptures of a man trying to restrain a muscle-bound horse that is straining to gallop away. The sculptures, completed in 1942, are entitled “Man Controlling Trade,” and they explain a lot about the FTC’s current dilemma. The notion of controlling trade, popular when the sculptures were erected a half-century ago, is not a vote-winner today. The FTC was an early battleground of the movement that began in the Reagan era to reduce government regulation. The agency had more than 1,700 employees in the 1970s, but is down to 1,176 today, even though the economy has more than doubled in that span. The FTC’s responsibilities are vast: It must police everything from financial scams to antitrust activity, identity theft and misleading advertising.
Especially among Republicans, there is little interest in providing more resources. California Rep. Mary Bono-Mack, at a recent hearing on privacy legislation, warned that the government “has this really bad habit of overreaching whenever it comes to new regulations.” Although the American Civil Liberties Union may see an epidemic of privacy violations, Bono-Mack said, “I haven’t gotten a single letter from anyone back home urging me to pass a privacy bill.” The skepticism is not just an outside-the-building phenomenon; it comes from within the FTC, too. One of the agency’s five commissioners, Republican Thomas Rosch, dissented from its 2013 budget request, which asks for less money than the prior year budget of $312 million. Rosch said he believed the FTC still wanted too much. “In these austere times we should do more ... with fewer resources,” his dissent said.
The cold shoulder is not entirely Republican. Earlier this year the Obama administration unveiled a “Privacy Bill of Rights” that sets a variety of enviable standards for consumer privacy. “American consumers can’t wait any longer for clear rules of the road that ensure their personal information is safe online,” President Obama said. The document, which among other things would allow individuals to control the data collected on them, was welcomed by consumer groups. But it’s not legislation. It’s a wish-list. The administration hopes that some of its wishes, like a Do Not Track system, will be granted through voluntary industry standards. But many of the wishes require Congress to pass laws that it is unlikely to pass anytime soon. The FTC’s meager budget request would seem to be the best indication yet of the prospects for significantly greater federal privacy protection.
It’s an old story with a new twist. Few industries have as many admirers in Washington, D.C., as Silicon Valley, which unlike the oil industry has what appears to be an equally large number of friends on both sides of the aisle. The tech industry is generally regarded as liberal-leaning — for instance, Eric Schmidt, the Google chairman, was an Obama campaign adviser and serves on the president’s Council of Advisors on Science and Technology. But Sen. John McCain, R-Ariz., was counseled in his presidential bid by both Carly Fiorina, the former CEO of Hewlett-Packard, and by Meg Whitman, the former CEO of eBay who now heads HP. Silicon Valley is one of the country’s few global growth industries; politicians are reluctant to put restrictions on what it can and cannot do.
The FTC tries to do the best with what it has. In 2009, with new Obama-era appointees aboard, it hired Christopher Soghoian, a privacy technologist who could perform the sort of sophisticated forensics that Mayer conducted on Google. A year later, in 2010, the FTC hired its first chief technologist, Edward Felten, a Princeton computer scientist who is highly regarded in tech policy circles. But the three men who have filled the privacy technologist job that Soghoian filled first (each have served for about a year) faced an awkward problem: The desktop in their office is digitally shackled by security filters that make it impossible to freely browse the Web. Crucial websites are off-limits, due to concerns of computer viruses infecting the FTC’s network, and there are severe restrictions on software downloads. When Soghoian tried to download a Wi-Fi-sniffing app, his boss told him within a few minutes that he had tripped a security alarm; he could not use the app on his computer. It had to be deleted immediately.
To defend against hackers, filtered computers are standard in the government, but they are problematic for officials who are trying to discover dishonest activity on the Web; it’s a bit like telling a cop he can’t patrol in high-crime neighborhoods. A handful of unfiltered computers are available in restricted labs at the FTC’s headquarters on Pennsylvania Avenue and its satellite offices on New Jersey Avenue and M Street, but this is an ungainly setup. Rather than leaving their office, waiting for an elevator, swiping their ID badges across a sensor at the lab’s locked door and logging into a computer soaked with malware (because the lab computers are used to test suspicious applications and websites), the technologists have instead stayed in their office and tethered their personal laptops to their personal cellphones. The office does not have a window, and the cell signals are not strong; even by phone standards, their Web connection is slow.
Soghoian and the current privacy technologist, Michael Brennan, tried to get an unfiltered desktop installed in their office. Each time — Soghoian in 2010, Brennan in 2011 — they got tantalizingly close, with new machines delivered to them. But the computers were never connected to the Internet. Someone at the agency — they don’t know who — got cold feet. “I basically had a two-thousand-dollar computer doing nothing,” Soghoian said. Brennan isn’t even at the office so much these days; he is a part-timer who lives in Philadelphia, where he is getting a Ph.D. in computer science at Drexel University. When he works in Washington, the FTC’s privacy gunslinger crashes at a friend’s house.
Only one FTC official has an unfiltered desktop: Felten, the chief technologist. He is the sort of unconventional public servant the FTC has hired in recent years. He was an expert witness in the landmark antitrust suit against Microsoft, a board member of the Electronic Frontier Foundation, and in April he participated in a privacy hackathon with his teenage daughter. Felten, hired mainly to provide policy advice to the FTC chairman, also conducts investigations of suspicious websites or apps — this is what he uses the unshackled computer for. During an interview, he pointed to it, a bit like a museum guide gesturing toward a priceless artwork, and said, “This is rare. I think this is the only one.”
He acknowledged the agency is hindered by a shortage of technical experts who can find the sorts of violations that Mayer stumbled on.
“We could for sure do more if we had more people,” he said while sitting in his office, which is nearly bare, with a few FTC posters on the walls, a small table and chairs, and a large desk for his two computers. “There are a lot of opportunities that we have to let go by because we don’t have the people to seize them ... opportunities to measure and evaluate what’s happening every day in people’s computers and phones.”
Felten, who plans to resume full-time teaching at Princeton in the fall, was asked whether he has better technological resources there.
“Oh yes,” he replied. “That’s certainly the case.”
The mismatch between FTC aspirations and abilities is exemplified by its Mobile Technology Unit, created earlier this year to oversee the exploding mobile phone sector. The six-person unit consists of a paralegal, a program specialist, two attorneys, a technologist and its director, Patricia Poss. For the FTC, the unit represents an important allocation of resources to protect the privacy rights of more than 100 million smartphone owners in America. For Silicon Valley, a six-person team is barely a garage startup. Earlier this year, the unit issued a highly publicized report on mobile apps for kids; its conclusion was reflected in the subtitle, “Current Privacy Disclosures Are Disappointing.” It was a thin report, however. Rather than actually checking the personal data accessed by the report’s sampling of 400 apps, the report just looked at whether the apps disclose, on the sites where they are sold, the types of personal data that would be accessed and what the data would be used for. The body of the report is just 17 pages. (The FTC says it will do deeper research in future reports.)
The mobile unit has an equipment problem, too. Like most government agencies, the FTC issues Blackberries to key officials. Poss, the unit’s director, has one. The Blackberry dominated when Al Gore ran for president, but today it’s barely an also-ran with just 12 percent of the smartphone market. That’s not a problem if you only use your Blackberry for texts, emails and calls. But it’s a problem if, like Poss, your job is to keep track of what’s happening in the smartphone market. Most consumers use Androids or iPhones, and most of the apps written for them are not available on the Blackberry.
If Poss wants to learn what’s going on in the 88 percent of the smartphone market that her Blackberry cannot access, she would need to leave her office and go to one of the FTC labs, where she can use or check out an iPhone or Android. It’s a clunky setup, so she resorts to a familiar workaround: She uses her personal smartphones. She has an iPhone as well as an Android.
A moment after she mentioned this in an interview, she added, “I probably shouldn’t be saying that.”
FTC officials are reluctant to talk about their lack of funding, partly because public whining, especially during hard economic times, is infrequently rewarded. It’s also politically unwise. A vocal portion of the electorate believes the government and its regulatory arms have too much money and power as it is. Additionally, the FTC is trying to keep the tech industry honest by hinting that the feds are watching everything. It does not help if Silicon Valley realizes the FTC possesses just a handful of iPhones and Androids that are kept under lock and key in the basement.
The interview with Poss was conducted in an office on the third floor of the FTC’s headquarters, with an FTC spokeswoman on hand. When Poss was asked whether it wouldn’t make sense for the director of the Mobile Technology Unit to have a government-issued iPhone or Android, the spokeswoman, Claudia Farrell, interceded.
“He’s trying to get you to bitch, Patti. Don’t do it.”
Poss, a lawyer who has worked at the FTC for more than 12 years, began to look uncomfortable, as though she was in the witness box, unsure what she was supposed to say. She made amends by noting she can use her office computer to look at the smartphone app descriptions posted on the websites where they are sold. Then she reversed herself.
“Actually, you can’t,” Poss said. “We have some restrictions on the sites we can visit on government computers.”
She hesitantly mentioned that Apple’s app store is among the sites blocked by the FTC’s security system. If she wants to look at the most popular websites for mobile apps, she has to go to a basement lab.
Farrell joined the conversation again.
“You’re not going to make this a gut-wrenching story about how Patti has to leave the confines of her office to do her work?”
The FTC maintains an aura of secrecy about its Internet testing labs in Washington. Their location is known but not much else. Officials would not talk about the equipment in the labs. Poss and Farrell refused to divulge the number of iPhones and Androids, though it appears to be not much more than a handful. “I don’t want to lead you to think we have an unlimited supply,” Poss acknowledged before being discouraged from acknowledging anything more.
It is hard for outsiders to know more because the FTC refuses to let reporters visit the labs.
“We’re not going to show it to you, no way,” said David Vladeck, who directs the agency’s Bureau of Consumer Protection and controls access to the labs.
It was pointed out that government agencies conducting far more secret operations — such as the Pentagon and the Central Intelligence Agency — often allow journalists and other outsiders to visit classified facilities. The embedding program during the Iraq war gave reporters the chance to report on the planning and execution of secret military operations. The FTC’s labs would not seem to rival the technology displayed when journalists ride aboard nuclear-powered submarines, for instance.
Vladeck would not bend.
“We don’t trust anybody,” he said.
Current and former FTC officials say the labs are the size of suburban living rooms, with computers and accessories that do not look much different from what would be seen at a Kinko’s. “There’s nothing special there,” Soghoian said. “It looks like a computer room in a public library or middle school.”
Vladeck’s appointment, in 2009, was welcomed by consumer-rights activists because of the nearly three decades he worked as a crusading lawyer for Public Citizen, which was founded by Ralph Nader; Vladeck has advocated long and hard for better government regulation. A conversation with Vladeck, who has argued four cases before the U.S. Supreme Court and won three of them, is akin to a combative courtroom session. He often leans across the table and speaks in a high-pitched bellow. During an interview in his office, he said that when he arrived at the FTC, “We weren’t geared up for this battle.” That’s partly because the Bush-era FTC was not terribly aggressive on privacy but also because data mining has particularly taken off in the past few years.
“No regulator is ever going to tell you that he or she is satisfied with the resources,” Vladeck said. “Would I like more resources? Of course, and I think I could put them to good use. But let me toot our own horn. We’ve gotten an enormous amount done in three years. I think we are sending a strong signal to the industry — you’ve got to straighten up and do the right thing.”
Since he arrived, the FTC has reached privacy settlements with the some of the largest tech firms, including Facebook, Google and Twitter, though in each case, there were no fines, because the FTC’s authority to issue fines on a first offense is limited. The agency is like a runner with two sprained ankles, because in addition to its narrow legal power, it has a surprisingly small staff to pursue its legal cases.
Staffing at the Division of Privacy and Identity Protection, which does the bulk of the FTC’s privacy work and is under Vladeck’s control, slid from 51 in 2011 to 50 in 2012, even though the data mining industry it oversees has rapidly expanded; it now employs more than 100,000 people and has revenues close to $5 billion, according to industry analyst and newsletter publisher Gregory Piatetsky-Shapiro. There are about 20 lawyers working on privacy cases at the FTC. “The bottlenecks are the lawyers for the most part,” Soghoian said. And the FTC has another problem: Republican Rep. John Mica, chairman of the House Committee on Transportation and Infrastructure, is trying to evict the agency from its headquarters, which is on a prime block of Pennsylvania Avenue.
Vladeck has improvised. He described his strategy as similar to highway cops — the point isn’t to catch every car that breaks the speed limit, but enough to signal to the others that they can’t get away with much. He goes after the shiniest cars.
Yet those cases demonstrated the FTC’s limits, too. The agency was created in 1914 to prevent unfair and deceptive practices in commerce. Unfairness is harder to prove in privacy — what’s inappropriate data collection to one person might be fair and harmless to another — so the FTC is focusing enforcement efforts on deception. That means a company has to say one thing about its data-collection practices and do another. But many companies have privacy policies that say very little — in which case, they aren’t deceiving consumers if they do things that might be untoward.
Ironically, the best way for a company to avoid privacy tussles with the FTC is to not say much about their privacy practices. On the other side of things, many companies protect themselves from prosecution by fully disclosing their policies in dense legal jargon that few consumers bother to read or, when they do, they have a hard time understanding that their personal data will be collected and shared in nearly infinite ways. Companies that follow these strategies — and many do — are difficult targets for the FTC.
Big firms like Google and Facebook, which depend on consumers using their services, cannot get away with having no policy at all or hiding behind legal hieroglyphics. They are the shiny cars that the FTC pulls over when it can. The agency pounced when Google introduced its Buzz social network because Gmail users were more or less swept into Buzz without their consent, even though Google had previously said it would not take unilateral action of that sort. The agency can take companies to court, but its overworked lawyers don’t really have the time to go the distance against the bottomless legal staffs in Silicon Valley. The FTC settled the Buzz case with Google, which agreed to annual privacy audits for 20 years and promised to not lie to consumers about what the company does with their data. If Google violates the settlement, it then faces financial penalties that could be quite large — this is akin to a two-strike rule.
The settlement process is time-consuming, however. Due to the agency’s small legal staff, some settlements take years to complete, and by the time they’re done, the targeted companies are not what they used to be. Last month, the FTC announced a privacy settlement with Myspace, which it accused of disclosing user information to third parties despite pledging not to do that. The investigation was opened in 2009, when Myspace was already a fading giant; by the time it was concluded in May, Myspace was all but a museum artifact. On Twitter, reaction to the suit included jokes to the effect of, “You mean Myspace still exists?”
Although the agency has some sway with Google and other companies that are sensitive to reputational issues — an FTC settlement might not hurt Google’s bottom line but the bad press could — it has less influence over data mining firms like LexisNexis, Choicepoint and RapLeaf, whose revenues come mostly from businesses rather than consumers. This is a major hole in the government’s effort to protect consumers from privacy violations, and the FTC has all but thrown up its hands in futility. The privacy report it issued earlier this year called on Congress to pass legislation that would set guidelines on acceptable practices by data miners. The odds of that happening are quite long, because of industry opposition to government oversight and the difficulty of getting agreement in Congress on what should and should not be allowed.
Even though he lives in university housing, Jonathan Mayer is a star in the world of digital privacy; he is the mop-haired kid who busted Google in his spare time. Silicon Valley companies seek him out to learn what he’s up to. Mayer, being clever, uses these encounters to learn about the companies. What are they thinking about the most? What do they fear the most? He has made another discovery.
“The FTC doesn’t strike fear into the heart of tech companies,” he says. “They know that as long as they stay within lax boundaries, it’s unlikely the FTC will bring enforcement actions against them.”
Yet there is a feared privacy watchdog, Mayer notes: the European Union. American companies have far less political influence in Europe, and Europeans are far more attentive to privacy issues, partly due to memories of Nazi-era totalitarianism. Because most tech services offered to Europeans are the same as offered to Americans, protections required by EU regulators are usually extended to American consumers. It’s the globalization of digital regulation: What happens in one country can affect all countries.
For instance, under Irish privacy law, citizens are entitled to know the information a company possesses on them — and this was used against Facebook by a 24-year-old Austrian, Max Schrems, who asked the company to hand over all the data it had on him. Facebook’s international headquarters are located in Dublin, so the firm had to comply. Last year it gave Schrems more than 1,200 pages of data that included just about every keystroke he had made while on the social network, including items he had deleted and location information he had never provided. Facebook had kept almost every poke and like, every friend and defriend, every invitation accepted or rejected. Schrems posted the information online and compared his Facebook dossier to the data that the East German secret police, the Stasi, had kept on millions of citizens.
In effect, Schrems exposed Facebook’s data retention practices, and this led to a big change. In May, Facebook said its 900 million customers — not just the ones in Europe — would receive far more detail on its data collection, making it easier for them to know what information was being collected and what was being done with it. The company acknowledged that the change was the result of a harsh report issued by Irish authorities looking into the Schrems case. Ireland wasn’t trying to protect the privacy rights of Americans, but its pressure on Facebook had precisely that effect.
The outsourcing of consumer data protection has been going on for a number of years. In 2008, European privacy officials asked Google, Microsoft and Yahoo! to delete, far quicker than they were doing, the data they were retaining about user searches. In short order, the search giants complied — not only for their European customers but for Americans, too. “The EU drives regulation worldwide,” Mayer says. “While we make nods to self-regulation and cooperation, the reality is that the EU is getting all of this done.”
The power of Europe’s privacy regulators — and the weakness of America’s — was demonstrated most vividly in the Street View dustup. While there was only modest protest against Google photographing American streets and homes, the company immediately ran into big trouble when its cars began to roam around Europe. The collection and abuse of personal information also was a hallmark of communist regimes that ruled Eastern Europe during the Cold War. Throughout Europe, local and national authorities expressed concerns about Street View, and the project quickly hit a number of walls.
Google promised its cars were only taking pictures — and the firm’s word was enough for U.S. officials — but French authorities demanded to know for sure. They inspected one of the vehicles in 2010 and realized that Google was not telling the whole story: The hard drives in the cars were downloading data from Wi-Fi networks. Google downplayed the revelation by contending the downloads were innocuous — just technical data, not personal information.
In Germany, where popular opposition to Street View was strongest, the data commissioner of Hamburg, Johannes Caspar, demanded to inspect a Street View car, too. At first, Google reportedly told him it didn’t know where the cars were. The firm eventually found one — but its hard drive was gone. At that point, Google said it was taking a new look at what the cars were downloading. Caspar insisted the company hand over a hard drive. After a few months, Google complied. Caspar discovered that Google had downloaded vast amounts of personal data.
It had done the same in the United States.
Vladeck had a quick response when it was suggested the Europeans were better privacy watchdogs.
“That’s a lie,” he shot back.
He leaned forward, speaking a bit more slowly.
“That is a lie.”
He argued that although the Germans uncovered Street View’s data collection, the FTC was not asleep at the wheel because it was investigating Street View at the time. But Vladeck said the FTC could not have done much even if it had examined a hard drive, since the agency’s reach extends only to unfair or deceptive practices. Google had never told consumers it wasn’t downloading Wi-Fi data, so it hadn’t deceived them by doing so. To prove an unfair practice, the FTC would have needed to show that the data downloads caused consumers an unavoidable harm. “Street View would have been a very difficult case for us,” Vladeck said. The agency quietly closed its investigation in late 2010 with no action.
Google was not yet free of the government’s watchdogs. The Federal Communications Commission conducted a separate investigation of its own and discovered the data collection was not accidental, as Google had claimed once it owned up to downloading the data. The FCC sharply criticized Google in April but fined the company just $25,000, which is not even a rounding error in the Web giant’s first quarter profit of $2.89 billion.
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