By David E. Sanger
POSTED: 06:54 p.m. HST, May 29, 2014
LAST UPDATED: 07:05 p.m. HST, May 29, 2014
WASHINGTON » The National Security Agency on Thursday released what it said was the sole internal email from Edward J. Snowden before he fled with a trove of agency secrets, and officials asserted that the message undercut his argument that he protested the legality of surveillance programs before he released any of the documents he stole to journalists.
The email to the NSA general counsel’s office, dated April 8, 2013, makes no reference to the government’s bulk collection of telephone data or other surveillance or cyberprograms. Nor does it raise concerns about violations of privacy.
Instead, Snowden was seeking clarification about the hierarchy of laws governing the NSA, based on what he had learned in an agency training course about privacy protection rules for handling intercepted information.
By the time the email was sent, Snowden, who was a private contractor and not an agency employee, had already implanted software in the NSA system that was copying its files automatically. Two months later, the first of those files were made public by journalists who had received them from Snowden.
The NSA released the email in response to Snowden’s assertion in an interview with Brian Williams of NBC News that was broadcast on Wednesday night. In the interview, Snowden said he had raised complaints both in Hawaii and at the NSA headquarters at Fort Meade, Maryland, about “real problems with the way the NSA was interpreting its legal authorities.”
Now living in Moscow to avoid prosecution in the United States, he said the response he received was “more or less” that he “should stop asking questions.”
On Thursday, in an email exchange with The Washington Post, Snowden said the NSA’s response was a “clearly tailored and incomplete leak” released for “political advantage.” He suggested that for the full story, the White House should “ask my former colleagues, management and the senior leadership team.”
The email the NSA released is from “ejsnowdnsa.ic.gov,” an address that was taken out of service last year. It cites information in the NSA course about what he calls “The Hierarchy of Governing Authorities and Documents.” Snowden lists the order of legal authorities this way:
— “US constitution
— Federal Statutes/Presidential Executive Orders (EO)
— Department of Defense (DoD) and Office of the Director of National Intelligence (ODNI) regulations
— NSA/CSS Directives and Policies.”
Lesser regulations appear further down. Snowden was concerned about the second line because “it seems to imply Executive Orders have the same precedence as law.”
A few days later, a lawyer in the NSA general counsel’s office wrote back in an email that begins “Hello Ed” and continues: “Executive Orders (EOs) have the ‘force and effect of law.’ That said, you are correct that EO’s cannot override a statute.”
Officials who have examined the email said Thursday that they suspected Snowden was trying to determine whether some espionage activities may have been conducted under executive orders instead of laws passed by Congress. “But we don’t know for sure,” said an official who requested anonymity in discussing classified material. “We do know we can’t find other complaints.”
The email was released after the government again found itself on the defensive concerning Snowden’s revelations. Some administration officials had argued for releasing the document much earlier to rebut Snowden’s case that he should be regarded as a whistle-blower.
His interview with Williams was not the first time Snowden said that he had tried to complain about NSA programs.
“I had reported these clearly problematic programs to more than 10 distinct officials, none of whom took any action to address them,” he said in testimony presented to the European Parliament in March. “As an employee of a private company rather than a direct employee of the U.S. government, I was not protected by U.S. whistle-blower laws.”
The Obama administration had resisted releasing the unclassified email from Snowden. But its hand was forced after the NBC interview, and Sen. Dianne Feinstein, D-Calif., who is chairwoman of the Senate Intelligence Committee, told administration officials that her panel would release the email.
“I believe this transparency is important and should also be applied to the communication that Snowden referenced in his recent interview,” she said in a statement. Feinstein has been among his greatest critics.
The Obama administration also denied that Snowden had been trained as a spy, as he told Williams on NBC. The NSA’s mission is to intercept and decode signals intelligence and, increasingly, to conduct cyberoperations. But while its employees frequently operate undercover, they do not conduct operations the way CIA officers do. The national security adviser, Susan E. Rice, told Charlie Rose in an interview Thursday night that “we have no idea” where Snowden’s “assertion comes from.”