is the journalist who first broke the story about Edward Snowden. He was previously a columnist at The Guardian newspaper and is creating a new media venture with Laura Poitras, Jeremy Scahill and eBay founder Pierre Omidyar.
American Civil Liberties Union deputy legal director and director of its Center for Democracy.
The German publication Der Spiegel has revealed new details about a secretive hacking unit inside the National Security Agency called the Office of Tailored Access Operations, or TAO. The unit was created in 1997 to hack into global communications traffic. Hackers inside the TAO have developed a way to break into computers running Microsoft Windows by gaining passive access to machines when users report program crashes to Microsoft. In addition, with help from the CIA and FBI, the NSA has the ability to intercept computers and other electronic accessories purchased online in order to secretly insert spyware and components that can provide backdoor access for the intelligence agencies. American Civil Liberties Union Deputy Legal Director Jameel Jaffer and journalist Glenn Greenwald join us to discuss the latest revelations, along with the future of Edward Snowden.
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, as we continue our conversation about the National Security Agency. On Sunday, the German publication Der Spiegel revealed new details about secretive hacking—a secretive hacking unit inside the NSA called the Office of Tailored Access Operations, or TAO. The unit was created in 1997 to hack into global communications traffic. Still with us, Jameel Jaffer, deputy legal director of the ACLU, director of the ACLU’s Center for Democracy, and Glenn Greenwald, the journalist who first broke the story about Edward Snowden. Glenn, can you just talk about the revelations in Der Spiegel?
GLENN GREENWALD: Sure. I think everybody knows by now, or at least I hope they do after the last seven months reporting, that the goal of the NSA really is the elimination of privacy worldwide—not hyperbole, not metaphor, that’s literally their goal, is to make sure that all human communications that take place electronically are collected and then stored by the NSA and susceptible to being monitored and analyzed. But the specifics are still really important to illustrate just the scope and invasiveness and the dangers presented by this secret surveillance system.
And what the Der Spiegel article details is that one of the things that the NSA is really adept at doing is implanting in various machines—computers, laptops, even cellphones and the like—malware. And malware is essentially a program that allows the NSA, in the terminology that hackers use, to own the machine. So, no matter how much encryption you use, no matter how much you safeguard your communication with passwords and other things, this malware allows the NSA to literally watch every keystroke that you make, to get screen captures of what it is that you’re doing, to circumvent all forms of encryption and other barriers to your communications.
And one of the ways that they’re doing it is that they intercept products in transit, such as if you order a laptop or other forms of Internet routers or servers and the like, they intercept it in transit, open the box, implant the malware, factory-seal it and then send it back to the user. They also exploit weaknesses in Google and YouTube and Yahoo and other services, as well, in order to implant these devices. It’s unclear to what extent, if at all, the companies even know about it, let alone cooperate in it. But what is clear is that they’ve been able to compromise the physical machines themselves, so that it makes no difference what precautions you take in terms of safeguarding the sanctity of your online activity.
AMY GOODMAN: So, I mean, just to be really specific, you order a computer, and it’s coming UPS, or it’s coming FedEx, and they have it redirected to their own—you know, to the NSA, and they put in the malware, the spyware, and then send it on to you?
GLENN GREENWALD: Correct. That’s what the Der Spiegel report indicates, based on the documents that they’ve published. But we’ve actually been working, ourselves, on certain stories that should be published soon regarding similar interdiction efforts. And one of the things that I think is so amazing about this, Amy, is that the U.S. government has spent the last three or four years shrilly, vehemently warning the world that Chinese technology companies are unsafe to purchase products from, because they claim the Chinese government interdicts these products and installs surveillance, backdoors and other forms of malware onto the machinery so that when you get them, immediately your privacy is compromised. And they’ve actually driven Chinese firms out of the U.S. market and elsewhere with these kinds of accusations. Congress has convened committees to issue reports making these kind of accusations about Chinese companies. And yet, at the same time, the NSA is doing exactly that which they accuse these Chinese companies of doing. And there’s a real question, which is: Are these warnings designed to steer people away from purchasing Chinese products into the arms of the American industry so that the NSA’s ability to implant these devices becomes even greater, since now everybody is buying American products out of fear that they can no longer buy Chinese products because this will happen to them?
AMY GOODMAN: The story is reported by Jacob Appelbaum, Laura Poitras and a group of Der Spiegel reporters. Is this based, Glenn, on Edward Snowden’s revelations, the documents that he got out and shared with you and Laura Poitras?
GLENN GREENWALD: Der Spiegel doesn’t actually indicate the origin of the documents, so I’m going to go ahead and let them speak to that themselves. What I can tell you is that there are documents in the archive that was provided to us by Edward Snowden that detail similar programs. Whether these specific documents that Der Spiegel published come from them or from a different source is something I’m going to go ahead and let them address.
AMY GOODMAN: Talk about the beginning of this piece. "In January 2010, numerous homeowners in San Antonio, Texas, stood baffled in front of their closed garage doors." Take it from there, Glenn. Glenn, are you still with us? We may have just lost Glenn. I’ll just read a little more, until we reconnect with Glenn.
“In January 2010, numerous homeowners in San Antonio, Texas, stood baffled in front of their closed garage doors. They wanted to drive to work or head off to do their grocery shopping, but their garage door openers had gone dead, leaving them stranded. No matter how many times they pressed the buttons, the doors didn’t budge. The problem primarily affected residents in the western part of the city, around Military Drive and the interstate highway known as Loop 410.
“In the United States, a country of cars and commuters, the mysterious garage door problem quickly became an issue for local politicians. Ultimately, the municipal government solved the riddle. Fault for the error lay with the United States’ foreign intelligence service, the National Security Agency, which has offices in San Antonio. Officials at the agency were forced to admit that one of the NSA’s radio antennas was broadcasting at the same frequency as the garage door openers. Embarrassed officials at the intelligence agency promised to resolve the issue as quickly as possible, and soon the doors began opening again.
"It was thanks to the garage door opener episode that Texans learned just how far the NSA’s work had encroached upon their daily lives. For quite some time now, the intelligence agency has maintained a branch with around 2,000 employees at Lackland Air Force Base, also in San Antonio."
Jameel Jaffer, the significance of this, and the legality of what is happening here?
JAMEEL JAFFER: You know, I think that what bothers me most about these programs is the bulk aspect of it or the dragnet aspect of it. When the NSA has good reason to believe probable cause that a specific person is engaged in terrorism or something like that, it doesn’t bother me that much that the NSA is surveilling that person. I think that’s the NSA’s job. The problem with a lot of these programs is that they are not directed at people thought to be doing something wrong. They’re not directed at suspected terrorists or even suspected criminals. These programs are directed at everybody. Or, to say that a different way, they’re not directed at all. They’re indiscriminate.
And if you think about what the Fourth Amendment was meant to do, what the Constitution was meant to do, it was meant to ensure that the government couldn’t engage in surveillance without some reason. And all of this, all of this surveillance that the NSA is engaged in, essentially flips that on its head. It collects information about everybody in the hope that the surveillance will lead to suspicion about somebody. It’s supposed to be doing it the other way around, starting with the suspicion and then going to the search. It’s starting with the search and going to suspicion. And I think that that’s really, really dangerous, and it’s exactly what the Fourth Amendment was meant to prohibit.
AMY GOODMAN: You know, when it came to the judge’s decision recently, you have the judge that says that this is constitutional, but it followed the judge saying this is Orwellian and likely unconstitutional. Why the difference of opinion between these two judges?
JAMEEL JAFFER: Well, I think one judge got it right, and the other one got it wrong. I mean, I think that, you know, Judge Pauley—Judge Pauley was not very skeptical towards the government’s claims. The government made claims about the effectiveness of the program, about the necessity of the program, claims that were contradicted by information already in the public record, information put into the public record by government officials. And Judge Pauley nonetheless deferred to the government’s claims in court, which is a disappointment to us.
AMY GOODMAN: Let’s get back to Glenn Greenwald. Glenn, I just read the first couple of paragraphs of the piece in Der Spiegel about the garage doors that wouldn’t open because the garage door openers were actually operating on the same frequency of the NSA, which was really vastly expanding in San Antonio at the time. But could you take it from there? The significance of this and this Tailored Access Operations, this particular unit, and how significant it is?
GLENN GREENWALD: Yeah, one thing I think that it underscores, this was in a community that had no idea that there was this gargantuan NSA hacking unit that had sprawled up in its community, and it shows just the power of how much they’re doing, that they just simply shut down the electric devices of an entire community that didn’t know that they were even there.
But the TAO, the Tailored Access Operations unit, is really remarkable because the government, the U.S. government, has been warning for many years now about the dangers of hackers, both stateless hackers as well as state-sponsored hackers from China and from Iran and from elsewhere. And the reality is that nobody is as advanced or as prolific when it comes into hacking into computer networks, into computer systems, than the NSA. And TAO is basically a unit that is designed to cultivate the most advanced hacking operations and skills of any unit, any entity on the Earth. And so, yet again, what we find is that exactly the dangers about which the U.S. government is shrilly warning when it comes to other people, they’re actually doing themselves to a much greater and more menacing degree than anybody else is. And that’s the significance of this particular unit inside of the NSA, is they do all of the most malicious hacking techniques that hackers who have been prosecuted by this very same government do and much, much more.
AMY GOODMAN: Talk about White Tamale, Glenn Greenwald.
GLENN GREENWALD: Well, I mean, I think that—you know, a lot of the—one of the good things about this particular story is that it was—the lead writer on it was Jake Appelbaum, who is, you know, one of the world’s leading experts when it comes to computer program. He’s the developer of the Tor Project, one of the developers of the Tor Project, which is designed to safeguard anonymity on online browsing, to make it impossible for hostile states to be able to trace where people are. And one of the things he did was take some very technical documents and translated it into a way that the public should be able to understand it.
And so, several of these programs, including White Tamale, are about insertions of malware into various forms of electronics. And he actually gave a speech this morning explaining some of this. And what he essentially said is that, with these programs, the government is able to literally control human beings through control of their machines. We hear all of this—these stories about the NSA being very targeted in the kinds of communications that they want to collect and store, and the types of people whom they’re targeting that are very specific and discriminating, and yet what several of these programs are, that are revealed by Der Spiegel, are highly sophisticated means for collecting everything that a user does, and it implicates the people with whom they’re communicating and a whole variety of other types of online activity in which they’re engaging.
AMY GOODMAN: I want to turn to computer security researcher Jacob Appelbaum, who you were just talking about, who co-wrote the piece for Der Spiegel, who was speaking, as you just said, in Hamburg, Germany, at this conference, the Chaos Communication Congress.
JACOB APPELBAUM: Basically, their goal is to have total surveillance of everything that they are interested in. So there really is no boundary to what they want to do. There is only sometimes a boundary of what they are funded to be able to do and to the amount of things they’re able to do at scale. They seem to just do those things without thinking too much about it. And there are specific tactical things where they have to target a group or an individual, and those things seem limited either by budget or simply by their time.
And as we have released today on Der Spiegel's website, which it should be live—I just checked; it should be live for everyone here—we actually show a whole bunch of details about their budgets, as well as the individuals involved with the NSA and the Tailored Access Operations group, in terms of numbers. So it should give you a rough idea, showing that there was a small period of time in which the Internet was really free and we did not have people from the U.S. military that were watching over it and exploiting everyone on it, and now we see, every year, that the number of people who are hired to break into people's computers as part of grand operations, those people are growing day by day.
AMY GOODMAN: Also speaking in Hamburg, Germany, at the Chaos Communication Congress this weekend was WikiLeaks’ Sarah Harrison, who accompanied Edward Snowden to Russia and spent four months with him. She spoke after receiving a long standing ovation.
SARAH HARRISON: My name is Sarah Harrison, as you all appear to know. I’m a journalist working for WikiLeaks. This year I was part, as Jacob just said, of the WikiLeaks team that saved Snowden from a life in prison. This act in my job has meant that our legal advice is that I do not return to my home, the United Kingdom, due to the ongoing terrorism investigation there in relation to the movement of Edward Snowden documents. The U.K. government has chosen to define disclosing classified documents with an intent to influence government behavior as terrorism.
AMY GOODMAN: That was Sarah Harrison. Glenn Greenwald, talk more about her significance. She isn’t talked about as much, but she said at this conference that after leaving Russia, she’s now in Germany and cannot go back to England, where she lives, for fear of being arrested.
GLENN GREENWALD: Yeah, there’s a lot of people who debate WikiLeaks and the like, but there is no question that WikiLeaks deserves a huge amount of credit for the work they did in saving Edward Snowden from what probably would have been, certainly, ultimate detention by the authorities in Hong Kong, and then extradition or handing over to the United States, which would have put him in prison and silenced him, as Daniel Ellsberg said, pending a trial, and then almost certainly convicted him, given the oppressive laws that prevent whistleblowers who are charged with Espionage Act violations from raising the defense that what they did was justified and they were actually blowing the whistle and not engaged in espionage.
And the person at WikiLeaks who sacrificed the most and who was the most heroic was Sarah Harrison, who flew to Hong Kong, who met Snowden, who traveled with him to Moscow, who stayed with him for several months while first he was in the airport and then he was—he was getting acclimated to his life in Moscow. And not only did she give up those months of her life and put herself at risk, but she’s now in danger of not being able, as she just said in that clip, to return to her own home.
And the terrorism investigation that she was referencing is the one that has arisen and that the U.K. government is conducting in the context of its detention of my partner, David Miranda, at Heathrow Airport. And we’ve challenged that detention in court. And in response, the U.K. government has said, number one, they are conducting an investigation, a criminal investigation, under terrorism laws against him, against Laura Poitras and myself, and against anybody at The Guardian involved in the reporting of these stories. And that means that everybody implicated in the reporting of the story, which has caused a global debate around the world and worldwide reform, is now a suspect in a terrorism investigation. That is how radical and extreme the U.K. government, working in partnership with the U.S. government, has become. And every lawyer that Laura and I have talked to has said, "You should not, in any way, put yourself at risk of getting apprehended by the U.K. government." And obviously, as a British citizen, she is well advised not to return to the U.K., for the crime of working in a journalistic capacity to bring these stories to the world. And of all the criminals that we—of all the criminality that we’ve exposed in this case, I think the most egregious is the attempt by the U.S. and the U.K. government to convert journalism not only into crime and not only into espionage, but into actual terrorism. It’s a real menace to a free press in an ongoing way.
AMY GOODMAN: Glenn, you addressed this congress, the Chaos Congress in Hamburg, but you didn’t go. You did it by Skype or by some form of video communication. Do you feel you can travel to Europe? Do you feel you can travel to the United States?
GLENN GREENWALD: You know, there’s clearly risk for my doing either. I think the big risk—I mean, I would feel completely free to travel to a country like Germany. The problem is, is that Germany is in the EU, along with the U.K., and there are all kinds of laws and other conventions that govern the ability of the U.K. to claim that somebody has engaged in terrorism and then force other EU states to turn them over. And so, I have very good lawyers who are working to resolve all of these various risks, but every lawyer that I’ve spoken with over the past four months has said that "You would be well advised not to travel until these legal issues are resolved." Laura Poitras has gotten the same advice. Obviously, Sarah Harrison has gotten the same advice.
There are very genuine legal threats that are deliberately being hung over the heads of those of us who have worked on these stories and are continuing to work on these stories, in an attempt to intimidate us and deter us from continuing to report. It’s not going to work. We’re going to report as aggressively as if these threats didn’t exist. But their mere existence does provide all sorts of limitations, not only on us, but other journalists who now and in the future will work on similar stories. It is designed to create a climate of fear to squash a free press.
AMY GOODMAN: Former NSA director, General Michael Hayden, appeared on Face the Nation Sunday and accused Edward Snowden of being a traitor.
GEN. MICHAEL HAYDEN: I used to say he was a defector, you know, and there’s a history of defection. Actually, there’s a history of defection to Moscow, and that he seems to be part of that stream. I’m now kind of drifting in the direction of perhaps more harsh language.
MAJOR ELLIOTT GARRETT: Such as?
GEN. MICHAEL HAYDEN: Such as "traitor." I mean—
MAJOR ELLIOTT GARRETT: Based on what?
GEN. MICHAEL HAYDEN: Well, in the past two weeks, in open letters to the German and the Brazilian government, he has offered to reveal more American secrets to those governments in return for something. And in return was for asylum. I think there’s an English word that describes selling American secrets to another government, and I do think it’s treason.
AMY GOODMAN: Hayden also responded to questions about the impact of Snowden’s revelations on the NSA. He was being interviewed by Major Garrett.
MAJOR ELLIOTT GARRETT: Is the NSA stronger or weaker as a result of Edward Snowden’s disclosures?
GEN. MICHAEL HAYDEN: It’s infinitely weaker.
MAJOR ELLIOTT GARRETT: Infinitely?
GEN. MICHAEL HAYDEN: Infinitely. This is the most serious hemorrhaging of American secrets in the history of American espionage. Look, we’ve had other spies. We can talk about Hanssen and Aldrich Ames, but their damage, as bad as it was, was fairly limited, even though in those—both of those cases, human beings actually lost their lives. But they were specific sources, all right? There’s a reason we call these leaks, all right? And if you extend the metaphor, Hanssen and Ames, you could argue whether that was a cup of water that was leaked or a bucket of water that was leaked. What Snowden is revealing, Major, is the plumbing. He’s revealing how we acquire this information. It will take years, if not decades, for us to return to the position that we had prior to his disclosures.
AMY GOODMAN: Glenn Greenwald, I wanted you to respond to that and also the latest request by Edward Snowden to get asylum in, well, the country where you now live, in Brazil, and the significance of the debate, at least reported by The New York Times that’s going on within the intelligence community and the White House about whether Edward Snowden should possibly be granted amnesty.
GLENN GREENWALD: First of all, Michael Hayden, in that clip, as he so often does, just told outright lies. Just anyone who has any doubts should go read the letter that Edward Snowden wrote to the people of Brazil, as well as to the people of Germany, and compare it to what Michael Hayden lied and said that he actually did. He never offered to give documents in exchange for asylum or anything like that. He did the opposite. He has been repeatedly pursued by officials of both countries asking him to participate in the criminal investigations that they are conducting about spying on their citizens. And he was essentially writing a letter to say, "Unfortunately, I’m not able to help, even though I would like to help in any legal and appropriate way, because I don’t actually have permanent asylum anywhere, and the U.S. government is still trying to imprison me. And until my situation is more secure, I’m not able to help." He was writing a letter explaining why he can’t and won’t participate in those investigations, not offering anything in return for asylum or anything else like that.
Secondly, just let me make this point about the complete ignorance of Michael Hayden. He said in that clip that Edward Snowden should now be deemed to be a traitor because he’s engaged in treason by virtue of having offered asylum in exchange for documents. Let’s assume he really did do that. Go and look at what the Constitution defines treason as being. It is very clear. It says treason is the giving of aid and comfort to the enemies of the United States—the enemies of the United States. So, even if you want to believe Michael Hayden’s lie that Edward Snowden offered information and documents in exchange for asylum to Germany and Brazil, are Germany and Brazil enemies of the United States? It’s not treason even if you believe the lies of Michael Hayden.
Thirdly, I think the real question here is: Why do we even have to have the discussion of Edward Snowden needing amnesty and asylum from other countries or needing amnesty from the United States? What he did is not like Aldrich Ames or Hanssen or anybody else like that. He didn’t sell these documents to foreign adversary governments, as he could have, and lived the rest of his life extremely rich. He brought them to some of the leading journalistic organizations in the world and asked that they be published only in a way that will inform his fellow citizens and the rest of the world about what is being done to their privacy. It is classic whistleblowing behavior. And the real question is: Why are whistleblowers in the United States either prosecuted vindictively and extremely or forced to flee the country in order to avoid being in a cage for the rest of their life? That’s the real question.
And the final thing I want to say is, you know, all this talk about amnesty for Edward Snowden, and it’s so important that the rule of law be applied to him, it’s really quite amazing. Here’s Michael Hayden. He oversaw the illegal warrantless eavesdropping program implemented under the Bush administration. He oversaw torture and rendition as the head of the CIA. James Clapper lied to the face of Congress. These are felonies at least as bad, and I would say much worse, than anything Edward Snowden is accused of doing, and yet they’re not prosecuted. They’re free to appear on television programs. The United States government in Washington constantly gives amnesty to its highest officials, even when they commit the most egregious crimes. And yet the idea of amnesty for a whistleblower is considered radical and extreme. And that’s why a hardened felon like Michael Hayden is free to walk around on the street and is treated on American media outlets as though he’s some learned, wisdom-drenched elder statesman, rather than what he is, which is a chronic criminal.
AMY GOODMAN: Finally, Jameel Jaffer, the ACLU is the legal adviser for Edward Snowden—Ben Wizner of the ACLU. What is going on behind the scenes right now? Is there a discussion between Snowden and the U.S. government around the issue of amnesty?
JAMEEL JAFFER: Well, I think that Edward Snowden has been very direct and very open about his intentions and what he wants from the U.S. government. He would like to come back to the United States. Obviously, he doesn’t want to come back under the conditions that are being offered right now.
I think that Michael Hayden’s statements were really irresponsible and outrageous. I mean, the idea that Edward Snowden has damaged national security is ludicrous. And it’s not that Edward Snowden has exposed just secrets of the NSA; he has exposed, as Glenn says, the lies of the NSA. James—the director of national intelligence, Mr. Clapper, testified to Congress that the NSA wasn’t collecting information about millions of Americans. It turns out that they were. The solicitor general told the Supreme Court that the NSA was providing notice to criminal defendants who had been surveilled. Turns out they weren’t. So it’s all these misrepresentations about the NSA’s activities that Edward Snowden has exposed, and I think that’s a great public service. I think it’s a travesty that Edward Snowden is in Russia. And we’re hopeful that he’ll be able to return to the United States, not in—not to face criminal charges, but rather with the kind of amnesty that he deserves.
AMY GOODMAN: I want to thank you both for being with us, Jameel Jaffer, deputy legal director of the ACLU, director of the ACLU’s Center for Democracy, and Glenn Greenwald, who broke the story about Edward Snowden, speaking to us from Brazil, now creating a new media venture with Laura Poitras and Jeremy Scahill and eBay’s Pierre Omidyar.
This is Democracy Now!, democracynow.org, The War and Peace Report. Tune in, by the way, to our New Year’s Day show, when we go through the major stories of 2013. Of course, the story about the NSA is top of the list. This is Democracy Now! We’ll be back in a minute.