Criminal Document Disclosures & Foreign Asylum: Is Edward Snowden Christoph Meili?

As the saga of whether Edward Snowden will accept an offer of asylum in Latin America continues, his situation allows some comparison to the fascinating story of Michel Christopher Meili.

Who's Meili?

Is there an EFF sticker on that volume?
Photo by Gisela Blau

In brief, Meili was a 29-year old Swiss citizen and an employee of a private company with significant connections to his government - the Union Bank of Switzerland. In 1997 Meili was a security guard, who happened upon 2 carts full of Holocaust-era banking documents related to Jewish clients of UBS that were slated for destruction. Inspired by "Schindler's List," Meili removed several volumes of the documents from his employer's possession. Instead of going directly to the authorities, he instead disclosed the documents to outside sources.

As a result, not only did Meili lose his job, but he was also under investigation by Swiss authorities for violating Swiss law.  Moreover, according to Meili's testimony in a U.S. Senate hearing (available here), after Swiss police took possession of the documents, they told Meili that the Swiss government was treating the documents as "classified," despite the fact that they were UBS documents, and that they "would never be seen by people 'outside Switzerland.'"

Finally, while Meili believed he was exposing an act of destruction that was, or should have been, illegal, the Swiss police told him that they had concluded that UBS had done nothing wrong.

Meili testified

One of the things that I have learned in these last few months is that there are certain powers in Switzerland that do not want to see the Swiss Banks and our government exposed for what they did during the Holocaust and that they will do anything - including destroying documents, restricting and controlling Police investigations, hiding/burying evidence and lying publicly.

The reason why Meili gave testimony to the U.S. Congress was that while he was temporarily in the United States, Sen. Alfonse D'Amato organized a Senate hearing about, and including, Meili.  D'Amato expressly acknowledged that Meili "today is under investigation for violating Swiss bank secrecy laws for disclosing the records" and that he had also received threats against him in Switzerland by individuals opposed to his actions (no doubt in the same vein as disturbing statements about what should happen to Snowden in the comments section of many articles about him).

The Senate hearing was designed to assess what actions the United States could take to protect Meili.  Congress determined that although Meili did "not meet the necessary criteria for permanent residency under any existing categories" under U.S. law, that Meili nevertheless deserved sanctuary in the United States.  Therefore Congress passed a special law, Private Law 105-1 that granted Meili, his wife, and his children permanent residency in the United States "[n]otwithstanding any other provision of law."

The law specifically cites the fact that Meili was "interrogated by the local Swiss authorities who tried to intimidate him by threatening prosecution for his heroic actions."  President Clinton signed the law on July 29, 1997.  According to a spokesperson, President Clinton, after reviewing the case, decided that it was "appropriate" that Meili be given permanent residence in the United States.

The actions of the United States in the Meili affair could therefore provide a model for Venezuela, Nicaragua, or Bolivia in granting Snowden asylum. On the issue of whether Snowden would technically qualify as a refugee under international law, for example, see "Snowden's asylum case" by Jaya Ramji-Nogales here. Regardless of the merits of Snowden's case under current international or domestic law, however, one of those countries that have offered him asylum could simply follow the U.S. example and make Snowden's asylum a special case.

As to the more substantive similarities between the actions of Snowden and Meili, to be absolutely clear, I am not drawing any comparison between the NSA surveillance programs and the Holocaust.  I am comparing, however, the decision to grant "asylum" in some form to a foreign citizen who was under active investigation for violating the laws of his country and violated his obligations to his employer in order (1) to disclose ongoing NSA surveillance programs versus (2) to disclose historical banking records that may have been relevant to individual ownership claims for property plundered by the Nazis a half a century earlier. That comparison can cut in many different ways depending upon one's perspective (e.g., how one weighs the severity of the crime v. the importance of the disclosure) and the two cases are distinguishable in many ways (e.g., despite the investigation, Switzerland had not cancelled Meili's passport or sought extradition).

The point is that comparing Snowden with Meili is another illustration that the Snowden affair is clearly not as simple as upholding the "rule of law" as President Obama asserted.  The most striking example of the contrast is in the statements of Sen. Charles Grassley who has stated about Snowden that "I believe that whatever the law requires, just like anybody that breaks the law, [Snowden] needs to be prosecuted" and that "I suppose it gets down to - did he break a law? - I think it's pretty obvious he did."  The very same Sen. Grassley, during the 1997 Senate hearing on Christoph Meili, gave this rather remarkable statement which deserves reprinting:

The situation we have here with Mr. Meili, albeit everything that he has brought to our attention has worldwide implications, but a person like him acted out of bravery, or maybe the bravery comes after he has acted because he has had to withstand the mental torture of what has gone on since then. But it reminds me of a lot of things that happen in our own Government, and I realize his is a private sector situation, but I like to think that we keep our Federal Government honest when we have people in our Government who, when something is wrong, will be willing to come forward and say what is wrong.

We speak of these people in our Government as whistleblowers. Maybe, originally, that was to denigrate them, but as far as I am concerned the word "whistleblower" is a description of somebody who wants to seek the truth, who wants to make sure that all of the facts and circumstances are known so that a wrong can be corrected.

*   *   *   * 

Well there is a lesson to all of us in the Congress of the United States when we have an example like this before us that we should not be denegrating people who seek the truth. We should be helping them be protected, we should help them get their story out, and we should help them make sure that they are not harmed economically or physically, or even professionally, because of seeking the truth.

Now, I know in some instances not every whistleblower has a credible story, so you do have to be circumspect to the extent to which we investigate every complaint that comes to our attention. But it seems to me that we ought to be honoring people who seek the truth, as Mr. Meili has sought the truth, and to expose wrongdoing. That is my interest in this. Besides helping Mr. Meili, it is my interest in also making sure that we are very consistent in the Congress of the United States in encouraging whistleblowers to come forth with information when something is wrong, because we do not have the time in the Congress to know where every skeleton is buried in every closet.

Judge Lamberth calls Russia "scofflaw" and "outlaw" over Jewish Archives

The AP reports that at today's hearing in the Chabad v. Russian Federation case (for previous coverage see here, here, and here) Judge Lamberth called Russia a "scofflaw" and an "outlaw" for "refusing his order to hand over a Jewish group's historical books and documents."

AP further notes that "Russia has refused to recognize the authority of the U.S. court" that the it has "transferred some of the documents to the Jewish Museum in Moscow" and that last week "Russian President Vladimir Putin visited the museum and called the case 'closed.'" We'll see.

No Progress in Negotiations with Russia over Jewish Archives

The plaintiffs in Chabad v. Russian Federation filed a notice to the court yesterday indicating that despite the efforts of the State Department in "government-to-government" negotiations with the Russian Government, "with which Chabad has cooperated," none of the materials from the historical Jewish library and archives that are the subject of the litigation have been transferred to the United States. 

In January, as reported here, Judge Royce Lamberth issued $50,000 per day contempt sanctions against Russia for failing to comply with the Court's 2010 Order to transfer the collections to the Plaintiff. 

Given that the subsequent efforts to obtain the collections have failed Chabad noted in yesterday's filing that it "hereby reserves its right to pursue and enforce the remedies that the Court has granted.  A status conference is set for later this month.

Is the NSA Destroying Records Related to its Collection of Phone Data?

By now everyone will have seen Glenn Greenwald's piece "NSA collecting phone records of millions of Verizon customers daily", the "purported" Foreign Intelligence Surveillance Act court order on which the article is based, and the Obama Administration's talking points in response.

After the shock over the FISA order subsides, the big question becomes: "What has the NSA been doing with this data and any other material it may be obtaining?"

The troubling fact is that the NSA is very likely not retaining all of the information necessary to verify the answers it will give to such questions.  Where's my evidence?

NSA records schedule N1-457-08-001, approved in 2009, governs the fate of "SIGINT Operational Data" such as "intercepted communications" including "voice, data or video and related records" as well as "SIGINT Operational Analysis Information and Records" and other relevant records. I've posted it here (it is also available on the National Archives website here, although intelligence-related schedules posted there have been known to suddenly become "temporarily unavailable").

What does the NSA SIGINT records schedule say?

First, all the "Operational Data" (Item 1) itself is considered "temporary" and the NSA is empowered to destroy such records as soon as it is no longer of "intelligence interest or potentially useful" in NSA's "analytic research."  Making the retention of this data subject only to NSA's interests and uses is remarkable in that it completely ignores the value of these records in providing, among other things, accountability and evidence of the extent of NSA operations.  How this is consistent with, for example, the federal records laws, which require that agencies preserve records "necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency's activities" is less than clear. 44 U.S.C. § 3101 (emphasis added).  Some of this concern is perhaps alleviated by the breadth of the FISA order given that it provides independent evidence that can confirm whether the NSA collected data of a given person (if you were using a relevant Verizon system during a relevant time period, the answer appears to be yes), but such data (and other collected material we may know nothing about) unquestionably has significant value beyond this.

Similarly, "SIGINT Collection Methods" (Item 5) which includes records relating to "the acquisition, processing, analysis, reporting" of "intercepted target communications" and "SIGINT Tasking/Targeting Analysis" (Item 7) which includes "information/data that document the exchange of SIGINT material" and "documentation reflecting the acquisition, receipt, source control, distribution/location" of "SIGINT material" are also considered "temporary" records subject to destruction after 5 years.  This means that decades from now, when historians are finally granted access to freshly declassified NSA records in order to study these events, any records the NSA places in these rather vague and pliable categories will no longer exist.  Even if a Congressional committee were to begin a new investigation today, records in such categories could already be gone prior to a moving 5-year wall of destruction that currently sits somewhere around 2008.

Second, the NSA records schedule provides that several other categories of SIGINT records are "permanent" including "SIGINT Product," which are serialized intelligence reports (Item 2) and "SIGINT Operational Analysis Information and Records" (Item 3), which includes "tasking messages," "dossiers, listings," and "evaluation plans." However, the retention of these "permanent" records are also, like the "temporary" ones above, subject to a significant "EXCEPTION" which notes:

Any data that contains, or could contain, U.S. person information has legal ramifications. There are strict timelines for retention of this data and it must be handled in accordance with USSID SP0018, including Annex A, Appendix 1 [try here]; DoD 5240.1-R [try here]; and any special minimization procedures that govern the retention of that data. For data collected pursuant to the Foreign Intelligence Surveillance Act (FISA) or Protect America Act (PAA), retention may only be done in accordance with the minimization procedures for that data.

Thus even though the value of these records was appraised to be important enough to require permanent retention (as in, you can never destroy it), the most Constitutionally-significant records among them involving "U.S. person information" will nevertheless be destroyed based on limited retention periods.

This highlights a fascinating, distressing conflict between the goal of protecting the privacy rights of individuals by using "minimization procedures" that limit how long the NSA can retain U.S. person data, on the one hand, and the value of protecting our privacy rights by preserving such records to document the extent of NSA domestic operations and to provide long-term accountability (even if just historical accountability), on the other.  Minimization procedures have existed for years and have been blessed by the FISA court and apparently the National Archives. In my view, however, the idea that the NSA could surreptitiously collect, analyze, and utilize data about my communications and then erase its footprints by destroying the records of having done so in the name of protecting my rights seems like a poor form of protection.  The destruction of such documentation could remove the evidence necessary to verify the breadth of NSA collection and how they actually used the data and thereby makes NSA assurances that either data was never collected or was never used for nefarious purposes ultimately a matter of trust (or conspiracy). I personally would prefer that the NSA be required to retain more of these records in order to provide verifiable accountability.

A similar conflict has arisen with some frequency in determining what to do with the records of state security services following the fall of repressive regimes (drawing the comparison only by analogy).  Nations have sometimes decided to destroy such records based on the conclusion that they were inappropriately collected and, as with minimization retention limits, to protect privacy and to prevent their use for any abusive purposes in the future.  Just as often, however, nations have decided to preserve such records for accountability and as evidence and history.  See, e.g., Antonio Gonzalez Quintana, Archival Policies in the Protection of Human Rights (pdf see esp. 51-55).  I don't think these latter considerations have been sufficiently considered in current debates over surveillance, perhaps today would be a good day to start.

[Updated to correct typo]

Update on Possible Declassification of Seized Bin Laden Documents

Last week the House Permanent Select Committee on Intelligence held a hearing called "Worldwide Threats" that included testimony from Director of National Intelligence James Clapper, Director of the Defense Intelligence Agency Lt. Gen. Michael Flynn and others. There was a brief portion in which Representative Devin Nunes asked about the exploitation and status of the documents seized in Bin Laden's compound in Abbottabad.  Clapper indicated that he had recently met with someone from the Combating Terrorism Center at West Point - which had previously released 17 documents from the compound - in order to discuss "what we could do to move out, move ahead on declassifying these captured documents" and that there is "a good reason for us to declassify to the extent that we can" to "make this available more widely for academic research."

A video of the full hearing is available here and the relevant portion is isolated in video here and transcript is below:

REP. DEVIN NUNES: Thank you Mr. Chairman. Director Clapper, I remain concerned about the files from the Abbottabad raid. Specifically, what is it, what has been done with it, where is it and what more is being done with it? Maybe some of this we can get into in closed session as to the specifics, but I'd like for you just to kind of give an assessment from your perspective of the different agencies that fall under you. How would you grade the intelligence community's job that they've done with these files in terms of combing through all of them and doing a thorough job? If you could just kind of give a basic assessment grade of what's been done so far.

DIR. JAMES CLAPPER: Well, I would say at least a B+ or A-. I think to start with, when the, in the immediate aftermath of the raid, we established a 7 by 24 joint task force composed of nine components of the intelligence community to, as soon as we receive the media from the raid, to triage it and it was clearly a community effort and to go through it as quickly as we could to determine if there were any immediate threats or threat plotting. So the executive agent for the documents is the CIA and they continue to look at the material. As well at CENTCOM an organization originally established by the then commander of CENTCOM, General Petraeus, was a center of excellence, which is now part of the Director of Intelligence J2 operation, is going through on a very, very detailed basis, all the documents to, almost in an academic research context to read out any further findings from these documents that might bear on a threat. I recently met with, along with the deputy of NCTC, National Counterterrorism Center - with a representative from the Combating Terrorism Center at the United States Military Academy at West Point, about what we could do to move out, move ahead on declassifying these captured documents, since there was a tranche of about 17 documents totaling 300 pages that were released immediately to this organization. And I do think there is a good call, a good reason for us to declassify to the extent that we can and we don't in any way justify current operations, current intelligence, U.S. intelligence operations or sources or methods, and to make this available more widely for academic research.

REP. DEVIN NUNES: Well, I'd like to make myself available. I'd like to see some of this raw intelligence if possible. I mean, that may answer some of my questions in terms of if somebody could walk me all the way through it, exactly what it is and what you guys have been doing with it. Would that be possible? 

DIR. JAMES CLAPPER: Well, there were at least 400, over 400 intelligence reports that were issued in the initial aftermath, immediately after the raid. I don't know what that number is since then. 

REP. DEVIN NUNES: And I think you know what I'm getting at, right? There's been some rumors in the press and stories in the press that the administration has used these documents to basically, instead of connect the dots that al Qaida is continuing to flourish around the globe, or the greater al Qaida network, it's been used to disconnect the dots, And, I just want to put that to bed because I have great confidence in you and all of the agencies, and think it's our job as members of the oversight committee to make sure that we put these rumors to rest out in the public. 

DIR. JAMES CLAPPER: I haven't, to be candid, I haven't heard that, but I certainly can arrange a briefing for you on how these documents have been managed from the time they were acquired. 

REP. DEVIN NUNES: OK. Well, I appreciate that. 

GEN. MICHAEL FLYNN: If I could, yeah, just because the director mentioned the efforts by Central Command, one of the things that I can assure everybody is that the secondary exploitation, if you will, the sort of the second phase of what we're doing to take this amount, these, this exploited information that is being shared around, certainly in our military channels and I know throughout the intelligence community, for any lessons learned, any things that we can take away from that, not only with Central Command, but with our Africa Command, with our European Command and other certainly military organizations around the world. So the, and I don't have the number off the top of my head, but I know that there have been hundreds of additional reports that have been subsequently published that has allowed us to understand what we have been facing for some time. And I would add that as the, as Director Brennan said earlier, we are a learning organization and we absolutely take the kinds of information that we're getting out of this reporting to learn and to continue to adapt. 

REP. DEVIN NUNES: Well, thank you, General Flynn.