Secrecy News

Sorting Through the Snowden Aftermath

Public discussion of the Edward Snowden case has mostly been a dialog of the deaf, with defenders and critics largely talking past each other at increasing volume. But the disagreements became sharper and more interesting over the past week.

“Mr. Snowden is not a patriot. He is not a whistleblower. He is a criminal,” wrote the members of the House Intelligence Committee in a startling September 15 letter to the President, urging him not to pardon Snowden, contrary to the urging of human rights groups.

“The public narrative popularized by Snowden and his allies is rife with falsehoods, exaggerations, and crucial omissions,” the House Intelligence Committee wrote in the executive summary of an otherwise classified report on Snowden’s disclosures.

Remarkably, however, the House Committee report itself included numerous false statements and misrepresentations, according to an analysis by Barton Gellman, who had reported on Snowden’s disclosures for the Washington Post.

“The report is not only one-sided, not only incurious, not only contemptuous of fact. It is trifling,” wrote Gellman, who identified several apparent errors and falsehoods in the House Committee summary.

What is perhaps worse than what’s contained in the House document, though, is what is missing from it: Congressional intelligence overseers missed the opportunity to perform any reflection or self-criticism concerning their own role in the Snowden matter.

The fact that U.S. intelligence surveillance policies had to be modified in response to the public controversy over Snowden’s disclosures was a tacit admission that intelligence oversight behind closed doors had failed to fulfill its role up to that point. But since the Committee has been unwilling to admit any such failure, it remains unable to take the initiative to rectify its procedures.

Last week, a coalition of non-governmental organizations proposed various changes to House rules that they said would help to improve the quality of intelligence oversight and make it more responsive to congressional needs and to the public interest.

Meanwhile, several human rights organizations launched a campaign to urge President Obama to pardon Snowden.

“Thanks to his act of conscience, America’s surveillance programs have been subjected to democratic scrutiny, the NSA’s surveillance powers were reined in for the first time in decades, and technology companies around the world are newly invigorated to protect their customers and strengthen our communications infrastructure,” the petition website said. “Snowden should be hailed as a hero. Instead, he is exiled in Moscow, and faces decades in prison under World War One-era charges that treat him like a spy.”

However, aside from that oblique reference to the Espionage Act of 1917, the petition campaign does not acknowledge any defect in Snowden’s conduct or weigh counterarguments. (A somewhat more nuanced defense of a pardon was presented by Tim Edgar in Lawfare. A substantial rebuttal to the pardon proposal was offered by Jack Goldsmith also in Lawfare.)

But of course what complicates the Snowden matter is that his disclosures exceeded the boundaries of “democratic scrutiny” and went well beyond any identifiable “act of conscience.”

“The fact is, many of Snowden’s documents bore no resemblance to whistleblowing as the phrase is broadly understood,” wrote Fred Kaplan in a review of the new Oliver Stone movie about Snowden in Slate. Rather, he said, they represented “an attempt to blow U.S. intelligence operations.”

Advocacy journalist Glenn Greenwald replied with a debater’s point that Snowden is innocent of any such offense since he (Snowden) did not directly disclose anything at all to the public! Instead, he gave documents to newspapers that reported on his material, and those papers are responsible for any inappropriate disclosures.

“Snowden himself never publicly disclosed a single document, so any programs that were revealed were the ultimate doing of news organizations,” according to Greenwald.

In an oddly mercenary argument, he also wrote that it was hypocritical of the Washington Post editorial board to oppose a pardon for Snowden, considering that the Post had gained “untold millions of clicks” from his disclosures, and therefore somehow owed him a debt of loyalty.

But an effort to shift responsibility away from Snowden on to news reporters and editors proves too much. It implies that Snowden is not a whistleblower at all, since he himself didn’t blow any whistles, his journalistic collaborators did.

It seems more sensible to conclude that Snowden is responsible for his own actions as well as for the directly foreseeable consequences of those actions.

In an interesting response to Jack Goldsmith, Marcy Wheeler wrote that it is possible to comprehend — if not to reconcile — the sharply opposing views of the Snowden case if they are understood as a clash between professed American values (such as openness, privacy, and internet freedom) and American interests and actions (such as global surveillance and projection of military power). The former, “cosmopolitan” view presumes, however, that the favored values transcend, and can be sustained apart from, their national and institutional roots.

One thought on “Sorting Through the Snowden Aftermath

  1. Secrecy News may refer to Glenn Greenwald as an “advocacy journalist” making “debater’s points” (what is the Snowden controversy but a debate?), but the blog has not addressed his argument that it is the editors and publishers of major news organizations that bear primary responsibility for publicly disclosing the information that Snowden disclosed to them. Snowden disclosed nothing to the public directly. This cannot be questioned. And, as Greenwald has said elsewhere, in disclosing the documents he did disclose, Snowden, mindful of his own biases, gave explicit instructions to journalists that he expected them to use their judgment and make the final decision about what should be published (or not) in consultation with interested government officials. Snowden’s conduct as a leaker in this respect could not have been more exemplary. To ignore or downplay these crucial facts, in the context of assessing whether Snowden should be pardoned (as Jack Goldsmith has done), is much more “oddly mercenary” than it is to highlight them. And, if Greenwald did not say exactly the following, then it is nonetheless still the case that this context of Snowden’s actions must unavoidably figure into the moral and legal calculus of what he did, the propriety of his being pardoned, and the question of whether he should return to the U.S. to stand trial in what would effectively be a kangaroo court.

    Although the proposition is under attack from virtually everyone in and around the political establishment, from Cass Sunstein to Donald Trump, if the First Amendment’s freedom of speech and press provisions mean anything, it is that the judgment of what information is in the national interest, or affects national security, to such a degree that the public is entitled to know it is not a judgment that is at all properly left to any government to determine alone, no matter what may be the formal connections between the people’s elected representatives and the actual classifiers (which get more and more abstract and attenuated, and less plausibly substantive, the larger the bureaucracy becomes), and no matter what may be an agency’s internal controls, which will always be self-interested. Secrecy News itself acknowledges this principle, if to a lesser degree in a slightly different context, through its unofficial circulation of Congressional Research Service reports. This is the Constitutional maxim that Snowden vindicated (to enlighten Goldsmith), although Snowden and his campaigners are certainly smart enough not to present this argument in a pardon application, as such a proposition will not likely be countenanced by any President (or, for that matter, by any law professor at Harvard or the University of Chicago).

    That it was necessary for Snowden (and for leakers generally) to violate one or more criminal statutes to enable this democratic function – which it clearly was after Drake, Binney et al., as even Edgar diplomatically acknowledged – is self-evident: it is only the NSA (or its leadership), and the intelligence agencies generally, not to mention the President and other high officials in the executive branch, that need to look in the mirror. They got their pants ripped off because they were so arrogant and paranoid and self-important that they believed that they owned the information that they were keeping secret, and that, at least for a time, certainly before the FISA amendments in 2008, they could operate outside the law (they could of course – this is one of the major problems of our time). I find that that is much more obviously damaging to the national interest and security than any revelation of so-called sources and methods, and that the public was entitled to know about it notwithstanding any claim of the intelligence agencies that legitimate intelligence objects were being pursued.

    Apropos, Goldsmith may call Snowden’s leak “the most damaging leak by far in American history”, but has either Edgar or Goldsmith made this case? Edgar simply states the proposition then leaves it standing in the wind without bothering to support it, expecting perhaps that readers will be satisfied that his status as an intelligence community insider with ACLU street cred makes him an authoritative source. Goldsmith, despite his painstaking speculative attempt to have us believe that some damage must have been caused by Snowden’s leaks and must be known only behind the scenes by intelligence professionals, simply argues from ignorance. Goldsmith, to be sure, adds that because some of what Snowden leaked was legal and “proper”, according to the intelligence agencies, it necessarily follows that, contra Greenwald, “mere legality is sufficient to shield a program from justifiable transparency.” However, if it is the revelation of specific sources and methods, that obscurantist intelligence incantation, that the two men may believe is automatically damaging to national security, I am sorry to inform them that they are sorely mistaken. On the contrary, in part because of what Snowden helped to expose, this presumption stands naked. To quote Chris Hedges: “What the security and surveillance state is doing is playing on fear and using that fear to accrue to themselves tremendous forms of power that in a civil society, in a democracy, they should never have.”

    In general, I have found it disconcerting reading Secrecy News over the years that the blog, which is excellent, but which purports to advocate for smart and accountable transparency, has continually, though not necessarily too frequently (the above post is the most recent example), voiced sentiments that tend to undermine freedom of the press as a pillar of democratic accountability. I suspect that this tendency arises out of a bias which, for reasons yet to be explained, the blog has consistently shown against political action outside the “proper channels”, whether it be leaks or public campaigns (say, to pardon Snowden), as though these were somehow presumptively legally or morally invalid, or ineffective. I think Secrecy News owes its readers an explanation for this stance, or at least a more spirited defense of the presumption.

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