On the NSA Surveillance Scandal and the Peculiar Mr. Snowden III

3.  Mr. Snowden’s actions must be appraised against the need for principled governmental transparency in a democracy and the imperative to maintain operational secrecy within civilian and military intelligence agencies.  To these ends, he needs to come home, not merely to face justice, but also to participate meaningfully in the broader social inquiry on privacy and national security raised by his revelations. 

Proceeding from my two previous posts, the revelations made by Edward Snowden to The Guardian (see Greenwald, “NSA collecting phone records of millions of Verizon customers daily,” in The Guardian (5 June 2013), at: http://www.guardian.co.uk/world/2013/jun/06/nsa-phone-records-verizon-court-order) suggest that, legally speaking, the Obama administration never actually did anything legally suspect in its collections of metadata under the legal requirements of the Foreign Intelligence Surveillance Act (FISA).  On the other hand, the reaction to NSA’s actions in the collection of metadata and other Internet-based surveillance programs directed toward U.S. citizens on American soil suggests that a more fundamental violation of trust by the administration and Congressional Intelligence Committee members, transcending the statutory requirements of FISA or even the protections afforded by the Constitution (e.g. Fourth Amendment protections against illegal searches and seizures), has been committed here.  Democratic societies do not just endure violations of personal privacy without some tangible effort to debate the necessity of a sacrifice in liberties attendant to the needs of national security. 

As I’ve suggested, Mr. Snowden appears to have, thus, done something very valuable in restoring the vitality of democratic discourse around these issues against the best efforts of the Obama administration, its agencies, and their legislative overseers to decide what was best for the American people behind their backs.  In this respect, again, I do not think that it would have been necessary, practical, or inconsequential to the effectiveness of intelligence collections for the administration to reveal every incremental element of methodology/technique required to undertake the massive scale of its collection efforts, but we need to have a principled debate over these issues, with tens of millions of citizens telling their Congressmen and Senators whether they think such efforts are necessary for national security and, possibly, expressing their outrage that there was no effort made to inform the American public that information about their phone calls and e-mail traffic was going to be monitored by government agencies.

Beyond these initial reflections on the potential good that may have been done by Snowden’s revelations, I simply do not know all of the things that Snowden revealed to The Guardian, Der Spiegel, other news organizations, and, most importantly, foreign governments.  Through contractor Booz Allen Hamilton, Snowden had apparently performed work for both CIA and NSA, domestically and in foreign locations.  Notwithstanding the best efforts of NSA officials to argue to the contrary, there does not seem to be anything intrinsically damaging to national security in Snowden’s revelations about metadata and e-mail information collection programs.  If Al Qaeda agents in Pakistan or Algeria are going to communicate to supporters in the U.S., they will continue to need a means to exercise secretive communications halfway around the world on a time-sensitive basis.  Without telephone and Internet means, monitored in some ways by U.S. government agencies, there is just no other meaningful way to accomplish such communications.  Notwithstanding the fact that Snowden has revealed the existence of these collection programs, there does not seem to be a way that international organizations attempting to engage in actions to the detriment of U.S. national security will be able to circumvent good intelligence collection work by U.S. agencies. 

A more pressing concern in Snowden’s revelations concerns the possibility that he revealed the identities of U.S. agents abroad, collaborations with allied foreign intelligence agencies, and specific programs damaging to U.S. diplomatic efforts (e.g. the claim that NSA was performing surveillance on the headquarters of the European Union).  Such actions might be expected to put the lives of intelligence personnel at risk, deliver palpable damage to intelligence collection efforts abroad, and damage the interests of the U.S. in relation to allied governments.  If, under these circumstances, U.S. espionage against allied governments may have constituted an ill-conceived measure on the government’s part likely to paint the Obama administration in an unflattering light (something closer to the image the world had of the second Bush administration), no quantity of self-righteous indignation on Snowden’s part, in defense of the Constitutional liberties of U.S. citizens, could have justified a revelation of U.S. spying on the E.U. outside of his own personal satisfaction at embarrassing the administration.  As it stands, this particular revelation appears to be damaging the U.S. case for a free-trade agreement between the U.S. and E.U. (concerning both the stakes behind a trade agreement and the French threat to stall any talks pending U.S. assurances to respect European data privacy laws, see Rushton, “Battle lines drawn for EU-US trade talks,” on The Telegraph, at: http://www.telegraph.co.uk/finance/globalbusiness/10164644/Battle-lines-drawn-for-EU-US-trade-talks.html).   

The proper place to assess and evaluate the impact of Snowden’s revelations and, thus, to evaluate his guilt in damaging U.S. national security, is in a U.S. federal court.  He needs to return to the U.S. and face trial for violating the Espionage Act, and it would be far better, at least as a reflection on his own moral character, if he returned willingly rather than suffer forced extradition.  His prolonged layover in the Moscow international terminal and attempts to secure asylum in various Latin American states is neither helpful in efforts by the Obama administration to assess and deal with the damaging impact of his revelations, nor is it helpful for his case as a “whistle blower” on the allegedly illegal clandestine activities of the U.S. government, in the name of individual liberty and the personal privacy of everyday Americans.  In the most basic sense, Snowden is no hero if he wants to raise allegations on shady, intrusive, and Constitutionally suspect actions by the NSA and then hide in the protective custody of governments unfriendly to the U.S. who would be unlikely to cooperate in his extradition.  If it was worthwhile to reveal the NSA’s actions, then, provided he actually sees himself as a patriot rather than a traitor, he should be willing to face the consequences of his actions. 

Reflecting further, French blogger Thierry Meyssan has made an important point regarding the actions of “whistle blowers” like Snowden, Bradley Manning, and, now apparently, Marine General James Cartwright, all of whom have either already been charged or potentially face charges under the Espionage Act of 1917(see Meyssan, “The Price of Truth,” on Voltairenet.org, at: http://www.voltairenet.org/article179196.html).  The primary purpose of the Espionage Act, as it was initially framed during World War I and as it has subsequently evolved, has not been to impede foreign intelligence collection (we have FISA for that purpose anyway).  Rather, it has served to punish political dissent during wartime (i.e. “seditious” speech by war resistors and other erstwhile opponents of foreign policy) and to punish government whistle blowers, “exposing a system of fraud or crimes committed by the state” in the national security community during peacetime.  Enforcement of the law often acts to muzzle speech directed toward conducting debate on policies that might simply be embarrassing to the government but not palpably detrimental to national security or endangering the lives of American citizens.  On the contrary, revelations, like those Meyssan cites from General Cartwright on U.S. operations toward Iran, might actually have the long-term effect of saving the lives of U.S. military forces. 

           
          With this argument in mind, maybe it is about time to review the usefulness of the Espionage Act in relation to the greater need for debate over national security in our democracy.  I do not mean to suggest, as Meyssan explicitly argues, that the American public should have been informed of military technological developments as sensitive as the Manhattan Project during World War II.  As I have argued in this rant, certain things need to remain in the confidence of government officials with a need to know such information in the specific exercise of their duties.  On the other hand, broader principles need to be publicly debated in ways that will reinforce and legitimize what the government necessarily must do behind closed doors.  In line with Meyssan’s example, maybe it would have been possible to undertake public debate on the use of weapons of mass destruction, capable of being used against essentially civilian targets, as a means of bringing an enemy government to sue for peace without disclosing the particular nature of the weapons at the government’s disposal.  If the Espionage Act functions to gag such debates, then we are doing a disservice to our own self-government by allowing Presidential administrations and closed-door Congressional Committees to dictate what is required to maintain our national security without our informed consent.  My argument here should not be construed as implying that Bradley Manning, Edward Snowden, and other figures currently accused of violating the Espionage Act should not face justice for their actions.  Rather, in the future, the government needs to better evaluate the critical thresholds for maintaining official government secrets in a way that opens up a wider field for public debate on national security policies prior to the initiation of particular programs, like those recently revealed from NSA, rather than retrospectively in response to a “whistle blower.”