EDWARD SNOWDEN IS one of the most debated figures in our time, someone about whom opinions sharply differ. Is he a champion of privacy rights? A heroic whistleblower who took enormous risks at great personal expense so that citizens of the United States could learn about, and debate, the policies of the National Security Administration and its public denial of the extent of its secret collection of our data? Or is he a traitor who gave away state secrets, directly disobeying the promises he made to protect classified information, endangering undercover operations, and revealing covert intelligence practices?
In 2013, Snowden, a then 29-year-old employee of defense contractor Booz Allen Hamilton, flew to Hong Kong with four laptops filled with encrypted, top secret files, and met over 10 round-the-clock days with filmmaker Laura Poitras, lawyer-journalist Glenn Greenwald, and Guardian veteran Ewen MacAskill to explain what data he had, what it meant, and why he wanted them to figure out a responsible way to reveal it. He had, he said, become disillusioned with what he perceived as government abuses and denials in its data collection and, after his internal complaints led nowhere, he wanted to let the American public know what was being done in its name, and have a proper, public debate about it.
Out of the tens of thousands of documents Snowden is alleged to have turned over to Greenwald and others were some that immediately made headlines around the world. Under programs with names like PRISM, MUSCULAR, and Stellar Wind, the documents showed that the NSA was collecting not merely metadata about phone calls and internet traffic, but also the content of such emails and shared data. This had been authorized in secret courts under the Foreign Intelligence Surveillance Act (FISA) and was in direct contradiction with the statements of government officials. A program called XKEYSCORE allowed for collection of “almost anything done on the internet,” leading to Snowden’s statement that “I, sitting at my desk [could] wiretap anyone, from you or your accountant, to a federal judge or even the president, if I had a personal email.”
After the leaks, newspapers reported such controversial practices as spying on users of Second Life and World of Warcraft, by creating make-believe characters as a way to “hide in plain sight.” NSA agents spied on their “love interests,” under a practice they called LOVEINT. Most disturbing, the NSA was shown to be tracking the online sexual activity of people they termed “radicalizers,” in order to discredit them. Oddly, it is the factual detail on specific intelligence practices that the public learned from the Snowden leaks that is this book’s most glaring omission.
One thing that Snowden and his chosen journalists did not do was reveal individual covert agents’ names or operations that they concluded could endanger specific individuals. Whether his leaks have nevertheless harmed American, British, or other intelligence operations is subject to debate.
Clearly, Snowden disobeyed the law. Yet the manner in which he did so, taking pains to find journalists to help him handle the information responsibly and without injury to individual covert agents, as well as the reasons he claims drove him to do it, cannot be ignored. In this important book, the essays of six legal and media experts explore the ramifications of Snowden’s conduct, the media’s responsibility for how it engages with such revelations, as well as the legal landscape that has led to the NSA’s practices and, some would say, excesses.
Barry Siegel, Professor of English at University of California, Irvine, explains in a refreshingly non-lawyerly article entitled “Judging State Secrets: Who Decides — And How?” just how our legal system has arrived at its present standards for permitting the government to make its own determination of what can be kept secret from the public, without much danger of judicial review. In the 1953 Supreme Court case US v. Reynolds, Siegel writes, the 6–3 majority agreed upon a standard of review of a claim of “state secrets” that required a court to determine whether the circumstances were appropriate for the claim of privilege “without forcing disclosure of the very thing the privilege is designed to protect.” Subsequent “reforms” enacted after the Watergate scandal resulted in the passage of the Federal Intelligence Surveillance Act (FISA) and the courts that would purportedly rule over assertions of “state secrets” by the government. However, as he describes, in a series of cases the courts have once more retreated in favor of the executive branch, effectively dismissing cases any time a complaint contains allegations, the truth or falsity of which has been classified as secret by a government official. It is in this context that the unlawful disclosures of state secrets can be judged to be an act of last resort, since the judicial system is not performing its critical check on the executive branch.
David Cole, Georgetown University Law Professor, in “What Should We Do About the Leakers?,” compares and contrasts the conduct of Julian Assange, Chelsea (formerly Bradley) Manning, and Snowden. He points out the fallacies in the extreme positions that either all disclosure of classified government information is good (such as has led to the WikiLeaks avalanche of undifferentiated materials) or that any unauthorized disclosure of classified information is bad (even material that was only classified to cover up embarrassing or illegal conduct). Cole thus confronts the question of how to distinguish legitimate from illegitimate leaks. The article addresses a number of efforts to address this problem, the most compelling of which arises from Princeton professor Rahul Sagar, who argues that a leak is morally justified when it (1) is based on clear and convincing evidence of abuse of public authority, (2) does not pose a disproportionate threat to public safety, and (3) is as limited in scope and scale as possible. The standard may not be easy to apply, but it addresses the issues that are central to the problem.
Edward Wasserman, Dean of the Graduate School of Journalism at UC Berkeley, discusses the obligations of journalists to their sources, and the particular issues presented by “disruptive” sources — i.e., those sources that are not part of the approved social nexus out of which the standard coverage usually arises. These sources, such as Snowden, Assange, Manning, and, in a similar vein, Daniel Ellsberg, may have no promise of continuing knowledge to bestow. As outsiders, Wasserman points out, these sources are often the focus of official displeasure, the very officials that do in fact make up the reporter’s usual sources of ongoing access to information. Thus, he points out that the recent spate of disruptive sources have been met with ambivalence by the news media:
Typically, the public value of the material the informants have disclosed is praised, even while their motives, psychological makeup, personal integrity, and the harm they might be doing to the legitimate security interests of the state are foregrounded in the coverage.
The messenger, rarely perfect, becomes the story.
Hodding Carter III, former Assistant Secretary for Public Affairs under the Jimmy Carter Administration, writes as only a former government official can of his initial condemnation of Snowden’s revelations, followed by his surprising change of mind. He disparages the mainstream media’s patronizing and uninspiring attacks on Snowden and the three journalists who were entrusted with Snowden’s data, and provides a confessional perspective about the over-classification of data by government in our society. He points out that the illegal conduct of leakers was the only reason we learned about spying on our citizens back in the days of COINTELPRO as well as the lie told by James Clapper when he denied that the NSA collected data on Americans.
Jon L. Mills, a professor at the University of Florida’s College of Law, provides, in “The Future of Privacy in the Surveillance Age,” a somewhat unfocused essay on the country’s tug-of-war throughout our history between the desire for privacy rights and security. His essay lacks a strong thesis, perhaps hesitating to come out too strongly on either side, instead proposing minor reforms that he hopes result from a “complex balancing of national security and personal privacy.”
Thomas Blanton, Director of the National Security Archive at George Washington University, the final essayist in this collection, is more dedicated to a worldview in which, as he quotes Steven Aftergood as saying, “leaks emerge as a uniquely powerful tool for shaping intelligence classification policy, while conventional checks and balances appear all but irrelevant by comparison.” His essay too traces US history on the question of security versus privacy, leading to the renewed willingness to submit to government surveillance that followed the 9/11 attacks. His somewhat optimistic claim is that in one fell swoop, Snowden managed to change both the public’s mindset, revealing that we are not willing to sacrifice all in the name of counterterrorism after all, as well as the intelligence community’s attitude toward over-classification. The appellate decision on May 7, 2015, that the Patriot Act does not authorize the bulk collection by the government of telephone metadata vindicates the perspective that decisions on legality of surveillance must be conducted in the clear light of public scrutiny. As the Court observed in ACLU v. Clapper, a case filed by the ACLU in the days after Snowden’s revelations: “Congress cannot reasonably be said to have ratified a program of which many members of Congress — and all members of the public — were not aware.”
If history is any guide, these essays seem to suggest, the pendulum will swing back again, if it has not already done so in the nearly two years since the leaks occurred. The public debate has died down and moral outrage over the lies we were told has subsided. Any new threat to safety will presumably have the same effect such threats have had in the past to ramp up willingness to forego civil liberties in the name (real or imagined) of greater security.
For all these reasons, these essays point to the need to put in place now, while we are still somewhat rational on the subject, real standards, tests, and consequences that will sufficiently reward the right kinds of disclosures about our national intelligence system, while deterring the wrong kinds. Making distinctions among the disclosures is paramount, so that we do not merely debate over abstract concepts, or leave it up to the government to self-regulate, but grapple with the hard fact that, whether we like it or not, we would not be having this debate without Edward Snowden’s decision to break the law.
Anne Richardson is a civil rights attorney in Los Angeles. She is currently Associate Director of Opportunity Under Law at Public Counsel.