The Guardian and New York Times newspapers recently called for a plea bargain or clemency deal with Edward Snowden over his NSA leaks.
Given the New York Times’ history working with Daniel Ellsberg, who leaked the Pentagon Papers, and given the social value of some of these NSA revelations, the present call to pardon Edward Snowden is not surprising.
The question of clemency rests on the degree of damage Snowdon caused verses his public service. In a larger sense, should the NSA effectively eviscerate the Fourth Amendment with its comprehensive sweep of all telecommunications metadata within the United States in the name of protecting its citizens?
Snowden detailed the remarkable capacity of the NSA to decrypt nearly all telecommunications. We already knew this even if we didn’t.
In the 3rd season (2002) of the television series, The West Wing, President Bartlett jokes, “[on phone] Listen, I don’t care that much about your ass but if you need to perjure yourself to protect me you’re going to damn well do it.”
His Chief of Staff, Leo, replies, “Sir, this isn’t a secure call, so I’m going to say to the 17 global intelligence agencies that are listening in that he was kidding just then.”
In 2002, John Markoff and William Safire of the New York Times revealed that John Poindexter of Iran-contra notoriety, headed up a DARPA program called Total Information Awareness (TIA), which attempted to compile computer dossiers of every one of 300 million Americans. While TIA was closed due to those revelations, the possibility of ubiquitous domestic surveillance had been unveiled.
Congressional reports after the TIA affair affirmed that foreign and foreign-to- domestic communication would be surveilled, but purely domestic surveillance was off limits. That assurance was comforting until Snowden’s leaks proved otherwise, detailing that the NSA actively logged every phone call of every American citizen.
The implications of overreach are Orwellian. As J. Edgar Hoover proved, knowledge is power. Some believe he retained his FBI directorship for decades by spying on the personal lives of politicians and blackmailing them with that very information. Could John F. Kennedy force J. Edgar Hoover to retire when Hoover acquired so many damaging personal details on his personal life?
That experience begs the question, “Who is running whom? Does the FBI, CIA and NSA operate at the behest of the President or visa-versa?” Snowden’s revelations highlight the dichotomy between the need for spy agencies and their concurrent dangers.
Meanwhile, the need for intelligence and secrecy is great. Had the Nazi’s known of the Allies’ successful decryption of the German enigma machine it would have seriously harmed the Allied war effort. And our efforts against terrorism often rest on intelligence, often unsuccessfully. During the 1980s and 1990s, the United States tracked Osama bin Laden’s satellite phone communications.
Unfortunately, the monitoring did not prevent of the embassy bombings in Africa in 1998 and 1999. Osama bin Laden’s communications were monitored even after he stopped using a satellite phone in 1998, but even with monitoring the vastly increased chatter in August and September of 2001, that did not prevent 9/11.
Although our efforts against terrorism often fail, they are not helped when we reveal intelligence secrets, especially capabilities. That is the Snowden conundrum. Whereas his revelations of unwarranted domestic surveillance (without warrants) demand public debate of the specific role of the NSA, other revelations are just stupid. There is nothing to be gained by revealing the capacity and limits of NSA spy-craft or NSA research in quantum computing.
There is an important distinction between ability to spy and actually doing so.
The most important of Snowden’s leaks show that the NSA abused their spying capabilities on the majority of American citizens. The New York Times complains that “[Snowden’s] leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans.”
They also complain that, “The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.” The Guardian said that Snowden’s leak “was an act of some moral courage.”
But other complaints from the Times are nonsense, such as breaking into the communications links of major data centers around the world. Isn’t what the NSA is supposed to do? This highlights the conundrum with Snowden’s actions: some of his leaks are valuable, some frivolous, and some do damage to national security.
Previous leaks provide some guidance, but not a lot. Daniel Ellsberg turned himself into the Federal Courthouse in Boston after he leaked the Pentagon Papers. He had sought guidance from an array of personalities prominent in the buildup of the Vietnam War, and some such as Robert McNamara, agreed with Ellsberg’s decision to leak the Pentagon Papers. Because Nixon Administration officials considered him a traitor, they over-reacted, broke into Daniel Ellsberg’s psychiatrist’s office (as part of the Watergate break-ins), and caused a mistrial. Legally it’s impossible to determine whether or not he was guilty of the Espionage Act of 1917.
With Julian Assange and WikiLeaks, the breach of diplomatic cables was so vast that even while some of the details were important highlighting corruption, and others startling, it is difficult to support the leak in its immensity. Some were said to identify foreign nationals who covertly assisted the United States.
The Guardian and New York Times assert that Edward Snowdon demonstrated caution and didn’t reveal the most sensitive secrets.
Perhaps only the editors know.
Most of these leaks, while likely a violation of the Espionage Act of 1917, furthered the political debate for better ends. With Edward Snowden, The Guardian opined, “Obama’s own review panel and Judge Richard Leon in finding that Snowden did, indeed, raise serious matters of public importance which were previously hidden (or, worse, dishonestly concealed), is it then conceivable that he could be treated as a traitor or common felon?”
Perhaps it is both.
Perhaps his actions did raise serious matters, but perhaps he needs to endure the legal consequences of breaking the law if he would like to be a respected as a lawful advocate for change within a civilized society.
That’s a lot to ask of anyone.
Few have been able to endure the punishment civil disobedience often metes out, and those who did are often considered saints. Nelson Mandela and Martin Luther King come to mind. I am not asking for Edward Snowden to turn himself in. That is too much, but unless he does, he is merely a self-aggrandizing publicity seeking moron who turned over some important documents.