A Liberal Moderate's Critique of Snowden and Greenwald

By Conor Friedersdorf

In a review of Glenn Greenwald's No Place to Hide: Edward Snowden, the NSA, and the U.S. Surveillance State, George Packer, whose best work is superb, makes a number of dubious claims. They are typical of liberal moderates who acknowledge that the NSA's behavior is worrisome yet direct their most scathing remarks at the people who revealed it, as if they are the ones who pose an ongoing threat to what is right and good. The liberal moderates present themselves as sober analysts striving for objectivity. They're careful to name excesses of the national-security state and its critics, but only the latter are subject to scorn, disdain, and ad hominem attacks. Sometimes I wonder if a formal etiquette guide to that effect is tucked into the seat-back pouches on the Acela Express.

Packer is best understood by beginning here:

Snowden is a libertarian whose distrust of institutions and hostility to any intrusion on personal autonomy place him beyond the sphere in American politics where left and right are relevant categories. A temperament as much as a philosophy, libertarianism is often on the verge of rejecting politics itself, with its dissatisfying but necessary trade-offs; it tends toward absolutist positions, which grow best in the mental equivalent of a hermetic laboratory environment. Libertarianism has become practically the default position of young people who work in technology, especially the most precocious among them.

He adds that Greenwald shares this political outlook, "though not completely."

Set aside arguments about the nature of libertarianism. There's something else I find extraordinary about that passage. Consider the United States since September 11, 2001. In this era, when you think of ideologues who verge on rejecting politics, take absolutist positions, and operate in a sealed-off environment, do you think of the ideology that gave birth to the Iraq War, torture, classified law, indefinite detention, kill lists, and secret warrantless wiretapping? Do you think of Dick Cheney, David Addington, John Yoo, John Brennan, and James Clapper? I do. But George Packer thinks of libertarianism! And he thinks of Snowden and of Greenwald, one of the most consistent voices opposing the idea that the national-security state ought to operate unilaterally, in secret, beyond politics.

The biggest factual error in that Packer passage is the suggestion that Snowden, Greenwald and other NSA critics object to "any intrusion on personal autonomy." Snowden and Greenwald, and NSA critics like me, are perfectly fine with federal surveillance that intrudes on the autonomy and privacy of individual Americans, so long as the government obtains an individualized warrant from a judge based upon probable cause indicating that the target is engaged in criminality.

Adherence to the plain text of the Fourth Amendment is all the NSA's critics are demanding, not a radical transformation of the principles that govern life in America. That's why NSA critics tend to invoke the Framers, the Bill of Rights, the Church Committee, and the widely accepted notion that Americans have a right to privacy—rather than some manifesto setting forth a new paradigm for a utopian future. 

Meanwhile, here are some of the ways that national-security professionals describe their goals:

NSA via Edward Snowden

The National Reconnaissance Office logo is a perfect metaphor. Civil libertarians aren't speaking out against "any intrusion on personal autonomy" but against a multi-agency bureaucracy that intends to wrap its spying tentacles around the whole earth. 

Hence the absurdity of writing as if Snowden has a revolutionary vision for the future that motivated him to spill government secrets to similarly utopian journalists.

Snowden's actual position is that the NSA has engaged in massive violations of the U.S. Constitution and existing law. (Snowden literally leaked a FISA-court opinion explicitly declaring that the NSA violated the Fourth Amendment rights of Americans on numerous occasions.) Greenwald emphatically agrees. If they're right that tens of millions of Americans were having their rights violated, and that national-security officials were constantly violating the law, Snowden's whistleblowing did far more to bolster the rule of law than to undermine it, even if the act of revealing classified documents was itself unlawful. 

It would be a different story if the NSA were actually adhering to the Constitution and subjecting itself to the normal mechanisms of democratic institutions. Tellingly, Packer does not contest that the Fourth Amendment was being violated or that national-security officials broke the law on many occasions. He seems to agree.

Yet he persists in treating Snowden and Greenwald as the threat to the rule of law, partly because Snowden fled the country rather than facing prison. For Packer, his flight "betrays the demanding but necessary principle of civil disobedience—from Thoreau to Mahatma Gandhi and Martin Luther King—which requires that conscientious dissenters who act against an unjust law must be willing to pay the price." 

That raises an interesting question. Imagine that King had participated in the anti-segregation protests in Birmingham, Alabama, but instead of being arrested on the spot, as occurred on April 12, 1963, he was notified about a warrant issued for his arrest. Say that, rather than turning himself over to police in Birmingham for his lawbreaking, he fled the city and the state under cover of darkness, checked into a hotel room in New York (or even Canada), and started penning letters as a fugitive.

Had King made that decision, would Packer excoriate him? Would he regard King as a threat to the rule of law and an unreasonable absolutist rejecting politics? Would he draw equivalences between King's misdeeds and the misdeeds of those seeking his arrest? I predict that Packer's attitude toward Snowden will one day seem as absurd as someone insisting that MLK would be worthy of condemnation if he hadn't gone to jail, or that the activists who stole FBI files proving improper spying ultimately harmed the rule of law by never turning themselves in. 

Like Michael Kinsley, another moderate liberal journalist who made dubious claims in a review of Greenwald's book, it seems that something about Packer's relationship to the establishment causes him to understate the radicalism of the international security state and to overstate the radicalism of its critics. For example, consider this passage:

Greenwald believes efforts by the US and British governments to recover leaked documents are illegitimate, because of what those documents revealed. Last August, Greenwald’s Brazilian partner, David Miranda, was held and questioned for nine hours at Heathrow airport by the British authorities under an anti-terrorism law. Miranda was transporting some of the Snowden archive from Berlin, where Poitras lives in self-imposed exile, to Rio, where he and Greenwald live. Miranda’s electronic devices, including files from the Snowden archive, were confiscated. Greenwald initially told the press that his partner was being held to intimidate him from continuing his work on the NSA disclosures, but did not mention the purpose of Miranda’s trip.

The application of the terrorism law was opportunistic, and the law itself prone to abuse, but Greenwald seems to think that a citizen of a foreign country passing through a British airport in possession of highly classified documents taken from the British government should be beyond the reach of any law.

Notice how Packer inverts reality. Greenwald's claim isn't that "highly classified documents taken from the British government should be beyond the reach of any law." His claim is that the particular terrorism law used to detain his partner was misused, because carrying GCHQ documents taken from NSA computers is obviously not an act of terrorism. Greenwald and Miranda are absolutely right that British authorities used the law disingenuously and improperly. The objection they made was always that the British violated that law, not that Miranda should be beyond all law.

In contrast, the British government's position was effectively, Miranda was carrying these highly classified documents through Heathrow. Of course we can seize them. In that instance, they were the ones behaving extralegally because they believed the circumstances demanded it.

To present the incident in the opposite light, to make it seem as if the British were upholding and Greenwald subverting the rule of law, Packer fudges the story, calling the British application of the law "opportunistic," rather than the more accurate "illegitimate," and writing about what Greenwald "seems to think" about the incident, rather than the claims he has actually made in his writing and the substance of the legal challenge Miranda filed and is still pursuing. 

Now consider Packer's next passage:

If Greenwald and others were actually being persecuted for their political beliefs, they would instinctively understand that the rule of law has to protect people regardless of politics. The NSA disclosures are disturbing and even shocking; so is the Obama administration’s hyper-aggressive pursuit of leaks; so is the fact that, for several years, Poitras couldn’t leave or re-enter the US without being questioned at airports. These are abuses, but they don’t quite reach the level of the Stasi. 

The first clause of that passage suggests that no one is actually being persecuted for their political beliefs. A sentence later, Packer acknowledges that Poitras was being harassed at airports because she makes documentaries critical of the U.S. government. This strange internal contradiction is resolved with the assurance that while these are abuses, they don't reach the level of the Stasi. Who claimed otherwise? Greenwald has written about the possible future abuses that mass surveillance makes possible (as Packer points out in the next sentence). What I want to know is why Packer regards "not as bad as the Stasi" to be a useful standard. Will he reconsider his criticism if I point out that Greenwald and Snowden aren't as bad as history's great villains either? Or is the bar only set so low for the state?

Stepping back, notice that in the same passage, Packer contrasts Greenwald's wrongs with those of the Obama administration, the people who've persecuted whistleblowers, presided over domestic spying on Muslims and launched drone strikes that kill Americans without due process. Yet it is Greenwald who, according to Packer, doesn't understand that "the rule of law has to protect people regardless of politics."

Like Packer, I don't trust Silicon Valley companies to refrain from abusing the private information entrusted to them, and I'd favor some sort of data-retention law that changed the default presumption from "we can keep anything you give us forever" to something else.

‚ÄčI still couldn't believe it when I saw Packer making the following declaration in the New Yorker: "Between career officials at the N.S.A. and marketing managers at social-media companies, I trust the former more than the latter to maintain my privacy and use the information they have on me with maximum restraint." I presume that Greenwald disagrees, but not because I think he's a radical libertarian with an irrational distrust of all authority. Rather, I read The Intercept: "According to a former drone operator for the military’s Joint Special Operations Command who also worked with the NSA, the agency often identifies targets based on controversial metadata analysis and cell-phone tracking technologies. Rather than confirming a target’s identity with operatives or informants on the ground, the CIA or the U.S. military then orders a strike based on the activity and location of the mobile phone a person is believed to be using."

I read Reuters too:

A secretive U.S. DEA unit is funneling information from intelligence intercepts, wiretaps, informants and a massive database of telephone records to authorities across the nation to help them launch criminal investigations of Americans. Although these cases rarely involve national security issues, documents reviewed by Reuters show that law enforcement agents have been directed to conceal how such investigations truly begin—not only from defense lawyers but also sometimes from prosecutors and judges.

In light of metadata-driven drone killings and NSA-enabled deceit within the criminal-justice system, does Packer still think marketing managers at social-media companies will use information with less restraint than the national-security state?

Perhaps he does irrationally believe that. On this topic, Packer has shown himself able to confront neither the relative radicalism and dangerousness of the national-security state nor the serial lawlessness of its leaders. The evidence of lawbreaking is right there for all to see. But the moderate liberal is accustomed to thinking of people who levy such unpleasant charges as unserious, uncouth sourpusses. The moderate liberal spends more time distancing himself from staunch critics of the state than criticizing powerful people even he believes to be misbehaving.

This article available online at:

http://www.theatlantic.com/politics/archive/2014/05/a-liberal-moderates-critique-of-snowden-and-greenwald/371678/