10 Factors That Make Edward Snowden's Leak Defensible

The 29-year-old's law-breaking undermines the American system far less than what Barack Obama and Congress have done.

leak full full.png

In "Edward Snowden Is No Hero," Jeffrey Toobin offers an argument for working within the "system" rather than leaking.

"Our system offers legal options to disgruntled government employees and contractors," he observes. "They can take advantage of federal whistle-blower laws; they can bring their complaints to Congress; they can try to protest within the institutions where they work." Instead, the 29-year-old government contractor "threw the secrets he knew up in the air," he writes. And in doing do, he wasn't blowing the whistle on behavior that was illegal, "he was exposing something that failed to meet his own standards of propriety." Says Toobin, "the question, of course, is whether the government can function when all of its employees (and contractors) can take it upon themselves to sabotage the programs they don't like."

In theory, these arguments are sound, and there are circumstances in which I would echo them. Many policies chosen by a representative government, whether wisely or imprudently, ought not be "sabotaged." But what if a policy isn't adopted and implemented in the normal fashion?

I submit that NSA surveillance policy is meaningfully abnormal in numerous ways.

Americans like me are sympathetic to acts of civil disobedience in this case because of the many ways Team Bush, Team Obama, and Congress have violated basic norms and even serious laws in the realm of national security. Their transgressions against the system have undermined its legitimacy, and as a result, Snowden's decision to act outside that system is more defensible than it would otherwise be. None of the factors that follow would, on their own, justify his actions. Taken together, they're a powerful rebuttal to Toobin's notion that these surveillance policies are as legitimate a part of our representative democracy as a normal government program.

1) There is, at minimum, serious disagreement about whether what the FISA court approved is in fact legal.

2) Contra Toobin, federal whistle-blowers in national-security cases are neither respected within the institutions where they work nor sufficiently protected by federal whistle-blower laws. How any observer of the War on Terrorism could think otherwise baffles me. In many ways, President Obama has been even worse in this realm than his predecessor. If Toobin doubts that his reputation for persecuting whistle-blowers is well-deserved, I suggest coverage of both Thomas Drake and John Kiriakou in Toobin's employer, The New Yorker. At the very least, a cog in the surveillance state could reasonably infer that whistle-blowing within the system to rein in its abuses is not a meaningful option right now. There is some evidence that it causes one to be actively, maliciously targeted.

3) Defenders of the surveillance state insist that what's being done is obviously legal. Yet informed Americans who vehemently dissent haven't had an opportunity to mount legal challenges on the merits -- rather, they've been thwarted from having their day in court by arguably illegitimate invocations of the state-secrets privilege. Relatedly, a lawsuit challenging the FISA Amendments Act was thrown out by the Supreme Court because, according to the reasoning in the ruling, none of the plaintiffs could prove they had standing. At the very least, this would suggest the troubling possibility that the national-security state's behavior could be both unconstitutional and impervious to judicial challenge. To me, that seems like the sort of circumstance in which civil disobedience is defensible, especially if the act of civil disobedience obviates the state secret or standing obstacle. 

4) As I previously argued, secrecy impedes Congress from functioning as our system demands. The legislature cannot act as a check on the executive branch in the way the Framers intended when hugely consequential policies, as well as the legal rationales ostensibly justifying them, remain classified. The Senate, intended as a deliberative body, cannot deliberate when only the folks on the right committees are fully briefed, and the Ron Wyden types among them think what's happening is horribly wrong but are barred from telling or persuading anyone with facts. (Concerned senators were literally reduced to giving dark hints). House members are up for reelection every two years because the body is supposed to respond to the will of the people. Yet the people are only now finding out about surveillance that some House members signed off on three or four election cycles ago. Are we to presume that elections in all of those diverse districts would've been unaffected by a public debate on these issues?

The secrecy paradigm that surrounds the national-security state is removing many of the most important moral and strategic policy questions from the realm of democratic debate and accountability. The less these decisions are debated openly -- a process that confers legitimacy on whatever outcome -- the less subverting the decisions entails subverting the popular will.

5) There is at least some evidence that the secrecy paradigm has prevented legislators from fully understanding the law. And Rep. James Sensenbrenner, a co-author of the Patriot Act, has gone so far as to argue that the law he wrote doesn't permit what Team Obama has done with it. 

6) Oversight and accountability haven't just been diminished by the secrecy that surrounds government surveillance -- Congress and the public have been actively misled about what's happening. James Clapper's statement to Congress is too complicated to parse in this column, but Marcy Wheeler lays out exactly what was said and why it was egregiously misleading. Says John Cassidy, "General Keith Alexander, the director of the N.S.A., denied fourteen times that the agency had the technical capability to intercept e-mails and other online communications in the United States." How can oversight work if its informants brazenly lie?

The public has been led by members of Congress and Obama himself. Think of the citizen who followed Obama's campaign, listened to his major speeches, including the one on counterterrorism, and heard his repeated assurances about how important it is to debate the tradeoffs between liberty and security. Surely anyone could understand how that citizen would be shocked by what Obama was really doing behind the scenes -- presiding over the sort of surveillance state he once rejected in a way that made the very debate he called for impossible to have.

Private actors have also been complicit in masking the extend of government surveillance in society. For example, Google's "transparency reports" do not include number of orders or targets for NSA surveillance. At a basic level, it doesn't seem right to argue, as Toobin does, that we've meaningfully agreed to this as a free people, even as most had no idea what was happening. We certainly never agreed to government officials actively misleading us and one another.

7) The U.S. government has undermined the rule of law in this realm by signalling that even when national-security officials or telecom companies are caught breaking the law, they won't be prosecuted. So long as lawbreakers act in service of people in power, as opposed to challenging them, lawbreaking results in retrospective grants of immunity, or refusal to investigate and prosecute torture even when doing so is mandatory under a duly signed and  ratified treaty. Little wonder that dissenters witnessing abuses would be more inclined to go to the press as a result.

8) Information is routinely over-classified, and secretly authorized leaks of classified information are frequent. On many occasions, the Obama Administration has exploited leaks, revealing information that serves its political interests -- like the death of a suspected terrorist -- even as Team Obama uses the fact that it's classified to avoid having to answer probing questions or legal challenges. This seriously undermines the norm that classified information is sacrosanct. If Obama could choose to jail everyone or no one who has leaked classified information since 2009, he would choose no one; exposing everyone would make him the object of scandal.

9) There is a plausible case to be made that the NSA's surveillance violates the supreme law of the land, the U.S. Constitution (indeed, a strong case could be made for that conclusion prior to this week's revelations). The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Note that in 2001, the National Security Agency "pushed for the government to 'rethink' the Fourth Amendment when it argued in a classified memo that it needed new authorities and capabilities for the information age," a revelation that inspires no confidence in its current compliance.

10) My colleague James Fallows writes, "I feel about this news the way I did when the Pentagon Papers were unveiled many decades ago. The public has learned something important about policies carried out in its name, at what seems -- for now -- a modest cost to vulnerable individuals or national safety as a whole." He offers that assessment after citing commentary from Brian Jenkins at Rand, who said, "I cannot figure out why this was classified to begin with. It should have been in the public domain all along. The fact is, terrorists know we're watching their communications. Well, some of them, it seems, are idiots, but if they were all idiots, we wouldn't need a program like this. The sophisticated ones, the ones we're worried about, they know this. There are debates we can have in public without really giving away sensitive collection secrets. It's a risk, but these are issues that affect all of us and our way of life."


So there you have it. Taken together, all those factors make Edward Snowden's decision a lot more defensible than Toobin would have us believe; furthermore, they suggest that the Obama Administration and Congress frequently betray established norms and laws of the American system. (Indeed, when Obama leaves office, it will almost certainly be true that he'll have investigated, prosecuted, and jailed more whistle-blowers than torturers.) I rather wish that someone of Toobin's stature would react by writing a column titled, "Barack Obama is No Hero."