The NSA Leaks Are About Democracy, Not Just Privacy

Recent criticism of Edward Snowden has focused on the fact that the documents he gave reporters included not just evidence of spying on U.S. citizens but also revelations about other NSA activities. His critics say leaks about programs affecting the privacy of Americans could be legitimate whistleblowing, but that various other disclosures are deserving of prosecution. Fred Kaplan offers one version of the argument:

... if his stolen trove of beyond-top-secret documents had dealt only with the NSA’s domestic surveillance, then some form of leniency might be worth discussing.

But Snowden ... furnished stories about the NSA’s interception of email traffic, mobile phone calls, and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls “worldwide,” an effort that (in the Post’s words) “allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.”

In his first interview with the South China Morning Post, Snowden revealed that the NSA routinely hacks into hundreds of computers in China and Hong Kong.

Implicit here is the notion that the information contained in those stories should not be public. So let's take a closer look at what one of them says. The first story linked in the excerpt above does discuss "the NSA's interception of email traffic, mobile phone calls, and radio transmissions of Taliban fighters in Pakistan’s northwest territories," though I am not sure how useful that was to the Taliban: The fact that the U.S. successfully killed its members presumably tipped them off to the fact that our government had breached their communications security, and the Washington Post says other details were withheld at government request. (If the story tipped the Taliban off to something important that they wouldn't have known, a possibility to which I am open, I'd like a specific explanation of what—that something is classified is a terrible proxy for the need to keep it secret.)

In any case, the Washington Post article tells us a whole lot more too. Most significantly, it reports on "the intricate collaboration between the CIA and the NSA in the drone campaign." Why does that matter? Well, someone angry about NSA spying on Americans, but supportive of the drone campaign abroad, might conclude from the story that severely cutting the NSA's budget isn't as desirable as they thought. "Senator Paul," they might write in a letter, "be aware that the NSA does have value!"

A conscientious objector to the drone program who isn't much bothered by Section 215 metadata collection might decide that the NSA's role in targeted killing makes it complicit in immoral behavior, and that it ought to be subject to more scrutiny. "Spying is one thing, but helping to kill is another," he or she might write in a letter to Senator Dianne Feinstein. "Investigate whether NSA information led any innocents to die, and if that happened, initiate appropriate reforms." The article made me, an opponent of both America's targeted-killing program and domestic surveillance, wonder whether signature strikes–the ones where we don't know the identities of people we're killing—are ever triggered by the NSA's "hop analysis." If so, I have new, powerful objections to the policy as it currently operates. 

Notice what's implicit in the scenarios I'm laying out: that there is inherent value in citizens being given access to information when it informs their judgments about public policy. Information of this sort is a prerequisite for meaningful civic participation. There ought to be a strong presumption in favor of making it public, especially when the policy at issue is as significant and controversial as targeted killing. 

To see why, imagine that Fred Kaplan got his way, that the American public was kept ignorant of the NSA's role in a contested program with life-and-death stakes for many involved. Without presuming how public opinion would ultimately be affected, both NSA defenders and critics would be deprived of arguments for their positions; citizens would be less able to judge the importance and effectiveness of the NSA; and Americans debating how much oversight the NSA ought to be subject to wouldn't grok how faulty analysis could lead to deaths of innocents.

(Has that ever happened? We have no idea, and that's worrisome.)

The NSA leaks are partly about exposing surveillance of Americans. But as Edward Snowden himself has said repeatedly, they are also about informing Americans about secret policies our government is pursuing, so that the people can decide whether they are moral, effective, and desirable, or whether they ought to be reformed, as well as whether our representatives are acting as we'd want. 

The unstated assumption behind a lot of national-security-state defenders and Snowden critics is that the public has no proper role in deciding any of these questions, because the information needed to make sound judgments is properly classified. For the most part, they are unwilling to acknowledge the degree to which the classification regime they defend is incompatible with government by the people. Even classification regimes enacted by duly elected representatives of the people create a thorny problem. They may be legitimate immediately after passage, but how can the people know if what's being kept from them still accords with their notions of how they want to be governed if they don't know what it is? One generation shouldn't be able to consign a nation to ignorance forever after.

​In theory, resolving this problem could be difficult. But today's national-security state showed itself to be illegitimate by keeping illegal and unconstitutional behavior secret; by classifying lots of information that ought to be public under the law; and by relying on tortured language and dubious legal interpretations for some classified programs, so much so that some of the legislators who ostensibly voted in favor of them say they didn't intend to legitimize the current system at all.

The need for transparency wasn't even a close case.

None of that is to say that Snowden, Barton Gellman, Glenn Greenwald, and others are unerring in their judgment about what information to release. Perfection is an absurd standard if you think there ever ought to be whistleblowers. They're all fallible humans. Even so, the Snowden leaks have so far done no significant harm to national security; reveal alarming abuses of power; and return to Americans the ability to meaningfully evaluate public policy. 

"By its very nature, covert intelligence work creates almost insoluble problems for a democracy," Ezra Klein recently observed. "In a democracy, after all, power is exercised with the consent of the people. If the people don’t know about the powers being exercised, they can’t offer their consent." Now that the NSA's operations are less covert, millions of Americans are creeped out by them, and voters as a whole can decide whether to consent to or reform them. That is a good thing.

The critics who say that an Edward Snowden leak must bear on the privacy of Americans to be legitimate do not value self-government as highly as they should.