June 23, 2013

Edward Snowden: Pariah or Patriot?

by Hal Gershowitz

Comments Below

 

Don’t be too quick to answer that question. Think about it first.  Think carefully.  He’s clearly broken the law and would have been extradited, prosecuted and, no doubt, punished if he hadn’t fled Hong Kong to live out his life as a fugitive  until he is apprehended or retuned to the United States by a yet unidentified  third country.  In any case, Americans should understand what he did and, just as importantly, what he did not do.

Let’s first dispense with what he appears not to have done.  It does not appear to us that he committed treason; notwithstanding Senator Diane Feinstein’s sophomoric outburst to the contrary. Constitutionally, treason is defined as “whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere.” The Treason Clause generally applies only to disloyal acts committed during times of war. Acts of disloyalty during peacetime are generally not considered treasonous under the Constitution.  They clearly may be acts of espionage, but treason seems to be a stretch.

Is he a traitor?  We could certainly make a case that he is as has Speaker John Boehner and former Vice President Dick Cheney. But should we? He went to the media with his information, not to an enemy country and he certainly wasn’t very secretive about it.  And it would appear that the surveillance practices of any enemy country would be just as abhorrent to Snowden as those practices in which he has divulged we are engaged.

Then there’s the question of espionage, with which he has now been charged.  Espionage is the act of obtaining, delivering, transmitting, communicating, or receiving information about the national defense with an intent, or reason to believe, that the information may be used to the injury of the United States or to the advantage of any foreign nation.  Here we think Snowden finds himself in a very dicey situation.  Edward Snowden certainly broke the law when he obtained and transmitted very sensitive and classified information.

But did he do it to aid an enemy country, or any country for that matter? Actually, it doesn’t seem that was his intent at all.  His intent, which from a legal standpoint is largely irrelevant, seems to have been to sound an alarm (to blow a whistle, as we say) that government surveillance in America has gotten out of hand.  The manner in which he chose to sound that alarm may be abhorrent and even criminal, but he certainly got our attention and that seems to have been his sole purpose.

What he did was turn over to two newspapers, The Guardian and The Washington Post, top-secret documents detailing the government surveillance programs.  He did not divulge the content (what our government learned) of those surveillance activities, although it appears he very well could have had he chosen to.  He divulged to the world that our country helps itself to hundreds of millions of U.S. telephone and email records while searching for possible links to suspected terrorists; and that the government taps into U.S. Internet companies’ data to detect suspicious behavior. And while he was at it, he divulged that we snoop prodigiously into what individuals, corporations and governments are doing abroad.  Snowden apparently finds these snooping practices abhorrent and wants the world to know about them.

Jeffrey Toobin, legal contributor at CNN writes that Snowden “wasn’t blowing the whistle on anything illegal; he was exposing something that failed to meet his own standards of propriety.”

We would call that taking the law into your own hands and that’s almost always a “no-no.”

Geoffrey Stone of the University of Chicago says, “There is no reason on earth why an individual government employee should have the authority, on his own say so, to override the judgment of the elected representatives of the American people and to decide for the nation that classified information should be disclosed to friends and enemies alike.”

Well, maybe. But then again there’s the case of Daniel Ellsberg.  Ellsberg expected to go to prison for life for writing and releasing the Pentagon Papers, which divulged an actual, troops-on-the-ground war in Vietnam that had been kept secret from the American People. The Pentagon Papers also showed that the Johnson administration knew that casualty figures in Vietnam would be much higher than the numbers it had publicly projected, and that it had lied about the war to Congress. Ellsberg probably would have gone to prison for life except the out-of-control Nixon Administration got caught breaking into Ellsberg’s psychiatrist’s files to find something with which to blackmail him.  Also, Ellsberg didn’t flee he country.  He took on the government and stood fast to face the music.

So, what to do? While we expect overwhelming sentiment to throw the book at Snowden in order to deter other like-minded nerds by making an example of him, we would counsel caution.  Making a martyr of Snowden is very likely to energize an entire movement of like-minded nerds working in every area of our society, including government.

Snowden is the product of a generation that has never known a time without computers and the Internet and texting and tweeting and all other sorts of instant communication.  Billions of people are walking around with the ability to instantly talk, text, photograph, video and GPS their way anywhere. All their friends and families (and who knows who else) know where they are and vice versa.

The Snowdens of the world are also the product of an open source mentality that has generally served the developed world well. Open source thinking promotes universal access to design (think programming source code) and universal redistribution of that design or code including any improvements regardless of who makes the improvement…and patents be damned. The open source ethic teaches that information should be available to the general public.  Ironically, open source gained momentum as a counter to proprietary software owned by corporations.  Open source thinking is like theology to many, if not most, of the young nerds that institutions, corporations and, yes, the federal government depend upon to make all the computerized bells and whistles hum and whir and spit out torrents of information.

 To many who have been raised, almost from birth, in such an extraordinary time, information flows like the air they breathe, and the notion that our government is secretly collecting such information on a massive scale about to whom individuals (and companies and governments) are talking and writing, where people are going to and coming from and what computers are controlling what technology is, to the Snowdens of the world, well, disconcerting and something they think the people should know about.

Big data has become big business…very big business.  We know that companies mine data to understand the buying preferences and even the buying inclinations of their customers and their prospective customers. Predictive analytics has become a booming field.  But somehow, we don’t mind some corporation knowing that we choose comfort over style because they know we generally select Mephisto shoes to wear, but the idea of the government knowing our shoe size seems a bit creepy.

Then there’s the issue of the Constitutional protection of the Fourth Amendment.  You know, the one that 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.” So if a G-man knocked on your door and said he or she would like to see whatever mail the postman delivered to your mailbox during the last thirty days, you might respond, “Says who?…and let me see your search warrant.” Well, most mail is delivered over the Internet today and the government can and does intercept and log it at will. Same with your smart phone communications, and they can track your Google and Yahoo traffic at will too…or, we suspect Mr. Snowden was wondering, can they?  A question we all must ponder is just how much of our constitutional protections are we willing to cancel in the name of national security.

Edward Snowden has, if nothing else, let us know just what an Orwellian world we are living in.  And now that we have discovered the Orwellians and found that they are us, a wrenching public debate about the 4th Amendment and information-age searching and seizing is a certainty.

We’re not suggesting that Edward Snowden is simply a misguided but otherwise admirable and noble character.  We don’t know enough about him to make that call. He is, at once, both very smart and very foolish.  Perhaps, what he has demonstrated is that intelligence and wisdom do not necessarily reside in the same brain.

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7 responses to “Edward Snowden: Pariah or Patriot?”

  1. irwin yablans says:

    Interesting analysis of a perplexing story.

  2. Mel Sinykin says:

    A very measured and well done article (again!). I especially liked you summery (final) paragraph.

  3. Mark J Levick says:

    Perhaps we should focus on the proceedure governing the issuance of security clearance to contract employees and the penalties for violating agreements not to divulge classified in formation. Snowden could have provided the information to the nice folks in Teheran, Bejing or Moscow and we would not have known. Maybe he did and covered it with a mass release to the Guardian. It is clear that while our geniuses in Washington are casting massive nets to ensnare people who would harm us the are the ones who catagorize those people (think IRS/Tea Party) and miss all the small fish like PFC Manning and contract employee Snowden both of whom are more likely to become cult heros than reviled traitors. That’s the culture we have created where political correctness trumps common sense, diversity trumps competency, politics trump governing and fairness trumps individual achievement. As your analysis has so brilliantly demonstrated — it’s a puzzlement.

  4. Larry F says:

    Countries have secrets. The US is more open than many countries, but still has – and needs to keep – secrets. We try to steal others secrets. We try to connect dots so that we understand network structures (and to steal the secrets of the network participants). None of this is noble, but all of it is necessary.

    What law(s) Snowden has broken, I don’t know, but he either broke some with serious consequences, or, odious as it is, we need some new laws with serious consequences so we can keep our secrets and have the best chance of stealing others’.

    The hard question seems not what law he broke, but rather how any clandestine system can be managed near the margin of law and propriety. At the end of the day, someone has to make close calls.

    Managers make close calls. Directors – analogs of Congress – set policy and control the auditing processes. If we want good managers making our close calls, we have to let them manage. The choice is NOT how precisely Congress should define the rules at the margin; there can never be a good enough definition without blurring the line between policy and management. The real question is whether we are willing to empower good managers, or whether we want bad ones.

    If our objective is the perfect manager and perfect system, we will always and forever be disappointed.

  5. Bob Saltonstall says:

    To me this whole Sniowden issue is another sign of the new times we live in. More and more information is available to everyone, and we’ve not begun to figure out how or whether to manage that. I feel Snowden is guilty of something, but also feel he is revealing some issues that we must begin to face. For that in a sense I admire him and am not sure I agree with those who chastise him 100%. Will be very interesting to see how this all plays out.

  6. Leo Melamed says:

    Hal,
    Great analysis, lously conclusion. In fact, no conclusion, which in a sense is even worse than a lousy conclusion. I am sure you have seen Rand Paul’s analysis. I attach his most telling observations which clearly contain a conclusion and a good one.

    No one objects to balancing security against liberty. No one objects to seeking warrants for targeted monitoring based on probable cause. We’ve always done this.

    What is objectionable is a system in which government has unlimited and privileged access to the details of our private affairs, and citizens are simply supposed to trust that there won’t be any abuse of power. This is an absurd expectation. Americans should trust the National Security Agency as much as they do the IRS and Justice Department.

    Monitoring the records of as many as a billion phone calls, as some news reports have suggested, is no modest invasion of privacy. It is an extraordinary invasion of privacy. We fought a revolution over issues like generalized warrants, where soldiers would go from house to house, searching anything they liked. Our lives are now so digitized that the government going from computer to computer or phone to phone is the modern equivalent of the same type of tyranny that our Founders rebelled against.

  7. susan duman says:

    Hal,
    I am forever grateful for your wise and even-handed way of analyzing this issue.
    You help me feel smarter than I am.

    Susan D

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