Edward Snowden presents us with two obvious options: traitor or patriot. Of course, he may be a bit of both. What is less important than the right choice is the discernment of, and deliberation about, the issues involved in a determination. Whatever else it achieves, the effort forces us to think seriously about issues usually in conflict but rarely mutually exclusive. For instance, Snowden might be regarded as a traitor for breaking his oath to secrecy, disclosing classified information presumably jeopardizing national security, and thus for breaking the law. He might also be regarded as a patriot for acting to uphold his oath to protect the Constitution and discharging an obligation to serve justice. The difference, though often obscured in common parlance as well as everyday practice, is implicit in the very name of the Department of Justice; it is not a Department of Laws.
Those who think that the issues are clear-cut are not thinking seriously. They are simply posturing for political purposes having little to do with the issues involved. For example, every person in any of the Military Services must obey an order from a superior and disobey an illegal order. The conflict arises when a superior gives an illegal order. Those who believe in the higher authority of the chain of command will argue on one side; those who believe in the higher authority of legality will argue on the other. In conflict are two important values, and the struggle is to make a sensible decision about which one should prevail in the circumstances. The American position at, and the determination of, the Nuremberg trials of Nazi war criminals was the primacy of legality over authority.
In Snowden’s case, some of the circumstances are well enough known. Snowden illegally copied and disclosed highly classified documents about certain National Security Agency (NSA) programs, the existence of which was unknown to the public and apparently many elected Congressional representatives and senators. Since their disclosure, the NSA insists that the programs collect, analyze, and store “metadata,” which specify the origins, courses, and destinations of electronic communications; it denies the programs collect, analyze, or store data about the contents of those communications. In short, the programs collect data only in support of what is known as traffic analysis: who is talking to whom, and where, whence, and when they talk.
Most of the circumstances are not known or are misunderstood. First, because the programs collect and store unimaginably large amounts of metadata—hereafter, I use the term “data” instead—the programs must also filter, or what is the same thing, profile the data to select only a manageable amount for purposes of analysis. Second, although I have no idea what the parameters of the profiles are or who determines them, I am sure that, though experts scrutinize them and officials approve them, they probably would not pass any test of political correctness, though perhaps they need not. Third, the influence of current military and political thinking, which partly reflects the biases of current events and cultural biases, on the choice of, and importance attached to, the parameters is great. Fourth, though such programs can provide preliminary findings requiring other intelligence resources to identify and address a threat to national security, they can also increase the risks to national security. A common adjunct of intelligence analysis based on abundant data and sophisticated techniques data is over-confidence which blinds analysts to possibilities outside the scope of the program. Industrialized NSA intelligence production can stifle the imagination and thus limit consideration and detection of other people and approaches enabling surprise attacks.
The context of these and other yet-to-be-revealed or –disclosed NSA programs is, of course, conflict or potential conflict with real or prospective adversaries. Since most of them are sophisticated, though not necessarily technologically so, they know that NSA is spying on them. Adversaries know that NSA is collecting data—“meta” or “meat”—from their electronic communications. For this reason, Osama bin Laden—remember him?—never used electronic communications after 1998; the Central Intelligence Agency (CIA) discovered his location by identifying and tracking his couriers. Such traffic analysis is a two-edged sword. NSA can use it to identify and locate adversaries; they can generate communications traffic for purposes of deception. So far, they have not done so, but NSA should beware of a “lapse” or “mistake” in their using electronic communications.
So none of Snowden’s disclosures thus far—he is said able and likely to make more—is likely to have done—or, in the event of future disclosures of the same kind, likely to do—much damage to national security, if it is defined as America’s defensive posture with respect to foreign adversaries and if he continues to avoid operational intelligence. They know that the NSA spies on them, and the NSA knows that they know. Moreover, Snowden has been scrupulous to limit his copying and disclosing to programs and not personnel, agencies, facilities, methods, or technologies.
The only damage done is to the federal government with respect to its citizens. Citizens now know what the federal government did not want them to know. It did not want them to know that its three branches have been playing a wink-nod-and-nudge game about widespread surveillance on hundreds of millions of citizens. It did not want them to know that the system of checks and balances which protects—or is presumed to protect—the country’s democratic form of government has been partly corrupted or selectively disregarded. Yet, in the perverse world of spy-speak, Executive Branch and Congressional leaders are claiming that the highly classified programs were known to the public’s representatives and, despite the secrecy which shrouded them, subject to rigorous checks and balances.
The Chief Justice of the Supreme Court personally appoints—no confirmation, no accountability—the judges of the Foreign Intelligence Surveillance Act (FISA) judges. Citizens now know that even the name, with “foreign” in it, fraudulently represents the scope of its authority. The cases, the guidelines, and the decisions of the court are classified. The court consists only of lawyers from the petitioning agency and the judge; it does not include non-governmental lawyers arguing against the agency’s petition for permission. Ironically, this court is government by people acting in secret, without accountability; it is not government under law.
Congress is only peripherally involved in surveillance. It passes vague laws subject to classified Executive Branch interpretation and implementation. It provides little or no oversight of surveillance programs or FISA activities because it is denied—and does not object to being denied—an oversight role. Indeed, the lack of outrage at the perjurious testimony of James R. Clapper, Jr., Director of National Intelligence, shows that Congress is easily satisfied with lies intoned under sworn oath by high intelligence officials. When asked a direct, simple question whether NSA programs collected data on many millions of American citizens, he said no. Just a few months later, we know that he lied, that testimony given under oath by intelligence officials is untrustworthy, and that Congress does not care. Ironically, Clapper’s lie prompted Snowden to his revelations of the truth.
If and when the Executive Branch provides briefings, only the relevant committee chairs and minority leaders attend. Because of the level of security, they cannot discuss the content of those briefings even with other members of their respective committees, much less the members of the House and Senate as a whole. The claim that the Executive Branch has briefed Congress is thus a hollow one intended to assuage the public.
What citizens now know is that such arrangements indicate that Congress is impotent in as well as indifferent to matters affecting Constitutional questions about reasonable searches and seizures. And they know that, as a result, the Executive Branch is left to do pretty much as it pleases. Thus, the chance of erosion of, or encroachment upon, civil liberties is left to the unchecked determinations of mostly unelected officials, who may or may not, in the press of secret professional business and hidden personal ambition, work scrupulously in the public interest.
The risks which Snowden has run are not those run by self-seekers. Those protesting and reviling his revelations are self-serving parties—I think first of California Senator Diane Feinstein—whose reputations for probity and for power hinge on the smoke-and-mirrors game of “I’ve Got a Secret.” Citizens now know that they were not honest about their views about civil liberties and that they were not doing the job which they had long represented themselves as doing to balance civil liberties and national security. Their record is always that of sacrificing the former for the sake of the latter. Snowden’s revelations expose and puncture their pretenses, and they are mad. Snowden is the target of their anger and the scapegoat for their sins.
Their charges against Snowden and their vilification of his education, his character, his motives, his methods, and anything else which they can adduce to discredit or demonize him merely measure their discomfiture at their exposure and embarrassment, not the disclosure of significant secrets damaging to the nation’s security. For myself, I sleep better knowing that people like him, with the courage of their convictions based on the citizens’ right to be represented by those protecting all of their interests, still take principled actions and make personal sacrifices to serve democracy and the people.