Is Snowden above the law he says others violate?

I think yesterday’s New York Times editorial declaring Edward Snowden a whistle blower is wrong.  The Times argues that

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

Let’s grant that all these allegations are true.  Do they justify what Snowden did?

The answer is “no.”  Snowden says he complained first within his own organization about excessive NSA surveillance, but he has produced no evidence that this was the case.  It is a bit hard to believe that Snowden doesn’t hold on to his own emails.  Where are the documents demonstrating that he attempted to raise the issue of excessive surveillance with his superiors?

Were there other options available?  Yes.  He might have talked with colleagues and tried to organize an examination of the issues within his organization.  He could have resigned from his position and published a scathing op/ed in the New York Times.   He might have joined one of the many nongovernmental organizations concerned with excessive government surveillance and helped them uncover the full extent of NSA’s operations without revealing his own knowledge of classified operations.  He could have worked with members of Congress to encourage NSA oversight hearings.

Would any of this have been effective?  I don’t really know.  But it would all have been legal and proper.

Instead, Snowden chose to do three things that disqualify him from my sympathies:

  1. He swiped large quantities of NSA data to which he was not entitled.
  2. He fled the United States.
  3. He accepted temporary asylum in Russia, a country whose surveillance mechanisms are guaranteed to be at least as vigorous, though not possibly as effective, as those in the US.

These are only the things we know he did.  There are still a lot of question marks about what he might have done to get Russian President Putin to reverse his initial decision on asylum, under whose tutelage and protection he operates in Moscow, and what promises he may have made to other foreign governments.   Those who argue on Snowden’s behalf may well find themselves seriously embarrassed in the future.

But let’s leave that aside.  The Times argues for President Obama to end the “vilification” of Snowden and give him an incentive to return home. I’d have thought living in Putin’s Russia would have been more than enough incentive to return home. What kind of civil libertarian accepts the protection of a country that jails its opposition, cracks down brutally on demonstrators, and closes news outlets that dare some degree of independence?  What limits does Snowden think Russia puts on its equivalent of the NSA?  What protests has he launched against Russian eavesdropping?

I haven’t heard the President vilifying Snowden.  Imagine what George W. Bush or Ronald Reagan would be saying if they were in office.  Michael Hayden has suggested Snowden might be a traitor, but Hayden is a private citizen associated with the President’s opposition, not the administration.  What President Obama has said is that Snowden can make his case in court.

That’s what he ought to do.  It is hypocritical of the Times to cite court decisions in Snowden’s favor and then suggest that he need not face prosecution on criminal charges directly and clearly related to what he is known to have done.  Snowden’s many defenders are aggressively pursuing cases in court against the government and NSA.  Why is it that the courts are good enough for them but not good enough for Snowden?  What is it that puts Snowden above the law he so frequently claims others violate?

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6 thoughts on “Is Snowden above the law he says others violate?”

  1. So he’s entitled to commit murder, because others do so? (Snowden fella, don’t tempt me.)

    If he didn’t find an ear within the NSA, there were always the Republicans looking for something to use against Obama and Democrats-in-general. And Dana Priest is probably still around – she broke the story on the renditions and foreign prisons and the conditions at Walter Reed Hospital, for which she received Pulitzer prizes, not the prison and torture Snowden says he fears. She also did an series on the incredible expansion of military contractors in the government – the NSA story would have been a natural for her and the Post.

    Let Putin keep him.

  2. Dan,

    On this one you are dead wrong. Snowden did the American public a great service in revealing, in their own documents , the excesses of the NSA. The authenticity of the documents was beyond denial. The Times is right on.


  3. The root of this whole problem lies in the 9/11 terrorist attack by al-Kaida. As far as I remember, lack of proper cooperation and coordination between various agencies within the U.S. security-intelligence apparatus was cited as a major reason why the attack succeeded. Consequently, the government has since been rapidly increasing intelligence capabilities – a process that naturally requires a considerable amount of all types of resources, including human ones. While such reaction may be considered a bit paranoid in some way, it ultimately was quite understandable, given the scale of the 9/11 catastrophe. Either way, this kind of (arguable) overreaction by the government was what actually enabled individuals like Snowden to enter a system they otherwise would probably have never been allowed in.

    Now, after all, if there is any potential benefit of Snowden’s (in my view largely deplorable) act, it only could be in an opportunity to open a debate on whether the government would have been able to effectively protect the nation without applying such kind of measures and without use of so vast resources.

    P.S: If one believes that other countries’ intelligence services do not do the same as the NSA, one is under a terrible illusion. The only difference in that regard between the Americans and others is merely in terms of capabilities, but every government would be more than happy if it possessed the resources that Washington has, and would be by no means more self-restrained when it comes to “spying” than the U.S. is.

  4. I do not think that Mr. Serwer is dead wrong. Let me explain myself as a professional who is in the field for many years. It has nothing to do with laws or much less with 4th amendment. Every unprotected and/or unencrypted piece of data exchanged on the internet is metadata (pice of data already owned by more than parties in conversation) and thus for anyone to grab. It is the nature of the thing. To say something over the internet (or any other modern piece of communication) in an unprotected (https) or unencrypted way is if we were to have a laud conversation in a large public place full of people and wanting for no one to hear us.

    1. I read the decision of the court that recently ruled that NSA’s actions are constitutional. As I remember, it was based on a 1970’s SC ruling that once you have handed over information to a third party (for example, by giving the telephone company the number you want them to connect you to), you have no more expectation of privacy concerning that bit of information – the number, not the content of the call. It would be simpler if it had been stated from the outset that there is no more expectation of privacy for internet communications than there is for cell-phone use (as contrasted to land-based telephony) – by now, people have exaggerated ideas of what they are “entitled to”, despite the near-impossibility of providing it. (If I’m wrong on the cell-phone business, maybe someone can correct me – most of the law I think I know comes from reruns of Law & Order.)

      We can probably expect the ACLU case to end up in the Supreme Court before long. This is not to say they won’t get it wrong – there’s always the example of Dred Scott, after all (not to mention Citizens United) to bear in mind, but at least the simple-minded complaints from people who don’t want their pornography-viewing habits accessible to anyone except the kind souls who provide it should get an airing.

      1. Both rulings are based on obsolete or inadequate legal basis. During the previous administration there was a law so biased (and stupid if I may say) that would render anyone who visits any web page with any modern browser that keeps cache to speed up loading and reduce the bandwidth a criminal. Stupid because it thought it was for the private sector but was actually hurting the very business that is running the infrastructure. The whole legislation under the influence of various interest groups on both side of the aisle the legislature is years behind the technological advancement without any foresight or vision. Contrary to the inventions and advancement in the science&technology in both, private and government sector.

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