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Is it naïve to see whistleblowing as a form of civil disobedience?

Edward Snowden’s NSA leaks have been the talk of the globe for more than a year now. Yet we remain in the dark about how this thirty-year-old high school dropout evolved into one the world’s most prominent critics of state surveillance. Although opinion outside the United States appears to be behind Snowden, views at home are more polarized. And questions linger. Was Snowden’s whistleblowing justified? If so, was he also right to flee the United States rather than face legal sanctions?

Two new books by journalists Glenn Greenwald and Luke Harding shed fresh light on Snowden’s motives and political trajectory. Their stories mostly overlap, describing how in December 2012 Snowden, a private contractor for the NSA, first unsuccessfully approached Greenwald, who was known for his civil libertarianism and opposition to much U.S. national security policy. Only in April 2013, after Snowden had separately contacted one of Greenwald’s friends and colleagues, the documentary filmmaker Laura Poitras, did Snowden and Greenwald begin a lengthy email exchange that culminated in a series of clandestine face-to-face meetings in Hong Kong. Harding’s ties to Snowden are less direct. He was not involved with the leaks, but as The Guardian’s foreign correspondent he has written widely about Snowden and the United Kingdom’s deep entanglement with NSA espionage.

The books also overlap substantially in their coverage of that espionage. The Guardian Editor Alan Rusbridger’s recent quip that “it is essential to be paranoid” is well supported by the evidence they bring together.

Broadly, what we have come to know through news reports, ably synthesized in both books, is that the NSA, working closely with the private sector, has been monitoring much of what we do on the Internet and has collected massive quantities of data on email and phone contacts. Offshoots of the warrantless domestic spying program created by the Bush administration after 9/11, the NSA’s initiatives were kept out of the public eye until the New York Times revealed them in December 2005. Yet Congress then responded by indemnifying the big telecommunications firms that had cooperated with the NSA, effectively giving the agency a green light to continue with secret surveillance. It was the later efforts, such as the PRISM data mining program, that Snowden leaked last year.

A crucial figure in the story is Four-Star General Keith Alexander, who was chief of the NSA until last March. His personal motto, “collect it all,” served him well as head of Army Intelligence in occupied Iraq—at least politically. Alexander was praised by the Bush administration, and when he moved on from Iraq in 2005 promoted to head the NSA. “Collect it all” appears to have become his agency’s new ruling philosophy as well. Greenwald documents how, under Alexander, the NSA dramatically broadened its global reach. Its spying activities extended well beyond counterterrorism; the NSA systematically eavesdropped on European Union officials working on anti-trust laws, South American energy concerns, and the private communications of foreign leaders and officials, most prominently Brazilian President Dilma Rousseff and German Chancellor Angela Merkel. Greenwald also highlights the NSA’s disdain for the mechanisms of democratic accountability. So when James Clapper, director of national intelligence, was asked by Oregon Senator Ron Wyden in March 2013 whether the NSA was collecting data on U.S. citizens, Clapper audaciously replied, “No, sir. Not wittingly.”

When Clapper went home that evening, he probably patted himself on the back for having dodged a bullet. He could not have anticipated that his evasive comments would precipitate the biggest act of whistleblowing since Daniel Ellsberg exposed the Pentagon Papers. Snowden, the books reveal, was outraged by Clapper’s remarks, as he had been by earlier misleading comments from other high-level officials. Any doubts he may have had about his planned leaks, by then in the works for more than a year, were finally put to rest.

Snowden’s emails to Greenwald show that he struggled to overcome his instinctive hostility to whistleblowing and thought hard about how to do it responsibly.

Both books let Snowden speak for himself. Harding begins with a chapter devoted to extensive posts from a user nicknamed “TrueHOOHA” on Ars Technica, a popular technology Web site. Snowden hasn’t confirmed the posts, starting in late 2001 and concluding in May 2012, are his, but there is strong evidence that he wrote them. The author began as an ardently patriotic right-winger, with a soft spot for gun rights, libertarianism, and Ron Paul, whose presidential aspirations he supported. The posts sometimes offer little more than clichéd vents. Yet they also point to frustration with the sizable gap between U.S. political rhetoric and the ugly facts as Snowden was experiencing them in the world of secret intelligence. The posts also evince a strong sense of fair play, which Snowden has demonstrated in his public statements. For instance, Snowden, who spent nearly three years in Geneva working for the CIA, has recalled with distaste an incident in which CIA operatives recruited a Swiss banker by getting him drunk and recklessly encouraging him to drive home. After the banker was arrested by Swiss police, the CIA helped him out in exchange for his cooperation.

During his stay in Europe, Snowden also befriended people who challenged his sometimes-parochial views about American foreign policy and the country’s exceptional place in the world. Though not an Obama supporter, Snowden took seriously the Illinois senator’s 2008 campaign promise to roll back Bush’s more extreme counterterrorism policies. When Obama, as president, failed to end what Snowden believed was illegal and unconstitutional NSA spying, he felt betrayed. At some point in 2012, he decided that he was morally obliged to do something. Snowden would later tell Greenwald, “You can’t wait around for someone else to act. I had been looking for leaders, but I realized that leadership is about being the first to act.”

The Snowden who suddenly appears in Greenwald’s email account in December 2012 comes across as a surprisingly mature and conscientious moral and political agent, who articulates a principled critique of NSA spying. Before revealing his identity to Greenwald, he goes by the name “Cincinnatus,” a reference to the fifth century BCE Roman aristocrat and emergency wartime leader who, after defeating Rome’s enemies, surrendered political power and returned to his farm. In his messages Snowden laments the “divorce of power from accountability” in the NSA and U.S. government at large. He describes a failed system of oversight in which a “federation of secret law, unequal pardon, and irresistible executive powers” is left unchecked.

Snowden also lambasts the U.S. government for abandoning the rule of law:

When marginalized youths commit minor infractions, we as a society turn a blind eye as they suffer insufferable consequences in the world’s largest prison system, yet when the richest and most powerful telecommunications providers in the country knowingly commit tens of millions of felonies, Congress passes our nation’s first full law providing their elite friends with full retroactive immunity.

He tells Greenwald that NSA espionage violates not only Fourth Amendment protections against unreasonable search and seizure, but also the principle of equal protection under the law: the powerful and privileged enjoy privacy rights effectively denied the rest of us.

This critique meshes with Snowden’s longstanding libertarian philosophy, but by late 2012 he seems to have moved beyond the rough-edged nationalism of some of the TrueHOOHA posts. When explaining his decision to blow the whistle, he appeals to the U.S. Constitution, but also to international law, the Universal Declaration of Human Rights, and the 1945 Nuremberg declaration that “individuals have international duties which transcend the national obligations of obedience.” In a manifesto shared with Greenwald, he ominously warns of “national relativism,” a mindset in which people ignore their own country’s ills and instead conveniently look “toward distant, external evils.” Our primary duty, he insists, should be to police our “own government before seeking to correct others.”

Snowden’s emails to Greenwald show that he struggled to overcome his instinctive hostility to whistleblowing and thought hard about how to do it responsibly. He has never supported leaking as a matter of course; in a 2009 TrueHOOHA post, he rants about officials who secretly disclosed plans of a covert Israeli attack on Iran to the New York Times and describes the paper’s cooperation as “worse than Wikileaks.” But, in the face of what he considered illegal acts by a rogue government agency, he concluded it was necessary “to spark a worldwide debate about privacy, Internet freedom, and the dangers of state surveillance.” The discussion had to be public and global because people everywhere deserved to know that the United States was, unbeknownst to them and to most elected officials, watching their daily activities. He told Greenwald, “I want to identify myself as a person behind these disclosures. I believe I have an obligation to explain why I’m doing this and what I hope to achieve.” Unlike those who secretly release confidential information to protect their careers, Snowden felt obliged to reveal his identity. Only by doing so, he claimed, could he justify his acts and demonstrate his civic mindedness.

Accurately predicting that the Obama administration would prosecute him under the Espionage Act, Snowden joked with Greenwald, “I call the bottom bunk at Gitmo.” He would avoid prison if he could, but expected to face the same sanctions the Obama administration had imposed on Chelsea Manning and other whistleblowers. To Greenwald’s surprise, Snowden was “at peace” with the likelihood that he would have to abandon his home, girlfriend, and well-paying job in Hawa‘ii: “The only thing I’m worried about is that I’ll do all this to my life for nothing.”

Snowden also explained to Greenwald how his leaks differed from those he had previously criticized. “When you leak the CIA’s secrets, you can harm people,” he explains, as Julian Assange’s more indiscriminate Wikileaks had, perhaps, demonstrated. Blowing the whistle about NSA surveillance supposedly would not harm anyone: “when you leak the NSA’s secrets, you only harm abusive systems.” As Snowden has repeatedly emphasized, he meticulously sorted the secret materials he released with an eye toward minimizing danger to others: “I have carefully evaluated every single document I disclosed to ensure that each was in the public interest.” Snowden encouraged Greenwald to filter the leaked materials so that they could reach the public “without harm to any innocent people.” Rather than place classified materials online in bulk as Assange has, Snowden urged a more cautious approach. “If I wanted the documents just put on the Internet en masse, I could have done that myself,” he tells Greenwald.

Thanks in part to his care, Snowden’s concern about giving up his comfortable life in vain has been unrealized. Since June 2013, when The Guardian published Greenwald’s first story about Snowden’s leaks, we have had the very debate about privacy, Internet freedom, and state surveillance that Snowden hoped to inspire.

• • •

What should we make of this debate and the actions that precipitated it? The political theorist Rahul Sagar was probably correcting proofs of Secrets and Leaks: The Dilemma of State Secrecy when Snowden was busily emailing Greenwald, so Sagar does not directly address Snowden’s case or its broader implications. Yet his provocative discussion of state secrecy helps us to evaluate Snowden’s choices.

Sagar’s political sympathies, like Snowden’s, are right-of-center. But unlike Snowden, or at least the post-TrueHOOHA Snowden who popped up on Greenwald’s computer screen, Sagar is more willing to accommodate the executive branch’s views about what should and should not remain secret. Far-reaching state secrecy, including the possibility of secret surveillance, is here to stay, and the executive remains best equipped to determine the scope of it, he argues. Those who emphasize its perils understate the need for “adventurous exercises of executive power [that] usually take place in the midst of complicated and fast-moving events.” Some of those adventurous exercises, Sagar asserts, may be necessary even if illegal.

Against civil libertarians, Sagar disagrees that secrecy can be effectively checked by a more vigilant Congress, judiciary, or press. Congress is too unwieldy an institution to keep its mouth shut and guard secrets when appropriate, and the courts often lack the requisite expertise to oversee secret executive action. Reporters, editors, and publishers like to picture themselves as heroic defenders of the public interest when outing government secrets, but their disclosures too often reflect their selfish interests or those of powerful media companies. Media leaks also may generate undesirable and even destructive consequences.

In sharp contrast to Greenwald and Harding, both of whom tout journalists’ role in abetting whistleblowers, Sagar worries about allowing unelected journalists to hamper the executive branch. Whatever his or her flaws, the president was elected. Nobody elected the editors of the New York Times, let alone Greenwald or Assange.

The same is true of anonymous government insiders who might blow the whistle. In most cases, Sagar contends, unelected officials should defer to their bosses, who typically possess a better sense of the big picture. Anonymity invites irresponsible leaks, which can be politically or selfishly motivated. And Sagar discounts appeals to moral conscience on the part of the whistleblower. It is, he believes, naïve to accept “the practice of leaking as a form of civil disobedience, a morally justified act of resistance to the wrongful use of political power.” Those troubled by their consciences ought simply to resign from their posts.

Sagar hopes would-be whistle blowers will internalize his own kneejerk deference to the executive. His dismissive view of the role of moral conscience also means that he cannot make sense of what drives so many otherwise law-abiding officials to risk so much by unveiling details of government wrongdoing.

Sagar concedes that state secrecy poses dangers but argues that little can be done systematically to alter the status quo. Leaks will continue, and some may prove beneficial. Yet we should avoid glamorizing those who shed government secrets, and the press needs to be more vigilant in policing its publication of those secrets. The executive branch should do what it can to improve its creditability. By doing so, it might prevent leaks from occurring in the first place.

But, in spite of his deference to the executive branch and his opposition to establishing new legal protections for whistle blowers, Sagar believes that whistleblowing can be justified under certain circumstances. His distaste for the practice makes his arguments about sources of justification that much more compelling. And on the basis of his reluctant case for justifiable whistleblowing, he inadvertently provides a defense of Snowden.

Sagar disagrees that secrecy can be effectively checked by a more vigilant Congress, judiciary, or press. Nonetheless, whistleblowing can be justified under certain circumstances.

Even if the executive branch deserves plenty of leeway, Sagar acknowledges that there may be rare cases of incontrovertible wrongdoing “understood as the abuse of public authority,” where the president, as during Nixon’s Watergate break-ins, unambiguously oversteps the bounds of executive authority. Justifiable whistleblowing also requires clear and convincing evidence of wrongdoing and should “not impose an undue or disproportionate burden on national security.” Whistleblowers are obliged to minimize harm to others by limiting the scope and scale of their disclosures. Most importantly, they should be expected to disclose their identity so that legal authorities and the public can properly evaluate their motives.

Sagar’s checklist includes some unsettling ambiguities. Wrongdoing is characterized not by executive illegality per se, but by the president’s failure to abide by a vaguely defined “spirit of the law.” Excessively worried about threats to the executive branch’s capacity for decisive action, Sagar is too-little troubled by its history of disdain for Congress and the rule of law. For that matter, who decides what a disproportionate burden on national security looks like?

Even with this high degree of ambiguity favoring the executive, Snowden meets Sagar’s criteria. Snowden has not merely asserted that NSA surveillance conflicts with his personal views about privacy. More ambitiously, he has argued that the true character of NSA data collection has been kept secret not only from the public, but also from most elected officials, to whom intelligence officials such as Clapper have lied. The government body authorized to exercise oversight, the Foreign Intelligence Surveillance Court, acts in secret and is little more than a rubber stamp for the executive branch. So a strong case can be made for public wrongdoing.

The evidence leaked to Greenwald is also “clear and convincing,” and Snowden at least claims to have carefully selected it so as to limit harm. Naturally the Obama administration considers his disclosures irresponsibly broad. But, at least so far, the disclosures have narrowly concerned constitutionally questionable spying, and their effect has only been to ignite public debate. And there is no evidence that Snowden’s actions have undermined U.S. security, as Richard Leon, a conservative federal judge appointed by President George W. Bush, pointed out in an important court ruling last December. We have no sound reason to believe that Snowden’s leaks have engendered what Sagar describes as “grave threats that are specific and imminent rather than vague and remote.” According to Sagar, “only threats of the former sort can trump the public’s interest in being informed of grave wrongdoing.” Even Judge William Pauley, who disagreed with Judge Leon’s ruling in a separate federal court case, did not mention any threats of that kind. So Snowden should pass even Sagar’s elastic national security litmus test.

Sagar also calls for whistleblowers to reveal their identities. Snowden has done that. And by offering a series of public justifications for his acts, he has taken an important further step. As Snowden seems to grasp better than does Sagar, the mere revelation of a whistleblower’s identity will not always demonstrate why she chose to act and whether her actions are worthy of public esteem. When possible, whistleblowers should make sure their grounds for action are publicly articulated. To his credit, Snowden has repeatedly explained why he felt obliged to do what he did.

It may have been out of concern for these justifications that Snowden fled the country and immediate prosecution: he needed the freedom to explain his actions and would have been hamstrung by the legal process, which, according to Sagar, whistleblowers should be prepared to face. As Snowden predicted in his emails to Greenwald, after the leaks went public the Obama administration revoked Snowden’s passport and charged him under the Espionage Act. Attorney General Holder also made it clear that the U.S. government considered Snowden guilty as charged and that it would seek a sentence of at least thirty years—preferably life—in prison.

Aptly described by the legal historian Geoffrey R. Stone as an “efficient tool for the blanket suppression of antiwar views,” the Espionage Act is a shoddy piece of emergency legislation dating from the First World War. Presidents have at times used it to clamp down on unwanted dissident voices, in ways widely acknowledged as legally dubious and politically counterproductive. President Nixon famously deployed it against Ellsberg, before a federal judge declared a mistrial and charges were dismissed. Riddled with vague and even incomprehensible statutory language, and providing the executive discretion over a range of activities related to the loosely defined terrain of national security, its constitutional soundness has been questioned by generations of lawyers and legal academics. Nonetheless, the Espionage Act remains on the books, and Obama has made aggressive use of it against whistle blowers such as Thomas Andrew Drake, Manning, and now Snowden.

Partly because of the Obama administration’s draconian legal response, an eloquent critic of state surveillance now finds himself stuck in Russia. Unless Obama can find his way to a more sensible legal path, Snowden’s fate will be determined by Vladimir Putin, a former KGB spymaster and no friend of open government.

Obama’s move to deploy the Espionage Act against Snowden just as it would against any run-of-the-mill spy ignores the fact that he acted not for private gain or on behalf of foreign powers, but instead so that potentially egregious violations of the law would gain overdue public attention. All legal systems—especially the U.S. system—provide room for leniency in the law’s application. Prosecutors and judges allow for plea bargaining, reduced charges, and the mitigation of harsh penalties when faced with special circumstances. Snowden’s special contributions to the ongoing public debate about surveillance make him a worthy candidate for such treatment.

Image: Andy Holt