Although they have somewhat different focuses, one can find much in common in recent posts about the continuing byproducts of the Snowden disclosures (including last Friday’s speech by President Obama) by John Bellinger and Jack Goldsmith over at Lawfare, and in Monday’s Washington Post op-ed by Marc Thiessen. Taking these three pieces together, conservative critiques of the President, the media, and Snowden have shifted from the controversial programs at the heart of the Snowden revelations to disclosures pertaining to lawful intelligence activities, which Thiessen describes as “espionage porn” (because “[t]hey serve no greater social purpose other than to titillate”). And as Jack rightly documents, whatever one thinks of such disclosures, they underscore “how much publication norms have changed in recent years,” with media outlets revealing U.S. capabilities overseas, something they never would have dreamed of doing even a year ago (at least in part because such publication appears to run directly afoul of 18 U.S.C. § 798). Thus, Thiessen concludes, President Obama’s inclination to pursue reforms of such clearly lawful initiatives proves how “espionage porn has forced the commander in chief to buckle,” buckling that is further underscored, Bellinger implies, by the absence from Friday’s speech of an “emphatic statement that those who take it upon themselves to disclose our nation’s intelligence, diplomatic, and military secrets . . . should be condemned, not lauded.”

As I explain below the fold, these arguments suffer from two sets of fairly serious problems. First, they conflate three very different — and, in my view, unrelated — issues: (1) Snowden’s culpability; (2) the impact of Snowden’s disclosures upon public discourse; and (3) what reforms, if any, Snowden’s disclosures should prompt. Second, they reflect a failure to appreciate the real lesson that we should have learned (and should be learning) from Snowden’s disclosures — not that the U.S. is undertaking specific foreign intelligence activities, but that the grand compromise Congress struck in the 1970s with regard to foreign intelligence oversight and accountability may well have broken down.

I. Snowden’s Legal and Moral Culpability

With regard to (1), there is simply no question that Snowden broke the law. And as I’ve written elsewhere, it seems rather unlikely, especially after the Supreme Court’s decision in Garcetti v. Ceballos, that a former government employee in Snowden’s position would be able to avail themselves of First Amendment protections, even where the unlawful disclosures relate to matters of significant public concern. At the same time, especially given the apparent lack of any connection to foreign governments, there appears to be no case whatsoever that Snowden committed “treason“–or any of its derivative offenses. So if the question is whether Snowden is a criminal, the answer is “yes.” If the question is whether he is a traitor — which is also a legal question — the answer appears quite clearly to be “no.”

That Snowden broke the law is possibly relevant, but hardly dispositive, to whether he ought to have done what he did — to moral judgments about his conduct, and whether he is a “patriot” or a “hero,” as some have described. At least as far back as Robin Hood, we’ve been able to understand the difference between legal and moral judgments about culpability. More to the point, whereas Snowden’s legal culpability is ultimately up to the courts, his moral culpability is up to each of us — to keep our own counsel, and make our own judgments, about whether we believe Snowden acted in a manner that was morally righteous or not. We won’t all agree on the answer — but, critically, to have the conversation we’re having about surveillance reform, we don’t have to.

II. The Public Value of Snowden’s Disclosures

The more important point for present purposes is that Snowden’s culpability — and Snowden himself — have become irrelevant to the point President Obama sought to make in his speech last Friday: that the “one thing [he’s] certain of” is that “this debate will make us stronger.” Thanks to Snowden, the American people will have more awareness of — and more of a voice in shaping — the current and future scope of U.S. foreign intelligence activities. And as I wrote for MSNBC last month after spending a day at the NSA,

There’s nothing wrong with believing—as I do—that Snowden broke the law, and that his actions were at least reckless if not worse. But we’re also considerably better off as a nation for his having done so. And there’s nothing wrong with believing, at the same time, that there are people at the NSA who truly have the best interests of the country at heart and are dedicated to acting within the law. But the NSA should never have begun some of its programs without a robust public debate at the outset. Without Snowden, I would never have been invited to Fort Meade, and all of us, including me, would still be in the dark.

The harder issue here, and the one raised by both Goldsmith and Thiessen (and by Thomas Earnest in his thoughtful post from yesterday afternoon), is whether the value of Snowden’s disclosures derives only from the potential illegality of the disclosed programs, or whether the disclosures can have social value even if their subject is indisputably lawful foreign intelligence activity. Put another way, even if we’re better off for the public debate we’re now having over the arguably unlawful metadata program, can we really say the same thing about the “espionage porn” that Thiessen decries–where there’s no colorable argument that the government has broken domestic law?

I believe that, in at least some cases, the answer is yes. For starters, if the only disclosures that advance public discourse are those related to illegality, we’d only be able to assess whether they were appropriate after the fact, since we would not be able to finally resolve whether the disclosed conduct / programs were lawful until the resolution of judicial process that would necessarily post-date the disclosures. In other words, an argument that equates the public utility of the disclosure with the illegality of the subject of disclosure necessarily vests in the disclosing individual (e.g., Snowden), the initial determination with regard to the legality of the enterprise. Insofar as such an approach would put the disclosure cart before the legality horse, it strikes me as nuts — and is part of why some have long resisted, among other things, an “improper classification” defense to an Espionage Act prosecution.

Second, and far more importantly, foreign intelligence programs can be of enormous public policy significance even when they are unquestionably legal. Examples of this point abound, but an obvious one is “Merkelgate” — and the extent to which the NSA has been intercepting the private communications of foreign leaders. There appears to be no domestic legal constraint on such surveillance, especially insofar as it is targeted at non-citizen political leaders outside the territorial United States. And yet, there can be little question that, as a public policy matter, the American public may care a great deal about foreign intelligence programs that so directly implicate foreign policy and diplomatic relations, even if they have no immediate impact on our individual privacy rights. As an analogy, in the Supreme Court’s pre-Garcetti First Amendment jurisprudence, in which one of the factors used in so-called “Pickering balancing” was whether the disclosure addressed matters of public interest and concern, it was often the case that the answer was yes even when the confidential matters disclosed by the speech were unquestionably legal. All Americans have a vested interest not just in ensuring that the government acting in our name does so legally, but also wisely.

Thus, and more than a little ironically, the “espionage porn” critique is based upon the very distinction that the same commentators fail to make with regard to Snowden — between what’s legal and what’s wise. That’s not to say, of course, that all of Snowden’s disclosures touch on matters of significant public concern; some — perhaps many — may well not. But the “espionage porn” critique is both overstated and undernuanced. Whether specific disclosures are meaningfully contributing to public discourse does not depend upon whether the disclosed government activities are “legal”; the question is whether they are activities that, whether because of their means or ends — or potential consequences — the American people deserve to have a voice in debating. And the answer, as David Cole has cogently explained, is almost certainly case-specific (kinda like pornography, as it turns out).

In short, the line-drawing behind these narratives is far too crude. As Thomas wrote yesterday, they “fail[] to truly address the complexity of the competing interests at stake or to recognize the value of the democratic debate that has unfolded over the last seven months.” Contrast that with the President’s speech: It’s shortcomings aside, one of the things I most admired was how clearly the President sought to not oversimplify the stakes, repeatedly stressing how difficult it is to figure out the right answer on so many important surveillance questions, involving such a complex array of variables, and costs and benefits.

III. Snowden’s Deeper Lessons for Forward-Looking Reforms

One way to understand the critiques driving John Bellinger’s and Marc Thiessen’s reactions to the President’s speech, and, to a lesser degree, Jack Goldsmith’s observations about shifting media attitudes with respect to disclosure of intelligence activities, is as being grounded in the grand bargain that was struck back in the 1970s — pursuant to which foreign intelligence activities were subjected to far more thoroughgoing legal constraints, but with the understanding that those constraints would be enforced through oversight and accountability that would take place almost entirely in secret, whether before the congressional intelligence committees or the FISA Court. So construed, the change in mindset that Goldsmith’s post so cogently identifies, that Thiessen decries, and that Bellinger wishes President Obama would more forcefully denounce, portends a fundamental upending of that compromise (and, for adherents to the post-1978 paradigm, is therefore something to bemoan).

If so, then these critiques have a far deeper flaw: They miss the single most important lesson we’ve learned — or should have learned — from Snowden, i.e., that the grand bargain has broken down. Intelligence oversight just ain’t what it used to be, and the FISA Court, as an institution, seemed to have been far better suited to handle individualized warrant applications under the pre-2001 FISA regime than it has been to reviewing mass and programmatic surveillance under section 215 of the USA PATRIOT Act and section 702, as added by the FISA Amendments Act of 2008.

Thus, even if one can point to specific individual programs the disclosure of which probably has not advanced the ongoing public policy conversation, all of the disclosures therefore illuminate a more fundamental issue of public concern — and one that should be (and, arguably, has been) driving the reform agenda: Whatever surveillance authorities the government is going to have going forward, we need to rethink the structure of oversight, both internally within the Executive Branch, and externally via Congress and the courts. That’s not because the existing oversight and accountability mechanisms have been unlawful; it’s because so many of these disclosures have revealed them to be inadequate and/or ineffective. And inasmuch as such reforms may strengthen not just mechanisms of democratic accountability for our intelligence community, but also their own confidence in the propriety and forward-looking validity of their authorities, they will make all of us — including the NSA — stronger in the long term.

