On Snowden and Leaking

I decided it was time to make some remarks about the case of Edward Snowden, leaker of NSA surveillance programs.

Classification of information is a special kind of law that exists in tension with the logic of the democratic rule of law. It should be inherent to a valid defense of the rule of law that the laws in question have democratic legitimacy and that they do not harm the public interest. Without this stipulation, there’s little to distinguish the rule of law from a mechanism of tyranny. We can’t weigh the value of the rule of law distinct from the content of the ruling laws.

In the US, it’s a felony to share classified information with a person who does not hold a security clearance. If a clearance holder witnesses an illegal act that can’t be reported without revealing classified information, he or she can report it through government channels. This works as long as (A): the law can be consistently enforced in the public interest, and (B) the relevant government authorities are interested in preventing wrongdoing. However, nothing stops the components of government from colluding to protect the status quo against reporters of wrongdoing who are bound by classification law. Rule of law ceases to be compatible with democratic values because the law can be used to prevent people from taking necessary action to right a wrong.

It simply must be socially acceptable to violate classification law when there are no other reasonable means by which a wrong can be rectified. This is doubly true in a democracy, where governance is meant to be in accordance with the will of the people. The people cannot rectify an overreach or, for that matter, legitimize a policy in the first place unless they comprehend that policy.

This is where close-to-the-Beltway types introduce the distinction between republicanism and democracy. It is true that the US is a democratic republic, not a direct democracy. But democracy exists on a continuum. We can and should strive to make our republic ever more democratic. Those who would oppose the leaking of programs that appear to violate human rights standards on the grounds that the leak potentially threatens counterterrorism programs very much lean away from making our republic more democratic.

Now, the American public seems so far to accept the official justification that the liberties forfeited for the NSA surveillance programs are a worthy sacrifice to protect Americans.  If recent polls can be taken as representative of the public, then I’m willing to accept that democratic legitimacy has been lent to the programs even though their creation in secret was a prior theft of power from the American people. That said, I strongly urge the people to reconsider. I think the argument for surveillance in exchange for security from terrorism relies in part on deception about the observable risk of terrorism.

As far as we have been allowed to know, we are not in appreciably more danger than we were before Snowden’s leak because terrorism poses a socially insignificant threat in the first place. Snowden has taken from us a degree of security too infinitesimal to be detected by human faculties in exchange for significant information about how our security services are willing to treat us for their own interest (which they often erroneously view as the de facto public interest). Terrorism should be given very little weight against longstanding rights to privacy and due process.

We cannot reserve our democratic sensibilities for the hypothetical moment when the government unilaterally chooses to abuse the data it has collected from blanket surveillance. The fact that all use and mention of said data is classified means that we can’t stop the government from acting out of line with our interests. It can simply render any abuses “classified,” thus criminalizing all democratic efforts to stop the abuse.

I’m willing to concede that for the sake of internal consistency, the US government must at least nominally enforce its classification law at the public’s expense. Even still, it’s imperative that we support Ed Snowden’s leak of information about NSA surveillance if he has a good faith conflict of conscience about it. It’s clear to me from the below excerpts from Snowden’s Hong Kong interview with Glenn Greenwald that his conflict was in good faith [emphasis mine]:

“When you’re in positions of privileged access like a systems administrator for the sort of intelligence community agencies, you’re exposed to a lot more information on a broader scale then the average employee and because of that you see things that may be disturbing but over the course of a normal person’s career you’d only see one or two of these instances. When you see everything you see them on a more frequent basis and you recognize that some of these things are actually abuses. And when you talk to people about them in a place like this where this is the normal state of business people tend not to take them very seriously and move on from them.”

“But over time that awareness of wrongdoing sort of builds up and you feel compelled to talk about. And the more you talk about the more you’re ignored. The more you’re told its not a problem until eventually you realize that these things need to be determined by the public and not by somebody who was simply hired by the government.”

“You can’t come forward against the world’s most powerful intelligence agencies and be completely free from risk because they’re such powerful adversaries. No one can meaningfully oppose them. If they want to get you, they’ll get you in time. But at the same time you have to make a determination about what it is that’s important to you. And if living unfreely but comfortably is something you’re willing to accept, and I think it many of us are it’s the human nature; you can get up everyday, go to work, you can collect your large paycheck for relatively little work against the public interest, and go to sleep at night after watching your shows.”

“But if you realize that that’s the world you helped create and it’s gonna get worse with the next generation and the next generation who extend the capabilities of this sort of architecture of oppression, you realize that you might be willing to accept any risk and it doesn’t matter what the outcome is so long as the public gets to make their own decisions about how that’s applied.”

Our awareness of surveillance programs is a necessary condition for our regulation of those programs. We in the US should insist on the necessary information to determine their value for ourselves. Luckily, the poll I linked above suggests public support for open Congressional hearings on the NSA surveillance programs even while the public is less sympathetic of Snowden.

Democracy aside, empathic reasoning makes clear that to render an individual impotent to act on fundamental crises of conscience is a form of cruelty and brutality with the potential to destroy lives. Classification law arguably institutionalizes this cruelty. If the cruelty cannot be eliminated altogether from a country that is survivable in a world of security dilemmas, then we can at least mitigate, minimize, or otherwise regulate the cruelty down to acceptable levels. A good start is public acceptance of leaks motivated by crises of conscience—Snowden leaked it for us. Materially, he could have hoped for nothing but sacrifice in return for his gesture. We are much more informed than we are less safe.

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