4 thoughts on “Edward Snowden – Article from “US News” (guest post)

  1. John Halford

    Jacob Abraham, the author of this blog, has hailed Edward Snowden as a hero, but I have mixed feelings and am suspicious of Snowden’s motives. Would be curious to know what Jacob has to say!

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  2. Kelley Kidd

    It will matter very little in the long run whether Robert Snowden is technically defined as a “whistleblower” under federal law. What matters is whether the citizens of this country were morally, ethically and constitutionally entitled to know(1) that an arm of their government was secretly collecting and storing data about every communication each of them was having with each other about their private and personal affairs,(2) whether they the people through their constitutional democratic processes had ever approved or authorized such a clear and egregious violation of their rights to privacy and to 4th Amendment guarantees against “unreasonable searches”, (3) whether the government’s abuse of the FISA court’s authority to issue warrants has resulted in a new kind General Warrants that authorize ubiquitous searches without probable cause and without any basis to believe those searched to have done any wrong,(4) whether the people of the United States see in these abuses precisely the unprincipled use of authority that did trigger and should have triggered the American Revolution, and (5) what actions the people will take to secure the blessings of their liberty against tyranny. Robert Snowden is merely the messenger. The message is that our government is grossly abusing its power in ways which are dangerous to the continuation of a free society.

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  3. John Halford Post author

    Though you gave a thought-provoking and interesting response, my purpose in posting the article to Mr. Abraham’s Blog was not to debate the propriety or legality of the U.S. government listening to our phone calls and reading our emails, but rather to express my reluctance to jump on the “Snowden is a hero and should be protected under ‘whistleblower’ laws” bandwagon, which is the article’s focus. While I am very uncomfortable — but since 9/11 not surprised — by Snowden’s revelations about the extreme measures taken in the name of national security by the NSA and others in the intelligence community, it is my understanding that Snowden and all other employees or contractors dealing with national security secrets understand, as the article points out, that they are bound by a different set of laws than those working in more run-of-the-mill capacities. I’m going to withhold judgment until all this plays out, but at first blush it appears that, unsavory or not, he broke no laws by helping the government listen in on us, but DID break laws – possibly to the extreme — by publicly detailing government secrets instead of going through prescribed channels. If we want to debate if the law is right or wrong then that’s fine. If we want to debate whether massive government eavesdropping on email and phone calls violates the First and Fourth Amendments that’s fine too — but it’s not the topic of this article. In any case, it is certainly a fact that Snowden is in a world of trouble, possibly even facing a charge of treason which I think is still punishable by death.

    THAT SAID, I have very strong, though evolving, opinions about the government’s actions in this matter. I have some concerns that we are indeed quickly becoming an Orwellian Society in which the First and Fourth Amendments, among others, are all but unrecognizable. BUT (naturally a “but!”) to equate cell-phone-tapping and email-reading to the American Revolution, as you did in your response when you questioned “… whether the people of the United States see in these abuses precisely the unprincipled use of authority that did trigger and should have triggered the American Revolution, and … what actions the people will take to secure the blessings of their liberty against tyranny” seems unnecessarily inflammatory. In my mind, such statements often invoke excessively emotional and visceral reactions rather than encouraging civil, informed debate. I see this and so many issues our nation faces today as being 1) extraordinarily complex and without precedent and 2) so far outside the realm of comprehension of Colonial America that it is all but impossible at times for me to have patience with literal interpretations of certain parts of The Constitution (Second Amendment, anyone?). I certainly am not presumptuous enough as a layman to preach law to a lawyer on a Web site focused on public law, and I trust you will correct any legal misstatements I’m making, but I do think it is important to note that The Fourth Amendment was written over 220 years ago mainly in response to “… public outcry over the Excise Act of 1754, which gave tax collectors unlimited powers to interrogate colonists [more accurately, to terrorize them in their homes] concerning their use of goods subject to customs, and permitted the use of a writ of assistance, [the General Warrant which you reference above] allowing them to search the homes of colonists and seize ‘prohibited and uncustomed’ goods.” Historian William Cuddihy wrote that prior to the Constitution and Fourth Amendment, there existed a “colonial epidemic of general searches.” Though you draw parallels between widespread phone/email monitoring as a form of the long-declared-illegal General Warrant, I think the similarities between Colonial intent and execution are light years from what we’re facing today. Frankly, the Fourth Amendment is often insufficient to address this and many other modern issues (and by way of example Supreme Court Justices have asked, “What exactly constitutes a reasonable search?”). This argument may sound unpatriotic, but you’ll have to accept my word that I deeply respect The Constitution, this country, and the principles upon which it was founded, but I firmly believe that the only constant in life is change, particularly if it is change to meet a new need.

    I cannot fully equate the current controversy with such wanton face-to-face terrorism as Cuddihy describes for a number of reasons, including:

    1. While the concept of privacy and a reasonable right to be “left alone” were obviously of great importance to the Framers, it was more in the context of the heavy-handed actions of King George II (and the III), and concern that such a system not be re-created here, a land that was, after all, so incredibly far, far, far away from Britain. Now we can get to Britain in a few hours, and speak to anyone there instantly with a pocket-sized device called a cell phone, and our enemies are not bombastic foreign monarchies but rather shadowy figures that have made their desire to destroy us clear over and over, from bombings of Americans and American allies around the world, to the Pièce de résistance, 9/11. We did not understand such enemies very well ourselves not so long ago; the Framers could not have even conceived of an enemy that exists in such grey terms – and certainly not of the technology that is proving to be both a bane and boom to society and security. The extraordinary capabilities of such powerful technology certainly brings with it new potentials for abuse that perhaps our government has a DUTY to monitor.

    2. Government spying IS indirectly sanctioned by the people, even if we don’t, as you wrote, vote on it: “… whether they the people through their constitutional democratic processes had ever approved or authorized such a clear and egregious violation of their rights to privacy and to 4th Amendment guarantees against ‘unreasonable searches’”. On a national level, we don’t vote on any laws directly, we vote for and have entrusted representatives to not only do that for us, but also to create agencies such as the NSA which by intent and nature are secretive. It would be chaos if every national secret were made public to everyone simply out of fear that the government is going to trample on some dubious “right.” Shall we ask the average diner waitress what she wants the government to do in terms of the minutiae of government spying, or shall we assume that she is happy that the government, the members of which she hopefully voted for, takes care of all those details for her? That’s not necessarily a laissez faire attitude or a sign of an indifferent citizenry. By design, we entrust our national protection to the Federal Government, and as long as it is subject to the many checks and balances built into our Constitution I’m fine with that. Let us not forget how many members of the government (including the Administration, key members of Congress, various branches of the Judiciary, and many individual workers and contractors like Snowden) knew about this phone and email-monitoring program. Had the general public known of the program beyond the fact that the The Patriot Act [see below] allows it, much less been asked to approve it, there would have been no purpose in its existence, as its aim was to use covert methods to catch those who would do us harm. Thanks to Snowden that layer of protection, which appears to have foiled a number of plots, including bombings of the New York Subway System and Stock Exchange (granted, this info is coming from the government while its back is against the wall) is now gone. For better or worse, we’ve entrusted our representative government with a lot, have given it the leeway to protect us as lawfully as possible, and certainly have not forbidden it to spy. Fortunately, those representatives ARE accountable. Even McCarthy (an alcoholic who died of cirrhosis by the way) eventually had to answer to his peers, who fully exposed his wrongdoings.

    3. I do not consider it rhetoric when the government refers to the “War on Terror.” We are in yet another ongoing war with no clear end in sight and, like Vietnam, it is undeclared by Congress. The enemy is worldwide, elusive, tech savvy – and hell-bent on killing or maiming both innocent and combatant Americans, and performing unprecedented attacks on the continental “homeland.” So, like many, I consider us to be in a state of war, and our country has a long tradition of doing what it has to in order to protect Americans, sometimes even stretching the law to its limits. Consider:
    a. 1798: The Alien and Sedition Acts: deports or detains aliens, prohibits anti-government writings.
    b. 1861: Lincoln suspends habeas corpus, ostensibly to quell riots in Maryland, but using it to detain influential citizens and lawmakers sympathetic to the South.
    c. 1863: The Habeas Corpus Act broadens Lincoln’s powers to detain prisoners without trial.
    d. 1917-1918: The Espionage and Sedition Acts provide severe penalties for any speech, statement or article criticizing the government in wartime. Union leader Eugene V. Debs is sentenced to 10 years in prison for giving an antiwar speech.
    e. 1942: FDR authorizes the internment of more than 120,000 people of Japanese descent.
    f. 2001: USA PATRIOT (acronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism”) Act is passed almost unanimously under George W. Bush. A precursor to recent events, it gives law-enforcement officials sweeping powers to search without warrants, EAVESDROP, and detain and deport terrorism suspects. “Terrorist” is redefined to include domestic terrorists.
    g. 2011: Barack Obama signs the PATRIOT Sunsets Extension Act of 2011, a four-year extension of three key provisions in the USA PATRIOT Act: roving wiretaps, searches of business records, and conducting surveillance of “lone wolves” — individuals suspected of terrorist-related activities not linked to terrorist groups.
    h. 2011: Barack Obama gives federal agents new powers to data-mine terrorism suspects’ devices and communications and delay reading of Miranda rights, as well the right to interview witnesses without the interviewing FBI agents identifying themselves.
    i. 2013 Supreme court rules that DNA samples may be taken during routine arrests.

    NOTE ABOUT THE PATRIOT ACT AND ITS EXTENSION: How can we act surprised by recent revelations? TWO Congresses and TWO Presidents enacting significant Bills allowing call monitoring is hardly a private matter. The only reason government surveillance is getting so much attention now is because the media has given a great deal of attention to Snowden, and the fact of his youth, brilliance, and exotic lifestyle (including going into hiding, claiming that he fears for his life) makes for good telling.

    So again, the world we live in now resembles but little the world of Colonial America, and therein lies my dilemma when determining if our government has acted constitutionally in its attempts to protect us. I tend to side with Thurgood Marshall and others in describing The Constitution as a “Living Document.” He said, “… the government they [the Framers] devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.” The Framers went to great lengths to make the Constitution changeable, and after many Amendments and innumerable laws, I believe the Constitution is working as it was intended, emphasizing adherence to the procedures of our government and the “spirit of our values.” Combine that with the Constitution’s heavy (and in this case very specific) emphasis on checks and balances, and I don’t conclude that our government, even if it were so inclined, is seeking some tyrannical rule over the private lives of ordinary citizens and, in fact, the Supreme Court seems on a trend of at least being mindful of those privacy rights (Maryland v. King and Lawrence v. Texas come to mind). On top of that, in this age of instant global electronic communications, most secrets don’t stay secrets for long and Congress, as they should, drags the parties involved in for some explaining, live on public TV and further restoring my faith in the aforementioned checks and balances.

    If you haven’t picked up on this, I am not a conspiracy theorist (Kennedy was shot by one man) and, as such, I don’t go looking for evidence that the most open government in the world is performing covert activities just for the fun of it. And yes, I am among the recently polled 57% of Americans who is willing to give up some civil liberties if doing so curbs terrorism. I’ll still be living in the freest country in the world, but ironically that freedom requires sacrifices, especially in 2013. In other words, things may be getting a bit more Orwellian, but within reason I’m okay with that for the sake of not getting blown to pieces. For example, I, like many flyers, sometimes receive a very intimate search just to board a plane. I don’t object to that if it is truly in the interest of national security, even if it gets a bit intrusive at times. Extreme times call for extreme measures, and I believe it is possible to enact some – not all — of those measures without shredding The Constitution. I believe, as our friend Eric often shares, that there has to be an attempt to achieve a reasonable balance, however imperfect the results may be.

    In a phone conversation I reminded you that Reagan, as you did in your response to my article, also invoked the spirit of the American Revolution in defending the “weapons for hostages” Iran-Contra Scandal — and you promptly exclaimed, “Yeah, but the difference was that was all lies!” This latest government brouhaha, like Iran-Contra, will eventually be fully exposed. Meanwhile, my long diatribe above notwithstanding, I eagerly await to find out if Snowden is a hero or whether government officials are testifying “all lies!”

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  4. Stephen Dillard

    It WILL matter whether Snowden is deemed to be protected as a “whistleblower” under Federal law. Putting aside the larger questions about the Federal government’s actions and whether they rise to the existential level of a fight against tyranny, the Whistleblower Protection Act was put into place to ensure that when these types of questions need to be raised, they can be. Snowden is at peril of being deemed a traitor because he didn’t go trough the proper channels. However, it has since some to light that he was preceded by other NSA agents who did follow the correct procedures and were ignored and then retaliated against. Snowden’s method of leaking it straight into public rather than through secure channels is the only reason this open discussion is taking place. If he is deemed to be outside the protection of the law, then the Act has no teeth and needs to be re-examined..

    “In a wide-ranging interview arranged by USA Today last Friday, three National Security Agency (NSA) whistleblowers and their attorney were grilled about Edward Snowden’s revelations and their reactions to them. They uniformly exhibited a palpable sense of relief that finally someone had been able to break through and get their message into the public square, something they had failed to do on their own.

    The three, Thomas Drake, William Binney and Kirk Wiebe, along with attorney Jesselyn Radack, the director of the non-profit public interest law firm Government Accountability Project, were asked pointedly about their reactions to what many are claiming were Snowden’s illegal and even traitorous acts of disclosure of the surveillance state constructed by the NSA. To a man, they supported Snowden:

    Binney: We tried to stay for the better part of seven years inside the government trying to get the government to recognize the unconstitutional, illegal activity that they were doing and openly admit that and devise certain ways that would be constitutionally and legally acceptable to achieve the ends they were really after.

    And that just failed totally because no one in Congress or — we couldn’t get anybody in the courts, and certainly the Department of Justice and inspector general’s office didn’t pay any attention to it.

    All of the efforts we made just produced no change whatsoever. All it did was continue to get worse and expand.

    The others agreed with Binney’s assessment and then Radack jumped in:

    Radack: Not only did they go through multiple and all the proper internal channels and they failed, but more than that, it was turned against them….

    The inspector general was the one who gave their names to the Justice Department for criminal prosecution under the Espionage Act. And they were all targets of a federal criminal investigation, and Tom [Drake] ended up being prosecuted … for blowing the whistle.

    They were asked if Snowden was a hero or a traitor:

    Binney: Certainly he performed a really great public service to begin with by exposing these programs and making the government in a sense publicly accountable for what they’re doing. At least now they are going to have some kind of open discussion like that.

    Drake: He’s an American who has been exposed to some incredible information regarding the deepest secrets of the United States government. And we are seeing the initial outlines and contours of a very systemic, very broad, a Leviathan surveillance state and much of it is in violation of the fundamental basis for our own country….

    He is by all definitions a classic whistle-blower and by all definitions he exposed information in the public interest. We’re now finally having the debate that we’ve never had since 9/11.”
    —http://www.thenewamerican.com/usnews/crime/item/15741-snowdens-revelations-confirmed-by-three-other-whistleblowers

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