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Snowden: Hero or Villain?
The reverberating headline, it seems, is “Without Snowden, there would be no Freedom Act.” Snowden leaked all of the stuff about the phone records that created the public outrage. This ultimately applied the appropriate level of political pressure to put a stop to much of the things we all seem to find objectionable about the NSAs domestic spying activities. Thus, Snowden is a hero, and a deal should be struck to allow him to come home.
That seems to be a fine line of reasoning. But I can’t get past one simple thing: what Snowden did was illegal, and as near as I am aware, remains illegal. I’m not convinced he should be stood up before a firing squad, but shouldn’t he face some consequences? Maybe his two-year exile to Russia is enough? What do you say?
Published in Domestic Policy, Law
You keep saying that. Current law agrees with you, but that doesn’t make it correct.
If a blackmailer takes compromising photographs of me then I have an interest in those photographs. I didn’t make the picture, I didn’t store it, but it darn well concerns me.
Why does the fact that only a tiny fraction pertains to me change anything? I would object to police busting down a stranger’s door without a warrant, even though I’d never heard of the person the moment before. If it’s an imposition on liberty I don’t have to wait until it infringes on myself personally to object.
If a blackmailer takes compromising photographs of me then I have an interest in those photographs. I didn’t make the picture, I didn’t store it, but it darn well concerns me.
If the pictures were taken in a public park, you would have no privacy claim on them. If the photographer broke into your home or peeked through a window, you would.
The case of the phone records is more akin to the former, the content of your calls the latter.
…you and I fundamentally disagree: you think that the information gathered about the American people does not belong to the American people.
Do you also believe the enormous amount of marketing data collected by Google and others belongs to you?
That is not necessarily true. If I go and take photos of other people’s kids in a public park and post them on the internet without permission, I could find myself in difficulties. One retired news photographer I know says he and a colleague of his are glad they don’t have to work under the current rules. It was easier in the old days.
This is obviously just the opinion of one lawyer so take it for what it is worth.
Stasia: Is it legal for people to post pictures of your children on Facebook without your permission
Joe Escalante: It depends. In most cases, if your kid is out in public, people have a right to photograph them. The theory is that if they’re out in public, there are no damages being caused. Now if someone posts a picture that you took, or a professional took, the copyright owner of the photo could protest.
If someone takes a hidden camera picture in a place where your child would have a reasonable expectation of privacy, that could be a violation of your child’s right to privacy. If someone tries to commercialize your child’s picture, that could be an infringement of your child’s right of publicity.
In general though, if someone snaps a picture of your kid playing soccer in the park and posts it on Facebook, no law has been broken..
http://blog.legalzoom.com/free-joe-friday/can-people-post-photos-of-my-kids-on-facebook-without-my-permission-and-more-free-legal-advice-free-joe-41312/
Did everyone forget that James Clapper perjured himself in front of congress regarding the bulk meta data program? Who exactly was Snowden supposed to go to if the head of national intelligence was knowingly hiding the program? What protection could he expect for exposing these programs given that contractors are not protected by the whistle-blower statutes?
Snowden didn’t have much in terms of options.
No, I don’t, however, if there were a company which pledged to its customers that it would not turn all records over to the government automatically, I would use that company, and lots of others would too. As it is, we have no choice, and those in charge of the NSA never wanted us to have a choice. I understand that those in charge probably genuinely believe that this is all for own good, and I understand that many things in government must be kept secret, but for the government-not a private company, the government- to collect this kind of data on all Americans is totally unprecedented. And there is a good reason to fear the government more than a private company. The government has the ability to take our freedoms away; private companies don’t.
To avoid trouble, at my workplace we had a policy of always getting signed parental permission before posting such photos in public places. That didn’t mean we needed to do it in order to be legal, but we did it in order to avoid legal problems (as well as PR problems).
Considering what happened after Qwest’s CEO refused to work with the NSA, it’s unlikely any company will ever again try to buck them.
Given what we’ve seen in recent years in terms of politically-motivated inquisitions, do you really want the DoJ going through your life with a fine-toothed comb?
A real patriot would never consider Vladimir Putin an option under any circumstances.
Why? Because he’s a more-manly version of our own dictatorial President?
Patriotism is contingent on the good behavior of the government. It’s not an absolute.
Because he’s the leader of an enemy of the United States.
If your love for your country is dependent on who’s in the White House, then you’re no better than Michelle “Proud of My Country for the First Time” Obama.
From all the available evidence, our President is no friend of the US I grew up in. “Fundamentally transformed”.
Sorry, “love of country” is not the same as “love of government”. They’re two very different things.
Just ask the Founders.
One can love ones country while still taking actions contrary to the current government policy. Running to Russia was a mistake on Snowden’s part, but I ask again: what should he have done? Walked willingly to the gallows? Are those that ask this of him that brave?
I’ll go with villain.
Snowden had lots of opportunities to play the role of a bona fide whistle blower. The basis of him being a hero is that he disclosed the scope of the government’s intelligence gathering involving US citizens. There were avenues for reporting inside the NSA , he could have gone to Congress, there is a lot of US media he could have gone to, etc.
He didn’t do that.
He took information regarding controversial internal intelligence gathering as well as information regarding foreign intelligence that is the legitimate mission of the NSA, ran to countries that don’t have extradition, gave the information to bitter critics of the US for full disclosure to our enemies, and endangered people’s lives. Since then he stayed safely outside the reach of our laws for the purpose of avoiding accountability.
Perhaps as a citizen I am supposed to appreciate his disclosure of the information gathering, but in reality he got attention for providing details about programs that were already known. But I didn’t elect him or grant him the authority to disrupt our bona national security efforts. In his arrogance, he took onto himself the right to make decisions not only about my privacy but also my safety. I don’t appreciate that and I don’t respect his concept of accountability without consequence.
I also think of him as an attention-seeking misanthrope; someone who doesn’t fit in and thinks he’s a lot smarter and more important than he gets recognized for. I put him in the same category as Lee Harvey Oswald and Bradley Manning.
If he comes back, then he stands trial for his violations of law.
If he can’t bear that, then he can stay in Russia.
And if Russia is ever in desperate need for US assistance, then one of the first asks on our list is Snowden.
No, he didn’t. Because he knew what had happened with the three previous NSA whistleblowers.
There’s a couple concepts to unwrap about this.
First, and something I am not going to separate out of Snowden’s conduct, is that he not only disclosed domestic intelligence gathering but also legitimate national security secrets regarding foreign intelligence gathering. For whatever motives we want to assign to his conduct regarding civil liberties, I cannot avoid the conclusion that he also engaged in espionage.
Second, the reason we extend protections to whistleblowers is that it is a risky practice. I’m sorry that our elected officials are too often not profiles in courage, but under a constitutional system we must rely on the processes we implement and the people assigned to those responsibilities. I’m not sure I agree with the three in the linked story, but they are more heroic than Snowden. They accepted the risks associated with their conduct; Snowden refuses to do so.
Again, Snowden could have released the information regarding the domestic surveillance and stopped there. He could have run off and claimed protection from the kind of treatment these three received.
He didn’t do that.
He stole a wide swathe of information (including legitimate national security secrets), made it available for publication to our enemies, and sought refuge in hostile countries. I’m not applauding him for that.
According to Binney he did not. As I don’t have personal expertise, and as those in the know can’t discose, I have to go with accounts like his.
OK, but if Binney’s right, you’re doing it without evidence. If you have evidence, please disclose it.
Er, he’s taken far higher risks than those three did. That’s why they salute him. He succeeded, they failed.
And this is most certainly not true. This is the Nuremburg Defense.
Everyone who takes an oath to uphold the Constitution has an individual obligation to do so. If your higher ups try to prevent you from doing so, well, your primary oath is not to them.
Snowden ran into domestic enemies of the Constitution, and followed the oath he took previously.
I would add the proviso that the information must be made public if this occurs. Disclosing government wickedness publicly is whistle-blowing, disclosing it privately to a hostile power is espionage or setting up blackmail.
Tuck,
He couldn’t send the information to the papers from Switzerland?
Working with an enemy state cannot be your duty under the Constitution. Otherwise, you end up negating the possibility of Treason.
Here’s a paragraph from the Wikipedia page on Global surveillance disclosures (2013–present) on Snowden’s disclosures. How are my Fourth Amendment rights implicated by any of this?
“These media reports have shed light on the implications of several secret treaties signed by members of the UKUSA community in their efforts to implement global surveillance. For example, Der Spiegel revealed how the German Bundesnachrichtendienst (BND) transfers “massive amounts of intercepted data to the NSA”,[7] while Swedish Television revealed the National Defence Radio Establishment (FRA) provided the NSA with data from its cable collection, under a secret treaty signed in 1954 for bilateral cooperation on surveillance.[8]”
I’m not arguing that the NSA’s domestic surveillance is all good and necessary so that Snowden’s conduct is all bad. It’s a legitimate debate and some things bother me more than others. I’m a former military officer, a lawyer and a compliance officer, so I come at this from a number of perspectives.
Snowden could have contributed to this debate without harming legitimate national security interests. He chose not to.
Being a whistleblower is hard and includes risks. Sorry, it’s always been that way. And this is especially true in the realm of national security where most things that are important are also controversial. I will not deny that this is an area for abuse, but it is also an area where controversial actions are not only necessary but appropriate. When I was in the military, they taught you that you refuse an order at your own risk.
I might agree with you 100% if Snowden had limited his disclosures to civil liberty-related matters and sought refuge from retaliation abroad. I’d probably think more of him if he stayed. I also think that if he had limited himself to disclosure of the domestic surveillance and done so publicly, the government would have had a hard time going after him.
But he didn’t do that. And I’m not going to give him credit for it.
Switzerland has been brought to heel by our government. They won’t stand up to US injustice.
France was an enemy of England, and yet Franklin and Jefferson worked closely with the French to bring around the Revolution.
They kept the American people’s interests in mind.
Snowden may yet be revealed to have given this information to the Russians or the Chinese, but it hasn’t happened yet.
Hold on there, big fella. The Nuremburg defense was shot down in the context of waging war, committing genocide, and crimes against humanity; we are arguing over the scope of authority permitted by Congressional statute and Supreme Court decisions about what is permitted to be collected without a warrant. I think there’s a world of difference in there.
I may not like the decisions made by the NSA in framing these programs – and for the sake of this discussion, let’s say I disagree with all of them; but I have yet to see anything indicating malice or bad faith. Take John Yoo’s case where his job was to assess the point at which enhanced interrogation crossed the line into torture. We can argue back and forth about whether he called it correctly, but I have no claim that Yoo was acting in bad faith in assessing the laws. I may have missed the item in Snowden’s biography where he is a Constitutional scholar and an expert on the Fourth Amendment. As far as I can tell, Snowden looked at something that he didn’t like and acted. He has to bear the risk of getting it wrong.
Chain of commands exist for a reason; otherwise you can forget about any sort of effective organization. And following orders is part of the oath that service members take as part of their duty to the Constitution:
“I, (state name of enlistee), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
Again, you disobey orders at your own risk. You bear the responsibility of defending your conduct. The fact that you disagree with a directive does not make the other person a traitor.
I may think that people on the other side of this debate are wrong headed or called the wrong shot, but they are not the enemy. The enemy are the guys who flew planes into buildings. Let’s not forget that.
A very reasonable comment. There’s certainly room for disagreement over Snowden’s actions, especially given all the uncertainty about details.
This is what happens to guys who follow the rules:
We’ve got a big problem in this country—an out-of-control Federal government, and we know a lot more about how bad it is thanks to Snowden.
I’m not the first one to use it this way. My point is that following orders isn’t an excuse for doing something unlawful.
Parallel construction is the very definition of “bad faith”.
Since when can only Constitutional scholars interpret the Constitution? “We the people…”
Agreed.
Snowden never took a military oath, apparently…
They’re an enemy. They’re not the only enemy. And they’re an enemy because they want to take away our Constitutional rights.
I’m just going to take this one because of time and attention.
1979 Supreme Court decision in Smith v. Maryland is that the police can collect phone usage records from the telephone company without a warrant under the theory that there is not an expectation of privacy as this is the record of transmittals over a third-party’s network. That is the current state of the law regarding what we now call metadata. Making interpretations consistent with that decision is not being an enemy of the Constitution. Under this interpretation, you can’t take away rights that aren’t recognized as existing.
You may hate this decision and think it wrong. And there are legitimate reasons for a cogent argument that this decision is no longer sufficient given the scope of data transmitted by today’s systems. But it is the current state of the law.
Those acting consistent with it cannot be said to be setting out to “take away” your rights as some sort of “enemy” of the Constitution. When you task someone to implement a program to collect available data, this is one of the decisions they are going to use. That’s their good faith job.
I hate to have to point this out, but the September 11 attacks were a low-tech venture pulled off by guys coordinating their activities using emails and cell phones, and using box cutters. Our efforts to identify and stop them were stymied by artificial barriers to coordination. I may not like the NSA’s data collection, but it is a rational response to the threat in order to respond quickly. And I am not going to consider those who run the program an enemy simply because I do not agree with their assessment of means and ends.
Okay, we have a President that is very comfortable lying to the American people when it comes to implementing his agenda. We also have public officials who are comfortable going along. I also hate to point out that half the electorate is just fine with it, too, as long as they see the results they were promised.
But I have yet to see anything about the men and women who put these programs together from 2001 forward that they were setting out to overturn the Constitution and oppress the American people. And from what I can see from this debate, the Second Circuit’s decision, and the Freedom Act, the American people are far from being oppressed and cowering before the NSA.
I’m just going to take this one because of time and attention…..
Amen, Amen, I say to you!!
Nice post. Good so far as it goes.
But it’s not the current state of the law. Obama—a supporter of the metadata program—asked the body tasked by law to review it [set up by GWB], and they found no statutory authorization for it.
And now a court has reviewed it, and found no statutory authorization for it.
So the current state of the law is that it’s illegal. Smith aside.
Here’s a prominent Conservative, Republican legal scholar on the matter:
How’s your Nuremburg Defense going right about now?
You didn’t address the Parallel Construction issue at all.
The NSA and the DEA are working together to bypass Constitutional protections about how evidence may be gathered to convict a person of a crime, and then lying to courts about it, because they don’t think the court will accept the evidence.
I’d love to hear how that is OK under our scheme of law.
But it’s not the current state of the law. Obama—a supporter of the metadata program—asked the body tasked by law to review it [set up by GWB], and they found no statutory authorization for it.
And now a court has reviewed it, and found no statutory authorization for it.
So the current state of the law is that it’s illegal. Smith aside.
The problem with this analysis is the assumption specific statutory authority is required. The police in Smith did not have specific statutory authority in that case, the power was implicit in the state’s police power. There is an argument to be made a president also has such power inherent in his war making power.
You didn’t address the Parallel Construction issue at all.
The NSA and the DEA are working together to bypass Constitutional protections about how evidence may be gathered to convict a person of a crime, and then lying to courts about it, because they don’t think the court will accept the evidence.
Until you can cite a case where such activity occurred and the information was not gained as part of an ongoing counter terror or foreign intelligence operation, you have nothing but conjecture.
Also, it is the secret nature of the program, not a desire to deceive the court that necessitates not making the source of the information public.