Home > Uncategorized > Edward Snowden, the NSA, Prism, and America in the 21st Century (Part I)

Edward Snowden, the NSA, Prism, and America in the 21st Century (Part I)

Decided to head back to the good o’le faithful wordpress blog to put some thoughts together…

I think that there are two important and separate issues to consider in regards to the Edward Snowden NSA leak.  These are 1. The legality/morality of Snowden’s actions and 2. The legality/appropriateness of the NSA’s Prism program.  To date, I have yet to see anyone separate these issues when talking about the subject, and believe it is important to an honest examination of the events that we do so, in order to make sure each gets its own lengthy and thorough discussion.  In analyzing the governance and monitoring of metadata from internet and telephone records, we are talking about issues which will inevitably have a major impact on how we as an American people interact with our government in the digital space, and therefore in the real world, for the rest of our lives.  To that end, I wanted to make sure I had a firm grasp of the issues at hand, so I decided to put my thoughts about the legality and morality of Snowden’s actions to paper (or blog/facebook) as I tried to figure out where I stood on this.

First and foremost, it is probably important to note that I prefaced the examination of the Snowden and Prism case by spending some time considering the relationship between legality and morality.   The conclusions I came to were that it is important to remember (as it is not often discussed), that legality and morality are not always the same thing.  As anyone who has completed the 5th grade should know, a particular law or policy’s perceived legality does not make it inherently right, acceptable, or something that we as a nation and people should condone.  Consider, if you take argument with this point, the internment of Japanese-Americans during WWII, or the arrests and public interrogations that occurred during the second Red Scare in the 1950s.  Both of these events had wide-spread popular support in their time, and were perceived as legal by most Americans.  However, we know them in hindsight to have been both ultimately illegal and morally reprehensible, gross intrusions on the personal rights of American citizens.

For those doubting why intrusions on personal rights when in the interest of national security is a big deal, and there are so many more who feel that way than I could have ever imagined, I would suggest two quick things.  First, think back to your high school history classes, when your teachers covered WWII and Stalin’s Purges.  History is rife with examples of the negative impact of long protected values and rights being compromised due to ambiguous “national security concerns.” Secondly, if you have a hard time envisioning how someone or some group could ever use ambiguous threats to national security to severely damage or corrupt a working democracy, watch this recording of how Saddam Hussein literally took over Iraq with arguments eerily similar to those made by Joseph McCarthy during the Red Scare.  Granted, Iraq in the 1960s and 1970s is not America of the 21st century, but it did have an elected Parliament, a Prime Minister, other elected officials, and a semblance of the Rule of Law, all things which Saddam ran rough-shod over, The strength of our civil society and other national institutions (i.e. the military, or our Supreme Court) would make such a total affront to personal rights very difficult in the United States, but giving up ground on those rights is risky all the same, and leads to major abuses of power and authority, even if on a lesser scale.  In sum, the negation of personal rights in favor of security is a slippery slope that defies the logical fallacy it is named after.

Today, those who stood up to Japanese-American internment camps and Joseph McCarthy – think Edward Murrow or Drew Pearson – are remembered as American heroes for doing so, despite being ostracized and prosecuted in their own day for taking initially unpopular stances. In bringing up these examples, I’m not saying that what Snowden has done parallels the actions of these men.  However, I am saying that our government makes huge mistakes all the time, often with popular support, and that strong individual moral leadership from American citizens can be an incredibly important part of bringing us back to our national values and priorities in such circumstances.  Principled individual stances have in the past served to recall the American conscience to the forefront of public discourse at times when it had been drowned out amidst cries of national security concerns and blind patriotism.

That established, let’s consider the importance of the missions, power and influence of the intelligence and national security communities.  As I see it, in discussing our national security and intelligence communities, we are talking about the most important missions of the U.S. government.  The missions of these groups are of such importance that we have given them the authority to create the ability to use nearly irreproachable force on the world stage, not to mention an extensive amount of influence over people, arms, and financing around the world.  As such, the huge risk associated with the potential for this power to be abused should be lost on no one.  The negative effects of corruption or abuse within these organizations has the potential to be world-altering.  Thus, it strikes me as incredibly important to make sure that not only are illegal actions within and on behalf of these communities reported and challenged, but that policies and actions with questionable legality and the potential to lead to wide-scale and mass abuse are challenged and reviewed as well.

I believe that most of those on both sides of this issue would agree with my last statement – that the importance of the missions of the national security and intelligence communities, and the potential repercussions if they were to be abused, necessitates objective civilian oversight.  As Americans, we know that our elected leaders govern the country with the blessing of the American people and that they derive their legitimacy to govern solely from our blessing of their leadership via the ballot box.  Furthermore, we know that individuals in our intelligence and national security apparatuses serve solely at the behest and direction of that elected leadership and are therefore ultimately serving at the behest and direction of you and me, American citizens.  Simultaneously, I believe that most Americans generally trust the intent and integrity of the majority of those serving in our national security and intelligence communities, and value and appreciate their service and sacrifice.  I know I certainly do.  However, as citizens – those ultimately responsible for the actions of these communities as we are the ones who empowered them – we have a responsibility to “Trust but verify,” as a former prominent Republican known for his hard stance on national security issues once said.  Taking this responsibility into account in the context of the complex and dangerous nature of the issues we are discussing and communities we are examining here in the Snowden and Prism case, the question for us then becomes, “how we can safely allow for necessary oversight without jeopardizing the important and valuable lives and missions of our national security and intelligence communities?”  More simply, “How do we efficiently and safely verify that the people and institutions we have empowered continue to deserve our support?”

This, then, is the fundamental sticking point between those defending Snowden and those criticizing him.  In this circumstance, Snowden, in both word and deed, is arguing that the issue at stake in the Prism leaks is important enough – such a fundamental and pivotal question for American society as we continue to adapt to our increasingly interconnected and rapidly advancing technological world – that oversight and ultimate approval or disapproval for Prism and other such programs must come directly from the American people.  His actions claim that this topic is so important that our elected leaders, and the processes by which they have arranged to oversee the national security and intelligence communities, cannot be trusted to oversee this program on our behalf; that we as a collective people are the only ones who can do so.  Conversely, Snowden’s opponents hold that previous processes of oversight can and should have been trusted, and that such a degree of exposure as Snowden has released is giving away too much of our national security and intelligence game plan.  In short, they claim that our intelligence and national security communities should be trusted to do their jobs, and that if blind trust in them isn’t enough, limited oversight from our elected leaders should suffice.

Determining which side is right here is extremely difficult.  On one hand, given the importance of the missions of these communities, and the sacrifices made and lives regularly endangered and lost by our service men and women and intelligence personnel in pursuit of those missions, automatically “rallying around the flag” against Snowden has a lot of appeal.  In Edward Snowden, we are talking about an American citizen entrusted with an extremely high-level security clearance that carried an immense degree of responsibility to protect the lives and interests of our country and some of its most exposed, and selfless public servants.  In Edward Snowden we are also talking about a person who has betrayed that trust in a gross way, exposing to the world extremely sensitive information determined institutionally to be too sensitive to reveal, thereby (according to his critics) endangering the lives of American servicemen/women and intelligence operatives, as well as hurting American political, economic, and military efforts.  In Edward Snowden we are not only talking about an entrusted American who has released sensitive and potentially dangerous information, but also one who has fled the country in so doing.  On a more fundamentally anthropological and sociological level, in Edward Snowden we are talking about an individual who was not only “one of us,” but also a model example of what being an American can mean, given his important position and the level of trust placed in him.  It hurts to be betrayed by one of your own, and hurts even more so when your betrayer was previously viewed with quite a bit of respect within your group.

In looking at all of this an American, then, it is only natural to feel an inclination to assume the worst of both Snowden and his motives.  However, on the other hand, making assumptions and jumping to conclusions about the man and his actions not only presupposes and ability to accurately understand Snowden’s motivations and loyalties – both of which are as yet unexamined and untried – but also has the dangerous potential to create a fervor for retribution that may serve to focus the ultimate conversation on the Snowden-Prism leak on point 1 above – Snowden’s actions themselves – rather than the more fundamentally important and problematic point 2, the allegation of potentially criminal actions institutionalized by the NSA and rubber-stamped by a number of our elected officials.

I believe it remains important that we don’t miss the forest for the trees here.  For better or worse, the nature of this program is now exposed and we have a social responsibility to form an opinion on it and advocate that opinion in our political expression.  Snowden’s actions, however, were illegal.  They were criminal, make no mistake.  As such, Snowden deserves to be prosecuted by the state and judged by a jury of his peers who will determine what, if any, punishment his actions deserve.  That said, the morality and potential necessity of his actions remains to be seen.   Only further investigation into the Prism program can help each of us determine for ourselves whether such a program should exist and whether its risks so outweigh its potential benefit that any American citizen would be compelled by conscience and knowledge of our Constitutional rights to expose it, even if it meant violating the trust given them by the nation’s intelligence community.

Each of us investigating and determining for ourselves the appropriateness of these actions and the threat/benefit of the Prism program, then expressing those opinions in civil society (thereby stimulating debate), and to our legislators (thereby forcing legislative action), is the only thing that will ultimately judge Snowden’s actions from an American standpoint.  That, however, will take years to complete.  In the meantime, a trial before a jury of his peers with aggressive prosecution from the nation whose laws he violated and a vigorous defense from a capable and experienced defense familiar with U.S. Whistleblower laws and Constitutional theory will be our first indication of whether American history and the American people will judge Snowden in the light of Edward Murrow or the shades of Robert Hanssen. It is critically important for the honest examination of these questions about government surveillance that this occur in a large, public trial.  As an American citizen and whistleblower, U.S. military and secret courts – which already have contentious claims to jurisdictional legitimacy in many cases today – seem to me to have absolutely no claim of jurisdiction on Snowden.  We should watch carefully to ensure that he is brought to trial in a transparent and public manner, that all of his Constitutional rights as an American citizen are guaranteed and protected throughout said trial, and that his prosecution is vigorous and aggressive.

As he seems to be aware of in his interview with Glenn Greenwald, we as an American people may ultimately decide that Snowden is the ilk of Edward Murrow, while punishing and condoning him as a companion of Robert Hanseen for his actions.  That is the potential cost of civil disobedience, as Bradley Manning is experiencing today, and is also why Snowden’s act, be it right or wrong, has the potential to have been extremely noble and indescribably patriotic. Time and further investigations will tell here, but I think it is important to note that this action may quite possibly have been one of the most noble and selfless actions I have seen in my lifetime.  It may also be one of the more self-serving and corrupt examples of naiveté and misplaced idealism I have ever seen.

When it comes down to it though, the trip to Hong Kong certainly doesn’t help Snowden’s case for being perceived as a patriot forced to act out by an inflexible government bureaucracy.  As supported by Thoreau in his discourse on Civil Disobedience, for an action to be true civil disobedience, one has to be willing to accept the punishment of the state whose actions you are protesting; the real value of disobedience is in that submission to the Rule of Law established by the state, and the real way you win others to your cause is by your willingness to sacrifice yourself for your perception of the greater good.  Think Ghandi.  If you are trying to portray yourself as a whistleblower concerned with the ultimate welfare of your country, running from the consequences of what you would like to have perceived as necessary civil disobedience – rather than staying to face those repercussions – significantly negates the power of your original action and your ability to successfully portray yourself in that manner.

A final thought that came to me as I was finishing this up:  For his sake and ours, I hope that Snowden has significant documented proof of his attempts to raise his concerns about the legality and/or misuse of the Prism program through the proper channels of the groups he worked for before he went to the media.  If he does have record of such attempts, and record of his concerns being dismissed time and again by different levels of superior review, the Snowden-Prism case will likely shape into an extremely important discussion in America about what government actions are and are not appropriate in our new technologically advanced day and age.  If he doesn’t, however, I doubt that even the most sympathetic jury would come close to finding in Snowden’s favor, no matter how noble his intent may have been, and the entire effort, risk and exposure may be trivialized as a result.  It would also be a sad reflection on the state of affairs in America if we were to find out that we have been entrusting some of our highest levels of secrets to people who fail to see the importance of working within structured frameworks to raise challenges to classified actions, whenever possible.

I want to talk about point two above – what is known about the Prism program and the tradeoff between its value and its price – soon as well, but I need to get some more education on the topic before I can start piecing my thoughts together.  Like I said, the Prism program is the forest to Snowden’s tree, and the mere existence of this program, whether ultimately determined to be acceptable or not, is something that we should all be extremely concerned about.

  1. June 12, 2013 at 7:38 am

    I enjoyed reading your analysis, thanks for taking the time.

    If Prism is determined to be illegal by court decision or is otherwise deemed unacceptable by widespread public opinion, should Snowden be completely exonerated? If yes, would it matter if he reported these opinions internally vs. releasing to the public?

    I’d also be interested to hear your opinion on Bradley Manning and how his case compares to this. I think they are very similar; the biggest distinction being that the American public seems to care a bit more about domestic surveillance programs than they do about international war crimes, embarrassing diplomatic positions, et. al. It will certainly be interesting to see what happens.

    I’d argue that his ‘escape’ to Hong Kong is largely immaterial and does not illuminate anything about his motivations, character, or loyalty. He’s not a Ghandi, a Jesus, or any other figurehead; he’s just a messenger and the message has been delivered. I see no problem when he makes innocuous decisions that are purely driven by self-preservation. He’s certainly hedging his bets (f the American public does not agree with him regarding the legality of Prism, he still has a chance to live the rest of his life on some faraway island on the south pacific), but at the end of the day, I’m just glad he made the bet in the first place.

    I completely agree that the _real_ story here is about Prism. It will be interesting to see where people come down on this….here’s hoping it doesn’t degenerate into something partisan. I look forward to reading part 2.

  2. June 12, 2013 at 9:48 pm

    Thanks, Joe. If it is determined to be illegal, then I would argue that he should probably be exonerated. Essentially, the ends will justify the means. That wouldn’t change the fact that he erred if he did not attempt to raise these issues within proper channels, because he could not have known how his actions would ultimately be judged. Furthermore, he didn’t pursue options to address the issue in a manner that could have been less risky to American lives and interests.

    I have the same general take on Manning as I do on Snowden. If he tried to report the gunship incident up the chain and was told to take a hike, his actions may well have been justified with that particular leak. However, I take fault with Manning’s complete leak of hundreds of documents he hadn’t read. That was simply illegal (obviously) and wrong. From what I know there was little to no consideration of the potential risks, and his leak was done in the name of “freedom of information” rather than because of any explicit abuses or illegal actions. In my opinion, the notion of “freedom of information” is not an ideology or a creed, but rather a catch phrase for the disenchanted. Secrets, however, do exist, and need to exist in our world, on all levels of interaction. Any thoughts to the contrary strike me as idealistic at best, and naive at the worst.

    I don’t know how I feel about the trip to Hong Kong, but I think it definitely hurts his image and public persona.

    Thanks for reading man, and for the comments. Hope all is well with you, and I’ll put up a part II sometime soon.

    – Tom

  1. No trackbacks yet.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: