A Lawyer’s Take on Snowden

Eight Simple Questions and Answers

After reading John Cassidy and Jeffrey Toobin’s dueling perspectives on Edward Snowden, in The New Yorker, I was confused. Is Mr. Snowden a hero? Is the NSA’s policy wise? Popular opinion in my Twitter feed clearly leaned one way but it often falls victim to Groupthink.

In search of clarity, I emailed a respected attorney to get his analysis. Though he was not comfortable publicly publishing his opinions, I have anonymously shared his perspectives below. I hope you find it as helpful as I did.

1. Did Snowden break the law?

He is innocent until proven guilty, but it seems almost certain that there are laws against disclosing classified information that he intentionally broke (meaning, he intentionally did the prohibited conduct, not that he knew what the law was, which is irrelevant, although working in this world, he must have known what was unlawful). So, yes, he committed a crime.

2. Should Snowden be punished?

That’s up to a jury. It is possible the right jury might be sympathetic to him and let him off lightly or do the “jury nullification” thing that got OJ [Simpson] off. Unlike Bradley Manning, he is not a soldier, so he gets tried in civil court in front of regular jurors. It will be interesting to see how this trial plays out—assuming they let it be public,which they should. But Obama has ruthlessly used the “military secret” claim to suppress a lot of civil court proceedings involving terrorism policies, so that might happen here. Civil disobedience means disobeying the law as a means to protest it, so getting punished is part of the game. Martin Luther King was jailed numerous times. The nobility in civil disobedience is accepting the jail time as a necessary result of your action. To just break the law and say, well, it’s unfair to punish me, is not taking responsibility.

3. Is Snowden a hero?

People are not that simple. I am sure a big motivation for him was his sense of outrage at what he was a witness to; I think Manning had the same reaction. I think they also both have grandiose personalities and crave the attention. So Snowden’s motive was probably a mix of idealism and personal need to be important.

Only in movies are people just “heroes.”

In real life, a policeman can heroically save an innocent victim one day and frame an innocent gang member for a crime the next day. I appreciate the information coming out and am glad it did, and I think Snowden did the world a favor. Same with Manning. That doesn’t mean Snowden is a hero. Another course of action would have been to form a political action group, lobby Congress, serve Freedom of Information Act requests, do investigative journalism—i.e., work within the law to get out the truth he knew existed but could not reveal directly without breaking the law. It’s not like it really matters whether the story comes out now or in a year. It’s not like a mass genocide or something where every day is a tragedy. It is an objectionable and overbroad data collection practice. The definition of hero would probably be to either take on great risk or make a great sacrifice to help others. His risk/sacrifice here is the criminal penalty, which he seems to realize he will face, although he also fled the country, so he’s not really facing it if he can help it. I think he had some good intentions but perhaps not enough strength of character to fight the power in a less desperate fashion.

4. Is the NSA policy legal?

That remains to be seen. Seems to me it violates the Fourth Amendment, but who knows how our current Supreme Court would rule. I disagree with [Jeffrey] Toobin on this one. Just because Congress passed a law and a court order approved it doesn’t make it legal.

Segregation used to be the law, too.

It’s legal until it’s declared illegal. I think what Toobin means is that it does not violate the current law—no higher court has passed on whether it is Constitutional—so there is no crime or misconduct to report or to “blow the whistle” on. It is really just a policy disagreement that has Constitutional aspects. But I guess that is Toobin’s point: since it is not illegal at the moment, there was no justification for breaking the law to disclose its existence.

5. Is the NSA policy wise?

I vehemently oppose it. They are mining all data to be used to spy on U.S. citizens. There is no other reason to make the data sweep so broad. That doesn’t mean they are spying now. But at a minimum they are paving the road to doing so. Internet data is not “private,” in the sense that you control it. Verizon can do what it wants with your data, although it has no reason to do anything that doesn’t advance its commercial interests, so there is some sense of limits there. But the government has no right to your data. The police cannot get your cell phone records without a search warrant. To get one, they need to show a judge there is probable cause. They can’t just force Verizon to turn over all records all the time. It has to be specific to an investigation of a crime. There is no reason for the NSA to have any different powers, and the so-called FISA court is just a rubber stamp because that court is entirely secret and does nothing but approve every search request made to it. That is good enough, I suppose, as long as each request is individualized to a particular suspect, as I gather was the process until a few years ago. But having a secret court, in the NSA’s pocket, approve in secret blanket requests to mine all internet data provides no assurance that the program is reasonable. So the argument that a court approved it is really meaningless in this circumstance.

6. Does the NSA’s policy work?

No. I guarantee you. Just as there has never been a shred of evidence put forward that torture works, and most experienced interrogators are against it, there will be no evidence that this indiscriminate data mining works. Think about it. What possible “algorithm” could you devise to sort through metadata for several million phone calls a day to find terrorists? What “pattern” could you possibly find that would distinguish terrorist calls from say, a Pakistani student calling his family regularly? It’s nonsense, waving the magical aura of “data mining” in front of the computer illiterate. If this program has ever worked, I guarantee you it has been where the NSA had a lead to begin with, e.g., where they knew certain phone numbers or locations were hot spots for terrorists based on normal intelligence means and then focused on mining data for all calls to those numbers or locations. But that is exactly when you go to a judge and request a warrant to search for all calls to a certain number or location and explain why that is likely to reveal terrorist activity. That is the definition of probable cause. If you torture someone, they may give up valuable information, but the question is whether it could have been obtained—and more—without torture. The information does not show that torture works, and you also have to weed out all the false information they desperately made up while in agony and fear of death. That the NSA may have “mined” this massive database a few times with positive result doesn’t show that indiscriminately gathering all data leads to any solid information you could not get with a normal search warrant after you know what you are really looking for.

7. Does the NSA’s policy combat terrorism?

“Fighting terrorism” is a code word for “you can’t argue with me.”

It’s like “support our troops.” It ends all arguments for the ignorant. The bombers in Boston were not “terrorists”—they were a couple of mentally unbalanced loners. The shoe bomber was not a “terrorist”—he was a pathetic nut case who some group overseas seized upon to carry out an amateurish bomb plot. There has been nothing before or since 9/11 to even come close to the brilliance of that single attack. Terrorism is just another form criminal activity. It needs to be guarded against, sure, but these types of overreaching security measures (once they become part of the normal course and then get expanded upon and abused) are worse than the crime they are supposedly trying to prevent. Obama is no better than Bush in using the “fighting terrorism” mantra to try to shut up anyone who opposes what he is doing.

8. What world do you want to live in?

We could have cameras and sensors at every street corner monitoring every square inch of public space so that your every move outside your house is monitored. And you could wear a digital ID every moment of your life so your location would be known to the government at all times. That would allow the government to know who committed every crime. It undoubtedly would lower the crime rate. An argument could even be made to include cameras inside your house (no one would be allowed to view the tapes unless there was a crime committed, so any invasion of privacy would be justified). No one could get away with anything. Crime would be solved immediately. Would you want to live in that world? I wouldn’t. If everyone is obeying the law only because they will get caught if they don’t, what kind of society is that? I’d rather that most people obey the law because they want to, not because they have to, and have security measures in place reasonably adequate to stop those who do disobey. You should watch the movie version of Fahrenheit 451, if you can find it. It totally captures the world the “fight against terrorism” is slowly and inexorably building, thanks as much to Obama and his weak, if not incompetent Attorney General Holder.