The other day, pivoting off the Snowden affair, Josh Marshall tried to put his finger on what divides people who generally support the NSA surveillance program from those who don’t. Here’s the core of his taxonomy:

Here is I think the essential difference and where it comes back to what I referred to before - a basic difference in one’s idea about the state and the larger political community. If you see the state as essentially malevolent or a bad actor then really anything you can do to put a stick in its spokes is a good thing. Same if you think the conduct of US foreign policy is fundamentally a bad thing. Then opening up its books for the world to see is a good thing simply because it exposes it or damages it. It forces change on any number of levels.
From that perspective, there’s no really no balancing to be done. All disclosure is good. Either from the perspective of transparency in principle or upending something you believe must be radically changed.
On the other hand, if you basically identify with the country and the state, then indiscriminate leaks like this are purely destructive. They’re attacks on something you fundamentally believe in, identify with, think is working on your behalf.

While I don’t think this is entirely fair, it does capture at least some truth. Though there are vanishingly few people who actually have the attitude Marshall describes on the anti-state side (Julian Assange, perhaps), a desire to stop what are perceived as wrong or counterproductive programs is certainly part of what motivates Snowden and Manning.

But I don’t think this captures the whole story.

What bothers me about Marshall’s post is the focus on the damage that people breaking the rules from the bottom are doing, and the corresponding lack of attention to people who do equally questionable things or worse on behalf of the power elite. He is, for example, sharply critical of Manning:

Pretty early I realized that to his supporters Manning was a whistleblower who was being persecuted by the government… to me that’s a total nonsequitur… hard to see any justification for what Manning did, which is basically downloading everything he could find and giving it to a foreign national… What on Earth do you think is going to happen to a soldier who almost literally breaks every rule in the book and dumps the country’s email files for the world to see?
Soldiers get in huge trouble for going AWOL, even though one individual soldier abandoning his post seldom does much damage to a country or an army. This is a far graver insubordination with incalculably more widespread consequences.

But let’s look at the other side of the ledger—elite lawbreaking.

The Fail Decade

The whole last decade has been a nearly nonstop parade of abuses of elite power, often illegal, each coming nearly on the heels of the last. We carried out a war of aggression, based on deliberately cooked intelligence, which resulted in the violent deaths of hundreds of thousands and the displacement of millions more. We let a major city drown due to cronyist incompetence. We’re still living with the consequences of a major failure of macroeconomic management brought on by colossal greed and fraud.

Elites even leak like a sieve: to manipulate the media, defend against attacks, and glorify the establishment. As Jack Shafer describes in detail, leaks happen nearly every day in Washington—it’s just the ones that aren’t sanctioned officially that are viciously punished.

Let me focus on the purest, most lawless evil of all: the last president and nearly the entire top echelon of his administration created a regime of systematic torture in direct and obvious violation of a treaty duly ratified by Congress and President Reagan. This is therefore (as our current top law enforcement officer implicitly agrees) a violation of the Constitution, which all those conspirators swore to defend and uphold. All of those people got off without the slightest punishment to this day, which is yet another violation of the categorical commandments of that same treaty and therefore implicates the current administration in the war crimes of the previous one.

Wait, I forgot one. There was one person near the top of the power structure who was convicted of something. When people in the administration revealed the identity of a covert CIA agent as retribution for an op-ed by her husband questioning the case for war, there was an investigation and this man was caught lying.

Scooter Libby - J. Scott Applewhite/AP

His name was Scooter Libby, and his piddling 30-month sentence for obstruction of justice was commuted by President Bush.

So if Marshall begins with Bradley Manning (whose disclosures have not been proved to cause much actual harm, despite what was probably great effort to find some), I start with the broader context of a decade full to bursting with gross incompetence, treachery, and illegal evil, all carried out by the duly constituted authorities, almost none of which was punished even slightly. It is symptomatic of a broader breakdown of the rule of law— where the rich, powerful and connected can carry out crimes for which we executed people at Nuremburg and walk free, but powerless figures like Manning are punished with brutal swiftness. His trial only just started, and already he has been imprisoned for three years, much of it in the torture of solitary confinement.

Things have been worse

Marshall, as someone who identifies with the state, might respond that even though prosecuting a leaker who intends to upend the system while turning a blind eye to those who leak on behalf of it is hypocritical, preserving the system is a positive good even if it means some frankly authoritarian hypocrisy.

That might be a caricature, but I have some sympathy for this view. Where I part ways with the most aggressive critics of US imperialism is in the lack of perspective for just how horrible the vast majority of human history has been, and how brutal the world’s most dominant power typically is. The most powerful empire before the United States, Great Britain, was a bloody tyrant across something like a fifth of the globe. Even the sainted Winston Churchill deliberately prevented famine relief from reaching India, resulting in over a million deaths. I believe European colonialism will go down with the Holocaust as one of the most despicable acts in history.

This isn’t to say that the US isn’t capable of terrible atrocities; far from it. We have done monstrous things across the globe—from Vietnam to the Congo to Iraq to Panama to the Philippines to a dozen other places. The point is things used to be so much worse.

So I can’t identify with people like Ivan Illich who put the US on par with those previous empires. For one reason or another, this is probably the most peaceful age in recorded history.

On the other hand, it is very far from clear to me that the US security apparatus is responsible for that peace today. Keeping things stable during the Cold War, sure. But that’s been over for more than 20 years. The US Navy, by maintaining secure shipping lanes across most of the globe, has a decent case. But are our various huge overseas bases doing much of anything? When actively used, our ground forces seem to be mostly for bloody, pointless quagmires that radically destabilize countries and set back the process of modernization for decades.

At this point the debate usually moves to the counterfactual. If it weren’t for overpowering US military might, people say, then things would be much worse. I find this unconvincing. Perhaps it’s part of the story. But much more likely is that peace is a result of 1) figuring out how to prevent depressions (at least until a few years ago), 2) new international norms born from the increasing horror of industrialized war, particularly in Europe, and 3) nuclear weapons. The last may be the most important, by the simple fact of making great power wars unthinkable.

Saving the state from itself

But let’s set that aside. Suppose we grant the premise that the US security apparatus is a historically unique force for good—then the question is how to best preserve that goodness (or limit its badness, from the other side). This gets to the nub of my disagreement with Marshall and his worldview.

Because whatever positive character there is in the US security apparatus, surely the quickest way to erase it would be to remove all transparency, oversight, and accountability. It would be folly to assume that just because it’s our creeping police state then it will all work out. Our own history ought to put that idea to bed forever. (As Dan Drezner aptly wrote, “The last time I trusted intelligence bureaucracies and political leaders that the system was working was the run-up to the Iraq war. Never again.”)

This is what I find so troubling about Marshall’s overt self-identification with the state, his suspicion of Snowden, and his blithe condemnation of Manning (“far graver insubordination…incalculably more widespread consequences”). Because from my perspective the greatest threat to whatever positive aspects there are to the US security apparatus is lawless elite behavior.

On the one hand we have some young, idealistic people who leaked classified programs because they believed they are illegal, or immoral, or otherwise damaging to the fabric of society; and on the other we have the former President, former Vice-President, former Secretary of State, and former Secretary of Defense all guilty of admitted war crimes, all living freely and unpunished. It’s obvious to me which one is the greater threat to the established state in the long run, not to mention peace, stability, and human rights.