Mixed Feelings on Edward Snowden

Brad DeLong is justifiably critical of the President's comments on Edward Snowden,

Obama concedes that Snowden's leaks triggered a passionate and welcome debate. But he claims that Snowden is no patriot because "we would have gotten to the same place" eventually.

When?

This does not pass the bullshit test.

For the most part, I did not find Snowden's revelations to be surprising. They're an evolution of the ideas the Bush Administration attempted to implement before the ink was even dry on the USA Patriot Act, and although those ideas evolved to be more consistent with the law it was also inevitable that they would test the limits of the Fourth Amendment and rely heavily on the fact that the federal courts are incredibly receptive to a defense of government actions that, in essence, is "But... National security!" It was also no surprise that Congress knew what was going on (or at least enough key leaders of both parties that neither has any credibility in arguing that the Obama Administration was exceeding the bounds of the law) as Congress habitually eschews its duties when it hears the words "National security". Darrell Issa and his ilk are more than happy to squawk about national security errors and failures, but they are too craven to do anything that might make themselves the subject of such finger-pointing. They are happy to refrain from setting limits or staking out the margins. Better yet, the failure to do their own jobs allows them to do even more finger-pointing.

I have no particular objection to the notion of Edward Snowden as a whistleblower in the vein of Daniel Ellsberg, to the point that he disclosed a government program that exceeded the bounds of what he believed to be reasonable and lawful, grabbed enough supporting documentation to prove his allegations in the event that they were denied, and stood ready to accept whatever consequence fell upon him for his actions. I have a problem with Snowden because it seems like he did a Bradely Manning-style document dump and, while not disclosing those documents in the same manner as Manning, has reportedly distributed encrypted files with a key to be distributed if something happens to him... or, I suppose, if he feels like distributing the key.

I also have a problem with his fleeing to a nation with an abysmal human rights record. If your concern is that the U.S. is becoming too much of a police state, the idea of seeking refuge in Russia should seem appalling.

I would have much more sympathy for Snowden had he purged his document collection of anything that might compromise national security, and anything else not necessary to support his claims about the overreach of his program, then sought temporary refuge in a nation like the U.K. while using the attendant publicity and extradition process to make clear that his intentions were purely honorable - to reveal what he believed to be government misconduct while keeping only those documents absolutely necessary to prove the overreach at no risk to national security and with no intention of sharing those documents except as necessary to support his claims. Then he could say, "I realize that I could go to prison for this, but if it makes my country start doing the right thing it's worth it."

Snowden's own past statements cast something of a shadow over his motives, but part of the problem seems to be that he has fallen in with the wrong crowd. The people who encouraged him to create his "failsafe" and to flee to Russia, I think, were doing so as part of their own agenda - with Snowden becoming a useful tool for them to use in advancing their own public profiles and agenda. His actions have made his personal story and motives the primary subject of public debate, while allowing the government to take the most hardline approach toward his prosecution.

Had Snowden fled to the U.K. and not made a sufficiently convincing pubic case for his actions - and perhaps even if he made a convincing public case - he may well have found himself in prison. But as his primary motivation at this point seems to be to avoid prosecution, his actions continue to subvert the conversation that his supporters content he wants, and that people like DeLong correctly note that we need. As long as he stays in Russia, the less likely it is that the conversation will switch from Snowden's life as a fugitive to the scope of the continuing surveillance programs he revealed.

Whistleblowing vs. Leaks

There appears to be a great deal of confusion about the concept of "whistleblowing", not much helped by media coverage.

Under U.S. law, in simple terms, a "whistleblower" is somebody who reports an employer's bad conduct to an agency with oversight over the employer. You're working for a mining company, the mining company is committing safety violations, so you report the violations to the MSHA; or they're committing environmental violations, so you report the violations to the EPA; or they're committing wage and hour violations so you complain to the state or federal department of labor. Whistleblower protections come into play, as your employer is not supposed to retaliate against you for reporting their conduct.

Leaking is when you take your employer's confidential information and you provide it to somebody outside of your organization, usually the media, for the purpose of exposing your employer's conduct. Leaking is not the same as whistleblowing. Unlike whistleblowing, a statutorily protected activity, leaking is usually going to be tortious and often criminal in nature.

Circumstances arise when the oversight system breaks down or is corrupted, and a frustrated employee leaks information in order to end abuses that won't otherwise be stopped. There are also times when an employer's activities are lawful, but the employee is sufficiently offended by those activities or their implications that he chooses to leak them to the media. In political circles, strategic leaks are pretty common - giving the media confidential information with the goal of helping your own party, damaging the other, or both.

I have heard complaints about the Obama Administration having pledged to protect whistleblowers, yet having chosen to prosecute people who have leaked classified information to the media. The thing is, that's not a contradiction. While it may be commonplace to speak of somebody who leaks information to the media as a "whistleblower, for reasons previously discussed the act of leaking classified information to the media is not whistleblowing and is a crime.

I personally believe that the government overclassifies matters, and that classification is often used not to advance national security but to cover up embarrassing facts or mistakes. The Supreme Court case that legitimized the State Secrets Privilege, United States v. Reynolds, is now widely regarded as an abuse by the government, with the government claiming "state secrets" in an accident report that, in fact, contained nothing of the sort. Cover-ups and fake stories such as occurred in the Jessica Lynch and Pat Tillman cases would not be possible but for the suppression of the factual record. I can understand the frustration of somebody who is in a bureaucracy that is committing bad acts, but where there is either no effective oversight or the agencies with oversight have no interest in correcting their conduct.

But even when it serves the public good, leaking is at best a form of civil disobedience - intentionally breaking the law to serve that greater good. And yes, you can be prosecuted for civil disobedience, no matter how good your motives.

Don't get confused when a head of state offers to protect whistleblowers, by thinking they won't prosecute those responsible for leaks. Even when its leaders are acting in good faith, no government likes leaks.