Shooting the Messenger

June 11, 2013, 11:30 a.m.

This series includes: "Lavabit Confronts 'Complicit or Close?' Levison Closes," August 9, 2013; "A Simple Matter to Drag People Along," August 6, 2013; "The Future of Surveillance and How to Stop It," August 4, 2013; "Surveillance: Differences of Degree and of Kind," July 3, 2013; "Shooting the Messenger; Should Government Be Able to Keep Its Abuses Secret?," June 11, 2013; "From Zazi to Stasi; Trusting a Government That Doesn't Trust You," June 9, 2013; "Law's Losing Race With Technology," June 7, 2013.

Should Government Be Able To Keep Its Abuses Secret?

I'd call the cops, but they're already here.
-- Mason Williams

Everybody knows that the dice are loaded . . .
Everybody knows the fight was fixed . . .
Everybody knows that the boat is leaking
Everybody knows that the captain lied . . .
And everybody knows that the Plague is coming
Everybody knows that it's moving fast . . .
Everybody knows the scene is dead
But there's gonna be a meter on your bed
That will disclose
What everybody knows
That's how it goes
Everybody knows
-- Leonard Cohen, "Everybody Knows"

It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court, issuing secret court orders, based on secret interpretations of the law.
-- Senator Tom Udall (D-N.M.) Chris Strohm and Gopal Ratnam, "NSA Leader Seeks Openness on Secret Surveillance Orders," Bloomberg News, June 12, 2013

And what's the response when the cover of secrecy is breached? They lie:

Senator Ron Wyden (D-Ore.): Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?

Director of National Intelligence James Clapper: No, sir.
-- Connie Cass, "Mangled facts, secrecy, confusion leave Americans unsure what to believe about NSA programs," AP/Washington Post, June 13, 2013

[H]e [Edward Snowden] appears to be a product of . . . the apparently growing share of young men in their 20s who are living technological existences in the fuzzy land between their childhood institutions and adult family commitments. . . . [Their] life is not embedded in a series of gently gradated authoritative structures: family, neighborhood, religious group, state, nation and world. Instead, it’s just the solitary naked individual and the gigantic and menacing state. . . . For society to function well, there have to be basic levels of trust and cooperation, a respect for institutions . . ..
-- David Brooks, "The Solitary Leaker," New York Times, June 11, 2013, p. A23; To which an unidentified Times reader responds with the online comment:

I find it somewhat disingenuous to criticize the younger generation for cynicism and mistrust without acknowledging the wider atmosphere that's responsible for creating such attitudes in the first place. . . . [A]uthorities and institutions have betrayed us at every turn. We have witnessed our political system become hobbled by polarization and corruption, our economy crippled by financial elites, our media devolve into petty bickering and mindless infotainment, our liberties eroded by the unending War on Terror and War on Drugs, our social safety net cut to shreds, our incomes stagnate while the wealthy hoard, our jobs disappear while the stock market soars, our natural environment raped in the name of profits and convenience, our friends and relatives sent off to wars built on lies, and our privacy systematically invaded by corporations and the government. And you ask . . . why we have lost our respect for authority and trust in institutions?

First they came for the communists,
and I didn't speak out because I wasn't a communist.

Then they came for the socialists,
and I didn't speak out because I wasn't a socialist.

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for the Jews,
and I didn't speak out because I wasn't a Jew.

Then they came for the Catholics,
and I didn't speak out because I wasn't a Catholic.

Then they came for me,
and there was no one left to speak for me.
-- Martin Niemöller

We should never forget that everything Adolf Hitler did in Germany was "legal" . . .. It was "illegal" to aid and comfort a Jew in Hitler's Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers.
-- Dr. Martin Luther King, "Letter from Birmingham Jail," April 16, 1963

_______________
Whom do you call when the cops are the criminals? Where can a military woman find justice when she is raped by her superior, and even if he is found guilty his superior can overturn the conviction?

And, more to the point today, what is the most appropriate response of a democratic society to its whistle-blowers when what they believe they need to reveal regarding a governmental abuse has been classified "secret"? [Photo credit: multiple sources.]

As Senator Udall has reminded us (quoted above), "It’s very, very difficult, I think, to have a transparent debate about secret programs approved by a secret court, issuing secret court orders, based on secret interpretations of the law." Does that make the case for whistle-blowing about secret, questionable programs stronger or weaker? With all that has been, and will be, written about Edward Snowden's revelations, this is an issue that requires much more discussion among Americans and their elected officials. This blog essay is intended as a stimulus to a beginning of that discussion.

Senator Ted Kennedy said of his brother, at Robert Kennedy's memorial service, "My brother need not be idealized, or enlarged in death beyond what he was in life; to be remembered simply as a good and decent man, who saw wrong and tried to right it . . .."

In a world governed by former Speaker of the House Sam Rayburn's advice to new House members, "If you want to get along, go along," a whistle-blower who "sees wrong and tries to right it" -- as an employee of a hospital, corporation, university, or military unit -- knows there will be a price to be paid: at a minimum, things will no longer be the same with their employer and colleagues. They may be fired. They may find it impossible to find work anywhere within their former industry. As an FCC commissioner challenging some of America's most powerful corporations with revelations about their practices, I knew that I would probably never again be either reappointed to the Commission or employed by law firms in Washington.

Most of us, faced with the choice between what we believe is our moral obligation to at least reveal, if not stop, things we believe to be illegal or otherwise wrong, on the one hand, and on the other hand, to remain silent and continue to be paid, will not casually choose the former over the latter. We have an endless list of our rationalizations for averting our eyes from what, as Leonard Cohen reminds us, "everybody knows."

But the question confronting America today is much more serious than the matter of how we treat everyday, conventional whistle-blowers. All they usually risk is unemployment and ostracism. Few, if any, must consider the possibility that their conscientious act will result in their death, with or without a trial, or life in prison.

That was the potential price that Edward Snowden knew he might pay. As he told The Guardian's Glenn Greenwald:

Yeah, I could be, you know, rendered by the CIA. . . . And that’s a fear I’ll live under for the rest of my life, however long that happens to be. You can’t come forward against the world’s most powerful intelligence agencies and be completely free from risk, because they’re such powerful adversaries that no one can meaningfully oppose them. If they want to get you, they’ll get you, in time. . . .

If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention. And I think, for anyone making that argument, they need to think, if they were in my position, and, you know, you live a privileged life -- you’re living in Hawaii, in Paradise, and making a ton of money -- what would it take to make you leave everything behind?

"You're Being Watched": Edward Snowden Emerges as Source Behind Explosive Revelations of NSA Spying," Democracy Now, June 10, 2013 -- along with a transcript.

I'm not suggesting that those who make classified information public should be awarded the Congressional Medal of Honor. But neither do I think they should all be knee-jerk labeled "traitors" guilty of "treason" and "espionage" and thrown into the trash pile along with terrorists and felons. ("U.S. Sen. Dianne Feinstein Monday called self-professed National Security Agency surveillance plans leaker Edward Snowden a traitor. . . . 'I don't look at this as being a whistle-blower. I think it's an act of treason,' said Feinstein, chairwoman of the Senate Intelligence Committee." UPI, June 10, 2013.)

But what are we to make of our Director of National Intelligence, James Clapper, who flat-footed lied to the Senate regarding the existence of the NSA program that collects the metadata from millions' of Americans' phone records, quoted above? (Senator Ron Wyden (D-Ore.): "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" To which Director Clapper unambiguously responded, "No, sir.") Which is the greater treason? Who is the biggest traitor? Clapper, who lied? Or Snowden, who told the truth?

Note how our First Amendment protections work. Little to no actual harm came from Edward Snowden's conversations with, and gift of documents to, The Guardian's Glenn Greenwald. As a result of Snowden's actions only one additional person knew "the secrets."

The harm charged by our government, if any there be in fact, only came later. It came when Greenwald, his editor, and publisher, decided to tell all their subscribers -- knowing that other papers would pick up and run with the story, thereby ultimately spreading the secrets to millions. And yet no U.S. official, so far as I know, has argued that The Guardian, The New York Times, The Washington Post, or other papers telling the story of the government's secret spying programs should be prosecuted for treason. As the Pentagon Papers case [New York Times Co. v. United States, 403 U.S. 713 (1971)] demonstrated, once the media is given information, however much the government would like to restrain its publication, the courts believe the First Amendment forbids them to permit the government to do so. The media may exercise self-restraint, including in response to government appeals that publication would threaten national security, but the media cannot be restrained against its will from publishing by government or the courts. The newspaper owner is not prosecuted, nor the editor who approved the story, nor the journalist who got the information from the source, conducted the interviews, and did the research.

One can at least ask, if the values of the First Amendment are so overpowering as to trump the government's judgment that the publication of secrets should be restrained, why are those First Amendment values not equally applicable to the source of that information, so valuable to a democracy -- namely, the whistle-blower?

We also, as a civilized society, recognize acts of conscience -- including with laws providing at least some protection for whistle-blowers. (The Whistleblower Protection Act of 1989 forbids retaliation against government employees who report misconduct.)

In Dr. King's "Letter," quoted and linked above, he says of civil disobedience, "One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law."

One of the most serious tests of respect for conscience occurs in wartime, when our government has recognized the right of "conscientious objectors" to decline to be drafted into front line killing of other humans -- substituting community service of some kind as an alternative.

The "Right to Life" folks believe that doctors, pharmacists and others who consider all abortions to be "murder" should be free to act on that belief.

So when Edward Snowden trades in a $200,000-a-year job in Hawaii for the possibility of death and the probability of prison time, I think we have to recognize that as an act of conscience.

I'm with Dr. King. I don't think one should be able to do anything, claim it was compelled by conscience, and thereby escape any recrimination.

However, the issue in Edward Snowden's case is one of the government's own making.

It is saying to potential whistle-blowers, in effect, "You are free to report our run-of-the-mill misconduct; but if you believe our misconduct to be sufficiently serious to constitute a constitutional violation, we can declare our activities to be secret and classified, and thereby reserve the right to prosecute you for treason or espionage if you reveal what we are doing."

Checks and balances? The whole point of whistle-blowing, as with reports of rape in the military, is that the system and requirements of "going through channels" and "following procedure" and "oversight" and "Inspectors General" often fail. Even if the Congress and courts were doing their job of protecting us from the NSA, everything the overseers are doing is also treated as so highly classified as state secrets that they can't tell us enough to reassure us. And, open or closed, there are at least allegations that the NSA sometimes refuses to provide the Intelligence Committees with requested information, and that the Committees have performed more as lapdogs than watchdogs. The FISA "court," some report, has been almost exclusively a rubber stamp for whatever the NSA wants to do. And the executive branch (regardless of who's sleeping in the White House) seems to have been more interested in expanding than restraining its powers.

And with the controversial, litigated, and revised Patriot Act Section 505 gag orders accompanying "National Security Letters" (searches without warrants), American citizens (and their legislative representatives) have even been forbidden to hear from those being searched. The only analogy to that procedure that comes immediately to mind is the pedophile who threatens his victim with severe punishment should he or she ever reveal to anyone how they have been abused.

I'm more interested at this point in stimulating a national debate about revelations of "secrets" than in particular solutions. But here are some of the questions, or standards, I think we might want to consider.

1. Intent. Intent is an element of most crimes; it's one of the differences between "manslaughter" and "murder" -- even though both bring about the death of one person as a result of the actions of another, the defendant. We need to distinguish between revealing state secrets to foreign spies with an intent to aid an enemy, in time of war, and revealing them to a journalist, with an honest intent to prevent government wrongdoing to American citizens.

2. Restraint. In free speech cases we speak of the "least restrictive alternative" standard in evaluating governmental action that impacts speech. In revelations of state secrets we might ask, did the whistle-blower use the most restrictive alternative. That is, did he or she release only enough information to make their point? Did they make an effort to minimize possible harm to the government, or specific individuals? Did they hold back and not disclose some documents, or redact names and portions of others? Or, worst case, did they deliberately try to maximize that harm? Did they personally publicize raw data and documents, or did they filter what was released, both personally and by knowing it would be processed through a responsible media organization, its journalists, editors, and owners?

Snowden told Greenwald, "[A]nybody in the positions of access with the technical capabilities that I had could, you know, suck out secrets, pass them on the open market to Russia. You know, they always have an open door, as we do. I had access to, you know, the full rosters of everyone working at the NSA, the entire intelligence community, and undercover assets all around the world, the locations of every station we have, what their missions are and so forth." The point is, as he's quoted earlier in this blog essay as saying, "If I had just wanted to harm the U.S., . . . you could shut down the surveillance system in an afternoon. But that’s not my intention."

3. Personal responsibility. Did the whistle-blower act behind the curtain of anonymity, or did they come forward, acknowledge, and take responsibility for their revelations -- in the spirit of civil disobedience?

It would seem to me, based on what I now know, that in the case of Edward Snowden he has fully satisfied at least all of those standards.

I am less clear as to the answer of the "So what?" question. I do think we may need new legislation to address that question, and that, at a minimum, meeting these -- and other standards that may be proposed -- ought to take such cases out of the category of "terrorism," "treason," and "espionage," and radically reduce such punishments as might otherwise be appropriate.

For purposes of my question, it is far from decisive -- indeed, it may be not even relevant -- how the American people feel about their government spying on them. (Pew's recent update of its survey indicates we are about equally split, depending on the question -- and, for partisans, which Party occupies the White House.) My question simply addresses the matter of punishment for whistle-blowers who, as a matter of honest conscience, must, in order to be a whistle-blower, reveal things the government considers secret.

There is already a growing support for Snowden (as well as growing disapproval). The photo depicts a demonstration of support in New York City yesterday [June 10]. Robert Johnson, "Rally Held In New York City Supporting 'Hero' NSA Whistleblower Edward Snowden," Business Insider, June 10, 2013.

The White House maintains a Web site where citizens can start, and others can support and sign, petitions. On June 9 one was posted with the headline, "Pardon Edward Snowden," and went on, "Edward Snowden is a national hero and should be immediately issued a a full, free, and absolute pardon for any crimes he has committed or may have committed related to blowing the whistle on secret NSA surveillance programs." By this morning it was already nearly halfway to it's goal of 100,000 supporters (a number that triggers a self-imposed White House requirement that it respond to the petitioners). It's here. [On July 5th it had already surpassed its July 9th drop dead deadline goal, with 127,663 supporters.]

As of this morning [June 11] the Progressive Change Campaign Committee had already raised $20,000 for Snowden's legal defense fund. [By July 5th it stood at $32,000.]

For your further reflection, here is Amy Goodman's report, and reproduction of Glenn Greenwald's interview of Snowden, "You're Being Watched": Edward Snowden Emerges as Source Behind Explosive Revelations of NSA Spying," Democracy Now, June 10, 2013 -- along with a transcript.



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