2013 in Review: WC’s Person of the Year: Edward Snowden

WC’s Person of the Year for 2013 is Edward Snowden. At great risk to himself, he has revealed the amount and extent of the National Security Agency’s spying, not just on our enemies, but also our allies, non-governmental organizations, multi-national corporations and, of course, Americans.

Edward Snowden, photo by AP

Edward Snowden, photo by AP

WC will explain why Snowden is his choice by engaging in a debate with Stewart Baker, a lawyer, who was the assistant secretary for policy at the U.S. Department of Homeland Security under President George W. Bush.  Baker’s points in the debate are taken from his essay in the New York Times a few days ago. NB: This isn’t the only issue where WC strongly disagrees with Baker (coughtorturecough).

Edward Snowden has managed to create a controversy over the N.S.A.’s collection of domestic telephone metadata. Winning the argument is a different matter.

It’s about far more than metadata, isn’t it? And he is winning the argument, isn’t he. U.S. District Judge Richard Leon thinks so. The President’s Commission thinks so. Public opinion increasingly backs him. Every neutral group that has looked at the issues has concluded Snowden is right in his fundamental claim that the NSA and the federal government have grossly overstepped the law.

One federal judge has ruled against the program, and 11 from the Foreign Intelligence Surveillance Court have ruled for it. The issue is bound for the appellate courts — and for Congress, which is reluctant to abandon a tool for identifying cross-border plots like 9/11 without a workable substitute. The president’s review group has proposed a substitute, but not an especially workable one. In short, the debate is on.

The FISA court, which only hears one side of the argument, has in its few declassified decisions been highly ambivalent. That doesn’t qualify as neutral. And even the FISA court has repeatedly chided the NSA for overstepping its authority, for not following its own rules, and for violating FISA orders.

WC would expect a lawyer like Mr. Baker to understand that the important issues here aren’t in Congress’s hands. These are issues of Constitutional law, specifically the Fourth Amendment. As much as President Bush and his advisors like Mr. Baker wanted otherwise, the Constitution still trumps Congress. And the President.

And the President’s review group was severe in its criticism of the NSA. Its recommendations are “not especially workable” only if Mr. Baker means it will be much harder for the NSA to continue to violate the law and the Constitution.

None of that vindicates Snowden’s decision to violate the law and his oath, or to put masses of sensitive intelligence at risk. Even if you like the debate, it’s hard to like the way Snowden and his journalist allies tried to game it — withholding for nearly two weeks the court order limiting N.S.A.’s access to the metadata.

Edward Snowden blew the whistle on the NSA’s illegal spying. He did so knowing what the Feds had done to Chelsea Manning. Manning was held in solitary confinement, required to present herself naked each morning, under a claimed suicide watch for nine months before being tried for, in some cases, entirely made up offenses. Snowden knew what had happened to Manning, yet found the courage to disclose the NSA’s conduct anyway.

Baker’s reference to “his journalist” is simply wrong. Snowden provided the records to multiple journalists. Glen Greenwald wrote many of the stories, but hardly all, and did so free of any “control” by Snowden. It’s a cheap shot. And Snowden, by the time of all but the first stories, was in no position to control anything. As for the court order Baker mentions, in fact decisions of the FISA court disclosed that the NSA routinely disobeyed the limits in FISA court orders, ignored court-mandated procedures and disregarded its mandates. The very court decisions Baker mentions refute his position.

Snowden could have spurred the metadata debate by releasing just a handful of documents. But he is disclosing program after program to pursue a broader agenda — to separate “good” (targeted) spying from “bad” intelligence techniques that require collection of large stores of data. On Snowden’s theory, Chinese hackers stealing American companies’ technology are the “good” spies, and so are Russian agents breaking into the homes of dissidents. But when the American government uses telephone records to construct a terror cell’s social graph, that’s bad spying.

In fact, in relation to the number of documents Snowden forwarded to journalists, he has leaked only a handful. Baker’s claim of “good” and “bad” intelligence is a straw man argument. Snowden blew the whistle on intelligence-gathering operations that are illegal under the Constitution and federal law. Baker’s claims as to Snowden’s position are so far from Snowden’s real, actual concerns that Baker’s claims are laughable. Snowden is opposed to the U.S. violating its own laws and Constitution. He objects to – and has put his ass on line – in an effort to disclose that misconduct. Russian thugs and Chinese hackers have no relevance to the real issues.

And Baker’s last sentence is the real problem. Judge Leon found that there was no evidence, absolutely none, that the metadata from telephone records had been used successfully to crack a terrorist cell. The U.S. might have persuaded Judge Leon that the balance weighed in favor of legality if it had mustered proof the damage to the Fourth Amendment was justified by the program’s success. The Feds didn’t or couldn’t do that. Until they do, Baker’s claim is sheer speculation, unproven and unestablished.

No wonder Snowden sought refuge in Hong Kong and Russia.

Baker’s taking another incredibly cheap shot here. Hong Kong and Russia don’t have extradition treaties with the U.S., and would forcefully prevent the U.S. from kidnapping Snowden in a black ops action. Snowden was en route from Russia to Ecuador when he was stopped by the State Department’s revocation of his passport. He’s not there by choice; he’s there because of official U.S. action.

As the leaks continue, the American public is catching on. According to an ABC-Washington Post poll, a growing majority believe that Snowden is harming the country. Soon they’ll realize that the damage is deliberate. Inside the United States, Snowden has already lost the broader debate he claims to want, and the leaks are slowly losing their international impact as well.

Wishful thinking by Baker. The most recent polling data WC can find shows 55 percent of Americans characterize  Snowden as a whistleblower, while 34 percent deemed him a traitor. Forty-nine percent of Democrats, 55 percent of Republicans and 58 percent of independents said he is a whistleblower. The data for Snowden’s broader point is even more lop-sided: men, by a 54-34 margin, said that policies had gone too far, while women, by a 47-36 margin, said they had not gone far enough, revealing a sizable gender gap.

Not that polling data is all that relevant. Anyone who has read or watched Henrik Ibsen’s An Enemy of the People understands that principles can be more important that public opinion. Snowden has shown WC that he is a man of principle, has acted consistently with those principles, and has demonstrated beyond reasonable doubt that the amount and extent of spying by the Federal government on is out of control. At great personal sacrifice, and at no personal gain, he has exposed the perfidy of the NSA.

In Snowden’s own words,

I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. Because, remember, I didn’t want to change society. I wanted to give society a chance to determine if it should change itself.

And so he is WC’s Person of the Year for 2013.