When it decided the Pentagon Papers case, in 1971, the Supreme Court was well aware that, as Justice Potter Stewart put it, “It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy.”
Despite this clear understanding of the risks involved in leaks and disclosure, the court’s decision was encapsulated in Justice Hugo L. Black’s simple statement: “The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”
– Floyd Abrams and Yochai Benkler, New York Times, March 13, 2013
WC has suggested that you cannot understand Edward Snowden’s actions or his motivations without examining the recent history of whistleblowing in the United States. To provide that history and perspective, WC has briefly examined the cases of Daniel Ellsberg, the Medina burglars, J. Mark Felt and Chelsea Manning. Obviously, the treatment of each is brief; equally obviously, there are other whistleblowers whose actions and consequences could also be reviewed. But those four may be enough to provide some data points.
Each of them, beyond any doubt, committed a serious violation of the law. The law may have been – and in many cases was – wrong, but it was indisputably a crime under the law.
Each case involved a “crime” that involved revealing serious misconduct by our government. Documents classified as “Secret” solely to spare government officials embarrassment; illegal spying on U.S. citizens; an utterly corrupt President.
The cases involved a complex mix of personal motivations on the part of the whistleblowers: Ellsberg and the Medina burglars opposed the Vietnam War; Felt was unhappy about being passed over for Director of the FBI and at President Nixon’s overreaching; Manning was upset by U.S. spying.
The consequences for each whistleblower were wildly different. Ellsberg was prosecuted, but government misconduct caused the charges to be thrown out. The Medina burglars endured a long period of relentless FBI investigation, but were never charged. Felt was strongly suspected, but controlled enough dirt on President Nixon that the government didn’t prosecute him. Manning, by comparison, got 35 years, after months in soul-destroying solitary confinement.
Which takes us to Edward Snowden. Like his predecessors, he was deeply upset by government law breaking. Public reaction to the revelations of the NSA’s seemingly endless means of finding out everything it wants about each and all of us show that the public shares Snowden’ alarm. Any sensible person should be deeply concerned about the NSA’s blatant disregard for the Fourth Amendment. Snowden isa classic whistleblower in the tradition of Ellsberg, the Medina burglars, and Felt. He was more sophisticated and selective in what he leaked than Manning, but like Manning Snowden was horrified at the extent of the federal government’s snooping.
The Foreign Intelligence Surveillance Court (“FISA”) court of affirmations, which granted 1,800 secret surveillance warrants out of the 1,800 presented to it; NSA’s reading of all foreign email by criminal hacking of Google; the harvesting of “metadata” for all telephone clls within or outside the U.S.; “DropOutJeep,” which allows the NSA to hack you cell phone, sometimes to untraceably modify its hardware before it reaches a dealer; even cyberattacks against your personal computer. All of these activities are, in the politically correct phrase, “extra-constitutional.” WC thinks they are simply illegal, unconstitutional. It was Edward Snowden who alerted us to the existence of these illegal programs. Snowden, with help of journalists like Glenn Greenwald, has revealed the largest pattern of illegal government behavior since Daniel Ellsberg released the Pentagon Papers.
He did so at a time when Chelsea Manning was being held in solitary confinement for months, and was facing a treason trial for her earlier leaks. He was smarter than Manning – and more careful about whom he trusted – and ran. WC doesn’t blame him. It’s one thing to stand trial for what you did. It’s another thing entirely to be made to stand naked in front of your guards twice a day while being held incommunicado in an 8 x 10 foot cell. Because that’s what happened to Chelsea Manning, and it’s what Snowden knew had happened to Manning.
So Snowden ran. His timing wasn’t perfect or he’d be in Ecuador today and not the Russian Federation. And he tried to trade information he had for acceptance into countries who had been the victim of the NSA’s illegal spying. But WC suggests that in similar circumstances, you might have run, too. Knowing you are right is important. Knowing you will be punished is important. But knowing you will be tortured – and what happened to Chelsea Manning was torture – is important, too. Snowden is human. That doesn’t make his whistleblowing even slightly less important.
At some point soon, WC hopes the U.S. government will recognize that, like Ellsberg, Felt, the Medina burglars and, yes, Manning, Snowden is a bona fide whistleblower. Like them, he is technically a criminal.
But if you break a law that is being used to hide serious crimes, are you a criminal?
History has answered that question.
In fact, it makes you a hero.