Why the NSA Leaker Should Be Prosecuted (Reply to Readers)

I wrote a short post on Thursday suggesting that whether you’re a fan or a sworn enemy of the surveillance state, you’d be wrong to condemn the pending prosecution of Edward Snowden. Drawing on a passage from Hobbes’s Leviathan, I argued that functional government is impossible “if the considered judgment of every individual secret-bearer were the new standard for what stays private and what gets splashed on the pages of the Washington Post.

The post drew a lot of readers. A string of people registered displeasure with my argument on Facebook and in the comments section of the post itself. Some of the Facebook commenters apparently hadn’t read the post before weighing in, but several who read through to my conclusion found reason to complain. Some were upset enough to launch ad hominem attacks against me.

I was surprised at the level of vitriol among these readers. The position I was defending was essentially that of House Democratic leader Nancy Pelosi:

I think on three scores -- that is leaking the Patriot Act section 215, FISA 702, and the president's classified cyber operations's directive -- on the strength of leaking that, yes, that would be a prosecutable offense...I think that he should be prosecuted.

And Richard Moberly, dean of the University of Nebraska law school, made essentially the same point I was urging at the New York Times:

Sometimes a national security program needs secrecy to be effective, and elected and judicial officials are charged with weighing the value of transparency against the national security benefits of secrecy. That happened in this case: All three government branches approved the program. Snowden and other citizens have the right to disagree – but he does not have the right to usurp the democratic process by leaking national security information.

This position is highly contestable, of course: Moberly’s piece was one of several in a “Room for Debate” forum on how the government should handle Snowden’s case. But that’s precisely the idea: this is a debatable question, one that calls for engagement and reasoned discourse, not calumny.

So let me clarify a few things in response to those readers with substantive challenges to my position.

1. Though my post quotes Hobbes, I am no Hobbesian. Nor do I suggest that the United States ought to become a Leviathan state. Yes, Hobbes is a totalitarian (one commentator labelled him “fascist”) and yes, his state bears little resemblance, thank goodness, to our American democracy. But the incoherence Hobbes finds with dual sovereignty is apposite to l’affaire Snowden: a case where a government employee was moved to share classified information with the public, thwarting the law and the democratic process and, in effect, electing himself commissioner of what should and shouldn’t be classified information.

2. I am no enemy of the separation of powers or checks and balances. I am not horrified, as Hobbes would be, by our complex interbranch relationships and “separate institutions sharing power,” as Richard Neustadt puts it. I fully endorse the Whistleblower Protection Act that gives federal employees the right to speak out against criminal activity they witness in their workplaces. But this legislation does not protect employees in the intelligence community, as Collier Meyerson points out, and there is a good reason it does not.

3. My position is not an indictment of freedom of the press. The press has a right and a professional duty to report what it knows about the state of the nation. Rep. Peter King's position that Glenn Greenwald and other journalists who report classified information should be prosecuted is dead wrong. But Greenwald never agreed to keep classified information under wraps; Snowden did.

4. Debate, discussion and dissent are integral to our democracy. Civil disobedience is too. One reader thinks my position is blind to this:

By that logic our founding father[s] should have been prosecuted, the French underground in WWII, the people who concealed Ann[e] Frank, any North Korean who doesn't toe the party line and of course Luke Skywalker.

Yes, Snowden broke the law, and yes you have Hobbes on your side. But what of:

“One has a moral responsibility to disobey unjust laws.”

― Martin Luther King Jr.

“It is not always the same thing to be a good man and a good citizen.”

― Aristotle, Selected Writings From The Nicomachean Ethics And Politics

“If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law”

― Henry David Thoreau, Civil Disobedience and Other Essays

There is indeed a rich American tradition of disobeying unjust laws, and I am not counseling "obedience at all costs" as a general principle. But what Snowden did was not just to violate a law that shocked his conscience; he contravened his responsibility as an employee entrusted with classified information. And to categorize an act as an episode of civil disobedience is not to excuse it. In fact, accepting the legal consequences of one’s act is an essential factor in conscientiously undertaken civil disobedience. Here we may have the wisdom of the American crowd at work: though 54 percent of Americans approve of Snowden’s leak, only 28 percent believe he should go unprosecuted for his crime. As the Boston Globe editorialized this week,

Failing to prosecute him would send the message that people with top-secret clearance can choose for themselves whether to respect the law or not. That can’t happen. If Snowden made a sacrifice to protect civil liberties, then his sacrifice should extend to answering for his actions in court.

Should you defend the free speech rights of neo-Nazis?

Former president of the ACLU Nadine Strossen discusses whether our society should always defend free speech rights, even for groups who would oppose such rights.

Sponsored by Charles Koch Foundation
  • Former ACLU president Nadine Strossen understands that protecting free speech rights isn't always a straightforward proposition.
  • In this video, Strossen describes the reasoning behind why the ACLU defended the free speech rights of neo-Nazis in Skokie, Illinois, 1977.
  • The opinions expressed in this video do not necessarily reflect the views of the Charles Koch Foundation, which encourages the expression of diverse viewpoints within a culture of civil discourse and mutual respect.
Keep reading Show less

Moon mission 2.0: What humanity will learn by going back to the Moon

Going back to the moon will give us fresh insights about the creation of our solar system.

  • July 2019 marks the 50th anniversary of the moon landing — Apollo 11.
  • Today, we have a strong scientific case for returning to the moon: the original rock samples that we took from the moon revolutionized our view of how Earth and the solar system formed. We could now glean even more insights with fresh, nonchemically-altered samples.
  • NASA plans to send humans to a crater in the South Pole of the moon because it's safer there, and would allow for better communications with people back on Earth.

Top vets urge dog lovers to stop buying pugs and bulldogs

Pugs and bulldogs are incredibly trendy, but experts have massive animal welfare concerns about these genetically manipulated breeds. 

Photo by terriermandotcom.blogspot.com
  • Pugs, Frenchies, boxers, shih-tzus and other flat-faced dog breeds have been trending for at least the last decade.
  • Higher visibility (usually in a celebrity's handbag), an increase in city living (smaller dogs for smaller homes), and possibly even the fine acting of Frank the Pug in 1997's Men in Black may be the cause.
  • These small, specialty pure breeds are seen as the pinnacle of cuteness – they have friendly personalities, endearing odd looks, and are perfect for Stranger Things video montages.
Keep reading Show less

U.S. Air Force warns UFO enthusiasts against storming Area 51

Jokesters and serious Area 51 raiders would be met with military force.

Politics & Current Affairs
  • Facebook joke event to "raid Area 51" has already gained 1,000,000 "going" attendees.
  • The U.S. Air Force has issued an official warning to potential "raiders."
  • If anyone actually tries to storm an American military base, the use of deadly force is authorized.
Keep reading Show less