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.

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