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writing for godot

Edward Snowden: Courageous Whistleblower or Irresponsible Cad?

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Written by Winston P. Nagan   
Monday, 01 July 2013 03:25
Edward Snowden has been roundly condemned by the National Security establishment. The complaint against him is that he violated the law by disclosing to the press information deemed to be a security secret, and certainly not for public consumption. Since he violated the law, he is a lawbreaker and should be punished as all law breakers should be punished when they violate the law. However, the terms “the law,” in American and political and legal culture, are not always as simple as speeding through a red light and in the present case, there is one level of law which reflects legislative and administrative practice, and there is another level of law, the law of the Constitution which is a higher law and which means that the law breaker may be a delinquent but only in a limited sense. He does have or may have a claim to establish that his violation is a violation of protected activity under the higher law of the Constitution. Additionally, the higher law of the Constitution in the judgment of many sophisticated jurists implicates a still higher standard of often-enforceable public morality. In this sense, even if the conduct is not specifically protected by the text of the Constitution. For example, there may be a claim that a legitimate inference may draw it’s still higher validity from the necessary and hopefully proper implications of the Constitution that point to certain congealed moral expectations and value understandings that appear to be implicit in the Constitution and practice under it. The simplistic conclusion, often fed with great self-righteousness that Mr. Snowden is a traitor whose has betrayed his country and should receive the maximum level of punishment it is possible to give him. This is a conclusion that we must embrace with great caution.
Even within the official discourse of government, the President himself suggested or implied that the notion of treason may be excessive. He described the fugitive as a 27 or 28-year-old computer hack. This is far from villainous treason. It is worthy of note that Snowden’s initial act of distribution was not to some foreign intelligence agency but to the press and the press he chose represented records of integrity and distinction. At least it may be reasonably inferred, that his act of disclosure to reputable press sources absolves him of the idea that he was disclosing materials with the intention of giving aid and comfort directly to the enemies of the United States. Additionally, as far as the public record goes, it has not been suggested that he was paid to deliver this information that he retrieved from the intelligence bureaucracy. Indeed, Snowden’s public justification was designed to establish that the matter, which had been clouded in secrecy, was a matter of great public interest, not so much to the enemies of the United States, but to the American people themselves. It seems to me, that however this plays out motive and intention must be a part of the political and legal evaluation of Snowden’s conduct.
In terms of the initial leak to the press, what was disclosed was that the NSA was ordering computer companies to sweep up and hand over to the NSA all the Meta data from the phone calls of multiple millions of customers. The data would include ostensibly telephone numbers, length of calls, routing information, and the location of the calls. The government has said that its interest is limited to this level of information and not to the actual content of communications of our citizens. However, the step from this initiative to the perusal of anyone’s communication content is very small. In this sense, the public has right to know whether notwithstanding governmental denials, we may slide into precisely this circumstance under cover of security secrecy. I am not an expert on computers but the mining of Meta data would seem to me to be a security experiment. Perhaps at the end of it all, there is a jackpot of identification and location of terrorist’s intent on hurting the United States. However, it seems to me, that what we are looking at is an intelligence experiment, which Snowden disclosed via the press to the American public.
When we consider the constitutional position of the fourth estate, the press, then the specific question of transparency versus security versus the public interest becomes a more important matter for public discourse. The fourth estate gains strength when it discloses that at the altar of the national security state is a tendency to be vastly over inclusive about what matters are to be kept secret. Moreover, the over inclusive use of secrecy provides a justification, based on journalistic responsibility, to chip away at the edifice of secrecy in order to secure public accountability necessary for an effective democratic society. Therefore, the line between secrecy, responsibility, and security maintains certain flexibility in practice. If the government wants to do away with this flexibility, it must gain the assurance that it is not excessively using the stamp of secrecy. This means that the Snowden case implicates more and indeed, important other public interest values that are worthy of public concern and public defense.
I have been a law teacher for over thirty years. I have taught many young Snowdens. When the teacher communicates about American culture, politics, the law, economics, literature and art, it is almost impossible not to communicate the importance of freedom and the importance of human possibility. In law in particular, students are very concerned that the relationship between law and justice be seen as necessary and appropriate. Yet when they leave the university, they may sometimes experience the cynicism of the real world and frequently they find themselves in a personal dilemma about their ideals and the imperfect world out there. It is possible that Snowden had a higher sense of his nation’s ideals. In particular, a shock that utilizing Meta data methods represent a form of government over kill. What is clear is that whatever he did, he also provoked a powerful national conversation about a vital important issue of the public interest.
I personally find the Meta data experiment, which has not been fully explained to the public, to be one that is fed by a certain pathology in the bureaucracy itself and pathology insulated from scrutiny with the label of national secret is not a place that I would like to see my country in.
br />By Winston P. Nagan
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