Personally I don't think Edward Snowden should be charged with espionage under a ridiculous misuse of the statute, and apparently charging him with theft of government property is a violation of sensible Justice Department rules, so if that's the best they can come up with maybe they really should just drop the case altogether. Especially if it gives Michael Hayden a sad.
That said, I just cannot get over what a crappy case it is as a poster child against the abuses of the US intelligence agencies foreign and domestic or for the improved protection of federal whistleblowers. This is shown more clearly than ever by the way the New York Times has jumped on it as part of their campaign to show that the Obama administration is more totalitarian in tendency than that of Cheney because even Stalin wouldn't have been mean to David Sanger. I refer to Friday's editorial in which the Times claims, with some reason, that
In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not
Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:
1. The "thousands of times per year" that the NSA violated its rules or court orders, that is the 2,776 times an internal audit found that it violated them from April 2011 to March 2012, were not just "a few of the violations he revealed" but practically all of them, and they consisted almost entirely of inadvertent mistakes, including, of course, the massive observation of US persons of Chinese origin visiting relatives in China for the Lunar New Year holidays which, believe me, they did not mean to do.■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.
3. Almost nobody is ever punished for lying to Congress, and certainly not if, like old Clapper, they acknowledge the truth three months later. As John Dean wrote,
Six years ago, a former Capitol Hill aide and later prosecutor in the US Attorney’s Office for the District of Columbia, P.J. Meit, looked at the remarkable failure to successfully prosecute those who lie to Congress. (His analysis, “The Perjury Paradox: The Amazing Under-Enforcement of the Laws Regarding Lying to Congress,” 25 Quinnipiac L. Rev. 547 (2007), is not available without subscription.) Not much has changed since Meit undertook his study.I'd like to see a bunch of people in jail for this, and Clapper's certainly ahead of Holder on my list, but nowhere near the top.
Meit found that not only were the laws challenging, and not only were several of those who were successfully prosecuted later pardoned, but most who lied to Congress were never prosecuted at all because of a lack of political will to enforce the available laws, as well as a lack of the resources to do so. Meit found most member of Congress, including those trained as attorneys, highly inept in creating a record during a Congressional hearing that could be later used to prosecute liars. But the paucity of such prosecutions appears to boil down to the lack of the political will to pursue them.
Too many Congressional hearings have become mere political theater. A committee chairman like Darrell Issa (R-CA), who heads the House Oversight Committee, would rather have a trumped-up charge that Attorney General Holder allegedly lied to his committee, than try to actually prove that charge.
4. The problem denounced by the FISA court was fixed as soon as the complaint was made, four years ago. I'm not saying NSA has suddenly become more trustworthy, but the agency shows a lot more interest in complying than, say, the FBI or municipal police in New York and New Jersey, which continue to violate the Fourth Amendment and laws against racial profiling with total impunity long after it has become clear that they are doing so.
5. Judge Leon ruled that the metadata "probably violates" the Fourth Amendment. That's a ruling?? "Probably guilty, your honor."
That, yes, I can see. Snowden's revelations have revealed that US intelligence operations have spent vast amounts of money building a system that isn't particularly useful and is subject to serious abuse, especially the next time the Neocons are wielding some of that executive power, and sparked a debate our country really needed to have. Unfortunately, largely thanks to the way the debate has been conducted so far, through a combination of propagandistic dishonesty and serious failure to understand how the technical issues interact with real life, it has been placed on a footing of such falsity and hysteria that I don't see how it can do any good.The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.
The advice of the Presidential Advisory Committee sounded great, but I fear it's not going to go anywhere if the people most interested in implementing it don't stop whining about how inadequate the specific recommendations are. It's coming to be like the debate over day care in the 1970s centering on the problem of preschool kids being forced into the performance of Satanic rituals, or the 1950s Red Scare denouncing Eisenhower as a Communist. It has completely distracted attention from the genuine abuse of people of color right here in our own cities and GWOT detainees in Guantánamo and elsewhere in favor of rousing the wrath of techies sending each other dick pix and plutocrats hiding money in the Caribbean, and it's just not helpful.
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| Illustrations by Graci Evans for Doris Sanford's Don't Make Me Go Back, Mommy: A Child's Book About Satanic Ritual Abuse, Multnomah Books, 1990. |
