A. Jay Adler
As opinions about Edward Snowden have flown wildly back and forth, the vocabulary of public debate has suffered woefully. The sorry truth is that most of those who opine on the subject have the tendency to throw words around like jalopies in a demolition derby. Last one still moving its lips wins. Much of the debate over Snowden, significantly directed by the political ideology of the speaker, has resorted to the use of four terms: leaker, whistle blower, spy, and civil disobedience. There are variant terms, such as “traitor” and “illegal,” but those four words have formed the parameters of the debate. Find your point on the grid among the coordinates of those four terms, and your position on Edward Snowden is significantly revealed. Yet few people who have publically discussed Snowden’s act and sometimes used those words have troubled themselves to clarify for themselves and others what precisely they mean by the words and how the words relate to each other. Common slapdash efforts have left many people with the continuing sense that the matter is all one great subjective political confusion – as in, you know, one person’s spy is another person’s whistleblower? Must we, then, in the end, settle for that much relative indeterminacy? Can we not achieve some greater conceptual precision? Let’s try.
To begin, three of the terms are conceptually separable from the fourth, all of them not, truly, equal end points on a grid. Civil disobedience stands apart. To leak, to whistle blow, to spy are all categorically related, each a distinguishable, individuated subclass of the more general notion of “leaking.” If we think of that general notion as one of porous escape from an area of containment, then we manage to separate, to start, the various political actions and moral charges that later attach to types of leaking. We might also think of the concrete barrier of containment that inhibits leakage in the physical world, whatever its material form, as being akin to authority in the world of human interaction, especially, here, of government. It is the ideal institutions and the operating protocols of government that seek to erect the authority which, put into practice and respected, establish the containment – the concealment of sensitive information – to prevent leakage. In one sense, then, authority exercised and respected is the metaphorical barrier of containment that prevents leaking in the world of human interaction.
To leak, in its specific use (in contrast to its overarching general conceptual sense), is part of the vocabulary of the political classes. As the term is commonly used, people leak information as practical political acts. Sometimes, oddly, contradictorily, a leak is actually authorized. That is to say that someone who exercises authority over the keeping and containment of the information is the one who creates the leak – releases the information – in order to achieve, by subterfuge, some political end. We presume, generally, when we allege such an act, that it is performed, though outside of protocols, with the knowledge or tacit acquiescence of the very highest level of authority, in government, the President or other top executive figure. Thus we see created a fissure in the wall of authoritative containment. To break the rules is to defy authority. Yet most of us probably believe that presidents and other leaders must, in the exercise of leadership, have just this freedom of movement at the boundaries of action, in order to contend with the contingencies of the real world. Many people clearly, to offer an extreme instance, have made their peace with presidential authorization of torture at the height of the post 9/11 era. What contends in these cases is the authority of law and protocol with the authority of executive leadership. We all have some sense of how the two should balance or one should predominate, but the more marginal we imagine the infraction to be, the less clarity we are likely to have in the matter, and the less many of us will care about attempting to establish a wavy line of demarcation.
When we believe that the leaker is high in the chain of authority, but is acting without some belief in Presidential support, even knowingly against what the President would wish, then we approach the distinguishing boundary of the whistle blower, but we are still not at it. Just as with “authorized” leaks, the person who operates at a high level of government, but who acts surreptitiously to release information in some way counter to the desires of presidential or other executive authority, is committing a practical political act. Such a person is not challenging the legitimacy or moral authority of the nation or its government. Such a person is not necessarily challenging the legality of a government policy or act, as the whistle blower tends to do. The “non-authorized” leaker does, however, seek to influence policy by force of public reaction to the leaked information. One might say that the non-authorized leaker accepts the system as it is, in its ideal and real-world constructions, and willingly works within it. Depending on one’s beliefs about an array of matters, one might think the acts of both kinds of leaker to be either dishonorable or the wily operation of the shrewd political player.
As good an example of the “non-authorized” leaker as can be offered, if current suspicions are confirmed as correct, would be retired Gen. James E. Cartwright of the Marines. Cartwright, reportedly while in service a favorite of President Obama, served before his retirement as the Vice Chairman of the Joint Chiefs of Staff, the second highest military position in the land. Yet according to multiple sources back in June, Cartwright is suspected of being the source of a leak to The New York Times revealing United States involvement in the Stuxnet cyber attack on Iran’s nuclear program computers. In response to these reports, according to National Public Radio, the general’s attorney released a statement using language strikingly relevant to matters in question in the Snowden debate.
General Jim Cartwright is an American hero who served his country with distinction for four decades. Any suggestion that he could have betrayed the country he loves is preposterous.
Whistle blowers will tend to be individuals of far lesser authority than Cartwright, often more functionary than authority, though in government and intelligence work the gradients between the two might seem infinitely to recede into the horizon. The young Edward Snowden may serve as a prime example of that perception. Whistle blowers, properly speaking, see an ideal or operational wrong and believe themselves to be functionally powerless to alter practice or policy in order to right the wrong. They do not have sufficient authority. They are not even, as Cartwright may have been, active participants in the shaping of policy or procedure who lost out in debate. They have no power to formulate policy, only to execute it. As we imagine whistle blowers to be, they are people of conscience who, otherwise voiceless and powerless – thus whistle blower protection laws – blow the whistle on wrongdoing.
This is certainly how Edward Snowden and his supporters portray him. Even many people not fully supportive of Snowden perceive him as someone acting on conscience, however they might judge a range of his actions to be misguided. The individual acting on conscience may be motivated only by moral qualms, but just as likely, when it regards matters about which to blow the whistle, the moral compunction is attached to what is perceived to be illegality. That seems at best a muddy area in Snowden’s revelations. Certainly, many think the programs and procedures Snowden revealed, beginning with their secrecy, to run counter to a spirit of civil liberty and appropriate legal procedure. We find not only legally consituted secret FISA court orders, for instance, but undemocratic, secret interpretations of law. Few legal minds have argued that any of the NSA programs – authorized by legislation and clarified in scope by those court findings – are themselves illegal.
The question of illegality and the matter of how one blows the whistle – whether in report to superiors, along special protective avenues, or by going public directly through the media and thus bypassing protocols – all complicate evaluation of the whistle blower’s act. For many, Snowden and his outright supporters argue very credibly that the last course was the only one effectively open to him, as Daniel Ellsberg similarly felt about the Pentagon Papers.
There is, however, an additional consideration involved in attempting to classify – in order to properly regard, however complexly – Edward Snowden’s actions. Back on June 25, the South China Morning Post reported,
For the first time, Snowden has admitted he sought a position at Booz Allen Hamilton so he could collect proof about the US National Security Agency’s secret surveillance programs ahead of planned leaks to the media.
“My position with Booz Allen Hamilton granted me access to lists of machines all over the world the NSA hacked,” he told the Post on June 12. “That is why I accepted that position about three months ago.”
During a live global online chat last week, Snowden also stated he took pay cuts “in the course of pursuing specific work”. He said: “Booz was not the most I’ve been paid.”
Asked if he specifically went to Booz Allen Hamilton to gather evidence of surveillance, he replied: “Correct on Booz.”
Ellsberg, perhaps the most famous whistle blower in U.S. history and a supporter of Snowden, nonetheless serves as a marked contrast to Snowden in several ways. Ellsberg, working for the Rand Corporation after service at the Department of Defense, contributed to the study of the Vietnam War commissioned by Secretary of Defense Robert McNamara that later became known as the Pentagon Papers. Ellsberg was one of the few people who had access to the entire study. He was, on these terms, the classic whistle blower: a government or government-affiliated employee who becomes disillusioned by the mission in which he is a participant, but on which he is powerless to effect change. However, Ellsberg did not seek a job at the Rand Corporation with the specific purpose to obtain information to which he otherwise lacked access and then to leak it.
While Edward Snowden and supporters consider him a whistle blower, and he does in some respects fit the description, in others he does not. The United States government has, in fact, charged Snowden with espionage. Is that charge simply institutional vindictiveness, bureaucratic anger at the unauthorized disclosure of information, as Snowden and his Wikileaks and other supporters charge? There are the intricacies of law on which most people are not expert to comment, but there are definitions in the common language. Merriam Webster tells us that a spy is “one that spies; one who keeps secret watch on a person or thing to obtain information.” Wiktionary identifies espionage as the “act or process of learning secret information through clandestine means.” Whereas Daniel Ellsberg leaked information to which he had access as part of work in which he was already authorized to be engaged, Edward Snowden by his own admission sought employment with access to classified information purposefully in order to seek out that information, remove it, and publically disclose it without authorization.
More detailed encyclopedic and intelligence-service definitions of espionage accord with the fuller conception most people have of espionage commonly applying to corporate and nation-against-nation spying. There is no evidence of any such intent on Snowden’s part, nor is there any reason to suspect him of seeking personal gain. We tend also to think of spies as working for enemies, but that is not required. Friendly nations spy on one another all the time. Jonathan Pollard spied on the U.S. for Israel. The U.S., it just so happens Snowden has revealed, spies on its own European allies. Though Snowden seems to conceive of himself as a patriot, as General Cartwright’s lawyer reasonably casts him, and there is no reason to doubt the sincerity of that belief, he has, first, cast his lot with parties who present themselves quite antagonistically toward the U.S., and he has begun to make such comments himself.
As political contestants become more heatedly embroiled in deepening convolutions of motivation and act, and charge and counter charge about the motivations and acts of others, all may find idealized cause to elevate their own higher love of country or freedom above the cravenness of their adversary: nearly everyone is a patriot in his own mind, when he hasn’t spied for money or out of personal grievance. Sometimes, for some ballast against the upending waves of political agonism, we need to return to some existing standards: definitions, precedents, and law. Certainly, by some clear, existent standards, what Edward Snowden set out to engage in at Booz Allen, and against the U.S. government, regardless of his motivation, was espionage.
We have political leakers, we have whistle blowers of conscience, we have spies. Edward Snowden is not the first. There are arguments to be made for the second and third. Let us consider Snowden further on his own terms, as the whistle blower motivated by conscience.
The civil disobedient – what some have carelessly called Snowden – also acts from conscience, though it need not be against illegality. In some sense, civil disobedience based on conscience alone is even more admirable than exposing illegality, which is a great and perhaps even risky enough act itself. In a free and democratic society, we hope – but justice is always an uncertain destination – exposing illegality will receive its ideal and proper reward. It is on the books. That a personal sense of justice will come commonly to prevail is a still riskier bet to make. When Martin Luther King, Jr. went to Birmingham, Alabama in 1963, it was not to oppose illegality. The injustice he went to fight was legal. He broke the law to oppose it. There are, he wrote,
two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”
These high sounding words might be in practice quite capricious and self-serving, but for one highly salient fact – King wrote them from jail. They are found, after all, in his “Letter from Birmingham Jail.”
King was not the first to espouse this standard. Wrote Henry David Thoreau in Civil Disobedience,
Under a government which imprisons unjustly, the true place for a just man is also a prison. The proper place today, the only place which Massachusetts has provided for her freer and less despondent spirits, is in her prisons, to be put out and locked out of the State by her own act, as they have already put themselves out by their principles. It is there that the fugitive slave, and the Mexican prisoner on parole, and the Indian come to plead the wrongs of his race should find them; on that separate but more free and honorable ground, where the State places those who are not with her, but against her.
For all Thoreau’s sense of the tyranny of the state qua state, neither he, then, nor we now need be foolish enough to confuse that tyranny with the greater human tyranny effected by the state. We know the systems and societies where such noble figures as Thoreau imagines, upholding their personal measure of justness in prison, may sink into dark holes of history never to emerge from those prisons free or living again. It is, then, easier to justify flight from the system whose wrong one exposes, whose law one breaks, if one can cast it in such dire terms as those. If one can acknowledge no determinative difference between the United States and North Korea or Russia or Iran, one can tell oneself and the world that no obligation is owed to the country and system of laws one challenges.
Like King in the American South, Mohandas Gandhi faced levels of discriminatory oppression from the British Rule of India far greater than the generic tyranny Thoreau faced in the United States. King respected the American system as Gandhi did not the British in India, yet Gandhi, through the concept of nonviolent civil disobedience he fashioned as Satyagraha, nonetheless submitted to British law. In 1922, Gandhi was tried for “bringing or attempting to excite disaffection towards His Majesty’s Government established by law in British India.” He concluded his statement to the court with these words:
I am here, therefore, to invite and submit cheerfully to the highest penalty that can be inflicted upon me for what in law is deliberate crime, and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge and the assessors, is either to resign your posts and thus dissociate yourselves from evil, if you feel that the law you are called upon to administer is an evil, and that in reality I am innocent, or to inflict on me the severest penalty, if you believe that the system and the law you are assisting to administer are good for the people of this country, and that my activity is, therefore, injurious to the common weal.
All three men, Thoreau, Gandhi, and King, staked their principles of civil disobedience in the ground marked off before them by Socrates. Like Edward Snowden, Socrates believed that truths were being withheld from the citizenry, in his case, of Athens. Socrates had endeavored throughout his life to shine the light of reality on the minds of all those with whom he conversed. Late in his life, it became the claim of the rulers of Athens that its citizens, like those of the United States, needed to be protected, in this case from Socrates himself, who was charged with “refusing to acknowledge the gods recognized by the State and of introducing new and different gods” and with “corrupting the youth” of Athens.
Socrates did not flee his trial, but stood it. It was after he was unjustly convicted – and not before, in what might be deemed by some a convenient anticipation of injustice – that Socrates was urged by his friend Crito to flee. All necessary arrangements had been made by Crito for that flight to safety. In Plato’s dialogue called Crito, Socrates offers the many reasons why he believed it would be wrong for him to escape. He questions what commitment to justice he might rightly claim, and to a regulated system of laws aimed at establishing justice, were he to flee a judgment that might go against him. Argues Socrates, in the voice of the Law, personified as all whom it represents,
“Tell us, Socrates,” they say; “what are you
about? Are you going by an act of yours to overturn us — the
50b laws and the whole State, as far as in you lies? Do you
imagine that a State can subsist and not be overthrown, in
which the decisions of law have no power, but are set aside
and overthrown by individuals?” What will be our answer,
Crito, to these and the like words? Anyone, and especially
a clever rhetorician, will have a good deal to urge about the
evil of setting aside the law which requires a sentence to be
carried out; and we might reply, “Yes; but the State has
50c injured us and given an unjust sentence.” Suppose I say that?
Socrates defied what he thought unjust law, law that required he acknowledge the existence of gods in which he did not believe. But he accepted his punishment for that defiance and declared his respect for law itself. A foundation for that respect was laid in the argument Socrates made of implied consent.
But he who has experience of the manner in which we
order justice and administer the State, and still remains, has
entered into an implied contract that he will do as we
command him. And he who disobeys us is, as we maintain,
thrice wrong: first, because in disobeying us he is disobeying
his parents; secondly, because we are the authors of his
education; thirdly, because he has made an agreement with us
that he will duly obey our commands; and he neither obeys
them nor convinces us that our commands are wrong; and we
do not rudely impose them, but give him the alternative of
obeying or convincing us; that is what we offer, and he does
Though he appears, in his defense of Snowden, no longer to recognize this standard today. Ellsberg did recognize if for himself.
I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.
Of course, one may take a radically subversive or revolutionary stance, by which state institutions and the system of laws are challenged in their very legitimacy. Some of those who have become associated with Snowden – Julian Assange and Wikileaks, for instance – frequently make characterizations of the United States in this spirit, though they have yet to outright declare themselves subversive or revolutionary enemies of the state. Edward Snowden has made no such declaration, and if he did he would then reasonably lose any basis for complaint of his treatment by an avowed enemy. If, rather, he claims to be acting from conscience, morally committed to a higher enactment of the idea of America, then he has an existing standard of civil disobedience against which to measure himself and be measured by others. That standard is
Refusal to obey government demands or commands and nonresistance to consequent arrest and punishment. … Civil disobedience is a symbolic or ritualistic violation of the law, rather than a rejection of the system as a whole. The civil disobedient, finding legitimate avenues of change blocked or nonexistent, sees himself as obligated by a higher, extralegal principle to break some specific law. By submitting to punishment, the civil disobedient hopes to set a moral example that will provoke the majority or the government into effecting meaningful political, social, or economic change.
If Edward Snowden and those who encourage him in his present course think themselves able to marshal not just the impassioned recalcitrance of critics, but compelling arguments fit to contend with the ancient and continuing legacy before them, and the intellectual authority of that legacy, they should make them. For it is not only what they oppose for which they will be remembered, but also what they promote, and whatever clear, coherent, and compelling case they make, or do not make, for how to act rightly in the face of wrong.