It is a testament both to the complexity of the political and legal questions surrounding the NSA’s PRISM program, and to the mixture of intellectual honesty and political opportunism characterizing those debating them, that one cannot accurately extrapolate from a person’s views on the program his views on Edward Snowden, the low-level government contractor who exposed it.
Speaking broadly, “establishment” Democrats and Republicans alike tend to be apologists for the program, and to think Snowden deserves prosecution for compromising it. By contrast, libertarians left and right tend to be outraged by the program, and think Snowden a hero for showing it the light of day. But you can count me in a third group, those who find PRISM disturbing but aren’t ready to crown Snowden.
To my mind, there is no reason at this point to think of Snowden as a “whistleblower,” as so many are calling him, since whistleblowing means exposing actual malfeasance, not merely the unwisdom of a duly enacted policy. Nor is it clear that his leak of classified information is an act of “civil disobedience,” at least not if that phrase still means what it did when its most consequential practitioner, Martin Luther King Jr., practiced it.
In his “Letter from Birmingham Jail,” written mostly in the margins of a newspaper, King laid out his four-step process for conducting acts of nonviolent civil disobedience: “collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action.”
Did Snowden’s actions meet the first of these criteria? The case that there was racial injustice in Alabama in 1963 was both obvious and overwhelming. King writes that Birmingham was “probably the most thoroughly segregated city in the United States,” with a long record of legal discrimination and violent intimidation of blacks. By contrast, did the information to which Snowden was privy obviously and overwhelmingly point to injustice? The NSA was using powers granted it by Congress, under the watch of the courts, for the purpose of protecting America. This program may be unwise, it may be dangerous, it may be immoral, and it may yet be declared unconstitutional by the Supreme Court. But does the information Snowden had at hand, and disclosed to the press, make that case obviously and overwhelmingly? Is the injustice of the monitoring program so gross that it morally compelled Snowden to break his oaths, and the law, to reveal it?
King’s second step requires “negotiation” with the perpetrators, or at least the enablers, of the injustice in question. In King’s case, his Southern Christian Leadership Conference agreed to put a moratorium on all demonstrations in Birmingham when merchants agreed to take down “humiliating” racial signs from places of business. Before he went to the press, did Snowden first raise his concerns with PRISM to his superiors at Booz Allen Hamilton? Or to officials at the National Security Agency? Or to members of Congress charged with oversight? Or to the courts? Did he work through official channels to have PRISM declassified, even while reserving the right to resort to unofficial channels should this prove impossible?
In the Birmingham case, King negotiated in good faith, but the other side failed to live up to its promises. “A few signs, briefly removed, returned; the others remained,” King wrote. Only then did he and his followers proceed to “self-purification,” which involved readying themselves morally, psychologically, and, in this case, physically, for the consequences of the fourth step, “direct action.” Demonstrators workshopped the principles of nonviolence. They asked themselves, “Are you able to accept blows without retaliating?” and “Are you able to endure the ordeal of jail?” Did Snowden undertake a similar self-appraisal? That’s highly unclear, especially since, instead of submitting to the law, Snowden fled the country to escape it.
The necessity of submission to the law, of accepting punishment for an act of resistance, is perhaps the area of civil-disobedience doctrine most fraught with debate. But canonical civil resisters such as King and Gandhi certainly thought it was necessary. And in the essay that started it all, Henry David Thoreau wrote, “Under a government which imprisons any unjustly, the true place for a just man is also a prison.” The recognition that the moral justifiability of disobeying a law is not legally exculpatory is thus a major part of what makes civil disobedience itself morally legitimate.
Or as Erwin Griswold, Nixon-era solicitor general and former dean of Harvard Law School, said of the prosecution of conscientious draft-dodgers in the Vietnam era: “[It] is of the essence of law . . . that it is equally applied to all, that it binds all alike, irrespective of personal motive. For this reason, one who contemplates civil disobedience out of moral conviction should not be surprised and must not be bitter if a criminal conviction ensues. And he must accept the fact that organized society cannot endure on any other basis.”
Nothing about Snowden’s behavior leading up to and following the leak suggests that he understands (a) the gravity of his action or (b) the fact that civil disobedience works — and makes sense — only when it is embedded in a broader respect and concern for the rule of law.
There is a world in which Snowden grew disturbed by PRISM, and brought his concerns to his superiors. There is a world in which, unsatisfied with their response, he then resigned from Booz, relinquished his security clearance, hired counsel, and took legal action to have PRISM declassified, at the same time he approached Congress, the White House, and the courts with his concerns. There is a world in which, being stonewalled in each of these attempts, he turned over information regarding PRISM to Glenn Greenwald, but on an encrypted file to which only Snowden knew the key. There is a world in which he used this “direct action” to generate King-style “tension” and spur a return to negotiation with government officials. And there is a world in which, stymied, threatened with reprisal, and having exhausted all lawful methods, Snowden sent Glenn Greenwald the password to the encrypted file and awaited arrest. In that world, Snowden would have all the hallmarks of a noble civil resister. In this world, I’m not sure what he is.
— Daniel Foster is news editor for NRO.