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.