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A Code of Conduct for Civil Disobedience



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I am not an admirer of Edward Snowden, but I think Andy’s argument is incomplete. He writes: “If people no longer think national defense secrets are important, or that honoring oaths is less virtuous than indiscriminate ‘truthtelling,’ it is going to be impossible to have security.” It may already be impossible to have security of the sort Andy is talking about: I am no more an admirer of Julian Assange’s than I am of Mr. Snowden’s, but both the Wikileaks episode and this one suggest that Team Spook is not playing at the top of its game, while Team Nerd is.

What is worrisome to me is the double standard we all seem to have accepted here. If we are to put people in prison for violating our classified-information laws, then we have to deal with the fact that official Washington abuses those laws while at the same time being the main violator of them. For example, the Obama administration is pretty clearly leaking classified information to the media when it suits it to do so. Placing Anwar al-Awlaki on the CIA hit list did not end up on the front page of the New York Times without the White House’s blessing. We can take the Times at its word on that: “‘The danger Awlaki poses to this country is no longer confined to words,’ said an American official, who like other current and former officials interviewed for this article spoke of the classified counterterrorism measures on the condition of anonymity.” The Times reports the crime as though it were standard operating procedure, because it is.

My objection here is not to simple hypocrisy but to the creation of a standard of selective prosecution under which official Washington can use leaks of classified information as a political weapon while at the same time using the prosecution of rival leaks as a political weapon. We are in effect adopting the Nixon rule: When the president does it, it isn’t illegal. (I will leave it to the lawyers to unwind Andy’s fascinating argument that James Clapper had a legal duty to lie to Congress.)

I think that there should be an unofficial code of conduct for civil disobedience: Part of the reason we admire Henry David Thoreau, Martin Luther King Jr., or Mohandas Gandhi is that they were willing to go to jail for their beliefs. They broke the law and were willing to accept the consequences for their actions. Thoreau once wrote that in dishonest times the only place for an honest man is prison; I cannot imagine a standard that would make the skirts of Vladimir Putin the right place for an honest man.  

Mr. Snowden protests that he cannot get a fair trial in the United States. I do not think that he probably is correct about that, but the objection is not an absurd one. Awlaki did not get a trial at all, of course, and we have a government which has shown itself more than willing to illegally abuse its authority to punish its critics and political rivals. Meanwhile, officeholders and those who serve at their pleasure are held immune from prosecution, so long as the illegal leaks were blessed by the right people. Justice is by definition not arbitrary.

The word “traitor” has been thrown around quite a bit in this discussion, and Mr. Snowden’s allegedly treasonous actions have been cited as justification for many different courses of action — but not, strangely enough, for charging him with treason, which the administration apparently does not intend to do.  

I do not think we are quite so far gone that I am ready to sympathize entirely with Mr. Snowden’s predicament. I would be more sympathetic if he had made his announcement on the steps of the Justice building and invited — or dared — them to haul him off to jail. One detects in Mr. Snowden, as in Mr. Assange, a desire not only to be held harmless with regard to his actions but possibly even to profit by them. But the unhappy fact is that when Mr. Snowden protests that his prosecution is about politics rather than about the law, we have to concede that he does have a point. 

UPDATE: Several readers have suggested that I am being unfair to Andy’s position on Clapper — that he had not a legal obligation to lie to Congress but a legal obligation to not tell Congress the truth. I am not sure how that plays out as a practical matter; it seems to me that refusing to answer the question in an open hearing would be tantamount to disclosing the classified information in question, but the point is a fair one. 

UPDATE UPDATE: Ramesh and I apparently were writing at the same time.



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