The Corner

Assange Is Right: Obama Just Gave Snowden Whistleblower Status

Wikileaks founder Julian Assange is a textbook case of Alexander Pope’s famous observation that ”a little learning is a dangerous thing.” He is relentlessly wrong in virtually everything he says. But he is right about this: 

Today the President of the United States validated Edward Snowden’s role as a whistleblower by announcing plans to reform America’s global surveillance program.  But rather than thank Edward Snowden, the President laughably attempted to criticize him while claiming that there was a plan all along, “before Edward Snowden.” . . . As Snowden has stated, his biggest concern was if he blew the whistle and change did not occur.  Well reforms are taking shape, and for that, the President and people of the United States and around the world owe Edward Snowden a debt of gratitude.

Assange is right. The president’s assertion that the announced surveillance reforms have nothing to do with Snowden is laughable. Whatever his words, the president’s actions inescapably imply that Snowden is a legitimate whistleblower. 

That’s why it’s a mistake to do any surveillance reform before Snowden has been brought to justice. I’m all in favor of improving the transparency and safeguards of the surveillance programs. But to do so now, in an obvious response to a criminal leak, creates a huge incentive for people to leak vital national-security secrets. And after four years of Obama’s leaking free-for-all, we desperately need to restore our nation’s ability to keep secrets, and to create huge dis-incentives for people to leak them.

I have argued that Snowden isn’t a whistleblower because he didn’t reveal anything unlawful. A common response is, ”Are you kidding? The surveillance obviously violates the Fourth Amendment.” I think it clearly doesn’t. The laws were carefully tailored to stay clear of any Fourth Amendment violation – I saw that effort up close as a Senate staffer during both Patriot Act reauthorization and FISA reform back in 2008. But that’s beside the point. 

Let’s say that the Supreme Court disagrees one day and strikes down either a specific program or some part of the law itself. That still would not prove that Snowden was a whistleblower. The reason is that we’re not talking about people who knew they were doing something illegal and were covering it up, so that we needed a whistleblower to step in and save the day. On the contrary, we’re talking about a duly enacted law that has survived multiple legal challenges and operates under procedures that require constant institutional consensus among representatives of all three branches of government. Snowden conflates the two: He thinks he’s revealing unlawful activity, but in reality all he has done is call into question the legitimacy of our system of government. That’s the basis on which he justifies open treason.

The distinction may not be readily apparent, but it is huge. We extend whistleblower protection to people who reveal activities that the perpetrators know, or should know, is unlawful. Wherever there is a whistleblower, there must also be at least one person who violated an obligation to reveal or put an end to some illegal activity. So in this situation, who is that person? 

If a corrective is needed to a duly enacted law that has already survived legal challenge, there is no substitute for using democratic channels. As my friend Fred Fleitz points out, there is no indication that Snowden even explored the possibility of using democratic channels before he decided to break the law in a way that would most injure our national security and our relationships abroad. Snowden is a traitor. And legitimizing him, whether by word or deed, is more dangerous than reform proponents realize.

I actually agree with the reforms the president announced. But to push reform now — this year, before Snowden is captured – is inescapably a response to the Snowden leaks. Whatever they might say about Snowden’s status, those pushing for reform now are legitimizing a traitor who believes that our system of government is illegitimate and that treason is justified.

So first things first. Capture Snowden. Or wait a year. Then we can talk about surveillance reform.

Mario Loyola — Contributing editor Mario Loyola is senior fellow and Director of the Center for Competitive Federalism at the Wisconsin Institute for Law and Liberty. He began his career in corporate ...

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