The assassinations of Martin Luther King, Jr., and Robert F. Kennedy led directly to the passage of a historic law, the Gun Control Act of 1968. Does that change your view of the assassinations? Should we be grateful for the deaths of these two men?
Of course not. That’s lunatic logic. But the same reasoning is now being applied to the actions of Edward Snowden. Yes, the thinking goes, Snowden may have violated the law, but the outcome has been so worthwhile. According to Glenn Greenwald, the journalist who was one of the primary vehicles for Snowden’s disclosures, Snowden “is very pleased with the debate that is arising in many countries around the world on Internet privacy and U.S. spying. It is exactly the debate he wanted to inform.”
In this debate, Snowden himself says, those who followed the law were nothing better than Nazis: “I believe in the principle declared at Nuremberg, in 1945: ‘Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring.’ ”
To be sure, Snowden has prompted an international discussion about surveillance, but it’s worthwhile to note that this debate is no academic exercise. It has real costs. Consider just a few.
What if Snowden’s wrong? What if there is no pervasive illegality in the National Security Agency’s surveillance programs?
Indeed, for all the excitement generated by Snowden’s disclosures, there is no proof of any systemic, deliberate violations of law. Based on the ruling in a 1979 Supreme Court case,Smith v. Maryland
, it is well established that individuals do not have an expectation of privacy in the phone numbers they call. This is not entirely surprising; we all know that we’re already sharing that information with the phone company. In the same way, it’s long established that the government has great latitude in intercepting communications between the United States and other countries. It’s true, too, that while the Foreign Intelligence Surveillance Act court is largely toothless, it has, on occasion, rejected some N.S.A. procedures, and the agency has made adjustments in response
. That is not the act of an entirely lawless agency.
It is true that, as the Washington Post’s Barton Gellman recently reported, the N.S.A. sometimes went beyond its authority. According to Gellman, the agency privately admits to two thousand seven hundred and seventy-six incidents of unauthorized collection of datawithin a twelve-month period. This is bad—but it’s not clear how bad. If it’s that many incidents out of a total of, say, three thousand initiatives, then it’s very bad. But if—as is far more likely—it’s two thousand seven hundred and seventy-six incidents out of many millions, then the errors are less serious. There should be no mistakes, of course. But government surveillance, like any human activity, is going to have errors, and it’s far from clear, at this point, that the N.S.A.’s errors amounted to a major violation of law or an invasion of privacy.
What are the actual dollar costs of Snowden’s disclosures?
The United States, like any great power, is always going to have an intelligence operation, and some electronic surveillance is obligatory in the modern world. But, because of Snowden’s disclosures, the government will almost certainly have to spend billions of dollars, and thousands of people will have to spend thousands of hours, reworking our procedures. This is all because a thirty-year-old self-appointed arbiter of propriety decided to break the law and disclose what he had sworn to protect. That judgment—in my view—was not Snowden’s to make. And it is simply grotesque that Snowden compares these thousands of government workers—all doing their jobs to protect the United States—to the Nazi war criminals at Nuremberg.
What did China and Russia learn about American surveillance operations from Snowden—and what will they do with this information?
As part of Snowden’s flight from American justice, he went to two of the most repressive and technologically sophisticated countries on earth. (Hong Kong is, of course, part of China.) In an interview with Greenwald, Snowden that said the authorities in those countries behaved like perfect gentlemen.
“I never gave any information to either government, and they never took anything from my laptops,” Snowden said.
Oh, really? Is he serious? Should anyone believe a word of this? China and Russia spend billions of dollars conducting counterintelligence against the United States. An American citizen walks into their countries bearing the keys to our most secret programs, and both—both!—China and Russia decline to take even a peek. That is a preposterous proposition. Even assuming that Snowden believes he had control of his computers 24/7 (he never slept?), there is simply no way that China and Russia would pass up that kind of bounty.
There is obviously some legitimate debate to be had about the extent and the legality of American surveillance operations. But there is no doubt about the nature of China and Russia. Snowden’s pious invocation of the Nuremberg trials will probably be small comfort to the dissidents and the political prisoners whose cell doors may be locked a little tighter today because of what these authoritarian governments may have learned from his hard drive.