30. For the argument that international law imposes extraterritorial obligations concerning privacy, see Human Rights Council, “The Right to Privacy in the Digital Age: Report of the Office of the United Nations High Commissioner for Human Rights,” UN Doc. A/HRC/27/37, June 30, 2014; UN General Assembly, “Report of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism,” UN Doc. A/69/397, September 23, 2014.
31. David E. Sanger, “Fine Line Seen in U.S. Spying on Companies,” New York Times, May 20, 2014, http://www.nytimes.com/2014/05/21/business/us-snooping-on-companies-cited-by-china.html?hp&_r=0.
32. Glenn Greenwald and Ewen MacAskill, “Obama Orders US to Draw Up Overseas Target List for Cyber-Attacks,” Guardian, June 7, 2013, http://www.theguardian.com/world/2013/jun/07/obama-china-targets-cyber-overseas.
33. Presidential Policy Directive/PPD-20 on U.S. Cyber Operations Policy, October 16, 2012, 3. Part II.A includes the text of PPD-20.
34. Ibid., 9.
35. Barton Gellman and Ellen Nakashima, “U.S. Spy Agencies Mounted 231 Offensive Cyber-Operations in 2011, Documents Show,” Washington Post, August 30, 2013, http://www.washingtonpost.com/world/national-security/us-spy-agencies-mounted-231-offensive-cyber-operations-in-2011-documents-show/2013/08/30/d090a6ae-119e-11e3-b4cb-fd7ce041d814_story.html.
36. David E. Sanger, Confront and Conceal: Obama’s Secret Wars and Surprising Use of American Power (New York: Crown Publishers, 2012).
37. Nicole Perlroth, Jeff Larson, and Scott Shane, “N.S.A. Able to Foil Basic Safeguards of Privacy on Web,” New York Times, September 5, 2013, http://www.nytimes.com/2013/09/06/us/nsa-foils-much-internet-encryption.html?pagewanted=all.
38. Nicole Perlroth and David E. Sanger, “Nations Buying as Hackers Sell Flaws in Computer Code,” New York Times, July 13, 2013, http://www.nytimes.com/2013/07/14/world/europe/nations-buying-as-hackers-sell-computer-flaws.html?pagewanted=all.
39. Ryan Naraine, “Stuxnet Attackers Used 4 Windows Zero-Day Exploits,” ZDNet.com, September 10, 2010, http://www.zdnet.com/blog/security/stuxnet-attackers-used-4-windows-zero-day-exploits/7347.
40. President’s Review Group on Intelligence and Communications Technologies, “Liberty and Security in a Changing World,” December 12, 2013, 37. Part II.B includes the executive summary of this report.
41. Michael Daniel, “Heartbleed: Understanding When We Disclose Cyber Vulnerabilities,” The White House Blog, April 28, 2014, http://www.whitehouse.gov/blog/2014/04/28/heartbleed-understanding-when-we-disclose-cyber-vulnerabilities.
42. Tabassum Zakaria and David Ingram, “Google Warns of ‘Splinter Net’ Fallout from U.S. Spying,” Reuters, November 13, 2013, http://www.reuters.com/article/2013/11/13/us-usa-security-hearing-idUSBRE9AC0S720131113.
43. Jay Soloman and Carol E. Lee, “Obama Contends with Arc of Instability Unseen since ’70s,” Wall Street Journal, July 13, 2014, http://online.wsj.com/articles/obama-contends-with-arc-of-instability-unseen-since-70s-1405297479?mod=e2tw.
44. James Steinberg and Michael E. O’Hanlon, “Don’t Be a Menace to South (China Sea),” Foreign Policy, April 21, 2014, http://www.foreignpolicy.com/articles/2014/04/21/obama_china_japan_asia_abe_pivot_rebalance_resolve.
45. Jeffrey Mankoff, “Russia’s Latest Land Grab,” Foreign Affairs (May/June 2014), http://www.foreignaffairs.com/articles/141210/jeffrey-mankoff/russias-latest-land-grab.
46. Max Boot, “Why Russia’s Other Neighbors Are Worried,” Commentary, June 3, 2014, http://www.commentarymagazine.com/2014/06/03/why-russias-other-neighbors-are-worried/; Helene Cooper and Jane Perlez, “U.S. Sway in Asia Imperiled as China Challenges Alliances,” New York Times, May 30, 2014, http://www.nytimes.com/2014/05/31/world/asia/us-sway-in-asia-is-imperiled-as-china-challenges-alliances.html.
47. Steven Metz, “Strategic Horizons: Russia’s Ukraine Invasion Signifies a Changing Global Order,” World Politics Review (March 5, 2014), http://www.worldpoliticsreview.com/articles/13607/strategic-horizons-russia-s-ukraine-invasion-signifies-a-changing-global-order.
48. Walter Russell Mead, “The Return of Geopolitics: The Revenge of the Revisionist Powers,” Foreign Affairs (May/June 2014), http://www.foreignaffairs.com/articles/141211/walter-russell-mead/the-return-of-geopolitics.
49. UN Security Council Resolution 2178 (2014), September 24, 2014, http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_res_2178.pdf.
50. In June 2014, comments by the new NSA director, Admiral Michael S. Rogers, revealed “an absence of alarm about the long-term effects of the Snowden revelations.” David E. Sanger, “New N.S.A. Chief Calls Damage from Snowden Leaks Manageable,” New York Times, June 29, 2014, http://www.nytimes.com/2014/06/30/us/sky-isnt-falling-after-snowden-nsa-chief-says.html?_r=0.
51. Hans Morgenthau, Politics Among Nations, 5th ed. (New York: Knopf, 1978), 5.
5
Taking Snowden Seriously:
Civil Disobedience for an Age of
Total Surveillance
WILLIAM E. SCHEUERMAN
Edward Snowden’s revelations about surveillance by the National Security Agency have dominated global news like few events in recent years. A hero to some and traitor to others, his disclosures unleashed, as he hoped, a worldwide debate about state surveillance in the context of technological advances, the implications of which most policy makers, let alone ordinary people, barely fathom. Hardly a week has passed since the initial disclosures in June 2013 without headline-grabbing reports about new leaks, followed by polarized elite and public reactions. Media have painted a vivid portrait of Snowden’s background and career, supplemented with expert commentary. Politicians and pundits have eagerly proffered sound bites deriding and attacking Snowden. Vociferous responses have come from those—often abroad and viewing themselves as victims of NSA surveillance—more sympathetic to his cause.
Unfortunately, the hoopla has obscured a more vital part of the story, namely the moral and political seriousness with which Snowden acted to make covert NSA surveillance public knowledge. As we now know, and as Snowden anticipated, his decision came at a huge personal cost. The Obama administration’s abrupt cancellation of his passport rendered him effectively stateless, dependent on a Russian government more focused on flexing its weakening muscles as a global power than ending high-tech spying. Sadly, one of our most eloquent critics of state surveillance found himself, partly because of the Obama administration’s draconian response, at the whim of a former KGB spymaster.1
While media sources reported on his quest for asylum and travails in Putin’s Russia, they failed to impart a sense of the moral and political reflections that induced Snowden to give up his six-figure salary and comfortable life in Hawaii. Snowden’s public declarations—especially an illuminating yet neglected statement at the Moscow airport on July 12, 2013,2 when reluctantly accepting Russia’s offer of asylum—show that Snowden thought long and hard about the question of when and how citizens of a liberal democratic state are morally and politically obliged to violate the law.
A nineteenth-century critic of militarism and slavery, Henry David Thoreau, is widely, albeit misleadingly, credited with coining the term “civil disobedience.”3 At least since the middle of the twentieth century, when Mahatma Gandhi and Martin Luther King mesmerized global attention by articulating robust defenses of nonviolent lawbreaking,4 political activists in many national contexts have adapted Gandhi’s and King’s ideas and techniques to local conditions. For their part, major political theorists and philosophers—including liberals like John Rawls and radical democrats like Jürgen Habermas—have struggled to make sense of this form of protest, especially the conditions under which civil disobedience should be seen as indispensable in a mature liberal and democratic political culture. The media’s failure to report on Snowden’s contributions to that debate notwithstanding, they deserve our careful attention.
I argue that Snowden’s actions meet most of the demanding tests
outlined in political thinking about civil disobedience. To be sure, some have already described his actions as legitimate civil disobedience,5 but these efforts have yet to justify this view sufficiently, which will strike many of Snowden’s critics as counterintuitive and tendentious. Like Thoreau, Gandhi, King, and countless other activists, Snowden has articulated a powerful defense of why he was morally obligated to engage in politically motivated lawbreaking.
Snowden has also undertaken impressive efforts to explain how his actions are distinguishable from ordinary criminality and why they need not culminate in reckless lawlessness. In fact, his example can perhaps help advance liberal and democratic ideas about civil disobedience. First, it highlights reasons why the acceptance of punishment by those engaging in civil disobedience should not be a precondition of its legitimacy. Second, Snowden reminds us that in our era, intensified globalization processes shape every feature of political existence. Defenders of civil disobedience need to update their reflections accordingly.
Snowden as Civil Disobedient
If we start with the usual definition of civil disobedience as a “public, nonviolent, conscientious yet political act contrary to the law usually done with the aim of bringing about a change in the law or policies of the government,”6 Snowden’s revelations fall under its rubric.
From the outset, Snowden anticipated that his disclosures would be taken by the U.S. government as evidence “that I have broken the Espionage Act and helped our enemies.” In an early interview with the journalists who helped break the story, Snowden predicted not only that he would be accused of illegality, espionage, and even treason, but also that the U.S. government would marshal its power to discredit and punish him.7 Later, Snowden conceded that he signed the obligatory government classified information nondisclosure agreement and that his actions might be construed as violating his “civil contract” with the U.S. government.8 In short, he has always acknowledged that the U.S. government would describe his actions as illegal while conceding that it has some legal leg to stand on.
In fact, the U.S. government revoked Snowden’s passport and deterred a number of foreign countries from granting asylum, effectively leaving him with no choice except Russian exile. Attorney General Eric Holder then announced that Snowden would be charged with violations of the Espionage Act. As Snowden predicted, and as it had with other whistleblowers (such as Thomas Andrew Drake9 and Bradley/Chelsea Manning10), the Obama administration threw the book at him.
More importantly, Snowden’s actions represent what the philosopher Hugo Adam Bedau characterized as indirect yet potentially legitimate resistance or civil disobedience—illegal acts undertaken at “one (or even several) remove(s), e.g., blacks violate a trespass ordinance to protest racial injustice,” in contrast to direct disobedience aimed at preventing enforcement of an unfair or unjust law (e.g., blacks violating segregation statutes).11 Though Snowden admits to violating his nondisclosure agreement, and even though he is skeptical of Attorney General Holder’s recourse to the Espionage Act, his main target was U.S. policies undergirding NSA surveillance. He violated prohibitions on whistleblowing because doing so offered an effective—and in his view necessary—way to bring the injustices of U.S. surveillance policies to public attention, not because he aspires to discredit government nondisclosure rules or the Espionage Act. He went so far as to claim that “I am not trying to bring down the NSA, [but instead] I am working to improve the NSA” by making sure it abides by proper legal and constitutional limits.12
Snowden sketched out this basic position at the Moscow airport, where he explained why he felt morally and legally obliged to pursue acts likely to be perceived as “contrary to the law.” Most obviously, his was an open and public intervention because it entailed “a moral decision to tell the public about spying that affects all of us.” Such disclosure was imperative if policies about which most people—even most political elites—remained in the dark were to gain public attention. Addressing not only U.S. citizens but also others around the globe, Snowden “took what he knew to the public, so what affects all of us can be discussed by all of us in the light of day.” Hoping to generate awareness about surveillance policies and the necessity of reform, his act’s public character was essential to that aim. As he also told Guardian reporters, “[m]y sole motive is to inform the public as to that which is done in their name and that which is done against them.”13
Snowden’s Moscow statement appealed to U.S. constitutional and international human rights law. He asserted that NSA programs constitute “a serious violation of the law,” including the Fourth and Fifth Amendments to the U.S. Constitution (prohibiting unreasonable searches and seizures and guaranteeing basic due process), various U.S. statutes, Article 12 of the Universal Declaration of Human Rights (protecting against arbitrary interference with a person’s privacy), and treaties banning legally unchecked state surveillance, which he believes the NSA recklessly pursued.14 Snowden is hardly condoning illegality or lawlessness. On the contrary, he has regularly insisted that he is upholding fundamental laws and basic rights, which in his view trump fidelity to U.S. anti-whistleblowing statutes and regulations.
Like earlier civil disobedients, Snowden condones the violation of local or particular laws because of their incongruity with higher—and more fundamental—law. In a Washington Post interview in December 2013, he reiterated the claim that his obligations to the U.S. Constitution override any “civil contract,” meaning the nondisclosure agreement he signed. When such agreements conflict with constitutional law, Snowden believes, we are obliged to violate them.15
Against those who view NSA activities as lawful and legitimate, Snowden’s Moscow statement asserts that the legal foundation of these activities remains the secret rulings of the controversial Foreign Intelligence Surveillance Court (FISC), “which the world is not permitted to see.” Elsewhere, Snowden stated his opposition to what he dubbed “the federation of secret law, unequal pardon, and irresistible executive power.”16 Secret jurisprudence, arbitrary power, and burgeoning executive discretion go hand in hand and need to be countered. Given what we now know about problems with judicial oversight of the NSA, including the FISC’s chief judge conceding that the court is badly equipped to perform its job and evidence suggesting that the NSA often ignored the court’s rulings,17 Snowden’s worries seem credible.18
The illegality of NSA spying was confounded, the Moscow statement continues, by the Obama administration’s decision to place him on no-fly lists and prevent foreign countries from granting asylum. This behavior included “the unprecedented step of ordering military allies to ground a Latin American president’s plane.”19 According to Snowden, this move constituted an attack on “the basic rights shared by every person, every nation, to live free from persecution, and to seek and enjoy asylum,” as guaranteed by human rights treaties to which the U.S. government subscribes.
In striking contrast to the open character of his actions, Snowden asserted, the secrecy of the NSA’s activities corrupts “the most basic notion of justice—that it must be seen to be done. The immoral cannot be made moral through use of secret laws.” Publicity is fundamental to the rule of law and constitutional government, whereas secret law tends to be corrosive, as it risks veiling government action from individual and collective scrutiny. As the legal theorist Lon Fuller once noted, secret laws and courts provide an easy cover for arbitrary and immoral state action.20 Not surprisingly, such laws and courts remain a favorite device for those who prefer to keep unjust and heinous actions from the public eye. Secret law tends to proliferate in authoritarian regimes.
To be sure, and as Snowden might concede, some government activities need to be veiled from direct public scrutiny; every liberal democracy carves out some place for government secrecy in the context of national security. Yet secrecy still poses a principled threat to any political order committed to basic liberal and democratic values.21
Snowden’s main claim is that his actions not only prote
ct fundamental—but systematically endangered—rights and laws, but they also embody core legal virtues (e.g., publicity and openness) on which any legitimate liberal and democratic legal order depends. In contrast, NSA surveillance, as well as the Obama administration’s heavy-handed response to his protests, makes a mockery of such virtues.
Recipe for Lawlessness?
Snowden’s position is unlikely to satisfy anyone worried about the dangers of reckless and potentially destructive illegality. Are not citizens of a more-or-less well-functioning liberal democracy obliged to respect laws adopted through normal political channels? What is to prevent them from irresponsibly abrogating laws and policies they deem unsatisfactory in the name of some “higher” law? The familiar answer from modern liberal and democratic theory is that politically motivated lawbreaking needs to pass tough, additional tests. Snowden’s comments at the Moscow airport and elsewhere show that he has made a good faith effort to do so.
Significantly, it seems ungenerous to deny that his actions, whatever one’s assessment of their political merits, are morally serious and thus conscientious. His behavior reflects a “moral decision” deriving “from what I believed right,” made after internal, moral reflection, or what Gandhi and King described as “self-purification.” His “willingness to act in public and to offer explanations to other people suggest also a willingness to reflect upon and worry about the possible consequences,”22 which attests to his moral seriousness.
The fact that his moral reflections cost him what he characterized as a comfortable “life in paradise” belies accusations of “narcissism” leveled at him by journalists and pundits,23 as does his refusal to enrich himself by selling U.S. secrets or partnering with foreign governments. On the contrary, his selfless actions demonstrate a morally praiseworthy willingness to sacrifice the private for the public good. If what Snowden did constitutes immoral narcissism, contemporary democracies probably could use more of it.
The Snowden Reader Page 12