In his June 2013 conversation with Guardian journalists, Snowden also claimed to “have carefully evaluated every single document I disclosed to ensure that each was in the public interest,” in part to avoid “harming people.”24 In fact, Snowden’s actions have been nonviolent, because they constitute “disobedience to law within the limits of fidelity to law.”25 His aim is neither violent criminality nor revolution, but instead a peaceful transformation of U.S. policy—and even the NSA itself—so that it might better accord with his interpretations of the U.S. Constitution and international law.
As Snowden grasps, nonviolence is essential to this project because injury and harm clash with the objective of persuading other political actors of injustices in need of correction. Coercion and force would deny others their basic rights, undermining the possibility of political agency on which democratic persuasion rests. Nonviolence is essential to what Bedau described as an “ideal political discourse” predicated on rational exchange, tolerance, and patience along the lines any public-minded responsible civil disobedient hopes to instigate.26
To be sure, Snowden’s critics—including President Obama and British prime minister Cameron—accused him of placing people in harm’s way, if only by increasing the odds of terrorist attacks.27 Yet the evidence in support of this position seems paltry, as many observers and even a U.S. federal judge have pointed out.28 Reasonable observers might disagree about the likely long-term political consequences of Snowden’s actions. Yet all political activity generates unexpected and unforeseeable consequences.29 Similar criticisms were directed against more-or-less universally praised exemplars of civil disobedience. Even King was accused of “inciting” violence because his nonviolent acts would produce a violent backlash from segregationists. The problem with the criticism, however, is that it rendered King culpable for the irresponsibility and violent disposition of his racist opponents. As he countered, “[i]sn’t this like condemning the robbed man because his possession of money precipitated the evil act of robbery?”30
No political actor can be held responsible for all of her act’s long-term consequences, even though she should ponder their likely character and minimize unnecessary harm to others. If Snowden devoted attention to avoiding such harm, as he claims, he probably has met this test. Until governments provide some unambiguous evidence to the contrary, there is no a priori reason to assume Snowden has endangered anyone.
Snowden and Liberal and Republican
Theories of Civil Disobedience
In scholarly debate, both those who provide a liberal gloss on civil disobedience and those seeking to give it a democratic and republican face insist that the legitimacy of civil disobedience is necessarily limited to a special case of injustices. The liberal philosopher John Rawls dubbed such injustices “serious infringements” and “blatant violations” of basic liberal rights.31 More democratic and republican theorists describe these injustices as fundamental threats to the political process, in contrast to mere policy disagreements vis-à-vis governing political majorities.
Under the demanding tests outlined by liberal and republican theorists, Snowden’s actions provide fodder for both sides. Simultaneously, they provide a reminder that scholarly attempts to contrast democratic (or republican) with competing liberal models of civil disobedience only get us so far when applied to real-life examples. In a liberal democratic political context, elements of both perspectives fuse together.
On the one hand, Snowden justifies his acts by what he holds to be sustained attacks on core rights, especially the Fourth and Fifth Amendments to the U.S. Constitution. In sync with the liberal model of civil disobedience, his actions can be interpreted as representing an attempt to counter serious and systemic infringements of basic liberties. Politically defensive in nature, they also follow the liberal model by emanating from an individual, whose voice of conscience demands action regardless of costs or consequences.32
On the other hand, Snowden’s acts fit the republican view, which envisions civil disobedience as a collective undertaking by political actors working in concert with express political purposes.33 As noted, his main goal has always been to ignite public debate, and however solitary he may appear, Snowden’s is hardly the voice of an isolated moral agent unconcerned with public affairs or the common good. Interestingly, his appeals to individual conscience lack the overt religious tones found, for example, in parallel statements from Gandhi and King; his seems to be a secular and political conscience.
In the republican view, civil disobedience’s main function is to challenge political complacency by bringing public attention to issues that may never have been meaningfully deliberated in the first place, or where privileged, vested interests and institutional stasis stymie re-examination of policy. This situation “may occur because the policy was never approved by the democratic sovereign at all but instead arose in some other way, as through a slow and unattended transformation of an initially very different policy.”34
For republicans, the chief dilemma is not that a political majority approved legislation that violates individual rights, as the liberal model suggests. Instead, the needed public debate and exchange perhaps never occurred. Institutional inertia, rather than a legislative decision by a self-conscious political majority, haphazardly drives government action, perhaps tangentially linked to some previous but outdated expression of the popular will. For the republican, civil disobedience is only legitimate when there are pressing reasons for believing that a polity has failed to engage vital issues or when its political institutions and their dominant players have conspired to keep the public from taking a fresh look at existing policy. Solely in settings plagued by far-reaching political apathy and/or institutional inertia is nonviolent lawbreaking a justifiable strategy.
Snowden’s actions arguably pass this test as well. Their open and public character stems from the quest to provoke debate in a context where he judged that mass and elite ignorance about government spying was ubiquitous. His Moscow statement characterizes U.S. surveillance policies as affecting “all of us,” and thus of common and perhaps universal interest. As he anticipated, his revelations proved explosive, chiefly because only a tiny group of national security and political elites were familiar with the scope and scale of NSA activities. Further, the legal foundations for these activities partly consist of judicial rulings on the Fourth Amendment’s application to telephony metadata dating back to 1979,35 well before computers transformed communication and information technology. The “slow and unattended” evolution of such increasingly obsolete rulings into a legal veneer for massive NSA spying raises difficult questions for democratic legitimacy.36
In the June 2013 Guardian conversation, Snowden recalled his frustration following Obama’s 2008 election at the failure to reverse his predecessor’s surveillance policies. Snowden “watched as Obama advanced the very policies that I thought would be reined in,” despite Obama’s promises to pursue major changes in U.S. counterterrorism policy.
Faced with the task of taming government surveillance, the much-touted U.S. system of institutional checks and balances has performed erratically after the 9/11 terrorist attacks.37 Even though President Bush assured the American people his administration only engaged in domestic surveillance when in possession of a judicial warrant, it aggressively initiated warrantless domestic spying. When news of the administration’s illegal actions reached Congress, it responded, but arguably only by providing some of the administration’s more controversial policies with a stronger legislative base and by immunizing telecommunications companies that cooperated with executive branch illegality. For its part, the secret FISC has pretty much given the NSA a free hand, rarely challenging even some of the NSA’s most far-reaching assertions of authority. In Snowden’s view, the FISC has served as a “graveyard of judgment.”38 Rather than reining in executive power, the legislative and judicial branches effectively colluded with the executive branch to condone massive domestic and foreign surveillance wh
ile excusing wrongdoers.39 Nor have attempts by human rights organizations to focus attention on the resulting dangers gained much traction in Washington, D.C.
Observing this troublesome downward spiral at close quarters, Snowden decided that “you can’t wait around for someone else to act. I had been looking for leaders, but I realized that leadership is about being the first to act.”40 He reached this conclusion, however, after political leaders failed at making NSA spying a theme for public discussion.
Snowden has, thus, also satisfied the “last resort” test. Civil disobedience only represents a legitimate option after normal political and legal channels have been exhausted or in situations Rawls characterized as where:
the legal means of redress have proved of no avail. Thus, for example, the existing political parties have shown themselves indifferent to the claims of the minority or have proved unwilling to accommodate them. Attempts to have the laws repealed have been ignored and legal protests and demonstrations have had no success.41
With some justification, Snowden believes that the failure of the U.S. polity to address NSA spying falls into this category. Consequently, he had no choice as a conscientious and public-minded citizen but to leak the ugly facts of NSA spying. What alternatives were available to him? A donation to the American Civil Liberties Union (ACLU) or Human Rights Watch? A letter to his congressional representative, or perhaps to President Obama himself? Or maybe a collegial conversation with his superiors?
Interestingly, Snowden claims to have shared his misgivings with his bosses. But they ignored him, “almost certainly because the agency and its leaders don’t consider these collection programs to be an abuse.”42 In light of the effectively nonexistent legal protections provided to whistleblowing NSA private contractors, the New York Times concluded, “Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence gathering was to expose it to the public.”43
Even those with a more benign assessment of our political system’s operations should recall Rawls’ additional proviso that:
Some cases may be so extreme that there may be no duty to use first only legal means of political opposition. If, for example, the legislature were to enact some outrageous violation of equal liberty, say by forbidding the religion of a weak and defenseless minority, we surely could not expect that sect to oppose the law by normal political procedures.44
To be sure, NSA spying differs in important ways from discriminatory laws against defenseless minorities. Sound arguments, however, buttress the view that unchecked NSA surveillance is proving disturbingly ruinous of fundamental liberties.
Civil Disobedience Without Penalties?
Despite the conventional wisdom that civil disobedients should accept the legal ramifications of their actions, Snowden fled the United States and refused to turn himself in to U.S. authorities. This scenario poses problems for any attempt to interpret his deeds as a legitimate case of civil disobedience. For Gandhi, nonviolence demanded “voluntary submission to the penalty for non-cooperation with evil.”45 King penned a “Letter from a Birmingham Jail,” not “Letter on the Run from a Birmingham Jail.”
Yet, as critical voices in a protracted legal and philosophical debate have posited, the grounds for assenting to punishment as an unavoidable consequence of civil disobedience are perhaps less airtight than typically recognized.46 Snowden’s example, in my view, strengthens this dissenting position. In any event, U.S. officials are obliged to offer clemency to Snowden. The penalties they hope to impose are inappropriate.
Those who insist that civil disobedience entails enduring its legal repercussions offer a potent—yet ultimately unwieldy—brew of principled reasons, along with strategic and tactical reasons. Most fundamentally, they argue that undergoing punishment allows lawbreakers to evince what King described as the “very highest respect for law.”47 By accepting punishment for breaking an unjust law, lawbreakers express their fidelity to the idea of legality, or the rule of law, as well as appreciation for the legitimacy of a legal or constitutional order. In contrast to the criminal or revolutionary, both of whom try to avoid getting caught when violating the law, a responsible civil disobedient anticipates criminal prosecution, its potentially unjust character notwithstanding.
Typically, this argument gets fused with the related notion that civil disobedience must be open or public, which—as we have seen—plays a decisive role in distinguishing it from other varieties of illegality. King, for example, suggested that accepting “the penalty by staying in jail to arouse the conscience of the community” was essential to “openly, lovingly” breaking the law. He juxtaposed this approach to segregationists who torched black churches under the cover of darkness and did everything in their power to avoid prosecution.48
Academic theorists of civil disobedience have defended the punishment requirement in more strategic or tactical terms. Accepting punishment is how lawbreakers provide evidence of their unselfishness and public-mindedness, their moral seriousness, the intensity of their concerns, and their moral and political sincerity.49 On one view, they should neither expect nor seek special treatment because fidelity to the rule of law demands strict nondiscrimination. Because of their commitment to the idea of legality and the overall legitimacy of the existing legal order, it would be inconsistent to expect better treatment than others—including ordinary criminals—who broke the law.50
According to the conventional view, criminal punishment also serves a deterrent function: without its looming specter, the costs of lawbreaking would be cheapened.51 Irresponsible illegality lacking in the requisite moral seriousness might ensue.
This account rests on a rich tradition arguably dating to Plato’s Crito. At closer examination, however, it raises as many questions as it answers. Most immediately, to the degree that the arguments are strategic or tactical in character, they imply that dissenting lawbreakers might follow alternative paths in order to bring about the desired moral and political results.
Exiled to Putin’s Russia, with no likelihood of returning home, has Snowden not provided sufficient evidence of his moral seriousness and public-mindedness? Though he has never appeared in a U.S. courtroom, the open and public character of his actions can hardly be denied. Even absent criminal punishment, his disclosures continue to rivet public attention, generating a worldwide debate about not only U.S. surveillance, but also the moral responsibilities of individuals in an age of unprecedented technological possibilities for state surveillance. Can we be so sure that better, or even equivalent, results would have been achieved if Snowden had remained in the United States and assented to prosecution under the Espionage Act?
As for the thesis that punishment serves a deterrent function, it hardly seems self-evident that Snowden’s example will lead to a dramatic increase in irresponsible and morally intemperate lawbreaking. On the contrary, the world can see what he has sacrificed and that his moral decision came at a high personal cost—even absent criminal punishment—most of us would not willingly bear.
Nor is it clear that previous practitioners of civil disobedience followed this orthodox view of punishment. Thoreau neither advertised his illegal acts nor sought punishment for them; his readers will look in vain for a celebratory description of the penalty meted out to him by his Massachusetts jailers.52 Gandhi accepted the legal repercussions of his acts, but not out of respect for the legitimacy of British colonial law in India, which he despised.53 And when the framework of a legal order is polluted by corrosive forms of secret law and court rulings, as Snowden believes is the case for U.S. law, can we be sure that accepting legal punishment will buttress the rule of law rather than help bury it?
Though rarely mentioned, the core intuition that acceptance of legal penalties is related to respect for the law only makes sense if disobedients can count on criminal proceedings embodying the virtues of the rule of law.54 Evasion of punishment should probably remain the exception to the norm, but if peaceful lawbreakers face
a situation where there is “no right of public trial, and no possibility of using punishment for publicity purposes, or if punishments were made draconian in order to prevent dissenters from publicizing their views,” then evasion could prove justified because it might best guarantee the requisite publicity.55 When criminal proceedings rest on vague and poorly defined legal norms, suffer from excessive politicization that impairs possibility of a fair trial, and mete out draconian sentences, then a conscientious disobedient’s decision to escape is potentially supportive and not destructive of the rule of law.
Unfortunately, as the German jurist Merkel observed, such concerns are pertinent to the Obama administration’s decision to prosecute Snowden under the Espionage Act. This infamous statute’s main accomplishment has been its inadvertent contributions to the creation of twentieth-century U.S. civil liberties movements.56 Since World War I, when it functioned as an “efficient tool for the blanket suppression of antiwar views,” the Espionage Act has allowed the executive branch to clamp down on unwanted dissident voices, in ways often recognized as legally dubious and politically counterproductive.57 As Harold Edgar and Benno Schmidt chronicled, the act is riddled with vague and often incomprehensible language that provides the executive with arbitrary power over a stunning range of activities related to the undefined terrain of “national security.”58 Because the ideal of the rule of law is tied to the quest for legal clarity and consistency, the Espionage Act is inconsonant with it. Not surprisingly, Edgar, Schmidt, and others have argued that it is probably unconstitutional.
In part because of its legal failings, most presidents have been reluctant to enforce the Espionage Act. President Obama, however, has been more aggressive than his predecessors in doing so. Among liberal-minded law professors and civil libertarians, this development has proven contentious. Another prominent whistleblower prosecuted under the Espionage Act, Bradley/Chelsea Manning, is serving a thirty-five-year sentence.
The Snowden Reader Page 13