The problem here goes beyond the Espionage Act’s legal failings. As Snowden is aware, and as the Manning case reminded him, whistleblowers in national security institutions enjoy few legal protections. As civil libertarians and others have noted, the legal status of national security personnel is precarious at best, and the area most relevant to Snowden’s case, basic rule of law virtues, remains underdeveloped.59 And, just in case any ambiguity remained, Attorney General Holder made it clear the U.S. government considers Snowden guilty and would fight for him to receive at least a thirty-year sentence or, if possible, life imprisonment. Is it any wonder Snowden decided his chances of a fair trial in the United States were close to nil?60
Pushing back against the Obama administration’s hard line, major voices in the United States—including the New York Times editorial staff—have called on Obama to encourage Snowden to return home in exchange for clemency or amnesty.61 The debate on civil disobedience suggests some pressing reasons why this approach would represent a humane and intellectually sound course of action.
All legal systems—and especially the U.S. system—provide for leniency in the law’s application. Prosecutors and judges allow plea bargaining, reduction of charges, or mitigation of penalties under special circumstances (as when an offender is young, lives in extreme poverty, or in other special circumstances).62 The orthodox view that disobedients should not be treated differently from ordinary criminals obscures that they are different. Snowden did not break the law for private gain or to aid foreign terrorists, but instead to bring violations of the law to the attention of his compatriots in order to generate public debate. The Obama administration’s decision to enforce the Espionage Act against him as it would against “ordinary” spies constitutes a spurious application of legal generality incongruent with basic legal and constitutional ideals.
The view that “the law is the law”—and that Snowden’s acts require strict prosecution—also downplays that he explained why his actions were required by constitutional and international law. Obviously, the Obama administration does not share Snowden’s legal views, but many others in the United States and elsewhere do, in part because he has persuaded them.
There are sound reasons why reasonable people disagree about how state surveillance is best regulated by the U.S. Constitution and international law. We face a situation where “the law is uncertain, in the sense that a plausible case can be made on both sides.”63 As legal philosopher Ronald Dworkin wrote in a similar context, “then a citizen who follows his own judgment is not behaving unfairly.” Liberal democracy should not only permit but also encourage citizens to cultivate their judgments about complex constitutional issues. Fidelity to the law cannot be equated with blind loyalty to an official’s or institution’s legal views. Thus, with respect to a civil disobedient, “our government has a special responsibility to try to protect him, and soften his predicament, whenever it can do so without great damage to other policies.” Of course, no government can guarantee immunity to those who violate the law in the name of conscience. “But it does follow,” Dworkin argued, “that when the practical reasons for prosecuting are relatively weak in a particular case, or can be met in other ways, the path of fairness lies in tolerance.”64
After revealing that NSA officials regularly broke the law and then succeeding in igniting a much-needed political debate about the modern surveillance state, Snowden deserves better than Russian exile or thirty years in a U.S. prison.
Civil Disobedience in a Global Age
One of the most striking traits of Snowden’s Moscow statement is how he acknowledges the global parameters of contemporary law and politics. The statement appeals to the U.S. Constitution, the Universal Declaration of Human Rights, the Law of Nations, and the international legal principle of non-refoulement, which prohibits countries from rendering victims of persecution to their persecutors. According to Snowden, Attorney General Holder’s attempt to force Hong Kong to return him to the United States in June 2013 violated international law. He even references the Nuremberg war crimes tribunal and its ruling that:
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.
Snowden not only believes that he acted in accordance with the Nuremberg principles, but that his actions have been conducive to international peace.
The Moscow statement addresses not just U.S. citizens but a global public: “I asked the world for justice.” Snowden lauds the governments and peoples of Russia, Venezuela, Bolivia, Nicaragua, and Ecuador—each of which sought to grant him asylum before facing a backlash from the United States—for having “earned the respect of the world.” Snowden has mobilized not only specific national publics but also an emerging worldwide public in support of his cause.
From one perspective, this strategy is familiar from the annals of modern civil disobedience. Gandhi and King sought to influence foreign governments and shape global opinion, while appealing to supranational norms and moral values. During the Vietnam War, politically motivated lawbreakers in the antiwar movement similarly described the Nuremberg trials as offering a basis for a “higher” law they envisioned as superordinate to U.S. law.65
Yet Snowden’s statement evinces some significant novelty. Even if earlier civil disobedients hinted at our increasingly global condition, Snowden takes it as a given, as his appeal to international law attests. Revealingly, Snowden’s actions not only have had worldwide political ramifications, but he is also more attuned than his historical predecessors to prominent global political and legal innovations, some of which offer a launching pad for checking unjust state action. International human rights lawyers risk conflating their normative wishes with political realities when describing international human rights law as “humanity’s law,” where human security trumps state sovereignty or national security.66 By the same token, it would be equally misleading to obfuscate how supranational political and legal institutions—including the human rights regime—are core pillars of the evolving global order. Even if the global system remains messy, contradictory, too often driven by power politics, and faced with tasks suggesting its obsolescence, its main features rest on cosmopolitan moral and political aspirations.67
This observation points to an alternative reading of Snowden’s actions and whether civil disobedients should submit to criminal prosecution. Crucially, he has never claimed that he should be immune from punishment. Instead, he has accused the U.S. government of trying to deny him a fair trial. He has insisted that his actions are consonant with international law, whereas the United States has abrogated it in spying on foreign countries and violating his rights in seeking asylum. As Snowden understands, he has no chance of validating the legality of his position given the power inequalities plaguing the global order. We still lack a global legal system in which Snowden and others could defend their legal claims and where they might have a reasonable chance of defeating major global players in a court of law.
Given that lacuna, Snowden perhaps concluded that his only option was to seek asylum. Yet his actions point to an important constructive political task. We need to build a stronger global legal and human rights system, where the rights of those who take on the great powers garner real protection. If such a system existed and was able to secure the requisite fairness and impartiality likely to be missing from U.S. legal proceedings under the Espionage Act, Snowden could appear before it to make his case and be subject to applicable penalties should he lose.
We lack a global legal system and none seems likely to emerge in the near future. The great powers prefer the status quo. In the meantime, we are forced to accept makeshift solutions, recognizing their political necessity and unsatisfactory normative character. Americans should demand the U.S. government treat Snowden with clemency. If the United States fails to do the right thing, Snowden should have somewhere to go besides P
utin’s Russia. Politicians in other countries who tapped into public anger about U.S. spying need to back up their rhetoric with deeds. His contributions to the democracy and the rule of law, in striking juxtaposition to those who have tried to silence him, remain auspicious.
Notes
1. The evidence suggests President Putin is envious of U.S. surveillance capacities, and the predictable result will be an arms race in these capacities, as in so many other areas of the U.S.-Russia rivalry.
2. Part II.A includes this statement by Snowden.
3. In fact, an unnamed editor chose the term for a posthumously published version (1866) of Thoreau’s famous (1849) essay, “Resistance to Civil Government,” which was retitled “Civil Disobedience.” In the aftermath of the U.S. Civil War, the original title probably seemed too incendiary! Lewis Perry, Civil Disobedience: An American Tradition (New Haven, Conn.: Yale University Press, 2013), 65.
4. Bidyut Chakrabarty, Confluence of Thought: Mahatma Gandhi and Martin Luther King (New York: Oxford University Press, 2013).
5. The Hamburg law professor Reinhard Merkel defended Snowden on the basis of liberal theories of civil disobedience, including that of John Rawls. David Hugendick, “Snowdens Strafe wäre existenzvernichtend” [Interview with Reinhard Merkel], Die Zeit, June 27, 2013, http://www.zeit.de/kultur/2013-06/Interview-Reinhard-Merkel-Moral.
6. John Rawls, “Definition and Justification of Civil Disobedience,” in Civil Disobedience in Focus, ed. Hugo Adam Bedau, 104 (New York: Routledge, 1991).
7. Quoted in Glenn Greenwald, Ewen MacAskill, and Laura Poitras, “Edward Snowden: The Whistleblower Behind the NSA Surveillance Revelations,” Guardian, June 9, 2013, http://www.theguardian.com/world/2013/jun/09/edward-snowden-nsa-whistleblower-surveillance.
8. Barton Gellman, “Edward Snowden, After Months of NSA Revelations, Says His Mission’s Accomplished,” Washington Post, December 23, 2013, http://www.washingtonpost.com/world/national-security/edward-snowden-after-months-of-nsa-revelations-says-his-missions-accomplished/2013/12/23/49fc36de-6c1c-11e3-a523-fe73f0ff6b8d_story.html.
9. Drake was a high-level NSA official who believed the NSA was committing crimes and who leaked information to the media. He was charged under the Espionage Act. In the aftermath of a May 22, 2011, 60 Minutes report on his case, the Obama administration dropped most of the charges. Snowden appears to have paid close attention to Drake’s case and the Obama administration’s attempt to prosecute him under the Espionage Act. Luke Harding, The Snowden Files (New York: Vintage, 2014), 51–52.
10. Bradley/Chelsea Manning was convicted in 2013 by a military court of various criminal charges, including violations of the Espionage Act, for his role in disseminating classified documents in what became known as the Wikileaks affair.
11. Hugo Adam Bedau, “Civil Disobedience and Personal Responsibility for Injustice,” in Civil Disobedience in Focus, ed. Hugo Adam Bedau, 50 (New York: Routledge, 1991).
12. Quoted in Gellman, “Edward Snowden, After Months of NSA Revelations.”
13. Quoted in Greenwald, MacAskill, and Poitras, “Edward Snowden.”
14. This critical assessment of NSA policy is shared by former vice president Al Gore and a federal judge, Richard Leon, appointed by President George W. Bush. See Klayman v. Obama, 957 F.Supp.2d 1 (D.D.C. 2013). Part II.B contains excerpts from Judge Leon’s decision in Klayman.
15. Gellman, “Edward Snowden, After Months of NSA Revelations.”
16. Quoted in Greenwald, MacAskill, and Poitras, “Edward Snowden.”
17. Carol D. Leonnig, “Court: Ability to Police U.S. Spying Limited,” Washington Post, August 15, 2013, http://www.washingtonpost.com/politics/court-ability-to-police-us-spying-program-limited/2013/08/15/4a8c8c44-05cd-11e3-a07f-49ddc7417125_story.html; Charles Savage and Scott Shane, “Secret Court Rebuked N.S.A. on Surveillance,” New York Times, August 21, 2013, http://www.nytimes.com/2013/08/22/us/2011-ruling-found-an-nsa-program-unconstitutional.html?pagewanted=all&_r=0.
18. Statements by civil libertarian and human rights organizations echo similar concerns.
19. Suspected of transporting Snowden to Bolivia, on July 3, 2013, a plane carrying the Bolivian president was forced to land in Austria, allegedly because of U.S. political pressure.
20. Lon Fuller, The Morality of Law (New Haven, Conn.: Yale University Press, 1964), 40–41, 157–59.
21. Norberto Bobbio, The Future of Democracy, trans. Robert Griffin (Minneapolis: University of Minnesota Press, 1987), 79–97.
22. Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship (New York: Simon & Schuster, 1970), 20.
23. On Face the Nation (June 16, 2013), Bob Schieffer of CBS called Snowden a narcissist. Jeffrey Toobin did so in “Edward Snowden Is No Hero,” New Yorker, June 10, 2013, http://www.newyorker.com/online/blogs/comment/2013/06/edward-snowden-nsa-leaker-is-no-hero.html. Other commentators noted Snowden has endorsed right-leaning, antistatist “libertarian” views. Sean Wilentz, “Operation Mayhem,” New Republic, February 3, 2014, 14–25; Harding, The Snowden Files.
24. Quoted in Greenwald, MacAskill, and Poitras, “Edward Snowden.”
25. Rawls, “Definition and Justification of Civil Disobedience,” 106.
26. Hugo Adam Bedau, “Introduction,” in Civil Disobedience in Focus, ed. Hugo Adam Bedau, 8 (New York: Routledge, 1991).
27. Snowden’s leaks show that the Government Communications Headquarters (GCHQ), a British intelligence agency, engaged in spying and has served as the NSA’s junior partner. Speaking before Parliament on October 15, 2013, Prime Minister Cameron criticized the Guardian for publishing Snowden’s story, accusing its writers and Snowden of endangering national security and handing “the advantage to the terrorists.” The Guardian has been subjected to intrusive government searches. Alan Rusbridger, “The Snowden Leaks and the Public,” New York Review, November 21, 2013, 31–34. In an interview, Obama accused Snowden of “putting our people at risk.” David Remnick, “Going the Distance: On and Off the Road with Barack Obama,” New Yorker, January 27, 2014, 59.
28. Klayman v. Obama.
29. On the irreversibility and unpredictability of political action, see Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 175–247, esp. 236–47.
30. Martin Luther King, “Letter from a Birmingham Jail,” in Civil Disobedience in Focus, ed. Hugo Adam Bedau, 76 (New York: Routledge, 1991). As King added, “society must protect the robbed and punish the robber.”
31. Rawls, “Definition and Justification of Civil Disobedience,” 108–9.
32. This description of competing liberal and republican models draws on Jean L. Cohen and Andrew Arato, Civil Society and Political Theory (Cambridge, Mass.: MIT Press, 1992), 564–604. Representatives of the liberal position include Rawls and Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977), 206–22.
33. A powerful statement of this view was formulated by Hannah Arendt, Crises of the Republic (New York: Harcourt Brace and Jovanovich, 1973), 49–102. A republican theory of civil disobedience is also developed in Daniel Markovits, “Democratic Disobedience,” Yale Law Journal 114 (2005): 1897–1952. Elements of Markovits’ theory overlap with a democratic-deliberative account inspired by Jürgen Habermas by Will Smith, “Civil Disobedience and the Public Sphere,” Journal of Political Philosophy 19, no. 2 (2011): 145–66.
34. Markovits, “Democratic Disobedience,” 1933.
35. See Smith v. Maryland, 442 U.S. 735 (1979).
36. Ryan Lizza, “State of Deception: Why Won’t the President Rein in the Intelligence Community?” New Yorker, December 16, 2013, 48–61.
37. For a contrary view, see Jack Goldsmith, Power and Constraint: The Accountable Presidency After 9/11 (New York: Norton, 2012). For a critical response to Goldsmith, see my “Obama’s War on Terror,” Constitutional Commentary 28 (Spring 2013): 519–38.
38. Quoted in Gellman, “Edward Snowden, After Months of NSA Revelation
s.”
39. Jonathan Schell, “The Surveillance Net,” The Nation, July 8/15, 2013, 3–6.
40. Quoted in Greenwald, MacAskill, and Poitras, “Edward Snowden.”
41. Rawls, “Definition and Justification of Civil Disobedience,” 110.
42. “Edward Snowden, Whistle-Blower: Considering the Value of His Leaks, He Should be Offered Clemency or a Plea Bargain,” New York Times, January 2, 2014, A18. The NSA has disputed this claim.
43. Ibid.
44. Rawls, “Definition and Justification of Civil Disobedience,” 110.
45. Mahatma Gandhi, “Nonviolence,” in Civil Disobedience and Violence, ed. Jeffrie G. Murphy, 93 (Belmont, Calif.: Wadsworth, 1971).
46. See the debate between David Lefkowitz, “On a Moral Right to Civil Disobedience,” Ethics 117, no. 2 (2007): 202–33, and Kimberley Brownlee, “Penalizing Public Disobedience,” Ethics 118, no. 4 (2008): 711–16. Its key insight is that criminal punishment contains elements of moral disapprobation inappropriate to the legal treatment of civil disobedients.
47. King, “Letter from a Birmingham Jail,” 74. The idea that the acceptance of a legal penalty demonstrates respect for the law was endorsed by many academics. See Bedau, “Introduction,” 8; Carl Cohen, “Civil Disobedience and the Law,” Rutgers Law Review 21, no. 1 (1966): 5–7; and Rawls, “Definition and Justification of Civil Disobedience,” 106–7. For a critical discussion, see Gene G. James, “The Orthodox Theory of Civil Disobedience,” Social Theory and Practice 2, no. 4 (1973): 475–98.
48. King, “Letter from a Birmingham Jail,” 74.
49. Bedau, “Introduction,” 8; Cohen, “Civil Disobedience and the Law,” 5–7; Rawls, “Definition and Justification of Civil Disobedience,” 106–7; Smith, “Civil Disobedience and the Public Sphere,” 161–63.
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