In a previous column, I criticized the work of the White House Task Force on the NSA surveillance program as stacked with Obama loyalists with a majority of surveillance hawks. Later, one of the five members came out to say that the reforms were not significant and that he believes the program should be actually expanded not limited. Now, the only member without prior positions in the Administration and national security ties, University of Chicago Law School Professor Geoffrey Stone, has declared that the NSA is not a rogue agency and that Edward Snowden is a criminal.
I have great respect for Professor Stone as an academic but his comments reaffirmed criticism of the make-up of the panel as selected by the White House to offer “reforms” while protecting the underlying program.
Stone insists that NSA is not “some kind of a rogue agency” and that it should not be required to justify the program on the basis of whether it has thwarted any attack or conspiracy. Rather, like some many in the Obama and Bush Administration, Stone measured the program against the most extreme possible attack to argue that it is ipso facto necessary: “It is a mistake to ask, at least arguably a mistake to ask if any particular program . . . thwarted terrorist attacks, because we are not dealing with little things. It is possible that we are talking about a nuclear, a chemical, biological attack where tens of thousands of people’s lives could be at risk. If you thwart one every 20 years, you are doing pretty good. So the fact that hasn’t happened does not prove the program was worthless.” Well that would be an argument that would allow virtually any program with sweeping warrantless searches.
He reserved his harshest words for Snowden, dismissing the “positive consequences” of his disclosure while noting that he is still a criminal. Stone insisted
“we have a very strong legal principle in our system, that you don’t get to commit a crime because you have a good justification for doing so. . . .
Therefore, any kind of a notion that someone is not a criminal when they do this opens the door to other people saying, ‘Well, gee, I can do this and be a hero and I won’t even go to jail for it.’ I think you just don’t want that. . . . Basically, my view is I think Snowden is a criminal.”
What is missing is the fact that most whistleblowers released confidential or classified information. The government routinely classifies embarrassing or abusive programs to prevent the public from seeing the information. By Stone’s measure, historical figures like Daniel Ellsberg would be a simple criminal. The whole concept of a whistleblower is that they release information that would not have been made public. The Pentagon Papers are virtually indistinguishable on that basis from Snowden’s disclosures. Moreover, you have a federal judge who has declared the underlying program unconstitutional — even though Stone and his task force colleagues accepted the program as demonstrably legal. Also, as noted in the previous column,, this ignores the Administration refusing to investigate let alone prosecute Clapper for perjury, CIA officials for torture, or intelligence officials for admitted destruction of evidence on torture. It is simply all part of America’s Animal Farm. Finally, you have the White House and the Congress admitting abuses disclosed by Snowden and promising reforms. This is why I recently wrote a column on the relatively strong basis for a pardon for Snowden.
Stone’s comments shows the continued refusal of Administration allies to acknowledge that the standard applied to Snowden would have led to the incarceration of celebrated figures like Ellsberg and others who helped end abuses in history.