Below is my column that ran this week in Al Jazerra on the one-year anniversary of the Snowden scandal. It is hard to believe that it has only been one year given the number of investigations, promised reforms, and articles. I previously wrote a piece explaining why a pardon or commutation would not be inconsistent with prior cases, but that still seems unlikely. While I disagree with Snowden’s release of classified information that could harm the country, I do believe that his case is more nuanced than his critics have suggested. What is fascinating is that, after a year, we appear no closer to a consensus on what Snowden represents.
Edward Snowden: Whistleblower or traitor?
It is hard to imagine that just one year ago, Edward Snowden famously walked away. He was a low-level employee of Dell contractor at a nondescript National Security Agency site. A non-entity by design. Just one of hundreds of thousands of people working in the burgeoning national security complex in the United States – the ultimate faceless cog. Now, one year later, he is a household name but the world remains divided on who Edward Snowden is. Is he a whistleblower or a traitor? It turns out that question is often answered not by how people view Snowden but how they view their government.
Snowden the whistleblower
For many around the world, and a growing number of Americans, Snowden is a hero and whistleblower who put his own freedom at stake to reveal shocking abuses by the US intelligence agencies. Much of what Snowden has done certainly looks like a whistleblower. First, he does not appear to have sought money for his disclosures. Indeed, he appears to have thought more about what he was taking than where he was taking it.
Secondly, and most importantly, is the breathtaking disclosures that he made. Consider a few of the more important disclosures:
Secret orders under which the NSA was seizing phone and text records of virtually every citizen in the United States. The scope and lack of protection in the program was described by a federal judge as “almost Orwellian”.Surveillance of world leaders, including some of our closest allies like German Chancellor Angela Merkel. At least 122 world leaders were intercepted by the United States.The forced cooperation of US telecommunication companies to turn over data on every US citizen under programmes like PRISM.Programmes like XKeyscore to search “nearly everything a user does on the Internet” through data it intercepts across the world.The tapping of fiber optic cables by British spy agency, the Government Communications Headquarters (GCHQ) in conjunction with the NSA.The interception of millions of calls in foreign countries, including every single call in places like Afghanistan.
What is most striking is that in the wake of these disclosures, the Obama Administration first denied the allegations. National Intelligence Director James R Clapper Jr not only denied the existence of the programme before the Senate but he later explained that his testimony was “the least untrue”statement that he could make. Of course, that would still make it untrue, but he has never been investigated, let alone prosecuted.
While President Barack Obama would later insist that Snowden did not influence the various reforms implemented after his disclosure, few people believe that claim. There is no question that Snowden succeeded in forcing multiple task force investigations and a series of changes, including the claimed cessation of some aspects of these programmes.
Snowden the traitor
What so many people around the world admire about Snowden is precisely what makes him such a hated figure within government. He broke the rules and worse yet, embarrassed some of the most powerful leaders in Washington. He obviously broke the law in removing and disclosing classified information – material potentially harmful to the security of the United States.
The anger over Snowden clearly goes beyond the act itself however. For many of Washington’s elite, Snowden is as baffling as some alien from another planet. These are people who spent their lives playing by the rules in a system controlled by a duopoly of power. With two parties controlling the system, there is little that happens in Washington that is not predictable and often controlled. The reactions of former Secretary of State Hillary Clinton and current Secretary of State John Kerry are particularly illustrative.
Clinton came off as a classic passive aggressive – expressing utter bewilderment over Snowden: “I was puzzled because we have all these protections for whistleblowers. If he were concerned and wanted to be part of the American debate, he could have been.”
Really, how? I represented the prior whistleblower who first revealed aspects of this programme years before Snowden. As I have testified in Congress, the whistleblower system referred to by Clinton is a colossal joke.
Firstly, there are exceptions under the whistleblower laws for national security information so Snowden could not use those protections. Secondly, the House and Senate oversight committees are viewed as the place that whistleblowers go to get arrested. There is a revolving door of staff going back and forth to the intelligence agencies. The only “debate” Snowden would have been part of would have been how best to terminate him in the shortest period of time.
Kerry appears ready to give him an “attaboy” on his way to solitary confinement to cut off virtually any contact with the outside world. I have great faith and love for our legal system, but national security law has become increasingly draconian and outcome determinative due to various changes in the last decade. This administration has continued the use of secret legal opinions and secret evidence in cases. The agencies continue to classify information to prevent the disclosure of potentially embarrassing or conflicting material.
Obama has refused to close tribunal proceedings and reserves the right to determine whether people go to real courts or the widely ridiculed tribunal proceedings. Even with a federal trial, Snowden would be placed under Special Administrative Measures (SAMs) to cut off any outside contact and impose limitations on even his cleared counsel in speaking with him. At trial, federal judges are increasingly barring arguments from defendants as “immaterial” even when those arguments are the real reason for their actions.
So there you have it: hero or traitor. Take your pick. What is clear is that Snowden pulled back the curtain on new reality of living within a fishbowl of constant surveillance. People clearly don’t like it, even if they don’t like Snowden. They are left however with the same sense of frustration and isolation when it comes to their government. Snowden stepped outside of a system that many Americans now view as impenetrable and unchanging. Whatever he may be, Snowden remains fascinating precisely because he proved to be the malfunctioning cog, the one who walked away.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and has handled national security cases in federal court.
Al Jazeera: June 9, 2014