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Tuesday, June 25, 2013

To Catch a Whistle-Blower

Should the United States Prosecute Edward Snowden?

Last week, U.S. officials asked the Hong Kong government to arrest Edward Snowden, whose whereabouts are currently unknown, though he was last reported to have arrived in Moscow en route to Cuba and Venezuela. The Obama administration also charged him with “unauthorized communication of national defense information” and “willful communication of classified communications intelligence information to an unauthorized person” under the infamous Espionage Act. The charges were filed June 14 and unsealed last Friday. 
Of the nine people who have ever been charged under the World War I-era Espionage Act, The Obama administration has prosecuted seven of them. 
The call for arrest comes two weeks after Glenn Greenwald at The Guardian revealed details about Prism, a National Security Agency (NSA) surveillance program that collects private data. NSA contract employee Edward Snowden admitted to being the source. Snowden fled to Hong Kong after blowing the whistle on the NSA, and in the interim, lawmakers have been calling for his head. But is prosecuting Snowden a good idea? 
The top republican on the Senate’s intelligence committee wants Snowden to “look an American jury in the eye” and explain why he disclosed details of secret programs.” Senator Lindsey Graham wants to see Snowden prosecuted. “Bring him to justice, and let a prosecutor make that decision, not a politician,” he said.
But prosecuting Edward Snowden will have consequences. First, the administration should be wary that he could end up a martyr. However, if Bradley Manning’s martyrdom is any indication, even widespread public support for the victim and disgust at the government have very few actual effects on policy or policymakers.
The congressmen and women who want to prosecute Snowden justify it on the grounds that his revelations jeopardize national security. 
But FEE distinguished fellow Jeffrey Tucker challenges that argument:
By the way, here is an obvious and quick answer to the NSA’s claim that it must harvest as much data as possible as a way to stop terrorism and protect the American way of life from dangerous criminals. If you are a dangerous criminal or terrorist plotting an attack and you are not entirely stupid, it is very likely that you would choose cryptographic communications over commercial services.
Hence, the very communications that the NSA supposedly seeks are the ones that it cannot get. What, then, is the point behind the huge data centers and the invasions on everyone else’s liberty? The purpose is to control the rest of us and shore up its power. You don’t have to be a conspiracy theorist to accept that truth. You need only have your eyes open.
In other words, terrorists sophisticated enough to cause damage use encryption. Citizens use Yahoo. 
Officials routinely abuse top-secret classification. When everything they do, good or bad, can be covered up with a top-secret label, accountability is hard to come by. In this environment, the oversight problem can really only be solved by protecting whistle-blowers. Edward Snowden might have broken the law when he blew the whistle, but his revelation of things that never should have been secret calls to mind other famous acts of civil disobedience, never mind the justice of clandestine violations of civil rights.
If Snowden is prosecuted, it would have a chilling effect on other whistle-blowers. Fewer whistle-blowers means more scope for the state to operate with impunity.
The question of whether to prosecute cannot be answered without a full look at the situation in which we’re all operating when it comes to surveillance. Government spying is happening right now with precious little accountability. Even Congress is routinely denied information or lied to about who is getting spied on and why. For instance, the ACLU and Amnesty International sued the government because they suspected they were being wiretapped without a warrant. The suit was unsuccessful: Since they could not find out whether they were being wiretapped, they could not prove harm.
So not only can the government wiretap Americans conversing with people overseas, it doesn't even have to reveal whether you’re a target. This state of affairs makes it impossible for targets of likely unconstitutional surveillance to prove harm. How in the world can lawyers and citizens ensure our Fourth Amendment rights aren’t being violated when we aren’t allowed to know who’s being spied on and how?
No one has any idea whether various NSA programs are legal because the Obama administration, citing national security concerns, has successfully kept the applicable laws from challenge in court, despite a number of attempts. It does appear the NSA has lied to Congress about how the programs operate.
When government agencies can cover what they’re doing with the guise of national security, they end up using that power for the purpose of job security and, of course, for growing their power. For instance, video of American soldiers shooting and killing Reuters journalists was kept classified despite multiple Freedom of Information Act requests—until Wikileaks released it. Without Wikileaks, the American people might never have known that the United States was secretly bombing Yemen. As The New York Times reports, “In the past decade, whistle-blowers have exposed everything from the Bush administration’s efforts to censor reports on climate change to the Food and Drug Administration’s failure to stop the sale of unsafe drugs like Vioxx.”
So far, the Obama administration has prosecuted more whistle-blowers under the Espionage Act than all previous administrations combined. And now President Obama is actively trying to make it easier for government agencies to fire employees for whistle-blowing. When you have an administration that is allowing agencies to operate without congressional oversight, with no transparency and no accountability, whistle-blowers are your last hope for revealing abuse. 
Prosecuting Edward Snowden would absolutely prove that this administration values protecting agencies’ power to operate in secrecy over the right of Congress and the American people to ensure our constitutional rights are being protected.

  • Cathy Reisenwitz is a D.C.-based writer. She is Editor-in-Chief of Sex and the State and her writing has appeared in The Week, Forbes, the Chicago Tribune, The Daily Beast, VICE Motherboard, Reason magazine, Talking Points Memo and other publications.