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July 7, 2013
Jul 7, 2013
12 Min read time
Editors' Note: Read Rahul Sagar's response to Archon Fung.
Every democracy needs people like Edward Snowden, Thomas Drake, and Daniel Ellsberg. But not too many. A central challenge is to sustain democratic institutions that produce the appropriate measure of whistle-blowing. The debacle surrounding Snowden’s disclosures of NSA telephony and Internet surveillance and his subsequent flight from the American security apparatus show just how broken several of our major institutions are. We should fix those institutions to ensure that future whistle-blowers contribute to the strength of American democracy and to minimize the harms that come to it.
We will always need whistle-blowers because democratic institutions cannot be perfect. Inherent in the nature of discretionary power is that politicians and policy makers inevitably act—sometimes legally and sometimes not—in ways are that are unjust or abuse the public’s trust. In the face of such wrong, each citizen must come to his or her own considered judgment about whether a law (that black people must sit at the back of the bus), a policy (to keep secret deliberations that the country is engaged in a war that it cannot win), or an order (to abuse military prisoners) is so wrong that she should break the law or otherwise disobey authority to bring public attention.
The philosopher John Rawls wrote in A Theory of Justice that:
In a democratic society, each citizen is responsible for his interpretation of the principles of justice and his conduct in light of them. . . . The final court of appeal is not the court, nor the executive, nor the legislature, but the electorate as a whole. The civilly disobedient appeal in a special way to this body.
In the final instance, we cannot count on the law, judges, Congress, or the president to get it right. The buck stops with individual citizens. That is the lesson of Nuremburg, the Milgram experiments, and the Pentagon Papers.
When whistle-blowers and leaders set the bar of wrongdoing too low, they disrespect the rule of law, degrade democracy, and harm the citizens in it. Even democracies need to keep some matters secret for the sake of privacy, candor, or security. Whistle-blowers are themselves fallible judges of when authorities have gone too far.
But when the bar is too high, serious injustices and abuses of power remain hidden in dark corners, uncorrected by the bright light of public scrutiny because those who would speak out are afraid or cannot find a willing ear. Or, they may be driven to take their grievances outside of their society altogether.
The ways in which Snowden took his grievances about American democracy to Guardian columnist Glenn Greenwald, then fled to Hong Kong, now to Russia, and perhaps to Latin America in the future, show just how broken the institutions governing the national security debate and whistle-blowing are.
Commentators such as David Brooks and Matt Miller have criticized 30-year-old Snowden for the arrogance of thinking that he, and he alone, could judge whether the materials he possessed should be publicly released. Surely it would have been preferable for him to engage with more experienced colleagues who would have been better positioned to understand the full practical and ethical dimensions of NSA surveillance practices. It would have been better to try to work within the system rather than jump outside of it.
What would working within the system have looked like? Could he have approached his supervisors at Booz, Allen, Hamilton? The company probably regards its role as fulfilling contractual obligations rather than making public policy. Mike McConnell, a vice chairman of the company who has led its digital security strategies, directed the NSA while he served in the Navy and later served as Director of National Intelligence under the George W. Bush administration. How about authorities at the NSA or elsewhere in the executive branch? He might have found it difficult to find a sympathetic ear among these champions of the program.
Congress, in its institutional role as a countervailing power to the executive branch, seems more promising. But it turns out that the “system” of legislative debate, executive action, and national security judgments had already foreclosed the possibility of a broader public deliberation.
We know this because two U.S. Senators—Ron Wyden (D - OR) and Mark Udall (D - CO)—had been briefed on these NSA surveillance programs, believed that the administration’s interpretation of the legality of these programs relied on secret law that differed from the public understanding of what surveillance laws allowed, and very much wanted a broader debate on the legality and desirability of these programs. They said so in a series of letters to Attorney General Eric Holder. In a March 15, 2012 letter, the Senators wrote:
We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. [emphasis in original]
With uncanny foresight, the two senators predicted the Snowden debacle in their September 21, 2011 letter to the Attorney General:
Americans will eventually and inevitably come to learn about the gap between the public’s understanding of government surveillance authorities and the official classified interpretation of these authorities. We believe that the best way to avoid a negative public reaction and an erosion of confidence in US intelligence agencies is to initiate an informed public debate about these authorities today.
They were unsuccessful in persuading the administration to release the information necessary for that debate. Indeed, Udall said that he “did everything short of leaking classified information.”
The pre-Snowden surveillance debate denied American citizens the information they needed to form their own judgments about whether their government acted properly, because the character and scope of the program were kept secret. In many security and law enforcement matters, there are very good reasons to keep details hidden. But it is remarkable that in the current system of law and policy, legislators, the executive branch, and the courts have somehow concluded that Americans should not know the general contours of these programs—say, down to the fifth order of magnitude its size—or, as Noah Feldman points out, even the general legal reasons justifying these determinations.
From a broader perspective, the democratic “system” includes not just the branches of government, but also the institutions of media and investigative journalism whose critical democratic function is to understand government’s activities and report them to the public at large.
While Daniel Ellsberg went to the New York Times with the Pentagon Papers, Snowden went first not to an American newspaper, but to Glen Greenwald, an American living in Brazil who writes for the London-based Guardian. Greenwald’s prominence as an acerbic critic of American foreign policy no doubt attracted Snowden.
If whistle-blowers are forced to go to foreign press, American democracy loses.
It is also likely that he thought that Guardian reporters would be more willing to be critical of the U.S. government than American newspapers.
In their 1988 book Manufacturing Consent, Noam Chomsky and Edward Herman argue that American news media are systematically biased against reporting stories that are critical of the U.S. government and its foreign policy. This systematic bias comes from, among other factors, the desire of journalists to maintain access to official sources and broader nationalist ideologies that many journalists share with political officials.
Several Harvard University students produced a fascinating study of reporting on the practice of water boarding by major U.S. newspapers that illustrates the Chomsky-Herman thesis. They examined coverage of waterboarding from 1930–2008 by the New York Times, Los Angeles Times, and Wall Street Journal. They found that these newspapers almost always identified waterboarding as a form of torture between 1930–2004, when the stories reported on other governments conducting the practice. Over that period, the New York Times characterized it as torture in 44 out of 54 articles and the Los Angeles Times did so in 26 of 27 articles. However, after the story broke in 2004 that US agencies practiced waterboarding, these newspapers “almost never referred to waterboarding as torture.” The New York Times associated waterboarding with torture in just 2 of 143 (1.4 percent) articles and the Los Angeles Times in 3 of 63 (4.8 percent) pieces published between 2004 and 2008.
John Cassidy has already begun tallying up the pro- versus anti- news and editorial coverage of Snowden, and has found predominantly negative coverage in the U.S. press. It’s still early in the life of this story; it will be interesting to see in a few months whether differences in bias of coverage of the Snowden story between U.S. and foreign media bears out the Chomsky-Herman thesis and whether Snowden made a smart choice in going to the Guardian.
Critics also contend that the Obama administration’s investigation of reporters further diminishes the democratic capacity of news media to check potentially abusive government action. As has been widely reported, the U.S. Justice Department sought and obtained court orders to search phone and email records of reporters from the Associated Press and Fox News in their investigations of national security leaks. Politico reported that Justice Department prosecutors obtained phone, credit card, and bank records of New York Times reporter James Risen in another national security investigation. The AP Chief Executive and President Gary Pruitt argues that such practices have a chilling effect on national security and government reporting. Pruitt is worried about the reluctance of sources, but we should worry about the intimidation of journalists as well.
If these forces drive whistle-blowers to foreign press, American democracy loses on two counts. First, a vigorous press that holds government accountable through investigation and public information is a critical component of a democratic system. If citizens who have knowledge of government abuses can no longer go to our press to tell the People, our system of democracy thereby functions less well.
Second, the consequences of whistle-blowing and leaking may become more harmful without the intermediary role of the U.S. press. Ellsberg, Manning, and Snowden had access to a variety of sensitive information. Only part of what they possess should be public—the part that brings harm to light or informs important public debates. The other portion should remain secret because revealing it would produce little public value and might harm individuals (informants, agents) or set back legitimate diplomatic or security operations. Media organizations such as the New York Times and the Washington Post operate as information intermediaries and helpful filters when they review secret material and consult with the U.S. government in order to publish that which informs democratic debate but refrain from publishing stories that harm our democracy. Foreign news organizations may lack the motivation, expertise, or relationships needed to vet such information well.
Whistle-blowers and leakers face a high, but ultimately rebuttable, presumption that the secrets they have promised to keep should remain secret. When they have convinced themselves that disclosing secrets is justified, they have an obligation to answer to democratic society for the oaths and laws they break. But democratic institutions should be organized so that whistle-blowers can expect justice from their society, not vengeance from its government. A just process would respect whistle-blower rights under international and domestic law, consider due punishment for the laws that they have broken, but also heed any mitigating benefits for democratic debate and public accountability that their revelations produce.
Daniel Ellsberg chose to remain in the United State and face the possibility of a 115-year jail sentence. When he turned himself in, he said:
I felt that as an American citizen, as a responsible citizen, I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy and I am prepared to answer to all the consequences of this decision.
Eventually, a federal judge declared a mistrial because of the government’s conduct. The FBI had tapped Ellsberg’s telephone without a court order, and the government later claimed to have lost records of that wiretapping.
Snowden does not believe that he can receive such fair treatment under our current justice system. Those who sympathize with him in this regard cite the Obama administration’s unprecedented prosecution of whistle-blowers. This administration has indicted seven people under the Espionage Act (eight including Snowden) for publicly disclosing classified material. Only three people have been similarly prosecuted by all prior administrations combined.
It’s not just the number of people whom this administration has pursued, but also the manner of that pursuit. Bradley Manning is the now infamous young private who is currently being tried in a military court for passing hundreds of thousands of classified and otherwise restricted documents to WikiLeaks. During his detention, Manning was reportedly confined to his cell 23 out of 24 hours and placed in solitary confinement under a highly restrictive Prevention of Injury—suicide watch—conditions, despite the view of his military psychologist that this treatment was unnecessary.
Concern about Manning’s abusive treatment has been voiced from many quarters, including Human Rights Watch. Amnesty International claimed that his treatment violates the International Covenant on Civil and Political Rights. Sixty-five members of the European Parliament asked that international authorities be allowed to investigate whether Manning’s human rights had been violated. Professors Yochai Benkler and Bruce Ackerman led some 250 American scholars in writing a public letter that voiced concerns about violations of Manning’s Eighth Amendment rights.
It is no wonder that Snowden does not wish to be the next beneficiary of such widespread concern.
• • •
In an ideal democracy, Congress and the American people would have fully debated the principles and limits governing surveillance programs like PRISM and the collection of telephony metadata to arrive at a stable agreement regarding the proper balance between privacy and security.
In the non-ideal world that we inhabit, we can expect zealous security officials to create such programs in secret. We hope that others who suspect that these programs and actions violate law or public consent have the courage to blow the whistle and trigger a broader public debate. We should demand that our democratic institutions are at least good enough that those whistle-blowers can bring their concerns to a dogged and unbowed system of journalism and, costly as it may be, expect justice when they answer for their disclosures.
Instead, perhaps because of the persecution of recent whistle-blowers, Snowden fled our country before going public. Some of the information he revealed has triggered the very debate about privacy and security that President Obama said that he wants. Evidently, Snowden has put encrypted copies of other classified information in many digital repositories as a kind of insurance policy. Such information may become a bargaining chip for him, or perhaps for other governments or organizations. That dynamic seems much more likely to harm American democracy.
Editors' Note: Read Rahul Sagar's response to Archon Fung.
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