So many questions! How much of our personal information can the NSA
get at, with and without a warrant? What exactly does “server” mean on
that NSA PowerPoint slide? Is Snowden in Moscow, Havana, Quito, none of
the above? Tracking the fast-evolving scandal of NSA surveillance and
whistleblower Edward Snowden requires a bullshit-detector cranked up to
eleven. Though the NSA-Snowden affair is scarcely three weeks old, all
manner of official folklore and panic-infused idées reçues have
already glommed on, limpet-like, to media accounts, often deforming the
story beyond recognition. Below is your handy myth-stripping guide to
understanding this critical news item.
Myth 1: Leaks of top-secret material are exceedingly rare, so Edward Snowden’s transgression obviously cries out for punishment.
From the banshee reactions of various pols and pundits one might have
thought that showing classified material to the media is Washington’s
ultimate taboo. What rot! Official leaks are common as dirt, and one can
barely go a week without reading in TheNew York Times or The Washington Post
some story built on an unnamed high official’s confidential leaks. Good
thing too, because it’s thanks to leaks that we learned the truth about
the Watergate break-in, the Vietnam War, Obama’s officially “secret”
drone strike program. The Bush-Cheney administration leaked classified prewar intel on Iraq to suit its interests (h/t Jack Shafer),
and a top-secret memo on military strategy from Obama’s ambassador to
Afghanistan, retired general Karl Eikenberry, wound up on the front page
of TheNew York Times. (Many believe it was the White House itself that leaked that one.) Obama’s former chief of staff William Daley bragged
of his leaking prowess to Politico, but made sure to give props to his
predecessor Rahm Emanuel as the ultimate “leaker-in-chief.”
Washington leaks are not new; whole gastronomic guides to them have been published. As former Secretary of Defense Robert Gates put it
three years ago while tamping down the panic from Bradley Manning’s
mass exfiltration, “Washington has always leaked like a sieve and
everyone knows it.”
Myth 2: The NSA surveillance program has prevented dozens of terrorist attacks, and now Edward Snowden has ruined it!
Ah, but what role has NSA surveillance played in preventing
terror attacks? To state the obvious, the balancing act between security
and liberty assumes that the intrusive security measures are effective.
Have they been?
Supporters of the program insist that the dragnet surveillance has
caught lots of terrorists. Senator Dianne Feinstein, chair of the Senate
Intelligence Committee, informs us that the program has foiled “multiple”
potential attacks, without giving much more detail. More recently, NSA
chieftain General Keith Alexander insisted that the NSA monitoring of
e-mail and phone calls has stopped “more than fifty plots” in the United
States and overseas.
But how well do these outsized claims hold up? The NSA leak has
invited a fresh wave of scrutiny of official claims of surveillance
results, from canny bloggers like Marcy Wheeler, from The Guardian, even from ABC News. It’s not just the media—senators are getting in on the act, with Mark Udall announcing that he is not “convinced that the collection of this vast trove of data has led to disruption of plots.”
At the supermarket last week somebody told me she supported NSA
surveillance because of the Boston Marathon bombing that the program
failed to stop. This is obviously irrational, but it does force a
question: If NSA spying is not achieving any of its security goals, just
what is the point of so much surveillance?
Myth 3: Glenn Greenwald committed a crime by breaking the NSA/Snowden story.
Greenwald, an American lawyer turned blogger turned columnist and reporter for TheGuardian, broke the story of NSA dragnet surveillance, and his important scoop has some people upset.
Like Representative Peter King, the former chair of the House Committee on Homeland Security, who frothily opined
two weeks ago that Greenwald should be thrown in jail, even though the
legality of publishing leaked confidential information is
well-established under American law. The excitable King, whose previous fundraising for the Noraid charity would make him criminally liable for “material support” for the terrorist IRA under today’s slackened standards, would do well to refrain from accusing others of national security crimes. Washington Post columnist (and torture enthusiast) Marc Thiessen dug up
an archaic statute that criminalizes publication of signals
intelligence. The actual enforcement of this law is as likely, and as
sensible, as Gainesville, Georgia, enforcing its legal prohibition against eating fried chicken with a knife and fork.
But wait—there’s more! Yesterday morning, Meet the Press host David Gregory asked
Greenwald himself why he shouldn’t face criminal charges, “to the
extent that [he has] aided and abetted Snowden.” Gregory claimed he was
“just asking questions”—not making accusations. To the extent that
Gregory beats his wife—hey, just asking hypothetical questions here, not
making accusations!—I submit that the TV host is disingenuous. Gregory,
who has never had an important scoop in his softball career, also had
the cheek to imply that Greenwald isn’t really a journalist at all. As
Fox News’s Kirsten Powers tweeted,
O doubly calamitous week, to have lost Michael Hastings and still have David Gregory.
Myth 4.Snowden isn’t a real whistleblower because he spilled to the media instead of taking his concerns to his superiors at NSA.
Last week USA Today scored a videojournalism coup
by sitting down a group of former NSA officials-turned-whistleblowers
who between them had a century of experience at the agency. Thomas
Drake, William Binney and J. Kirk Wiebe did not agree on everything, but
they reached an instant consensus that Snowden did exactly the right
thing in bypassing the NSA’s internal system and leaking to the press,
given that the NSA had fobbed off or bottled up their own complaints for
years without taking any action. It would, of course, be peachy if our
security institutions responded to internal criticism, but that,
according to long-serving veterans of those institutions, is not their
Myth 5: We all should have expected this kind of mass surveillance was happening, so what’s the big deal?
When the scandal first broke, David Simon, creator of The Wire, pointed out
that the Baltimore police have been using similar surveillance tactics
against suspected crack dealers for years, so what’s the big deal? In
fact, many Americans find it to be rather a big deal that the federal
government is treating all of us the way the Baltimore police treat
suspected crack dealers and find Simon’s tirade irrational (and really
annoying). What Simon’s outburst does usefully reveal is that the
internalization of Stasi values is not always meek and mild but is just
as likely to be accompanied by strutting macho bluster.
As for former House Intelligence Committee member Jane Harman, she too sees nothing new in the NSA surveillance and told
Gwen Ifill that the law’s been on the books since FISA courts were
established in 1978 then amended with plenty of public debate in 2008.
(In 2006 Harman was herself caught on an NSA wiretap
offering to lobby for AIPAC personnel charged with espionage, and she
was none too pleased about it, but the experience apparently did not
infect her with any “empathy” for other Americans now vulnerable to the
There’s no explaining it away: the NSA’s amassing your phone records
and getting into your e-mail is a new and serious state invasion of
every citizen’s freedom; even those with nothing to hide have everything to fear.
Myth 6: Snowden good, Manning bad.
Snowden’s released far fewer documents than did Pfc Bradley Manning,
whose leak is the largest in US history. For many, this makes Snowden’s
disclosure easier to defend, and therefore better.
Enough with the Goofus-and-Gallant dichotomizing. Snowden himself
defends Bradley Manning as a “classic whistleblower” who was “inspired
by the public good,” and there is no need to make either a villain. And
the demonization of Manning is itself based on its own corpus of folklore, beginning with the non-fact that Manning’s leaks were a “data dump,” as chronically misreported. In fact Manning’s valuable disclosures were filtered first by WikiLeaks and then through mainstream publications like TheNew York Times, Der Spiegel, The Guardian and Le Monde.
Only the State Department cables leaked by Manning wound up in their
unexpurgated entirety online, but any harm from this misstep has been de minimis, and far outweighed by what we have learned. The blogger OhTarzie has done a stellar job parsing the essential similarity between Snowden’s and Manning’s leaks.
Myth 7: Because the NSA spying
program originated in our legal, legislative process, there just can’t
be anything wrong with it.
From the president himself on down to lawyer-pundit Jeffrey Toobin,
many have pooh-poohed concerns about NSA spying by assuring us that the
surveillance was “legally authorized”—and if it’s legal, what could
possibly be bad about it?
First, we might ask how “legal” the program is, based as it is on
secret interpretations of the FISA law and secret decisions made by the
FISA court. Is this good legal process? In its thirty-three years, the
FISA court has rejected only eleven out of 33,900 FISA requests:
effectively, a rubber stamp. The lead author of the Patriot Act,
Representative Jim Sensenbrenner, who is most definitely not a
card-carrying ACLU member, has repudiated the NSA surveillance as an unlawful abuse of the statute he wrote. (See also this brilliantly designed ACLU one-pager examining the dubious legal process that spawned the NSA surveillance program.)
Second, just because something is legally permissible does not mean
it is wise, effective, just or terrific in any way. Jeffrey Toobin could
legally have unprotected sex with a houseful of heroin
addicts, then liquidate his assets and give the money to Sarah Palin’s
PAC: all of this would be legal. Only a lawyer, and not a very
good one, would ever take mere legality an indicator for wisdom, justice
or efficacy. We have every right to be discontent with government
actions that might be legal while being wrong and foolish for any number
of other reasons.
By the way, is there an absolute duty to obey the law? This was the
implication of Chicago law professor Geoffrey Stone’s purse-lipped scolding
of young Snowden. Don’t get Stone wrong; the professor “believes
strongly in government transparency, but even more strongly in the
orderly rule of law.” I wonder if Stone dares talk this twaddle to a
lecture hall that includes LGBT and black students. Does Geoff Stone
think that gay and lesbian couples who had illegal sex decades ago were
criminals deserving prosecution? Does Stone fault Harriet Tubman for failing to turn herself in after the many glorious capital crimes she committed in her exemplary life?
We all live in a society of laws—can’t do without them—but that does
not make our laws infallible. Jurists, in their vanity, frequently
mistake the material of their chosen field as divine wisdom handed down
from Mount Sinai. We humans, however, should remember that laws are
rules made by the state, no more and no less; rules are only as clean or
as dirty as our politics and our history. As Columbia academic Marc
Lamont Hill pointed out
to Piers Morgan in a discussion of Snowden’s leak, “Many heroes break
laws.” This line of argument is as old as Antigone, as old as law
Free Bonus! Myth 8: The Democratic Party cares deeply about civil liberties.
The NSA spying/Snowden story has driven a wedge through the
Democratic Party–oriented media and intelligentsia. Though many
Democrats preached cool about civil liberties under Bush and Cheney, now
journalists like Talking Points Memo’s Joshua Micah Marshall profess nary a qualm with Obama’s invasive snooping. Wonky liberals at The American Prospectinform
us that “we must reconcile with the need for data collection,” while
parroting official claims of the program’s tactical effectiveness;
meanwhile, their officemates, The American Conservative (co-founded by Pat Buchanan!), condemn
the dragnet surveillance without equivocation. The last article
published by the late, tragically irreplaceable Michael Hastings examines why Democrats like to spy on their fellow Americans.
Though the surveillance enjoys support from Democrats and Republicans
alike, the opposition to it is equally bipartisan, with veteran social
democrat Representative John Conyers co-sponsoring
a bill to rein in the NSA with Tea Party freshman Representative Justin
Amash, two ideologically antipodal Michiganders united in defense of
civil liberties. Nice Democrats, please know this: the NSA surveillance
program will someday be in the hands of a Republican president—will you
support it then?