Wednesday, June 26, 2013

Seven Myths About Edward Snowden, NSA Whistleblower

Seven Myths About Edward Snowden, NSA Whistleblower

Edward Snowden. (Courtesy of

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 The New 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 The New 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 The Guardian, 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 nature.

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 same surveillance.)

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 The New 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 itself.

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 Prospect inform 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?

Was Glenn Greenwald aiding and abetting Snowden? NBC’s David Gregory thinks it’s a valid question—but John Nichols argues otherwise.

Related Topics: Law | Increased Security After 9-11 | Politics

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