Prosecuting Snowden

Edward Snowden broke the law by releasing classified information. This isn’t under debate; it’s something everyone with a security clearance knows. It’s written in plain English on the documents you have to sign when you get a security clearance, and it’s part of the culture. The law is there for a good reason, and secrecy has an important role in military defense.

But before the Justice Department prosecutes Snowden, there are some other investigations that ought to happen.

We need to determine whether these National Security Agency programs are themselves legal. The administration has successfully barred anyone from bringing a lawsuit challenging these laws, on the grounds of national secrecy. Now that we know those arguments are without merit, it’s time for those court challenges.

It’s clear that some of the NSA programs exposed by Snowden violate the Constitution and others violate existing laws. Other people have an opposite view. The courts need to decide.

We need to determine whether classifying these programs is legal. Keeping things secret from the people is a very dangerous practice in a democracy, and the government is permitted to do so only under very specific circumstances. Reading the documents leaked so far, I don’t see anything that needs to be kept secret. The argument that exposing these documents helps the terrorists doesn’t even pass the laugh test; there’s nothing here that changes anything any potential terrorist would do or not do. But in any case, now that the documents are public, the courts need to rule on the legality of their secrecy.

And we need to determine how we treat whistle-blowers in this country. We have whistle-blower protection laws that apply in some cases, particularly when exposing fraud, and other illegal behavior. NSA officials have repeatedly lied about the existence, and details, of these programs to Congress.

Only after all of these legal issues have been resolved should any prosecution of Snowden move forward. Because only then will we know the full extent of what he did, and how much of it is justified.

I believe that history will hail Snowden as a hero—his whistle-blowing exposed a surveillance state and a secrecy machine run amok. I’m less optimistic of how the present day will treat him, and hope that the debate right now is less about the man and more about the government he exposed.

This essay was originally published on the New York Times Room for Debate blog, as part of a series of essays on the topic.

EDITED TO ADD (6/13): There’s a big discussion of this on Reddit.

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Posted on June 12, 2013 at 6:16 AM • 128 Comments

Comments

Dirk Praet • June 12, 2013 7:17 AM

@ cpragman

I copied (and slightly edited) this from a comment of mine made on Bruce’s June 10th topic Government Secrets and the Need for Whistle-blowers.

Why did Snowden have so much access? Where are the controls, you say?

The current media debate over Snowden’s security clearance is absolutely ridiculous. It’s not some sort of magic wand that suddenly gives you miraculous access to all kinds of systems. In most cases, it just means that you’ve gone through a lengthy and in-depth background check.

The problem is not so much with the authorities giving out clearances, but with proper implementation, logging and auditing of system/network/application access controls. We all know about MLS, PoLP, RBAC, dual controls, segregation of duties and the like, but it’s a damn hard thing to do and maintain. I’ve seen some decent ones on missions at certain military customers and at one nuclear facility, but most of the time, well ….

The ubiquity of CoTS’s is not the only problem in this regard. Maintaining policies and procedures, tight access control and opsec needs to be managed and controlled from within the organisation, not left to contractors interested in selling more product and services only. Judging from the Snowden leak, the NSA is obviously having a serious problem with those access controls. Not that it comes as a surprise: the NSA being overrun by contractors only in it for the money under director Hayden was exactly what had been previously pointed out by former whistleblowers like Thomas Drake and Bill Binney in the wake of the internal ThinThread/Trailblazer war.

Then again, failure of access controls is not just an NSA or contractor-related thing. Bradley Manning alledgedly got his treasure trove off SIPRNet, so the problem obviously is much broader than that.

Bruce Schneier • June 12, 2013 7:18 AM

“Snowden broke the letter of the law, but in doing so, didn’t he uphold the spirit of the greater law?”

I believe he did.

Unfortunately, I have no doubt that — even if the programs are found to be illegal and wrongly classified — that the government can find one validly classified fact amongst the documents he exposed, and can prosecute him on that. It remains to be seen what the court will do.

Bruce Schneier • June 12, 2013 7:22 AM

“Bruce, does it make sense to you that a IT technician would be able to access ‘secret’ docs? I thought (assumed) that the gov’t used cryptography to prevent that sort of thing.”

It’s an interesting question.

  1. It’s hard to design a computer system that doesn’t give those maintaining the system broad access. Even with cryptography, those who have to work on the system need access.

  2. None of the documents I have seen so far are the sorts of secrets that would be compartmented very highly. They’re general documents: presentation slides, court orders, presidential directives. These sorts of things are pretty generally available within a classified environment. It’s not like the raw intelligence of a highly placed source within the Chinese government. So I’m not surprised that he would see these documents within the normal course of him doing his job.

Dirk Praet • June 12, 2013 7:51 AM

@ Bruce

None of the documents I have seen so far are the sorts of secrets that would be compartmented very highly. They’re general documents: presentation slides, court orders, presidential directives. These sorts of things are pretty generally available within a classified environment.

Yes and no. Even though indeed Snowden’s .ppt (or at least the parts that have been published by The Guardian and the WaPO) are pretty much general information (metadata !), I believe an entirely different classification and access controls would have been in order given the highly classified nature of the surveillance programs they decribe.

Mark Fowler • June 12, 2013 7:56 AM

When you let the perp decide whether or not he committed a crime, then that’s anarchy. The guy knew full well what he was doing was wrong and that it was a violation of the trust. I see no reason why he should not be prosecuted under the full weight of the law.

Paul • June 12, 2013 7:57 AM

Over here in Hong Kong he seems to be getting quite a bit of support.
http://www.supportsnowden.org/

It will be interesting to see how the HK & Chinese governments react to his presence here, and how the legal system responds to the expected extradition request.

The precedent of HK’s involvement in previous “renditions” isn’t promising, although at least this case is visible in advance.

bf skinner • June 12, 2013 7:59 AM

Two comments as I watch the goin’s on

“NSA officials have repeatedly lied” to CONGRESS. Clapper flat out lied last week or the week before that to a direct question about scope of surveillance. Now I understand this is common practice from IC people to Congress…but aren’t they sworn before they testify in a hearing and that’s make what they say perjury? That kind of behavior left unchallenged can lead to a disregard or contempt of the congress’s oversite authority and the law itself.

Second
“secrecy has an important role in military defense”
While not arguing the point.
How is secrecy in this instance different from ‘security by obscurity’ ?

bf skinner • June 12, 2013 8:04 AM

“does it make sense to you that a IT technician would be able to access “secret” docs?”

all your systems are belong to us? Anyone with backup privilege can read/copy data no?

The secondary point to this is the scale of over-classification. The more material classified – more people have to have access to it to do their jobs. Greater risk of disclosure.

Chris • June 12, 2013 8:07 AM

Snowden will be prosecuted. Americans who will serve on the jury NEED TO NULLIFY.

Jack • June 12, 2013 8:22 AM

It is definitely a good show.

Whether he did this heroically, out of compassion, or out of vanity… or whether he was following orders

and this is all staged… we do not know.

But, as for choice, it is the right choice for the country and the world, in the long run. Though, there is

also the possibility that these revelations were made so these systems would get public approval.

There is also the possibility that these revelations were made for getting more global communication and

cooperation, for governments to work together and spy on their citizens.

Right now, it does appear that the public is very approving of these systems.

There are angry reciminations, but not enough to shut it down. Which means, though the way they set it up is clearly unconstitutional and unethical, it is here to stay. It has public approval, and, in the end, that is all that matters. Constitution? Kings? Public opinion is what has always pushed things through.

Unless, of course, there is a hammer coming down from above.

But, I say all of this hoping this will not be the case.

And when I say it could be staged, I see it as either way. Snowden could be operating truly against this system, or he could be operating for it.

It has to be seen how everything continues to play out.

Fiona • June 12, 2013 8:26 AM

@Mark Fowler

On the other hand, if he was aware of a secret program that he believed was illegal or unconstitutional, then he ought to report it.

Ultimately, it’s the lack of transparency which is the problem. He would have no-one to report concerns to, the government can’t be sued over these secret programs, etc.

It’s a worrying state of affairs.

Mike B • June 12, 2013 8:27 AM

Violate the constitution? Please. Any prosecutor can get these sorts of records by sneezing and such practices have been repeatedly been ruled constitutional by the courts. Corporations know far more about what you’re doing that the big scary government and they are far less accountable.

The United States is a global hub of commerce and culture. Huge amounts of foreign communications reach our shores every day, especially since the US is home to most tech firms. To determine what bin the communication goes in it needs to be inspected. To claim otherwise puts the government into a catch 22 and robs it of a significant national security advantage.

Finally if this is such a problem where are the consequences? Why aren’t our prisons full of people who have committed thoughtcrimes? Since most Americans commit three felonies per day why isn’t all this secret surveillance being used to fill the prisons with the political opposition?

Laws don’t matter, culture does. The UK has no constitutional guarantees about anything, but is as much a free society as the United States. The sad truth is that the Government is not trying to screw us, but if it were a few laws wouldn’t protect you. It should tell you something that in the 7 years this programme was operational for the only person who felt morally compelled to leak anything about it was a paranoid weirdo.

Compared with the Nixon era intelligence community the US Government is clearly following both the letter and spirit of the law, I don’t know what more you can ask for.

jay c • June 12, 2013 8:28 AM

Mark, remember that almost all courts have held that illegal != wrong. Just because there is a rule against doing something, doesn’t mean that it shouldn’t be done.

jay c • June 12, 2013 8:35 AM

The sad truth is that the Government is not trying to screw us,

You’re a comedian, you are!

but if it were a few laws wouldn’t protect you.

No truer words have been spoken.

ted • June 12, 2013 8:46 AM

What were Snowden’s alternatives? Report it to his superiors at BAH or NSA? BAH would have fired him for jeopardizing their contract. NSA would have said something like ‘whose side are you on’ and then revoked his clearance.

kiwano • June 12, 2013 8:49 AM

@bf_skinner

I’m pretty sure that Clapper’s false testimony to Congress constitutes perjury. I mean didn’t Clinton get impeached for perjury because of his testimony to congress.

twofish • June 12, 2013 8:56 AM

Quote: “Bruce, does it make sense to you that a IT technician would be able to access ‘secret’ docs? I thought (assumed) that the gov’t used cryptography to prevent that sort of thing.”

One thing that you quickly learn when you work for a large institution is that the IT technicians end up knowing everything, and you should be very friendly to them since they can give you all sorts of useful information.

Getting security right is a pain in the rear end for the government as well as anyone else. You run into “who watches the watchmen” problems (i.e. who maintains the programs that maintains the cryptography).

Paul: The precedent of HK’s involvement in previous “renditions” isn’t promising, although at least this case is visible in advance.

I’d disagree here. All of the previous renditions were people that most people in HK would consider “terrorists.” I doubt anyone in HK considers Snowden a terrorist.

The HK press has been a little quiet, because it’s hard for local human rights advocates to look themselves in the mirror and say “HK is good at human rights.” The local advocates tend to point out all of the problems that HK has, and so it’s hard for them to think “maybe we are doing OK.”

Jack • June 12, 2013 9:05 AM

bf skinner • June 12, 2013 7:59 AM
Two comments as I watch the goin’s on
“NSA officials have repeatedly lied” to CONGRESS. Clapper flat out lied last week or the week before that to a direct question about scope of surveillance. Now I understand this is common practice from IC people to Congress…but aren’t they sworn before they testify in a hearing and that’s make what they say perjury? That kind of behavior left unchallenged can lead to a disregard or contempt of the congress’s oversite authority and the law itself.

Clapper worked for Booz Hamilton. And I think a thorough check of his current financial records would be discouraging as to his integrity.

But, hey he has a right to privacy, right?

Like Petraeus did.

(Maybe this is a “muahaha” moment.)

🙂 🙂

Simon • June 12, 2013 9:06 AM

This is not some big truth coming out. The media is puffing this in retribution. Doesn’t anyone see that? Do you need proof, does the discussion HAVE to continue ad nausea in the context of “whistle blowers?”

Craig • June 12, 2013 9:07 AM

Whether “history will hail Snowden as a hero” depends on who writes the history.

Hawk1776 • June 12, 2013 9:13 AM

The man violated the terms of a Top Secret clearance. He’s guilty and must be prosecuted. Whether the NSA program is legal or ethical is a separate discussion.

Paul • June 12, 2013 9:22 AM

@twofish,

Er, no – the rendition from Hong Kong was of a Libyan dissident (and his entire family, including children) who was then tortured by the Gaddafi regime. There was never any suggestion that he was a terrorist, but it was in that bizarre period when Gaddafi renounced nuclear ambitions, promised lots of oil wealth to western companies, and in return suddenly became the west’s friend and all his opponents became fair game.

The UK government has since paid over £2million in compensation for this.

http://www.guardian.co.uk/uk/2012/dec/13/libyan-dissident-mi6-aided-rendition

braff • June 12, 2013 9:28 AM

Hawk1776: You’re operating on the same level of morals and ethics as Aunty in Beyond Thunderdome when she says:
“You think I don’t know the law? Wasn’t it me who wrote it? And I say that this man has broken the law. Right or wrong, we had a deal. And the law says: bust a deal and face the wheel!”

If whistleblowers are harshly prosecuted and sentenced, fewer people will be whistleblowers. And with fewer whistleblowers, there will be less democracy.

Nicholas Weaver • June 12, 2013 9:35 AM

I bet the DOJ is going to go a fair bit further in this: I suspect that there will be at least one “lying to the FBI” charge slapped on a friend or relative of Snowden, as a way of punishing/forcing him to accept extradition.

Beeblebrox • June 12, 2013 9:43 AM

While some may say that Snowden broke the law and should be prosecuted to the fullest extent, one should consider the larger circumstances of whether it was justified. For example, if certain folks a few hundred years ago in this land of ours hadn’t broken the law, there would be no United States of America. Where they criminals? I guess they were. Where their actions justified? I’d say they were.

On the other hand, if NSA officials have indeed repeatedly lied to Congress about these activities, should they be prosecuted? Some say no because it is an issue of national security, while others say yes because they are violating innocent civilians’ rights without authority from those citizens. I believe an open discussion is required to establish what has been going on and what trade-offs we want to allow between security vs freedom. Our representatives (the President included) do not give us rights, we loan them to allow governance. For that reason, the people should decide whether such activities are justified.

bf skinner • June 12, 2013 9:45 AM

@kiwano

I believe President Clinton was accused of perjury in a deposition to the Independent Consul not to Congress itself. (Probably why Bush/Cheney only agreed to be interviewed on the outing of covert intelligence agent Plame as long as they weren’t sworn. They intended to lie going in.)

Roger Clemens however was prosecuted for lying to Congress. (Acquitted)

Perhaps the IC trusts that congress will never ask them about stuff?

I remember one anecdote a member of IC told me. He was getting his polygraph and was asked. Have you ever lied under oath? He said. “Yes. Every time I testified in congress about the budget”

Kept his clearance. In the IC it’s okay to lie to Congress (ask Olly North) just not to your master.

George Hayes • June 12, 2013 9:51 AM

I’d have to argue the article is wrong in that he broke the law. Being that the actions of the NSA in this case were illegal we then have to look at any order given to cover them up are also illegal. Following such an order would be a crime. Just as if you were in the military and given an unlawful order you are required to report it. Saying you were ordered isn’t a justifiable excuse under the law even in the military.

I think they will have a very hard time prosecuting him. They will probably have an easier time persecuting him and most likely if they get their hands on him he won’t make it to a court room he will end up dead. Most probably suicide or something to the order they tried to make it look like it or they will say he tried to escape.

paranoia destroys ya • June 12, 2013 9:55 AM

People are more concerned of the government having access to all of this information about us but not that this data was in the hands of private corporations.

Imagine if we started seeing targeted ads when we surf the web from the government.

one of the keiths • June 12, 2013 10:18 AM

@ Jack • June 12, 2013 8:22 AM
or disinformation

Fiona • June 12, 2013 8:26 AM
or
It’s a worrying affair of state

Beeblebrox • June 12, 2013 10:20 AM

@George Hayes: “Being that the actions of the NSA in this case were illegal we then have to look at any order given to cover them up are also illegal. Following such an order would be a crime.”

An excellent point that has been upheld over and over again since WWII.

TheDoctor • June 12, 2013 10:22 AM

@paranoia destroys ya (and all other comparing corporations and governments).
– Google can bug me, maybe seize money from me.
– Government can throw me in a hole and then throw the key away…

So as long as ONLY google has my data, no real problem, the problem is EXACTLY that the government seizes the data from Google and THEN it’s getting dangerous.

Google CANNOT send in the drohnes, US Gov CAN and DOES.

This is the the fundamental difference and this is the reason why all of these government officials so much like to flashbang us with the argument

“all those people give all their data to corporations, this is much more dangerous”

because this the classical “false claim” rhetorics.

paranoia destroys ya • June 12, 2013 10:22 AM

Some quotes have been made by politicians about being able to build a profile of someone from knowing their phone and internet records.
In the context of information in the hands of search companies, would people’s reaction be the same if they heard statements like that by a representative from Google?

asfdasfd • June 12, 2013 10:48 AM

Hey Bruce,

It’s great that you are a patriot and all, but why don’t you talk a bit more about how you helped build a good portion of this spying infrastructure with your managed security services firm. Pot kettle black DOE etc.

Dirk Praet • June 12, 2013 10:53 AM

@ BF Skinner, Kiwano

Clapper flat out lied last week or the week before that to a direct question about scope of surveillance.

That merely depends on how you interpret the question and define the object thereof. We have recently seen some very interesting replies from companies like Microsoft, Google, Facebook, Yahoo and the like about their involvement in Prism. At first glance, they look like flat denials, but when you study the exact wording of them – undoubtedly phrased by seasoned attorneys at law – , you see more evasion than clarification. In essence, they are carefully crafted word games. (doublespeak, anyone ?)

The USG and the IC have a long history of doing the exact same thing, as an interesting EFF article is pointing out here. Under their own interpretations of words like “collection”, or “surveillance”, Clapper was probably not lying, but merely “purposefully obscuring the truth.” As was Clinton in his day. We know for a fact that the US these days has secret courts issueing secret orders under secretive interpretations of existing laws (or sections thereof), and that those parties served with such orders are forbidden to say so. Secretive interpretations of everyday words therefor to me don’t seem to be that far-fetched either.

@ Mark Fowler, Hawk1776

I see no reason why he should not be prosecuted under the full weight of the law.

During the nazi occupation of my country in WWII, my grandfather on several occasions hid Jews and people involved in the resistance in his house. If caught, he and my grandmother would have been sent to a concentration camp. In Eastern Europe hiding Jews (or helping Jews to hide) even carried the death penalty, often for the whole family giving shelter. (Source: http://www1.yadvashem.org.il/righteous_new/about_the_righteous.html )

His actions were completely illegal under then law and executive orders. Still, my grandfather – a law-abiding citizen – deemed the then German company policy of gassing Jews and other “enemies of the state” immoral and refused to comply. As did many other brave folks, many of whom paid the ultimate price.

As has been said before: something that is legal is not by definition right, and something that is illegal is not by definition wrong. Try to consider this whenever you feel the need to judge someone’s actions.

Recommended reading in this context:

  • The biographies of Mohandas Gandhi and Nelson Mandela
  • The Diary of Anne Frank
  • 1984 (Orwell)
  • Bend Sinister (Nabokov)

@ Mike B

Since most Americans commit three felonies per day why isn’t all this secret surveillance being used to fill the prisons with the political opposition?

Rest assured that all this secret surveillance can and will be used against you the moment someone in authority requires a stick to hit you with. We have recently seen the absurd prosecutorial overreach in the case of Aaron Swartz. One of the best known cases is probably that of former Qwest CEO Joseph Nacchio. He was the only (known) head of a US communications company who refused to give customer data to the NSA. The DoJ – he claims – retaliated with a massive lawsuit over insider trading that eventually landed him in jail.

There is no doubt in my mind that the data gathered by current and past spy programs today is being used to coerce into submission an unknown number of people in a wide variety of positions both inside and outside the US. Or at least offers the capability of doing so. That is of course unless you really believe they are only out to catch terrorists. Which, for all practical purposes it would seem they are still not really great at.

Bob T • June 12, 2013 11:10 AM

Addressing the question of culture, until recently this culture would have never stood for secrecy involving the surveillance of the entire population.

The culture accepted secrecy regarding imminent threats pertaining to specific individuals or groups. It also accepted secrets concerning information that might otherwise be leaked to the enemy. The last part of the equation is what’s referred to as protecting sources and methods. Again, this never pertained to the surveillance of the whole of society let alone individuals and groups who have done nothing to arouse suspicion.

The secrecy we have today is a completely different animal. The may not be listening to your conversations or reading all of your emails, but the data is being stored for future parsing. And it may turn out some day 10 or 20 years down the road, that what you said yesterday may be deemed to be subversive or cause for suspicion and re-education.

http://www.amazon.com/The-Gulag-Archipelago-1918-1956-Investigation/dp/0813332893

Derp • June 12, 2013 11:11 AM

So when does character assassination begin? Surprised they havnt found girls he “raped” or some sort of planted drugs in his apartment. Usually they do this immediately after a leak I guess they arent too worried.

The feds had this all cleared through a ridiculous secret court that itself should be illegal in any free country.

Jack • June 12, 2013 11:13 AM

Mike B

It is true, beyond a very devilish skirting around the law – which reminds me of some other group in history who are today widely condemned – true Watergate-Hoover abuses have not yet been exposed.

If you believe that horse is not coming, you are betting on the wrong horse and will find your passionate idealism deeply crushed when it does.

(Though, I believe you are simply taking the devil’s advocate viewpoint here and trying to stir debate and thought.)

bf skinner • June 12, 2013 11:22 AM

@Dirk Praet

This is from Clappers March 2013 (starts 6m9s if the url get’s munged) testimony.

“Does the NSA collect ANY type of data at all on millions or hundreds of millions of Americans.” Wyden
“No Sir. Not wittingly. There are cases where they could inadvertently, perhaps, but not wittingly.” Clapper

Now Clapper says he gave the “least untruthful” answer that he could.
WH says his answer was “straight and direct”. Well yes he was. In that he directly answer the question with no truth.

https://www.youtube.com/watch?v=QwiUVUJmGjs&feature=youtu.be&t=6m9s

Jack • June 12, 2013 11:26 AM

one of the keiths • June 12, 2013 10:18 AM
@ Jack • June 12, 2013 8:22 AM
or disinformation

I am not saying this leak is disinformation.

“Staged” is different from disinformation.

“Staged” like in the move, the Sting, where some players staged a situation to bust some criminals.

Sometimes an increasing number of leaks on a dam of information means that the gates holding the waters back are about to break and a flood is coming.

ets • June 12, 2013 11:43 AM

I’d not be so axiomatic. Firstly, in most legal systems law is over any agreement, so if his contract/NDA was forcing him into breaking the law contract is void, null, dude is clean on that front.
Secondly, breaking the law to prevent more serious crime (say, running your care over serial killer who is about to shoot down other people) is also very much clearing you from prosecution, well, you can never be sure about USofA.

one of the keiths • June 12, 2013 11:43 AM

@ jack
i didn’t mean to imply thats what you meant, mearly raising another (Adjacent option) that i hadn’t yet seen on this leak.

ChristianO • June 12, 2013 11:47 AM

I am sure some country is willing to stage some rape allegations against Snowden.

As soon as his public credibility is wagged with a dog to hell, nobody will care any more if he sits in an Ecuadorian embassy or has to face a few months of Guantanamo or Quantico or where ever is space.

The problem of todays whistle-blowers is not just that they will be found. Its also that their whistleblowing is made useless by massive campaining against them.

Julian Assange kind of helped to blow the whistle on massmurderings done by soldiers. How many US-Americans would invite him for dinner for doing so?

Tommie • June 12, 2013 11:57 AM

I don’t see how we is being called a whistle blower when the Washington Post had a 2010 expose on this called Top Secret America. Even PBS produced two Frontline episodes that talk about this subject: The Dark Side – 2007 & Spying on the Home Front – I think in 2011. This is not even new news!

Izzi • June 12, 2013 12:03 PM

Timothy Warren,
I believe the British made a similar comment on the “letter of the law” vs “spirit of the law.
You, I presume, are in favor of Alexander Hamiltons bias to the “spirit of the law”, anti-federalist tendencies in American History?

You just presented an age old argument that one could submit was cause for the civil war and nearly every other conflict of American Politics prior to WWI. CONGRATS!

Aidan • June 12, 2013 12:11 PM

Mark Fowler: When you let the perp decide whether or not he committed a crime, then that’s anarchy

The perp being the US Govt, Snowden, or both?

Dirk Praet • June 12, 2013 12:20 PM

@ bf skinner

Now Clapper says he gave the “least untruthful” answer that he could.

For good understanding: for as far as I’m concerned, Clapper was lying through his teeth. What I was trying to point out is the absurd legalese high-tech and word games the USG, IC and Congress seem to be getting away with to deceive both the people and each other. I’m sure any case brought against him would be thrown out, and if by chance somebody would really succeed in strirring the heat up, Congress can still grant him retroactive immunity. It’s been done before.

paul • June 12, 2013 12:21 PM

If you take Les Misrables and The Hunger Games and mix them up in a bowl, that seems like our destination in the not so distant future, yet no one I talk to seems to care. The fact that Edward Snowden did what he did shows me there is in fact a pin prick of light at the end of the tunnel.

ItsTheLawRight... • June 12, 2013 12:29 PM

@those who think snowden should be thrown to the wolves because he broke his oath…

Let’s say our government were rounding up millions of its own citizens of specific ethnic or religious affiliation and placing them in remote prison camps for extermination where millions of them were . Then along came an analyst who had taken an oath to protect and hold any and all information he was privied to. Once he was exposed to this truth of the governments betrayal of its own citizens and subsequently decided to let the world know of these atrocities… would he then deserve to be torn apart by the letter of the law?

Just asking… because we as a society need to step back and look at the greater context of the perceived wrongdoing in relation to the law and it’s implications to make sound decisions for how we handle it and those involved, in order to preserve a positive future for ourselves as a society…

Benjamin M • June 12, 2013 12:46 PM

@ItsTheLawRight…,

And we also don’t want a society where every people trusted with national or corporate secrets leaks them to the public when they are only driven by their ideologies and self judgement.

If in the end the judge will have to settle this issue, let the potential leakers come to justice beforehand and fix the problems instead of blowing it off. We need strong institutions to do that, this way we don’t take any risk disclosing national secrets AND we encourage transparency.

We cannot trust individuals, so we have to trust in laws and institutions, maybe we need to change a few things and adapt to this world, but we don’t have to go to any extreme.

who_watches_the_watchers • June 12, 2013 1:22 PM

@Mark Fowler • June 12, 2013 7:56 AM

“When you let the perp decide whether or not he committed a crime, then that’s anarchy. The guy knew full well what he was doing was wrong and that it was a violation of the trust. I see no reason why he should not be prosecuted under the full weight of the law.”

Actually he knew full well that what he was doing was RIGHT, even though it was illegal. He knowingly sacrificed his future to do the morally right thing and inform the world’s citizens of totalitarian excesses perpetrated by the American government.

So lets not have double standards here. Since the unconstitutional mass data collection that the NSA has been caught doing is a far greater crime, all of the people responsible–the NSA bigwigs, the contractors, the intelligence oversight committees, the FISA court–also deserve to be prosecuted under the full weight of the law.

Otherwise, how is the citizenry supposed to respect their government? Either you live in a nation of laws and you apply those laws fairly and equally to everyone (ha ha), or you live in a nation of power-drunk thugs who use the law as a giant hammer to smite people like Snowden who embarass them by revealing their crimes.

Honestly. In any civilized country (if there were any of those around, these days) people would recognize that secretive bureaucrats working to undermine the freedoms that are the very foundation of your democratic nation are a far greater threat than some rag-tag group of foreign bad guys. A civilized country would investigate, identify, bring to trial and hang those fuckers. They are busy destroying one of the world’s greatest nations from the inside out, and the population can only shrug in apathy and say “yes please, do spy on us some more, if only it keeps us safe from Terrrrists! durrrr.”

Failpoint • June 12, 2013 1:26 PM

Some points I wanted to ask or bring out:

How long can you burn your pawns before an open battlefield exposes your agenda?

This has been seen before when an ex-CIA agent exposed Reagen’s dumping coke into Texas and California to push a point. The agent was part of it, and had to exile himself to Europe. Loyalty and trust is in question. If you want to talk legality, why would the NSA and Whitehouse not take their plan before the Supreme Court BEFORE building a listening post in BFE Utah? How much taxdollar was spent?

More importantly, can someone explain to me why now? Why Snowden? Everybody in IT sighed a collective “No Duh.” Big deal. The new NSA post has been known for a while now. Security-wise, I consider the client browser being raped through a guaranteed outbound DNS protocol a bigger problem. Internet marketers and the government using hacker method to escape NAT and firewall. Screw phone records.

I believe behind this security policy lies the bigger issue of immigration control and cheap labor policy. Ask yourself what is the preventative method. Really, I see the intelligence community just giving themselves jobs, because like subpoenas for social networking, the end result is just used for character witness. You can only prosecute on action. Don’t get all Minority Report on me. I cannot justify pre-pre-emptive action or the taxdollar:positive result ratio in my head.
I can, however, justify not using the U.S. as a dumping ground for political exiles.

Burning Snowden seems petty and only increases animosity in anyone wanting to really solve problems. Our government taking action on the backend of failed policy is a sad joke.

Treason/sedition means nothing in a corrupt sellout government. Nail a sickle and hammer to your forehead if you agree with police-state.

Weeha • June 12, 2013 1:47 PM

Hey NSA:

You’re going to call off your rigorous investigation.

Look, the people you are after are the people you depend on.

We cook your meals, we haul your trash, we connect your calls, we drive your ambulances.

We guard you while you sleep.

Do not… fuck with us.

(With apologies to Tyler Durden)

vas pup • June 12, 2013 2:39 PM

@George Hayes
How in a military person could decide that order is illegal and not follow it except clear cases under Geneva convention (kill/rape civilians, pows, etc.)?

In any questionable under the law act there is more than just actus reus (aka criminal action/inaction formally braking the written law and making act illigal). There are other components: mens rea (aka criminal intent) – bad motive (not the case here); consequenses (e.g. real harm for particlular people, health, property, etc; Disclouser of methods spying on foreign country, names of agents, location of military/undecover personal location, their identity, characteristics of cyber defense/offense capability – no excuse for IT for disclosure. Not the case here as well); circumstances: in law there is always part addressing acts which formally break the law (kill), but reasons for breaking the law (in self-defence) exclude from prosecution. In that case it was disclosed unconstitutional practice within country, meaning discloser is less evil than disclosed information – no doubt.

Conclusion: based on circumstances part, no prosecution at all.

If get to the court: for jury- not guilty based on no harmful consequences and no bad motive (criminal intent).
Judge: if overrides jury, should send request to SCOTUS: Is diclosed practice constitutional or not?
In any case personal safety should be provided (no ‘rapes’, ‘drugs’, suicides) under personal responsibility of AG.

Simon • June 12, 2013 2:48 PM

@Tommie – you are absolutely correct. This is media puff just for revenge. Notice how casting this into a big “whistle blower” story attracts all the anarchists. This is not doing anyone any good.

Don C. Jones • June 12, 2013 2:57 PM

If you do not want someone to read what you write, do not leave your IP address behind.

BRN • June 12, 2013 3:09 PM

This was not hiding Jews from Nazi’s and this wasn’t stopping a serial killer in the process of killing someone. This wasn’t even stopping a violation of human rights. So everyone should stop using those analogies.

This was closer to yelling FIRE in a crowded movie theater because someone lights a cigarette. Yes, it was wrong and yes it needs to stop; and yes there was fire, but there is a right and wrong way to go about things and he chose the wrong way.

This was putting national security at risk because he felt, rightly so, that the nation’s privacy was being violated.

Had he exhausted all avenues before exposing the NSAs intelligence gathering techniques then he might be justified. Had he tried at all he might be justified, but he didn’t.

He should be prosecuted for the release of top secret information. He also made no effort to release it in a way that didn’t expose intelligence gathering techniques to enemies of America. He should be tried for treason. If a judge or jury of his peers lets him go, then good. But a precedent should not be set that you won’t be arrested for releasing top secret information to the general public.

Brock Skuthorp • June 12, 2013 3:42 PM

TLA should maintain a cache of fake incidents with no known actors (entertainers) involved. The database would contain fake documents about fake incidents played out in videos by actors. Then, if a potential whistle blower tries to push these with a leak, it could be proven these were staged / honey pot events.

This should be enough to test these fresh faces in the intelligence community.

freedom • June 12, 2013 3:42 PM

Laws… how quaint. Laws are just for the little people now.

The US government has essentially waged a fatal attack on the US constitution and all the way through English common law that has been established for nearly 800 years – Magna Carta.

In case anyone in government forgot their oath:

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God

“We can never forget that everything Hitler did in Germany was ‘legal,’ and everything the Hungarian freedom fighters did in Hungary [in 1956] was ‘illegal.’

Martin Luther King

“At its very inception this movement depended on the deception and betrayal of one’s fellow man; even at that time it was inwardly corrupt and could support itself only by constant lies. After all, Hitler states in an early edition of ‘his’ book: ‘It is unbelievable, to what extent one must betray a people in order to rule it.’

If at the start this cancerous growth in the nation was not particularly noticeable, it was only because there were still enough forces at work that operated for the good, so that it was kept under control.

As it grew larger, however, and finally in an ultimate spurt of growth attained ruling power, the tumor broke open, as it were, and infected the whole body.

The greater part of its former opponents went into hiding. The German intellectuals fled to their cellars, there, like plants struggling in the dark, away from light and sun, to gradually choke to death.”

The White Rose
Second Leaflet
Munich, 1942

Phil • June 12, 2013 3:56 PM

The problem with talking about what Snowden “exposed” is that he’s not shaping up to be necessarily very trustworthy as a credible whistleblower. His account of his past is full of exaggerations, self-aggrandizement and blatant lies. He’s claimed he was in training for Special Forces but was discharged following a “brutal training accident”; according to Army records, he washed out of basic, and not on a medical discharge (though a Section 8 psychiatric discharge is a possibility). He’s claimed he was “a security guard at a secret NSA facility near College Park”; he was actually working as a “security specialist”, whatever that means in his case, at the Center for Advanced Study of Language at the University of Maryland, which is an unclassified facility. He’s claimed that during his brief employment at the CIA he was instrumental in a covert op to recruit a Swiss banker as a source; not only was he not with the CIA long enough to even have completed the mandatory field ops training required for all field operatives, but the op, as he describes it, would have immediately “burned” the alleged source. He describes himself as a career NSA analyst; he was actually an outside-contractor junior sysadmin doing support, with no operational access and only three months on the job. His real employer, Booz Allen Hamilton, has refuted his claim of making $200,000 a year plus a housing allowance; that claimed total compensation is roughly double what he was actually being paid.

So, when confronted with so many documentable falsehoods on his part, forgive me if I’m skeptical about his revealing a super-secret program about which companies including Apple, Microsoft and Google are saying, “Look, if we were involved in any such program, I think we’d know ourselves.” The NSA would really have to have a remarkable level of access to Google’s systems to be able to slip any such thing past Google, and the fact that Google has a brief before the Supreme Court asking to be allowed to reveal National Security Letter details in order to refute the claim argues strongly that they’re not a party to any conspiracy-theory cover-up. There’s only one “journalist” who has actually communicated directly with Snowden, Glenn Greenwald, who bluntly commands about the same level of journalistic respect as Glenn Beck. Everyone else is mostly just re-reporting from Greenwald’s reports, and a number of outfits (the Washington Post among them) have already quietly edited out key parts of what they originally printed.

Personally, the more I see of this story, the more I’m coming to question Snowden’s mental stability. I more than half wonder whether he had a psychotic break and, in some strange reverse paranoia, instead of believing everyone was spying on him, became convinced that he was helping the NSA to spy on everyone else.

bf skinner • June 12, 2013 4:09 PM

@vas pup

No harm no harmful intent.

Government has standard costs for disclosure of classified information. I think it’s a million for every SECRET. Don’t recall what TS is. (A million immediately puts USC 1030 in the felony zone). So it’s easy to claim damage.

And I think mens rea isn’t always a factor. If you fall asleep with a lit cigarette, burn your house down and kill people…you could be guilty of manslaughter. You had no intent but still…there you are.

phil_part_2 • June 12, 2013 4:13 PM

Dear Phil,

“The problem with talking about what Snowden “exposed” is that he’s not shaping up to be necessarily very trustworthy as a credible whistleblower.”

Nobody cares if he lied about what he ate for breakfast.

The only thing that matters is that he worked for a private company contracted by the NSA.

Are you being paid to write this crap?

freedom • June 12, 2013 4:16 PM

@BRN

Perhaps you’ve been sheltered from the activities of the US government for the last, say, 80 years…

Let me help you out. Governments which are not constrained by a rule of law, and can operate completely in secret, take a very predictable path: Surveillance -> Oppression of dissidents -> Mass murder and genocide.

Perhaps you think a country like the US has higher moral fortitude than that. Of course the United States would never destabilize a country and install a brutal dictator who then oppresses and murders thousands – Pinochet, Shah of Iran, Greece.

Our government would never install a secret army, made up of many ex-nazis and war criminals deploy them to European countries from which would then commit terrorist attacks, murdering civilians and children to change the political direction of the nation, nor would they traffic drugs into their own country to generate money to arm insurgencies as a matter of policy – Gladio, Contras respectively.

Perhaps you’re a bit naive. It’s all black and white, on official US letterhead, a few keystrokes away. The National Geographic channel will not be making a documentary to entertain you with these subjects.

Government is force. It is a troublesome servant and a dangerous master – George Washington

Clive Robinson • June 12, 2013 4:32 PM

@ asfdasfd,

I have reason to think you are very probably a troll that pops up from time to time, however I will explain why your attitude is wrong.

As I have said many times on this blog “technology is agnostic to it’s use” that is just like a knife it is a useful tool that can be used for good or bad.

That is a knife that cuts up your food in preperation for your meal can just as easily be used to cut your throat. It is the mind behind the hand that wields the knife that choses an action good or bad. It is not the person who designed the knife, nor the person who made it or sold it that is responsable for the actions of that mind be they good or bad.

If you don’t understand this then I suggest you go and have discussions with those that know you and get them to explain it in terms you do understand.

Hubert Kay • June 12, 2013 5:03 PM

Snowdon broke the law similar to how Oskar Schindler broke it. Both are heros in my book.

Alex Kossagian • June 12, 2013 5:05 PM

The item that sticks out most in this whole mess is the 12 year old backstory that has been put out. The NSA has run a FISA-sanctioned surveillance on every American who has ever had contact with a terrorist or suspected terrorist and that has been done for national security purposes. From the works of James Bamford to the steady stream of hints in Congressional hearings, the public has been told that the surveillance has been authorized and reasonable. Having the ACLU go off the deep end with their “FBI tracking everyone’s library card” and “if we wiretap Osama’s American penpals – the Constitution has been shredded” has not helped keep the NSA actions in perspective.

But Snowden did not disclose some sort of 80,000 or so list of Americans on some inadvertent contact list, but . . . .The WHOLE country. . . .

Comparing Clapper’s fib to the shocking disclosure is like comparing “Waste Management has some issues with their accounting” with “Enron has some issues with their accounting”. . Waste Management was an operating company with some rejiggered revenues. . .Enron was a rejiggered revenues pretending to be a company.

And the mindless distinction without a difference “Metadata isn’t the same as the content of the emails”. . .If the NSA issues a national security warrant for the Google search “magic sauce” that combines the prior searches with the content of the gmail messages and compares the results with a similar search from the “magic sauce” with only the prior searches, I don’t think it will be hard after a few hundred iterations to reverse engineer the contents of the emails . . .

The metadata of the cell phones includes the time, recipient, place (from the cell phone tower indicators) and duration of every phone call. There still hasn’t been any disclosure if they included the Google maps/subscriber signal that the phones constantly transmit to check signal strength. . .but it is looking a lot more like an excellent realtime surveillance system. . and the best we have gotten is . . .”TRUST ME . . I’m from the government.”

The Patriot Act was sold to the American people as a reasonable extension of foreign threats that have American connections and the American people were told to trust their government to exercise this authority responsibly. Unfortunately, the NSA has shown very little responsibility in its efforts and has chosen to search every American rather than put the onus back on the rest of the government to try other methods – like deporting illegal aliens from terrorist sponsoring countries. .

Captain Ned • June 12, 2013 5:12 PM

You may consider Snowden a hero. I know for a fact that my retired-military father, who held clearances and signed many of those “if you do this” forms, would readily volunteer for the “dawn patrol”, if you catch my drift.

As for me, I have no firm opinion. While I wish this stuff didn’t happen I’m cynical enough to know that it does and that no matter what steps might be taken to rein it in, it will always go on even if deep underground. Capabilities once proven will not easily be discarded.

brandon • June 12, 2013 5:38 PM

our goverment is corrupt as it has ever been, we NEED revolution and we NEED to take america back from the corporations that are running it. ppl need to wake the hell up already! does anyone really think just because this is out that our goverment will stop stomping on our rights?!? no they will continue in secret as usual. obama promised us in 08 that this kind of crap would stop, he in fact expanded on it instead. he lied. i say get rid of EVERYONE in our goverment, and show the 1% they need to stop treating us like peasants and themselves like kings. WAKE UP AMERICA!

brandon • June 12, 2013 5:42 PM

meanwhile our goverment will continue to create more instances to get public backing to take away more rights from law abiding citizens. soon enough the goverment wont give a crap about its populace (they wont be able to fight back who cares) and itll be a full blown tyranny not that isnt already, if only ppl would wake up and clean house. we need a revolution!

bf skinner • June 12, 2013 6:02 PM

Hi Troll.

“our goverment is corrupt as it has ever been”
Uh. No. Read a book.

“we NEED revolution”
Uh. No. Read a bunch of books.

“and we NEED to take america back from the corporations”
Closer. Propose a plan. Yes. THAT’S ON YOU. Bummer. but you identify a problem you identify the solution. Capitalism has improve the physical wealth and well being of the country. I’m not ready do shit can it without clearly articulated alternative.

Bruce Stephenson • June 12, 2013 6:33 PM

@BRN, who seems very authoritarian and quite disingenuous but probably is not a sock puppet:

“This was not hiding Jews from Nazi’s and this wasn’t stopping a serial killer in the process of killing someone. This wasn’t even stopping a violation of human rights. So everyone should stop using those analogies.”

Normally I’m quick to point out when a conversation has been ‘Godwined’. Usually, once the Nazis are introduced, the discussion is over. However, when discussing the behavior of the USA military/industrial/espionage complex, the analogy to the behavior of the Nazis is so glaringly obvious and appropriate that disallowing it would silence historically valid comparisons. Such as pointing out that the actions of the Hungarian resistance fighters were ‘illegal’ while the actions of concentration camp executioners were ‘legal’.

Establishing a ubiquitous intelligence gathering system is a clear and obvious warning sign that massive human rights violations are in the works. If this is not obvious to you then you need to study more history. Such a system has no place in a republic.

Finally, massive human rights violations have already been committed by the system that Snowden served before becoming a whistle blower. Perhaps this disclosure will prevent some. By any reasonable count the USA military/industrial/espionage complex has murdered millions of civilians since the end of WW II. E.g. in: Afghanistan, Angola, Bolivia, Cambodia, Chad, Chile, Colombia, Congo, East Timor, El Salvador, Haiti, Honduras, Indonesia, Iraq, Korea, Laos, Nicaragua, Pakistan, Sudan, Viet Nam, and others. Probably not yet as many direct civilian murders as the Nazis committed during WW II, but already in the multiple millions and catching up fast. This renders comparison to the Nazis within acceptable bounds.

I suggest we geeks temporarily suspend enforcement of Godwin’s Law when discussing the actions and behavior of the USA military/industrial/espionage complex. Please, though, let’s not go overboard, and try to remain within the bounds of good taste.

pants • June 12, 2013 6:37 PM

@BRN

Remember what was said earlier? He likely felt his only option was to expose it to the public; his superiors, or the “authorities” to which you say he should have reported, were the very people who have the power to prevent him from doing so, and to continue unchecked. I put authorities in quotes because the citizens are supposed to be the real authorities, not the tyrannically behaving, money hungry government.

As for the “national security” argument, the terrorists against whom they claim are the sole reason for operations like Prism are not the type of people who would operate under the assumption that their metadata (if not their content as well) isn’t being collected and filed.

If you were a terrorist, would you go around making calls and sending messages to fellow terrorists recklessly, or would you, JUST IN CASE, be as cautious as you could about it?

SNOWDEN’S DISCLOSURE WAS IN NO WAY A THREAT TO NATIONAL SECURITY BECAUSE IT ONLY CONFIRMED THE EXISTING SUSPICIONS OF ANY OF THE RELEVANT INTERESTED PARTIES. HIS DISCLOSURE AROUSED AND AFFIRMED THE SUSPICIONS OF THE VICTIMS OF THE PRISM PROJECT, THE UNITED STATES CITIZENS. YES, VICTIMS. THOMAS PAYNE WAS RIGHT THEN, AND NOTHING’S CHANGED; ANYONE WITH ANY common sense, LET ALONE AN EDUCATION AND THE ABILITY TO COMPREHEND THE CONSEQUENCES (I.E., THE PROSECUTORS) OF PUBLIC DISCLOSURE OF THE PROJECT’S DETAILS, WOULD ARRIVE AT THE CONCLUSION THAT THE TERRORISTS HAVE NO GREATER ADVANTAGE THAN THEY DID OR DIDN’T HAVE PRIOR TO THE DISCLOSURE. BECAUSE SNOWDEN KNEW THIS, HE enlightened the blind to their condition (THE CITIZENS), WITH FULL REGARD FOR THEIR SAFETY. IT WASN’T IN SPITE OF NATIONAL SECURITY THAT HE DID WHAT HE DID, IT WAS OUT OF CONCERN FOR THE PEOPLE. AGAIN, HE DIDN’T FAIL TO “EXHAUST ALL AVENUES,” HE KNEW HE ONLY HAD ONE: THE PUBLIC. HIS ACQUITTAL WOULD NOT SET THE PRECEDENT THAT YOU “WON’T BE ARRESTED FOR RELEASING TOP SECRET INFORMATION,” IT WOULD CHIP AWAY AT, IF NOT BREAK, THE CYCLE OF UNCHECKED RAMPANT ABUSES OF POWER AND VIOLATIONS OF OUR RIGHTS. EVER HEARD OF THE “FOOT IN THE DOOR PHENOMENON?” IT’S WHEN YOU ASK A SMALL, EASILY ATTAINABLE FAVOR, SO THAT FUTURE REQUESTS RECEIVE LESS, IF ANY, OPPOSITION, AND THEY’RE TRYING TO DO IT ON A MASSIVE SCALE. BY THE TIME WE’RE MORE THAN LEGALLY POWERLESS TO OPPOSE SUCH OPPRESSIVE PRACTICES, IT WOULD BE TOO LATE. WHO KNOWS, MAYBE IT IS ALREADY.

I WOULD VENTURE TO GUESS THAT NOW IS THE TIME TO FOCUS OUR ATTENTION ON THE CURRENT POLICY PROPOSALS, RATHER THAN BE DISTRACTED BY SNOWDEN’S FATE, HOWEVER. NOT TO SAY THAT WE SHOULDN’T SUPPORT HIM AND HIS CAUSE, WE SHOULD SIMPLY BE VIGILANT IN A FULLY COMPREHENSIVE MANNER, RATHER THAN BE INADVERTENTLY POLITICALLY COMPLACENT AS A RESULT OF THIS INJUSTICE.

You know it was important, because it was in capitals.

Anon • June 12, 2013 7:02 PM

There is at least one part of this article that I call out as total BS: that NSA officials have repeatedly lied to Congress. The House and Senate intelligence oversight committees have known about these programs since their existence. If DNI Clapper lied to Congress in a closed door, classified session, you’d see calls for his resignation and maybe even Presidential impeachment.

Chris • June 12, 2013 7:16 PM

There is at least one part of this article that I call out as total BS: that NSA officials have repeatedly lied to Congress.

He didn’t just lie to Congress, but he lied to the American people. Who cares what Congress knew. When you’re under oath, on CSPAN testifying, you’re speaking to the American people.

Dirk Praet • June 12, 2013 7:41 PM

@ Bruce Stephenson

I was actually unfamiliar with Godwin’s Law. Thanks for pointing that out, and I will try to refrain from making such comparisons in the future even though a quick look at Wikipedia seems to allow some lenience when the topic of debate is on totalitarian regimes or ideologies.

Hopechild • June 12, 2013 7:42 PM

I think it would do well to quote Martin Luther King Jr.’s opinion regarding law in his “Letter from Birmingham Jail” : “One may well ask: ‘How can you advocate breaking some laws and obeying others?’ The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”

Laurie Mann • June 12, 2013 7:51 PM

I do not believe Snowden is a traitor and have been sad to hear usually rationally politicians (and there are so few of them these days) call him that as soon as his story broke.

I’m leaning towards hero…but I really want to know more.

George • June 12, 2013 8:01 PM

The prosecution of Snowden (like that of Manning) will be about the wrathful vengeance of an administration even more obsessed with secrecy than its much-criticized predecessor. The main purpose will be to show anyone considering whistle-blowing that the Obama administration has Zero Tolerance for such behavior and will lash out against offenders with full force and fury. The broken law is merely the mechanism for unleashing that force and fury; and notions of justice and whether the disclosed government conduct is legal or proper are irrelevant distractions from the chilling display of official wrath.

Ponter • June 12, 2013 8:18 PM

Anon and Chris: It’s an indisputable fact that officials have not merely the right but the Patriotic Duty to lie and/or break the law when they decide it’s necessary to protect National Security. Clapper lied with a clear conscience, and slept well after telling an untruth to Congress and the nation, because he was heroically safeguarding the secrecy of a program vital to National Security.

In normal times that might be called perjury, but these are not normal times. To protect our Homeland, and to keep safe and secure what we value most, our Leaders must have full authority to place themselves above the law when they decide it’s necessary. If the untrue testimony was done not out of selfish interest but to protect a vital secret, it’s Heroism, not perjury. It’s clear that Snowden is not just a criminal who broke the law against disclosing classified information, but a traitor because the secrets he exposed aided the enemy and damaged National Security. Conversely, Clapper is a hero because he properly put the protection of the Homeland’s vital secrets above an oath to tell the truth.

That’s may seem a complex and incomprehensible moral calculus, but it’s really quite simple: Some people must be above the law when that’s necessary to protect National Security. You might argue that’s contrary to the constitution and to the very principles that make America something more than the many authoritarian regimes on this planet. But if you argue that, you forget that 9/11 Changed Everything. If we want to secure the Homeland against unspeakably evil people who want to destroy it, we must trust our Leaders unquestioningly and allow them to do in secret whatever they decide is necessary to keep the Homeland secure. Anyone who suggests otherwise aids the enemy.

brandon • June 12, 2013 8:26 PM

wow ponter if you really believe that crap your a moron, these goverment officials breaking the 4th amendment didnt stop any of the school shootings it didnt stop what happened in boston, IT HASNT STOPPED ANYTHING! since when is it ok to walk all over our 4th amendment, waste time and resources for something that isnt doing what they say it is? this isnt about security, this is about them breaking the god damn law. i hate anyone who wants to give up freedoms for “security’ nothing can stop someone from killing another person. ban guns (not that criminals follow the law anyway) and they will kill you with any other god damn instrument. ppl need to take responsibility to protect themselves instead of hoping the cops show up in time (didnt help the school shootings did they) or hoping the goverment will keep them safe (HAH). if ppl took it apon themselves to keep themselves safe and carried a gun criminals would think twice about commiting a crime against a ‘helpless’ civilian

name.withheld.for.obvious.reasons • June 12, 2013 8:31 PM

Mr. Snowden is not a hero, he is a citizen. And if half the people that frequent this blog would have the courage and conviction of their obligations as citizens we would not be discussing the merits of a lawless government agency. I am ashamed of my fellow countrymen that have embrassed the diluted rhetoric that security can substitute for liberty. Grow a pair.

Moderator • June 12, 2013 8:43 PM

Brandon, your irony detector is malfunctioning, as are your shift key and your self-control. And you are definitely not welcome to start a gun debate in this thread. I strongly recommend you quit while you’re ahead, since your comments are not helping anything, least of all your own case.

Dirk Praet • June 12, 2013 8:50 PM

@ Ponter

Wow !

Please allow me to congratulate you for being a model citizen on behalf of Joseph Stalin, Mao Zedong and He Whose Name Shall Not Be Mentioned. I think I’ll have a double whisky now.

brandon • June 12, 2013 8:54 PM

whatever you say “moderator” cant wait for mind control pills being forced on us to “keep us safe”. freedom of speech, or ya gonna walk all over that as well? i wasnt starting a gun debate, i was stating that if ppl really want to feel “secure” then they shouldnt put that reponsibility on others. deal with it

IraqiGeek • June 12, 2013 10:29 PM

The program, whatever its real nature is, was authorized by congress (legislative branch), signed by the president (executive branch), and is overseen by an 11 judge panel (judicial branch), the congress intelligence committee (also part of the legislative branch) and the attorney general (again, executive branch) are regularly briefed on its activities . If that’s not legal, I don’t know what is. If you can’t trust your elected representatives, elected government and judicial system, then to hell with democracy.

As far as Snowden being hailed a hero, seriously! You really think that at this point?!

The guy has lost almost all credibility since revealing his identity. He’s lied about most of what he told about himself. And if it wasn’t for the leaked slides, no one would believe him.

freedom • June 12, 2013 10:30 PM

I am disheartened by the handful of condemnations of Snowden. However, I wonder how many are real people and others that are fictitious.

It is crystal clear to me these surveillance operations are illegal by any American legal interpretation, and concealing these programs would be illegal. As a military officer myself, it is perfectly clear what Snowden did was completely lawful in respect to the constitution of the US, as well as international law, and in fact a required action in respect to precedents from the Nuremberg trials.

A word to those that are familiar with history and our current trajectory: You know where this is going… Get ready. Hope for the best, and prepare for the worst. Meanwhile wake as many people up as possible to what is going on. Building a local underground at this point would be a fairly prudent strategy, either to protect whistle blowers, or to hide dissidents. With any luck, it won’t go beyond that.

“We few, we happy few, we band of brothers. For he today that sheds his blood with me shall be my brother; be never so vile. This day shall gentle his condition. And the gentlemen in England now abed shall think themselves accursed they were not here, and hold their manhoods cheap whiles any speaks that fought with us on St. Crispin’s Day” – Henry V, William Shakespeare

Now is the time to work like hell. Help in any way you can. Sitting on your forth point of contact is not a strategy. Let’s work hard on this now and try to keep this a conflict of ideals, before it get’s completely out of control.

Thank God we have courageous people like Glenn Greenwald and Ed Snowden. I’d give them both the highest commendation that I could bestow.

freedom • June 12, 2013 10:52 PM

@iraqigeek

“The program, was authorized by congress (legislative branch) – through threats , signed by the president (executive branch) ok, you got one branch , and is overseen by an 11 judge panel (judicial branch) a secret court, that has no oversight, and that, in fact, has possibly been ruled illegal but it’s secret, so you can’t know the result. Which is compounded by the executive branch blocking any review by superior courts including the supreme court the congress intelligence committee (also part of the legislative branch) regulatorily captured or through extortion and the attorney general one of which refused to sign /renew it, resulting in a Tom Clancy style arm twisting and compulsion (again, executive branch) are regularly briefed on its activities really, that’s just a lie, everyone who is read into this is part of it. If that’s not legal, I don’t know what is. it’s pretty clear, it was enumerated pretty clearly in the Constitution If you can’t trust your elected representatives, elected government and judicial system, then to hell with democracy. It’s a republic that is charged with defending the rights of the weak

There will be an accounting eventually, and everyone on the criminal side will be dealt with by a jury of their peers. Subverting the Constitution of the United States is TREASON period. Think carefully about what side of history you are on.

IraqiGeek • June 12, 2013 11:20 PM

@freedom

How do you know the FISA court has no oversight? Just because the details are classified does not automatically mean there is lack of oversight and/or auditing.

And I’m sorry but I don’t buy the argument that all the house and senate members who know about this program were threatened to agree on it. Ditto for the house/senate intelligence committees being extorted.

Can you be specific about what it is in this program that goes against the US constitution? (mind you, I’m neither american nor live in the US).

While at it, who represents the people of the republic? Aren’t they those same officials that authorized and re-authorized this program under two administrations?

Everyone is talking about the constitutionality (or lack thereof) of this program, while the only thing we know so far is that no proof was given that it breaks it.

A few points to chew on:
1- Why would all the companies involved come out to deny the allegations Snowden made and ask the attorney general and FBI director to release the actual numbers if it was as Snowden claims?

2- How come NONE of the western governments (and especially EU countries, which are uber-stringent when it comes to privacy rights) speak out to condemn this program?

3- If indeed the NSA was siphoning all the data Snowden claims they are, where and how on earth are they storing it? Pause to think about that for a moment. Google, Microsoft, Yahoo, Facebook and Apple, each need a multitude of datacenters to handle all that data. And storage manufacturers are barely able to keep with their demands as is.

4- Those same companies, whose combined value is north of a Trillion US Dollars, live off their user base and their ability to maintain their trustworthiness in front of their users. Don’t you think they’d fight to the last breath against a program that would greatly harm their interests? If there is one thing that is clear from the leaked powerpoint slides, its that they were not coerced to enter the program given the years it spanned for all those names to come in, and the number of other companies still missing from that list.

I don’t think history will remember anything from this other than how out of proportion it was blown.

twofish • June 13, 2013 1:58 AM

Big news headline in the South China Morning Post was “US Spy Net Targets HK.” The big news was that the NSA appears to have been hacking civilian targets within HK unconnected with the Chinese military.

It’s worth going to http://www.scmp.com/ and http://www.guardian.co.uk/

to see the coverage outside the US. It’s very different.

Latest estimates are that if the US demands extradition, that Snowden can tie up the legal process and stay in Hong Kong for three to five years.

In the past, HK has allowed the CIA to kidnap people that were wanted, but there is zero chance that this is going to happen.

The US Department of Justice is going to have to think very, very carefully about whether or not to prosecute and if so what charges to prosecute for.

Public opinion in Hong Kong is strongly pro-Snowden. The pro-Beijing people think that he is a good person for exposing US hypocrisy. The pro-democracy people like his stand on civil liberties. A lot of people don’t care, but no one is against him.

twofish • June 13, 2013 2:18 AM

As far as whether Snowden broke the law, I’d debate it….

18 USC 798 says (a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information…..

I’d argue that 18 USC 798(a) does not apply to Snowden because the information is not “prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information.”

OK. You disagree. But then you run into another problem 18 USC 798(a) doesn’t limit disclosure to the person that originally possesses the information. Under 18 USC 798(a), you, me the Guardian and half the people on the internet are guilty. It’s not a defense to 18 USC 798(a) that everyone already knows the information, and if you take the literal language of the law, everyone in this forum is just as guilty as Snowden is.

You can make some legal arguments that 18 USC 798(a) really doesn’t mean that, but then things become “debatable.”

twofish • June 13, 2013 2:26 AM

Need some technical assistance….

Working on this hypothesis

that one of the important parts of Prism is a module that has the private keys of the major ISP’s.

So the idea is that when Prism started, the NSA immediately was able to break Yahoo and Microsoft’s private keys. Google took a bit longer and ISP’s are “added” to Prism as their private keys get broken, and Prism itself was started the month after the Protect America Act was passed by Congress.

So the question is, how feasible is this hypothesis. Was there any weakness in key length that would make Yahoo and Microsoft more vulnerable to having their SSL certs broken?

bcpmoon • June 13, 2013 2:39 AM

“Wo Unrecht zu Recht wird, wird Widerstand zu Pflicht.” Brecht.

I think this issue taps into very old questions. What is a state? What kind of authority is transferred by the citizen to the state under what conditions?
And: “The state” is not a godlike benevolent entity on its own. It comprises of other people and the data that is collected can and will be used against you.

twofish • June 13, 2013 3:14 AM

1- Why would all the companies involved come out to deny the allegations Snowden made and ask the attorney general and FBI director to release the actual numbers if it was as Snowden claims?

If the NSA was tapping into the data stream before it was going to the companies then the companies don’t know about it, and they wouldn’t see it through national security letters.

If you look at google’s blogs, the message is “we aren’t cooperating” not “it didn’t happen.” Google and facebook are tech savvy to know that the big crap has yet to come out, and they don’t want to get brushed with it.

2- How come NONE of the western governments (and especially EU countries, which are uber-stringent when it comes to privacy rights) speak out to condemn this program?

Because they find it convenient to use US data to do what they want to do but can’t under their own laws. In the end, I think you’ll find two groups of politicians in Europe. Those that really care about privacy and who were therefore kept out of the loop, and those that really don’t, who just use US data to do what they wanted to do themselves but couldn’t.

3- If indeed the NSA was siphoning all the data Snowden claims they are, where and how on earth are they storing it? Pause to think about that for a moment. Google, Microsoft, Yahoo, Facebook and Apple, each need a multitude of datacenters to handle all that data. And storage manufacturers are barely able to keep with their demands as is.

Storage is cheap. The large size of the data centers is for CPU processing. Disks are small and cheap, and their cooling requirements are nowhere as large as CPU meaning they can be put in a small data center.

4- Those same companies, whose combined value is north of a Trillion US Dollars, live off their user base and their ability to maintain their trustworthiness in front of their users. Don’t you think they’d fight to the last breath against a program that would greatly harm their interests?

If they knew about it. The recent google blogs are quite interesting.

Twofish • June 13, 2013 3:21 AM

IraqiGeek: How do you know the FISA court has no oversight? Just because the details are classified does not automatically mean there is lack of oversight and/or auditing.

Read FISA Section 702 – 50 USC 1881 – http://www.law.cornell.edu/uscode/text/50/1881a

The FISA court merely exercises oversight over the targeting and minimization procedures. It’s very minimal review.

Wesley Parish • June 13, 2013 3:34 AM

Question: does the US government wish its activities to be kept secret?

Yes.

Does the US government go to extraordinary means to make sure its activities are kept secret?

Yes.

Do said activities in themselves necessarily need to be kept secret?

No.

Is widespread knowledge of these activities in itself a threat to US national security?

No.

Is widespread knowledge of these activities an embarrassment to the executive branch of the US government?

Yes.

Is the embarrassment resulting from the widespread knowledge of these activities a life-threatening condition?

Only in circumstances such as the executive branch outing an intelligence agent. Plume, anybody?

The conclusion I am driven to is that all the hoo-haa about US National Security is just that – hoo-haa, a little shadow play, to blind us to the unpleasant reality that the US government executive branch is petty and intent on taking revenge instead of taking consideration.

Scott • June 13, 2013 4:52 AM

@Phil

The problem with talking about what Snowden “exposed” is that he’s not shaping up to be necessarily very trustworthy as a credible whistleblower.

That doesn’t even rate a sarcastic “nice try”. But if you genuinely smell merde everywhere you look – perhaps the location of your head is the problem. (don’t take that the wrong way)

Jack • June 13, 2013 5:03 AM

On thinking on this more, I think I can sum up my feelings:

I think that if there is a majority of Americans who approve of this, legality does not matter.

This is not in line with the spirit of the first or fourth amendments. When people claim it is, they are asking you to swallow a lie.

To set up a system like this, and pretend it will not be abused, and to pretend ignorance of how this kind of system has been abused in the past is asking you to swallow another lie.

It starts as an infrastructure for political control, as Hoover used it, and it ends as a infrastructure for tyranny.

To pretend that we need an infrastructure of surveillance of all citizens and foreigners “because of terrorism” is to swallow yet another huge lie.

I realize these guys all are going, “there is no God to protect us, so we better be as hard as possible”.

Another huge lie they are asking everyone to accept is that there are controls on this system. That this infrastructure of incalculable power is not being abused or will not be abused. Snowden is proof that they have not cared about controls at all.

Coupled with that lie is we are supposed to believe the President, Senators, and Intel leaders are actually in the position to confidently assert that the system is secure. Which is as absolutely absurd as all of these other lies.

Mankind can not be trusted with the kind of power this surveillance system provides.

Jack • June 13, 2013 5:16 AM

@Phil

[The problem with talking about what Snowden “exposed” is that he’s not shaping up to be necessarily very trustworthy as a credible whistleblower. ]

And they trusted this total information surveillance network to him — and untold thousands more.

Everyone admitted on day one, and has continued to admit what he is saying is true.

And this, despite the fact, that these very same leaders have either lied directly or indirectly about these systems.

We know they are telling the truth on this, though, and they were lying when they spoke before.

Quote from Bamford’s article at Wired:

‘Director of National Intelligence James Clapper made similar claims. At a hearing of the Senate Intelligence Committee last March, he was asked, “Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?” To which Clapper responded, “No, sir.” ‘

And let us get this straight: The senate knew that they were getting all of this data when they asked this question.

So the question its’ self was a lie.

And the answer was a lie.

Yet, how do we know, then the information is valid? I will avoid that discussion, because it involves math everyone can figure out.

We could trust Snowden. The corrupt authorities clearly could not.

Clive Robinson • June 13, 2013 6:00 AM

@ Wesley Parish,

Not sure how long you have been reading this blog, but I remember when BO got elected he sent out a document to potential appointies that Bruce posted about.

Put simply the document was an indemnity for BO incase some one who he was thinking to appoint had skeletons in the cupboard that might embaress BO at some future point in time.

I remember at the time thinking BO was a bit of a “control freak” / “micro manager” and wondering if he was going to actually be effective as POTUS because he appeard very “risk averse”.

Well as someone who lives outside the US all I can say from my personal perspective is he has lived down below my concerns. I remember the promises about major things, but they have not happened, and to be honest I don’t know of any positive achivments he has made. Simply because if there have been any –over and above his re-ellection– they have not been noticably published in non US media, and what we see of US media has been likewise.

Most notable of BO reporting was the “stage managed” murder of OBL where the press photos leaked significant information on US electronic intel capability off of a laptop screen. Aside from the sensless leaking for the sake of a “press shot” the general feeling was that the murder was only carried out for political publicity in the lead up to voting etc, not for tactical or stratigic gain and most certainly not for National Security, in fact many indicated that in all probability press photo asside it had considerably harmed US national security and US international relations.

What else has been published is how easily OB is being defeted by his opponents and his failing on even simple campaign promises. In fact the “buff-loonary” of the likes of Warren “blow dry/hard” Buffet and other “birthers” and the shrill illogical and unreasoned rantings of the “Tea Party” with their sad “indocrination of their children” and their political ilk has been given proportionatly more air time and column inches than any BO objective.

The general opinion of EU politicos appears to be BO is “a light weight”. Further it’s been said that the traditional “Heads of State” giving of “presents” on meeting has been used to “send political messages” in that what has been chosen to be given to BO –such as food stuffs or out of region DVDs– are known by the givers as items that will either be destroyed before he gets them or be usless to him.

I don’t know how history will portray BO but currently the words “ineffectual” and “control freak” are being used both privatly and publicaly in some media.

One thing I do know is that usually risk averse control freaks can usually be easily manipulated by those who use their fears against them. We see this with many dictators and tyrants who are easily manipulated by the voice behind the throne. Further it’s historicaly well known as well through the writings of Shakespear, Macievelli and many others.

Captain Obvious • June 13, 2013 10:09 AM

All this talk about how he will fair at trial…

Haven’t we established that the Great Administration has the right to take out their enemies anytime, anywhere, any nationality?

Citizen Sane • June 13, 2013 2:30 PM

Saying Snowden broke the law – that’s it – period – no more discussion – is not at all true. If the laws he allegedly broke are found to be outside what is allowed in the Constitution, then he broke no law. That aside, whether or not he broke the law is far less important than did he do the right thing? The answer is surely a resounding “YOU BETCHA”!!!! At least in America it is. It is important to accept that just because something may be legal, that does not make it right, moral, correct, or in any way ok to do – it only means you can’t be adjudicated for doing it – period. Slavery was legal for well over 350 years – it was universally wrong. What the Nazis did to the Jews was all 100% legal – and 1-billion % wrong. So the legality of his actions are wholly secondary (or even tertiary…quaternary…you get the point) to did he do the right thing – and of course, yes he did. As a final point, I submit this: Is America worth saving when it looks, acts, feels, behaves like Cold War USSR???

vas pup • June 13, 2013 2:49 PM

@Captain Obvious:
“Haven’t we established that the Great Administration has the right to take out their enemies anytime, anywhere, any nationality?”
Not really.
For US citizens set of rules not the same as for others (you may consider that is not fair, but that is how it is now): even when drone killed US citizen outside of US, POTUS specified set of exceptional conditions when it could be done (person really plan to kill Americans being outside of US jurisdiction without chances for extradiction). Inside US – rules of due process applied to US citizen regardless of crime committed/attempt to commit.
For foreigner – different set of rules: just recal when seals killed pirates holding US citizens captive on boat outside of US jurisdiction. Right action! That is very good example to other countries how to protect their citizens anytime anywhere.
My guess is that more intrusive are government security methods, more oversight required. Congress hearing could be not open to the public for reasons of National security, then Mr. Clapper or other official may provide his point in more informative way with reasons provided.

Nobody is above the law in law-guide state. Otherwise that not just feudal security, but feudal state altogether. By the way, the core of idea of equality was equality of law applied for similar actions/crimes. In feudal state law openly applied differently depending of your social status.

Anon • June 13, 2013 5:28 PM

Lots of people here are apparently experts in US constitutional law, despite the fact they didn’t go to law school and in some cases probably don’t even live in the US. In the real world outside blogger land,
1) Personal phones have been around a hundred years and the Supreme Court has never ruled that telephone metadata is constitutionally protected under the 4th amendment. If anybody seriously thinks the Supreme Court will declare that telephone metadata is constitutionally protected, I want to bet on the case for everything you’re worth.
2. If Snowden is extradited to the US, the probability of him being prosecuted is almost 100%. If anything, this administration has been more aggressive in going after leakers than previous Presidents.
3. If Snowden is tried in the US, there is a good chance that he’ll die in a US prison.

me • June 13, 2013 5:39 PM

The desert is full of hot air. Comments are an ethical desert, no offense really intended. My question to those of you who consider Snowden as some victimized citizen is this: what are you, with all your indignations and frustrations, going to actually DO? You’ll do what everyone does, which is make online comments and then…nothing. You feel like you’re “doing” something, but are you? Are you forming groups that will put your butts in the streets outside the white windows? Nope, nope, and nope. So why all the pretend indignation? Why all this arm waving? I just don’t get that. You will go make a sandwhich, watch TV, and go to bed. THAT is the only honest action of the general idealist. Everything written by supposed freedom lovers who support Snowden is like putting a poster on the wall of your favorite band. Sure, everyone knows you’re a big fan but it doesn’t mean you play guitar too. Maybe we’ve all been cowed allot longer than we care to admit to or realize, if it is indeed a general apathy. The pen is only mightier than the sword once there’s a group of people already standing around with swords. In a few weeks, all the gripeing will die down for the most part and people will carry on as usual.

It’s less 1984 and more Brave New World, so words like hero or traitor for Snowden are probably both inappropriate. Carry on though, at least the conversations are reasonably interesting 🙂

me • June 13, 2013 5:58 PM

For some reason I can’t define very well,, I feel like LOL@ the idea of ssl certs being ANY kind of issue for the nsa…anyway, am typing this using the outrageously expensive cost of using a major cell carrier…and think it’s time for me to go write a new blues song…buhbah dah bah bomp..can’t get me no privacy..bah buhdah bah bomp…cant get no relief…so me and this squid…gonna swim out to sea…(insert moaning and wicked blues riff)….

George • June 13, 2013 7:32 PM

What many people forget is that this country owes its existence to the unchecked tyranny of King George III. What the Mad King taught the Founding Fathers was that without checks and balances, without constitutional limitations on the monarch’s power, without oversight, without transparency, governments will naturally behave in a tyrannical fashion. In other words, this nation was founded on the belief that governments can’t be trusted to protect the rights of citizens.

It is indeed possible that the secretive surveillance programs (including the ones we don’t know about) were carefully designed to protect civil liberties and privacy, and to include appropriate oversight. But the pervasive secrecy makes it impossible to know whether any of that is true, especially when the officials in charge of the programs brazenly lie to the public and to Congress. (They probably have a sincere belief that lying is necessary and proper, in order to preserve the secrets that make their programs effective.)

Secrecy inherently invites abuse, along with waste and incompetence. At the very least, secrecy encourages a belief among people involved with the programs that they can get away with circumventing whatever inconvenient protective restrictions are in place. The public will never know about it, so why go to the trouble of jumping through hoops that don’t need to be there, which only make their jobs more difficult?

Given the experiences that led to the founding of this country, along with the subsequent history of abuses by the likes of J. Edgar Hoover, Richard Nixon, and Alberto Gonzales, it is reasonable to assume that the surveillance programs have a high likelihood of abuse. Combined with the pervasive secrecy, it is also reasonable to assume that the various programs are spending a lot of of money invading our privacy and unilaterally demolishing our civil liberties in the name of expanding the bureaucracy, while providing little if any real security. (Just consider the only visible part of the Homeland Security establishment, the TSA. What reason is there to believe that the rest of Homeland Security behind the shroud of secrecy is any different from the “officers” who administer virtual strip searches and “intimate” pat downs?)

Snowden, who might best be described as a martyr rather than a hero, seems intent on provoking a debate that should have happened long ago, about several important questions. How much secrecy is really needed? How much privacy and liberty do we truly need to give up for security? How much security are we really getting, in exchange for what we’re giving up? A thorough discussion of questions like that would do much to restore the checks and balances that distinguish Barack Obama from George III.

Unfortunately, I suspect that Obama, Clapper, and the rest of the Homeland Security gang will do everything possible to prevent that discussion from occurring. The best revenge is to deny the martyr his martyrdom, and paint him as an ordinary traitor who deserves to be punished to the fullest extent of the laws he broke.

Dirk Praet • June 14, 2013 5:36 AM

@ Anon

Lots of people here are apparently experts in US constitutional law, despite the fact they didn’t go to law school and in some cases probably don’t even live in the US.

I have seen no one claiming he/she is and it’s an absolute fallacy to claim that you can’t have an opinion on a subject matter if you haven’t got a degree on it, or not living in the country it’s about. If I’m to understand you correctly, you have no opinion or no right to speak on anything happening outside the US and will refrain from making any comments on issues you don’t hold a diploma in. So unless you have a degree in constitutional law, by your own logic you can’t make the first of your 3 points.

I’ve got no problem whatsoever with anyone giving his/her (preferably informed and well-argumented) opinion on anything, but I do have a bit of a problem with flawed logic, especially when used to shut other people up.

Failpoint • June 14, 2013 2:11 PM

thanks twofish for the references

haha @ freedom “Clancy style arm twisting and compulsion”
or maybe Ellison style glossing over facts to make a story look shiny. Sorry cupcake, Hollywood doesn’t get to re-write history.

I bring up the “Why Now” issue because of a previous post and common knowledge. The A.P. is so man-handled by the Press Sec. that I wonder how much media manipulation is in play here…

from the FBI-backdoor thread:
Under a ruling this month[July 2007] by the 9th U.S. Circuit Court of Appeals, such surveillance — which does not capture the content of the communications — can be conducted without a wiretap warrant, because internet users have no “reasonable expectation of privacy” in the data when using the internet.
http://www.wired.com/politics/law/news/2007/07/fbi_spyware
ref
http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy (relevant to Snowden)
http://en.wikipedia.org/wiki/Protect_America_Act_of_2007 (relevant to Snowden)
http://en.wikipedia.org/wiki/PRISM_%28surveillance_program%29 (relevant to Snowden)
http://en.wikipedia.org/wiki/USA_PATRIOT_Act
http://en.wikipedia.org/wiki/Carnivore_program (Swordfish anyone?)
Carnivore abandoned for Narus:
http://en.wikipedia.org/wiki/NarusInsight
and strategic sigint capture:
http://en.wikipedia.org/wiki/ECHELON

for the purpose of quick reference.

I wrote back in Jan – “Apply this non-updating of law to what the gov’t is trying to do… which is PLAY CATCH-UP WITHOUT HAVING TO WRITE ARTICULATED LAW THAT GOVERNS AGENCY ACTION.”

I hate quoting myself but the media channels package the “news” like it is some new amazing discovery. The government’s history of action is important here. They really do run against the technology race and place bandaids everywhere without fixing policy.

The intelligence community is not law enforcement, and there are Acts that blur the lines. Egregious is not strong enough.

Anon • June 14, 2013 2:50 PM

@Dirk Praet

If you read my point 1 again, I’m careful not to say what the 4th amendment means or what the FISA act means. I’ll leave the interpretation of the 4th amendment to the constitutional lawyers. An entirely separate issue from what the law means is what will a judge say the law means. If there’s extensive case law on a subject, then often even a lay person can predict how a judge will rule, without trying to interpret the law themselves. As for the reverse situation, I have no intention of trying to interpret European laws or give Europeans legal advice.

Thomas H • June 15, 2013 2:46 PM

@ Jack:

“And when I say it could be staged, I see it as either way. Snowden could be operating truly against this system, or he could be operating for it.”

Or, as a third option, he could be operating for it unknown to himself.

The following scenario seems possible:
The NSA wants to push some big fish in technology of which they know trying to introduce it the normal way will cause undesirable waves. So instead they find a somewhat idealistic person within their organisation to showcase a small fish to the world, manipulating him by feeding him (giving him access to) information that they know will set him off based on past behaviour. This causes a ruckus that in turn sets off a (patriotic) reaction that is used to push through the big fish unseen.

Sounds like an outlandish conspiracy theory or good movie plot? Perhaps. On the other hand, using a decoy to execute some bigger operation elsewhere is an often used strategy…and the decoy does not need to know they are used as one, especially if they are convinced that what they are doing is right.

Doug T. • August 10, 2013 9:36 AM

The problem I have with this argument is, Snowden broke the law to expose the fact that government was breaking the law. If I have to break the speed limit in order to drive a heart attack victim to the hospital emergency room, do you really think I should get a ticket for speeding?

Scott "SFITCS" Ferguson • August 10, 2013 11:11 AM

@Doug T.

If I have to break the speed limit in order to drive a heart attack victim to the hospital emergency room, do you really think I should get a ticket for speeding?

Doesn’t matter what “I/we” think – unless validation is more important to you than avoiding the penalties for speeding 😉

IANAL but, committing a small crime to prevent a larger crime has successfully been argued for mitigation.

e.g. jaywalking to prevent a robbery, assault to prevent murder.

In the example you gave – in many countries you generally won’t get charged. Depending on how you look and act (and how you were driving), and the mood of the police that pull you over.

Whether it gets torn up is less likely after it’s been written. (As an analogy for Mr. Snowden’s case – that ticket can’t get torn up without powerful people losing face.)

Once it gets to court it’s even less likely to be dismissed. Speeding ticket or leaking. To dismiss a judge would have to decide that the reason for you being in court means someone was at fault… and most judges aren’t quick to accuse the police of being at fault.

The best you can hope for is mitigation i.e. a severe finger wagging/suspended sentence/small fine etc. for mere speeding.

Even for speeding you would probably have to convince a judge the heart attack was real. (presumably they’d wonder why the police were writing a speeding ticket while some one was having a heart attack in the car).

You could then probably appeal your way up through the various courts against it but regardless of the outcome – you still “get a ticket for speeding“. i.e. it’s still a crime until a judge says you aren’t guilty of it – whether the police decide to charge you in the first place (give you a ticket) is only part of the issue.

Your analogy is sound, unfortunately Mr. Snowden (for whom I have the greatest respect) has been issued with a ticket and the police are saying there was no heart attack victim. And their careers, and their budget, is on the line.

So maybe, if the system plays fair, and Mr. Snowden can demonstrate that:-

  • he tried reporting illegalities through the proper channels
  • there were illegalities

then maybe he’ll be granted some mitigation.
Like life instead of the death sentence. Or warm water while “snorkelling”.

Mary Phagan • March 11, 2016 11:00 PM

Not only do we need to adjudicate the legality of these programs, but also, we need to know who is really behind them. Fact is, dual citizen Israeli assets at the highest levels of our government had the motive, means, and mass media moxie to implement these dubious programs with impunity.

While the revelations of the allegedly Rothschild controlled Guardian may give us the pacifying impression that our “open system”, our democracy, and our “free media” are working in America and England, etc., the fact is, the surveillance system being implemented, the so called “digital all-seeing eye”, is a breach of our national security, not the enhancement thereof, because, as Bamford, for example, documented in his 2008 book “The Shadow Factory”, Israeli companies with close ties to Israeli intelligence were given the keys to the kingdom, so to say, when Israeli-made Narus 6400 Super CPUs and software were installed in the NSA rooms at the landing site Telco switches, which gave Israel, not the NSA, first grabs on the data — 80 to 90 percent of Net traffic — mirrored by the fiber optic taps, as divulged by ATT&T leaker Mark Klein, etc. See, too, the research by Christopher Ketchum on this. As Dr. James Preston of VeteransToday noted, the so-called “Five-Eye” surveillance system set up in the 1948 ESCHELON project has transmuted into the “The Six Eyes”, where Israel has effectively trumped the NSA.

So, point is, the very pretext which is given for this system (national security) is a complete farce–just as it’s a farce for paranoid delusional psychopaths to deride “outlandish conspiracy theories”, or for the world’s worst bigots and racists to set themselves up as the world’s experts on “hate speech”, bigotry, and “hate groups”, etc. All it takes for evil people to rise to power is for fools and cowards to call evil good. Before this short life is done, please consider that, you whomsoever may read this.

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