A National Debate about Government Spying?

On 8 July 2013 the New York Times (NYT) published an editorial on the issue of National Security Agency (NSA) spying on Americans. The editorial described the issue as one of "overwhelming importance" worthy of national debate, and noted that President Obama said that he welcomed such a debate. Then the NYT pointed to a core problem: "This is a debate in which almost none of us know what we're talking about."  

It turns out that everything about the NSA surveillance operation is "classified" and therefore done in secret. As a result there is no public access to the information needed for a debate. That is, until the "leaker" Edward Snowden risked all to tell the American public and, indeed, the whole world, about it.   

Thus, the public now finds out that all the legal justifications for NSA operations are themselves secret. For instance, there is the Foreign Intelligence Surveillance Court, originally created by Congress to judge the legitimacy of government requests for wiretaps. According to the NYT, this court "has for years been developing a secret and unchallenged body of laws ..." that now go far beyond its original mandate. Yet the process of the court's runaway empowerment has been beyond contesting. 

As the NYT puts it, there is a "complete absence of any adversarial process" which is, after all, "the heart of our legal system." To demonstrate this, the editorial tells us "the government in 2012 made 1,789 requests to conduct electronic surveillance; the court approved 1,788 (the government withdrew the other one). Were they all legitimate requests? It is impossible to know because "no one was allowed to make a counter-argument." In other words, the court is an ever more widely used rubber stamp for a part of the government which in its apparently addictive pursuit of information is now literally monitoring us all. And, it is doing so completely in secret, with no checks and balances.   

The NYT concludes that this situation constitutes a "perversion of the American justice system" which Congress, playing (in my view) the role of Dr. Frankenstein, has not been able to bring under control. "The [surveillance] court has morphed into an odd hybrid that seems to exist outside the justice system, even as its power grows in ways that we can't see."  

It is at this point that the NYT editorial falls short. Since the U.S. government's surveillance court was operating in such secrecy, how is it the paper knows enough to denounce it? The answer to this is that someone (in this case Mr. Snowden) leaked the information on which the NYT now relies. Indeed, in the case of such secret government operations it is always a "leaker" who performs the public service of shedding light on dubious and often dangerous official behavior. 

Yet the NYT, has not come to Snowden's defense. It has not noted his actions as praiseworthy or campaigned against the persecution he now suffers at the hands of the administration's Justice Department. By not doing so, the newspaper improperly separates this story from the story teller, and while it informs us of the high importance of the former, it leaves the latter to his fate. What does this tell us about the NYT's editorial board? Perhaps that they lack the moral courage to defend their own sources, to defend, in this case, a man who has done more to uphold American civil liberties than anyone since Martin Luther King.   

Part II -- Edward Snowden: The Threat Is to Civil Liberties  

The man who brought us the story of the NSA and its pseudo-court of justification says he has had no second thoughts about telling the tale. On 12 July 2013, Edward Snowden met with a number of human rights organizations at his temporary refuge in Moscow's Sheremetyevo International Airport. Here are a few of the points he made:  

-- Through his working connection to the National Security Agency, Snowden found that he "had the capability without any warrant to search for, seize, and read your communications. Anyone's communications at any time. That is the power to change people's fates."  

-- Snowden also concluded that the daily use of this capacity by the NSA was a "serious violation of the law. The 4th and 5th Amendments to the Constitution of my country, Article 12 of the Universal Declaration of Human Rights, and numerous statutes and treaties forbid such systems of massive, pervasive surveillance."  

-- "My government [U.S.] argues that secret court rulings, which the world is not permitted to see, somehow legitimize an illegal affair ... The immoral cannot be made moral through the use of secret law."  

-- Appalled by this situation, Snowden took to heart the 1945 Nuremberg principle that says, "Individuals have international duties which transcend the national obligations of obedience. Therefore individual citizens have the duty to violate domestic laws to prevent crimes against peace and humanity from occurring."  

-- Having concluded that the NSA's real and potential secret access to the communications of almost every American, and a growing number of non-citizens, was criminal in nature (perhaps totalitarianism in the making), he leaked the classified information that would bring the NSA's activities into public view. "That moral decision to tell the public about spying that affects all of us has been costly, but it was the right thing to do and I have no regrets." 

Part III -- The Government: The Threat Is To Classified Information  

The U.S. government, which has pursued Snowden as a traitor and criminal, did not take well to these public statements. The White House accused Russia of providing Snowden with a "propaganda platform," and it is reported that President Obama got on the telephone with Vladimir Putin to express his displeasure.