Federal Government, Politics, Privacy, Technology

Did Edward Snowden Have Options?

Edward Snowden returned to the news this week when NBC aired an hour-long interview with him, the first on American TV. Anchor Brian Williams met with Snowden in a Moscow hotel. The 30-year-old former computer systems administrator described his motives for releasing an unprecedented payload of classified information about NSA surveillance.

Snowden is vexing. As a person, he seems a mix of likeable and unlikeable traits. He appears earnest, convinced of the rectitude of his choices even if, as he told NBC, “Sometimes, to do the right thing you have to break the law.” Yet he bristles at Obama Administration characterizations of him as a low-level employee, a high-school dropout. (For example, the president told reporters last year, “No, I’m not going to be scrambling jets to get a 29-year-old hacker.”) Even if Snowden is right to resist the connotations of those labels, listening to him defend himself in the interview can be painful. He insists he was “trained as a spy” who lived under an assumed identity and was a powerful operator. He sounds like a young man with a bruised ego. The last thing one wants to have to worry about in a situation of this great national and international importance, though, is one young man’s ego.

Snowden’s case is more important and more vexing. NSA’s surveillance programs are deeply troubling….

Carefully picking apart, as we are now, the Gordian knot of government intelligence, national security, and individual liberties is possible because of Snowden’s public revelations. For that opportunity, the American public should thank him. Yet our national security should not rest in the hands of one young man who believes, even sincerely, that he knows better. Government, especially government intelligence efforts, simply cannot function that way. As a matter of general principle, the American public is less safe when individuals feel free to leak sensitive information about which they may not have a sufficient understanding.

Believers in a Julian-Assange-style model of an open society may quickly deify Snowden as a hero. Those hewing closely to the official line may unequivocally demonize him as a criminal, a traitor, and a threat to American security. To be honest, I can bring myself to do neither. Purposeful civil disobedience to shed light on widespread breaches of constitutional rights is too laudable to dismiss outright. Unilaterally leaking reams of secret national security documents is too dangerous to endorse outright. So, much of the final judgment about Snowden’s choice hinges on this:

What options did Edward Snowden have?

Edward Snowden

When asked about why Snowden didn’t use another method to address his worries about the NSA surveillance programs, he insists he did at first. Snowden told NBC that he reported his concerns in writing to NSA over 10 times before finally contacting members of the press.

NSA, however, claims that it was only able to locate one such email. Senate Intelligence Committee Chair Dianne Feinstein (D – CA) said that the email “does not register concerns about NSA’s intelligence activities” and “merely poses a question about the relative authority of laws and executive orders.” That message, from April 2013, asks for clarification about a training guideline in which NSA taught employees that the highest governing authority is the U.S. Constitution, followed by “federal statutes/presidential executive orders.” In the email, Snowden questions whether executive orders may override statutes. The NSA official responding to the email instructs Snowden that EOs “have the force and effect of law . . . but cannot override a statute.” You can read a copy of the email exchange here.

As proof of Snowden’s attempts to blow even a tiny, quiet whistle, this single email is rather weak. It reads more like a question from a tentative Con Law student than a clarion call for review of NSA surveillance programs.

However, Ben Wizner of the ACLU, Snowden’s legal adviser, said, “Snowden raised many complaints over many channels. NSA is releasing a single part of a single exchange after previously claiming that no evidence existed. The problem was not some unknown and isolated instance of misconduct. The problem was that an entire system of mass surveillance had been deployed — and deemed legal — without the knowledge or consent of the public.”

On the one hand, one would expect the NSA to be able to retrieve copious records, especially given how much we now know the agency is collecting about every American. (If they’re able to use “backdoor penetration techniques” on me or you, surely they could find a few emails from one of their former employees to one of their current employees, right?) On the other hand, though, the NSA’s track record of deception does not make it a good source of comfort. Do we trust NSA to divulge information that would make Snowden seem less villainous?

Snowden testified to the European Parliament that U.S. law offered him no whistleblower protection. President Obama and members of his administration continue to aver that Snowden did have other options.

The disagreement is hard to definitively settle, even among legal experts in the field. Robert Turner of the University of Virginia School of Law told the Washington Post, “I am very confident that had he gone to the Hill committees or the NSA or DOD or ODNI IGs, it would have been very difficult for anyone to engage in retribution against him without considerable personal cost.” In a paper called “Shining the Light on Whistleblower and Retaliation Claims,” Lynne Bernabei and Alan Kabat of Bernabei and Wachtel argue, “There are two statutes that cover government contractors, but both have significant exclusions that, as for the federal WPA, render them useless for most national security whistleblowers, including people like Mr. Snowden.” However, there seems to be some agreement that someone in Snowden’s position would not be guaranteed protection against employment retaliation, even if the laws in this area might afford him some protection.

So, the question of what else Snowden could have done remains open, as new information about his actual efforts and his legal rights trickles out. I wonder, though, why a man who was willing to abandon his life in the U.S. and live in exile would worry about losing his job if he snitched to Congress or the IG. If he feared for his life, why didn’t he flee the country as he did, but report what he knew to members of Congress once he had safely absconded? Why contact the press then and make a vast trove of national intelligence public before exhausting other options? How well did he think through his options before acting? My judgment, as well as that of many others who value both liberty and security, waits for those answers.

Earlier: Bradley Manning Thinks He Knows Best: The Hubris of a Leaker
NSA Surveillance In 2013: The Year Of Vindicated Political Paranoia

Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com

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