As Lincoln said, “Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”

It’s a familiar enough idea. You see it in both Macbeth and the genesis story of just about every Marvel supervillan. It’s true, I think, not just of people but also of institutions. Like governments.

Just about every time I go to federal court for a sentencing hearing — where it seems the AUSA is fighting for each additional month in prison like it will take a point off his mortgage — I think about this quote from Nietzsche:

It is not unthinkable that a society might attain such a consciousness of power that it could allow itself the noblest luxury possible to it – letting those who harm it go unpunished. ‘What are my parasites to me?’ it might say. ‘May they live and prosper: I am strong enough for that!’

The idea, as I understand it, is that a truly powerful society — one that knew it was powerful — wouldn’t need to punish people within it, because it would realize that those who the society would punish don’t actually do it much harm in the end. Such a society can take the hit. On the flip side, exercising power reveals weakness.

Something like that, I think, is what’s wrong with the war on drugs. Sure, the U.S. has demonstrated that we can incarcerate large swaths of people of color. We’ve got that power. But it masks that we’re not actually making much progress to eliminate the drug trade that the policy is aimed at. We’re powerless to stop the drug dealing in our communities.

Similarly, in white collar cases, too often DOJ’s policies seem to be only to chase parasites — picking off the low hanging fruit of a retail con man rather than developing a harder case against an executive of a large corporation. We can’t actually change a broken system of mortgage lending, but boy can we sock it to a few dozen mortgage brokers!

Something like that is at play with how the government is handling the Edward Snowden problem, at least according to last Sunday’s Washington Post.

I feel, at the outset, that any discussion of Snowden should be prefaced by recognizing that people disagree about him. Some think he’s a traitor, others that he’s a patriot. To put my cards on the table, I like that he’s triggering a discussion about civil liberties and national security that we haven’t really had in a meaningful way since 9/11 (See, e.g., this).

At the same time, the guy seems like a tool.

With that out of the way, it seemed that the government was taking a reasonable line with Snowden. President Obama said it best, that the United States was “not going to be scrambling jets to get a 29-year-old hacker.”

This is a good line. A Nietzschean line. Snowden is a parasite — what is he to me? The opposite of love is not hate, it’s indifference. It’s a strong statement about American moral power. Nicely played, Mr. President.

As it turns out, the United States did, however, scramble a team of very senior national security personnel for daily meetings to try to catch Snowden.

For weeks, senior officials from the FBI, the CIA, the State Department and other agencies assembled nearly every day in a desperate search for a way to apprehend the former intelligence contractor who had exposed the inner workings of American espionage then fled to Hong Kong before ending up in Moscow.

Indifference comes harder for some than others, it appears.

But what message does this send?

The United States, rather than adopting Obama’s feigned indifference, really actually tried very very hard to catch the “29-year-old hacker.”

And couldn’t.


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.


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