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New York Times: Time To Grant Clemency to Edward Snowden

Edward Snowden 2

The Editorial Board of The New York Times has joined the side of those arguing that the United States Government should grant some form of clemency to former N.S.A. contractor Edward Snowden, who is currently residing somewhere outside Moscow under a one-year grant of asylum from the Russian Government. The Editors open their argument by making note of the fact that the revelations about N.S.A. data mining and related programs have set off a debate in the United States, and indeed around the world, about both the appropriate extent of government surveillance under the excuse of the “War On Terror” and the issue of what constitutes privacy in the era where shared information and personal data being stored in the cloud are becoming more and more ubiquitous. It has also resulted in a number of legal proceedings in open court, as opposed to the secret and largely unaccountable FISA Court, including two that have resulted in opinions from Federal Courts that are likely headed to the appellate courts and, eventually, to the Supreme Court itself. As the Times notes, none of this would be happening without Snowden:

All of this is entirely because of information provided to journalists by Edward Snowden, the former N.S.A. contractor who stole a trove of highly classified documents after he became disillusioned with the agency’s voraciousness. Mr. Snowden is now living in Russia, on the run from American charges of espionage and theft, and he faces the prospect of spending the rest of his life looking over his shoulder.

Considering the enormous value of the information he has revealed, and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service. It is time for the United States to offer Mr. Snowden a plea bargain or some form of clemency that would allow him to return home, face at least substantially reduced punishment in light of his role as a whistle-blower, and have the hope of a life advocating for greater privacy and far stronger oversight of the runaway intelligence community.

The Times also argues that Snowden’s decision to flea the country with the information he obtained rather than going through so-called “official channels,” which many have criticized him for was not necessarily unjustified:

In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not. Beyond the mass collection of phone and Internet data, consider just a few of the violations he revealed or the legal actions he provoked:

■ The N.S.A. broke federal privacy laws, or exceeded its authority, thousands of times per year, according to the agency’s own internal auditor.

■ The agency broke into the communications links of major data centers around the world, allowing it to spy on hundreds of millions of user accounts and infuriating the Internet companies that own the centers. Many of those companies are now scrambling to install systems that the N.S.A. cannot yet penetrate.

■ The N.S.A. systematically undermined the basic encryption systems of the Internet, making it impossible to know if sensitive banking or medical data is truly private, damaging businesses that depended on this trust.

■ His leaks revealed that James Clapper Jr., the director of national intelligence, lied to Congress when testifying in March that the N.S.A. was not collecting data on millions of Americans. (There has been no discussion of punishment for that lie.)

■ The Foreign Intelligence Surveillance Court rebuked the N.S.A. for repeatedly providing misleading information about its surveillance practices, according to a ruling made public because of the Snowden documents. One of the practices violated the Constitution, according to the chief judge of the court.

■ A federal district judge ruled earlier this month that the phone-records-collection program probably violates the Fourth Amendment of the Constitution. He called the program “almost Orwellian” and said there was no evidence that it stopped any imminent act of terror.

The shrill brigade of his critics say Mr. Snowden has done profound damage to intelligence operations of the United States, but none has presented the slightest proof that his disclosures really hurt the nation’s security. Many of the mass-collection programs Mr. Snowden exposed would work just as well if they were reduced in scope and brought under strict outside oversight, as the presidential panel recommended.

Not surprisingly, those who have been most critical of Snowden’s actions in the past, as well as generally supportive of what the N.S.A. has done under the data mining programs are strongly in disagreement with the Times. Max Boot at Commentary, for example, lays the anti-clemency position out fairly clearly:

What we have here is not a case of “whistle-blowing,” as the Times disingenuously claims, but a case of a young, arrogant, headstrong techie with a libertarian bent and a taste for fame who has taken upon himself the responsibility of deciding which intelligence programs the U.S. government may carry out and which it may not. A true whistleblower, like Daniel Ellsberg, stays to face the consequences of his actions-he does not flee to hostile foreign capitals.

By his actions Snowden has placed the entire nation at risk. Even if terrorists and foreign enemies don’t manage to take advantage of Snowden’s disclosures to attack the U.S., the cost of repairing the damage he has caused will be steep-certainly amounting to billions of dollars because he has rendered some valuable collection programs useless.

Perhaps there is a prudential case, as an NSA investigator recently suggested, for offering Snowden amnesty in return for preventing the disclosure of even more highly classified information that he stole-but that is not what the Times is suggesting. It is instead granting its benediction to Snowden’s activities, suggesting he should be considered a hero, not a traitor. That’s a funny stance for a newspaper to take that, not so long ago, in the Valerie Plame case, was aghast at the notion of blowing any secrets-even though the Plame disclosure had an infinitesimal impact on national security compared to the Snowden disclosures.

There are at least a few flaws in Boot’s argument. First of all, as the Times notes, there still isn’t any evidence that the surveillance programs that Snowden revealed have een at all helpful in stopping any terrorist cast, or that they could have stopped past terrorism like the 9/11 attacks. Second, while Boot quite apparently does not agree. there are serious questions about whether or not the actions that the N.S.A is engaging in are Constitutional, as Judge Richard Leon has indicated, and without Snowden’s public revelations there would be no Court in nation engaging in a public review of what the agency is doing. Third, as the Times notes, there is at least a plausible argument for why Snowden would not feel safe staying in the United States after the information he had obtained was made public. Finally, while there remain several reasons to distrust Snowden’s judgment, such as his decisions to flea to places like Hong Kong and Russia, there are even more reasons to distrust the government acting in secret in our name and mining vast arrays of data for information whenever they feel justified in doing so. The fact that the American people had no idea that any of this was happening is something that should bother any American, and the response that we can trust the government not to misuse all this data ignores decades of history showing misconduct by the Executive Branch, law enforcement, and Intelligence Agencies.

Ed Morrissey, meanwhile, argues that Snowden had other options besides reporting this internally at N.S.A. or going on the run:

The editorial presents a false binary choice — NSA officers or going on the lam. There are other channels, including presenting the evidence of wrongdoing to members of Congress.Snowden shrugged that off as well in his interview last month with the Washington Post’s Barton Gellman, claiming that Congressional intel chairs’  “softball questions” to NSA and other intel leaders showed they wouldn’t do anything with the evidence if he provided it. That’s a dodge, though, especially since Dianne Feinstein and Mike Rogers aren’t the only two members of Congress. Senators Ron Wyden and Rand Paul were well-known opponents of domestic surveillance; why not go to them, or anyone else first before taking the cache elsewhere, especially to China and then Russia? The fact that the Times’ editors never even address that channel shows how weak their argument is — which is why they don’t really try to make the amnesty argument in the end.

This argument has been raised before, and at least on the surface it does make sense. After all, one of the functions of Congress is supposed to be oversight of the various agencies of the Executive Branch, and there is a specific standing committee in both the House and the Senate that were established in the 1970s to oversee the nation’s Intelligence Community. These committees have the right to examine everything the Intelligence Agencies do, even if it’s Classified, although dealing with classified material requires the Committee in question to go into Closed Session. Additionally, the members of both Committees are bound by the same rules that cover Intelligence Agency employees regarding keeping classified material secret. Quite often, this has frustrated Committee members who find themselves unable to discuss publicly matters disclosed in Closed Session without exposing themselves to liability for revealing secrets themselves. Ron Wyden in particular has expressed frustration about his inability to discuss what has been revealed to the Committee in Closed Session. As or Rand Paul, who would seem like a natural audience for information like this, it’s worth noting that he is not a member of the House Intelligence Committee,although he is bound  by rules regarding sharing classified information like every other Member of Congress, so it’s unclear what he would even be able to do with the information that Snowden had if Snowden had come to him, other than referring it to the House Intelligence Committee. While the existence of these Permanent Select Committees are an improvement over the world that existed before they were established, the fact that there are severe limitations on what they can do with the information provided to them makes one wonder whether they are really providing proper oversight of agencies like the N.S.A. In short, had Snowden gone to someone like Rand Paul or Ron Wyden it’s still unlikely we’d be having the long overdue debate on government surveillance and privacy that we’ve been having since the summer.

Boot makes one final argument in the article linked about that needs to be addressed, namely that granting Snowden amnesty, or clemency or whatever you want to call it, would permanently damage our ability to gather intelligence:

If Snowden is allowed to get away with his crimes, it is hard to see how the intelligence apparatus of the U.S. can function. Successful intelligence, after all, is premised on secrecy-and that secrecy will not last long if every intelligence community employee feels free to disclose whatever secrets he knows simply because he disagrees with what his superiors are doing. Yet that would be the logical consequence of the Times‘s risible suggestion to rehabilitate Snowden.

While not directly responding to Boot, Conor Friedersdorf points out how wrong that argument is:

Where this goes wrong is imagining that a plea bargain or some form of clemency (or even a presidential pardon) for Snowden would set a precedent or legitimize a general rule of any kind. It would not. The concepts of pardon and clemency are part our system precisely because there are instances when applying rules we’ve generally decided upon would be unjust and counterproductive. They are meant to be used judiciously, on an ad hoc basis, in what are clearly exceptional circumstances.

Snowden’s leak meets those tests. Urging clemency for Snowden is not a radical case against our existing system of rules—it is an acknowledgment that, like all rules, ours are imperfect. One of the finest presidents, George Washington, pardoned farmers who took up arms against the federal government (!) to protest a tax on whiskey. He wouldn’t have granted those pardons had he thought that he was making a radical case against the legitimacy of the U.S. government or setting a precedent for anti-tax insurrections. And it is difficult to argue that any such precedent was set, even at the dawn of the federal republic when norms were still being established.

Today, it is even more difficult to imagine that a pardon for Snowden, or one of the lesser forms of forgiveness the Times advocates, would cause other federal employees to imagine that they’d avoid punishment if, say, they made public the identities of American spies abroad or secret codes from the U.S. nuclear program. As a political matter, the fallout would be dramatically different. And it isn’t as if plea bargains, grants of clemency, or pardons given to one man impose any sort binding precedent in the fashion of a Supreme Court ruling. In the unlikely event that forgiveness for Snowden caused anyone to start leaking other secrets, correcting the problematic “precedent” would be one swift prosecution away.

Friedersdorf also draws up a list of the rough criteria for when plea bargaining, or clemency, might be appropriate for someone who leaked classified information:

When should a leaker of government secrets be forgiven rather than jailed? Here are some possible standards:

  • When the leak reveals lawbreaking by the U.S. government
  • When the leak reveals behavior deemed unconstitutional by multiple federal judges
  • When a presidential panel that reviews the leaked information recommends significant reforms
  • When the leak inspires multiple pieces of reform legislation in Congress
  • When the leak reveals that a high-ranking national-security official perjured himself before Congress
  • When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge

Edward Snowden arguably meets all of these criteria, and for that reason alone talking about something like clemency or, more likely, a plea bargain, seems to me to make complete sense.

There is, of course, one final point to keep in mind. Edward Snowden is currently beyond the reach of U.S. Law Enforcement and Intelligence Agencies for the foreseeable future. This means that we will remain unaware of what else it is that he might be in possession of that could be made public someday? Wouldn’t it make more sense to discuss making some kind of deal with him, in exchange for his full cooperation in exploring (1) what data he was able to obtain, (2) How he was able to obtain it even in cases where he apparently didn’t have the proper Security Clearances, and (3) How Intelligence Agencies could make their systems more secure in the future, rather than just leaving him hanging out there, apparently happy with his current living conditions, wondering when the next shoe is going to drop?

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Woody says:

    What a well-considered post, Mr Mataconis. Your assessment of Mr Boot’s arguments were sharp, and I will quote (and credit) your final paragraph when discussing the Snowden situation with colleagues and friends.

    I still believe that the fact Mr Snowden had to flee the country is a blunt indictment of the Federal Government’s (and the mass media’s) increasing antagonism against civil liberties as some kind of horrible threat to our safety. The mass media in particular was profoundly different in Mr Ellsberg’s day.

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  2. PD Shaw says:

    “One of the finest presidents, George Washington, pardoned farmers who took up arms against the federal government (!) to protest a tax on whiskey.”

    Washington pardoned those that had been convicted. I think there is always a place for foregiveness and leniency, though I do not know all of the particulars involved here to know the extent it is warranted. I would not give such leniency in advance of a conviction and without the benefit of hearing the truth of many of the claims being made.

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  3. Ben says:

    Anyone who says that Snowden should have stayed and “had his day in court” if he really believed in what he was doing is either being totally deceptive or doesn’t understand our court system. If he ever steps foot into a US courtroom, he will not be allowed to talk about what he leaked, why he leaked it, or put forth any sort of argument about the greater good or social justice. The judge will toss all of it:

    http://boingboing.net/2013/12/23/snowden.html

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  4. Phillip says:

    @PD Shaw:

    without the benefit of hearing the truth of many of the claims being made

    Ahh, but those will be deemed “classified” and a “clear and present danger” to our intelligence operations.

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  5. HarvardLaw92 says:

    The guy took state secrets to CHINA and RUSSIA, despite having a multitude of other potential destinations (Brazil, anyone?) which would have potentially less damaging. He chose them for a reason.

    No clemency. No pardon. No nothing other than the opportunity to place himself before a jury of his peers if and when he decides to return home and face the consequences of his actions. Otherwise, let him rot in the Russian bed that he has made for himself.

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  6. michael reynolds says:

    1) As PD Shaw points out: conviction first, clemency second.

    2) The job of the intelligence agency is is, among other things, to complicate the terrorist’s job. To make it harder rather than easier for a planner to put together the resources necessary for an attack. The “prove it would have stopped 9-11″ standard is a bit silly.

    3) You’re demanding a level of proof that you won’t try to meet when it comes to Mr. Snowden, where I might ask, “Prove that he has not made terrorism easier.” Why should NSA have to prove a negative when Mr. Snowden’s supporters won’t?

    4) Now we know the NSA has our email and phone metadata. So? How has any of our lives changed? Have our lives improved so dramatically that it justifies handing national secrets to our enemies? Can someone show me the math on that?

    Congress will pass some oversight tweaks which will change nothing substantial. The terrorists will have had a timely warning not to be careless. And the whole thing will cost us billions of dollars. But now we know the NSA has our phone numbers and can read our emails — a fact which I for one assumed all along. So. . . So what? What’s been accomplished exactly? How are our lives better?

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  7. HarvardLaw92 says:

    LOL, I see that the passive-aggressive chorus is out in force tonight. Keep them coming, folks.

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  8. wr says:

    I’ll take Max Boot’s opinion of Snowden’s actions seriously just as soon as he admits he was entirely wrong in cheerleading for the invasion of Iraq and carrying the Bush administration’s water at all times. His sanctimonious prattlling on what a “real whistleblower like Ellsberg” would do is particularly hilarious. Hands up, who think Max Boot would have been cheering Ellsberg on, or calling him a traitor?

    Boot makes a tidy living sucking up to power and spreading their lies. Why anyone should ever pay attention to a word he writes is a mystery to me.

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  9. MBunge says:

    1. Why should anyone take Boot seriously?

    2. Why should anyone take the NYT editors seriously?

    I’m all for the NYT when it produces good to great journalism. I don’t know why it should have any legitimacy any longer as a cultural institution.

    Mike

    Highly-rated. Helpful or Unhelpful: Thumb up 21 Thumb down 2

  10. stonetools says:

    It is rather clear to me that Snowden’s revelations about NSA spying outside the US hurt American diplomacy and in particular helped shield China from opprobrium in China’s ongoing efforts at industrial espionage-something neither the NYT or the Atlantic guy commented on. Snowden’s disclosures were not totally about domestic spying, folks.

    I also disagree that Snowden proved that any LAWS were broken, as opposed to the NSA’s internal rules on domestic surveillance. I also want to point out that whatever Judge Leon holds, the CONTROLLING opinion is that of the USSC-which is that the data the NSA is accused of gathering is not constitutionally protected.
    Friedersdorf’s “standard” is simply cleverly drawn up to exonerate Mr. Snowden, who did in fact willfully break the law-and then fled to a foreign country and sought refuge in another country, carrying US secrets.
    Sorry, but I see no case for clemency here.

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  11. al-Ameda says:

    A true whistleblower, like Daniel Ellsberg, stays to face the consequences of his actions-he does not flee to hostile foreign capitals.

    By his actions Snowden has placed the entire nation at risk. Even if terrorists and foreign enemies don’t manage to take advantage of Snowden’s disclosures to attack the U.S., the cost of repairing the damage he has caused will be steep-certainly amounting to billions of dollars because he has rendered some valuable collection programs useless.

    I think that the above argues against clemency.

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  12. HarvardLaw92 says:

    I also want to point out that whatever Judge Leon holds, the CONTROLLING opinion is that of the USSC-which is that the data the NSA is accused of gathering is not constitutionally protected.

    You and I can point this one out in 400 different ways, and a segment of these folks will still believe what they want to believe.

    And attack us for deviating from their preferred dogma.

    It’s almost amusing that they find the hypocrisy to call Fox an echo chamber (which is it). Something about a splinter and a plank comes to mind.

    (short version? We have been invaded by Ronulans)

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  13. sam says:

    A little levity (I hope not uncalled for…).

    I was at Ellsberg’s press conference in Cambridge the day he “came out.” Sitting directly in front of me were two elderly women. I heard one, leaning over to the other, say, “Oh, he’s much better looking than Norman Mailer.”

    FWIW, at the least I think Snowden should’ve stayed to face the music, as discordant as it may have been. Hell, he could’ve hand-delivered the stuff to the New York Times like Robert Redford’s character in Three Days of the Condor. Snowden, unlike Redford’s character, wasn’t running for his life.

    Like or Dislike: Thumb up 13 Thumb down 0

  14. wr says:

    @al-Ameda: “A true whistleblower, like Daniel Ellsberg, stays to face the consequences of his actions-he does not flee to hostile foreign capitals.”

    I wonder — where and when this definition come about? Because everyone who’s mad at Snowden pronounces it like its one of the Commandments, and I certainly never heard any such thing before six months ago.

    Like or Dislike: Thumb up 8 Thumb down 10

  15. OzarkHillbilly says:

    A few thoughts:

    Firstly, I am glad we are finally having this conversation (tho as Michael points out above it was only the willfully blind who were unaware of the capabilities of the NSA).

    Secondly, I wish someone would explain to me how the meta data programs harmed me in particular. (Guantanamo Bay lawyers are in a different category) I mean, for years several corporate internet companies have been tracking everything I did on line and nobody cared, and AT&T has been doing it for decades. It is different because it is the “gubmint doin’ it”? Folks, My entire working life I have been filing forms with the IRS listing every intimate detail of my working life with the “gubmint”. Hasn’t been a problem yet. And when it is a problem? That is part of modern life.

    As to all this:

    When should a leaker of government secrets be forgiven rather than jailed? Here are some possible standards:

    When the leak reveals lawbreaking by the U.S. government

    Happens all the time. Low bridge.

    When the leak reveals behavior deemed unconstitutional by multiple federal judges

    Ummm the only judges that count in the end are SC judges. Low bar.

    When a presidential panel that reviews the leaked information recommends significant reforms

    When has a Presidential panel NOT recommended significant reforms? Low bar.

    When the leak inspires multiple pieces of reform legislation in Congress

    Reform legislation in Congress. Say no more. REALLY low bar.

    When the leak reveals that a high-ranking national-security official perjured himself before Congress

    If that was a standard we took serious, half the members of the Reagan admin and half the members of the Clinton Admin (and every member of W’s national security council) would be behind bars. LOW BAR.

    When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge

    OHHH!!!! MY!!!! WHERE ARE MY FAINTING PILLS???!!! When has Congress not been shocked, SHOCKED I TELL YOU!!!, at the things carried out with the powers created by the laws they have passed??? Lower than a snakes belly in a wagon rut low bar.

    If this were the hundred meter low hurdles an armadillo would beat Dawn Harper paws down and without the benefit of a coyote (or the random passing car).

    So, to close, let me say this: These are serious issues that were raised by the Edward Snowden leaks. I wish, I mean I really wish, people were treating them with the seriousness required. Instead we get senseless drivel like that garbage above from Conor Friedersdorf who is trying to pass off as “thoughtful” and “concerned”. Hey Conor? Where were you when Librarians were complaining about the FBI exerting their new found authority? Yeah, I thought so.

    Where one stands depends on where one sits. Outside of a jury box, I don’t think anyone will ever know the truth. And I doubt even then. One thing I am sure of, none of us really care. If we did? We would live as the Navajo do.

    Like or Dislike: Thumb up 16 Thumb down 3

  16. HarvardLaw92 says:

    @wr:

    Interesting. In the world that the rest of us live in, cowardice has always been pretty resoundingly denounced.

    Or are you just saying that, in your world, China and Russia getting their hands on god knows how many state secrets (because you can be sure that they have read and dissected every single document with glee) is an acceptable price to pay for starting a debate about something that anybody with a brain knew has been constitutionally permitted for close to 40 years now?

    By all means, please explain to me how China and Russia getting their hands on that data isn’t damaging to the US, or, alternately, how their getting it is ok even if it was damaging. I’m all ears.

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  17. al-Ameda says:

    @wr:

    I wonder — where and when this definition come about? Because everyone who’s mad at Snowden pronounces it like its one of the Commandments, and I certainly never heard any such thing before six months ago.

    I’m not sure, however it certainly the case that Ellsberg stood up and faced the legal consequences of his actions. No, his circumstances and Snowden’s were not the same, but as one who was ‘there’ back in Ellsberg’s day, Daniel Ellsberg was under all the pressure the government could bring to bear, and it was substantial. Part of the reason Ellberg is admired today (depending on one’s view of these matters) is that he went through the legal process and did not flee the country. I do not believe, as many do, that Snowden was right to run from the country.

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  18. Dave says:

    @HarvardLaw92: Please state how you know China and Russia got their hands on the data Snowden took. As far as I’ve heard, Snowden has claimed they have NOT gotten it and nobody knowledgeable has stated differently. But perhaps I’m wrong, so please cite.

    Like or Dislike: Thumb up 5 Thumb down 8

  19. Andre Kenji says:

    @HarvardLaw92:

    The guy took state secrets to CHINA and RUSSIA, despite having a multitude of other potential destinations (Brazil, anyone?)

    If you are an American, you need a Visa to travel to Brazil, because the Brazilian law requires reciprocity – Americans travelling to Brazil must face the same system that Brazilians face when travelling to the United States. Glenn Greenwald can stay in the country because Brazilian Law recognizes cohabitation as a Civil Union. Ronald Biggs managed to stay in Brazil because he impregnated his Brazilian girlfriend.

    In fact, these geopolitical and extradition nuances are not easy. There are even people that works helping fugitives to flee from certain countries (People that knows that´s easier to flee certain countries when the national soccer or cricket team is playing, for instance). Julian Assange would be free as a bird had he traveled to a country with no extradition treaty with either the United States or the European Union(And with no rigid visa requirements) before releasing that batch of documents from the State Department.

    Like or Dislike: Thumb up 1 Thumb down 0

  20. HarvardLaw92 says:

    @Dave:

    Snowden took 4 laptops with him, as well as apparently thumb drives and portable hard drives on his direct flight from Hawaii to Hong Kong.

    Are you really naive enough to believe that China and Russia haven’t seen everything on them? You think they allowed him to stay as long as he did, and in the case of Russia gave him temporary asylum, out of the kindness of their hearts?

    You’ll have to excuse me if I don’t consider anything Snowden says to be believable.

    Like or Dislike: Thumb up 13 Thumb down 5

  21. Ron Beasley says:

    I didn’t have a lot of use for Snowden initially but my attitude has changed. The meta data collection didn’t bother me that much but the revelations by Der Spiegel this weekend has changed my mind. This is an agency out of control.
    The Ellesberg comparison is not a good one, those were far different times and he actually had a chance of a fair trial.

    Note: I am speaking as one who has been a part of the intelligence community in the late 60s and early 70s.

    Like or Dislike: Thumb up 8 Thumb down 7

  22. HarvardLaw92 says:

    @Andre Kenji:

    Brazil was just an example – the broader point being that there couldn’t possibly have been two worse choices – with the possible exception of Iran – and to be honest, I wouldn’t have put it past this guy to have gone there if he thought it would benefit him.

    As far as I can tell, the guy doesn’t care how much damage he inflicts on the US. He is interested in pursuing his “righteous” cause with zealousness and saving his own behind, and he’ll sacrifice whatever he has to, sell us out as much as necessary and cause as much damage as necessary to accomplish those goals.

    Like or Dislike: Thumb up 9 Thumb down 3

  23. Dave says:

    @HarvardLaw92 So, you got nothing. Note, I’m not betting against you but I think it hurts your case when you state conjecture as fact.

    Like or Dislike: Thumb up 6 Thumb down 5

  24. Gustopher says:

    I don’t think Snowden would get a fair trial. His defense would likely be along the lines of “what the NSA is doing is illegal and immoral, that there was no way to seek redress within the system, and the whistleblower protection act trumps the other laws and oaths” or something similar.

    He would likely be barred from presenting evidence of his motives (the potentially illegal and immoral acts) because of vague national security concerns. This would leave just the technical questions of did he violate this oath or that law, with no other considerations.

    And, there is a very shaky legal foundation for jury nullification in this country.

    He might face the law by returning, but he wouldn’t face justice.

    Like or Dislike: Thumb up 10 Thumb down 5

  25. Ben Wolf says:

    While the existence of these Permanent Select Committees are an improvement over the world that existed before they were established, the fact that there are severe limitations on what they can do with the information provided to them makes one wonder whether they are really providing proper oversight of agencies like the N.S.A.

    I actually don’t consider this to be a real defense for members of Congress, who enjoy complete immunity for anything said on the floor. Wyden could have revealed everything he knew without fear of criminal action against him and chose not to; so despite his “hints” regarding the existence of these programs, he certainly is not a courageous sort.

    Like or Dislike: Thumb up 2 Thumb down 5

  26. Ben says:

    @Ben: Really? 12 down-votes for a purely factual comment? What I said was true. Snowden would be totally barred from testifying about the contents of his leaks, and he would also be barred from arguing that it was justified because of public policy or justice reasons. He would not be allowed to make any argument justifying the leak.

    @al-Ameda:

    Ellsburg himself has said that things have changed in this country, and that Snowden was right to have fled, and if Ellsburg was leaking now, he would have fled too.

    @HarvardLaw92:

    Calling us naive is not evidence. If you cannot point to any evidence that Russia and China have gotten access to his documents, then you’re just speculating.

    Snowden went to the countries he did because there aren’t a lot of countries that don’t have extradition treaties with the US.

    http://en.wikipedia.org/wiki/List_of_United_States_extradition_treaties

    Like or Dislike: Thumb up 8 Thumb down 5

  27. HarvardLaw92 says:

    @Dave:

    We can’t know either conclusion with certainty, which means that we have to focus on the most likely scenario.

    Do you think it more likely that China and Russia 1) have or 2) have not seen this data.

    From all that I have been able to gather, Snowden didn’t selectively grab just data that was pertinent to his gripe – he indiscriminately grabbed everything that he could get his hands on, stuffed it on portable media and hopped on a plane to China carrying it along with him. The truth is that we are probably just beginning to understand the depth and the breadth of the damage that he has done – or will yet do.

    Like or Dislike: Thumb up 9 Thumb down 4

  28. HarvardLaw92 says:

    @Ben:

    Calling us naive is not evidence. If you cannot point to any evidence that Russia and China have gotten access to his documents, then you’re just speculating.

    You can supply no evidence that they have not gotten access to them, so we are both speculating.

    Which do you think more likely though? That Russia and China, when faced with the knowledge that a huge trove of US intelligence data was resident within their borders:

    1) Said :”Well, we won’t take that data, copy it and use it because that just wouldn’t be a nice thing to do”, or;

    2) Said: “We’ll be helping ourselves to this data, whether you like it or not”

    That people even believe #1 to be a possibility is precisely why I used the word naive. It fits.

    Like or Dislike: Thumb up 9 Thumb down 4

  29. Ben Wolf says:

    @HarvardLaw92:

    Are you really naive enough to believe that China and Russia haven’t seen everything on them?

    If Snowden enacted a hard encryption algorithm with a randomized key (as he has said) then there’s no reason to think the FSB has seen or will ever see the unencrypted data.

    You think they allowed him to stay as long as he did, and in the case of Russia gave him temporary asylum, out of the kindness of their hearts?

    They let him in as part of a major PR operation against the United States. Putin got to pose as a champion of human rights by sheltering a political refugee pursued by the megalomaniacal United States in its evil quest for ultimate power, yadda yadda etc. The Russians have always been skilled opportunists.

    Like or Dislike: Thumb up 9 Thumb down 6

  30. HarvardLaw92 says:

    Snowden went to the countries he did because there aren’t a lot of countries that don’t have extradition treaties with the US.

    Exactly my point – he went to enemy states carrying a huge trove of state secrets for no other reason than to save his own ass – the damage that his actions were likely to cause by carrying that data into the borders of foreign powers certainly doesn’t have factored into his travel plans.

    Like or Dislike: Thumb up 9 Thumb down 4

  31. HarvardLaw92 says:

    @Ben Wolf:

    If Snowden enacted a hard encryption algorithm with a randomized key (as he has said) then there’s no reason to think the FSB has seen or will ever see the unencrypted data.

    Right, because a country that jails dissidents or one that regularly executes its own citizens for political reasons would never drug the guy to get the password out of him.

    Assuming they even had to. He certainly seems willing to parcel it out as necessary to preserve his own behind.

    And you wonder why I call you naive.

    Like or Dislike: Thumb up 7 Thumb down 6

  32. Ben says:

    @HarvardLaw92:

    I think the most likely scenario is that any IT professional worth his salt would have encrypted this data with a very strong algorithm that neither Russia nor China would have a snowball’s chance in hell of cracking. So whether they actually tried to take the data or not is beside the point.

    It’s obvious why Russia and China would take him in even without being able to gain access to his data. Because it makes the US look bad, so makes for good local politics. There’s no downside to it for them.

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  33. Ben says:

    @HarvardLaw92:

    You’re on quite a tangent of speculation with no evidence of anything. You’re just making up Jack Bauer scenarios as if you think it helps your argument.

    And for you to sit there and say that just because I don’t have evidence that your wild speculations AREN’T true, that this somehow bolsters your argument is ridiculous. That is a purely fallacious argument.

    Like or Dislike: Thumb up 8 Thumb down 5

  34. HarvardLaw92 says:

    @Ben:

    We are both speculating. That said, the scenarios are not of equal probability.

    So, by all means, construct a scenario for me where China and Russia would just decide they didn’t want the data.

    I think the most likely scenario is that any IT professional worth his salt would have encrypted this data with a very strong algorithm that neither Russia nor China would have a snowball’s chance in hell of cracking. So whether they actually tried to take the data or not is beside the point.

    As usual, you are missing the forest for the trees. The means to decrypt it have to be known to Snowden, or else the data is useless to him.

    It’s not a case of building some billion dollar computer cluster to decrypt the data. It’s a case of drugging the guy and smacking him around with a $5 wrench until he tells you the password.

    As I said, naive.

    Like or Dislike: Thumb up 6 Thumb down 6

  35. HarvardLaw92 says:

    @Ben:

    And for you to sit there and say that just because I don’t have evidence that your wild speculations AREN’T true, that this somehow bolsters your argument is ridiculous. That is a purely fallacious argument.

    Except for the fact that you have no evidence that your OWN wild speculations ARE true either.

    So we are left with the possibilities.

    Same question as before: when faced with the knowledge that a gigantic trove of US intelligence data was within their borders, it is more likely that China and Russia

    1) did, or;

    2) did not

    avail themselves of it? Take as much time as you need.

    Like or Dislike: Thumb up 6 Thumb down 3

  36. Ben Wolf says:

    @HarvardLaw92: If Snowden used a randomized encryption key generator then even he would not be able to access the data. There would be nothing to drug or torture out of him. In fact it would have been his only option to avoid exactly what you suggest.

    Like or Dislike: Thumb up 4 Thumb down 5

  37. HarvardLaw92 says:

    @Ben Wolf:

    So he is reproducing all of this information, and all of the documents that he has leaked, from memory?

    The guy must have one hell of a long-term memory in his head, with one hell of a printer hooked up to it.

    Like or Dislike: Thumb up 6 Thumb down 3

  38. Stonetools says:

    @Ben:

    Dunno about you , but If I was an American intelligence guy, I would certainly go on the assumption that Russia and China had everything Snowden had. To just take Snowden’s word that he didn’t give them anything would be pretty stupid from that POV, and I would hope that the US intelligence services would take whatever action necessary to cover tracks , change codes, extract agents, etc. Doing all that would impose significant costs on US intelligence services.

    Like or Dislike: Thumb up 6 Thumb down 1

  39. Ben Wolf says:

    @HarvardLaw92: He’d already given the entire database to Greenwald and Poitras. I believe he is still in regular contact with them.

    @Stonetools: Were I a counter-intelligence officer I would also proceed on the assumption that adversaries had the whole thing; it would be imprudent not to. All I’m saying is it’s well within the realm of possibility the Russians don’t have access to the really sensitive stuff Snowden undoubtedly had with him.

    That sort of encryption is the digital equivalent of an executive level security safe which immolates the contents should someone attempt to access it. The Russians could (and undoubtedly are) try brute-force by throwing massive computer power at it, but if I were them I wouldn’t hold out much hope of retrieval timely enough for the data to still be useful.

    Like or Dislike: Thumb up 3 Thumb down 4

  40. HarvardLaw92 says:

    @Ben Wolf:

    He’d already given the entire database to Greenwald and Poitras. I believe he is still in regular contact with them.

    Which has what to do with the fact that he took 4 laptops and a multitude of additional storage devices with him on his direct flight to Hong Kong?

    What’d he do? Pitch it all out the window from 30,000 feet to Greenwald and Poitras who were waiting in their rowboat?

    It takes a special kind of denial not to accept that it is likely that, at the least, China, if not Russia as well, has this data.

    All I’m saying is it’s well within the realm of possibility the Russians don’t have access to the really sensitive stuff Snowden undoubtedly had with him.

    I have to ask here: what plausible reason is there for Snowden to steal information, and then encrypt it in such a way that nobody can ever access it?

    Somebody has to have the means to do so, otherwise it is useless to Snowden and his allies as well. Since they are still parceling out information, it is clearly still accessible and not encrypted in such a manner. I would think that refutes your theory.

    Like or Dislike: Thumb up 5 Thumb down 1

  41. Ben Wolf says:

    @HarvardLaw92: You are aware he’d given them the database before he left Hong Kong, yes? He wouldn’t have to give them an actual computer.

    Like or Dislike: Thumb up 2 Thumb down 3

  42. HarvardLaw92 says:

    @Ben Wolf:

    Only according to Snowden, who as I said before, I am not inclined to take at face value.

    It does beg the question of why somebody fleeing prosecution, obviously in a hurry, felt the need to lug 4 laptops and a pile of storage devices along with him on his hurried flight to China, no?

    What am I supposed to believe was stored on them? Knish recipes?

    Like or Dislike: Thumb up 3 Thumb down 3

  43. Ben Wolf says:

    @HarvardLaw92:

    It does beg the question of why somebody fleeing prosecution, obviously in a hurry, felt the need to lug 4 laptops and a pile of storage devices along with him on his hurried flight to China, no?

    Well if we’re going to speculate, were I him I would have stored the data only on two storage devices and not on the laptops, then heavily encrypted all of them. That way anyone confiscating them before I could secure them would have a long and laborious time of decrypting each one (unless he’s using protocols which automatically encrypt when someone attempts unauthorized access. Each copy of the data is one more chance I’ll lose control of it, so the laptops would be decoys.

    I have no idea whether this is what Snowden actually did, but I doubt he was dumb enough to store the files on many different machines and then cart them all around with him.

    Like or Dislike: Thumb up 4 Thumb down 2

  44. Andre Kenji says:

    @HarvardLaw92:

    Brazil was just an example – the broader point being that there couldn’t possibly have been two worse choices – with the possible exception of Iran – and to be honest

    Yes, but my point is that being a fugitive is not an easy task, and in this sense Snowden was a high school dropout that did not understand the law and the geopolitical nuances of extradition. Simply fleeing to any random country is not a good idea, and each country has it´s political peculiarities.

    Like or Dislike: Thumb up 1 Thumb down 0

  45. Andre Kenji says:

    @Ben Wolf:

    They let him in as part of a major PR operation against the United States. Putin got to pose as a champion of human rights by sheltering a political refugee pursued

    I doubt that even Angela Merkel ou François Hollande would extradite Snowden, the internal political backlash would be extremely big.

    Like or Dislike: Thumb up 1 Thumb down 0

  46. HarvardLaw92 says:

    @Ben Wolf:

    Which doesn’t answer my question. If you are in a hurry and fleeing prosecution, you don’t drag all that accoutrement along with you unless it serves a purpose. That he took it with him is fact – he has spoken of the laptops being with him in China.

    So why did he take them? Feel free to speculate.

    As for the encryption fantasy, see previous comment about flunitrazepam / amobarbital / et al and $5 wrenches.

    Like or Dislike: Thumb up 4 Thumb down 2

  47. HarvardLaw92 says:

    @Andre Kenji:

    Yet he knew enough to head directly for a country we don’t have an extradition treaty with? Just saying.

    Like or Dislike: Thumb up 3 Thumb down 2

  48. James Pearce says:

    Conor: “Here are some possible standards” composed to align cleanly with the Snowden case.

    I love these two:

    When the leak reveals behavior deemed unconstitutional by multiple federal judges

    and

    When the leak causes multiple members of Congress to express alarm at policies being carried out without their knowledge

    These aren’t “standards,” man. No need for the Supreme Court to rule on it, when we have “multiple federal judges” ruling on it.

    And appealing to “multiple members of Congress?” Seriously?

    Like or Dislike: Thumb up 3 Thumb down 0

  49. HarvardLaw92 says:

    @Andre Kenji:

    At present. Regimes change, leaders change. Circumstances change, and Snowden himself apparently doesn’t like Russia (at least judging by the way he’s trying to bribe Brazil into giving him asylum anyway …) The bottom line is that a lifetime on the run dependent on the changing goodwill of foreign nations wears one out physically and emotionally.

    Snowden has already been indicted, and the statute of limitations for prosecutions under the Espionage Act was nullified in the 1990s. There effectively is no limit on the amount of time that we have to take him to trial. We can wait him out, until he gets either lonely enough, stupid enough or just tired enough to decide to stop hiding. Eventually, we’ll get him.

    Like or Dislike: Thumb up 2 Thumb down 2

  50. Grewgills says:

    @Ben:

    Snowden went to the countries he did because there aren’t a lot of countries that don’t have extradition treaties with the US.

    He could have gone to Germany. Revealing our spying on Merkel could have bought him asylum there. That is not to say that I agree with him giving up that information, but given that he was giving it up I would much prefer him in a closely allied state than in China or Russia.

    Like or Dislike: Thumb up 4 Thumb down 0

  51. Grewgills says:

    @HarvardLaw92:

    If you are in a hurry and fleeing prosecution, you don’t drag all that accoutrement along with you unless it serves a purpose. That he took it with him is fact – he has spoken of the laptops being with him in China.

    Carrying the laptops and additional storage devices in no way slowed his flight.

    Like or Dislike: Thumb up 0 Thumb down 0

  52. Grewgills says:

    I would be lining up with the NYT if Snowden IF he had only revealed the information about the NSAs domestic overreach AND had either stayed in the US or in an allied nation, rather than running to both of our most powerful geopolitical rivals. As it stands he is too long on self aggrandizement and too short on ethics.

    Like or Dislike: Thumb up 5 Thumb down 0

  53. Andre Kenji says:

    @HarvardLaw92:

    Yet he knew enough to head directly for a country we don’t have an extradition treaty with?

    No, he fled to Hong Kong(An Special Administrative region of China), that has a extradition with the United States. Mainland China that does not have. If he had enough knowledge about these things he would know that extraditions for non-violent offenses are generally pretty complicated, even when there are extradition treaties(That have lots of loopholes on it), and that´s a political matter above anything else.

    If he really understood this thing, he would have stayed in the dark for some months, fled to any country in Latin America, found a local woman to marry and then have a baby with her. No one would ever think of extraditing him. ;-)

    Like or Dislike: Thumb up 1 Thumb down 0

  54. steve s says:

    come on. If it were a matter of sticking around and facing the possibility of a few years in prison, that would be one thing. Maybe we should feel that Snowden should have been willing to accept the consequences of his actions. But that was never in the cards, and surely Marcus knows it. In reality, Snowden was facing the near certainty of decades or more in Supermax solitary confinement. There’s just no way you can pretend that an unwillingness to surrender to torture of that magnitude says anything about how upstanding you are or how strongly you believe in the Constitution.

    -kevin drum

    Like or Dislike: Thumb up 4 Thumb down 2

  55. Spartacus says:

    @HarvardLaw92:

    You and I can point this one out in 400 different ways, and a segment of these folks will still believe what they want to believe.

    And attack us for deviating from their preferred dogma.

    Who are these mysterious people that are attacking you for deviating from their preferred dogma? As far as I can see, the debate isn’t over what the current state of the law is. Any 2nd year law student can figure that out. The debate is over what the law should be.

    That is a debate that would not occurring without Snowden’s disclosures.

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  56. Spartacus says:

    @OzarkHillbilly:

    Secondly, I wish someone would explain to me how the meta data programs harmed me in particular. (Guantanamo Bay lawyers are in a different category) I mean, for years several corporate internet companies have been tracking everything I did on line and nobody cared, and AT&T has been doing it for decades.

    Obviously, the same argument could be made if the government were to enter your own home unbeknownst to you and read through your private diary or listen in on your private phone conversations. That, too, may be fine with you so long as no further action is taken.

    For the framers and for many other people, however, the intrusion alone is unacceptable even if there are no subsequent consequences. The right of privacy is cognizable even if there are no subsequent adverse consequences.

    Many people believe the Constitution should not permit the activities Snowden disclosed. And, many people believe that even if the Supreme Court concludes that the Constitution does permit those activities, Congress or the Administration should restrict the NSA.

    That’s what the debate is about.

    Like or Dislike: Thumb up 3 Thumb down 2

  57. Stonetools says:

    @Spartacus:

    For the framers and for many other people, however, the intrusion alone is unacceptable even if there are no subsequent consequences. The right of privacy is cognizable even if there are no subsequent adverse consequences.

    Er, the framers said nothing whatsoever about electronic communications. And of course, these aren’t electronic communications stored at your home but given over to third parties.
    What’s interesting about those “many people” is that apparently there aren’t enough of them to start a bill going through Congress. Now both HL92 and I are fine with passing a law. But plainly, the political will for passing such a law isn’t there yet.
    It would be interesting to see a poll on whether Snowden should be granted clemency

    Like or Dislike: Thumb up 3 Thumb down 1

  58. James Pearce says:

    @Spartacus:

    “Many people believe the Constitution should not permit the activities Snowden disclosed. And, many people believe that even if the Supreme Court concludes that the Constitution does permit those activities, Congress or the Administration should restrict the NSA.”

    Two things on this:

    1) It doesn’t matter what “many people” believe about the content of the Constitution. Everyone’s got an opinion, but the only opinion that matters is that of the courts.

    2) If the Supreme Court, Congress, or the President do not think the NSA should be restricted, the NSA will not be restricted.

    Like or Dislike: Thumb up 4 Thumb down 1

  59. Andre Kenji says:

    @Stonetools:

    Er, the framers said nothing whatsoever about electronic communications.

    That´s because there was no eletronic communications at the time.

    Like or Dislike: Thumb up 4 Thumb down 0

  60. wr says:

    @HarvardLaw92: Cowardice? Please tell me one instance in your life where you were willing to give up everything you’ve ever treasured for an ideal of justice. My guess is never. You talk a wonderful show about how you love the law — but it’s all a way to justify your own prejudices.

    Beyond that, what does Snowden’s character have to do with what he’s revealed?If Jesus was a sniveling coward who didn’t want to die, would that have meant that the meek were any less blessed?

    Like or Dislike: Thumb up 3 Thumb down 3

  61. wr says:

    @al-Ameda: And just maybe if Karen Silkwood had run, she wouldn’t have been murdered by those she was blowing the whistle on.

    It’s so easy for all you self-righteous patriots who have never risked a thing to condemn Snowden for not living up to a comic book vision of yourself under pressure. But maybe he wanted to expose what he felt was a great crime and didn’t want to die, or spend his life in prison, for it.

    What have you done that has matched his bravery?

    You tell me that, and then we can compare notes on what a coward he is.

    Like or Dislike: Thumb up 4 Thumb down 3

  62. wr says:

    @al-Ameda: “Part of the reason Ellberg is admired today (depending on one’s view of these matters) is that he went through the legal process and did not flee the country. ”

    Who Ellsberg was and how he reacted is unimportant. The information he leaked helped to end the way. If he was a a saint or a scumbag, what difference does it make to the next person who might have died if he hadn’t had the guts to tell the truth? Do you really think a college kid with the wrong number really cared if Ellsburg lived up to your high moral standards if it meant the difference between him going to Vietnam or not?

    Like or Dislike: Thumb up 2 Thumb down 3

  63. wr says:

    @OzarkHillbilly: “If that was a standard we took serious, half the members of the Reagan admin and half the members of the Clinton Admin (and every member of W’s national security council) would be behind bars. LOW BAR.”

    And this is a good thing to you? A couple decades of Eliot Abrams and Oliver North being gang raped in prison might teach our foreign policy pros a few good lessons.

    But instead we live in a country where those on the inside are completely immune from penalty, and anyone else is going to be punished to the full extent of the government’s power.

    And you appove of this. Nice.

    Like or Dislike: Thumb up 4 Thumb down 3

  64. michael reynolds says:

    @wr:

    I would not call Snowden cowardly. It took balls. Most crime does.

    Like or Dislike: Thumb up 0 Thumb down 1

  65. wr says:

    @HarvardLaw92: “Exactly my point – he went to enemy states carrying a huge trove of state secrets for no other reason than to save his own ass – the damage that his actions were likely to cause by carrying that data into the borders of foreign powers certainly doesn’t have factored into his travel plans.”

    Just wondering — what have you ever done that has put “your ass” in danger for the greater good?

    I mean, I know you’re great on punishing the poor and powerless to protect the powerful — but actually worked against your own personal interest?

    Please, enlighten us, oh great lawyer. Because you sound like just another whore to the powerful. Just like the Bush appointees you sometimes pretend to be…

    Like or Dislike: Thumb up 2 Thumb down 4

  66. wr says:

    @HarvardLaw92: “Yet he knew enough to head directly for a country we don’t have an extradition treaty with? ”

    Yes, it’s simply impossible to conceve of someone without Harvard education figuring out how to use Google.

    Like or Dislike: Thumb up 1 Thumb down 5

  67. wr says:

    @Grewgills: “I would be lining up with the NYT if Snowden IF he had only revealed the information about the NSAs domestic overreach AND had either stayed in the US or in an allied nation, rather than running to both of our most powerful geopolitical rivals. As it stands he is too long on self aggrandizement and too short on ethics.”

    Right. Because we have never had a system of black sites where inconvenient prisoners are disappeared forever.

    Again, you tell me one time you’ve risked being tortured to death by your own government for a cause and I will take your whining seriously.

    Like or Dislike: Thumb up 3 Thumb down 3

  68. wr says:

    @michael reynolds: “I would not call Snowden cowardly. It took balls. Most crime does.”

    Absolutely. But because we’re Americans, we can’t admit that. Bravery is good, therefore bravery is American.

    That’s why Bill Maher lost his ABC show for saying the 9/11 terrorists weren’t cowards. Because we have to believe that we are all things good, and all things bad are someone else.

    Like or Dislike: Thumb up 4 Thumb down 3

  69. Spartacus says:

    @Stonetools:

    Er, the framers said nothing whatsoever about electronic communications.

    Seriously? The framers said absolutely nothing about most things that we encounter in our 21st century day-to-day lives. The absence of a Constitutional reference to electronic communications is no more relevant to this discussion than the absence of a reference to wiretapping would be to a discussion about its constitutionality.

    What’s interesting about those “many people” is that apparently there aren’t enough of them to start a bill going through Congress.

    http://www.wyden.senate.gov/priorities/surveillance-reform

    Like or Dislike: Thumb up 2 Thumb down 2

  70. HarvardLaw92 says:

    @wr:

    Yea, I get it. You genuflect to the guy and dislike me, but as I have said to you more than once, “you suck” will get you nowhere with me. I get that you dislike me.

    I just don’t care. I’m a Wall Street lawyer. If I worried about the number of people who dislike me on any given day, or why, I’d never get anything else done.

    The simple fact of the matter is that neither the courts nor Congress are going to significantly limit national security or intelligence gathering because a bunch of paranoids who are self-absorbed enough to believe that the NSA cares in the slightest way about their AverageBoringLives are running around with their hair on fire. Snowden will likely never get clemency or a pardon, and if/when he wanders into our jurisdiction, he’ll be prosecuted.

    That is the cold, hard truth, to face and deal with.

    Or not. The choice is yours, but really, find a new shtick.

    And, did you really just try to equate Snowden with Jesus Christ? As I recall, Christ faced his fate with dignity. He didn’t scamper away in the night to avoid it. Perhaps you meant to make the comparison with Judas instead?

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  71. HarvardLaw92 says:

    @wr:

    Yes, it’s simply impossible to conceve of someone without Harvard education figuring out how to use Google.

    So you are admitting that Snowden’s primary concern in his choice of destination was avoiding prosecution, and that the consequential damage to the US of ferrying all that material into the borders of what can only be deemed unfriendly states was a secondary concern for him at best?

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  72. HarvardLaw92 says:

    @wr:

    What have you done that has matched his bravery?

    I served in the military and got shot at, since you asked.

    WTF have YOU ever done?

    Like or Dislike: Thumb up 5 Thumb down 0

  73. HarvardLaw92 says:

    @Spartacus:

    The debate is over what the law should be.

    Okie dokie, I’ll bite.

    The 4th Amendment protects individual privacy. When you reveal private information to a third party, that information becomes the domain of the revealee.

    Short version? You do not own phone records. The phone company does, so construct a constitutional argument for me wherein you are situated to assert a 4th Amendment claim with regard to somebody else’s records.

    I could MAYBE see where the phone company might be so situated to assert such a claim – IF it were so inclined, which it doesn’t appear to be – (and if it weren’t for all those pesky rulings limiting the applicability of the 4th Amendment to corporations), but I’m having a difficult time seeing how you would have standing.

    So educate me. By all means …

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  74. Grewgills says:

    @wr:

    If Jesus was a sniveling coward who didn’t want to die, would that have meant that the meek were any less blessed?

    That would have made for a much less compelling story and Christianity likely wouldn’t be one of the world’s major religions, so yes it makes a difference.

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  75. Grewgills says:

    @wr:

    Just wondering — what have you ever done that has put “your ass” in danger for the greater good?

    How was revealing our spying on Angela Merkel and other non-domestic spying for the greater good? How is offering Brazil counter espionage vs the US for the greater good?

    Like or Dislike: Thumb up 1 Thumb down 0

  76. Grewgills says:

    @wr:
    Is there any secret he could have taken and shared that would change your mind about him?
    Say he gave the Russians and Chinese information on our espionage and counterespionage, would that be beyond the pale or would he still be a hero in your book?

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  77. Spartacus says:

    @HarvardLaw92:

    So educate me. By all means …

    Educate you about what? Everyone already knows what the law is. As I said, any 2nd year law student can figure that out. The debate is over whether the NSA should be reigned in and, if so, how. That has almost nothing to do with what the law currently is.

    You claimed you were being attacked by people for not adhering to their preferred dogma. That’s not true and it dodges the argument. Your comments were attacked on the merits.

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  78. HarvardLaw92 says:

    @Spartacus:

    So, you agree that the gathering of metadata via SDT is constitutional, and if it is to be limited, statutory protections would be the only means available to accomplish that?

    I don’t necessarily have a problem with such legislation, but I think you have to agree that the likelihood of it ever being enacted is next to zero.

    So, in practical terms, is there really even a debate?

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  79. Stonetools says:

    @Spartacus:

    I might point out yet again that both Snowden and Greenwald have said that the NSA should stop spying altogether and that the surveillance network should be dismantled. That’s for domestic AND for foreign spying.
    Interesting to see THAT proposition debated in Congress. Suppose Congress passes a law limiting domestic surveillance but continuing foreign surveillance. Would you be OK with Snowden continuing disclosures?

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  80. Grewgills says:

    @wr:

    Right. Because we have never had a system of black sites where inconvenient prisoners are disappeared forever.

    If he had released all the info on domestic surveillance to the major media outlets he would be far to visible to be disappeared. He would be tried and likely convicted and sent to white collar prison. It would have done more for the cause if he had stayed and faced trial. If he went that route the media narrative changes and he is the hero that sacrificed himself for our freedom. See how that is a more compelling story? If Jesus sets up Judas to take the fall and lives out his life in exile somehow the central story of Christianity is a bit less compelling.

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  81. Paul Hooson says:

    No. Absolutely not. You don’t undermine the security of the U.S. through stolen secrets and receive clemency. This is much different than some author’s book or reporter’s work which is considered to be conjecture or an informed opinion.

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  82. Ben Wolf says:

    @HarvardLaw92: I think he took four laptops to draw attention to them and away from storage devices. If intelligence officers of a given country were to break into to his room, they’d likely focus on the computing devices. My guess is it was an additional security measure to protect the data. Not a strong one, but better than nothing.

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  83. Ben Wolf says:

    @Grewgills: Jose Padilla was in the public eye and still was imprisoned for three years without counsel or contact with the media. There’s every reason to think Snowden would have received the same treatment.

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  84. al-Ameda says:

    @Ben Wolf:

    @Grewgills: Jose Padilla was in the public eye and still was imprisoned for three years without counsel or contact with the media. There’s every reason to think Snowden would have received the same treatment.

    I completely disagree with the notion that Snowden would be treated as Padilla was. For one thing, he (Snowden) has many supporters and advocates – individuals and organizations interested in civil liberties, who would be interested in his legal defense. Padilla had no such support.

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  85. wr says:

    @HarvardLaw92: “You genuflect to the guy ”

    Actually, I have very mixed feelings about “the guy.” I’m annoyed by the sanctimonious twaddle from pearl clutchers who are unwilling to address the actual issues the information he revealed raises and instead prattle on about whether he was sufficiently noble in his actions.

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  86. wr says:

    @HarvardLaw92: “And, did you really just try to equate Snowden with Jesus Christ?”

    Um, no. I don’t know where you pulled that out from.

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  87. wr says:

    @HarvardLaw92: I have no idea what went on in Snowden’s head, and unlike you, I don’t pretend to.

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  88. wr says:

    @HarvardLaw92: And don’t forget, you were a Federal prosecutor in the Bush administration.

    You must have been lonely there, though, what with all your colleagues graduating from Liberty University.

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  89. wr says:

    @Grewgills: “Is there any secret he could have taken and shared that would change your mind about him?”

    Actually, I haven’t made up my mind about him. On the one hand, I believe that we as citizens have not only the right but the obligation to know what our government is doing in our names. Because generally when the government decides that we’re better off not knowing, it’s because they’re busy doing things like overthrowing democratically elected governments and building black site torture centers. On the other hand, I understand that there is a potential danger in the release of the information.

    What I have made up my mind about is that I don’t care if Snowden was Noble and Good enough to deserve our praise. I don’t particularly care what becomes of him, although I do feel it will be healthier for our country if we don’t devote our resources to making sure he suffers as much as possible every day of his life. I think all the pearl clutching over whether or not he is icky is a silly distraction from the real issues at hand.

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  90. wr says:

    @HarvardLaw92: “WTF have YOU ever done?”

    Risking my life for the greater good? Nothing. Which is why I don’t waste my time comparing Snowden — or anyone — with a comic book fantasy of who I might be if I were so challenged.

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  91. wr says:

    @Grewgills: When Snowden starts claiming to be the son of God, then I’ll judge him by those standards.

    He took the information, he released the information. The information is out in the world. Him being in prison or not doesn’t change that.

    Either the release of the information is valuable to us as citizens or it is not. The bravery or lack thereof of the man who released it doesn’t change that at all.

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  92. Gustopher says:

    @al-Ameda: Bradley Manning had that level of support, and they kept him naked and in solitary.

    The government would have made an example of Snowden.

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  93. Grewgills says:

    @wr:
    1) You drew the Jesus analogy above, I was just completing the circle on it.
    2) You would have a much stronger case if he only released the info on domestic surveillance.
    3) How is his proposed deal with Brazil in US interests? or the release of info on our spying on Germany?

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  94. michael reynolds says:

    What has changed? How has any civilian’s behavior changed? What has been accomplished? Which of you has stopped using email or cell phone?

    Right. So nothing has changed. Nothing was accomplished. The knowledge was put to no use. Except, possibly, by our enemies.

    Meanwhile, the fact that Target just handed out our bank data to anyone who wants it, gets barely a notice. Now, that was actual damage. Actual damage to actual people here in the real world. But it lacks the Orwell-induced paranoia of the Left and the Black Helicopter paranoia of the Right. So no one cares.

    We have all been harmed again and again and again by big business’s carelessness with data. That’s real. But we’re obsessing over government’s thus far harmless collection of data. Because? Because fwcking Orwell and fwcking Glen Beck. This is paranoia-fueled. It is not rational.

    Rational would be creating fire-breaks at the point where government data can be used against regular people. But that would be easy and no fun.

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  95. Spartacus says:

    @HarvardLaw92:

    So, you agree that the gathering of metadata via SDT is constitutional, and if it is to be limited, statutory protections would be the only means available to accomplish that?

    To the extent the issue has been presented to SCOTUS in a sufficiently similar manner as occurred in the Snowden disclosures and SCOTUS has ruled the gathering of metadata constitutional, then yes, some of the NSA’s actions were constitutional. Please tell us who is arguing otherwise.

    We also know as a result of Snowden’s disclosures that the NSA violated privacy laws thousands of times a year. Will that illegal activity continue now that it has been revealed? Absolutely not?

    As for your claim that legislative action is the only way to limit the NSA’s activities, you are dead wrong? The President has the authority to do that and, if I recall correctly, he’s already done so. He has certainly asked for recommendations on limiting NSA activities. Would that have occurred without Snowden’s disclosures.

    Your argument is incoherent and mildly childish. You blusterly claim to know precisely what China and Russia know, but when asked for the slightest bit of evidence you admit you admit that you are just speculating and that those who asks you for evidence are also speculating.

    You claim that people are concerned about NSA overreach because they believe their own lives are of sufficient interest to draw the NSA’s attention. That is among the most ignorant claims anyone can make on this topic. Most people have nothing in their homes that’s of interest to law enforcement, but that obviously doesn’t mean they’re fine with the government searching their homes whenever it wants.

    You keep talking about Snowden’s character and cowardice. Hs character is entirely irrelevant to the public service he has performed. Not a single person who recognizes the value in his disclosures has made any kind laudatory remarks about his character because it simply doesn’t matter. And, as WR rightfully asked, who made up this silly little rule that “whistleblower” status is dependent on submitting to the criminal justice process? It is patently stupid to claim that Snowden is a coward for not wanting to go to prison.

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  96. Spartacus says:

    @michael reynolds:

    Meanwhile, the fact that Target just handed out our bank data to anyone who wants it, gets barely a notice. Now, that was actual damage. Actual damage to actual people here in the real world. But it lacks the Orwell-induced paranoia of the Left and the Black Helicopter paranoia of the Right. So no one cares.

    This is dead wrong. There will be many more lawsuits over the Target data breach than there have been over the NSA activities. People don’t need to make the same kind of fuss over Target because they have recourse to pursue a legal remedy.

    To blithefully claim that concern over NSA activities is all the product of paranoia is to be willfully ignorant of the government’s historical practices of overreach. Again, go back and read the Church report and then tell us whether concerns about overreach in domestic spying are unnecessary. No one thinks those concerns are so unnecessary that we don’t need to spend billions of dollars to prevent it. We do spend billions to prevent it and we now know as a result of Snowden’s disclosures that that oversight has been ineffective.

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  97. rudderpedals says:

    Too soon.

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  98. Spartacus says:

    @Stonetools:

    Suppose Congress passes a law limiting domestic surveillance but continuing foreign surveillance. Would you be OK with Snowden continuing disclosures?

    I really haven’t thought about that very carefully so I’m not sure. I think there is value in his disclosures about foreign surveillance.

    You will recall that Snowden’s disclosures occurred right after the President publicly chewed out the Chinese Premier for spying on U.S. companies. If both the U.S. and China know with complete certainty that they are both spying on each other and each other’s companies, why publicly take China to task for conduct that we ourselves commit?

    I believe our government does that not for the purpose of trying to get China to stop, but for the purpose of manipulating domestic opinion. I don’t think a democratically elected government should practice deception in order to manipulate domestice public opinion.

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  99. wr says:

    @Spartacus: “And, as WR rightfully asked, who made up this silly little rule that “whistleblower” status is dependent on submitting to the criminal justice process?”

    Actually, it’s a core element of civil disobedience, as practiced by MLK and Gandhi. You refuse to follow an unjust law, and then accept the punishment, making yourself a symbol of the injustice.

    I don’t recall Snowden ever claiming he was acting in this tradition.

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  100. michael reynolds says:

    @Spartacus:

    Yes, there will be more lawsuits over Target. You know why? Because you can prove harm. How have you been harmed by the NSA?

    As for government overreach, yes, there is some, occasionally. The Hoover-era FBI is your best example, I would think. It grew out of paranoia about communism, which mirrors to some extent paranoia about Al Qaeda. The problem is that Hoover’s information was most often from informants, not electronic surveillance. And the harm grew from Hoover’s use of information, not its possession per se. He blackmailed presidents with what he knew.

    What Hoover knew, though, is not a tenth of what Google knows about anyone who has used a computer, including POTUS. So why no fear of Google? Are they so pure of heart they could never be suspected of pressuring a politician with data? What do you suppose Senator Lindsay Graham’s web surfing habits might reveal that he would find really uncomfortable to have revealed? Does Google need a little help getting clearance for a new facility in South Carolina? Not an unlikely scenario. But your paranoia has not been engaged because there’s no Orwell for Google yet.

    Are you going to stop Googling? Are you going to give up any less data? Nah. Me neither. Which means we’ve both accepted the fact that all our data is out there. I’ve decided to relax about it. You’ve decided to focus outrage on a single possessor of that data: the US government. You want to deprive only the US government of data. Can you impose limits on Russians, French, Brits? No. Are you going to kick about Google and Verizon and CitiBank? No.

    You’re not defending privacy, you’re trying to blind the USG, and the USG alone, to data that everyone else can buy on either the open or black markets. And as far as we know, its only the privately-held data that has done actual harm.

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  101. Grewgills says:

    @michael reynolds:

    And as far as we know, its only the privately-held data that has done actual harm.

    The secrecy of the program meant we couldn’t know with any certainty and so no one had standing to sue. That is why the ‘as far as we know’ hamstrings your argument.

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  102. stonetools says:

    @Spartacus:

    I really haven’t thought about that very carefully so I’m not sure. I think there is value in his disclosures about foreign surveillance

    Then maybe you should think about it, and take instruction from someone who did look into it:


    If that were all that Snowden had done, if his stolen trove of beyond-top-secret documents had dealt only with the NSA’s domestic surveillance, then some form of leniency might be worth discussing.

    But Snowden did much more than that. The documents that he gave the Washington Post’s Barton Gellman and the Guardian’s Glenn Greenwald have, so far, furnished stories about the NSA’s interception of email traffic, mobile phone calls, and radio transmissions of Taliban fighters in Pakistan’s northwest territories; about an operation to gauge the loyalties of CIA recruits in Pakistan; about NSA email intercepts to assist intelligence assessments of what’s going on inside Iran; about NSA surveillance of cellphone calls “worldwide,” an effort that (in the Post’s words) “allows it to look for unknown associates of known intelligence targets by tracking people whose movements intersect.” In his first interview with the South China Morning Post, Snowden revealed that the NSA routinely hacks into hundreds of computers in China and Hong Kong.

    These operations have nothing to do with domestic surveillance or even spying on allies. They are not illegal, improper, or (in the context of 21st-century international politics) immoral. Exposing such operations has nothing to do with “whistle-blowing.”

    Read the above, and tell me again whether you think there is “value” in these disclosures, other than harm to the US. With regard to the Chinese disclosures, Snowden swore an oath to and is supposed to be a citizen of the US. It is not his job to help China.

    Look what Snowden did to his colleagues at Booze, Allen:

    Mark Hosenball and Warren Strobel of Reuters later reported, in an eye-opening scoop, that Snowden gained access to his cache of documents by persuading 20 to 25 of his fellow employees to give him their logins and passwords, saying he needed the information to help him do his job as systems administrator. (Most of these former colleagues were subsequently fired.)

    How charming. Where I come from, I’d describe such a person as a “backstabbing son of a bitch”.
    This is how he describes the countries that supported him:

    He thanked the nations that had offered him support. “These nations, including Russia, Venezuela, Bolivia, Nicaragua and Ecuador, have my gratitude and respect,” he proclaimed, “for being the first to stand against human rights violations carried out by the powerful.” Earlier, Snowden had said that he sought refuge in Hong Kong because of its “spirited commitment to free speech and the right of political dissent.”

    Seriously? Anyway, RTWT. Kaplan’s indictment is damning. Certainly, your picture of Snowden as a sincere dissenter who did no harm to US interests is naïve . This guy , through his disclosures of foreign surveillance, did hurt US interests -and can do so again.

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  103. Jeremy R says:

    @Spartacus:

    I think there is value in his disclosures about foreign surveillance.

    You will recall that Snowden’s disclosures occurred right after the President publicly chewed out the Chinese Premier for spying on U.S. companies. If both the U.S. and China know with complete certainty that they are both spying on each other and each other’s companies, why publicly take China to task for conduct that we ourselves commit?

    I believe our government does that not for the purpose of trying to get China to stop, but for the purpose of manipulating domestic opinion. I don’t think a democratically elected government should practice deception in order to manipulate domestice public opinion.

    This is worth reading, about the scale of Chinese theft of worldwide trade secrets. And how the protests weren’t just for show:

    http://mag.newsweek.com/2013/11/01/edward-snowden-escalated-cyber-war.html

    Snowden’s revelations quickly veered away from what he called the NSA’s “domestic surveillance state” to overseas espionage by the United States. After fleeing to Hong Kong, he provided local reporters with NSA documents and told them the United States was hacking major Chinese telecommunications companies, a Beijing university and the corporate owner of the region’s most extensive fiber-optic submarine cable network. That information, government officials and industry experts say, is now used by the Chinese to deflect criticisms of their hacking, both in meetings with the administration and at cyber security conferences.

    The activities of the two sides, however, are vastly different in scope and intent. The United States engages in widespread electronic espionage, but that classified information cannot legally be handed over to private industry. China is using its surveillance to steal trade secrets, harm international competitors and undermine American businesses.

    Though, speaking of “manipulating public opinion,” apparently that particular Snowden disclosure was about that — just not public opinion in the US:

    http://www.thedailybeast.com/articles/2013/06/25/greenwald-snowden-s-files-are-out-there-if-anything-happens-to-him.html

    Glenn Greenwald:

    “Whether I would have disclosed the specific IP addresses in China and Hong Kong the NSA is hacking, I don’t think I would have,” Greenwald said. “What motivated that leak though was a need to ingratiate himself to the people of Hong Kong and China.”

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  104. steve s says:

    According to bruce schneier, security expert, the NSA’s actions have hurt us all a great deal.

    The NSA’s actions turn that process on its head, which is why the security community is so incensed. The NSA not only develops and purchases vulnerabilities, but deliberately creates them through secret vendor agreements. These actions go against everything we know about improving security on the internet.

    It’s folly to believe that any NSA hacking technique will remain secret for very long. Yes, the NSA has a bigger research effort than any other institution, but there’s a lot of research being done – by other governments in secret, and in academic and hacker communities in the open. These same attacks are being used by other governments. And technology is fundamentally democratizing: today’s NSA secret techniques are tomorrow’s PhD theses and the following day’s cybercrime attack tools.

    It’s equal folly to believe that the NSA’s secretly installed backdoors will remain secret. Given how inept the NSA was at protecting its own secrets, it’s extremely unlikely that Edward Snowden was the first sysadmin contractor to walk out the door with a boatload of them. And the previous leakers could have easily been working for a foreign government. But it wouldn’t take a rogue NSA employee; researchers or hackers could discover any of these backdoors on their own.

    This isn’t hypothetical. We already know of government-mandated backdoors being used by criminals in Greece, Italy, and elsewhere. We know China is actively engaging in cyber-espionage worldwide. A recent Economist article called it “akin to a government secretly commanding lockmakers to make their products easier to pick – and to do so amid an epidemic of burglary.”

    linky

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  105. Spartacus says:

    @michael reynolds:

    Yes, there will be more lawsuits over Target. You know why? Because you can prove harm. How have you been harmed by the NSA?

    If you agree with me that there will be many lawsuits over the Target data breach I don’t understand why you disagree with me when I say that, contrary to your initial claim, people do care about the breach. I’m simply making the further claim that the expressions of concern over the data breach will look very different from the expressions of concern over the NSA disclosures because the data breach victims have a well-trod path for recourse and targets of NSA spying do not.

    The Hoover-era FBI is just one example in a long history of government overreach. It is certainly not the most recent. The Bush administration overreached through warrantless wiretaps, torture and illegal detentions. The Obama administration has overreached by continuing the detention of people who have committed no crimes, by declaring a journalist an aider and abettor in leaking classified information and by the NSA’s thousands of violations of privacy laws. The notion that significant governmental overreach ended when Hoover died simply is not true.

    It is precisely because government overreach is inevitable (as the Church report declared) that the Church Committee recommended, and Congress adopted, the establishment of Intelligence Oversight Committees. We now know that that oversight has been ineffective and that the head of the NSA perjured himself during an oversight hearing with impugnity and still retained his job.

    Has anyone as of this date been physically or financially harmed because of the NSA actions Snowden disclosed? Not a single person has any idea and, quite frankly, that is entirely irrelevant to the issue of whether the NSA activities go too far and whether Congress is exercising proper oversight.

    You seem to believe the NSA activites don’t go too far because (1) people already freely give a lot of information to private companies, (2) you think most people will lose neither their physical freedom nor money as a result of NSA spying.

    There is a huge difference between freely giving selective data to companies with whom one does business and having an all-powerful government take any data it wants whenever it wants. As Stephen Taylor once pointed out, mission statements matter. Google wants to know what websites I visit so it can sell ads that are directed to my personal preferences. The government wants to know what websites I visited and what phone calls I made so it can determine whether I’m a terrorist. If Google gets it wrong I’ll start getting ads for breast implants. If the govt gets it wrong I end up on the no-fly list, the FBI starts asking my neighbors and employer strange questions and soon enough I’m persona non grata in certain circles.

    Secondly, I have the option of using a search engine like DuckDuckGo that doesn’t collect data on me. There also are fairly robust laws in place that restrict what Google can do with my data. More importantly, those laws require Google to inform me when it has violated those restrictions. The limitations on the govt’s use of info it obtains on me are not nearly as robust and the govt has no obligation to inform me when it has violated those limitations. And, even if I somehow find out the govt has violated those limitations, I very frequently won’t have standing to sue. Incidentally, this is how some people get stuck on the no-fly list.

    Lastly, as for the theft of my private data, the potential harm is only financial. Plus, the precautions I can take and the remedies I have afterward are vast. I have a lock on my credit file. I have a credit monitoring service. I have identity-theft insurance. And my liability is limited to $50 if my bank accounts or credit cards are accessed. Quite simply, the harm that a data thief or a foreign government can cause any one of us is far less significant, albeit probably more likely to occur, than the harm the state or federal govt can cause.

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  106. Spartacus says:

    @stonetools:

    Read the above, and tell me again whether you think there is “value” in these disclosures, other than harm to the US. With regard to the Chinese disclosures, Snowden swore an oath to and is supposed to be a citizen of the US. It is not his job to help China. . . Certainly, your picture of Snowden as a sincere dissenter who did no harm to US interests is naïve .”

    First of all, I’ve made no claims whatsoever about Snowden’s status as a “sincere dissenter.” It is entirely unnecessary for me or anyone else to form any conclusion about his motives or his character in order to judge the value of his disclosures. If anything, forming conclusions (positive or negative) about his motives or character is likely to unduly color judgments about the value of his disclosures.

    Yet, you seem to believe that if people will just conclude he’s a bad person, then they necessarily must conclude his disclosures were of no value. I’m afraid it’s just a wee bit more complicated than that. I also don’t care what oaths he took or what his job duties were. It. Doesn’t. Matter.

    Secondly, you’re apparently having a comprehension fail. The fact that I find value in some of his disclosure about foreign surveillance does not mean I find value in all of his disclosures about foreign surveillance.

    Your question to me was would I favor Snowden’s further disclosures about foreign surveillance if Congress enacted laws to reign in the NSA’s domestice surveillance. I can’t answer that partly because I don’t know what else he has to disclose about our foreign surveillance and your link to Kaplan does not shed any light on that question. I can’t judge the value of something I’m completely ignorant of.

    I can say, however, that I do not accept the premise that ALL conceivable use of foreign intelligence is moral or appropriate. So, if Snowden was prepared to disclose a significantly harmful use of foreign intelligence I can’t imagine I would object to that disclosure on account of the fact that the victims of such harm were not U.S. citizens.

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