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Any admirer of moral ambiguity will surely agree with me that the most interesting personality of 2013 is Edward Snowden—though in many minds there is nothing whatsoever ambiguous about him. For instance, the Sun-Times's Lynn Sweet recently reported a conversation she had with University of Chicago law professor Geoffrey Stone on Snowden and the National Security Agency. A couple of comments that follow Sweet's story on the Sun-Times website demonstrate how certain some Americans are of what they think.
Snowden should be lined up in front of a wall and shot.
Followed immediately by:
Long live Edward Snowden, we need several million of him.
But others who are slower to judge find ourselves wrestling with conflicting values. On the one hand, Snowden leaked thousands of secret documents describing the NSA's massive surveillance of America's allies and its own citizens. This was not clearly a bad thing. As President Obama allowed once the horse was out of the barn, "One of the things we are going to have to discuss and debate is how are we striking this balance between the need to keep the American people safe and our concerns about privacy. Because there are some tradeoffs involved. I welcome this debate. I think it's healthy for our democracy."
But it was also not clearly a good thing. The head of the NSA told the House Intelligence Committee that Snowden's revelations did "irreversible and significant damage to this nation." Enemies who not only wish us harm but actively plot it won't be deterred by libertarian pieties.
Stone, a constitutional scholar, was appointed by Obama in August to the Review Group on Intelligence and Communications Technology that the president formed in response to Snowden's disclosures. Stone described himself to Sweet as "basically a civil libertarian, but an open-minded one" and someone who's "learned an enormous amount" about the NSA. He's concluded that the people in the NSA are "incredibly capable" and careful to "stay within the boundaries of the law," but that these laws should be revised.
However, Stone did not continue on to the lofty peak from which many disapproving Americans declaim that the tactics they categorically oppose are as counterproductive as they are immoral—holding that torture, say, never yields useful intelligence, or that the NSA's blanket surveillance is no more an impediment to terrorists than cherry-picked data gathering would be. Stone doesn’t think we can pretend to know that.
"It is a mistake to ask, at least arguably a mistake to ask if any particular program . . . thwarted terrorist attacks, because we are not dealing with little things," he told Sweet. "It is possible that we are talking about a nuclear, a chemical, biological attack where tens of thousands of people's lives could be at risk. If you thwart one every 20 years, you are doing pretty good. So the fact that hasn't happened does not prove the program was worthless."
And as for Snowden . . .
"I understand why many people think that Snowden did the nation a service. And certainly there were positive consequences that arose from what he did (including many of the recommendations of the panel.) . . . But at the same time we have a very strong legal principle in our system, that you don't get to commit a crime because you have a good justification for doing so . . .
"Basically, my view is I think Snowden is a criminal."
That comment gave Sweet's story its headline:
U. of C. prof on snoop panel: 'Snowden is a criminal'
There's something circular and beside the point about this thinking. A criminal is anyone who commits a crime, it's a crime to break a law, and there are laws forbidding what Snowden did. So he's a criminal—even if his crime was justified! So where does that get us? Not very far, I'd say. What's most interesting about this conclusion Stone shared with Sweet is that it wasn't his work with the review group that brought him to it. However open-minded a civil libertarian Stone might be, he'd made up his mind about Snowden before he took the assignment. In fact, six months ago he denounced Snowden in harsher terms than he used with Sweet. He declared in June on HuffPo, "In my judgment, based on what I know from the media thus far, Snowden is neither a hero nor a traitor, but he is most certainly a criminal who deserves serious punishment."
And in a debate a couple days later he elaborated:
"There is a federal statute that makes it a crime for public employees who have been granted access to classified information to reveal that information to persons who are unauthorized to receive it. So, from a simple, straightforward, technical legal standpoint, there's absolutely no question that Snowden violated the law . . .
"The question, why I think he deserves punishment, is . . . Well, the fact is, he's just an ordinary guy with absolutely no expertise in public policy, in the law, in national security. He's a techie. He made the decision on his own, without any authorization, without any approval by the American people, to reveal classified information about which he had absolutely no expertise in terms of the danger to the nation, the value of the information to national security. That was a completely irresponsible and dangerous thing to do. Whether we think it was a positive thing in the long run or not is a separate question, but it was clearly criminal."
If anything, Stone's service on the review group tempered his opinion of Snowden.
The Sun-Times followed Sweet's interview with an editorial seconding Stone's judgment. The editorial was headlined "Inconvenient truth about Snowden," and the inconvenient truth was that Snowden is a criminal. "Without a doubt," the paper allowed, "much good has come from Snowden’s revelations about the federal government’s widespread snooping on ordinary Americans. . . . But a fortuitous outcome makes Snowden no less a criminal."
No, but what it does is strongly suggest that criminal is not the only or last word. The Sun-Times seemed to recognize this, adding, perhaps wistfully, "We would respect Snowden more if he forthrightly acknowledged he had broken the law, gave himself up to American authorities and defended his actions in court." In other words, what the Sun-Times asked of Snowden was that he convert his behavior into the kind of civil disobedience Americans know how to get their heads around. I suppose I'd think more of Snowden myself if he did this. But if "much good" has come of his revelations, I don't understand why our gratitude should be contingent on his martyrdom.
As I said, Snowden's difficult to think about. In another era, the British hanged Nathan Hale and the colonists made him a hero. These days a single editorial can favor both.