The Legal Story of the Year, and Next Year Too: Edward Snowden

To the surprise of many, Time magazine selected Pope Francis as their “Person of the Year,” rather than their runner-up, Edward Snowden, whose spectacular leaking of National Security Agency (NSA) secrets earned him this name: “The Dark Prophet.” The new Pope is a wonderful story, and as Time noted, “he has placed himself at the very center of the central conversations of our time: about wealth and poverty, fairness and justice, transparency, modernity, globalization, the role of women, the nature of marriage, the temptations of power.”

Nor does Snowden top the lists of major legal stories during this year, when the U.S. Supreme Court upheld the Affordable Care Act, went out of its way to help corporate America, gutted key provisions of the 1965 Voting Rights Act, and overturned the Defense of Marriage Act (DOMA), as noted by Andrew Cohen at The Atlantic. However, legal writer Jeffrey Toobin at The New Yorker did rank Snowden as seventh out of seven of the top legal stories for next year—2014.

Needless to say, picking the most newsworthy story, legal or otherwise, of any year is a highly subjective judgment. Time, for example, looks for “the person who most affected the events of the year, for better or worse.” Cohen thinks it all depends on who you are, and thus the choice is clearly subjective. Toobin’s criteria are what he thinks we will be talking most about.

I think Snowden is the most important story, for the sheer impact his actions are having, and will continue to have, on people around the world, and the related legal fallout connected with his actions. At this point, no one is even sure how much bigger his story may become, and it’s already immense.

No One Knows How Much Information Snowden Still Has

Former NSA contract employee Edward Snowden’s leaks began appearing on June 6, 2013, after he had departed from his NSA job in Hawaii and fled to Hong Kong, and then on to Russia. Snowden’s principal journalistic outlet quickly becoming Glenn Greenwald, then reporting for the United Kingdom’s Guardian newspapers. The Guardian’s June 6, 2013 stories soon sent shockwaves around the world, starting with the first headline: “NSA collecting phone records of millions of Verizon customers daily.”

Recently, The Guardian has reported that “Glenn Greenwald, the journalist who broke the story, was given access to a cache of 58,000 documents gathered by [the] young security analyst and former intelligence agent, Edward Snowden. The stories rolled on through the weeks and months of summer, and continue still.” Al Jazeera American has assembled a timeline of Snowden’s revelations that were published since June 6, 2013, all of them headline-grabbers, up to mid-December, 2013. By my count, there have been some 100 distinct revelations and related stories.

When Daniel Ellsberg leaked the so-called Pentagon Papers in June 1971, he spread hard copies of the documents at different locations so that the government could not block the publishing process. Similarly, when Julian Assange began his release of U.S. government documents through Wikileaks, he placed digital copies at different undisclosed locations, making it impossible for the government to stop the leak. Snowden has followed a similar practice.

The NSA reportedly told CBS News that Snowden has some 1.7 million documents, and purportedly has already given journalists access to 200,000 documents. If that is true, this is more than a leak; it is a tsunami of government secrets. The stories so far are merely raindrops preceding what could be a storm brewing, or depending on how the material is handled, a long inclement period for the NSA. In fact, knowledgeable American officials have made the startling acknowledgement that they are not sure that they will ever know the extent of the information that Snowden obtained before he left the NSA.

That is why this is such a major story, for it is only getting started. It is a major legal story because it has so many related and different aspects and implications. There has never been a situation like this before, given its potential scale.

A Multi-Dimensional Legal Story

The Obama Administration has be tougher on those who leak classified information than it has been on those who have promoted and engaged in torture, setting an example of out-of-control judicial retribution with the pre-trial solitary confinement and then the Kafkaesque prosecution of Chelsea (ne Bradley) Manning, who provided classified government documents to Wikileaks. The Obama Administration has undertaken extraordinary efforts to apprehend Julian Assange, the force and face of Wikileaks. Many believe (probably with good justification) that the U.S. Government was behind the efforts of the Swedish Government, and the British Government, to aggressively pursue Assange for an alleged rape charge in Sweden. Assange has found asylum in the Ecuadorian Embassy in London, where he remains trapped. The efforts to oust him have been so over-the-top that even the UK group Women Against Rape believes that the rape allegation is political.

In light of the disposition of the Obama Administration, Snowden has been on the run and seeking exile since his first leak. Russian President Putin has granted Snowden temporary asylum, notwithstanding the fact that the U.S. Government has an arrest warrant out for him for violating the Espionage Act of 1917. In his year-end press conference, Putin claimed that he had not met Snowden, whom he called “interesting,” and Putin denied that Snowden had provided any information to Russia. The condition of Snowden’s asylum is that he must not cause harm to the United States while in Russia, but how will anyone know if he has already released 200,000 documents and is sitting on another 1.5 million? The cagey Russian president is clearly enjoying tweaking the nose of the U.S. Government’s legal system, and the desire of the U.S. Government to prosecute—if not persecute—Snowden for the political embarrassment that he has caused, such as by revealing NSA’s electronic surveillance of world leaders.

Most of the efforts to employ the legal machinery that is necessary to charge, pursue, and apprehend an international figure like Snowden who is on the run goes unseen by the public. But rest assured that President Obama is not always Mr. Nice Guy, and I suspect that he wants Edward Snowden’s head on a platter just as much, if not more, than he wanted Osama Bin Laden. I have no doubt that there is a 24/7 effort underway to find a way to apprehend and prosecute Snowden, notwithstanding the fact that when adopting the Espionage Act of 1917, Congress refused to pass an “official secrets” law making it a crime to leak. The laws used to prosecute leakers are largely judicial glosses upon existing statutes that had nothing to do with leaking, refined by the Bush/Cheney Administration, yet it has been Obama’s team that has employed those glosses to jail leakers. The Obama White House has made clear that they will not negotiate an amnesty deal with Snowden.

Aside from the legal treatment of Snowden (to date and forthcoming), there is a far more basic legal question that is raised by the leaking of NSA the information: Is NSA violating the law?

Is NSA Violating the Law?

It was the Bush/Cheney Administration that gave us the over-the-top Patriot Act in the aftermath of 9/11, a law that rewrote the charter of NSA. Once, the NSA was known as “The Puzzle Place,” where they used electronic surveillance to piece together national security intelligence. When intelligence-gathering abuses were discovered in the early 1970s, Congress created the special secret Foreign Intelligence Surveillance Court to authorize (or reject) intelligence-gathering requests of the federal government. (This court is so secret that most of its rulings are unpublished, not to mention that it virtually always accepts the government’s claims.) Then came the Patriot Act, which made the NSA into a great digital vacuum sucking up endless amounts of digital information—including metadata—from American telephone calls and emails purportedly with foreign connections. But before Edward Snowden started leaking NSA documents, no one was quite sure what NSA was or was not doing.

Snowden’s information calls into question the activities at NSA, not to mention showing that it is almost impossible to draw a line between foreign and domestic intelligence in today’s digital world. This was nicely illuminated by Washington Post tech blogger Timothy Lee, who explains, “the Internet has made a hash of the tidy distinction between foreign and domestic surveillance. Today, citizens of France, Brazil and Nigeria routinely use Facebook, Gmail, and other American online services to communicate. Americans make calls with Skype. And much Internet traffic between two foreign countries often passes through the United States.”

Because of Snowden’s leaks, the question of whether the NSA is or is not violating the law has been addressed by a federal court: Judge Richard Leon of the U.S. District Court for the District of Columbia, has ruled in Klayman v. Obama that the NSA’s bulk collection of domestic phone-call metadata under Section 215 is likely unconstitutional. Judge Leon cannot buy the government’s claim that the U.S. Supreme Court holding in the 1979 case of Smith v. Maryland, where the High Court found that there was no expectation of privacy regarding telephone numbers at a time pre-dating our current digital era where Americans with GPS cell phones and smart phones outnumber the population of the United States. FISA Court Judge Claire Eagan relied on Smith to conclude that Section 215 was acceptable under the Fourth Amendment. ACLU v. Clapper, which is similar to Klayman v. Obama, is ready for a ruling any day. Snowden’s leaks will result in the U.S. Supreme Court’s taking a look at Section 215 of the Patriot Act.

But both Congress and President Obama are reexamining the Patriot Act as well, based upon the light that the Snowden leaks have cast on this super-snooping agency. Whether one agrees or disagrees with Snowden’s actions, he has been a catalyst for us all to reexamine what we are doing to our privacy in the post-9/11 world.

Snowden as a Catalyst to Reexamine American Privacy

Edward Snowden’s leaks have shaken the intelligence community, which has thrived in secrecy, to its core. If Snowden has damaged national security with his leaks, that fact is not apparent. As Dan Ellsberg observed, Snowden had clearances that were above Top Secret, but he has not leaked information with such a higher classification. What Snowden has shown Americans, and the world, by releasing black budgets is the massive size, and with samples of their gathered intelligence, the scope of American intelligence-collection in the digital era. Russian President Putin told The Moscow Times that he was “jealous” that Obama “could afford to organize such large-scale spying activities, especially of foreign leaders” and added, “I envy Obama because he can do that, and there will be no consequences for him.”

I’m not so sure that Vladimir is correct about there being no consequences. In late October, Congressman Jim Sensenbrenner (R-Wis.) introduced in the U.S. House of Representatives, and Senator Patrick Leahy (D-Vt.) introduced in the U.S. Senate, the USA FREEDOM Act, which seeks to address the NSA abuses that were revealed by Snowden’s leaks. Given the fact that this is a truly bipartisan undertaking, by legislators with clout in their respective bodies, it could happen even in a Congress where little does happen. This legislation remains very alive, according to recent reports. Congress could confront President Obama with more restrictions than he might otherwise wish to endure.

Obama assumed the presidency with virtually no experience whatsoever with national security matters. It has been rather apparent, from the very outset, that he was captured by the national-security community that is attached to the President. While key players at the top of this community change, the rank-and-file remain largely unchanged from president to president, and so the thinking changes little from president to president. Snowden’s leaks forced Obama to select a panel of experts from that community in order to come up with some answers.

The very government-sounding group The President’s Review Group on Intelligence and Communications Technologies has completed its review, and submitted a report with forty-six recommendations to the President, which the White House appropriately released. The President wants to get the public reaction. The bottom line on the recommendations is that they restrain NSA, probably more than many in the intelligence community wish. The recommendations also directly address stories that have followed the Snowden-released information. President Obama’s reaction(s) will tell us whether he has now learned to think outside the national security community’s box.

Snowden’s Future and His Fate

I have little doubt that Jeffery Toobin is correct that Edward Snowden is going to be a big story next year, as well as this. President Putin is only going to find him “interesting” for a time, and Snowden has yet to find a country that will welcome him and not extradite him back to the United States. While some seventy-five countries have no extradition treaties with the United States, with a couple of exceptions they are not places where most Americans would want to spend the rest of their life.

Frankly, I think Snowden should do as Dan Ellsberg did, which is why you have to respect what Dan did. Dan first tried to use legitimate channels to release the Pentagon Papers, which were (like most classified material) way overclassified. (Undoubtedly, the same is true with the NSA material.) But Dan believed that he could shorten the war and save lives by releasing the material that he gave to the news media, and he was fully prepared to go to jail for however long it took to accomplish his goal.

Edward Snowden signed an agreement not to leak information when he was given his securities clearances, and he was advised at that time of the criminal implications of violating that agreement. In a year-end interview with the Washington Post, he says his mission is accomplished. If, as a result of his leaks, our government fixes the striking encroachments on privacy in which it is currently engaged, then Snowden will have accomplished his goal. And he should take his punishment. If, after all his efforts, these troublesome privacy problems have not been corrected, our country would clearly be headed in a very wrong direction and non-extraditable places like Andorra, Armenia, Brunei, Djibouti, Macedonia, Madagascar, Samoa, Tunisia, Vanuatu or the like might start looking better to a lot of Americans, not to mention Snowden.