By Thomas S. Neuberger
October 28, 2015
“We have arrived at the cusp of a garrison state by fits and starts, on a long arc that bends steadily toward a far different America from the one the Founders envisioned or would have tolerated. Unlike Argentina under the junta, Russia under nearly everyone, and China forever, it is not too late to reverse course. It may ask too much of today’s media to play as key a role in reviving the democratic experiment today as the far more primitive press played in birthing, nurturing, and cheering on what became that unprecedented creation – a democratic Republic with majority rule and a Bill of Rights. I think that is defeatist nonsense. The fire bell is ringing. There can be no certainty about final answers, but there is absolutely no excuse for allowing inertia to make the big ones. Edward Snowden has proved it.”— Hodding Carter III
After Snowden: Privacy, Secrecy, and Security in the Information Age (Thomas Dunne Books, 2015) is a primer for any citizen who wants to be informed about the issues revealed by the National Security Agency’s (NSA) spying programs.
A previously unpublished collection of seven essays by journalists, academics and attorneys engaging in an educated debate on the critical public policies flowing from Edward Snowden’s disclosures of spying in the summer of 2013, After Snowden addresses civil disobedience, the role of the press in reporting government misconduct, the proper balance between privacy, government spying and secrecy in the information age, the need for whistleblowers who leak valuable overly classified information, and the proper role of courts and Congress in balancing the executive branch.
After Snowden also poses some critical questions, such as: Was Edward Snowden a patriot or a traitor? Just how far do American privacy rights extend? How far is too far when it comes to government secrecy in the name of security? And, in the words of President Obama, can we uphold the “civil liberties and privacy protections that our ideals – and our Constitution – require” while also protecting ourselves?
For example, in his essay on “The Press,” former Assistant Secretary of State Hodding Carter III explores whether the press is justified in unearthing and publishing classified information.
Writing out of “disgust with media waffling behind timidity’s breastworks,” while the garrison state is being erected, Carter challenges all forms of the current media to live up to their heritage as a counterweight to government deception and to join in a conflict with the government so that the public interest and the truth will be served.
In essence, Carter argues that the mainstream media has been absent “without leave from the fray” while the government has “operated a secret high-tech vacuum cleaner to suck the meaning out of the Fourth Amendment.” He effectively poses this question to an overly compliant media: “The dead at the Twin Towers cry out for retaliation and revenge, at least in my ears, and they have been given it several fold over. Do they also cry out for the curtailment of liberty and the use of domestic police state tactics?”
These are weighty questions worthy of debate in the establishment media. Indeed, the New York Times itself recently lamented that it has been too compliant with the government during the war on terror.
In his essay, “What Should We Do About the Leakers?” law professor David Cole challenges the reader to consider when, if ever, leaks of classified government secrets are justified. He argues that sometimes “leakers perform a critical, if troubled, function in deterring secrecy’s misuse.” As an example, Cole points to Daniel Ellsberg’s revelations about the release of the top-secret Pentagon Papers in 1971 during wartime, the leaks by Chelsea Manning and Julian Assange via WikiLeaks, and Snowden’s disclosures about NSA abuses.
Cole offers a three-part test to assess when such leaking is morally justified. 1) Is the revelation based on clear and convincing evidence of abuse of public authority? 2) Does the leak pose too great a disproportionate threat to public safety? And 3) is it as limited in scope and scale as possible? While Cole provides his brief opinion on each leaker as a starting point for analysis and debate, I hoped for more analysis on the seminal Ellsberg case, which was such a watershed for the Vietnam war because of its massive and embarrassing revelations about the government lying to the public in order to make a war that was in retrospect unnecessary and ill conceived.
In “Judging State Secrets: Who Decides—And How?” journalist Barry Siegel narrates the story of three widows who sued the Air Force for the wrongful deaths of their civilian husbands who were passengers in a military airplane that crashed in Georgia. This was at the dawn of the Cold War with the Soviets, Red China and East Germany, a time akin to the post 9/11 trauma.
In an attempt to cover up its gross negligence, incompetence and recklessness, the Air Force falsely contended that grave state secrets would be revealed in their court case if its own subsequent internal accident report was reviewed confidentially by a federal judge privately in his office. In 1953, the Supreme Court gave into apocalyptic hysteria in its Reynolds decision and adopted a “state secrets” doctrine which requires judges to abdicate the judicial review function, wear blindfolds and immediately dismiss any court case if the government recites the magic words that “state secrets” are involved.
This civil liberties loophole grew exponentially after the Nixon Watergate tapes case in 1974, which clarified the incantation to be that “military or diplomatic secrets” are at issue, in which case a judge cannot even see whether there is any proof behind that assertion. Presidents Bush and Obama have used this doctrine constantly to prevent examination of their illegal rendition, torture or NSA spying abuses.
By tracing this “retreat of the judiciary” from its historic role as a check and balance on the executive, Siegel provides an insightful exploration of one of the principal legal obstacles to reform after the Snowden disclosures. What we learn is that “the impulse to protect military secrets [has] come to look more like the impulse to cover up mistakes, avoid embarrassment, and gain insulation from” accountability in many areas of demonstrated public concern.
Protecting News Sources
Edward Wasserman, writing about “Protecting News in the Era of Disruptive Sources,” explores the media’s position toward the new breed of media source typified by Snowden or WikiLeaks. Should the media facilitate and even guard this flow of newsworthy information? Instead of defending the ability of “individuals to go public with significant knowledge that deserves wide exposure,” the establishment media harshly criticized and initially attacked Snowden for his actions.
Wasserman tellingly recounts the media’s disregard for all powerless media sources, relying on three recent case studies. According to Wasserman, the private sources that the media actually fight to defend often are just powerful politicians (with whom they have an incestuous relationship) who are retaliating against defenseless adversaries. In a caustic commentary, Wasserman asserts that “the more common scenario [is] where the powerful use the press first as pack animals and then as guard dogs” for their wrongdoing.
In final answer to the question posed as to the media’s role in the digital age, Wasserman implores it to create an environment in which these new sources can speak freely because their information is so important to the public. He urges that this context should include changes to the 1917 Espionage Act which remove its draconian nature and substitute the current European model which only inflicts minor criminal punishment for whistleblowers, since they are not really foreign spies, but in reality call government to account for its hidden gross misconduct.
For anyone who seeks a history of the back-and-forth public disclosures and reaction to hidden government misconduct since the 1950s, After Snowden: Privacy, Secrecy, and Security in the Information Age should be required reading. It effectively raises the many issues of public policy and law in the electronic information age and their effect on our democracy. Any citizen wanting to understand or participate in this policy debate will be well served by a close reading.
*Thomas S. Neuberger is an author and has been a constitutional attorney for 41 years.
DISCLAIMER: THE VIEWS AND OPINIONS EXPRESSED IN OLDSPEAK
ARE NOT NECESSARILY THOSE OF THE RUTHERFORD INSTITUTE.