A Cosmopolitan Defense of Snowden

A bunch of human rights groups have started a campaign calling on President Obama to pardon Edward Snowden, to coincide with the release of the Snowden movie today.

With regards to Snowden’s fate, I believe — as I have from the start — that US interest would have been and would be best served if a safe asylum for Snowden were arranged in a friendly country. I had said France at the time, but now Germany would be the obvious location. Obama is not going to pardon Snowden, and Presidents Hillary or Trump are far less likely to do so, not least because if a president pardoned Snowden it would be an invitation for a metaphorical or literal assassination attempt. But I also think it would have always served US interests to keep Snowden out of a place like Russia. That ship has already sailed, but I still think we insist on making it impossible for him to leave Russia (by pressuring allies like Germany that might otherwise have considered asylum) largely out of self-destructive motives, an urge to prove our power that often overrides our interests.

That’s all background to recommending you read this post from Jack Goldsmith arguing against pardon for Snowden. While I disagree with big parts of it, it is the most interesting piece I’ve seen on the Snowden pardon question, for or against.

Like me, Goldsmith believes there’s no chance Snowden will get a pardon, even while admitting that Snowden’s disclosures brought worthwhile transparency to the Intelligence Community. Unlike me, he opposes a pardon, in part, because of the damage Snowden did, a point I’ll bracket for the moment.

More interestingly, Goldsmith argues that a pardon should be judged on whether Snowden’s claimed justification matches what he actually did.

Another difficulty in determining whether a pardon is warranted for Snowden’s crimes is that the proper criteria for a pardon are elusive.  Oliver Wendell Holmes once declared that a pardon “is the determination of the ultimate authority that the public welfare will be better served by inflicting less” than what the criminal law specified.  But how to measure or assess the elusive public welfare?  The Constitution delegates that task exclusively to the President, who can use whatever criteria he chooses.  Many disagreements about whether a pardon is appropriate are at bottom disagreements about what these criteria should be.  Some will question whether Snowden should be pardoned even if his harms were trivial and the benefits he achieved were great.  Indeed, presidents don’t usually grant pardons because a crime brought benefits.  My own view is that in this unusual context, it is best to examine the appropriateness of a pardon in the first instance through an instrumental lens, and also to ask how well Snowden’s stated justification for his crimes matches up with the crimes he actually committed.

Goldsmith goes on to engage in what I consider a narrowly bracketed discussion of Snowden’s leaks about violations of US law (for example, he, as everyone always does, ignores NSA double dipping on Google and Yahoo servers overseas), claiming to assess whether they were violations of the Constitution, but in fact explicitly weighing whether they were a violation of the law.

His exposure of the 702 programs (PRISM and upstream collection) is harder to justify on these grounds, because these programs were clearly authorized by public law and have not sparked nearly the same criticism, pushback, or reform.

After substituting law for Constitution, the former OLC head (the guy who approved of much of Stellar Wind by claiming FISA exclusivity didn’t really mean FISA exclusivity) makes what is effectively an Article II argument — one nowhere nearly as breathtaking as Goldsmith’s Stellar Wind one. Most of Snowden’s leaks can’t be unconstitutional, Goldsmith argues, because they took place overseas and were targeted at non-US persons.

What I do not get, and what I have never seen Snowden or anyone explain, is how his oath to the U.S. Constitution justified the theft and disclosure of the vast number of documents that had nothing to do with operations inside the United States or U.S. persons.  (Every one of the arguments I read for Snowden’s pardon yesterday focused on his domestic U.S. revelations and ignored or downplayed that the vast majority of revelations that did not involve U.S. territory or citizens.)  To take just a few of hundreds of examples, why did his oath to the Constitution justify disclosure that NSA had developed MonsterMind, a program to respond to cyberattacks automatically; or that it had set up data centers in China to insert malware into Chinese computers and had penetrated Huawei in China; or that it was spying (with details about how) in many other foreign nations, on Bin Laden associate Hassam Ghul’s wife, on the UN Secretary General,  and on the Islamic State; or that it cooperates with intelligence services in Sweden and Norway to spy on Russia?; and so on, and so on.  These and other similar disclosures (see here for many more) concern standard intelligence operations in support of national security or foreign policy missions that do not violate the U.S. Constitution or laws, and that did extraordinary harm to those missions.  The losses of intelligence that resulted are not small things, since intelligence information, and especially SIGINT, is a core element of American strength and success (and not just, as many seem to think, related to counterterrorism).  It doesn’t matter that leaks in this context sparked modest reforms (e.g., PPD 28).  The Constitution clearly permits foreign intelligence surveillance, and our elected representatives wanted these obviously lawful practices to remain secret.

Having laid out a (compared to his Stellar Wind defense) fairly uncontroversial argument about the current interpretation of the Constitution reserving wiretapping of non-Americans to the President (though my understanding of the actual wiretapping in the Keith decision, of Americans in Africa, would say Presidents can’t wiretap Americans overseas without more process than Americans’ communications collected under bulk collection overseas currently get), Goldsmith goes onto make his most important point.

The real defense of Snowden stems not from our own Constitution, but from a moral and ethical defense of American values.

What might be the moral and ethical case for disclosing U.S. intelligence techniques against other countries and institutions?  (I will be ignore possible cosmopolitan impulses for Snowden’s theft and leaks, which I think damage the case for a pardon for violations of U.S. law.)  I think the most charitable moral/ethical case for leaking details of electronic intelligence operations abroad, including against our adversaries, is that these operations were harming the Internet, were hypocritical, were contrary to American values, and the like, and Snowden’s disclosures were designed to save the Internet and restore American values.  This is not a crazy view; I know many smart and admirable people who hold it, and I believe it is ethically and morally coherent.

This is a remarkable paragraph. First, it defines what is, I think, the best defense of Snowden. American values and public claims badly conflict with what we were and still are doing on the Internet. I’d add, that this argument also works to defend Chelsea Manning’s leaks: she decided to leak when she was asked to assist Iraqi torture in the name of Iraqi liberation, a dramatic conflict of US stated values with our ugly reality.

But the paragraph is also interesting for the way Goldsmith, almost as an aside, “ignore[s] possible cosmopolitan impulses for Snowden’s theft and leaks, which I think damage the case for a pardon for violations of U.S. law.” I take this to argue that if you’re leaking to serve some universal notion of greater good — some sense of world citizenship — then you can’t very well ask to be pardoned by US law. Perhaps, in that case, you can only ask to be pardoned by universal or at least international law. I’ll come back to this.

Goldsmith contrasts the moral and ethical case based on American values with his own, a moral and ethical one that justifies US spying to serve US interests in a complex and dangerous world.

But it is also not a crazy view, and it is also ethically and morally coherent, to think that U.S. electronic intelligence operations abroad were entirely lawful and legitimate efforts to serve U.S. interests in a complex and dangerous world, and that Snowden’s revelations violated his secrecy pledges and U.S. criminal law and did enormous harm to important American interests and values.

For the record, I think Snowden has said some of US spying does serve US interests in a complex and dangerous world. But from that view, the old defender of Article II argues that a President — the guy or gal who by definition is the only one can decide to pardon Snowden — must always adhere to the latter (Goldsmith’s) moral and ethical stance.

Unfortunately for Snowden’s pardon gambit,  President Obama, and any one who sits in the Oval Office charged with responsibility for American success around the globe, will (and should) embrace the second moral/ethical perspective, and will not (and should not) countenance the first moral/ethical perspective, which I take to be Snowden’s.

Goldsmith then ends where I began, with a more polite explanation that any president that pardoned Snowden would be inviting metaphorical or literal assassination. He also suggests the precedent would lead to more leaks. But that seems to ignore 1) that Snowden leaked even after seeing what they did to Manning (that is, deterrence doesn’t necessarily work) 2) the Petraeus precedent has already exposed the classification system as one giant load of poo.

Anyway, by my reading, Goldsmith argues that this debate pits those motivated out of American values versus those motivated out of perceived American interests, and that any President must necessarily operate from the latter.

I’m interested in that because I think the former motivation really does explain a goodly number of the leakers and whistleblowers I know. People a generation older than me, I think, may have been true believers in the fight against the Evil Empire during the Cold War, only to realize we risk becoming the Evil Empire they spent their life fighting. Every time I see Bill Binney, he makes morbid cracks about how he was the guy who invented “Collect it all,” back when he was fighting Russia. People a generation younger than me — Snowden, Manning, and likely a lot more — more often responded out of defense of all that is great in America after 9/11, only to find that that we have not adhered to that greatness in prosecuting the war on terror. These are gross generalizations. But I think the conflict is real among a lot of people, and it’s one that will always fight increasingly diligent efforts to tamp down dissent.

That said, I want to note something else Goldsmith did, while making his aside that anyone making a cosmopolitan defense of Snowden cannot ask for a pardon under US law (a view I find fairly persuasive, which may be why I think a reasonable outcome is for Snowden to live out his life in Germany). In making that aside, Goldsmith effectively dismissed the possibility that living US values rather than interests might be both cosmopolitan and in our national interest.

I’ve talked about this repeatedly — the degree to which Snowden’s disclosures (and, to a lesser extent, Manning’s) served to expose some lies that are critical to American hegemony. Our hegemonic position relies — according to people like Goldsmith and, perhaps in reality, though the evidence is mixed — on our global dragnet, which in turn serves our global military presence. But it has also relied on an ideology, every bit as important as ideology was during the Cold War, that espoused democracy and market capitalism and, underscoring both of those, a belief in the worth of every individual (and by extension, individual nation) to compete on equal terms. Without that ideology, we’re just a garden variety empire, which is a lot harder to sustain because it requires more costly (in terms of dollars and bodies) coercion rather than persuasion.

And Snowden’s leaks showed we used our preferential position astride the world’s telecommunications network and our claim to serve freedom of expression to serve as the hegemon. Hell, the aftermath of that shows it even more! Country after country has backed off giving Snowden asylum — the proper cosmopolitan resolution — because the US retains enough raw power and/or access to the fruits of the dragnet to persuade countries that’s not in their “interest.”

This is an issue that has gotten far too little attention in the wake of the Snowden leaks: to what degree is the cost of the Snowden leaks measured in terms of exposing to the subjects of our hegemon facts that their leaders already knew (either because they were and are willing co-participants in the spying or knowledgeable adversaries engaged in equally ambitious but less effective surveillance)? I don’t doubt there are individual programs that have been compromised, though thus far the IC has badly hurt its case by making claims (such as that Al Qaeda only adopted encryption in response to Snowden, or that Snowden taught terrorists how to use burner phones) that are easily falsifiable. But a big part of the leaks are about the degree to which the US can (and does passively in many cases via bulk collection) spy on everyone.

But to me, the big cost has been in terms of exposing America’s hegemonic ideology as the fiction that ideologies always become if they aren’t from the start.

Note, I fully accept that that may be an unacceptable cost. America’s hegemony was already weakening; I believe Snowden’s disclosures simply accelerated that. It is absolutely possible that the weakening of US hegemony will create a vacuum of power that will leave chaos. That chaos may, may have already, led to a desire for strongmen in response. There were outside factors playing into all of this. The Iraq War did far more to rot America’s hegemonic virtue than Edward Snowden’s leaks ever could have. And it’s not clear that an empire based on oil can provide the leadership we need to fight climate change, which will increasingly be the source of chaos. But I accept that it is possible Snowden accelerated a process that may lead to horrible outcomes.

Here’s the thing, though: this younger generation of leakers — of dissident servants of the hegemon — don’t need to be cured of a lifetime of ideology. It may take, as it did with Manning, no more than critical assessment of some flyers confiscated by our so-called partners in liberation for the ideology cementing our hegemonic authority to crumble.

Our hegemony depends on the ideology of our values. That seems to both have been the trigger for and may justify the cosmopolitan interest in exposing our hypocrisy. And whether or not Americans should give a shit about the freedom of non-American subjects of the hegemon, to the extent that servants of that ideology here find the hypocrisy unsustainable, we’re likely to have more Mannings and more Snowdens.

Our global dragnet may very well serve the ethics of those who serve presidentially-defined American interests. As such, Snowden’s leaks are surely seen as unforgivable damage.

But it is also possible that American hegemony is only — was only — sustainable to the degree that we made sure that global dragnet was limited by the values that have always been critical to the ideology underlying our hegemony.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

22 replies
  1. jerryy says:

    “… Goldsmith then ends where I began, with a more polite explanation that any president that pardoned Snowden would be inviting metaphorical or literal assassination.”
    President Carter pardoned the Vietnam War draft dodgers (and walked into the lion’s den of opposition, so to speak, when he decided to do so, to make the announcement.).
    Doing that was, back then, a very big deal loaded with controversy, outrage and threats, etc., etc.
    President Carter survived that. The country survived that.
    Presidents get paid to make those kinds of choices. Even the so-called ‘caretaker’ administration leaders know that.

    • emptywheel says:

      Key members of the Deep State were involved in negotiating with the Iranians over, in part, holding onto the hostages to ruin Carter’s reelect chances.

      That’s precisely the kind of thing I mean by “metaphorical assassination.”

      • jerryy says:

        I understand that, I do.
        But as long as there is an opposition group, there will be an issue to use as an excuse to resort to bad-person tactics.
        It is one of the many risks that comes with the job.

  2. Trevanion says:

    One of your best.

    Many who played in that sandbox between the mid 1980s and the start of this decade will say that, while there is no definable date or event (certainly not/not 9/11; perhaps the fall of The Wall), at some point a tipping point was reached where what you call ‘idology’ (there must be a richer, thicker word for it, perhaps in German) no longer framed things — but gradually began to be treated as something to be maneuvered around with ruse.

    Garden variety empire indeed.

    • emptywheel says:

      Of late I’ve been putting that at Poppy’s Thousand Points of Light speech.

      He really pioneered the (presumed to be Rovian) notion that Empires invent their own truths. I honestly believe that the US has believed since that speech that any foreign entity that threatens to undermine our “Truth” is fair game for retaliation, even if no real American interests are at stake. I think that’s a big part of the reason we’ve pursued Bolivarist leaders so persistently, even though Bolivarist ideology really doesn’t threaten anyone except perhaps our lily pad in Colombia.

  3. martin says:

    Snowden is a hero. The USG is a scum sucking war criminal. Long live Snowden. Slow death to those criminals of the USG.

  4. bevin says:

    One of the more interesting aspects of this matter is that it suggests that the Legal System is totally compromised.
    The matter of Snowden’s guilt must involve balancing his likely breach of a pro-forma oath of employment with the immense service he performed by revealing the extent of governmental abuse of power and breach of the Constitution (aka the basic law). That would be in classical terms something for a properly constituted jury of peers to decide.

    But that is not the way the law works is it?
    The presumption of guilt combined with an official determination to exact revenge, particularly on someone revealing the pervasive criminality of the great (who staff the Law), add up to a situation in which the best advice is to steer clear of a legal system which is as fixed, federally, now as it was regionally in the Jim Crow times.

    No good can come of this. When the citizenry lose faith in the possibility of justice, where the government or its rich backers is concerned, and the only lesson of the courts is that ‘resistance is futile’ tyranny is naked-its ideological clothing in shreds.

    So how is Jose Padilla doing anyway?

    • rugger9 says:

      Good point there, I was thinking in the same vein, because once politics invades the courtroom, justice is lost. When the ability to redress grievances impartially is lost to the citizens (such as “binding arbitration” where the money side picks the arbitrator) then people will turn to other means, like pitchforks or worse.
      It’s why people who would otherwise be common criminals get rooting sections, all the way back to Robin Hood.

  5. scribe says:

    I would love to see Goldsmith apply his analytic rubric (or whatever you want) to Bush the Younger commuting Scooter Libby’s sentence. At the time, I wrote a piece over at TalkLeft (still archived, last I looked) called “Libby’s Bitches”, wherein I argued that Libby had made Bush and Cheney (who militated even more strongly for pardoning Libby than does anyone for Snowden) into his personal bitches and had successfully blackmailed them into it. But, returning to my main point, Goldsmith’s position does not hold up if you try to apply it to anyone other than Snowden. Sure, what Snowden did is pretty much sui generis, but every case is, to a greater or lesser degree.
    No, we get a double standard. One standard for leakers like Snowden and another for clowns like Petraeus trading access to secrets for blowjobs and mooning adoration from a junior, subordinate officer. One for HRC countenancing an unsecured server in her basement full of literal state secrets there for anyone to hack, and another for a mope sailor who took a couple pictures inside his submarine (and who, when he tried to invoke the light treatment Petraeus and HRC got, got an epic benchslap during sentencing).
    Goldsmith makes a pretty case, but it’s pretty much cotton candy for the mind and some propaganda to perpetuate the myth of America. Not worth the time.
    And, yes, this country is, sadly, a great hollow oak infested with termites and carpenter ant who devour its substance by betraying the ideals that made it the light of the world. Even if we as a nation didn’t live up to those ideals – and many times we did not – we did try or at least put on a show of trying. Can’t even claim that anymore.

  6. martin says:

    I have a different view of Snowdens “pardon”. To me, every gun owning patriot in this nation, who believes the real purpose of what he did, should be mounting a nation wide coalition to confront the USG to bring him home!!!! , because,, if they don’t, this nation is lost to the capitalist enslavement of the 99% by virtue of the 16th Amendment.. the most insidious, vile, banker plan to enslave YOU, and 99.9% the worlds population for their ends. 1

    The living proof of the two tiered IN-justice system in this god forsaken piece of shit county is THIS…. our beloved DOJ just ASKED, one of the largest financial manipulators of currency,s on the planet, one German bank, if it would be OK. if the DOJ BILLS them for $14 BILLION., for their part in the collapse of the economy across this planet.

    Of course..the Oligarchy of Europe erupted in raucous, gut splitting, roll on the floor laughter, after which, in their corporate towers, they clinked crystal glasses full of $4k per bottle of the best champagne on the planet, while mocking the absurdity and unenforceable proposal of the US DOJ, collectively raise their middle finger to the morons in the DOJ that think they can reign in the foreign .001% who control their sphere of capitalism on the planet.

    Meanwhile.. the US citizenry remains clueless.

  7. stryx says:

    Seriously Marcy, this was really good. I liked the framing of values vs interests, and the way that they are often used as if they were the same thing. This is like conflating a law and the Constitution. I often wonder how much of the outrage over Snowden’s acts is due to those who feel threatened by revelations of how much of our well paid security state is employed flogging our ‘interests’ which have been dressed up as ‘values.’ There’s a lot of money to be made conflating the two. Just ask Karp &Thiel.

  8. Chris van Gorder says:

    All this talk about oaths and pledges has me puzzled. He was a contractor, not a civilian employee of the government. He and his employer signed documents about the scope of his duties and his expected conduct. But he made no oaths or pledges to the President or the Constitution so far as I am aware.

    • bmaz says:

      Well heck then Chris, looks like you’ve solved the case. Contractors simply are not allowed to give a shit about the Constitution!
      This will, however, be very convenient for the contractors out there drone executing people all over the world.

  9. Headbangers says:

    Goldsmith, like all US statists, engages in furious autistic stimming to block out the obvious. He slides quickly from narrow municipal law arguments to hazy ‘moral or ethical’ musing. That helps him avoid dealing with the supreme law of the land under Article VI, Clause 2: the binding duty of the US government to respect the right to privacy, the right to seek and obtain information, and the right to freedom of association. That’s in the ICCPR, which the US government fails to interpret in good faith, according to the treaty body’s experts. That US dereliction of state duty makes Snowden a human rights defender, subject to specfic protections under customary international law.

    All US-trained lawyers are brainwashed to melt down at the thought of human rights. It’s part of US resistance to the state’s obligations and commitments under the UN Charter.

    Anyway on humanitarian grounds Snowden’s better off in Russia than in the US because his rights are better protected. Russia complies with the Paris Principles for institutionalized human rights protections subject to independent international oversight. The US does not.

    • bmaz says:

      “All US-trained lawyers are brainwashed to melt down at the thought of human rights. It’s part of US resistance to the state’s obligations and commitments under the UN Charter.”

      Oh, well then. And you are familiar with all of us are you? Thanks for the drive by.

  10. Headbangers says:

    A scant few escape the strictures of their training. Most reflexively parrot non-self-executing doubletalk, intently ignore the Paquete Habana, try all the other fingers-crossed tricks. Honest ones, like Chelsea Manning’s good-cop lawyers, admit they’re afraid to bring it up because you’ll only get in trouble.

  11. Theo says:

    I don’t believe there is an excuse for what the US is doing in the world, including the blanket surveillance. A great deal of the turmoil in the world has been and is being caused by what the US has done and is doing. It’s like a dog eternally chasing its tail. A closed loop with no end in site other than atrophy and eventual destruction of the system. American values is an expression people have used for years but upon examination those values are not the light unto the world many believe and never have been. They are a fiction, a fiction instilled through constant repetition and propaganda. The Constitution is a conservative documents whose bill of rights was opposed strongly but won out in the end and has obvious deficits. America is a hustler society based on greed and the amassment of wealth at the expense of its citizens and citizens of other countries. Our people have dealt badly with others internally and externally. Certainly there have been and still are decent people who adhere to values in the country and even in the government. There are people who know our true history, most don’t. Certainly there have been genuine achievements in civil rights. But there has always been and always will be pushback by a great many people who don’t and can’t think of anyone but themselves. With each passing decade we are seeing more and more rot, more and more corruption, everywhere in the country. It’s always been there, but the internet is bringing the news to more and more people. The aggression and authoritarianism practiced by successive American governments and by citizens themselves have taken hold in the police, in our schools, in our corporations, in our state and local governments, in our churches, in our families. This corruption too is the result of the failure of American education, the failure of social justice for all citizens, not just the favored few, and above all the failure to found and strengthen the human community based on the very values to which so many in America glibly refer. Ultimately it is the failure of a sufficiently decent human nature. America has become a sterile, unlivable landscape of dead people, dead institutions. Jack Goldsmith’s rumination on Snowden are confused and hypocritical and ultimately empty. I do agree that any president that pardons Snowden would invite assassination. It is absurd to hope that persons such as Obama, Clinton, or Trump would do so. That is another symptom of the rot, that is, the expectation that appealing to such people on any basis, especially of human decency, will and can result in change. The rot has always been there, even before our founding. We started badly with genocide and slavery and so we have continued. In the news recently was the discovery of cannibalism at Jamestown (a teenage girl), often the result in communities pushed to the limit. Undoubtedly it will happen again with disruption of food supplies caused by global warming. I don’t believe America is redeemable. So many of us cannot admit we are wrong about anything and at the same time we are ignorant of our own history and anyone else’s history. We believe so much that is not true and have little to no interest in learning. I saw an article on arstechnica the other day about a female statue found in Turkey. The level of abuse by the male commenters was awful. Maybe it’s really male, comments about the obese female body from others, endless crap out of the mouths of the ignorant. And Silicon Valley libertarians believe they have the answer to the problems of America and the world! The finder posited that the figure represented a female authority figure rather than a goddess figure. That didn’t sit well with the commenters, no female authority figures are acceptable. My point is that even something like this brings out the ugly in American males. A country that has killed well over 20 million human beings directly or indirectly since the end of WWII has surely shown itself to be without those vaunted values everyone talks about. And that doesn’t take into account the wounded, maimed, psychologically damaged, societies utterly destroyed, environmentally damaged land, air, water, the toxic weapons changing DNA, the unexploded weapons left behind to continue to kill, maim, especially children. Again, there is no excuse for what our governments have done and our government is doing now in the world. Our leaders in their ignorance and venality are responsible for unbelievable suffering and destruction. Snowden is among the minority who started out as true believers, a libertarian but has in some important ways has had his mind opened and his beliefs changed. What will it take for similar transformations of the American psyche?

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