Tuesday, June 11, 2013

Snowden and Brandeis

In the day or so since we've learned the identity of Edward Snowden, it's increasingly clear that nothing is clear about this case. The only thing we know for sure, or think we know, is that he's on the lam:
As Justice Department officials began the process Monday to charge Edward J. Snowden, a 29-year-old former C.I.A. computer technician, with disclosing classified information, he checked out of a hotel in Hong Kong where he had been holed up for several weeks, according to two American officials. It was not clear where he went.
Well, he's not at my house. Beyond that it's tough to say.

I'm having a tough time wrapping my mind around what Snowden has done and what to believe about it. My libertarian instincts are that he's done everyone a favor by calling attention to the current scope of the surveillance state, a project that has been underway since the time of Woodrow Wilson. At the same time, a whistleblower usually stands his ground, which suggests something different about this case.

Writing for the Daily Beast, Michael Moynihan neatly encapsulates the problems we have in interpreting what we've learned:

Dare I suggest that a small dollop of skepticism is required here? There is an instinct, indulged by journalists and activists, to reflexively anoint the leaker—or the whistleblower, depending on your point of view—saintly status. And the braying mobs of Snowden supporters, who nicely overlap with the passionate Julian Assange fans and Ron Paul devotees (Snowden himself donated $500 to Paul’s campaign in 2012), will doubtless dismiss any incertitude as the grumblings of Obama-administration flunkies or Bush nostalgics.

Well, no. Even a generous reading of the programs exposed by Snowden should deeply trouble those of us who are skeptical of the ever-growing American security state. And even if the administration’s explanations and justifications of the NSA’s snooping programs are to be trusted—the program foiled terror attacks, was focused only on foreign nationals, and no calls were listened to, etc.—it nevertheless raises ethical and moral issues that demand further public debate, as Snowden said an interview with The Guardian.

But even after Snowden’s disclosures, do we even understand what, exactly, the NSA is engaged in? As journalist J.M. Berger rightly points out, “the information we lack vastly outweighs the information we have. We should be cautious in interpreting data summaries we don’t fully understand.”
That seems right. I don't understand everything that the NSA is doing, or not doing, and neither does anyone reading this feature. At the same time, it's not necessary to know every detail. What matters more are the parameters, the rules of engagement. And what matters even more is whether the NSA recognizes any parameters.

As for Snowden, we're likely to learn more about his motivations in the coming days. Glenn Greenwald, the Guardian writer who has been Snowden's transmitter, promises more revelations in the coming days. That's a good thing. As Justice Brandeis so memorably put it:
"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."
And, even more on point:
“Experience teaches us to be most on our guard to protect liberty when the government's purposes are beneficent.”


Brian said...

What matters more are the parameters, the rules of engagement. And what matters even more is whether the NSA recognizes any parameters.

If you need to clear the bar at 2, last call is at 1:45. If you want your kid home by midnight, you make his curfew 11:30. If you want to keep cars out of the ditch beside the road, you make the shoulder the width of a car.

Sensible boundary setting assumes that the boundaries will be tested. If the NSA's parameters are don't spy on Americans and don't listen to the phone calls, it's safe to assume that they are spying on some Americans and listening to some phone calls.

Mr. D said...

Sensible boundary setting assumes that the boundaries will be tested. If the NSA's parameters are don't spy on Americans and don't listen to the phone calls, it's safe to assume that they are spying on some Americans and listening to some phone calls.

Well, yes. But what do we do if the boundaries are breached?

Bike Bubba said...

Guardbanding is OK in a place where the "measurement" or behavior is difficult and you want to exchange alpha for beta risk. However, for it to work--or for a lack of guardbanding to work--the key issue is that you have to enforce the line in the sand.

I'd suggest a great place to start would be with James Clapper's apparent perjury. He denied this program existed.

Brian said...

I honestly don't know. Congressional oversight seems to work only insofar as members are willing/able to (meaningfully) hold the agencies to account.

It's kind of surreal to look back at (for example) what Ron Wyden argued was a potential danger of the FISA reauthorization back in 2011, and realize that what he was actually talking about already existed, and he knew it, but couldn't say so in open debate because he was bound by oath to keep that information classified.

I'd love to think that there's an institutional way to balance the need for intelligence gathering and the demand for proactive security, with the desire to respect the privacy of individuals to the greatest extent possible. The president, to his credit, at least openly acknowledges that these are mutually exclusive interests, and that you necessarily pursue one at the expense of the other.

It may very well be that there is no "set point" that achieves the "right" balance. There's really nothing in our history (at least that I know of) that suggests that there is. It might be the best we can do is to just keep on fighting about it.

Eternal vigilance, and all of that.

Bike Bubba said...

We need people like Ron Wyeth to understand that their first oath is not to the oath of confidentiality, but to the Constitution. No?

I may be dreaming, of course. :^)

Mr. D said...

Bubba, I'm not gonna bag on Wyden. He was in a tough place on that issue. And that's the problem -- often the government puts people, even senators, in a position where you have to choose between the State and the Constitution.

Bike Bubba said...

Yes, but that's why Hugh Hewitt and others have one rule for people involved in a scandal; lawyer up. Any good lawyer will be able to get Congress to grant immunity to someone whose testimony will be explosive--and God help the DOJ that tries to prosecute that.

Correction on the name gratefully received, BTW.

Mr. D said...

If you're a witness before a Congressional panel, that's good advice. In this instance, though, we're talking about a sitting Senator arguing about the reauthorization of an existing statute. What he was forced to do was to argue o repeal an existing law, but he wasn't able to make the argument he wanted to make because of his oath of confidentiality. So it's a different scenario entirely. Wyden wasn't involved in the scandal so much as he was trying to head off a policy that was leading to the untenable situation we find ourselves in today.

I'm not a fan of Wyden on fiscal issues, but on this matter he's consistently been on the side of the angels, in my view.

Bike Bubba said...

Got it. I think the Hewitt recommendation still stands, though; a good DC lawyer will be able to figure out all the good paths for making clear that FISA oversight was a bad joke.

Plus, I've got the weird idea that if the confidential information you're being asked to protect involves something clearly illegal or unconstitutional, then the oath is null and void. There is a parallel in laws designed to protect whistleblowers, no?

R.A. Crankbait said...

Wyden had already taken an oath to protect and defend the constitution against all enemies foreign and domestic when he was sworn into office. That oath would/should trump any other.