Privacy SOS

Notes on the tortured logic of Snowden’s critics

There's something I can't quite figure out about this Edward Snowden business.

Some of his critics are displaying what can only be called extremely tortured logic as they try to justify calls for his imprisonment, or worse.

Jeffrey Toobin at the New Yorker is a good example of what I'm talking about. He writes that Snowden is not a whistleblower or a hero, but rather "a grandiose narcissist who deserves to be in prison." That's pretty extreme! How did Mr. Toobin arrive at this conclusion?

First, by pointing out that Snowden should have known that the NSA was a rights-violating, domestic-communications-monitoring agency. Well, Toobin puts it slightly differently:

What, one wonders, did Snowden think the N.S.A. did? Any marginally attentive citizen, much less N.S.A. employee or contractor, knows that the entire mission of the agency is to intercept electronic communications. Perhaps he thought that the N.S.A. operated only outside the United States; in that case, he hadn’t been paying very close attention.

Next, Toobin spells out exactly how disclosing things everyone already knew could harm the national security of the US government or its people:


That's right! He doesn't! That's because that wouldn't make any sense. The information thus far disclosed to the public indeed confirms our worst fears about what the government has been doing for over a decade. If we already knew about the information they contain, the disclosures certainly don't constitute a grave threat to our security.

To be fair, Toobin suggests that the harms from disclosure of these particular documents may come sometime down the road, if the Chinese government gets its hands on the yet-to-be-published slides presumably now held by Snowden, the Guardian and the Washington Post, and if those slides contain something perhaps unknown to the public and somehow damaging to the lives of US Americans. That is a lot of ifs!

But it is all down-hill from there. The rest of the piece is pure apologia for the government. Our columnist proceeds to lecture Snowden about What He Should Have Done, displaying incredible ignorance about related events over the past decade and suggesting that it is in fact Toobin who "hadn't been paying very close attention."

What is someone to do in a position like Snowden’s, if they believe that the government is implementing the law in a manner the public doesn’t comprehend, and which threatens the character of the society? Toobin asserts that our brave whistleblower could and should have taken his concerns to The Democratic Process. He puts it like this:

The American government, and its democracy, are flawed institutions. But our system offers legal options to disgruntled government employees and contractors. They can take advantage of federal whistle-blower laws; they can bring their complaints to Congress; they can try to protest within the institutions where they work. But Snowden did none of this. 

That's a nice idea, and through-the-proper-channels advocacy is something organizations like the ACLU have been trying in the 'national security' space for a long time. But as Jeffrey Toobin, someone well versed in current events, must know, both the organization and our allies have been routinely stonewalled by a government that refuses to even inform the public about the laws governing its authoritarian killing and spying powers.

That’s right: we live under secret law. Welcome to America.

He may have a ready answer for this, too. Toobin might tell me that in fact all of this secrecy and the government’s wanton disregard for the Bill of Rights are actually our fault, that people in the country want to live in a surveillance state or are too busy watching The Real Housewives to pay enough attention. And some of those things may be partially true.

But they absolutely don’t account for the government’s refusal to disclose the legal authorities under which it thinks it operates as it kills and spies across the world. Only the government is responsible for that. And the government is also responsible for its absolute manhandling of whistleblowers who have done exactly what Toobin advocates, and have gotten exactly nowhere insofar as changing government policy is concerned. 

And that leads me to perhaps the most glaring error in the logic Toobin lays out as he advocates that we imprison Edward Snowden.

Toobin appears to be unfamiliar with the cases of Thomas Drake and William Binney, themselves NSA whistleblowers. If that’s so, he should acquaint himself. He may then be disabused of the notion that internal whistleblowing about NSA abuses that every branch of the federal government has routinely approved or ignored has been sufficient to affect policy, historically speaking.

While it might not change anything, blowing the whistle internally can result in getting one's home raided by the FBI at five in the morning. That's what happened to Bill Binney when he went through the 'appropriate channels.’ But to the government's great discredit, it did not have the effect of reigning in the domestic spying Binney warned about.

Had the government acted on those internal whistles, Snowden would be in Hawaii right now with his girlfriend. Perhaps Jeffrey Toobin should consider that.

© 2021 ACLU of Massachusetts.