Perhaps this was massive, world-interrupting news yesterday and I slept/vomited through it, but a federal judge has issued a preliminary injunction against broad federal collection of cell phone data, saying that the program “surely” infringes on the Fourth Amendment. Blanket domestic surveillance from the NSA is by no means over, but it seems likely to suffer a serious blow in the next six months. DC District Court Judge Richard Leon stayed his injunction to allow the federal government time to appeal—something it almost certainly will do, so business as
usual recently revealed by a dude who has to hide in Russia. But Leon also called the programs “almost Orwellian” and said James Madison would be “aghast” if he knew about it. He meant to say “a ghost.”
Meanwhile, in Russia, Edward Snowden lives in an apartment building maybe populated entirely by actors. He believes that Leon’s ruling vindicates his revelation of all these creepy federal schemes:
I acted on my belief that the NSA’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts. Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.
Which is exactly what a traitor would say. So here’s the $60 question: does Snowden get to come back? If we accept that he committed an act of treason by revealing the government’s legal surveillance of virtually all Americans—and I do not accept that proposition, but let’s take it as the basis of our hypothetical—then is he not a traitor now that said surveillance is likely unconstitutional?
Obama says no, meaning yes, we will interrogate him in a military prison for freedom. His rationale is essentially that Snowden is not wanted for being wrong about PRISM and other classified NSA surveillance programs, but rather for revealing them in the first place—something he swore not to do. That’s a valid argument as far as the law goes, but it doesn’t feel great ethically. It’s like telling Rosa Parks that we all appreciate what she did re: segregation and all, but the law says she can’t sit at the front of the bus.
Presumably, a person who reveals federal acts that violate the Constitution can’t be committing treason, no matter what federal laws he breaks to do it. Or can he? Do you commit treason against the Constitution, against the country or against the government?
In broader and vaguer senses, this question is at the heart of how you feel about Snowden himself. If you agree with Judge Leon’s interpretation and regard PRISM et al as unconstitutional, you probably regard the government that put it in place as in need of checking, for the good of both Constitution and country. In this context, Snowden is a patriot of both the old-school Revolutionary and new-school speculative fiction sort. He saved the country from its government, as historic and hypothetical patriots are often called upon to do.
Real-world patriots, on the other hand, almost always act at the government’s behest. We may venerate the Constitution as the law of the land, but the land itself is administered by the feds. As more or less an instrument of the people’s will, the US government is operatively indistinguishable from America, and the self-styled patriots who defy it are more likely to be assholes than anything else.
So which is Snowden? If the answer seems obvious, then consider whether you would like the United States to establish the following precedent: you can leak classified information and otherwise break the rules of the federal government if it’s doing something unconstitutional.
That seems like an okay rule at first, but consider how you would feel if conscientious objectors in the federal government sabotaged the Affordable Care Act in the months before the Supreme Court decided it was constitutional. That decision could have gone the other way. If it had, would the actions of those who defied federal law to enforce their own ideas of what the government could and could not do be vindicated?
Edward Snowden is not a Supreme Court justice, after all. A well-meaning idiot with the same security clearance could just as easily have decided a different constitutional question in a way that the courts did not subsequently support. What if Snowden were certain Obama was not a US citizen, and so he turned over his travel itinerary to North Korea. Would that have been a good action or an evil one depending on the provenance of the president’s birth certificate?
As much as I want to say Monday’s ruling vindicates Snowden, I’m not sure I want the ethics of revealing classified information to turn on the revealer’s understanding of jurisprudence. I personally think that man is a hero, and we should be nice to him and maybe even write up some favorable history lessons. But if we are to maintain a coherent ethics, Judge Leon’s decision probably shouldn’t matter either way.