After the recent Q&A: My U-turn on Edward Snowden
Those of you who know me, know that I am usually quite ready to defend Edward Snowden.
You may have been reading this blog or listening to me going on about how I believed he did something brave and honourable and that he should be applauded and not punished. You may have read about my belief that the act of applying for, and being granted, asylum in Russia says nothing about Edward Snowden’s true motivations and everything about how the US and other nations handled the situation.
People who follow me on Twitter or Facebook, whether they liked it or not, have watched me share material about the potentially unlawful practices of the NSA and the British GCHQ and have witnessed my indignation at governments like German chancellor Merkel’s administration for keeping still instead of standing up to the US.
You may have heard and read me call for Mr Snowden’s protection, his pardon, you may have witnessed me going on about his right to asylum, condemning those who would deprive him of that right and those who would not help him.
I believed in Snowden from the start.
But not anymore.
I was around for that live Q&A with Snowden this week, and I wasn’t impressed.
It has caused me to reconsider what his opponents have to say and I think I now see who the real Edward Snowden is at last.
And based on that evidence, Edward Joseph Snowden, former employee of NSA contractor Booz Allen Hamilton, I say to thee: thou art a villain. Thou art a rogue, a knave, a traitor, guilty of the most heinous crimes.
Yes, I finally see it!
Mike Rogers, chairman of the US House Intelligence Committee, has opened my eyes to your knavery!
I believe there is a reason, Edward Snowden, for why you “ended up in the hands, the loving arms, of an agent in Moscow,” and for why Russia has now hinted that it will extend your asylum.
It doesn’t matter that I have no idea who that agent with the loving arms is supposed to be or what the hell Mr Rogers is talking about, or that he has “offered no firm evidence to back his theory”.
It makes no difference either, that the FBI still thinks you acted on your own and that Richard Ledgett, the senior NSA guy investigating the leaks, agrees with them.
Clearly, the things you did, Edward Snowden, were “beyond your technical capabilities”.
Never mind that – months later – the NSA is still stumped about exactly how much you took because you covered your tracks too well. That has nothing to do with your capabilities; you “had some help,” didn’t you, when you “stole things that had nothing to do with privacy.”
Diane Feinstein, defender of the NSA and my new favourite person in the world, says the same thing: you may well have had help. She doesn’t really know. No matter.
So she cannot prove it. Who cares?
If one does not have the slightest evidence to support a claim but does not believe the evidence supporting the opposite claim, one might as well assume that one is right.
Especially as one’s claims are lapped up so readily by one’s friends in the media.
After all, someone who would shamefully abandon his girlfriend – a grown woman in the 21st century – to fend for herself and abscond first to China and then to Russia must be capable of all sorts of evil acts!
You are a weed, Edward Snowden, a pest, a tumour, planted and then “cultivated by a foreign power to do what [you] did.”
Undoubtedly, it must have happened during your time abroad.
After all, living in Switzerland, that homeland of rich racists, must have made you appreciate the perks of some good old-fashioned Communism.
Was it there that the seed of treason was planted inside you, Edward?
The seed that then grew and turned you into a fully-fledged double-crosser ready to sell your country and manipulate your colleagues into giving you their passwords?
Oh thou master of manipulation, no wonder I fell for your ruse!
I now name thee thief!
And I turn my back on thee!
No, of course I don’t.
Obviously, I am not being serious.
And I don’t believe I had you, dear readers, for a second.
After all, these latest allegations that Edward Snowden “may have had help” from Russia when taking away the NSA’s toys are no less unfounded or any less ridiculous than previous, similar ones.
They are, in fact, more so.
Justin King calls them “a bi-partisan effort to scare the American people into ending their opposition to the surveillance state”.
He is not wrong. It cannot be a coincidence that this kind of Snowden-bashing gained new momentum in the wake of Mr Obama’s speech last week.
Having tried, I can tell you though, that it is very, very difficult for any reasonable person to uphold claims that Mr Snowden is a Russian (or any other nation’s) asset.
Allegations that Mr Snowden was or is working for Russia’s (or any other) government simply “won’t stick” and I am guessing one of the many reasons for that is that not even the spooks themselves believe them:
“Other US security officials told Reuters as recently as last week that the United States had no evidence that Snowden had any confederates who assisted him or guided him about what National Security Agency materials to hack or how to do so.”
Now, the spooks though…. They seem to have quite a lot they would like not to become known, don’t they?
On Tuesday, the Guardian reported that “[t]he Justice Department is withholding documents related to the bulk collection of Americans’ data from a transparency lawsuit launched by the American Civil Liberties Union.”
The decision “has raised suspicions within the ACLU that the government continues to hide bulk surveillance activities from the public.” Other, different bulk collection activities than those that we (courtesy of Mr Snowden) already know about, that is.
And here’s a laugh: “The government cannot [even] specify the total number of documents withheld in full […] because the number itself is classified.”
So you cannot get information on the number of classified documents that are being withheld in court because the number of documents itself is classified information. Wow, that must be quite some information! What could we possibly, I wonder, infer from a mere number? Except perhaps that there is far too much indiscriminate surveillance going on.
Not that we didn’t know that already.
Effectively, though, “the government [still] appears to be hiding the ball.”
And make no mistake: “We can’t have the public debate that President Obama wants without the facts that his agencies are hiding.”
Now consider who is hiding what here (and who is making unfounded allegations against whom and who is calling for whose assassination) and then ask yourselves who the real knaves are in this drama.
While you’re at it, also take into account that Human Rights Watch in its annual report for 2014 criticizes mass surveillance for various reasons, warning that it could “could have a disastrous long-term effect on internet freedom and free speech.”
Free speech – now here’s a thing: Edward Snowden has provided us with the information we need to have a free and informed debate. The US government says it welcomes this debate.
Yet, they are still withholding documents vital for that debate and are calling for the prosecution of the man who enabled that debate. Most recently, they have called for him to enter a guilty plea. More on that in a moment.
Seeing that they cannot – for the moment – lure him back or get their hands on him by legal means, they are clearly and blatantly trying to discredit him, failing at every turn to base their allegations on any solid evidence.
To me, the shenanigans of Ms Feinstein, Mr Rogers and Mr McCaul display the same sort of desperation and frustration so sickeningly evident in the spooks’ murderous hatred for Mr Snowden.
Now, who are we to believe? The man who, to all intents and purposes and according to all available evidence, is a whistleblower, or the people with questionable motives and worryingly skewered ideas of morality who are trying to discredit, incarcerate, murder him?
For one last hint as to the answer consider what Human Rights Watch has to say on the distinction between the content of calls and emails and metadata that the US government and the NSA keep using to justify their practices as “not spying”:
“To assume that only the listening in, not the collection part of surveillance constituted an intrusion of privacy was “a fallacy”. Imagine the government putting a video camera in your bedroom and saying ‘don’t worry, the feed will only go into a government computer, which we won’t look at unless we have reason to believe that wrongdoing is taking place’. Would you feel your privacy is being respected? Of course not. But that’s exactly what the government is doing.”
Would you trust a Peeping Tom when he told you that everything he was doing was perfectly within the law? And that the person warning you that he was outside your window every night looking in needed to be brought in front of a judge for doing so?
Unfounded allegations and legally questionable programmes
And I am sorry Ms Feinstein, Mr McCaul, Mr Rogers, but the case you are making against Mr Snowden won’t stand. It cannot be upheld because there is no evidence that your allegations that he had outside help when outsmarting the NSA have any basis in fact.
There is, however, ample evidence that you and your associates are not as trustworthy as you profess to be.
Which, of course, explains why you keep banging on so loudly about Mr Snowden and Russia: people who are not quite sure of themselves are often hide their insecurity behind a veil of noise.
And you have every reason, don’t you, especially this week, to feel a little bit insecure about yourselves? And particularly about that bulk phone record collection programme under section 215 of the Patriot Act that you like to defend so much?
After all, “[o]n Thursday, the executive branch’s privacy watchdog, the Privacy and Civil Liberties Oversight Board, became the latest independent group to have looked into the […] practice of collecting citizens’ phone data in bulk – and to call for it to stop,” concluding that “that bulk collection under section 215 of the Patriot Act constituted an invasion of privacy with insufficient oversight and negligible national security benefits.”
Here is a crucial quote from the report which can be found in full here:
“The Section 215 bulk telephone records program lacks a viable legal foundation under Section 215, implicates constitutional concerns under the First and Fourth Amendments, raises serious threats to privacy and civil liberties as a policy matter, and has shown only limited value. As a result, the board recommends that the government end the program.”
And there are many people who agree with this. The Guardian has a list of quotes here.
Some of my personal favourites call the programme a “potential risks to public trust, personal privacy, and civil liberty”, an “excessive”, “indiscriminate” and “arbitrary invasion” of “incredibly troubling” Orwellian scope, and point out that “[t]he government has not made a compelling case that this program is an effective counter-terrorism tool” because “there is no evidence that the […] program helped to thwart dozens or even several terrorist plots” and thus no “legitimate explanation [exists] for tracking the numbers, locations, times and duration of the calls of every American.”
Crucially, “[n]ot only did the board conclude that the bulk surveillance was a threat to constitutional liberties, it could not find “a single instance” in which the program “made a concrete difference in the outcome of a terrorism investigation”.”
This goes against Barack Obama’s acceptance of “the intelligence community’s highly contested rationale that bulk phone records collection [is] necessary in order for the government to detect domestic connections to terrorism.”
As such, the Privacy and Civil Liberties Oversight Board’s report sounds a lot more promising than most of what Mr Obama said in his speech last week.
I agree with Jameel Jaffer of the ACLU that “[t]he board’s report makes even clearer that the government’s surveillance policies, as well as our system of oversight, are in need of far-reaching reform.”
So. There is no evidence that this programme is successful. By contrast, there is evidence that bulk surveillance is “a threat to constitutional liberties.”
This is something we all needed to know about and there is no reason, or evidence, to believe that Mr Snowden disclosed information about this programme for any other reason than because he was troubled by what he saw.
A study in scarlet thread
Which brings me back to the repeated allegations that he is a Russian spy.
Note that every report on these allegations – be the reporting media government friendly or no – has to concede that neither Ms Feinstein, nor Mr McCaul, nor Mr Rogers has given any evidence to support their claim.
“Provided no evidence.”
That sentence runs like a bright red – dare I say scarlet – thread through every article and commentary on the story.
So whereas Mr Snowden’s motives continue to seem sound rather than dodgy, and while his decision to reveal these mass surveillance programmes seems more vindicated each day, what about those of the NSA and their minions?
Ah, here is the hitch, you see?
Because there are some very questionable characters among them.
Now, in fairness, Mr Snowden in the recent Q&A made it clear that “the people at the working level at the NSA, CIA, or any other member of the IC are not out to get [us]. They’re good people trying to do the right thing.”
“The people you need to watch out for,” he stressed, “are the unaccountable senior officials authorizing these unconstitutional programs.”
And they have some very scary things to say on the subject of what they would like to do to Mr Snowden.
Kill him, preferably.
Which is precisely the kind of nonsense that seriously makes me doubt that it would be a good idea for Mr Snowden to consider any kind of plea bargain, even though the US Attorney General Eric Holder has once again put that on the table this week – keeping clemency firmly off that same table mind you: “We’ve always indicated that the notion of clemency isn’t something that we were willing to consider. Instead, were he coming back to the U.S. to enter a plea, we would engage with his lawyers.”
The idea behind the notion of a plea bargain – apart from the obvious one that the US government want their stuff back – probably is the same that has been repeated time and again:
Mr Snowden “should come back, he should be sent back, and he should have his day in court,” he should “stand on his own two feet. He ought to make his case. Come home, make the case that somehow there was a higher purpose here.”
Now. Giving Mr Snowden an official forum to speak and to address the charges made against him may sound like a good idea in principle.
In practice, however, it really doesn’t sound that good at all.
Being charged under the Espionage Act, Mr Snowden’s chances of properly arguing his case are perceived to be rather slim.
“These statements [that call for Mr Snowden to make his case in court] belie a fundamental misunderstanding about how Espionage Act prosecutions work,” Trevor Timm of the Freedom of the Press Foundation writes.
“If Edward Snowden comes back to the US to face trial, he likely will not be able to tell a jury why he did what he did, and what happened because of his actions. Contrary to common sense, there is no public interest exception to the Espionage Act. Prosecutors in recent cases have convinced courts that the intent of the leaker, the value of leaks to the public, and the lack of harm caused by the leaks are irrelevant—and are therefore inadmissible in court.”
Examples of this are Thomas Drake and, most recently, Chelsea Manning.
If the prosecution had their way, Snowden would also not be able to explain to a jury that his leaks sparked more than two dozen bills in Congress, and half a dozen lawsuits, all designed to rein in unconstitutional surveillance. He wouldn’t be allowed to explain how his leaks caught an official lying to Congress, that they’ve led to a White House review panel recommending forty-six reforms for US intelligence agencies, or that they’ve led to an unprecedented review of government secrecy. He wouldn’t be able to talk about the sea change in the public’s perception of privacy since his leaks, or the fact that a majority of the public considers him a whistleblower.”
Sound good or fair to you? No, not me either.
And by the way, Holder certainly doesn’t. Consider Mr Snowden a whistleblower, I mean: “I prefer the term defendant. That’s the most apt title.”
Mr Snowden is aware of these issues. When asked about this during the Q&A he responded:
Returning to the US, I think, is the best resolution for the government, the public, and myself, but it’s unfortunately not possible in the face of current whistleblower protection laws, which through a failure in law did not cover national security contractors like myself.
The hundred-year old law under which I’ve been charged, which was never intended to be used against people working in the public interest, and forbids a public interest defense. This is especially frustrating, because it means there’s no chance to have a fair trial, and no way I can come home and make my case to a jury.
Questions and Answers
Allow me to dwell on that Q&A session for a little because I think Mr Snowden made some important points which I would like to quote here.
Further on whistleblower protection in the United States he said:
One of the things that has not been widely reported by journalists is that whistleblower protection laws in the US do not protect contractors in the national security arena. There are so many holes in the laws, the protections they afford are so weak, and the processes for reporting they provide are so ineffective that they appear to be intended to discourage reporting of even the clearest wrongdoing. If I had revealed what I knew about these unconstitutional but classified programs to Congress, they could have charged me with a felony…
On claims that he cheated his co-workers out of their passwords, he corrected:
With all due respect to Mark Hosenball, the Reuters report that put this out there was simply wrong. I never stole any passwords, nor did I trick an army of co-workers.
On surveillance in general and indiscriminate mass surveillance:
Not all spying is bad. The biggest problem we face right now is the new technique of indiscriminate mass surveillance, where governments are seizing billions and billions and billions of innocents’ communication every single day. This is done not because it’s necessary — after all, these programs are unprecedented in US history, and were begun in response to a threat that kills fewer Americans every year than bathtub falls and police officers — but because new technologies make it easy and cheap.
I think a person should be able to dial a number, make a purchase, send an SMS, write an email, or visit a website without having to think about what it’s going to look like on their permanent record.
…. The NSA and the rest of the US Intelligence Community is exceptionally well positioned to meet our intelligence requirements through targeted surveillance — the same way we’ve always done it — without resorting to the mass surveillance of entire populations.
I suggest you read the complete Q&A. Some of it isn’t quite new but I believe that it shows once again that Mr Snowden is, as one Twitter user put it: “smart, thoughtful, very un-arrogant.”
There is certainly no evidence of the megalomania or naïveté that his opponents accuse him of.
Importantly, on the threats that have been made to his life, he has something to say that has been bothering me as well:
That current, serving officials of our government are so comfortable in their authorities that they’re willing to tell reporters on the record that they think the due process protections of the 5th Amendment of our Constitution are outdated concepts. These are the same officials telling us to trust that they’ll honor the 4th and 1st Amendments.
Once, again Mr Snowden is right that “[t]his should bother all of us”.
And even if these comments sprung up in the heat of a particular moment (which, given the nature of some of them, I sincerely doubt), then surely serving officials should know better than to speak them in public – to a news source no less.
Which is why I am not quite sure if I agree with Jesselyn Radack’s assessment that “the tide has changed for Snowden. All of these things taken together counsel in favor of some sort of amnesty or pardon.”
To be fair to Ms Radack, she made that statement a month ago and it was only on Thursday that Mr Holder made it clear that Mr Snowden might be able to expect some sort of bargain only in return for a guilty plea.
The problems with that, of course – in addition to hysterical calls for assassination made by some members of the intelligence community – I have outlined above.
So yes, things are definitely moving.
The World Economic Forum in Davos this week saw the launch of an independent commission that is to “investigate the future of the internet in the wake of the Edward Snowden revelations”.
The commission has been set up by Britain’s foreign affairs thinktank Chatham House and by the Center for International Governance and Innovation (CIGI), which is partly funded by the Canadian government. It will conduct a two-year inquiry.
While this is an interesting idea, what disturbs me about it is that Chatham house and the CIGI seem to view the Snowden revelations as a threat to a free, universal internet: “revelations about the nature and extent of online surveillance have led to a loss of trust.”
This misses the point. The threat aren’t Mr Snowden’s revelations or merely “a number of authoritarian states […] waging a campaign to exert greater state control over critical internet resources.”
Rather, one of the major threats is indiscriminate mass surveillance conducted by so-called Western democracies.
It is certainly promising that the US privacy board “plans in the coming weeks to issue another report evaluating the NSA’s collection of bulk foreign Internet communications, which have included those with Americans “incidentally” collected”, yet we must not forget that these can only be initial steps.
For now, the US administration still considers the bulk phone record collection programme “lawful” and whistleblowers in the US are by no means well-protected enough.
I strongly disagree with Alex Little’s assessment that Mr Snowden could get a fair trial in the US.
I, for one, have little faith that any of the hypotheticals that Mr Little suggests as the conditions for such a trial have a chance of being realized.
For now, both NSA surveillance and whistleblower protection are in dire need of reform.
It seems that only when Mr Snowden is given full credit for enabling such reform – and giving due credit absolutely includes the right to fair treatment before US law, an end of death threats and false allegations – will he be able to even consider returning to the US.
He still seems to have faith that this might happen:
“What makes our country strong is our system of values, not a snapshot of the structure of our agencies or the framework of our laws. We can correct the laws, restrain the overreach of agencies, and hold the senior officials responsible for abusive programs to account.”
It remains to be seen if he is right on that count but it is doubtful that even if he is, his personal situation will be allowed to improve.