Revisiting Snowden

Both the New York Times and Britain’s Guardian newspapers offered editorials in support of clemency or plea bargain in the case of NSA leaker Edward Snowden.

“Considering the enormous value of the information he has revealed,” the Times said (Jan. 1), “and the abuses he has exposed, Mr. Snowden deserves better than a life of permanent exile, fear and flight. He may have committed a crime to do so, but he has done his country a great service….

“The president said in August… ‘If the concern was that somehow this was the only way to get this information out to the public, I signed an executive order well before Mr. Snowden leaked this information that provided whistle-blower protection to the intelligence community for the first time…’So there were other avenues available for somebody whose conscience was stirred and thought that they needed to question government actions.’

“In fact,” the Times points out, “that executive order did not apply to contractors, only to intelligence employees, rendering its protections useless to Mr. Snowden. More important, Mr. Snowden told the Washington Post earlier this month that he did report his misgivings to two superiors at the agency, showing them the volume of data collected by the N.S.A., and that they took no action. (The N.S.A. says there is no evidence of this.)”

The Times then offers a list on how the NSA broke federal privacy laws, and concludes, “In retrospect, Mr. Snowden was clearly justified in believing that the only way to blow the whistle on this kind of intelligence-gathering was to expose it to the public and let the resulting furor do the work his superiors would not.”

Britain’s Guardian (Jan. 1), writes, “Mr. Snowden gave classified information to journalists, even though he knew the likely consequences. That was an act of some moral courage.”

I wrote about Snowden last July, saying “He’s no longer problematic, he’s dangerous.” That was, however, before Snowden gave an updated interview to the Washington Post where he revealed that he had, in fact, notified officials at NSA about his concerns.

There is a very real problem in the opinion-sphere when factual information is incomplete because a story is still evolving and I’ll discuss this in another commentary. For now, let’s stick to what this new information provides.

To begin with, I was wrong last July when I said that Snowden could have been protected as a whistleblower. He was, in fact, employed by Booz Allen Hamilton which was contracted by the federal government. The Whistleblower Protection Act of 1989 only protects those individuals who are federal employees. (This is one example where the law needs to be amended.)

In an extensive interview with Washington Post reporter Barton Gellman (Dec. 23), Snowden said, “All I wanted was for the public to be able to have a say in how they are governed.”

“He had come to believe,” Gellman writes, “that a dangerous machine of mass surveillance was growing unchecked. Closed-door oversight by Congress and the Foreign Intelligence Surveillance Court was a ‘graveyard of judgment,’ he said, manipulated by the agency it was supposed to keep in check. Classification rules erected walls to prevent public debate….

“The NSA’s business is ‘information dominance,’ the use of other people’s secrets to shape events…. ‘You recognize that you’re going in blind, that there’s no model,’ Snowden said, acknowledging that he had no way to know whether the public would share his views. ‘But when you weigh that against the alternative, which is not to act,’ he said, ‘you realize that some analysis is better than no analysis. Because even if your analysis proves to be wrong, the marketplace of ideas will bear that out… it’s clear that you have to try something rather than do nothing.’ ”

Based on the Post interview, Snowden appears to possess all the right motives: he wants to do the right thing; believes the public has a right to know, and is willing to fight for his beliefs in spite of social and political pressures to do otherwise.

Since this story broke, much attention has been focused on the Snowden revelations to the consternation of the NSA. However, much of his message – that Congress and the public need to debate just what and how the NSA does its job – is a vitally important one.

My concern, however, comes from an ethical perspective.

First, did Edward Snowden take into account the interests of all stakeholders of the classified information he illegally obtained and made public?

Based on the Post interview, it would appear that his concerns were focused on the American public. As of this writing, there is no evidence to suggest that Snowden sold any government secrets. However, the NSA and the federal government would also need to be included in any list of stakeholders. How did he address those considerations?

I’ll take him at his word when he said that he took his concerns to NSA officials. However, he doesn’t reveal much about who those individuals were, nor does he discuss much of their response.

Second, since his concern is for the American public, did he make his decision on the basis of ethical values or was self-interest, in any way, a factor?

Clearly, Snowden appeared to be making his decision based on, what he believes to be, a higher duty or responsibility to the American public. He’s also attempting to be honest about the information, something current NSA head James Clapper was not in answering direct questions before Congress.

Third, are there any conflicting ethical values in his decision making?

Obviously, there’s a conflict between his duty to the NSA and honesty in making secret programs known to the public. Just as obvious is that Snowden chose honesty to the American public. However, “There is a danger,” ethicist Michael Josephson says, “that conscientious people who want to do their jobs well will cease to reflect on the moral justifications for the methods they use to achieve the results they seek.”

Snowden, in fact, used one of the oldest rationalizations in the book: the end justifies the means.

It is the method Snowden used in blowing the whistle that I find most troubling. After being rebuffed by four NSA officials and some 15 colleagues, he could have gone to the Inspector General’s Office. No evidence exists that he did. He could have gone to his own federal representative or senator. No evidence exists that he contacted anyone in Congress. He could have taken his concerns and information directly to both the House and Senate intelligence committees. Again, no evidence exists that he even attempted to contact anyone on either committee.

Additionally, Snowden could have confided his plan to make the information public with a trusted colleague, or even an ethicist before making his decision. Apparently, he discussed it with Guardian reporter Glenn Greenwald. However, as a reporter, Greenwald had a compelling interest in telling an exclusive story. It’s hard to imagine a reporter counseling restraint.

More troubling is the fact that the two places Snowden travels to before releasing his information are China and Russia – two countries who do not exactly enjoy warm relations with the U.S. How do we know he hasn’t shared additional information with them?

Nonetheless, there is another path available for Mr. Snowden. “An ethical decision-maker,” Josephson writes, “should monitor the effects of decisions and be prepared and willing to revise a plan, or take a different course of action, based on new information.”

If Edward Snowden truly wishes to come home, he can acknowledge the damage done to U.S. foreign relations. He can concede that he could have taken his concerns to many others before publically releasing highly classified documents, and – with the help of a federal agreement – he can surrender all additional NSA files to the appropriate Senate and House committees.

Am I suggesting amnesty? That’s for Congress to decide.

However, as I wrote in July, Snowden “needs to stand up to the consequences of his actions. Even his hero, Daniel Ellsberg did that. In releasing The Pentagon Papers…, Ellsberg… worked with the staff of Senator Edward Kennedy and had approached several other senators early on.”

While I believe there is much to discuss about the NSA’s role in protecting the American public from terrorists versus privacy concerns, Edward Snowden’s rationale in getting us to that point was wrong-headed.

“In as much as people are willing to hold others to high ethical standards,” Josephson writes, “and apply strict tests about whether the behavior of others is proper, perhaps the biggest challenge is for people to hold themselves accountable to those same standards.”

In this regard, Edward Snowden falls short.

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