Why Global Privacy Should Matter to Americans: A Reply to Jack Goldsmith

Jack Goldsmith’s response to my call for a pardon for Edward Snowden deserves a reply. I also have a few thoughts on what Susan Hennessey and Ben Wittes have now added to the debate.

Jack and I agree that the reforms instituted since 2013 would not have happened without Snowden and have helped the NSA become more transparent, accountable and effective. We agree that this is a good thing because NSA operations are vital to national security and international stability. We also agree that Snowden should not be punished for exposing a program of domestic collection of telephone records approved by the Foreign Intelligence Surveillance Court that was—at best—of marginal value and legally questionable, was ruled illegal by another federal court and has now been ended by Congress.

Jack and I agree on this even though, in 2013, the existence of that bulk collection program was highly classified. It was a struggle for oversight officials—including both Jack and me—to obtain the access we needed to review it. It is worth noting that as of today, a conviction on the charges pending against Snowden that relate only to disclosure of this program would result in a lengthy prison sentence. Snowden’s lawyers are correct that he would have no “public interest” defense to such a charge, regardless of what Jack and I think about the benefits of exposing that program to public scrutiny.

Jack and I also agree that Snowden caused real damage to national security. As Jack points out and Lawfare has cataloged, the documents Snowden stole and gave to journalists include many legitimate NSA operations, including against Russia and China, terrorists, and other obvious targets. It is useful to note that it was news organizations, not Snowden, who made the decision to publish these damaging stories in pursuit of their Pulitzers. NSA operations may be newsworthy even if they do not involve privacy concerns, whether of Americans or foreigners. Of course, Snowden is still to blame for trusting journalists with the NSA’s secrets.

Where Jack and I mainly differ is on how to judge the disclosures of foreign collection programs. In making his case, Jack quotes Geoffrey Stone, a law professor at the University of Chicago and member of the review group established by President Obama in 2013 to make recommendations on surveillance reforms. Stone takes the position that disclosure of foreign collection programs can never be justified. Stone says, “No changes were generally made in these programs, and Americans don’t really care.” I think Stone is wrong on both counts. American do (or at least should) care, and the reforms that have been made to address foreign privacy—at the recommendation of the review group of which Stone was a part—are important.

While the law draws a big distinction between data collected inside the United States and data collected abroad, in this regard the law is an ass. The data of Americans is far more likely to be overseas now than when our surveillance laws were written in the late 1970’s—an era of analog telephones, before globalization and the internet. When it passed the FISA Amendments Act in 2008, Congress recognized that a rule that puts such emphasis on the location where data is collected makes little sense. Congress however, only updated the law one way—making surveillance of data inside the United States easier. The NSA’s surveillance of data outside the United States is still governed only by its internal rules, required by Executive Order 12,333, despite the far greater danger of incidental collection of Americans’ data in the digital age.

I have argued that these risks are significant enough that the time has come for legislative and judicial controls on NSA overseas collection. The Snowden disclosures of foreign collection programs made stark as nothing else could the risks to American privacy posed by the aggressiveness of applying the NSA’s “collect it all” approach to data around the world. If Snowden and the journalists who worked with him had revealed only the NSA’s bulk collection of American telephone records, the public would simply have no inkling of the scale of the problem. Congress will have a chance to consider this question when it reviews the FISA Amendments Act next year. If Congress chooses to ignore it, at least it will be doing so with its eyes open, and can be held accountable by the public.

As Jack notes, Snowden took an oath to the United States Constitution, not to the internet or some ideal of global ethics. The Supreme Court has said that the Fourth Amendment does not apply to foreigners outside the United States. Still, the Constitution also provides that “all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.” The International Covenant on Civil and Political Rights, which the United States has ratified, provides a universal right against “arbitrary or unlawful interference” with anyone’s “privacy, family, home or correspondence.” I am aware that the United States government does not believe its legal obligations under this treaty apply extraterritorially. My point is not a legal one—it is that respect for the right of every human being to privacy need not be seen as some cosmopolitan concern that is at odds with devotion to this country.

Privacy is a basic American value. That value has been enlarged as a result of the Snowden disclosures. It is now a matter of principle for the United States that foreign privacy matters in signals intelligence operations, and not just because of their impact on American privacy. Presidential Policy Directive 28 provides: “All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information.” I believe this policy change is more significant, in the long run, than ending one program of bulk collection of American telephone records. It raises the bar not only for the United States but also for our friends and allies—and gives us greater standing to criticize our adversaries.

Like Jack, the Director of National Intelligence, James Clapper, has argued he could “almost accept” Snowden’s actions if they were limited to the NSA’s domestic collection of data—the very collection he damaged his reputation to keep secret. Still, Clapper observes that “what he did, what he took, what he has exposed, goes way, way, way beyond the so-called domestic surveillance programs.” The very reforms that Clapper himself has instituted to protect the rights of foreigners in accordance with PPD-28 refute the idea that we should give little or no weight to foreign privacy in judging Snowden.

Many of Snowden’s strongest supporters dismiss the significance of these legal and policy reforms. They do so because they believe—falsely—that the NSA is an out-of-control agency that ignores policies like PPD-28, the law, and (in Glenn Greenwald’s words) “has as its goal the complete elimination of electronic privacy worldwide.” That idea is utter nonsense, no matter how skillfully Oliver Stone manages to deploy Hollywood’s magic to convey it. The NSA collects intelligence vital to American national security under the rules it is given, as they are interpreted by national security lawyers. For decades, those rules only protected American citizens and residents. Now that has changed. It has only done so because of Snowden’s disclosures of foreign collection programs.

Jack notes the “lost investments in intelligence mechanisms and operations” that resulted from these disclosures. Some involve NSA hacking. The disclosures have had a major impact on technology companies and engineers who are now far more aware of the need to secure data. The broader use of encryption may factor into the “hundreds of millions of dollars” the intelligence community says it has spent to mitigate the damage caused by Snowden. This view myopically values collection of signals intelligence over the critical need to secure computer networks. While industry’s response to Snowden has certainly resulted in a short-term loss in the NSA’s ability to gather intelligence, improvements in global cybersecurity constitute a long-term gain for the United States.

Since Jack agrees that my argument for a pardon is “ethically and morally coherent,” and “is not a crazy view,” I will return the favor. Jack’s argument against a pardon is a perfectly reasonable one. The damage was real. We simply differ on how to weigh that damage against the benefits.

Susan and Ben also make good points about why Snowden simply doesn’t deserve a pardon. They contrast his case with that of Chelsea Manning, and make a persuasive case that Manning at least deserves to have her sentence commuted. I am sympathetic to these points. As I explained in my initial post, I reached my conclusion on this issue not because I think Snowden is a hero, but because I think a pardon is in American interests “even if he does not personally deserve one.”

I wish other opponents of the Snowden pardon had made their points with the grace that Jack, Susan and Ben have done. The House Permanent Select Committee on Intelligence report on Snowden is an embarrassment. The public version of the report consists of two paragraphs of assertions about damage to national security unsupported by facts, followed by a series of personal attacks on Snowden. The report will do considerable reputational harm to the oversight bodies that are supposed to act as a check on the intelligence community. Snowden’s supporters depict these institutions as rubber stamps. This report provides ammunition for their argument. It is as fine an example of what Jack calls the “self-defeatingly secretive and insular” attitude of some in the national security establishment as one could imagine.

While I understand the need to keep some details secret even now, surely more can be made public about what the committee calls its two year investigation into the impact of the Snowden disclosures. The intelligence community has a credibility deficit. Bald claims of damage will convince no one not already convinced. The personal attacks are of questionable accuracy. They are also irrelevant to the issue of how to judge the relative weight of the benefits and harms of the Snowden disclosures. The report will do little more than embitter Snowden’s supporters. The credibility of congressional oversight is far more important than whether Snowden is telling the truth about having passed a high school equivalency test. (He is.)

Finally, Jack believes a pardon sends a “clear signal of approval” for Snowden’s actions. I disagree. If Obama does pardon Snowden, I have no doubt he will make clear it is not because Snowden deserves our “congratulations”—as Ben and Susan say he wants—but because a pardon is in the nation’s best interests. Obama would be in good company. In considering questions of executive power, Akhil Amar observes that what George Washington did enjoys “special authority on a wide range of issues, especially those concerning presidential power”—like pardons. So how did Washington exercise that power? He pardoned traitors.

Washington was the first and still the only president to personally lead troops into battle. In 1794, President Washington took command of a military operation to suppress an uprising of farmers in western Pennsylvania over federal taxes on spirits. Nevertheless, to help the nation heal, Washington pardoned the very rebels he fought on the battlefield. The pardons included two who had been convicted of treason and sentenced to hang. In doing so, Washington did not signal approval of treason, nor did he set a precedent requiring future presidents to go easy on armed insurrection. If Obama pardoned Snowden, I believe the pardon would be seen in similar fashion: as an olive branch from the surveillance state to its severest critics. At bottom, Snowden’s leak was not the act of a traitor nor (as I have said) was it that of a traditional whistleblower. It is perhaps described best as a rash act of rebellion in an effort to “save the Internet” (as Jack put it)—with collateral damage to legitimate intelligence operations.

While I do not know if Jack, Susan, Ben and I have changed any minds with our exchange, my hope is that our conversation has done something to help some readers see another side of an emotional issue. In any event, it is past time to move beyond Snowden. The struggle to reform the NSA matters much more.