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June 14, 2013 11:30 AM The Informer: Is Edward Snowden a Traitor or Whistleblower? Probably Both.

By Daniel Luzer

On June 9 the Guardian announced that Edward Snowden, a 29-year-old government contractor and former C.I.A. employee was responsible for revealing to the Washington Post and the Guardian that the National Security Agency had been collecting information about telephone calls made by millions of Americans for several months.

The reaction was swift and intense. John Cassidy gushed that Snowden, in “revealing the colossal scale of the U.S. government’s eavesdropping on Americans and other people around the world, …has performed a great public service.” California Senator Diane Feinstein, however, said simply that in breaking the oath he had taken to defend the Constitution, Snowden had “violated the law. It’s treason.”

Well get used to treason then, Senator; we’re likely to see a lot more of this in the future if we continue to run the national security state the way we do now.

New Yorker columnist Jeffrey Toobin wrote that the contractor,

leaked news of National Security Agency programs that collect vast amounts of information about the telephone calls made by millions of Americans, as well as e-mails and other files of foreign targets and their American connections. For this, some, including my colleague John Cassidy, are hailing him as a hero and a whistle-blower. He is neither. He is, rather, a grandiose narcissist who deserves to be in prison.

South Carolina Senator Lindsey Graham tweeted that he viewed “Mr. Snowdens’ actions not as one of patriotism [sic] but potentially a felony.” A Reuters/Ipsos poll indicated that almost a quarter of Americans, 23 percent, believe Edward Snowden is a traitor. Some 31 percent of those surveyed think he’s a patriot.

Snowden

But in so much of this discussion we appear to be missing another very real possibility. What if both of these things are true? Perhaps Snowden’s decision was a heroic act of patriotism and also a grievous betrayal of national security that the U.S government will rightly feel compelled to punish to the fullest extent of the law.

Toobin faced a lot of hostility for that piece. “If he’s no hero, you’re no journalist,” was one of the nicer tweets Toobin got in response to his column. But Toobin is really right. Snowden’s decision to leak the documents was criminal. We simply can’t have random low-level security contractors making moral decisions about when the American public gets to know secret government information.

The question… is whether the government can function when all of its employees (and contractors) can take it upon themselves to sabotage the programs they don’t like. That’s what Snowden has done.

But the more “employees” we have, the more this sort of thing is going to happen. The United States of America has the largest spy apparatus in the world. Since World War II, and more dramatically since September 11, 2001, we’ve seen a dramatic increase in the intelligence gathering powers of the United States government. An estimated 854,000 people now have top-secret security clearances. We pay at least $75 billion to fund more than 1,200 government organizations and 1,900 private companies that monitor “counterterrorism, homeland security and intelligence.”

The bulk of this money, some 70 percent, of the U.S. intelligence gathering annual budget, pays for private contractors, people who don’t work for the federal government, but merely agree to its official policies in order to get paid to do specific tasks. We see why this sort of thing might become difficult, and why Snowden shouldn’t really be a huge surprise.

The problem isn’t really that Snowden took it upon himself to “sabotage the program he didn’t like.” Such higher power logic is destructive to the functioning of government. But how many Snowdens are there? How man invasive security programs is our government running in secret?

The Whistleblower Protection Act of 1989 legally shields federal employees from punishment for reporting fraud, waste, and abuse.” The trouble is that the nature of fraud, waste, and abuse” is so ambiguous as to render the protection meaningless.

Bradley Manning allegedly released thousands of classified government documents to the world though WikiLeaks. That was obviously a violation of all sorts of pledges and promises made by Manning as a member of the U.S. Army, not to mention clearly illegal. But it also, as Matt Taibbi so heatedly put it at Rolling Stone, hinges on something far more important to American foreign policy: “This case is entirely about the “classified” materials Manning had access to, and whether or not they contained widespread evidence of war crimes.” So if Manning demonstrates that the United States committed war crimes then he’s a whistleblower, but if courts decide Manning has not revealed war crimes then he’s just a traitor?

The American security state is simply not set up to allow those policing our empire to decide on their own when United States’ policies violate some rules or laws or norms of responsible behavior and then go forth responsibly, and with no expectation that their jobs won’t be threatened, to tell someone about fraud, waste, and abuse. And it never can be.

The collection of telephone records, millions of them, in bulk, without suspicion of any crime, by the NSA was undertaken by an order of the country’s secret Foreign Intelligence Surveillance Court (FISA). FISA issued the order on April 25 for a period to end on July 19. All of this is perfectly legal. The FISA court is authorized by the Foreign Intelligence Surveillance Act of 1978. But American citizens didn’t acquiesce to the gathering of their phone records. This, presumably, is what Snowden means when he says he didn’t “want to live in a society that does these sort of things… I do not want to live in a world where everything I do and say is recorded.” It is, however, the world in which he does live, under laws passed by his Congress.

The sort of intelligence gathering that involves sifting through the communications details of millions of law-abiding Americans is the sort of legally allowed behavior to which most reasonable Americans might object. Or they would if they knew about it, which they now do. Thanks to Snowden.

As Toobin put it: “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.”

Well sure, but he’ll not be the last government employee to come to question this sort of behavior.

Making classified government materials public is wrong. Or, at any rate, it’s illegal. But the bigger the American security operation grows, and the more we farm it out to private contractors, the more this is going to happen. Someone will decide a policy, or a action, or even a law is wrong, and he’ll expose it, and we’ll have to deal with the consequences.

Edward Snowden willfully and deliberately broke the law and should and will suffer consequences because of it. But let’s stop with this moralizing here. Snowden is very clear about why he did this; acknowledge what he says and the reasons he gives for his actions. Who cares if he’s a grandiose narcissist?

The N.S.A. has built an infrastructure that allows it to intercept almost everything. With this capability, the vast majority of human communications are automatically ingested without targeting. If I wanted to see your e-mails or your wife’s phone, all I have to do is use intercepts. I can get your e-mails, passwords, phone records, credit cards.

That doesn’t make him innocent, but he reveals something interesting and disturbing about how the national security state operates.

There is reason to believe people like Manning and Snowden shouldn’t be trusted to determine what is and is not crucial to national security. But while it’s true that the government can’t function effectively when its employees take it upon themselves to sabotage the programs they don’t like, a good question to ask might be how many programs we should really be running to which any “marginally attentive citizen” might object.

Sure, his actions might be considered treason, and they’re almost certainly illegal—prosecute him to the fullest extent of the law—but note why he said he did this. If we don’t change the way our nation gathers intelligence we’re apt to see a whole lot more arguments like Snowden offers, likely by people who feel compelled to do very similar things.

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Daniel Luzer is the news editor at Governing Magazine and former web editor of the Washington Monthly. Find him on Twitter: @Daniel_Luzer
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