That Lonesome Whistle

It has now been three years since Edward Snowden blew the whistle on the National Security Agency’s massive surveillance program. It was the largest breach of classified material in U.S. history, heroic by some lights, traitorous by others. What cannot be denied is that Snowden’s actions triggered a national debate about civil liberties, surveillance, and privacy culminating in the bipartisan USA Freedom Act, which ended the government’s bulk data collection. Today, many people recognize the value of this debate. Among them is former U.S. Attorney General Eric Holder who, on May 30, agreed that Snowden “performed a public service by raising the debate that we engaged in and by the changes that we made.”

Yet, the notion that the leaks were a public service is not legally relevant, given the charges Snowden faces. He currently lives in an undisclosed location in Moscow, but should he come home, he will be prosecuted for treason under the 1917 Espionage Act. By law, he cannot claim public interest in his defense. However, public interest does matter to the claim, advanced by Snowden and his supporters, that he engaged in justified civil disobedience in the tradition of Henry David Thoreau and Martin Luther King.

But government whistleblowing—the unauthorized acquisition and disclosure of classified information—should not be confused with civil disobedience. Like civil disobedience, government whistleblowing can be morally justified, but the path to justification is different.

Civil disobedience is standardly defined as a conscientious, public, nonviolent breach of law, undertaken in order to persuade the majority to change a law or policy by appealing to the community’s shared conception of justice. Civil disobedience requires demonstrating overall “fidelity to law” by accepting, or even seeking out, the legal consequences of one’s actions.

On first blush, it seems appropriate to characterize Snowden as a civil disobedient: he was moved to break the law by deep moral and political convictions; he intended to alert the public about the scope and potential illegality of the NSA’s spying program; he appealed to the community’s commitment to the rule of law; his goal was to bring about structural reforms to the surveillance program, which he did; and he wishes to return to the United States to face justice, as long as he is allowed to offer a public-interest defense. By invigorating democratic deliberation and spurring change in this way, Snowden’s civil disobedience was morally justified, his supporters insist.

In contrast, Snowden’s foes point to his decision to flee to Russia as evidence that he is not a civil disobedient but a traitor, since he has evaded punishment. His detractors argue that he betrayed the United States, hurt national security, put U.S. soldiers at risk, and helped terrorists by making it harder to foil their plots.

Both supporters and opponents confuse government whistleblowing with civil disobedience. Opponents wrongly conceive of willingness to accept punishment as sine qua non for both whistleblowing and civil disobedience, and as a result they deny that Snowden is a whistleblower. In response, Snowden stresses that submitting to punishment would have amounted to “volunteering . . . to be used as a negative example,” since the government would have thrown him in jail “forever” to deter future leakers. For their part, Snowden’s sympathizers ignore or downplay significant differences between whistleblowing and civil disobedience.

First, consider the potential impact of the two types of lawbreaking. Individuals engaged in civil disobedience cannot typically accomplish much on their own. Instead, the success of a civil disobedience campaign is often linked to the number of its participants. Civil disobedience also takes time: the Birmingham bus boycott, for instance, lasted 381 days. By contrast, one whistleblower can have a massive impact in the public sphere, shedding light on state secrets all at once, as Snowden demonstrated.

Second, whether it is morally justified or not, civil disobedience does not risk harming national security. Government whistleblowing sometimes does. Third parties may sometimes be hurt as a result of civil disobedience—for instance, in the 1960s, white supremacist mobs assaulted innocent bystanders whom they mistook as Freedom Riders. But the potential harm of government whistleblowing is of a different scale because such leaks transgress the state’s determination of the proper scope of secrecy. As a result, classified information may fall into the wrong hands, undercover agents or informants may be exposed, and ongoing military operations may be revealed. The Senate Select Committee on Intelligence considers leaks of classified information the second greatest global security threat to the United States ahead of international terrorism.

Third, while civil disobedients typically commit relatively minor infractions, whistleblowers’ offenses are very grave under current U.S. law. The South Carolina Friendship Nine, who conducted lunch counter sit-ins, were convicted of misdemeanors—trespass and breach of peace—and sentenced to serve thirty days in jail or pay a $100 fine. In contrast, the Obama administration regularly uses the Espionage Act to charge government whistleblowers with treason, which carries a possible death sentence.

Given all this, it is hard to square whistleblowing with the standard conception of civil disobedience. If Snowden were allowed a public-interest argument, he would do well to set aside civil disobedience and focus instead on his adherence to principles unique to government whistleblowing: whistleblowing must expose serious government wrongdoing or programs and policies that ought to be known and deliberated about; the whistleblower ought to exercise due care in the disclosure so as to minimize harms that could potentially result; and the whistleblower must first attempt to publicize the information lawfully, unless there are reasons to think these attempts would be useless.

Under these principles, Snowden could plausibly argue that his actions were justified as whistleblowing. First, Snowden clearly meant to alert the public about the scope and illegality of the NSA’s spying program. While there is reasonable disagreement about the program’s legality—one federal judge agreed that that the program was unconstitutional; another did not—what matters is that the government kept secret something about which the public ought to have been informed. The state has a vital interest in concealing certain information, such as details about secret military operations, to protect national security. But history suggests that governments are not to be trusted on such matters, by default. Governments tend to draw the bounds of secrecy too widely, as President Richard Nixon did in concealing his spying on political opponents. And, as in the case of the Pentagon Papers, when classified information leaks, governments claim irreparable harms to national security even when there is none.

Second, and related, Snowden exercised due care in handling the sensitive material. He collaborated with journalists at The Guardian, The Washington Post, and ProPublica, and with filmmaker Laura Poitras, all of whom edited the material with caution. The NSA revelations won the Post and Guardian the Pulitzer Prize for public service. There is no credible evidence that the leaks fell into the hands of foreign parties, and a report from the online intelligence monitoring firm Flashpoint rebutted the claim that Snowden helped terrorists by alerting them to government surveillance.

Third, Snowden had reason to think that pursuing lawful means of alert would be useless, although he tried nonetheless, reporting the surveillance programs “to more than ten distinct officials, none of whom took any action to address them.” Before Snowden, four NSA whistleblowers had done the same without success and suffered serious legal reprisals. The last one, Thomas Drake, followed the protocol set out in the Intelligence Community Whistleblower Protection Act by complaining internally to his superiors, the NSA Inspector General, the Defense Department Inspector General. He also presented unclassified documents to the House and Senate Congressional intelligence committees. Four years later, he leaked unclassified documents to the New York Times. The NSA went on to classify the documents Drake had leaked, and he was charged under the Espionage Act in 2010.

Snowden believes that the law, as written, doesn’t offer him a fair opportunity to defend himself. Whistleblower advocates, including Pentagon Papers leaker Daniel Ellsberg and the United Nations High Commissioner for Human Rights, have called for reform of whistleblower protections to allow for public-interest defense. Snowden also is left in the cold by the 1989 Federal Whistleblower Protection Act and the 2012 Federal Whistleblower Protection Enhancement Act, both of which exclude intelligence employees.

If Snowden does get his day in court, though, he and his sympathizers should not try to portray his actions in terms of civil disobedience, an argument with serious holes. Instead they should accept that government whistleblowing is a risky form of principled disobedience. It can be justified, but on its own terms.